Monthly Archives: March 2009

Time to Change I-9 Forms (Again!)

Documentation, Hiring

As if employers didn’t have enough to keep up with, it is time to throw out your old blank I-9 employee eligibility forms (for immigration compliance) and adopt the new form as of Friday, April 3, 2009.

Click here to download a copy of the new required form. The form is available on the United States Citizenship and Immigration Services website.

Don’t blame this one on the Obama administration. The regulation for the new form was written during the waning days of President Bush’s term. President Obama delayed its enactment for 60 days, as he did with all of Bush’s pending regulations, but unless something changes this week, you must make the switch to the new form for anyone whom you hire on Friday or thereafter.

Texas’ Group Health Insurance Problem

Benefits

There was a very informative article in Time Magazine last week called “The Health Care Crisis Hits Home”. The author, a journalist with 15 years covering health policy, wrote of her brother in Texas whose kidneys are failing. He had been insured for 6 years with one company, buying a new individual short-term policy each six months because group health insurance wasn’t available through his employer. After being diagnosed, he found out that the short-term policies he purchased were “junk”. One expert said, “No one should ever buy them. It is false security that is being sold”.

This article demonstrates the catch-22 which we face in Texas. None of us want our employees to face overwhelming medical bills. However, many of us as employers feel like we can’t afford to provide health insurance for our employees. In fact, the Time article says that only 37% of small companies in Texas (less than 50 employees) offer group medical coverage. As a result though, 1 in 4 Texans is without health insurance. Even more are underinsured, like the author’s brother, who have some type of coverage but find out when they become sick that their policy is insufficient.

What can you do about this as a small Texas employer? Talk to your employees about whether health insurance is important to them and if they want to make a sacrifice to obtain it. More and more surveys that I see in my human resources and employment law trade magazines indicate that benefits are equally as important to an employee as the salary offered. I know of many employees, such as my husband and his fellow high school teachers, who are highly motivated by the benefits that their jobs provide to them and their families, particularly since their salaries are nothing to get excited about considering the importance of the work they perform.

In Texas, you can obtain a group health insurance policy as long as the employer pays 50% or more of the employee’s premium. Because the group rates are so much lower than the rates for an individual policy and the coverage is so much more complete, your employees may be willing to pay for as much as half of their premiums in order to be protected. This could also mean that you and your own family could obtain decent coverage.

Don’t Show a Texas Employee His File

Documentation, Employee Rights, Forms and Policies

Let me be clear: Private employers in Texas do not have to allow employees to see their personnel files. That’s right. I don’t care what other states do, or what they show on TV. The law in Texas is that the file belongs to the employer and the employee cannot demand to see it.

That being said, what does your personnel policy manual say? Many employers whom I help have policies that they copied from a generic software package or borrowed from a friend’s company with offices in another state. Those employee handbooks often say something like, “An employee may request to see his personnel file with 3 days written notice to the human resources department.”

If you have given your employees that privilege, it will appear discriminatory to deny them the opportunity to review their files if they make that request. So check your policy manual first. If you have a policy that promises that employees can see their files, you need to amend your policy to say, “Personnel records of the company belong to and are the property of the company. They are not available to an employee to review.” Then, whenever an employee asks to see her file, you can point to your policy and say, “no” without hesitation.

Why do I recommend that employers in Texas keep their files private? Because the most common mistake I see in my employment law practice is that employers do not document enough. They are scared to write anything down if they know that an employee can see it and question it at any time. The threat of employee litigation looms heavy over most of today’s managers.

I continually try to encourage supervisors to write down everything. I won a trial one time based solely on the informal, imperfect daily diary notes that a manager kept about any problems that he had during the day with his team. The employee who sued the company was mentioned so many times in the informal notes in the 3 months before his termination that it was clear that he was a problem employee and not the victim of discrimination or retaliation.

If you keep your employee files private and document consistently, you can avoid a lot of potential liability as an employer.

Controlling Absenteeism

Attendence

I often get questions from employers about firing employees for absenteeism. Like any good employment attorney, I ask the employer about the scope of the problem. How many absences has the employee taken? What were the reasons for the absenteeism? What sort of verbal and written warnings has the employee received for absenteeism?

Astonishingly, I usually discover that the employer hasn’t tracked the number of absences, issued any warnings to the employee to correct their behavior and doesn’t even know if the employee has used up all of his paid time off. Often, I am simply getting a call because the employee is absent that day and the boss is upset over it because the employee has missed “a lot”.

You can reduce absenteeism in your company, but it requires some consistent effort on your part. Here are some steps to consider:

  1. Give your employees a reasonable amount of paid time off (“PTO”) each year that can be taken for whatever emergency or need arises. Generally, for full-time employees that have been with the company more than one year,  a total of 15-20 days per year is sufficient to cover vacations, sick days, kids’ school activities, funerals, and all the other ways in which real life intrudes.
  2. Prepare a written policy that explains your PTO procedures. Include a statement along the lines of, “Employees are provided sufficient PTO for all foreseeable and unforeseeable reasons to be absent. Therefore, any absences that are not covered by the company’s PTO policy, other than Family and Medical Leave (“FMLA”) and civic duties like voting or jury duty, will be considered to constitute excessive absenteeism and will result in disciplinary action up to and including termination of employment.”
  3. Keep track of absences every single day. This seems so simple, yet is violated so often. If I can’t prove in court with clear documentation exactly how many days your employee missed, I can’t prove that the reason for her termination was absenteeism rather than discrimination based on age, sex, race, etc.
  4. Be prepared to enforce your policy, beginning with the first absence after all of an employee’s PTO is exhausted. I don’t care if the employee needs to go to the doctor (unless employee is on FMLA), has a flat tire or just can’t recover from last night’s binge, if he has exhausted his PTO, you need to start progressive discipline. Give him a verbal warning (which you document for your files). The next time he misses, give him a written warning that lets him know he is in danger of losing his job. With the third absence, suspension or termination should be imposed, after you call your employment lawyer to review the reasons for the absences and get the legal green light to fire.