Tag Archives: Texas Employment Law

Employees Secretly Recording Workplace Conversations

Is it legal for one of your employees to secretly record your conversations with that worker for the employee to use as evidence in a discrimination case? If you are a Texas employer, the answer is “yes”.

Texas is a “one-party” consent state, meaning that as long as one party to the conversation knows about the recording, the recording is legal. This can lead to your employee secretly starting the video app on his smartphone in his pocket just before he walks into your office for a disciplinary meeting. He knows the conversation is being recorded, so as the supervisor, you don’t have to be informed in a one-party consent state like Texas.

More than 30 states have the one-party consent rule, while California, Washington, Florida and a few other states require that every person being recorded give permission to the recording. These “all consent” states make it impossible for a supervisor to be secretly taped when talking to an employee. Making a recording without permission in one of those all consent states can lead to both criminal liability and exclusion of the tapes as evidence in the employee’s discrimination or other lawsuit.

In Texas, however, when an employer is taped, the recordings can be material evidence when an employee sues for discrimination. The Houston Chronicle reported in 2011 that one-third of the discrimination complainants who reached out the Equal Employment Opportunity Commission office in Houston brought audio tapes from their workplace to play for the EEOC investigators.

If there is a recording with you as a supervisor using a racial slur, firing an older employee while saying that the company needs “fresh and energetic workers” or suggesting to a subordinate that he/she can expect a raise if the employee will accompany you to a hotel, you might as well get your checkbook and pen out now to facilitate the inevitable settlement.

Besides the obvious – THINK BEFORE YOU SPEAK, here are some other steps you as an employer can take to protect yourself and the company from employees taping all of your interaction:

  • Adopt a written policy banning recording: As of June 2018, the National Labor Relations Board has newly declared that employers may prohibit employees using recording devices and cameras at work. This is a change from a 2015 NRLB opinion that such policies had a chilling effect on employees asserting their rights to document poor working conditions. In 2018, it was decided that no-photography/no-recording rules have little impact on NLRA-protected rights and could actually improve working conditions by forcing supervisors and subordinates to have open discussions and exchanges of ideas.
  • Ask employees if they are recording: Before you have a hard discussion with an employee, such as a disciplinary warning, ask the employee if he/she is recording the conversation. Make a written note of his response (juries don’t like liars who produce recordings when they stated they weren’t taping). You can remind the employee about the company policy prohibiting such recordings. Ask the employee to set his phone on your desk so you can assure that he isn’t recording or, even better, have him leave it at his desk before coming into your office.
  • Be careful about disciplinary actions for recording: If an employee does record in your workplace, don’t automatically warn or fire that employee even if it violated your policy. You need to know what the employee recorded, so ask to listen to the tapes. If the employee did record or photograph unsafe workplace conditions, sexual propositions, racial epithets, etc., then you need to do a formal investigation and apply effective remedial measures to fix the problem the employee’s recordings uncovered. Then carefully decide with your legal counsel whether disciplining the employee who violated your recording policy could lead to an unfair labor practice, retaliation or whistleblower claim.
  • As the employer, don’t audiotape others in the workplace without consent: While you may have video cameras in the non-private areas of your workplace for safety purposes or to monitor productivity, it becomes more complicated to make audio recordings. Wiretapping (recording the conversations of others without consent when you are not a party to the discussion) is illegal under several statutes. So, you would need permission of every employee as well as the consent of every vendor or guest who comes into your business if you were going to wholesale audiotape all the interactions in your workplace. It can be done, but it is complicated to do correctly, and the wiretapping law is easily violated. And personally, in more than 30 years of practicing employment law, I’ve only seen a handful of situations where widespread audio recording was helpful to a lawsuit defense, much less positive employee relations.

Texas Employers Must Comply with Election Laws

Since Election Day is Tuesday, November 6, here are some quick reminders for employers about the Texas election laws that you must follow.

Employers must give all employees a reasonable time off to vote on Tuesday, assuming the employee hasn’t taken advantage of early voting.  So here’s how you apply that law:

  • You can ask if the employee voted early, but you cannot retaliate against an employee for his/her failure to take advantage of early voting. 
  • You need to just accept the employee’s word about whether he/she voted early.

A “reasonable time off to vote” is considered two hours. However, since the lines are predicted to be long on Tuesday, do not discipline any employee who has to wait in line to vote and thereby takes a little longer than two hours away from work. 

The time off to vote should be paid time off if it cuts across the working hours, according to a Texas Attorney General’s opinion. 

It is a crime for an employer to:   Continue reading Texas Employers Must Comply with Election Laws

Written Policies to Protect Your Business During the Opioids Epidemic

With the current opioids epidemic raging across America, including in the Panhandle of Texas, employers are asking me if they can drug test current employees for prescription medications such as hydrocodone. Can a Texas employer try to prevent a workplace accident or death by testing when opiate use is suspected, or do you just have to hope that employee won’t hurt someone?

You have to consider the Americans with Disabilities Act when deciding if you are going to drug test your employees and how you should react to a positive test. The ADA protects an employee’s rights to lawfully take over-the-counter and prescription drugs to treat a disability.

However, the ADA doesn’t protect current substance abusers. So, since abuse of prescription drugs isn’t protected, how an opiate was obtained, how it is being taken, and if the employee is too impaired to work safely become crucial questions if your employee appears impaired.

Usually, I get a call from an employer about drug testing when an employee is falling asleep on the job, is slurring words, seems disoriented, has difficulty performing routine tasks, and/or is excessively absent, belligerent or erratic. At that point, drug testing may be appropriate, but I have to ask if the employer has laid the groundwork to do the drug testing and to respond appropriately to a positive test.

As with most employment law issues, you have to protect your business with well-written policies long before you are faced with an employee who appears to be high on Vicodin. Continue reading Written Policies to Protect Your Business During the Opioids Epidemic

Running Off an Underperforming Employee Is Not a Viable Option

In my long experience as an employment law attorney, I have come to realize that employers really, REALLY hate to fire employees. Some employers are scared of confrontation, others hate admitting they made a bad hire, and some just can’t find the right words.

Whatever the reason for being unable to fire a poor performer, employers often ask me about “running off the employee”. Running off an employee usually means making the employee so miserable the employee will voluntarily quit.

The employer trying to run off an employee may give the employee the worst duties at the company, criticize the employee in front of others, deny the employee’s vacation request, cut the employee’s pay, transfer the supervision of the employee to the worst supervisor, or make the employee work the graveyard shift.

Of course, this approach to termination often also makes the employee so angry that when the employee leaves, he or she becomes much more likely to sue the employer.

Running off an employee is the layman’s way of doing what we in the legal field call a “constructive termination”. A constructive termination occurs when the employer makes the working conditions so intolerable that any reasonable employee would feel forced to resign.

When an employee quits with good cause because the employer made continuing to work there intolerable, there are numerous legal consequences, such as: Continue reading Running Off an Underperforming Employee Is Not a Viable Option

Workplaces Must Accommodate A Nursing Mother

A nursing mother in your workplace has certain employment rights that you as an employer must understand. Until the time that the child is one year old, Texas employers must provide the time and space for the mother to breastfeed the baby (if children are allowed at the workplace) or to express milk to be stored for later.

The federal compensation law, the Fair Labor Standards Act (“FLSA”), was amended in 2010 to require employers to provide nursing mothers with “reasonable” break time to pump breast milk. Employers must realize that there is no one definition of what is “reasonable” that applies to every new mother.

The Department of Labor says in its Fact Sheet #73 regarding Break Time for Nursing Mothers, “employers are required to provide a reasonable amount of break time to express milk as frequently as needed by the nursing mother. The frequency of breaks needed to express milk, as well as the duration of each break, will likely vary.” Speaking from experience, nursing may take 10 minutes, 25 minutes, 40 minutes or even longer and isn’t standardized from mom to mom, day to day, or break to break.

If you provide coffee breaks or meal breaks during the day to other employees and pay them during that break (which the FLSA requires you to do if the break is less than 20 minutes), then you should allow your nursing mothers to use those breaks if convenient and be paid during those breaks just like any other employee.

Otherwise, nursing breaks do not have to be compensated, so you can require a nonexempt (hourly) employee to clock out during the break so that the nursing break isn’t paid. If that means that the employee has to stay longer each day to actually perform work for 40 hours per week, you as an employee can require that extra time. Or you can choose to pay the employee for only the hours worked, which may be less than 40 when lots of nursing breaks are taken.

The easiest way to address compensation is to have a written policy that states that all nursing breaks of 20 minutes or less are paid, but longer breaks are unpaid.

You also have a responsibility as an employer to provide a place for the nursing mother to breastfeed or express milk. That place cannot be a bathroom. The area must be private with a lock on the door or another way to assure that the public and/or coworkers won’t barge in while the employee is nursing or pumping. If you have more than one nursing mother employed at a time, it is common practice to have a sign up or reservation-type system for the room you designate for expressing milk.

The secluded place the employer provides must be functional for expressing milk, meaning it should at least be furnished with a comfortable chair. Many employers provide a small dorm-sized refrigerator and a Sharpee in the nursing area so that the expressed milk can be labelled and dated and kept cool until the new mother can take it home.

Texas allows employers who adopt a new mother-friendly written policy to advertise that it is a “mother-friendly” business. If that “carrot” approach doesn’t convince you, then the “stick” is that failure to provide adequate breaks and a secure place for nursing mothers means that not only will your business be violating the FLSA, but also the employee can bring a sex discrimination or sexual harassment action if you have at least 15 employees.

A federal court has also ruled that breastfeeding is a medical condition related to pregnancy and maternity, so you can also be sued under the Pregnancy Discrimination Act. You must additionally prevent an employee from being retaliated against for exercising her rights as a nursing mother, i.e., you must assure that her supervisor doesn’t give her a poor evaluation or demote her because her nursing rights create some disruption in the office.

Small employers (less than 50) have one defense to these kinds of claims. Continue reading Workplaces Must Accommodate A Nursing Mother

Why Drug Test Your Current Employees?

As an employer, you should be committed to a drug-free and alcohol-free work environment that protects both your employees, your customers and the general public.

Drug testing your employees is an important component of that safety commitment. However, while many employers test before hiring an applicant, nearly two-thirds of employers never conduct a drug or alcohol test on current employees, according to a Society for Human Resources study in 2011.

When employers do test current employees for drugs, employees test positive about 4.2% of the time, according to the latest numbers from the annual Quest Diagnostics Drug Testing Index. That number is creeping up and is at its highest level since 2004.

Even if you are a small employer with only 25 employees, that still means that one of your current employees could test positive for drugs right now. What if that one person is the delivery driver, the heavy machinery operator, the EMT, the security guard or any other safety sensitive employee working for you? Are you willing to take a chance with the safety of your other employees and your customers?

That only 4.2% of employees test positive for drugs or alcohol is actually a little low considering how many people are actually addicted to those substances. The National Survey on Drug Use and Health in 2016 estimated that 8% of all Texans have a substance abuse disorder, with three-quarters of those Texans addicted to alcohol. The rest are hooked on marijuana, meth, heroin, cocaine and prescription opioids, in that order.

As a Texas employer, you don’t have to allow employees to be impaired at work. Continue reading Why Drug Test Your Current Employees?

White House Fails Basic “Firing 101”

Note: This is not a political post. President Donald Trump had the right and the authority to fire Acting Attorney General Sally Q. Yates last night.

From an employment lawyer’s perspective, the White House’s written statement about Sally Yates’ firing is a textbook example of how I advise my employer clients not to behave. https://www.whitehouse.gov/…/statement-appointment-dana-boe…

“The acting Attorney General, Sally Yates, has betrayed the Department of Justice by refusing to enforce a legal order designed to protect the citizens of the United States. . . . Ms. Yates is an Obama Administration appointee who is weak on borders and very weak on illegal immigration.”

We employment lawyers encourage our business clients to leave a fired employee with his/her dignity. I would never suggest an employer use loaded words like “betrayed” and “weak” or to impugn a long-term, high-ranking employee’s integrity during a job termination meeting. It is ill-advised in most industries to burn bridges like this or to set your business up for a lawsuit by a scorned ex-employee.

Sometimes terminating an employee’s job is necessary. For advice on how to fire in a more beneficial way, read my blog post on firing without fear.

Simple Hiring Checklist for Texas Employers

hiring-signHiring in Texas can be done in a very efficient and effective manner that reduces your chances of violating employment laws if you follow this simple hiring checklist. While large employers may need to add many more steps, I have found in 25+ years of law practice that many small employers aren’t even doing these simple steps, but should be:

 

  • Is one well-trained centralized manager with human resources experience doing the hiring instead of a group of supervisors who might ask the wrong questions?
  • Do you have a job description of the job for which you are hiring so you know the job-related qualifications?
  • Did you carefully word your job advertising so as not to discriminate?
  • If you require that an application be completed, is your application form up to date and without legal pitfalls?
  • Does the interview focus only on job-related qualifications and not personal information?
  • Do you stay away from open-ended questions like “Tell me about yourself”, which could elicit all kinds of information from the applicant that could be considered the basis of a discrimination claim?
  • Is the interviewer using an outline so that each applicant is asked the same questions and you can compare apples to apples rather than relying on the interviewer’s conversation skills and “gut reaction”?
  • Do not ask questions in the interview about the following topics. If this seems like a whole bunch of rules to remember, try focusing on this one rule: If your question isn’t related to how the applicant could perform the job duties, don’t ask it.
    • Race or color (photographs should not be requested)
    • Gender or marital status or sexual orientation
    • Whether applicant has young children, what his/her daycare arrangements are, or other family questions.
    • Age, including date of birth or when the applicant graduated from high school
    • Religion, including “Where do you go to church?” and “What do you do with your Sundays?”
    • Union membership or affiliation
    • Criminal arrests or convictions (you can run a background check if you decide to actually offer the job, but you must comply with the Fair Credit Reporting Act in obtaining the background check)
    • National origin or ethnicity (don’t ask about an applicant’s birthplace, accent, parentage, ancestry).
    • Citizenship (only inquire into an applicant’s eligibility to work in the United States, not their citizenship).
    • Education beyond what is necessary for the job (inflated educational requirements can have a chilling effect on minority applicants; therefore only ask educational questions that are relevant to the actual job responsibilities).
    • What clubs and organizations do you belong to? What causes do you support? (this could reveal illnesses, religious beliefs, family issues, marital status, race and other grounds on which you could be accused of discriminating).
    • Are you pregnant? Are you planning on having kids? (pregnancy and/or gender discrimination).
    • Have you ever declared bankruptcy? (discrimination under the Bankruptcy Act).
    • Is English your first language? Do you know that we have an English-only policy? (national origin discrimination)
    • Do you have elderly parents or an illness in the family that would take you away from work? (disability discrimination).
  • Do not ask the following questions in an interview that could violate the Americans with Disabilities Act:
    • Whether an applicant needs a reasonable accommodation to perform the job, unless the disability is apparent or the applicant voluntarily divulges it.
    • Details of an applicant’s worker’s compensation history.
    • Whether the applicant can perform “major life activities,” such as standing, lifting and walking.
    • Whether the applicant has any physical or mental impairments.
    • Whether the applicant is taking prescription medication or any other lawful drugs.
    • If the applicant has used illegal drugs in the past or has ever been addicted to drugs.
    • Whether the applicant has participated in an alcohol or drug rehabilitation program.
    • How frequently the applicant consumes alcoholic beverages.
  • Certain questions are permissible under the ADA:
    • Whether an applicant can perform the essential functions of the job.
    • How the applicant will perform the essential functions of the job, if all applicants are asked this question.
    • Whether an applicant needs reasonable accommodation for the hiring process.
    • Whether an applicant can meet the employer’s attendance requirements.
    • Whether an applicant has ever been convicted of driving under the influence of alcohol or drug if driving is an essential duty of the job.
    • Whether an applicant is a current illegal drug user (drug testing the successful applicant after a conditional offer of the job is the best way to handle this).

Once you think you have narrowed your choices down to the applicant that you would like to hire, you can make a job offer conditional upon the results of these items: Continue reading Simple Hiring Checklist for Texas Employers

Employers Need Solid Reasons for Firing

Discrimination cases filed by former employees against their companies are usually won or lost on one concept—pretext—meaning that the reason given by the employer for the firing appears to the jury as a cover-up or excuse for the real reason, which the plaintiff will strongly suggest is discrimination. If the employer’s reason for firing the employee doesn’t perfectly line up with the facts developed in discovery and at trial, the business has a good chance of losing the case to the disgruntled employee.

Let me give you an example. If you fired Mary for being tardy on five specific occasions, but your security camera tapes, your time clock records, her emails and the testimony of other employees show she was not late on all of the dates that you specified, Mary’s discrimination case just got a big boost because your reasons look like pretext for terminating Mary. Then the door is wide open to say that her termination from employment occurred because she is black, a woman, disabled or born in another country.

When presented with this contrary hard evidence about Mary’s tardiness, it is not going to convince the jury when you say, “Oops, I got the dates of her tardies wrong” even if that is what actually happened. There is little a defense attorney can do to help you with the jury at that point because your reasons for the termination just look like an excuse for something more sinister.

Juries are pretty savvy in sifting through an employer’s reasons. As the employer, you must assure that the reasons you fire an employee are specific, provable, clearly-stated, well-documented and stay consistent from the time you first discipline the employee to the time of trial. Any variation in your reasons will come off looking like pretext.

Here are some other things that employers do that usually will be perceived as pretext in front of a jury: Continue reading Employers Need Solid Reasons for Firing