Vicki’s thoughts on nepotism in the workplace were featured in the May 15 Amarillo Globe-News business section. Click here to read the pros and cons of nepotism and tips for businesses considering allowing family members to work together.
Do you as an employer have a plan to address workplace violence? This topic is front and center in the wake of the recent workplace shootings in Hesston, KS, Kalamazoo, MI, and Roanoke, VA. Although legislation has been introduced to provide a “safe harbor” for employees and employers to report violent or threatening behavior, it is important for employers to assess their own workplaces and look at what can be done to make that environment as safe as possible.
The House of Representatives introduced the “Safe Harbor for Reporting Violent Behavior Act” on February 11, 2016, in response to the on-air shooting of a television reporter and cameraman in Roanoke, VA. This bill would provide immunity from lawsuits to individuals who, in good faith, make a report about an employee (or potential employee) who exhibits violent or threatening behavior.
However, regardless of whether or not this bill passes, employers still have a duty to examine their workplace violence policies and take steps to decrease any possible dangers in the workplace. Several things that should be done include: Continue reading Preventing Workplace Violence
I see many employee policy manuals that prohibit “unauthorized overtime”, but employers must still pay an employee his overtime pay, whether the time worked was authorized or not.
Employers need to understand that all governmental enforcement agencies, such as the Texas Workforce Commission (“TWC”) and the U.S. Department of Labor (“DOL”), treat paychecks as sacred and not subject to any reduction or withholding because of a disciplinary reason.
Unauthorized overtime can result in disciplinary action, like a written warning, a suspension or a firing, but not docking of a paycheck or any refusal to pay.
The TWC explains it this way in their publication “Especially for Texas Employers”:
Many employers feel that such [overtime] should not be payable as long as the employer has not authorized the extra work, but the DOL’s position on that is that it is up to the employer to control such extra work by using its right to schedule employees and to use the disciplinary process to respond to employees who violate the schedule.
Just saying in your employee handbook that an employee cannot work overtime without prior authorization is not sufficient. You as an employer need to take steps to closely monitor (and pay for) all hours actually worked. Continue reading Employers Must Pay for “Unauthorized Overtime”
Employees can discuss their wages with their coworkers, despite many employers’ policies to the contrary. If this wasn’t clear enough when the National Labor Relations Board and the Fifth Circuit Court of Appeals emphatically told employers that (see this post for more information), now the federal Equal Employment Opportunity Commission is joining the chorus.
On January 21, 2016, the EEOC issued a 73-page proposed guidance to its investigators concerning retaliation claims. All of the laws EEOC enforces, like the Americans with Disabilities Act and Title VII, make it illegal to fire, demote, harass, or otherwise retaliate against applicants or employees because they complained to their employer about discrimination on the job, filed a charge of discrimination with EEOC, participated in an employment discrimination proceeding (such as an investigation or lawsuit), or engaged in any other “protected activity” under employment discrimination laws (more on the proposed guidelines concerning retaliation is coming in future posts).
Slipped into the middle of the proposed guidance is a section emphasizing that not only will the National Labor Relations Board come after you as an employer for unfair labor practices if you fire someone for discussing their wages, but that the EEOC might pursue a claim against you also. The EEOC said that reprisal for discussing compensation may violate the retaliation provisions of laws it enforces, such as the Equal Pay Act (requiring that similarly-situated women be paid the same as men for the same work) or Title VII (prohibiting discrimination on the basis of race, gender, religion, etc.).
All employers should review their current written employment policies to assure that any statement prohibiting wage discussions among coworkers has been removed. In addition, employers must not fire, demote, cut the wages or hours of or otherwise retaliate against an employee who discloses his/her compensation package with coworkers or others, whether shared verbally, by showing another person the pay stub or even by posting information about any worker’s pay on social media.
Texas employers should have a policy to give employees advance warning of what to expect on a snow day, particularly in the Texas Panhandle, where we often have a couple of inclement weather days per year.
The easiest way to determine whether to keep your facility open or not is to follow your local school district’s decisions and let your staff find out through the media. That relieves you of having to communicate the decision to every employee. It is also helpful to your employees to be able to stay home with school-aged children who have no other place to go that day.
Texas and federal law do not specifically dictate when an employer must be open or closed during inclement weather, but they do dictate how compensation must be determined during those times.
Hourly employees do not have to be paid when they perform no work. Exempt employees, however, have to be paid their normal salaries when your facility is closed for weather reasons. On days when the company is open, but a salaried employee chooses not to travel because of road conditions near their house and therefore performs no work all day long, the exempt employee can be docked for that day or be required to use available paid time off.
The other pitfall with inclement weather days occurs when employees work at home on a snow day. If you give your employees the ability to remotely access their computers, if you allow them to take work home, or if you expect them to check emails and return phone calls on a snow day, you will need to pay them for those work hours (non-exempt employees) or that whole day (exempt employees).
I suggest that every employer adopt some kind of inclement weather policy similar to this one: Continue reading Texas Employers Need Snow Day Policy
Texas leads the nation in number of charges filed with the EEOC alleging gender discrimination, race discrimination, age discrimination, and disability discrimination, according to a recent story from the Society for Human Resource Management. It is time for more employee training and better personnel policies for your Texas business so you don’t have to battle a discrimination charge.
Texas businesses have to wrestle with the laws regarding the carrying of handguns by employees and customers in their workplaces. I’m amazed at how many businesses I counsel who haven’t even thought about the issue in a state where there are millions of guns. I’ve written about this before (here and here), but there is still confusion about a private business’s rights and responsibilities regarding guns in Texas.
As of January 1, 2016, Texas allowed the more than 825,000 residents of the state who are licensed to carry a handgun to openly display the gun in a shoulder or hip holster. Texans may also choose to conceal the handgun and carry it with them on their bodies or in bags or purses. Texas also has reciprocity agreements to allow visitors licensed in many other states to carry guns here.
The state has only banned handguns completely in the following workplaces:
- bars or restaurants earning more than 51% of their revenue from alcohol sales (they’ll have a sign up stating that fact),
- correctional facilities,
- high school, collegiate and professional sporting events,
- school grounds and school buses,
- polling places,
- courtrooms and court offices,
- racetracks, and
- secure areas of airports.
It is also illegal under federal law to carry handguns in federal governmental buildings, such as post offices, federal courthouses, the IRS office, Social Security office, etc.
Hospitals, nursing homes, amusement parks, churches and private businesses like yours can prohibit the carrying of pistols onto the premises by employees and/or visitors, but you have do this proactively. Texas law does not make it illegal to carry a handgun into these premises unless the handgun owner has been notified that he/she cannot carry at that place.
Even without hanging the required signs, employers can put a written policy in their employee manual prohibiting employees from bringing handguns into the workplace. Should you do this? Separating out the politics of that question, it depends on
- your beliefs about guns in general,
- how comfortable your employees are being around gun-toting coworkers,
- whether you believe your business is located in a safe area of town,
- whether your employees face real dangers in their job that a handgun could minimize,
- whether you have other ways to keep your employees secure (such as evacuation drills, good lighting, security guards, secured entrances, alarms, etc.)
- whether your employees are well-trained in the safety and use of a handgun (the required 4-hour Texas licensing course is not adequate for this purpose),
- whether you want to face disciplining and/or firing a volatile employee wearing a sidearm,
- whether you are covered by special insurance for handgun liability if there is an accidental discharge of a weapon (your general liability policy probably won’t cover it),
- whether you are prepared for the lawsuits that may follow a shooting (there is no immunity in the open carry statute for an employer when an employee hurts someone with his weapon), and
- how your customers will react to seeing your employees armed.
If you can’t decide, have a conversation with your employees to determine the best option for your business and do some objective research for yourself about whether the scenario of a “good guy with a gun” protecting people in your workplace is a real possibility or a myth.
Once you have decided whether to allow your employees to carry handguns and have adopted a written policy explaining the employee rule, the next question is whether to prohibit customers, vendors and other visitors to your workplace from carrying any kind of handgun on your private property. Continue reading Texas Businesses Wrestle with Presence of Handguns
The quiet week between Christmas and New Year’s is the perfect time for you as an employer to consider some resolutions for 2016. What can you do differently in 2016 to be a better employer and to avoid stepping on any legal landmines?
From 28 years of experience advising employers like you on employment law issues, here are my suggestions for 2016 resolutions with links to more information from previous posts on this website about these topics:
- Resolve that you will make a decision about whether your employees and/or customers can openly carry handguns on your business premises. The open carry law goes into effect on January 1 and allows those who are licensed to carry concealed handguns to start carrying them openly in shoulder or hip holsters. You have the right as an employer to prohibit guns completely on your premises by both customers and employees, to just prohibit employees from carrying guns, to prohibit open carry but allow concealed carry, or to allow everyone to freely carry handguns on your premises. If you choose to ban either open or concealed carry by customers, you will have to post the §30.06 (concealed carry) and/or §30.07 (open carry) signs with the proper wording and font size required by the Texas Penal Code. To just prohibit employees from coming to work armed, you only need to add a policy to your employee policy manual. For more information about Texas gun laws in the workplace, click here.
- Resolve that you will get ready for big changes in the overtime laws. If you have an employee to whom you pay an annual salary of less than $50,440, in mid-2016 you are going to have to move that employee’s compensation to an hourly rate and pay that employee overtime if he/she works more than 40 hours in any one workweek. Click here for more information about that change to the Fair Labor Standards Act regulations.
- Resolve that you will stop using any kind of “contract labor”. The landscape has just gotten too rocky to use any worker whom you do not treat as an employee. Just give up on the idea that you can save the taxes or avoid the pains of having employees. The government is really cracking down on misclassification of workers as contract labor, day workers or independent contractors. That means that in 2016, you need to pay taxes on every worker, you need to provide every full-time worker with benefits, and you need to accept that you will have liability if that worker hurts or mistreats someone. Click here for more information about the dangers of misclassifying a worker as contract labor. If you think you are the exception to this rule, don’t proceed without a knowledgeable attorney’s legal opinion.
- Resolve that you will update your employment policy manual. The requirements for written policies changed dramatically in 2015 due to the changes required by the Equal Employment Opportunity Commission, the National Labor Relations Board and the Department of Labor. Your policy manual is out of date unless your employment attorney has made significant revisions in the last six months. Click here for more information about some of the changes that are now required.
- Resolve that you will learn and apply the new rules regarding pregnant employees. Take your maternity policy out of your handbook (because it will be considered discriminatory) and add instead a policy that allows pregnancy and maternity leave that is identical to what you allow when someone has a disability or serious illness. That means that you can’t set a standard 6-week maternity leave, but may have to be more flexible with each pregnant worker’s individual needs like the Americans with Disabilities Act requires with handicapped employees. Click here for more information about how to update your procedures regarding pregnant employees to comply with the new regulations.
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
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.