Tag Archives: Texas Employment Law

Should You Protest Unemployment Claims?

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?

Ban the Felony Box on Applications

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.

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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

Employers Must Pay for “Unauthorized Overtime”

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”

Texas Businesses Wrestle with Presence of Handguns

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

A Texas Employer’s New Year’s Resolutions 2016

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.

 

 

 

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

Texas Employers Should Consider Equal Treatments for LGBT Employees

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.

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.

TWC Creates Calculator to Estimate the Effect of Unemployment Claim

Whenever a Texas employer receives a Notice of Application for Unemployment Benefits, the first question that runs through the employer’s head is “How much is this going to cost me?” The answer to that question can influence whether the employer decides to protest the unemployment decision, how much time, effort and worry to invest in the protest and whether to hire a lawyer to protest the unemployment award. The cost estimate has been a difficult question for employment lawyers to answer. But now the TWC has provided all of us a calculator that will estimate how a particular employer’s tax rate will change if the former employee collects the maximum unemployment benefits.

When you receive the initial notice, go to this site and input your former employee’s salary for four of the last 6 quarters and the tax rate information off of your annual Tax Rate Notice from the TWC to get a tax rate estimate. With that estimated tax rate, you can compare it to your previous TWC reports and see the change that will occur in the Texas unemployment taxes that you will pay based on that one employee receiving unemployment benefits. Remember as you make that comparison that your tax rate increase will be effective for three years, not just one, after an employee files a successful unemployment claim.