All posts by Vicki

Taos Hotel Owner Provides Lessons in What Not To Do

Discrimination

The Associated Press published a story on October 26, 2009, that confirmed that racism is still alive and well in the United States and there is still a need for the workplace discrimination laws.

It seems that Larry Whitten bought a dilapidated hotel in Taos, New Mexico and quickly discriminated against his employees and enraged the town of Taos. So here is an object lesson in what not to do as an employer:

  • Whitten, described as a Texan who last lived in Abilene, met with his new employees and says they were hostile. So he banned the speaking of Spanish in his presence because he was paranoid that they might start talking about him and he wouldn’t be able to understand what they were saying. So he enforced a type of English-only workplace rule, which is often one of the first red flags of discrimination that the Equal Employment Opportunity Commission looks for when investigating racial discrimination in the workplace.
  • Then Whitten told some employees with “Hispanic-sounding” first names that they would have to Anglicize their names while at work. So “Marcos” would have to be “Mark” to satisfy Whitten’s deluded belief that hotel guests would otherwise find their names difficult to understand or pronounce. Whitten’s defense? “It has nothing to do with racism. I’m not doing it for any reason other than the satisfaction of my guests, because people calling from all over America don’t know the Spanish accents or the Spanish culture or Spanish anything,” Whitten said. I don’t know what century Whitten is living in, but according to the United States Census Bureau, Hispanics are projected to make up 15.5% of the nation’s population by next year’s census. Spanish names, language and culture are certainly not unfamiliar to Americans. In New Mexico, Hispanics make up more than 40% of the population and in Taos, Hispanics are the majority. Just doing a little people-watching while Whitten was visiting Taos should have clued Whitten into the fact that a little more racial sensitivity was going to be required in his new workplace.
  • One of Whitten’s fired employees, Martin Gutierrez, summed up the racial insult from the employees’ perspective: “I don’t have to change my name and language or heritage. I’m professional the way I am.” That’s the point that Whitten obviously missed somewhere in his 63 years. He wasn’t judging his employees on their professionalism, their performance or their customer service abilities. He was making employment decisions based solely on his stereotypical beliefs about race. It is classic racial discrimination to assume you know something about an individual’s merits, motivations or abilities when all you really know about that employee is the color of his skin or the sound of his accent.
  • Whitten fell into a trap by believing that providing what he perceived his customers wanted would be a good excuse for his racist decisions. However, the ignorance or racism of your customers, if it even existis, cannot prevent an employer’s liability for violating the discrimination laws in the workplace. If Whitten’s hotel guests had preferred only good-looking female employees or only energetic, young employees under 40, would he have violated the gender and age discrimination laws also? Maybe he would have, but if you are an employer, don’t follow his example.

Relativity in the Workplace

Discrimination, Management,

There is an old Hollywood story that warns of family-run businesses:

Despite their joint ownership (with Albert and Sam) of Warner Brothers studios, little love was lost between Jack and Harry Warner (who once chased Jack around the Warner Brothers lot brandishing a lead pipe, threatening to bludgeon him).

Albert Einstein was given a tour of the Warner studios. “This is the great Professor Albert Einstein,” an executive declared by way of introduction to Jack Warner. “He invented the theory of relativity.”

Warner suddenly perked up. “Well, Professor, I have proved a theory of relatives, too,” he remarked.

“Really?” Einstein replied.

“Yes,” Warner declared. “Don’t hire them!”

In my law practice, I often advise businesses in which several of the owner’s family members are employed. While many families are able to successfully avoid stepping on the landmines that are planted just below the surface of family businesses, others seem to blow up either the family or the company by forgetting to follow a few simple principles to avoid the explosives:

  • Make sure your family members are qualified to work in the role they are fulfilling in the company. I know of a successful entrepreneurial husband who wasn’t interested in worrying about the day-to-day tax, employment, accounting and management details of his business. He was a salesman and a very good one. So he left all those other details to his wife. She had no MBA, no training and no experience with the technical and financial aspects of running a business. Their business eventually suffered several large setbacks because neither spouse was qualified to manage the niggling but necessary details with which every business has to deal. The moral: either hire qualified non-family members to do the jobs which you and yours cannot perform, or require immediate and extensive training for any family member whom you expect to perform unfamiliar job duties.
  • Don’t discriminate between family and non-family members. If you have a policy manual that prevents all employee from smoking in the building, prohibits the use of alcohol while on duty or pornography on the company computers or requires all employees to show up on time, do not allow family members to break these rules. In fact, in my experience, the family members should meet even higher standards to set a good example and because they are always under more scrutiny by employees to determine whether there is a double standard applied.
  • Be careful about practicing your family’s faith in the workplace. I never advise an employer to cut out all references to faith in a business, particularly since following the tenets of your faith can create a much more ethical and wholesome workplace. However, the more family members or others of the same faith you have working in your business, the greater the possibility that applicants or current employees will feel like they have to pass a faith test to work in your business. This would of course be discriminatory, so you will have to be even more diligent about enforcing your equal employment opportunity policies, hiring employees of varying faiths, and making disciplinary decisions without regard to an employee’s beliefs.
  • Watch out for apparent authority problems. In Texas, those with apparent authority to speak for the company can bind the company to contacts and get the company in legal hot water for employment decisions. If it is well-known to your vendors and employees that your daughter is working at the company and is being groomed to one day take over the business, don’t be surprised if she is treated legally as having authority to make all decisions for the company, even if, as the owner, you don’t believe she is experienced or mature enough yet to actually make those decisions.
  • Family dysfunction can really cripple your business. If your son and daughter-in-law both work at the business, what will happen if their marriage starts to fall apart and they eventually divorce? Will you automatically fire your soon to be ex-daughter-in-law? Could this create a sexual discrimination issue? Could she make a claim in the divorce for part of the ownership of the business as community property? Those business owners who plan for the worst and hope for the best address these kinds of issues long before problems arise by requiring buy/sell contracts, pre-nuptial agreements and employment contracts with family members.

Protecting Your Company from Departing Employees

Termination

I may be naive, but I believe that most employees leaving one job for another want to leave in as amicable a way as possible. Most of them have no intention of stealing your trade secrets, unfairly competing against you or hurting your business in any way.

But then there are the other departing employees. They are the ones who take your customer preference lists, use your resources to set up a competing business, steal your trade secrets or sabotage your computer system as they leave. These are the bad apples that we have to address in non-competition agreements and confidentiality statements.

I think one of the most effective ways to protect your company from these pirates is to have a written policy explaining to your departing employees what is and is not proper behavior at the time of termination. You might want to include some or all of the following:

  • You may not take, copy nor provide to anyone outside of the company our list of current or prospective customers or [name other confidential documents];
  • You may not use our resources (computers, e-mail, telephones, offices, etc.) to start or run your own business or to aid or communicate with your new employer;
  • While you are still employed here, you may not encourage our customers, employees or vendors to end their relationship with us and join you in any new business or other company;
  • You cannot publicly announce your new position or business until you have left our employ;
  • You cannot remove files, manuals, papers or other documents from our premises if they belong to the company or address company business;
  • You cannot transfer any company information or data electronically to another employer or to yourself off premises or to any disc, flash drive, or other electronic storage device;
  • You may not delete, remove or destroy any data from the company computer system prior to your leaving your employment;
  • On your last day of work, you must return all keys, credit cards, laptops, cell phones, or other equipment that belongs to the company. You may request to remove personal information from this equipment under the supervision of a company representative;
  • If you have not already done so, you will be allowed to remove personal items from your office at a mutually convenient time after work under the supervision of one of our managers

This list certainly won’t address every way in which a departing employee may pilfer valuable information or equipment from your company, but it should get you started thinking about the problems you’ve had in the past which you would like to avoid from now on. If you have had more serious piracy in your workplace, such as the misappropriation of trade secrets or patented processes, you will want to consult with an employment attorney about an enforceable employment agreement that includes a noncompetition provision, as well as other protections for your intellectual property.

Keep An Employee Disciplinary Log

Discrimination,

In the May 2009 San Antonio appeals case of Cantu v. Frito-Lay, Inc., the employer beat a discrimination charge by a former employee because the company kept good records of the kinds of disciplinary action applied to employee misconduct and the reasons such actions were taken.

I often advise employers to keep a running log of each time the company issues a written warning, a suspension or a termination so that it is clear whether employees are being treated equally for similar misbehaviors. The Cantu case provides a good example of the importance of that information.

Kirk Cantu worked as a route salesman for Frito-Lay. He stocked bags of chips in HEB grocery stores. He was seen by a store employee tampering with the “sell by” dates on bags of chips that were later found to be stale. He was banned from servicing any HEB stores at the insistence of HEB, which led to his termination from Frito-Lay.

Cantu sued for gender discrimination, comparing his situation to that of Sandra Casso, a route salesman for Frito-Lay who serviced one HEB store. Casso was related to the store manager and told the store personnel that the manager was pregnant. The store manager asked that Casso be reassigned to another store, but did not want Casso reprimanded. Frito-Lay allowed Casso to bid on another route rather than terminating her employment.

Cantu claimed that he was treated differently than a similarly-situated female who had also been barred from servicing an HEB account, and therefore argued that he had been discriminated against on the basis of his age and gender (Cantu was 53 and Casso was under 40).

The Texas Supreme Court has previously ruled that to be a “similarly-situated” employee for comparison purposes in discrimination cases, the circumstances must be comparable in all material respects, including similar standards, supervisors and conduct. Therefore, the court said that not only does it have to examine the ultimate disciplinary action (both barred from servicing an account, yet one was fired while the other one wasn’t) but also the underlying circumstances.

In other words, to prove discrimination because of disparate disciplinary measures, the plaintiff has to prove that the misconduct he engaged in was nearly identical to that engaged in by a female that the company retained. Cantu was unable to demonstrate that Casso’s misconduct was nearly as serious as his, and therefore he was unable to demonstrate discrimination.

How does an employer assure that it can successfully defend such cases? By making and keeping very good records of the reasons that each employee was fired (or not fired) for misconduct and then showing the court that the employer has been consistent in applying disciplinary measures across all ages, races, genders, etc.

That requires a good log that each manager can access and review before deciding what disciplinary measures to take in an individual situation. If the log were to show that three people before were fired for lying on an application, then the manager would know that lying on an application is a firing offense.

However if the log showed that only the employees who lied about relevant past employment (by claiming experience they didn’t really have) had been fired, while those who lied about schooling (by claiming they had a high school diploma when they only had a GED) had not, the manager will have direction about which offenses are considered serious firing offenses and which are not as serious.

You can’t rely on all of your managers to know of or remember what disciplinary action was taken with each employee, or even the circumstances surrounding the misconduct. But it is easy enough to create a running log that each of them can access and add to as part of the normal disciplinary process. This simple step could assure a win if the company battles a claim of discrimination.

Popular Culture in the Workplace May Be Inappropriate

Discrimination, Management

Michael’s co-worker liked rap music. He liked it so much that he constantly played it and rapped along. Even though the songs contained the “N-word”. Even though Michael is African American. Even though Michael complained several times over a year’s time to his supervisors that the lyrics he was forced to listen to were offensive.

Because his supervisors didn’t correct the problem, Michael contacted the Equal Employment Opportunity Commission (“EEOC”). The EEOC sued on Michael’s behalf for racial harassment and settled the suit against Michael’s employer last year for $168,000.

In announcing the settlement, the EEOC claimed that it is not in the business of judging anyone’s musical taste, but then made it clear that racially offensive language does not belong in the workplace even when disguised as popular culture. The employer had numerous chances to stop the wanna be rapper from offending his co-worker, but never effectively did so.

This kind of culture clash creates difficulties for employers. While television, movies and music have adopted an “anything goes” attitude, the harassment laws require that almost nothing offensive is ever said in the workplace. Every movie that Judd Apatow (“Knocked Up”, “40-Year-Old Virgin”, etc.) releases lowers the bar a little more on what passes for polite discourse in our society, yet every sexual harassment decision raises the standard for what is acceptable conversation on the job. In the middle of this struggle is the employer, trying to build widgets and make a profit, all while having to monitor every employee’s words and conduct.

Miller Brewing Company tried in 1993 to enforce professionalism by firing a manager named Jerold who repeated the punchline of a “Seinfeld” episode to a female coworker. In the episode, Jerry Seinfeld forgot the name of a girl, but remembered that her name rhymed with a female body part. The joke was that her name was “Dolores”. Jerold’s female co-worker didn’t get the joke, so Jerold found a dictionary and pointed out the definition of the rhyming body part. She complained and Jerold was fired a week later. Even though the company overreacted slightly to this one incident, Miller Brewing probably thought that its professionalism policy had done its job and that was the end of it.

The twist in this story is that Jerold sued Miller Brewing Company and the female coworker saying he was wrongfully terminated. The jury found that the woman was not really offended by the Seinfeld joke because she was known to participate in some graphic references herself. The jurors also found that Miller lied about the reasons it really fired Jerold. Jerold was awarded more than $20 million, although he never saw a dime of that money since an appeals court overturned the damages award.

In another music case, the Vail Corporation did not restrict employees listening to music with profanity or lyrics promoting violence against women, which Lisa said offended her. Stupidly, the company did tell Lisa, a Christian employee, that she could not listen to Christian music while on duty because it might offend other employees. The EEOC claimed that the employer also failed to accommodate Lisa’s religious beliefs in some scheduling requests and sexually harassed her by letting managers tell sexual jokes and make graphic comments in the workplace. The Vail Corporation paid $80,000 to settle that religious and sexual discrimination suit.

So do you as an employer have to police your workplace to rid it of all references to popular culture? Good luck with that. Realistically, there are some steps you can take to assure that professionalism reigns in your company:

  • Have clear, written policies expressing the company’s prohibition of racial, sexual, religious and other slurs and harassment, as well as a detailed procedure that your employees can employ to complain if they are offended. Enforce the policy with progressive discipline before any situation gets out of control.
  • Train your employees. So many young people (and some older ones) entering the job market are completely clueless about what “appropriate” or “professional” behavior and conversation actually look like. Yes, their parents and their schools failed them. But now they are your problem and you are going to have to be the one to educate them.
  • Take complaints seriously. Michael’s concern about hearing the “N-word” frequently in his co-worker’s musical selections should not have taken a year to be resolved. Even if you think your employee is being overly sensitive, investigate the complaints objectively and promptly.
  • Set a good example yourself. If dirty jokes, racial epithets or religious slurs ever sneak into your conversations, you can be sure that your employees are watching and taking note. Why should they strive to be professional and appropriate if you don’t bother to do so yourself?

Minimum Wage Increase Reminder

Compensation

This is just a reminder to all employers that the minimum wage rate will increase next week. Any time worked by your employees after 12:01 a.m. on July 24, 2009 must be paid at a minimum rate of $7.25 per hour.

This is the last increase from a federal law which began raising the minimum wage in $.70 increments from $5.15 per hour, which was the minimum rate prior to July 24, 2007.

If you have any belief that your employees are not entitled to minimum wage, or any questions about applying minimum wage laws, call an employment lawyer immediately. The consequences of failing to pay minimum wage properly can be very costly for a business.

Employers Targeted by ICE

Documentation

While the whole nation has been focused on our country’s economic woes, Iranian protests and the death of Michael Jackson, ad nauseum, the issue of illegal immigration has been pushed to the cobwebby recesses of most of our minds. However, if you are an employer, you need to refocus on the employment eligibility of your workforce.

U.S. Immigration and Customs Enforcement (ICE) announced on July 1 that it issued notices of inspection to 652 businesses nationwide, beginning the involuntary inspection and auditing of those companies’ hiring records. The purpose is to determine whether the businesses are complying with the immigration laws, particularly the requirement that companies have an I-9 employment eligibility form completed on each employee and that the documentation used by the employee reasonably appears genuine.

The 652 notices that ICE issued on the first day of this month exceeded the number of similar notices (503) issued by ICE during all of fiscal year 2008. ICE has been warning employers since April 30 that it is going to concentrate less on the business raids like the one at the Swift plant in Cactus two years ago that separated young children from their families. Instead, ICE is going to be focused on investigating and prosecuting employers who employ illegal workers.

Ten percent of the 1100 criminal arrests ICE made last year resulted in charges against owners, managers, supervisors or human resources directors, not the illegal workers who may have stolen identities, faked social security numbers or forged papers. Do you want to go to jail for harboring illegal immigrants for financial gain?

Just for having your I-9s out of order, even if your workers are all eligible to work in the United States, you can be fined up to $1100 per worker. If you have “constructive knowledge” from circumstantial evidence that you are employing illegal workers, you can face both civil and criminal penalties of up to $2200 for a first offense, $11000 for two offenses and six months imprisonment. If ICE can show that you knowingly employed at least 10 illegal workers for 12 months, you face imprisonment for up to five years.

Let’s say that you don’t believe that you employ any illegal workers. You may still have documentation problems. Go through your personnel files just to check for these issues:

  • Does every file contain a completed I-9 form filled out when the employee first started working for you? I can’t tell you how many of the forms I have seen don’t have both sections 1 and 2 filled out and signed.
  • Did you photocopy the documentation the employee produced that you are relying on? Copies are the best way to show why you believed the documents were valid. Double-check these. Upon a closer look, you will see slight irregularities that should have caused you concern at the time. Compare the documents you received to the genuine articles in the Employer’s Handbook provided by ICE on its website (click here).
  • If you have hired an employee since Spring 2009, have you been using the updated I-9 form, revised on February 2, 2009? (Click here for a pdf copy).
  • Have you calendared the dates necessary for reverification if your employee has work verification documents that will be expiring? Upon reverification, did you fill out Section 3 of the I-9 form?

Chances are high that your review uncovered some problems with your I-9 forms. The time to correct those is before ICE serves you with a notice of inspection, particularly if your company is engaged in one of the businesses ICE checks frequently because of past violations in these industries: agriculture, cleaning services, factories, slaughterhouses, construction companies, or other blue collar industries.

Although you will often hear about ICE targeting big employers like Wal-mart and Tyson Foods, they also inspect local small businesses if they receive any kind of tip (from disgruntled employees, competitors, the public or other law enforcement agencies) that a company is employing illegal workers.

It is clear from conversations that I have had with other federal law enforcement officers that the days during the Bush administration of the federal government being “nice” to businesses is over. If ICE or any other federal inspector shows up at your business, you will breathe a sigh of relief if you have gotten your record-keeping, such as your I-9s, into shape before the feds came knocking.

Recordkeeping Tips for Employers

Documentation

This may not be the most exciting topic in employment law, but it is one of the most important: AS AN EMPLOYER, YOU HAVE TO KEEP GOOD RECORDS. Virtually every employment law requires the employer to do some recordkeeping, and anytime the employer fails to do so, the employer is the one that gets burned.

For example, the Fair Labor Standards Act, which regulates overtime and minimum wage payments, makes it imperative for an employer to keep the following records on each employee for three years:

  • Identifying information such as full name and address;
  • job title and duties if claiming exempt status for employee;
  • rate of pay;
  • hours worked each day and each workweek (by time card or time sheet if nonexempt);
  • payment of wages, including overtime adjustments;
  • all bonuses or other additions to wages;
  • amounts and types of all deductions taken from each paycheck;
  • total wages paid in each pay period;
  • dates of payment and the pay period covered;
  • commission agreements or other compensation related agreements.

These records need to be organized and accessible enough that they could be produced to a Department of Labor wage and hour investigator within 72 hours.

The foregoing list is only for that one law (FLSA). To battle payroll tax questions, discrimination accusations, immigration complaints and the myriad other employment law investigations and civil claims with which your company could be involved, you need to have an organized and deliberate system for keeping records about all of your employees.

This usually involves at least three kinds of files. First, you should have detailed and voluminous personnel file on each employee. I have many clients who are requested to bring me the employee’s personnel file when I am asked to defend the company in a discrimination case, for example, and all the business owner brings me is a thin folder containing an employment application and a W-4. I can usually predict the bad outcome of the case for the company right then, just based on poor recordkeeping.

This first set of personnel files ought to contain the application, W-4, I-9 form regarding eligibility for employment in the United States, a report to the Texas Attorney General of a new hire, interview notes, background investigations, training records, performance appraisals, disciplinary actions and warnings, signed acknowledgments of company policies, and termination documentation.

Second, you need a separate set of confidential personnel files with highly restricted access that are kept in a locked cabinet and contain medically sensitive information, such as insurance applications, drug or alcohol tests, physical exams (if you require them for physically-intense jobs), requests for Americans with Disabilities Act accommodations, documents related to use of sick leave or Family and Medical Leave, doctor’s notes and worker’s compensation history.

Third, you should keep payroll records like those set forth above, which are necessary to comply with the Fair Labor Standards Act. This file should also include attendance records, vacation requests, holidays off, records of raises, and other records that completely document the reasons and amount of the employee’s pay. Many employers keep all of these records electronically, which is fine, as long as you regularly back up your system so that no records will be lost.

Are You Making Compensation Mistakes?

Compensation

I frequently work with clients who are being investigated by the Department of Labor for violations of the Fair Labor Standards Act, the federal law that regulates the payment of the minimum wage and overtime compensation. I was recently reminded by a client that the FLSA requires many things that may be legal but certainly aren’t fair. This may be one of the reasons that the FLSA is so often violated: it sometimes makes no rational sense.

For example, the FLSA requires most bonuses to be included in an employee’s regular rate of pay for purposes of calculating overtime pay. So if you give your employees a performance bonus, an attendance incentive, a monetary gift every Christmas or almost any other kind of bonus, you will be required to pay those employees more in overtime pay because the bonus will increase their rate of pay in the pay period in which you provide the bonus. What this often means to an employer is that the regulations act as a disincentive to use bonuses to increase productivity or performance. This makes no sense from a business perspective, but it makes sense to the Department of Labor, which is charged with enforcing the FLSA.

These types of paradoxes of the FLSA mean that many employers violate the FLSA without knowing it and without any malice simply because the rational business brain cannot imagine that this law is as illogical as it really is. Here are some of the pitfalls that businesspersons often fall into with the FLSA:

  1. Failure to keep daily time records for “exempt” employees. If you are paying an employee a set salary regardless of how many hours they work, you may believe that requiring that employee to keep a time sheet is unnecessary. However, salaried employees are not automatically exempt employees. They may still be due overtime or minimum wage and once it is determined that they are due those wages, the number of hours actually worked becomes a huge issue. It is the employer’s responsibility to keep accurate track of the hours the employees work and if the employer fails to do this, any number of hours worked that an employee makes up may be enforced by the DOL.
  2. Believing that many employees are exempt from overtime or minimum wage laws. I use a very generalized, unscientific rule of thumb in many types of small businesses (less than 50 employees). If more than 10% of your employees are considered exempt, you have a problem. It doesn’t take that many executives, administrators, or professionals to run a company and classifying a lot of your employees as exempt means that you have waived a red flag in front of the DOL. Obviously, every business is different and the only way to be sure if you have classified your employees correctly is to have a knowledgeable HR person or employment lawyer review every job description as well as the duties actually performed by your workers.
  3. Meal break deductions. Many employers get tripped up by this one. In general, you have to pay your employees if their lunch break is less than 30 minutes long. You also have to pay them if they are not completely relieved of all duties during the break and free to leave their work area. If you assistant stays at her desk, eats her sack lunch and still answers your phone, you have to pay her for that “break”, even if she spends most of it reading a romance novel.
  4. Deducting items from an employee’s pay that take the employee below minimum wage for that pay period. Required uniform expenses, deductions to cover damaged or lost tools, deductions for poor performance, such as chargebacks for dissatisfied customers who return items, are all types of deductions that become illegal if they take the employee’s pay below minimum wage before taxes and other legal deductions are subtracted.
  5. Docking or withholding wages for hours actually worked. Anytime you determine as an employer that you are going to withhold an employees’ earned wages, STOP. You are making a mistake. For example, some employers refuse to pay an employee who routinely fails to clock in or out. This is illegal. You still have to pay the employee for the hours you reasonably think he worked that day. Then you can discipline him by written warning, suspension, or even termination for failing to follow the company rule about clocking in and out. But you cannot use his pay as a club with which to beat him. Same rule applies to an employee who works “unauthorized overtime”. Whether it was authorized or not, you still owe her pay for the hours she actually worked and time and one-half for the overtime hours. You may discipline her for failing to get authorization, but you can’t withhold the pay actually due to her.

Many employers don’t understand what the big deal is about violating some little FLSA rules and therefore pay little attention to the overtime and minimum wage requirements. But the regulations of this act allow the employer to be sued for twice the amount owed, going two years back, and automatically awards attorneys’ fees to the employee if he/she wins. In addition, not just one employee will sue. The court will probably allow the employee’s attorney to contact all of your former employees during the last two years to get them to consent to be part of the suit against you also. These rules can turn an otherwise minor violation into a very expensive mistake.

The Next Protected Class: Caregivers

Discrimination

Since 1964, federal laws have made it illegal for an employer to discriminate in employment on the basis of race, national origin, color, ethnicity, religion and gender. These are known as “protected classes” of employees–the ones that you as an employer must carefully handle when it comes to hiring, promoting, compensating and firing.

Since the Civil Rights Act of 1964, the list of protected classes has increased to include age, pregnancy, disability, sexual and other harassment, veteran’s status, and even genetic information. Contrary to popular belief, sexual orientation is not a protected class under federal or Texas law. Also, there is no municipal ordinance in the Texas Panhandle protecting an employee on the basis of his sexual orientation.

The next category of protected employees that I expect to see is the category of “caregivers”. This no longer means just protecting women who have small children at home. The definition of caregiver includes those who also have to care for elderly parents or disabled adult children.

In April 2009, the Equal Employment Opportunity Commission (“EEOC”) released a set of guidelines to “help” employers eliminate possible discrimination against caregivers, under the guise of eliminating sexual discrimination, since caregivers are overwhelmingly likely to be women. A disability discrimination claim might also be used by a caregiving employee. The Family and Medical Leave Act has already been expanded to provide 26 weeks of unpaid leave to those employees who must care for a wounded military family member.

Understand that no law has been passed by Congress specifically prohibiting employers from discriminating against caregivers. There is no state law protecting caregivers. This is simply the EEOC’s way of coming in the back door to try to create a new protected class of employees who can sue their employers. The EEOC is urging employers to voluntarily adopt best practices for dealing with employees with caregiving responsiblities, such as flex-time policies or sick leave practices that cover not only the employee but those for whom the employee cares.

Since the EEOC’s guidelines are not statutory requirements, you don’t have to change anything in the way you are providing time off or flexibility to your employees right now. But keep a close eye on this legal area of caregivers as a protected class. I predict that in five years, you will have to reasonably accommodate caregivers just like you would the disabled.

Are there any proactive steps you can take now to prepare for this inevitable change? If you are updating your employment policies, I really like a “personal days” policy or “Paid Time Off” policy rather than days off labeled as vacation and sick leave. If you allow your employees to accrue 1-2 days per month in undesignated time off that can be used for vacations, sick leave, children’s school activities, elderly parent’s doctor’s appointments, funerals, and other personal issues, your employees already have the flexibility necessary to be caregivers and good employees.