Category Archives: Hiring

How to Hire and Retain During the “Big Quit”

Almost daily, my employer clients are telling me about their inability to hire workers to fill job openings in the Texas Panhandle. This local trend reflects a nationwide problem. The Bureau of Labor Statistics just reported last week that 4.3 million people left their jobs in August 2021, the highest “quits rate” since the BLS started tracking the numbers in 2001.  

Industries that were most affected by this high quits rate in August included hotels, bars, restaurants, retail, manufacturing, construction, healthcare and education. The media has dubbed this as the “Great Resignation” or the snappier “Big Quit”.

We knew this was coming even before the BLS released that report on October 12. Surveys by Microsoft and by the Society for Human Resource Management earlier this year both found that 40% of employees say they have or will quit their jobs in 2021. That’s double the number in 2019, just before the pandemic.

There are lots of reasons why employees are participating in the “Big Quit” and employers are having such a challenging time filling open positions. But the reasons are not solely, or even chiefly, related to government handouts. Ending the federal supplement to unemployment in Texas and other states at the end of June 2021 didn’t create any improvement in employers’ ability to hire. In fact, the recent BLS numbers showed that employees walking away from their jobs markedly increased after the unemployment benefits expired.

Reasons for the Big Quit

The reasons for the Great Resignation seem to be related to what employees discovered about themselves and their jobs during the pandemic:

  • More than four million Americans dropped out of the labor force entirely during the pandemic, particularly women and workers over 55 years old. They had reasons ranging from childcare duties, to early retirement, to concerns about contracting COVID. Sixty-eight percent of workers who told SHRM that they were going to quit their jobs in 2021 said that they decided to make a change during the COVID-19 pandemic. Extended time at home has convinced many workers that they are dissatisfied with their current career and would rather transition to being a stay-at-home parent, pursue a new educational opportunity, look for a better job or retire.
  • A huge wave of Baby Boomers retired, many because of unpaid furloughs during the pandemic. But a year later, even more are retiring, reporting that they have reached the point of exhaustion and will be happier if they leave the workplace altogether, even if it means a less healthy retirement income. The estimate is that 10,000 Boomers retire each day in the US, and because the following generations are smaller, finding and retaining replacements for the Boomers is proving difficult and a long-term problem, projected to continue for the next 10-15 years.
  • Restaurant staff, grocery store employees, delivery drivers, heathcare workers, teachers, retail workers and others reached their breaking points. “Throughout the pandemic, essential workers – often in lower paid positions – have borne the brunt of employers’ decisions. Many were working longer hours on smaller staffs, in positions that required interaction with the public with little to no safety measures put in place by the company and, at least in the US, no guarantee of paid sick leave. It quickly burnt workers out,” concluded a BBC report.
  • Low wages are a hugely motivating factor in the Great Resignation. The federal (and Texas) minimum wage hasn’t increased above $7.25 since 2009, even though the consumer prices have. An item that cost $7.25 in 2009 now costs $9.27 in 2021. Employees who make these minimum wage know that they sink further into poverty every year, and they are running away from low paying jobs as fast as possible.
  • The SHRM survey found that 53% of the people leaving their jobs in 2021 did it for better compensation. Employees who are stressed and in low satisfaction jobs with irregular schedules like food service don’t have to perform that work anymore for the low wages that employers were paying before the Big Quit. “Workers’ wages are rising at the fastest pace in years, due largely to structural shifts in labor markets, talent supply challenges and potential inflation.  Research shows 72% of companies are updating pay and benefits programs in 2021 to address multiple challenges”, according to Forbes.  

This kind of massive reorganization of the labor market happens after world wars and economic recessions. The COVID pandemic has apparently created the same type of seismic shift where it is a seller’s market for employees to demand and receive better employment perks in exchange for agreeing to perform the work.

So what should a Texas Panhandle employer do to improve recruiting of employees for all those open positions in 2021?

Continue reading How to Hire and Retain During the “Big Quit”

Supreme Court Outlaws Discrimination Against LGBT Employees

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

Hiring Focused on Character

I often hear the general perception by business owners and managers that employees under the age of 30 have a lousy work ethic or other character deficiencies. They complain about entry-level employees who aren’t interested in paying their dues and are convinced they are entitled to move into the corner office on the day they are hired. I also hear about inappropriate dress, lack of loyalty and attendance woes among young people. But I know many “kids” under 30 (my 26-year-old son among them) who are incredibly motivated, hard-working, smart and willing to pay their dues.

Throughout my 32 years of practicing employment law full-time, I’ve also heard lots of similar stereotypical complaints about women in the workplace (“they can’t get along with other women—it’s always a cat fight” or “they just quit when they have children”). And sometimes, I have unfortunately been privy to pure misogyny, racism, ageism, and other bigotry when discussing problem employees.

I have a radical observation from more than 30 years of practicing employment law: Character is not generational, racial or gender-specific. I’ve worked with some terrific young employees and some terrible older ones, some unbelievably hard-working women and some slacker men, some brilliant minorities and some completely ignorant WASPs. The real debate is not about an employee’s age, race, gender or any other data point over which the employee has no control, but the employee’s individual character. So I encourage employers to focus on character more and stereotypes less (actually, not at all).

As an employer, I know you want to fill any open position with an employee who will exhibit responsibility, honesty, loyalty, enthusiasm, flexibility, initiative, dependability, civility, judgment and a distinct sense of right and wrong, regardless of their gender, ethnicity, age, or other protected characteristic.

You won’t find nearly as many business books that focus on character instead of generational conflict or the “downfalls” of diversity. The subject of character often sounds old-fashioned and faintly religious.

But all of us have reluctantly dealt with people with poorly-developed values: gossips, drama queens, whiners, liars, cheats, etc. There is no reason to have those kinds of people working for you and it is not illegal to refuse to hire them. But you have to be able to spot poor character in your hiring process to avoid bringing this poison into your workplace.

To hire better employees, first identify the character traits that are most important to you. Think back about what really disappointed or angered you about the personalities of unsuccessful employees in the past. Were they always tardy? Then dependability is very important to you. Did they steal company time by shopping on the internet on the company computer for hours a day? Then honesty and productivity are probably high on your list. Did your former employee pot-stir, pitting employees against one another? Then you are looking for someone who treats everyone with respect and doesn’t enjoy gossip.

Design an employment process that doesn’t just focus on job skills, but also zeroes in on the character traits that matter most to you. Ask open-ended questions about values in the interview, but don’t rely solely on your ability to judge character. No hour-long interview is going to tell you everything about an applicant’s character.

But you can find out some aspects of an applicant’s character if you ask about:

Continue reading Hiring Focused on Character

“Go Back” Comments Are Unlawful in Workplace

Telling a person in America to “go back to where you came from” has been considered racist and bigoted for decades in this country founded and built by immigrants, and if you as an employer allow this sentiment to ever be expressed at your business, you can expect a racial or national origin discrimination lawsuit to quickly follow.

Regardless of how the current occupant of the White House talks, the Equal Employment Opportunity Commission (“EEOC”), which actually investigates and prosecutes discrimination/harassment claims, has long told employers:

Ethnic slurs and other verbal or physical conduct of nationality are illegal if they are severe or pervasive and created an intimidating, hostile or offensive working environment, interfere with work performance, or negatively affect job opportunities. Examples of potentially unlawful conduct includes insults, taunting, or ethnic epithets, such as making fun of a person’s foreign accent or comments like, “Go back to where you came from,” whether made by supervisors or by co-workers.

Facts About Employment Rights of Immigrants Under Federal Anti-Discrimination Laws, U.S. Equal Employment Opportunity Commission.

The EEOC didn’t come up with this guidance on its own. It followed dozens of court opinions that examined cases in which an employee was harassed with statements like, “Go back to Africa” addressed to a black worker or “Go back to where you came from” addressed to an employee who appeared to the bigot to have been born somewhere other than America.

For example, our own conservative Fifth Circuit Court of Appeals ruled in a summary judgment appeal in EEOC v. WC&M Enterprises, Inc., 496 F.3d 396 (5th Cir. 2007) that an employee born in India (“Rafiq”), who happened to be Muslim, was entitled to prove he was harassed in a severe and pervasive way when his coworkers and managers said, “Why don’t you just go back where you came from”, started calling him “Taliban,” after September 11, and repeatedly referred to him as an Arab (he was Indian).

Rafiq was told, “This is America. That’s the way things work over here. This is not the Islamic country where you came from.” Rafiq’s supervisor even put in a written warning that Rafiq was “acting like a Muslim extremist” and said he could no longer work with Rafiq because of his “militant stance”. The Fifth Circuit found that a jury could “easily infer that [the coworkers’ and supervisor’s] actions were taken on account of Rafiq’s religion and national origin.”

One way the company tried to defend itself was by saying that it couldn’t have discriminated against Rafiq on the basis of national origin, since the workers were apparently too clueless to understand the difference between India and Saudi Arabia or whichever other Muslim country they mistakenly believed Rafiq was from. “The fact that the coworker ignorantly used the wrong derogatory ethnic remark toward the plaintiff is inconsequential.” LaRocca v. Precision Motorcars, Inc., 45 F. Supp.2d 762, 770 (D. Neb. 1999). The Fifth Circuit agreed and concluded in Rafiq’s case, “It is enough to show that the complainant was treated differently because of his or her foreign accent, appearance or physical characteristics.”

As the Sixth Circuit Court of Appeals has said, telling someone to “go back to where you came from” is “insensitive, ignorant and bigoted.” Williams v. CSX Transportation Co. Inc., 643 F.3d 502 (6th Cir. 2011). It is your responsibility as an employer to make sure that words to that effect aren’t uttered in your workplace, particularly, but not exclusively, if they are said by anyone in management. “The employer is presumed absolutely liable where harassment is perpetrated by the victim’s supervisor.” Nader v. The Brunalli Construction Co., 2009 WL 724597 (D. Conn. 2002).  

So how do you as an employer assure that this kind of discriminatory and harassing talk isn’t heard in your workplace?

Continue reading “Go Back” Comments Are Unlawful in Workplace

Paid Sick Leave Required in Some Texas Cities

Do you as an employer provide your employees in Texas at least six to eight days of paid sick leave every year? If you have employees who work in Dallas or San Antonio, you are about to be required to do so. You should be immediately adding a paid sick leave policy that complies with municipal ordinances that take effect August 1, 2019 in those two cities.

If you have an employee who works at least 80 hours per year in the city limits of Dallas or San Antonio, the new ordinances require you as the employer (if you employ five or more people anywhere) to provide that employee with one hour of paid sick leave for every 30 hours that the employee works within those city limits. It doesn’t matter if your business isn’t based in one of those cities, just whether your employee performs work there.

Of course, offering this paid sick leave only to your employees who work in San Antonio and Dallas could create workforce animosity and claims of discrimination among your other employees, so employers making changes to their policies need to carefully consider whether a company-wide sick leave policy revision is the smartest move at this point.

Here are the general details of the two municipal paid sick leave ordinances in Dallas and San Antonio. You should ask your employment lawyer to help you include the specifics in your revised written sick leave policy if you have Dallas and San Antonio workers:

  • If you have 15 or more employees, then you must allow your Dallas and San Antonio employees to accrue at least 64 hours of sick leave per year. For smaller employers (5-14 employees employed anywhere), the total amount of paid sick leave required per year is 48 hours.
  • The paid sick leave laws apply to full and part-time employees, so those of you who don’t provide benefits to part-time employees in Dallas and San Antonio will need to revise your policies.
  • These ordinances say that employees can use their paid sick leave as soon as it is accrued. So if you require an initial probationary or orientation period in which paid time off can’t be used, you’ll have to rethink your policy in that regard.
  • This paid sick leave can be used for more than employee’s own mental or physical health problems. The employee can take the paid time off for a family member’s illnesses, any family member’s victimization (such as domestic violence or sexual assault), and for doctor’s appointments for the employee or a family member. “Family member” is defined broadly and includes blood relatives as well as anyone who has such a close association with the employee to be considered family (such as a live-in partner).
  • You have to allow carry over of accrued but unused paid sick leave to the next year if you use the accrual method. However, if you provide all of the paid sick leave the employee will be entitled to at the beginning of the year, then you don’t have to allow carry over (this is also much easier to administer than the accrual method).
  • You can’t retaliate against an employee for using the sick leave he/she is entitled to.
  • Enforcement won’t go into full effect on these ordinances until April 2020, but you should be amending your policies now to comply with the August 1, 2019 effective date.

These ordinances have not been without controversy. The business lobby in Texas is fighting hard against these paid sick leave laws. A similar one in Austin is currently enjoined by a court battle, headed to the Texas Supreme Court, and won’t be taking effect as scheduled. But the court battle will take significant time and the 2019 Texas Legislative session ended last month with the lawmakers failing to pass any bill to standardize these municipal ordinances statewide or prohibit cities from passing them, so there is little chance that Dallas and San Antonio’s laws won’t go into effect in August, even if they are challenged in court later.

Even if you don’t have Dallas and San Antonio employees, I think all Texas employers must consider offering paid sick leave right now. Not only are states and cities all over the country requiring this, but employees are coming to expect this benefit.

Plus such a change can benefit an employer in a time of historically low unemployment in this state. It seems that almost every employer that I represent tells me that he/she can’t hire and keep good help. So shouldn’t you be offering some kind of paid sick leave to improve your hiring and retention? Maybe it would be helpful to adopt a policy that would comply with these city ordinances as part of a more comprehensive review and beefing up of your benefits to attract and retain high-quality employees.

Even Walmart (long regarded as one of America’s worst employers) recognized in 2019 the value of providing its hourly employees with 48 hours of paid sick leave per year in addition to regular paid time off. In fact, Walmart’s new company-wide paid sick leave policy looks surprisingly similar to the ordinances just passed by Dallas and San Antonio. Walmart wasn’t being altruistic, of course. It just made the move to standardize its policies to comply with a nationwide patchwork of new state and municipal laws requiring employers provide paid sick leave.

When an Employee’s Social Security Number is Incorrect (or Fake)

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 number.

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?

  1. 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.
  2. 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.
  3. 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.”
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. 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.
  9. 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.
  10. 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).

Four Steps to Protect Your Company’s Secrets When Employees Leave

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:

  1. 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?
    1. 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?
    2. 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?
    3. Do you prevent employees from downloading company documents onto flash drives or leaving the premises with your files?
    4. 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

Employers Targeted in ICE Raids and Audits

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

What Can I Say? Giving References in Texas

Just when you thought you’d heard the last of Fired Felicia, you get a call from Felicia’s prospective employer, who is diligently checking Felicia’s references. What can you as an employer in Texas legally say about Felicia?

Employment lawyers like me have been telling employers for years to remain close-lipped, giving only dates of employment, job title, and last rate of pay. Safe, but almost deceptive in its reticence. We advise this taciturn approach because of our fear that you will say too much and say something defamatory.

Why do I have that fear? Because in a small city like Amarillo, or really anywhere in West Texas, we spend a lot of time on the other end of the reference spectrum. Instead of reticent, we are gleefully chatty.

Hiring managers around here will pick up the phone, ask for their friend who works at Felicia’s last employer, and find out all about Felicia’s problem pregnancy, Felicia’s attitude problem, or Felicia’s suspected but unconfirmed alcohol dependency. That’s when my head explodes as an employment lawyer who is trying to keep the company out of legal hot water.

The rules of references must be one of the most misunderstood areas of human resources. But in Texas, it really shouldn’t be that hard. Here are some simple guidelines: Continue reading What Can I Say? Giving References in Texas

Best Employment Law Training To Be Offered in Amarillo

One of the best employment law training opportunities for managers, human resources personnel and business owners of your company is happening in Amarillo on September 21, 2018.

The Texas Workforce Commission only offers its Texas Business Conference in Amarillo every few years and I recommend it to my clients as a “not to be missed” event. The cost is only $125 per person and just the written materials you will receive at the one-day conference are worth that.

The TWC’s speakers will cover the following in detail:

  • Wage and Hour Law (which is arguably the most violated business law in the country);
  • Independent Contractors;
  • Policies and Handbooks;
  • Worker’s Compensation: How to Control Costs of an On the Job Injury;
  • Hiring/Employment Law Update; and
  • Unemployment Claims and Appeals.

The great news is that the conference will help you no matter whether you are new to human resources issues or have been dealing with them forever.  I’ve been practicing employment law for 30 years, yet I learn something new every time I attend this conference.

If you would like to sign up for this training event, you can find more information and registration here. I hope I see you there on September 21.