Tag Archives: Discrimination

How Should Employers Respond to 2016 Election?

Benefits, Compensation, Discrimination, Employee Rights, Hiring, , , , , , ,

Employers are facing a time of uncertainty in the workplace as a result of last week’s election. Does an employer still have to worry about compliance with the revised overtime rules? Do you still have to complete the Affordable Care Act tax forms due in January? What about paid maternity leave—must an employer provide salary for six weeks to new mothers? There will certainly be upheaval in the workplace because of the significant change in the governing philosophy to come in January.

Alth19-ryan-trump-mcconnell-w710-h473ough Mr. Trump is already backing off of some of his campaign rhetoric, there are some workplace issues that you as an employer will be affected by:

  • Immigration compliance should be your top concern under this new administration. As an employer, you must be certain that you are correctly completing an I-9 form on every new employee and assuring that you are only hiring applicants who are eligible to work in the United States.
    • A new I-9 form was released today, so you will need to start using that new form dated November 14, 2016, immediately with your new hires. The old 2013 form you have been using may not be used after January 21, 2017. You do not have to recertify your current employees just because they were hired when a different I-9 version was in use.
    • Trump has said that he wants all employers to use E-Verify, the internet verification program used by federal contractors to verify I-9 information provided by a new hire against records from Social Security Administration and the Department of Homeland Security. E-Verify sounds much easier in theory than it has proven to be in practice. Get ready for significant paperwork and several new steps whenever you receive a tentative non-confirmation letter from E-Verify on a new hire.
    • Remember that it is illegal to discriminate against an applicant on the basis of national origin or ethnicity. As an employer, you cannot have blanket hiring prohibitions against any group. You must individually check the employment eligibility of each person to whom you offer a job.
  • The new overtime law, which requires employers to pay at least $47,476 in salary to employees whom the employer wants to exempt from the overtime requirements, goes into effect in two weeks on December 1, 2016. That means that you as an employer need to comply with that law now without regard to how it may change down the road.
    • A change to the overtime law is not included in the new administration’s first 100-day plans and Mr. Trump only addressed it one time on the campaign trail. Changing the overtime regulation does not seem to be a top priority, but the possible changes that have been mentioned are an elimination of the automatic increases now scheduled every three years and a small business and/or nonprofit exception to the overtime rule.
    • The final overtime regulation took more two years to become effective after President Obama proposed it. Even if a change to it were fast-tracked, I think that you will have to comply with the current regulation at least until the end of 2017.
    • And even if the new rule is changed next year, are you really going to decrease the salaries of your management employees after they saw the increase this year? If you would consider a decrease as a possibility in the future, then think about putting your salaried employees on hourly pay and overtime pay immediately (by December 1) instead of giving them salary whiplash when this regulation changes down the road.
  • The Affordable Care Act is going to change significantly. How it will change, we don’t know, except that Mr. Trump has promised that it will be “replaced”, not just repealed. If that is the case, employers will still have to deal with healthcare headaches. They will just be new headaches rather than the ones we have learned to cope with over the last six years. For now, as an employer, you must continue to comply with the ACA, including sending out the Form 1095-C after the first of the year.
  • Trump has proposed six-week paid maternity leave. Never before has the federal government required a private employer to provide any paid leave, unless the company was a federal contractor. The Family and Medical Leave Act only requires unpaid leave.
    • This would be a radical departure from Republican policies in the past, which have always frowned on mandates to employers to pay people not to work. There is no indication yet that the U.S. Congress would go along with Mr. Trump’s proposal.
    • Meanwhile, employers should be more concerned right now about complying with the Pregnancy Discrimination Act in effect since 1978, but which has grown more teeth in the last couple of years thanks to the U.S. Supreme Court decision in Young v. UPS and stricter enforcement by the EEOC.
  • Title VII of the Civil Rights Act of 1964 remains the law and no administration would dare push for its revision, or the revision of later laws that prevented discrimination on the basis of age or disability. That means that as an employer (if you have 15 or more employees), you must continue to keep your workplace free from discrimination and harassment on the basis of sex, religion, national origin, ethnicity, age, disability, etc.
    • There were 3500 charges of religious discrimination filed in 2015 with the EEOC. That number has risen 44% in the last 10 years. Employers must be extra vigilant that some of the tenor and tone of the election rhetoric doesn’t lead to any hateful actions in their workplace against, for example, a Muslim employee.
    • Discrimination on the basis of sexual orientation and/or gender identity is not prohibited by the actual language of Title VII and it seems unlikely that the new administration would champion gay rights in the workplace. There is also no state law in Texas preventing such discrimination, although most of the larger cities in Texas have local ordinances. But employers need to know that the EEOC has targeted employers who are allowing discrimination against LGBT employees and there are several court rulings that back up the EEOC’s position that “sex” as a protected class includes sexual orientation, so all employers should continue to protect their LGBT employees from harassment and unfair treatment.

 

 

Advertising Job Openings Without Discriminating

Discrimination, Hiring, , , , ,

As an employer, your work to prevent an employment discrimination lawsuit starts from the beginning: in the way you advertise the job opening. According to the Equal Employment Opportunity Commission (EEOC), the number of charges filed by employees and applicants alleging discriminatory advertising rose from 49 in 2013 to 121 in 2014.  The vast majority of the claims filed in 2014 (111) were for advertisement discrimination against older job applicants, but may also involve gender discrimination, disability discrimination or other discriminatory conduct.

Recently, the popular restaurant chain Ruby Tuesday settled a claim with the EEOC for $100,000.  Two male employees sued the restaurant after an internal job posting was advertised specifying “only females would be considered” for temporary summer positions in a Utah resort town.  Because the summer resort employees would be residing together for several weeks in company-housing, the restaurant reasoned that it would be best if all employees were of the same gender.

While violations such as a gender-specific job announcement may seem obvious in hindsight, there are many subtle ways discrimination is included in employers’ advertising.  Have you ever seen an ad in the paper seeking “recent college graduates”?  You might consider this to mean that a college degree is required for the job.  But the EEOC could look at this as way of screening out older applicants in violation of the Age Discrimination in Employment Act (ADEA).  The ADEA and its Texas equivalent statute make it illegal for employers (with 15 or more employees) to discriminate against workers age 40 and over.

To avoid problems such as the one Ruby Tuesday faced, carefully consider the wording of your advertising, most specifically, your job postings.  Continue reading Advertising Job Openings Without Discriminating →

Texas Employers Should Consider Equal Treatments for LGBT Employees

Discrimination, Employee Rights, , , , , ,

Texas employers traditionally have not had to worry about being accused of discrimination on the basis of sexual orientation, because there is no federal or Texas law that makes sexual orientation discrimination illegal. Additionally, Texas employers previously have not had to provide spousal benefits, such as family coverage under a group health care policy, to same sex spouses.

The laws of Texas have not changed, but the tide is turning for all American employers, and Texas businesses are not immune to that trend. Last month, the U.S. Supreme Court effectively legalized gay marriage in 11 more states when the court declined to hear appeals of lower court decisions finding state laws banning same sex marriage unconstitutional. So recently, gay couples received marriage licenses and were married in several conservative states including Oklahoma, Colorado, North Carolina, Virginia, and even Utah.

At the same time, the EEOC and several courts have been wrestling with Title VII gender discrimination claims by lesbian, gay, bisexual and transgendered (LGBT) employees who say their employers have discriminated against them. Eighteen states and the District of Columbia have laws explicitly protecting LGBT employees. 91 percent of Fortune 500 companies already prohibit this kind of discrimination. But in the states where sexual orientation laws are not in place, employers can expect the EEOC and disgruntled workers to file cases to try to change the law through the court system if not the legislature.

Finally, President Obama has issued an executive order requiring that businesses that do at least $10,000 in federal work annually have to protect LGBT employees from discrimination. This affects an estimated 22 percent of the civilian workforce nationwide and many employers in Texas.

All of this means that Texas employers are engaging in very risky behavior if the employer doesn’t protect its employees from discrimination on the basis of sexual orientation. In addition, many Texas employers have retail locations or offices in the 30 states that recognize same sex marriage. Therefore, consistency in employment policies means that most of these employers should go ahead and change the definition of “spouse” in their policies and insurance plans to include same sex spouses regardless in which state the employee resides.

You may not agree politically with these changes sweeping the country, but as a prudent employer, you should consider whether the wise business decision for your company is to protect LGBT employees and treat them equally when it comes to benefits.

Firing without Fear

Termination, , , , ,

Many Texas business owners and managers that I know are extremely authoritative and competent until it comes to firing an employee. Then the most confident bosses become fearful. Getting sued by an employee scares them and rightfully so. But times are tough economically and you may have to terminate some employees just to keep your business afloat. So how do you fire without fear of the legal fallout?

A “good” termination doesn’t happen overnight. I have often advised employers that even though quick, decisive action is needed, the employer may need as long as six months to fire someone if the employer hasn’t been diligent about policy-making, documentation and training before then. So before you can fire without fear, here are some preliminary steps:

  1. Make sure you have a great employee policy manual that is up to date and makes clear your expectations of all employees. Policies that clearly prohibit illegal harassment, discrimination, drugs, Internet pornography and violence, as well as strict procedures for reporting violations of these policies, can dramatically reduce your exposure in lawsuits.
  2. Training of your supervisors is essential to firing without fear. Day to day careless comments made by a first line supervisor often comprise the most damaging evidence in an employee lawsuit. Make it clear through training of every person with any supervisory authority that throwing an “Over the Hill” birthday party can indicate age discrimination, compliments about a woman’s clothes can be twisted into a sexual harassment complaint and grumbling about an employee’s reluctance to work on a Sunday can be perceived as religious discrimination. The behavior required of supervisors nowadays often defies common sense and human nature, so training is the only sure-fire way to know that your supervisors will not say or do something that the company will come to regret after a termination.
  3. Regular performance evaluations that honestly identify an employee’s short-comings are essential to a “good” termination for poor performance. No one should be surprised that he is being fired because at least a couple of prior poor performance reviews should have preceded the termination.
  4. Don’t fire anyone unless for disciplinary violations such as absenteeism unless you have warned him in writing at least a couple of times that his behavior is unacceptable. Those written warnings should include a plan for improvement and a statement that if his actions do not improve, he will be “subject to disciplinary action, up to and including termination.”
  5. Call your employment lawyer before you fire the employee. Your attorney will probably want discuss the employee’s entire employment to identify all the possible red flags that this particular employee’s record could wave. (Click here for a checklist for termination red flags when a Texas employee is involved.) Be prepared to send your lawyer your policy manual, the supervisory training records and the employee’s file for review. The lawyer may want also to talk to the employee’s direct supervisors to gauge any exposure there before advising you as to the wisdom of a job termination.
  6. Write a termination memo to give to the employee. It should briefly set out the policy violations that resulted in the employee’s job termination. This memo may be repeatedly scrutinized by the employee, her lawyers, the Texas Workforce Commission, the Equal Employment Opportunity Commission and even a jury, so it must be worded carefully. However, don’t skip this step out of fear. The memo will prevent the “he said, she said” exaggerations if litigation does ensue and keep everybody focused on the nondiscriminatory reasons that the firing occurred.
  7. Terminate the employee when you are calm and well-rested and you have another trusted manager available to be a witness. Make the meeting brief. Just hand the employee the termination memo and ask if she has any questions. Stand firm on your decision and don’t argue with the employee. Assure the employee that she can return to gather her belongings at a mutually agreeable time (don’t just give her ten minutes to pack up her belongings and then march her out under armed guard). Let her leave with some dignity and wish her well.