Category Archives: Personnel Policies

NLRB Crackdown on Employee Handbooks

Even if your HR department is on top of things, some of the policies in your employee handbook probably are now unlawful. Confidentiality policies, professionalism policies, employee conduct policies, solicitation policies, conflict of interest policies, social media policies, and others have come under intense scrutiny by the National Labor Relations Board (“NLRB”) in the last six months. The result could be an unfair labor practices claim filed against your company, even though your company is not unionized. Continue reading NLRB Crackdown on Employee Handbooks

Employers Addressing Employee Tattoos

Attorney Vicki Wilmarth provided Texas employers with advice about addressing employee tattoos in Amarillo Magazine’s latest cover story, “Invisible Ink.” Click here  to read the very informative article and for more information about your company dress code regarding facial piercings and body art.

How Texas Employers Should Respond to Marriage Decision

Today’s U.S. Supreme Court decision that legalized same-sex marriage in all 50 states has Texas employers scrambling for a correct response. Businesses need to consider employee benefits, leaves of absence and many other Texas workplace policies to address the change in the definition of spouse.

Unlike some changes in the law, this one will not wait for Texas employers to catch up. Travis County had already issued 54 licenses to same sex couples by noon today. The Austin American-Statesman reported that clerks in Dallas, Bexar, Tarrant, Midland, McLennan and El Paso counties also began issuing licenses to same-sex couples and judges have already started marrying same-sex couples today in Texas.

Here are some of the employment law considerations that businesses need to address immediately: Continue reading How Texas Employers Should Respond to Marriage Decision

Employee Free Speech on Facebook

Is your employee free to post a Facebook rant about one of your supervisors that says, “Bob is such a nasty M___ F___ don’t know how to talk to people!!! F___ his mother and his entire f___ing family!!! What a loser!!! Vote YES for the UNION!!!”?

Many of my West Texas employers would fire the employee on the spot for that Facebook post.  But if you called an employment attorney, you would be advised against that termination because the National Labor Relations Board (NLRB) just decided last month that the employer involved in this mess had to reinstate the foul-mouthed employee and pay him lost wages.

The NLRB reasoned that the employee’s vulgar rant was “protected, concerted activity” protected by the federal act relating to the formation of unions. The NLRB noted that the harassment policy in the company’s handbook didn’t prohibit vulgar or offensive language, even though that policy was cited as the basis for the discharge. No employee had ever been fired by this employer before for obscene language. In addition, the company was in the middle of an election to decide if the workplace would be unionized.

However, even if your workplace will never be unionized, your actions as an employer can be scrutinized on the basis of employees engaging in “protected, concerted activity” to improve their pay and working conditions. For a summary of the cases that the NLRB has pursued against non-union employers, see the NLRB’s new website dedicated to their enforcement of that law.

The NLRB has also been very busy telling non-union employers what can and can’t be in an employee policy manual. On March 18, 2015, the NLRB’s general counsel released a memo concerning those employment policies that the NLRB believes have a “chilling effect” on employees’ rights to engage in protected activities.

Here are precautions you can take as an employer to avoid running afoul of the NLRB or a crafty plaintiffs’ employment lawyer that sues you for your “illegal” handbook policies: Continue reading Employee Free Speech on Facebook

Texas Employers Face Open Carry Law

It appears almost certain that the Texas legislature will pass and Governor Abbott will sign a bill allowing the open carrying of handguns in Texas. The law will go into effect by 2016. Visible handguns in belt or shoulder holsters can be carried by anyone currently licensed to carry a concealed handgun in Texas. There are 841,500 Texans, or about 5% of Texans 21 or older, who are current concealed handgun license holders.

Openly carrying a handgun will be prohibited in areas where concealed carrying is now banned: schools, bars, sporting events and businesses that have posted signs banning handguns on the premises.

Employers in Texas need to decide now whether employees will be allowed to openly carry a handgun in the workplace. When concealed carrying was the rule, employers could take a sort of “don’t ask, don’t tell” stance on guns in the workplace. Now decisions have to be made because the issue will be so evident.

Texas employers may completely ban all guns on the premises, allow customers to openly carry but choose to prohibit employees from doing so, or also allow licensed employees to openly carry in the workplace. Considerations include deciding how your particular clientele and your workforce will feel about guns. Continue reading Texas Employers Face Open Carry Law

Paying Employees for After Hours Work

In the last three or four years, there have been several cases filed against employers by nonexempt (hourly) employees who claimed they worked more hours than they were paid for because they checked their work email accounts at home in the evening or they remotely accessed their work files and sent a document to a client or answered a supervisor’s questions after hours. Technology has made this type of work easy and acceptable, but it also has made us as employers sloppy about our pay practices.

Applying the Fair Labor Standards Act, which regulates overtime and minimum wages, has never been easy, but when an employee showed up at the office, punched a time clock at the beginning of the work day and again at the end, paying that employee correctly was simpler.  Nowadays, smartphones, flash drives, remote log-ins, texts, etc., have added a new layer of compliance issues to the FLSA. And attorneys who represent employees in wage and hour lawsuits are taking advantage of the complexity by bringing collective (class) actions against employers for failing to capture and compensate for the time employees spend using all of that technology outside of the office. These cases are very expensive because they court will always award the employee(s) two times their damages plus attorneys’ fees that often greatly exceed the damages.

Don’t stick your head in the sand on this issue and just hope you never get sued. At a minimum, you need a policy in writing addressing these issues. Tell your nonexempt employees that you never want them working “off the clock” and that you will pay them for any after hours work they perform. Let your employees know whether this kind of out of the office work is acceptable, or if not, be prepared to discipline your employees for performing it (but still pay them for it).

Gay Marriage Affects Texas Employers


Regardless of your political beliefs about gay marriage, you are going to need to start dealing with the legal implications in your business. The U.S. Supreme Court’s two decisions regarding gay marriage, issued June 26, will leave you as an employer with more questions than answers right now. Even though Texas doesn’t recognize same-sex marriages, there are going to be issues raised by your employees about the application of benefits and employment laws to same sex couples even within the 37 states that don’t yet allow gay marriages. As Justice Antonin Scalia wrote in his dissent:

Imagine a pair of women who marry in Albany and then move to Alabama, which does not “recognize as valid any marriage of parties of the same sex.” Ala. Code §30–1–19(e) (2011). When the couple files their next federal tax return, may it be a joint one? Which State’s law controls, for federal-law purposes: their State of celebration (which recognizes the marriage) or their State of domicile (which does not)? (Does the answer depend on whether they were just visiting in Albany?) Are these questions to be answered as a matter of federal common law, or perhaps by borrowing a State’s choice-of-law rules? If so, which State’s?

Justice Scalia could have continued with questions such as: Must an employer offer COBRA continuation coverage of health insurance to a same-sex spouse, since COBRA is federally regulated, not a state issue? Does an employer in Texas have to provide Family and Medical Leave for an employee to provide his same-sex spouse (who legally married elsewhere) with care for a serious medical condition? Again, FMLA is a federal law, not a state one. There is some speculation among lawyers that President Obama will direct federal agencies such as the Department of Labor, when interpreting federal statutes such as FMLA or COBRA, to treat the “State of celebration”, as Scalia called it, as the state that matters, not the state of residence. This could mean that you as a Texas employer could be liable under FMLA, for example, even though gay marriage isn’t allowed in Texas.

In addition, many employee handbooks define “immediate family” for purposes of bereavement leave, personal leave, nepotism and health insurance benefits and include just the word “spouse” without a definition. Are you going to make a distinction in your business that the “spouse” must be an opposite-sex spouse? And if you do, will you at some point face a federal lawsuit for discrimination?

Is your head spinning yet from these questions?

The courts and the administrative branch will eventually give us the answers to these questions, but as an employer, you have to deal with many of them now as best you can. My suggestion is that if any question involving same-sex marriage arises with your employees, you call an employment lawyer immediately to find out the very latest regulations on this issues.

Texas Legislature Strengthens Protections of Company Trade Secrets

The Texas Legislature in its most recent session adopted the Uniform Trade Secrets Act by passing Senate Bill 953. The new law, which will go into effect September 1, 2014, will help you keep your departing employees from competing against you using your own trade secrets, which are defined as “a formula, pattern, compilation, program, device, method technique, process, financial data, or list of actual or potential customers or suppliers.” Most employers ask me to protect their customer and/or supplier lists after the employee has left the company, which is about as effective as that old saying about closing the barn door after the horse has already bolted for greener pastures.

So the recently adopted statute is good news, but you as an employer have some responsibilities too. The trade secret will only be protected if it is (1) valuable; (2) not generally known to, and not readily ascertainable by proper means from others; and (3) subject to “efforts that are reasonable under the circumstances to maintain its secrecy”. In other words, you can’t blame a former employee for using your trade secrets if you made no efforts to keep them, you know, SECRET!

To prevail under this statute, which provides for an injunction and damages, you are going to have to show that you took proactive steps to protect your confidential property, such as:

  • Limiting employee access to the trade secret so that only those with a strong “need to know” gain access;
  • Labeling files or stamping the trade secret documents with “Confidential” or “Secret” stamps;
  • Password protecting the trade secrets if located on database;
  • Installing monitoring software to record who had access to the computerized trade secret;
  • Keeping the secret under lock and key;
  • Requiring numbering and shredding of all copies of the trade secret documents;
  • Requiring employees to sign non-disclosure and confidentiality agreements in addition to a written confidentiality policy in your employee handbook;
  • Conducting periodic inspections and reviews to beef up security of trade secrets; and/or
  • Having your employees sign a non-competition agreement that meets all of the quirky requirements for valid and enforceable non-competes in Texas.

If you can demonstrate that a former employee misappropriated valuable confidential information and you took some or all of these reasonable steps to protect your data before the employee left, this statute will allow your lawyers to more easily stop your employee and his new employer from profiting from your hard work and secrets.

Preventing Guns in Your Texas Workplace

In 2012 in the state of Texas, 584,850 citizens were actively licensed to carry a concealed handgun. That amounts to approximately one legally armed citizen out of every 45 people in Texas. As a business owner or manager, if you do not want anyone carrying guns on your commercial premises because you are concerned about the potential violence that could occur, you have two options. First, you can prevent your employees from carrying a handgun by having a written policy prohibiting that in your employee policy manual. However, a recent amendment of the law does allow employees to have their gun locked in their vehicles, even if they are parked in a parking lot on your property.

Second, to prevent the public from carrying a concealed handgun on your property, you must have a “30.06 sign” posted in a conspicuous place clearly visible to the public (at every entrance is the best idea). The sign requirements are a single sign, both in English and Spanish, with 1” high letters, in contrasting colors, containing the exact language from the Texas Penal Code section 30.06. The language in English must read: “Pursuant to Section 30.06, Penal Code (trespass by holder of license to carry a concealed handgun), a person licensed under Subchapter H, Chapter 411, Government Code (concealed handgun law), may not enter this property with a concealed handgun.”

Other signs, such as a picture of a handgun with a red slash through it, are ineffective in Texas and concealed handgun license class instructors tell their students to walk right past those signs. There is a one other valid sign in Texas called the 51% sign, but that only applies to prohibiting the public from carrying handguns on a premises that receives more than half of its income from serving customers alcohol.

It is still illegal for licensees to carry a handgun in Texas at a federal building, at a school, at a public sporting event, in a courthouse, at an election polling place or in a jail or prison, even if those places do not post any kind of sign prohibiting the carrying of a concealed weapon.

Employers Refuse to Recognize Rocky Mountain High

Many of my Texas clients also have offices in Colorado. Since that state legalized the recreational use of marijuana in November, I’ve begun receiving questions from my clients with locations in Colorado about their workplace drug use and testing policies. They want to understand their rights in light of the legality of marijuana in that state.

Legalized marijuana should be no more difficult for employers to handle than alcohol. If an employee is drunk on the job, you as an employer have a right to test him and to fire him for reporting to work under the influence of alcohol. An employee who is high on marijuana at work presents the same issue. However, marijuana shows up on drug tests long after the body has processed and gotten rid of alcohol. In other words, an employer testing on Monday won’t know that the employee was drunk on Friday night.  But if the employee got stoned on Friday night, testing on Monday will reveal that fact. Employers are therefore concerned that they won’t be able to fire an employee who tests positive for marijuana use but can’t be proven to be high at work. This generates anxiety for safety-conscious businesses.

At this point in time in the Fall of 2012, marijuana is still illegal in the United States, and therefore in every state. Just because an employee isn’t in violation of Colorado state law by smoking weed, he is still in violation of federal law and can be in violation of the employer’s substance abuse policy if it is well-written. Therefore, as an employer, make sure your policy states that, along with being under the influence at work, the use, possession or sale of illegal drugs is prohibited, and illegal drugs should be defined as any drug that is illegal under municipal, state and/or federal laws.

The federal Department of Transportation announced in December 2012 that state legalization of recreational pot would not change the rules prohibiting marijuana use by employees in safety-sensitive positions such as truck drivers, pilots and school bus drivers. Therefore, explaining away a positive test for marijuana by saying it was used legally in Colorado will not be an acceptable excuse and will still subject truck drivers, for example, to suspension of driving duties. Employers can take the same approach by letting employees know that the employer’s safety requirements will not be affected by state laws legalizing marijuana and that employees will still be subject to discipline up to and including termination for any drug test that shows marijuana use.