Category Archives: Documentation

Out-of-State Employees Have to be Treated Differently

Compensation, Discrimination, Documentation, Hiring, Personnel Policies, Termination, , , , ,

As a Texas employer, your employees in other states are protected by the laws of the state in which they perform their work, not Texas law. In most cases, those laws give your out-of-state workers more rights and protections than employees in Texas are given.

As a rule of thumb, the state and local laws of the physical location where the employee is working will supersede Texas law. That means that Texas businesses are responsible for complying with the laws of those other states when they employ a worker across the Texas state lines.

Many of my business clients are headquartered in the Texas Panhandle, but they also have operations, offices, clients and therefore, employees, in New Mexico, Oklahoma, Kansas, Colorado or other states. In an attempt to simplify their operations, those multi-state employers often prefer to adopt policies that apply across the board to all employees, regardless of where the employee is located.

But you cannot ignore the employment laws of the state in which your employees reside and perform some work, even if they only work in that state part of the time. While it is impossible to list every different employment law for even just the nearby states, here are just some examples that employers need to be aware of:

Continue reading Out-of-State Employees Have to be Treated Differently →

Get Ready for Immigration Enforcement Spotlight

Documentation, Hiring, Immigration, , , ,

When President-elect Trump takes office next week, he has promised to launch what his aide Stephen Miller called a “shock and awe blitz” of executive orders and actions that will target millions of immigrants and their families. Employers need to be ready to respond to this renewed emphasis on immigration enforcement.

History of Raids on Businesses

Will there be a return to the kinds of raids on businesses that we saw during President Bush’s second term? Time Magazine reported that President-Elect Trump told the magazine in an interview that he wants a return to United States Customs and Immigration Enforcement (“ICE”) raids of businesses. “The strategy, which he also ramped up in his first term, aims to increase the visibility and enforcement of immigration laws in everyday settings, targeting industries that frequently employ unauthorized workers. Trump has suggested that these raids will not only deter unauthorized employment but also lead to significant labor market shifts, benefiting American workers,” Time reported.

For those who don’t remember one of the most infamous ICE enforcement actions during President Bush’s administration, in December 2006, the giant meatpacking plant formerly owned by Swift and now owned by JBS in the Texas Panhandle town of Cactus, was one of the targets of the largest single-site workforce enforcement action in U.S. history. ICE officers in riot gear and armed with assault rifles arrested nearly 300 workers, more than 10% of the population of Cactus. School children were left with no one to pick them up or care for them at home because both parents were arrested in the raid. The community of Cactus was decimated. Seven months later, ICE batted clean up by conducting another, smaller raid on the same plant in Cactus.

The town of Cactus eventually recovered, but the JBS plant is still almost completely staffed by immigrants, some of whom may be at risk if another raid occurs. Many noncitizen workers there are hired to come to the U.S. to work on legal visas, but President Trump has threated even those migrants who are in the country legally, despite that fact that many workers born in the United States don’t seem to want the jobs offered at JBS. If enforcement actions are actively pursued by ICE in Cactus or elsewhere, it will be up to the employer to prove that each of its workers is legally eligible for employment in the United States.

Holding Business Owners and Managers Responsible

After the furor that such raids caused during the Bush administration, President Obama took a different tact. His administration pursued the employers, not the workers. Some  of the 1100 criminal arrests ICE made in 2008 resulted in charges against owners, managers, supervisors or human resources directors who knowingly hired ineligible workers, failed to diligently check employment eligibility or just ignored the requirements.

The owners and managers of the businesses were targeted because it is the employer’s responsibility to certify that each employee is eligible to legally work in the United States. This is done by reviewing the employee’s eligibility documentation (such as passports, work permits, social security cards, driver’s licenses, etc.) within the first three days of employment and properly completing the Form I-9 to show compliance.

How Employers Can Prepare Now

Let’s say that you don’t believe that you employ any ineligible workers. You may still have documentation problems. Just for incorrectly completing the  I-9’s, even if your workers are all actually eligible to work in the United States, you can be fined up to $2789 per worker.

Continue reading Get Ready for Immigration Enforcement Spotlight →
Policy revision

Your Employee Policy Handbook Needs Revision (Again)

Documentation, Employee Rights, Personnel Policies, , , , ,

Because of a recent decision by the National Labor Relations Board (NLRB), your employee policies probably need a major rewrite to avoid an unfair labor practices charge. This decision applies to big and small companies, those that are unionized and those that are not.

In August 2023 in Stericycle, Inc., the Board adopted a strict new legal standard for reviewing workplace rules. In order to protect the employees’ right to organize and “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection”, as Section 7 of the National Labor Relations Act requires, employers cannot promulgate, maintain or enforce work rules that tend to inhibit employees from exercising their rights under the Act.

What are those concerted activities that employees may engage in together? Just a few examples:

  • Employees discussing or complaining about their salaries, benefits, and other working conditions;
  • Employees refusing to work in unsafe conditions;
  • Employees complaining about unfair treatment by a supervisor;
  • Employees openly talking to each other, on social media, to the press or otherwise about their complaints about their employer;
  • Employees joining with co-workers to grieve any mistreatment, file claims with a governmental agency or otherwise protest any aspect of their jobs.

You as an employer cannot prohibit any of these activities or discipline an employee for engaging in them. Moreover, you cannot have policies that discourage these protected concerted activities.

Policy handbooks have come under scrutiny by the NRLB frequently in the last 10 years, but the Stericycle decision takes this scrutiny to a new level. If the NRLB finds that an employer’s policies have a reasonable tendency to chill employees exercising of their Section 7 rights, then it is presumptively an unfair labor practice.

The NRLB looks at the rules from the viewpoint of an employee who is economically dependent on the employer, rather than just applying a reasonable person standard. The employer can only rebut the presumption that the rule is unlawful by showing the policy serves a legitimate and substantial business purpose and it is as narrowly tailored as possible.

Continue reading Your Employee Policy Handbook Needs Revision (Again) →

Commission Pay Arrangements in Texas

Compensation, Documentation, , ,

If you as an employer pay any of your employees on commission, a recent Texas Supreme Court case makes it clear that your commission arrangement needs to be in writing.

The Court decided Perthuis v. Baylor Miraca Genetics Laboratories LLC in May 2022. In that opinion, the Court addressed the question of when a former employee has to be paid commissions collected by the company after the employee has left the job. In this case, the Texas Supreme Court determined that Brandon Perthuis, the former vice-president of sales at the company, would be entitled to a commission on the largest sale in the company’s history, even though he was terminated the day before the client signed the sales contract (but four days after Perthuis finalized the negotiations for the sale).

The Court reviewed the commission pay agreement and found that it was silent on whether the employee would get paid commissions after his employment was terminated. In the absence of a clear agreement, the Court followed the “procuring-cause doctrine,” meaning that if the employee was the reason the sale was procured, then he was entitled to the commission.

Perhaps the most important part of the Court’s opinion for any company that pays commissions is this: The procuring-cause doctrine provides nothing more than a default, which applies only when a valid agreement to pay a commission does not address questions like whether the  right  to  a  commission  extends  to  sales  closed  after  the  employment relationship ends.  

The procuring-cause doctrine is not a judicially created “term” for commission  contracts. It  does  not  add  anything  to  a  contract  or  take anything away. It does not restrict parties’ ability to modify their contractual  relationships  and  it  does  not  change  the  law  governing whether parties have entered into such a relationship in the first place. Parties certainly may condition the obligation to pay a commission on something  other  than  procuring  the  sale—they  need  only  say  so.

So the Court is saying that the company and the employee can negotiate any kind of commission pay agreement that they want. Or the company can just offer a commission arrangement and the employee can accept it. The courts will only intervene if your commission agreement is not in writing or if your written commission arrangement is silent as to an important term.

So what should a written commission pay arrangement include if any employee is paid fully or partly on commission?

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New Federal Vaccine Mandate Immediately Affects Employers with 100+ Employees

Documentation, Forms and Policies, Medical, Personnel Policies, , ,

The Occupational Health and Safety Administration released its new vaccine mandate as an Emergency Temporary Standard today for employers who have at least 100 employees (“large employers”). The ETS is effective on November 5, 2021, and large employers only have 60 days to fully implement their vaccination plan, so time is of the essence.

Each large employer can decide if that company is going to (1) mandate that every employee gets vaccinated (while allowing limited religious and medical exemptions) or, instead, (2) mandate that its employees have a choice between vaccination and weekly testing. However, either way, large employers have to start requiring all unvaccinated employees to be masked at all times indoors as of December 5, 2021, except when they are alone in their own closed office. The new rules are summarized here.

Here are the highlights of the Emergency Temporary Standard mandate:

Does it apply to your company?

Do you have 100 names on your payroll (full-time, part-time, temporary or seasonal workers who perform work for your company at any point on or after November 5, 2021)? If so, this ETS applies to your company. “In determining the number of employees, employers must include all employees across all of their U.S. workplaces, regardless of employees’ vaccination status or where they perform their work,” according to the FAQs released by OSHA today.

The count of employees is corporate-wide, not by individual location. Even those who are working from home are counted (although some parts of the mandate do not apply to those workers who are exclusively remote workers). Similarly, those who work exclusively outside are counted when determining if you have 100 workers, but the mandate does not apply in the same way to outside workers.

Independent contractors are not included when you are counting to 100. Neither are temporary workers that you use who are actually employed by a staffing company.

Federal contractors were already subject to a separate vaccine mandate under Executive Order 14042. Healthcare employers who receive Medicare or Medicaid funds have their own stricter vaccination ETS also released today, which does not allow for testing as an alternative to vaccination. To make it easier for all employers to comply with the differing requirements, the deadline for the federal contractor vaccination requirement has been aligned with those for the healthcare entity rule and the large employer rule. Employees falling under the any of these rules will need to have their final vaccination dose – either their second dose of Pfizer or Moderna, or single dose of Johnson & Johnson – by January 4, 2022. 

But what about Gov. Abbott’s Executive Order Saying No Vaccine Mandates in Texas?

I won’t get into all of the politics of this, but this OSHA standard preempts Gov. Abbott’s order (which he couldn’t persuade the Texas Legislature to turn into law in the last special session). The U.S. Supreme Court has already backed vaccine mandates in at least three separate instances this year. I would not count on the Supremes ruling that Gov. Abbott’s executive order will prevent OSHA from enforcing this new Emergency Temporary Standard. And you probably don’t want the exorbitant legal expense for your company to be the test case for this political pissing match between the state and the feds anyway.

What are my next steps?

Continue reading New Federal Vaccine Mandate Immediately Affects Employers with 100+ Employees →

How Employers Can Do Everything Right

Discrimination, Documentation, Litigation, Management, Termination, Training, , , ,

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.

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“No Vaccination Passports”: What Does Abbott Mean?

Documentation, Employee Rights, Medical, Personnel Policies, ,

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? →
Employees and Covid-19

Ten Ways to Get Sued by Employees During a Pandemic

Compensation, Discrimination, Documentation, Employee Rights, Medical, Personnel Policies, Termination, , , , , , , , , ,

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 →

Supreme Court Outlaws Discrimination Against LGBT Employees

Discrimination, Documentation, Employee Rights, Hiring, Personnel Policies, Termination,

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.):

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SBA Finally Provides PPP Forgiveness Guidance

Compensation, Documentation, , ,

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 →