If you employ 50 or more employees (counted by names on a payroll, whether full-time, part-time, owner, etc.), your business is subject to the requirements of the Family and Medical Leave Act, which generally gives employees up to 12 weeks (26 weeks for military family leave) of unpaid leave for pregnancy, the birth or adoption of a child, a serious health condition of the employee or a family member or for leave associated with the call to active duty or the injury of a member of the military. If your business is subject to the FMLA, you must place a poster on your workplace bulletin boards about your employees’ rights under FMLA. A few weeks ago, the Department of Labor changed a little of the language of that poster with regards to military families and airline flight crews. Even if these changes don’t specifically apply to your workplace, if you employ 50 or more employees, you must post the new FMLA poster in your workplace by March 8, 2013. You can find the new poster and print out a free copy of it at: https://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf.
Category Archives: Forms and Policies
Requiring Professionalism from Your Employees
Tiffany rolls her eyes when you give her a task to perform. Chris and Spencer can’t get along and constantly bicker in the workplace. Maggie complains about the unfairness of how work is assigned.
Each of these employees lacks professionalism. While professionalism is hard to define, we all know it when we see it. I call some of these workers “finger-pointers”, some “whiners”, and the rest “brats”, but all of their behavior is immature and difficult to bear in the workplace. Unfortunately, most supervisors will just say that the employee has a “bad attitude” and will be reluctant to coach or encourage better behavior from these employees. Then, when the bad attitude dude is fired, it is difficult for the company to win an unemployment compensation appeal or a discrimination suit because there is rarely a policy in the employee handbook that says, “Thou shalt keep a good attitude at work”.
But every handbook can include a professionalism policy. Your policy could read something like this: Continue reading Requiring Professionalism from Your Employees
Don’t Show a Texas Employee His File
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.
Cupid at Work? Bah humbug!
Reuters published a story today about a CareerBuilders.com survey on workplace romances. Just in time for Valentine’s Day, 40% of American workers admit that they have dated a coworker. Another 10% say there is a coworker they would like to date. Interestingly only 5% of women want to date a coworker while 14% of men do. Can someone say “hostile environment”?
It gets worse: of those who dated a co-worker in the last year, a third of those relationships involved a coworker who was held a more senior position, including 42% that dated their boss. Can you say “quid pro quo sexual harassment”?
I know I should be all starry-eyed about all the wonderful sparks of romance lighting up American workplaces. But my 22 years of law practice always make me fast-forward to the part where the flames of love die and and out of the embers come the EEOC claims.
Workplace romances are fraught with sexual harassment and retaliation risks. If coworkers date and then break up, the gossip, name-calling, sexual jokes and scorn can easily be twisted into a claim that the workplace has become a hostile environment based on gender.
If a boss dates a subordinate, it gets even messier. The claim can become quid pro quo (loosely translated “this for that”), meaning that the subordinate may say that she was passed over for a raise or promotion or even fired because she wouldn’t give the boss what he used to get and still wants. Quid pro quo cases involving a tangible job detriment, such as a demotion, are the worst kinds of sexual harassment cases for an employer to try to defend.
Many employers are hesitant to get involved in their workers “private” lives. If it is developing in your workplace, it is hardly private. You may need a written policy to establish clear boundaries between business and personal interactions. It can include:
- Instruction to keep interactions at work professional (no PDA, no long personal exchanges);
- Requirement of prompt disclosure of a developing relationship, particularly if it involves a supervisor;
- Removal of management authority from anyone over an employee involved in a personal relationship;
- Requirement that the dating couple work with management to find an acceptable solution to any problems that arise, such as complaints of favoritism;
- Requirement to accept transfers, changes in duties, or even voluntary termination of the more senior party if other measures don’t prevent or resolve problems.
- Requirement that the end of any such relationship be reported to human resources so that future actions can be scrutinized for retaliation or harassment.
Sort of takes all the fun out of the romance, doesn’t it? I feel like Scrooge at Christmas, but I’ve seen too many of these relationships go bad and then the company has to pay the price. Better to nip it in the bud, red rosebud, that is, since ’tis the season for overpriced, underdeveloped blooms!
Final Paychecks in Texas
I get lots of questions about final paychecks in Texas, so I thought I would give you a quick review of the Texas Payday Law.
Your employees must receive their final paychecks on the sixth calendar day after they are laid off, discharged, fired or otherwise terminated involuntarily, or on the next regular payday if they voluntarily quit. So if you mail the final paychecks, you must mail them early enough that they are available to your former employees by the deadline.
Do you have to include pay for accrued but unused vacation and/or sick leave in the employee’s final paycheck? Not in Texas. The employer can have a written policy or a standard practice of not paying unused vacation, sick leave or paid time off, or paying them only for employees who leave in good standing (two weeks notice and no disciplinary problems), or paying them to everyone who leaves. Just be consistent and put your policy in writing with distribution to every employee and the Texas Workforce Commission will back you up if a complaint is made.
Can you “hold” an employee’s final paycheck past the sixth day or the next regular payday because he still hasn’t turned in his uniforms, his keys or other company property? In a word, “NO”. Texas law does not allow any holding of paychecks. As an employer, you have an obligation to pay every time, on time.
So what do you as an employer do to make sure that equipment, uniforms, or store inventory don’t disappear when the employee leaves your company? And what if the employee still owes you money for a salary advance?
Long before the employee is terminated, you must get his written permission to make deductions from his final paycheck for items that can be lawfully withheld, such as uniforms, salary advance repayment, personal charges on company accounts, damaged or lost equipment, etc. If you have a wage deduction authorization agreement signed by the employee ahead of time, you may withhold the items enumerated in the agreement from that final paycheck. The Texas Workforce Commission has even drafted a form for you to use, which you can access by clicking here.
If you don’t have a written authorization or if the final paycheck won’t cover all of the amounts owed to you by the employee, you cannot hold his paycheck hostage until you receive repayment. You must send him his final paycheck on time and then turn around and sue him in small claims court to get the amounts owed to you repaid.
If you pay an employee bonuses or commissions, you must have a written agreement with the employee outlining how those bonuses or commissions will be paid if they are collected and due after the employee leaves your employment. A simple written agreement regarding commissions can help you avoid fighting a Payday Law claim with the Texas Workforce Commission which will ensue if your terminated salesperson disagrees with your interpretation of how much he is owed in commissions after he leaves your company.
Employee Acknowledgment Form
If you haven’t discovered the Texas Workforce Commission’s book Especially for Texas Employers, you are missing out on an invaluable and free resource to help you avoid costly legal mistakes in managing your employees. You can get a hard copy of the book at Panhandle Workforce Solutions at 1206 W. 7th Street in Amarillo. There are also offices in Borger, Childress, Dalhart, Dumas, Hereford, Pampa and Tulia.
You can also access this book with all of its wonderful forms online by clicking here. It includes lots of solid advice for employers and suggested personnel policies and forms.
One example of a good form available in Especially for Texas Employers is an acknowledgment of receipt of the employee policies.
Cell Phone Policy
I love my smartphone, which acts as my phone, my calendar, my to do list, my address book, my e-mail server, etc. My clients know that my cell phone is always on and that they can call me anytime of the day or night. I took client calls while on the Washington, D.C. metro system this summer and I returned calls on our last camping trip to New Mexico. For me, a cell phone is an essential tool to serve my clients, who are my bosses.
But for some employees, a personal cell phone may get in the way of doing a good job. For many health care, manufacturing, service and retail workers who don’t need to constantly talk to clients on the phone, or who need to deal with the public in person, a cell phone can be very distracting.
Many employers have started to create written policies to deal with all the issues that arise with cell phones in the workplace, such as the privacy issues that occur with cell phone cameras and recorders. If you as an employer want to address the use of cell phones at your business, here are some items you may want to include in your policy: Continue reading Cell Phone Policy
Salary Advance Form
In Texas and most states, an employer cannot deduct anything (except taxes) from an employee’s paycheck without written authorization from the employee. I often see this rule violated when it comes to salary advances. If you ever want to be repaid for a salary advance, use this or a similar form to get a very clear statement from the employee about your rights to make deductions from his paycheck
Otherwise, just think of your salary advance as a gift! If your employee quit tomorrow, there would be no way to require repayment if you don’t have a written agreement. And you would not be allowed by the Texas Payday Law to withhold what is owed to you from the employee’s final paycheck unless you have a written authorization signed by the employee.
Here is an easy form you can adapt for salary advances: Continue reading Salary Advance Form
Required Employee Posters
For this week’s Friday Form, I thought I would provide you with the links for many of the employee rights notices that you as an employer should have posted in your workplace.
Most of the necessary posters are available free from the agencies that require them, so don’t bother paying money to a commercial vendor for them. The posters change too often to make that a good deal.
Here is where you can find explanations and instructions for downloading almost all the posters required by federal law.
Here is where you can find almost all the posters required of Texas employers in addition to the federal posters.
Failure to post the required notices for your employees to see can cost you as much as $100 per poster per worksite if anyone spots or reports your violation. It is so easy to post these things that there is really no reason not to do so.
Employee Resignation Form
I’m thinking of putting a form or policy online each Friday to help you as a Texas employer. Let me know what you think of that idea by leaving a comment.
Last Friday I posted a written warning form that you can adapt for your Texas business. This week I decided that I would post a written employee resignation form.
It is so important that you get your resigning employees to sign a written resignation. Continue reading Employee Resignation Form