University Medical Center in Lubbock won a big victory in an age discrimination case by doing everything right (suggesting to me that they followed the advice of their employment lawyers). Employers can learn eight important lessons from the Fifth Circuit Court of Appeals decision issued in the case of Salazar v. Lubbock County Hospital District d/b/a University Medical Center (opinion issued December 7, 2020).
Age discrimination cases are difficult for employers to win because the elderly make very sympathetic plaintiffs and the judges and jurors themselves are often older. But this case gives a blueprint to managers of how to dispassionately and carefully handle the termination of a poor-performing employee.
The allegations that plaintiff Rosemary Salazar asserted in this case sound really bad for the employer in an age-discrimination claim. Salazar had worked at the hospital for 27 years before she was fired in 2017 for poor performance and failure to change her behavior. She was 57 years old at the time of her termination and alleged not only was her firing discriminatory, but also that the same supervisor in her department fired three other long-time employees who were over the age of 60.
Salazar also claimed that she had been given good performance evaluations and that she had “received numerous raises for her job performance.” Finally she said that the employer did not follow its own progressive disciplinary policy in terminating her.
How did UMC manage to get a win the summary judgment motion and the appeal in this case? In a word: documentation.
Continue reading How Employers Can Do Everything Right
Texas Governor Greg Abbott signed an Executive Order on April 5, 2021, purporting to ban “vaccination passports” in Texas. But Texas employers are asking, “What does this mean for my business?”.
Abbott has said that in Texas “vaccinations are voluntary and never forced.” He continued by saying:
Government should not require any Texan to show proof of vaccination and reveal private health information just to go about their daily lives. That is why I have issued an Executive Order that prohibits government-mandated vaccine passports in Texas. We will continue to vaccinate more Texans and protect public health — and we will do so without treading on Texans’ personal freedoms.https://gov.texas.gov/news/post/governor-abbott-issues-executive-order-prohibiting-government-mandated-vaccine-passports
Of course, that press statement only addresses the government’s role and says nothing that clarifies how private Texas businesses are supposed to respond.
“Vaccination passports”, in the form of written documentation of having received a vaccination, have been used for years to prevent global travelers from spreading diseases. They are also required in most public schools (although Texas allows parents to sign an written opt out form because of vaccination objections).
Your college student probably had to prove vaccination for meningitis before moving into a dormitory. Few Texans cried “governmental overreach” when that meningitis vaccination requirement assured that their 18-year-old son or daughter would be protected from a potentially fatal disease that rapidly spreads in communal environments such as dorms.
Indoor sports arenas, performing arts centers, and live music venues have been hoping that vaccination passports would allow those venues to assure the public that they are once again safe to come back to live performances while sitting 18″ from the person in the next seat for a couple of hours.
But like masks, COVID-19 vaccinations have become a political hot potato. Gov. Abbott, seeking to appease a very vocal minority, generated headlines that proclaimed “Abbott Bans Vaccination Passports”. Once you dig down into the actual wording of Gov. Abbott’s Executive Order, you find that only these actions are prohibited:
Continue reading “No Vaccination Passports”: What Does Abbott Mean?
Even though the idea has been in the news recently, at the current time there is no absolute liability immunity for Texas employers from COVID-19-related claims made by employees who are exposed to the virus in your workplace or otherwise harmed during the pandemic. You can be sued for many different legal failures as an employer during this crisis, so you should know what the law expects of you right now.
The law firm of Fisher Phillips is maintaining a fascinating database of COVID-19-related cases filed so far in 2020. Their database shows that 38 COVID lawsuits have been filed in Texas for claims such as unsafe workplaces, discrimination, paid leave violations, retaliation and even wrongful death. I have no doubt those claims will continue to increase as employers struggle with all of the safety guidance and other rules burying them during this crisis.
I’ve narrowed the possibilities of a Texas employer getting sued during this global pandemic down to these ten mistakes:
Continue reading Ten Ways to Get Sued by Employees During a Pandemic
The United State Supreme Court ruled today in Bostock v. Clayton County that employers may be sued for sex discrimination by LGBT employees under Title VII of the Civil Rights Act of 1964. This opinion resolves a long-time disagreement between the various federal circuit courts and unwieldy patchwork of laws that had protected LGBT employees in some states but not others, and Texas cities like Austin, Dallas and Houston, but not Amarillo.
The Court combined three cases, one in which a male county employee was fired for conduct “unbecoming” a public employee when he joined a gay softball league, one in which a private employer fired an employee just days after he mentioned he was gay, and one where a funeral home fired an employee who presented as male when hired, but later stated that she was going to live, dress and work as a female going forward.
After reviewing each of these job terminations, the Court decided 6-3 in an opinion written by Trump-appointee Justice Neil Gorsuch that an employer who fires an individual based in part on being gay or transgender (and by natural extension, bisexual or lesbian) violates Title VII’s prohibition on discrimination on the basis of sex. “An employer who fires an individual merely for being gay or transgender defies the law”, Gorsuch wrote.
The Court pointed out several important rules for employers to know (these apply to any discriminatory job decision, whether it is based on race, age, national origin, disability, religion, etc.):
Continue reading Supreme Court Outlaws Discrimination Against LGBT Employees
Late last week, the Small Business Administration posted interim rules and the application for employers to complete when seeking forgiveness of their Paycheck Protection Program (“PPP”) loan. This guidance, which for many businesses comes almost at the end of the 8-week covered period for spending PPP funds, provides employers with many of the answers we have been waiting for since the CARES Act was passed in March.
Of course, that means that this guidance may be too late for some of us to correct actions we already took when we first received the PPP funds. But there are some strategic decisions that you can still make if you act quickly.
The basics of the loan forgiveness have been explained in more detail and in layman’s language in the U.S. Chamber of Commerce’s Guide to PPP Loan Forgiveness, which I highly recommend that you download. But here are some basic forgiveness criteria that we have been waiting on:
Continue reading SBA Finally Provides PPP Forgiveness Guidance
In 2019, the Social Security Administration (“SSA”) is again
starting to send “No Match” letters after a seven-year hiatus to employers who reported
payroll taxes for an employee under an incorrect (or fake) Social Security
What are the legal do’s and don’ts when the company receives an “Employer Correction Notice” (more commonly known as a No Match letter) from the SSA or otherwise finds out that an employee’s Social Security number isn’t accurate?
- Don’t overreact. There are a number of reasons that an employee’s Social Security number may have been reported incorrectly, the most common being a transposition of numbers in the company’s system or a name change. Your responsibility as an employer is to carefully address this matter so you don’t violate any discrimination laws, but you also protect the company now that you know there is a problem.
- Don’t ignore. You have to act in response to a No Match letter or other knowledge that a Social Security number is invalid. But what actions you need to take should be discussed with your employment lawyer, who you should call immediately upon receipt of the No Match letter.
- Don’t fire anybody (yet). The letter itself will say, “You should not use this letter to take any adverse action against an employee, such as laying off, suspending, firing or discriminating against that individual just because his or her name or SSN does not match our records.”
- Don’t confuse the Social Security Administration with Immigration and Customs Enforcement (ICE). No match letters come from SSA and must be addressed through the SSA system. There may be a connection between the incorrect Social Security number and the employee’s eligibility to work in the United States, but you are a long way from making that determination yet when you have just received the No Match letter. On the other hand, ICE may regard a failure on the part of the company to act correctly in response to a No Match letter as an indication of guilt in employing undocumented workers, which is why having an employment lawyer walk you through this process is essential.
- Do check your records. Make sure the mistake is not on your end—check that you correctly reported the name and Social Security number that your employee provided to you. If the mistake was yours, notify SSA of the correction.
- Do ask the employee to address the problem. After you confirm that the mistake is not on your end, you need to notify the employee in writing that he/she has the responsibility to clear up any discrepancy with SSA by a reasonable deadline (at least 90 days). Advise your employee that failure to act immediately, to provide the corrected documents in a reasonable time or to provide a good-faith explanation of the problem could later be grounds for termination.
- Don’t make an employment eligibility decision yet. There is a dangerous tendency for Texas employers to suspect a Hispanic employee with an incorrect Social Security number might be ineligible to legally work in the United States. This bias could quickly get you sued for discrimination. Give every employee with a mistaken Social Security number a chance to correct that mistake through the SSA procedures. Don’t require an employee to fill out a new I-9 employment eligibility form until the SSA procedure is complete and then only if the employee used the incorrect Social Security number on the first I-9 that the employee filled out.
- Don’t turn a blind eye to an affirmative statement of ineligibility by the employee. On the other hand, employees will sometimes tell you when confronted with Social Security number mistake that the employee doesn’t have a Social Security number. Your response should still be, “Talk to SSA and get this corrected.” But if the employee actually says, “I’m not in the United States legally and can’t get a Social Security number because I’m not eligible to work here,” you have to take that admission of ineligibility to work seriously. There is a requirement that employers must terminate any employee immediately upon receiving actual knowledge that the employee is not authorized to work, such as when the employee admits to having submitted false documents for I-9 purposes or to entering the country illegally and never applying for a work permit. This is a red flag warning to call your employment attorney.
- Do consider if you need to adopt verification procedures at time of hiring. The SSA provides a verification service that you can use to check Social Security numbers for payroll purposes only (not I-9 purposes) at the time of hiring. Many background checking services will also offer this as part of their criminal background check. But if you are going to start verifying Social Security numbers with new hires, you must be consistent and verify every single employee to whom you make a job offer or your inconsistency can be considered discrimination.
- Don’t mistake SSA verification for E-Verify. E-Verify is the federal database for verifying employment eligibility for I-9 purposes. This is where you can find out if your employee really is legal to work in the United States. However, at the present time, there are so many red-tape and technical problems with E-Verify, which has been known to mistakenly block eligible workers, that I do not recommend that employers enroll in that system if you don’t have to (enrollment is mandatory for some employers, such as federal contractors).
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.
What can you do to protect your company secrets when Angela, your vice-president of sales, announces she is leaving your company and going to work for your competitor? Is there a way to keep Angela from telling her new employer all about your customers’ preferences, your company’s proprietary pricing, or the new business line you are exploring?
Truthfully, the day Angela announces her resignation is way too late to adequately protect your company’s most important secrets. Your efforts to safeguard your formulas, recipes, passwords, marketing plans, customer lists or other information you would like to keep confidential should have started before Angela was even hired.
There is no time like the present to begin taking at least four concrete actions if you value your business secrets:
- Physically protect your confidential information. Remember the urban myths that the secret recipe for KFC chicken or the formula for Coca-Cola were locked in a safe somewhere in company headquarters? According to Fox News, those are actual precautions taken by these companies. “The recipe [for Coca-Cola] lies in a vault in a downtown Atlanta SunTrust Bank vault and only two executives at a time have access to it.” As for KFC: “’Colonel Harlan Sanders’ Original Recipe eleven herbs and spices are inscribed in pencil on a yellowed piece of paper inside a Louisville, Kentucky safe’, says KFC spokesman Rick Maynard. ‘The safe lies inside a state-of-the-art vault that is surrounded by motion detectors, cameras and guards.’” Corporate espionage and theft of trade secrets is big business these days. These two food companies are serious about safeguarding their trade secrets. Are you as careful with yours?
- Do you at least have good password procedures, firewalls and cyberthreat protection, files marked “confidential”, inventories of your laptops and other equipment, and limitations on which employees have access to the keys to your business kingdom?
- Do you teach your new employees what information is confidential, how to protect it, remind employees frequently about their confidentiality obligations, and take immediate action if there is any breach in confidentiality?
- Do you prevent employees from downloading company documents onto flash drives or leaving the premises with your files?
- If you don’t take serious measures to protect your trade secrets, you really shouldn’t expect your current or departing employees to care either. Plus, the new Texas Uniform Trade Secrets Act doesn’t even recognize information as a trade secret unless the owner can demonstrate that the business has taken reasonable measures to keep the information secret. So without active measures to protect the secrecy of your proprietary information, you are helpless in the courts when your secrets are stolen.
Continue reading Four Steps to Protect Your Company’s Secrets When Employees Leave
If you think that only illegal aliens need to be concerned about Immigration and Customs Enforcement (“ICE”), then as an employer, you have not been paying attention in 2018, when ICE has clearly put businesses in the crosshairs with compliance audits and enforcement raids.
Take, for example, a raid conducted by ICE in small town Tennessee in April 2018. The Southeastern Provision meatpacking plant reportedly employed at least 104 undocumented immigrants at the time of the surprise raid. The company hired most of these without requiring the employees to complete the required I-9 forms and without making them provide documents showing their identities and authorization to work legally in the United States. To make matters more felonious, these workers were paid in cash each week and not reported on the company’s payroll tax reports.
Last month, the owner of that Southeastern Provision meatpacking plant agreed to a plea bargain in federal court on charges of tax evasion, wire fraud and employing undocumented immigrants. The owner has not been sentenced to prison yet, but he has already agreed to pay at least $1,296,183 to the IRS in restitution.
Similar worksite raids have escalated dramatically under the Trump administration and are happening all over the country. On August 28, a trailer manufacturer located near Paris, Texas, faced one of the largest immigration raids in recent history, when 159 of its approximately 500 employees were arrested by ICE. Because that Texas company, Load Trail, was fined $445,000 four years ago for hiring dozens of undocumented workers, one could reasonably expect the employer to also face jail time and restitution requirements for a pattern and practice of breaking the immigration laws.
How do companies get selected for raids? Continue reading Employers Targeted in ICE Raids and Audits
For the last several years, the National Labor Relations Board has been regulating which policies your employee handbook can and cannot include, even in your non-unionized workplace. At one point in 2015, there were dozens of handbook policies that were considered to have a chilling effect on an employee’s freedom to organize through “concerted activity”. Those policies were ruled to violate the National Labor Relations Act and as an employment lawyer, when I encountered them in a client’s employment policy manual, I either removed them or added a disclaimer stating that the policies weren’t intended to apply to acts protected by the NLRA.
Three years have passed and several court opinions have frowned on the NLRB’s formerly expansive disapproval regarding employee policies. In addition, the political leanings at the NLRB have shifted. Therefore, a distinctive change has recently occurred in the NLRB’s approach as to which employee policies an employer can enforce and which ones an employer can’t.
In a general counsel’s memo dated June 6, 2018, the NLRB instructed its staff that the following policies are okay to include in an employer’s policy manual and won’t necessarily be treated as an unfair labor practice:
- Civility rules that require employees to avoid disparaging coworkers and using offensive, rude or condescending language to a coworker or customer;
- Rules requiring that proprietary information and trade secrets of the employer and confidential information of customers have to be protected by employees (however, just saying everything the employee learns at work is confidential is too broad);
- Rules prohibiting employees from aiding the competition, self-dealing and nepotism;
- Rules against insubordination or non-cooperation that affects company operations (usually described as refusal to comply with a supervisor’s orders and/or perform work);
- Rules prohibiting employees making intentionally dishonest statements or misrepresentations;
- Rules prohibiting disruptive behaviors, such as “fighting, roughhousing, horseplay, tomfoolery, and other shenanigans.” Also included on the naughty list: “yelling, profanity, hostile or angry tones, throwing things, slamming doors, waving arms or fists, verbal abuse, destruction of property, threats, or outright violence.”
- Rules prohibiting photography or recording in most business settings. “Employers have a legitimate and substantial interest in limiting recording and photography on their property. This interest may involve security concerns, protection of property, protection of proprietary, confidential, and customer information, avoiding legal liability, and maintaining the integrity of operations,” said the 2018 NLRB General Counsel. So, on balance, the NLRB has decided that it is okay for your policy to tell your employees “no photography, no recording”.
But that doesn’t mean that every rule in your employee handbook is acceptable. You still have to consider if your written policy is infringing on your employees’ rights to participate in protected concerted activity—the joining together of employees to discuss or protest the terms and conditions of their employment. If so, by enforcing that policy, you may be committing an unfair labor practice and you can be investigated and penalized by the NRLB.
Here are five policies that your employee policy manual that are still problematic and could get your company into trouble: Continue reading Employee Handbook Policies You Can and Cannot Legally Include