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?
The Denton Record Chronicle sought expert employment law advice from attorney Vicki Wilmarth for a story today on nepotism in the City of Denton. Read the background of the nepotism issue in Denton and Vicki’s response here.
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.
Hiring 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
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
Effective August 1, 2016, all employers of every size workforce must comply with two new mandatory federal poster changes. The US Department of Labor (DOL) has updated its Fair Labor Standards Act (FLSA) poster and the Employee Polygraph Protection Act (EPPA) poster.
The changes to the FLSA poster include removing civil penalty amounts, the addition of the rights of nursing mothers, and a deletion of text under the Child Labor section. Except for a few very narrowly exempted employers, whether you have two employees or two hundred employees, you need to put up this new poster.
The changes to the EPPA poster include a removal of a civil penalty limit, a change in their toll-free phone number, and an additional TTY phone number. All employers, regardless of the number of employees and regardless of whether you would ever consider giving your employees a polygraph, must display this poster in the workplace.
The mandatory notices must be posted immediately. As with all of your employment posters, these two new ones should be displayed in a prominent and conspicuous place in each of your establishments wherever notices can be readily seen by employees and applicants. A spot right next to your time clock or in your employee entrance area is ideal. Just make sure wherever you place your posters is a place that all of your employees regularly enter.
If you need help knowing which posters besides these two you need to have displayed in your workforce, you can find the lists of required federal posters here and Texas posters here. All of the required posters are available online for free. You don’t need to pay a commercial service for a combined poster that isn’t customized to the specifics of your workplace.
Don’t ignore your federal and state posting requirements. The penalties have risen recently. For example, if you have 15 or more employees, the failure to put up the required EEO poster was raised to $210 in 2014 for each of your locations and is now indexed to the Consumer Price Index to increase with inflation. Considering you have as many as twelve posters required in your workplace, you don’t want to be fined for something so easily remedied.
Can an employer in Texas still fire someone for smoking pot? For once, my lawyerly answer does not have to be “maybe”. Yes, you can fire an employee for testing positive for marijuana.
Unlike Colorado, Washington state, Oregon, Alaska and Washington, D.C., the Lone Star State still treats the recreational use of marijuana as illegal. It is also illegal to buy, sell, grow or even possess pot in Texas, so going to Colorado to buy it and then bringing it back to Texas is not an option.
If your written substance abuse policy tells your employees that you prohibit “illegal drugs”, then you have the right to enforce that policy regardless of whether the pot is illegal under federal, state or local laws.
Therefore, a Texas employer can still require a drug test of an applicant, a current employee, an employee involved in an accident or when the employer has a reasonable suspicion of drug use. If the test shows that the employee has used marijuana, the employer can discipline or fire the employee for violation of the company substance abuse policy.
But what if the employee claims that he is smoking pot for medicinal reasons? Continue reading Pot Smoking Still Grounds for Termination
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.
Unemployment claims can cost you money as an employer because your Texas Workforce Commission tax rate will escalate the next year if an employee is awarded benefits. But handling your unemployment claim deftly has become critical in avoiding even more expense down the road when your employee sues you.
It is not always an easy decision about whether to protest unemployment and you have to make that decision quickly (usually within 14 days of the notice of an unemployment claim). On the one hand, you as an employer don’t want your tax rate to increase. On the other hand, you don’t want to say something harmful in an unemployment appeal hearing that will have significant consequences in later litigation.
At an employment law conference that I attended this week, I heard an employee’s lawyer with 40 years of experience say that he believes that TWC unemployment appeal hearings are one of his best tools for winning discrimination cases for employees. Why? Because at the appeal hearing, the company’s witnesses have to testify under oath about the reasons an employee was fired. Often, the employer’s witnesses are not represented by legal counsel and they are not adequately prepared for the testimony they are going to give. They give inconsistent or unprovable reasons that later come back to haunt them when the former employee sues the company in a completely different matter.
The plaintiff’s lawyer admitted that he likes to ambush supervisors and HR representatives at the TWC unemployment hearing and get helpful sworn testimony for his client from those witnesses, because the company’s representatives rarely expect the employee to appear at the hearing with legal counsel. When he cross-examines them, the witnesses get flustered and accidentally provide testimony harmful to the company.
The result is Continue reading Should You Protest Unemployment Claims?
If your employment application asks whether the applicant has ever been convicted of a felony, you may need to consider whether to “ban-the-box” that asks that question of your applicants. Why? Because nationally, over 100 cities and counties and over 185 million people live in a ban-the-box or fair-chance jurisdiction. In addition, the Equal Employment Opportunity Commission is gunning for employers who exclude everyone with a criminal history from employment.
The “ban the box” movement seeks to have employers consider an individual candidate’s job qualifications while prohibiting the employers from taking into account a candidate’s criminal history in the beginning of the application process. Ban-the-box aims to provide applicants with a “fair chance” at employment by delaying any consideration of criminal history until a preliminary job offer is made.
Austin is the first city in Texas to “ban the box,” but it is likely that more areas of the Lone Star State will follow in the near future. As of March 24, 2016, Austin passed the Fair Chance Hiring Ordinance, which prohibits employers from asking about or taking under consideration the criminal history of an individual until after making a conditional employment offer. While this ordinance does not cover state agencies or federal employment, it does apply to any private organization with 15 employees or more in the Austin city limits.
So Texas Panhandle employers don’t have to comply with the Austin ordinance if they have no employees in Austin, but they do need to worry about the EEOC claiming that a local employer discriminates in their hiring on the basis of race or ethnicity (it is the official position of the EEOC that “national data supports a finding that criminal record exclusions have a disparate impact based on race and national origin. The national data provides a basis for the Commission to investigate Title VII disparate impact charges challenging criminal record exclusions”).
So the wise employer will go ahead and take the “ever been convicted of a felony” question off of the application for employment. In addition, for both prudence and economic reasons (detailed criminal background checks aren’t cheap), smart employers will wait until they actually make a conditional job offer before checking the criminal record of a potential employee.
In addition, an employer should not: Continue reading Ban the Felony Box on Applications