Category Archives: Management

Small Texas Employers Newly Liable for Sexual Harassment

Texas employers who have less than 15 employees are no longer protected from sexual harassment claims under the small employer exception. Senate Bill 45, signed by Governor Abbott on May 30, 2021, changes the standard definition of employer in the Labor Code for sexual harassment complaints from “employs fifteen or more employees” to “employs one or more employees”.

This is a major change for small businesses in Texas. It overturns a long-time affirmative defense that many small businesses have relied on to avoid litigation without really worrying about improving their behavior.

New Texas Sexual Harassment Law

Both the federal discrimination law, Title VII, and the Texas discrimination law, Labor Code chapter 21, have excepted small business from any liability for employment actions taken in whole or in part on the basis of sex, religion, age, disability, etc. While the 15-employees or more exception still applies to all of those other categories for the time being, preventing sexual harassment has received a new treatment by the Texas Legislature and, as of September 1, applies to every Texas employer, regardless of employee headcount.

In addition, Governor Abbott signed a companion bill, House Bill 21, on June 7, 2021, that extends the time for filing a sexual harassment claim under §21.141 from 180 days to 300 days after the last harassing act occurred. So now, any Texas employee claiming that they have been sexually harassed in any workplace will have ten months instead of six months to complain to the Texas Workforce Commission’s Civil Rights Division.

“Sex” includes Sexual Orientation and Gender Identity

Here is an interesting twist to this legislation. Last year, the U.S. Supreme Court ruled that the word “sex” in Title VII’s discrimination prohibitions includes sexual orientation and gender identity. Bostock v. Clayton County, 590 U.S. __ (2020). Recently, a Texas Court of Appeals addressed the issue of whether Bostock applies to Texas Labor Code Chapter 21, which bans discrimination in Texas “because of sex.” Tarrant Cnty Coll. Dist. v. Sims, No. 05-20-00351-CV (Tex. App—Dallas, Mar. 10, 2021).

The state appeals court in Dallas held that, in light of the U.S. Supreme Court’s decision in Bostock, they were compelled to read Chapter 21’s ban on sex discrimination “as prohibiting discrimination based on an individual’s status as a homosexual or transgender person.” It is no stretch to apply the Dallas court’s reasoning to sexual harassment, which is just a type of sex discrimination.

Small Businesses Need New Policies

With that background, even the smallest Texas businesses need to make sure they are not allowing any employee or customer to harass another coworker based on that coworker’s sex, sexual orientation or gender identity. While some courts may rule down the road that is not what the Texas Legislature meant to do in its ultra-conservative 2021 legislative session, you do not want your small business to be the test case on Texas’ new sexual harassment law.

Most small employers do not even have Equal Employment Opportunity language or Sexual Harassment policies in their employee policy manuals. That will have to change before September 1, 2021, when SB 45 goes into effect as Tex. Labor Code §21.141.

The new law only applies to harassment in a small business that occurs after September 1, 2021, so if you are a small business owner, now is the time to clean up your employees’ language and offensive behavior (and your own, if any). 

There are other preventative steps every Texas employer needs to take besides just adding a written policy.

Continue reading Small Texas Employers Newly Liable for Sexual Harassment

How Employers Can Do Everything Right

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

Six Steps for Responding to COVID-positive or COVID-exposed Employees

Almost every day I get a call from a different employer asking how their company should respond to the news that an employee is either symptomatic, COVID-positive or has had direct exposure to a person who has the virus. Now that the coronavirus is spreading through community contact rather than just in certain workplace hot spots like the meatpacking plants, many more employers are experiencing the workplace dilemmas caused by ill or exposed employees.

What are the recommended steps that a company needs to take to respond well to that employee and to keep its other employees safe?

Continue reading Six Steps for Responding to COVID-positive or COVID-exposed Employees

Texas Employer Requirements for the “Great Reopening”

Governor Greg Abbott is allowing retail businesses to reopen for curbside and home delivery on Friday, April 24, and is talking about allowing many other businesses, like hair salons, to reopen soon. But Texas employers should know that there are many requirements to protect your employees and customers from COVID-19 that you must address before you reopen.

The Department of State Health Services has condensed the “retail to go” requirements down to two pages here, and employment lawyers like me expect that similar precautions will be required as other businesses start to serve customers again.

The first decision an employer in the Texas Panhandle must face is whether to reopen at all. Gov. Abbott specifically said on Wednesday, April 22, in radio interviews, “there are some counties where the coronavirus outbreak is still progressing too rapidly, and they may not be able to fully participate in the initial phase of reopening until they get the spread of the coronavirus in their county under control.” Guess which counties he specifically named? Moore, Potter and Randall. Yes, friends, we are now a hot spot in Amarillo. The virus is not “under control” here, according to our governor.

Our area is seeing the kind of spike in COVID-19 cases that should make you at least carefully consider waiting to reopen. However, if you decide that economically you must open your retail business for curbside and delivery, or another business once allowed, here are the minimum requirements for employers, according to the DHSH guidance regarding the Texas Retail to Go Order:

Continue reading Texas Employer Requirements for the “Great Reopening”

“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

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.

Employee Handbook Policies You Can and Cannot Legally Include

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

Five Tips for Hiring Teenagers

Summer is coming, and you may be thinking about employing some teenagers. Here’s some lawyerly advice: proceed with caution. Employing teens requires you as an employer to foresee potential problems and correct them very early.

Here are five tips for hiring teens:

1. Safety: You have to be much more safety-conscious when you employ teens. In 2014, workers ages 15-19 had more than twice as many injuries that sent them to the emergency room than employees over age 25.

Your company has a legal duty, according to OSHA, to provide a safe working environment for all employees, which means you need to engage in extensive safety training with new teen employees. Cover the most common workplace hazards and injuries such as slips, trips and falls, chemical exposure, burns and cuts, eye injuries, machinery malfunctions, and strains and sprains, as well as any known hazards specific to your workplace.

Remember that teenagers are often uncomfortable acknowledging their ignorance or inexperience, so they may not ask questions that would indicate that they don’t clearly comprehend your training or instructions. They also may not learn without extensive repetition of the rules. Don’t assume that stating a safety rule one time is going to sufficiently train a teen worker.

2. Sexual Harassment: Many recent Equal Employment Opportunity Commission enforcement actions have shown that teenagers are very vulnerable when it comes to sexual harassment. They need as much if not more training than your more mature employees in how to recognize, prevent and report harassment, even if the job is not considered long term for that teen. Continue reading Five Tips for Hiring Teenagers

Hook Ups and Break Ups in the Workplace

More than one-third of American employees have dated a coworker, according to Harris Polls’ latest annual survey for Career Builder, so as an employer, you are going to be inevitably faced with the problems that coworker hook ups and break ups can cause in your workplace.

In the beginning of a workplace romance, it is important for employers to find out about the relationship and set the ground rules before things get messy. You can adopt a written policy that requires employees to notify the company when they “start dating”, although defining that is pretty difficult. Nowadays, does “dating’ mean they’ve had the first date, the second hook up, or just that one of them has changed his or her relationship status on Facebook?

Some employees are not going to readily tell you that a relationship has started. The Career Builder survey shows that 25% of the relationships at work involved a married coworker. So those people will probably stay quiet. However, the study also showed that 37% of employees thought they had to keep their office romance a secret at work.

As the employer, you can’t stay in the dark, so you need to assure your employees that you have to know and that you will work with them to help everyone adjust to the new coworker relationship.

Once you know about the new couple, you have to communicate your expectations to them. You can do this by written policy, a specific “love contract” that the new couple signs, or by verbal coaching, although something in writing is always preferred by your employment lawyer.

You have to address the end of the relationship in the beginning. While about 31% of workplace romances lead to marriage, the Career Builder survey says, that leaves 69% that result in a break up and the bitterness that a soured romance can cause in your workplace. Break ups can even cause good employees to leave your company (6% leave, according to that study).

Anticipating that greater than two-thirds of the dating relationships between your employees will eventually end, what are the necessary ground rules of hook ups and break ups that an employer should impose? Continue reading Hook Ups and Break Ups in the Workplace

Holiday Party Precautions

The holiday season is upon us and as employers, many of you will celebrate in that great American tradition: you will throw a big Christmas party for your employees, serve them alcohol and then turn them loose on an unsuspecting public.

Consider what could happen while the booze is freely flowing at your company holiday celebration: the alcohol emboldens a potential sexual harasser and he becomes an actual harasser of one of your staff, or a conflict between employees is fueled by alcohol and an actual physical confrontation erupt.

Another likely scenario is that your inebriated assistant gets into a car after you bought drinks at the holiday happy hour and runs down a pedestrian.

Whether the pedestrian could win a lawsuit is debatable. Back in 1987, the Texas Supreme Court said, “The risk and likelihood of injury from serving alcohol to an intoxicated person whom the licensee knows will probably drive a car is as readily foreseen as injury resulting from setting loose a live rattlesnake in a shopping mall.”

The general rule in Texas is, however, that a social host doesn’t incur liability for serving alcohol to a guest.  However, a plaintiffs’ lawyer would be happy to create new case law with a suit against an employer for encouraging an employee to get drunk at a company function and then taking no steps to protect the public from that employee on the way home.

You don’t want to be the one to provide the courts with the test case to see if an employer is responsible for its intoxicated employees. Even if you win at trial, you will lose the tens of thousands of dollars it costs to have an attorney defend the suit, you will waste valuable production time while in depositions or trial, and you and your employees will suffer a demoralizing emotional blow.

You also should be concerned about the effect that hosting a big drunken blow out will have on your ability to enforce your drug and alcohol policies at the office. This kind of inconsistency does not engender respect for you in your employees.

For the same reason, as the boss, you should watch your own drinking and behavior at any company function.

Your best decision is to honor your employees during the holidays with a party that is nonalcoholic. If you choose to serve alcohol, take a few reasonable precautions: Continue reading Holiday Party Precautions