Category Archives: Personnel Policies

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 →

Underpayment of Wages at Local Charity

Compensation, Personnel Policies, , ,

Advo Companies, Inc., a worthy local charity that trains and helps people with developmental disabilities find work, was recently investigated by the United States Department of Labor for underpayment of wages to 134 workers. The company had to repay $52,497 in back wages because, among other mistakes, it miscalculated the special wage rate allowed to be paid to their employees.

I don’t know the facts of this particular DOL investigation, but I know Advo Companies has been providing outstanding vocational services to disabled adults and operating group homes in Amarillo for more than 30 years. I seriously doubt that any of the wage problems discovered by the DOL were intentional underpayments. But Advo’s difficulties provide an example of how a very well-meaning employer can easily run afoul of the notoriously difficult Fair Labor Standards Act (“FLSA”) requirements.

For most employers, the Fair Labor Standards Act “simply” requires payment of minimum wage and overtime if an employee works more than 40 hours in any one workweek. But there are many ways for an employer to unintentionally break this law:

Continue reading Underpayment of Wages at Local Charity →
Policy revision

Your Employee Policy Handbook Needs Revision (Again)

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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) →

New Laws Regarding Pregnant and Nursing Employees

Compensation, Discrimination, Employee Rights, Personnel Policies, , , ,

Every employer with 15 or more names on the payroll needs to understand its obligations under two new federal laws relating to pregnant and nursing employees. With bipartisan support in Congress, the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) were passed last month and take effect almost immediately.

PUMP Act

Nursing mothers received some protections under the Affordable Care Act in 2010 to take breaks at work to nurse their infants or to express milk to be refrigerated and saved for later. Those protections have been expanded and recodified with this new law.

What’s new under the PUMP Act?

  • Employees who are breastfeeding an infant can take advantage of the nursing protections at work for 2 years instead of 1 year allowed under the ACA. The wording in the PUMP Act is ambiguous as to when that two-year protection starts. It says, “for the 2-year period beginning on the date on which the circumstances related to such need arise”. What does that even mean?  My best legal guess is that if an employee nursing a child returns to work three months after the baby is born, then her two-year time period will start running on the date of her return.  But don’t let this ambiguity make you anxious. Employers should be patient and remember that only 35% of US babies are still breastfed at all after they are 12 months old. So many employees will not request this accommodation for two years. If an employee is still taking these breaks when the child is older than two years, call your employment lawyer for advice.
  • Although few employers made this distinction in the past, exempt salaried workers were not covered by the ACA nursing mothers provisions. They now have the same rights to nursing breaks under the PUMP Act as hourly workers had with the ACA. Of course, the challenging matter for employers of trying to figure out how to pay an hourly employee who takes nursing breaks is not an issue for salaried employees, because they are paid the same amount every day regardless of the number of breaks they take.
  • Before an employee complains to the EEOC or otherwise sues the employer over violating the PUMP Act, the employee has to tell the employer about its violation of the PUMP Act and give the employer 10 calendar days to start providing an adequate space and time for the employee to breastfeed or pump. In other words, there is a 10-day grace period for you to get your act together if you have somehow failed to comply with the PUMP Act with a particular employee.

The other provisions of the PUMP Act will be administered identically to the ACA provisions that have been in effect for 12 years, so most employers will have to make few significant changes to comply:

What do you as an employer need to do right now to comply with the PUMP Act?

Continue reading New Laws Regarding Pregnant and Nursing Employees →

Are Texas Businesses Liable for Employee Off-Duty Conduct?

Litigation, Management, Personnel Policies, Uncategorized, , , ,

It’s holiday time and that means that the good cheer at office parties may cause business owners and supervisors to worry if they can be liable for their employees’ off-duty conduct. For example, employers want to know if they have any responsibility when a intoxicated employee leaves the Christmas party and then goes home and assaults his wife.

The Texas Supreme Court first tackled liability for off-duty employee conduct in 2006 in the case of Loram Maintenance of Way, Inc. v. Ianni. The Court was asked to decide whether an employer owes a duty to protect the public from an employee’s wrongful off-duty conduct because the employer knew its employee was drug-impaired and had threatened violence to others.

The Texas Supreme Court found that the employer owed no such duty and therefore wasn’t liable for injuries to the El Paso police officer who was shot by Tingle, the impaired employee, when the officer tried to intervene in the employee’s after-hours domestic dispute.

TEXAS SUPREME COURT OPINION IN LORAM MAINTENANCE

In the Loram Maintenance case, the Texas Supreme Court reviewed involved an employer who put its employees on the road, working 12-hour shifts and traveling with their families, staying at motels paid for by the employer. There was evidence that the supervisor and co-workers used methamphetamine along with Tingle and that the supervisor had actually given Tingle time off to purchase more.

The employer had received reports prior to the incident that Tingle was seen using the drug at work and had threatened one of his wife’s friends with a knife. The day of the incident, while at work, Tingle spoke of attacking his wife. After his shift ended and Tingle had returned to the motel, Tingle began to argue with his wife and threatened her with a gun in a parking lot.

That is when the El Paso police officer intervened and was shot.  He was seriously injured and looked for compensation from the company that employed his assailant.

But the court pointed out in its opinion that the shooting incident didn’t occur until at least one hour after Tingle was already off duty and that there was no evidence that the employer was exercising any control over Tingle at that time. So even the employee was out of town on company business, and the incident happened at lodging provided by the company, and the employee was high (with the acquiescence and possible encouragement of his supervisor), and Tingle had been threatening violence that very day, the employer wasn’t liable. Tingle wasn’t on duty or otherwise under the employer’s control at the time of the shooting, so the company won. 

Therefore, current Texas law is that employers owe the public no duty to act to control the conduct of an off-duty employee. That is good news for employers in Texas who don’t want to be saddled with babysitting their employees’ behavior after work. There are attempts to chip away at this legal standard in Texas (i.e., the large verdict that a jury in Dallas awarded this summer against an employer for an off-duty crime), but no cases have overturned this Texas Supreme Court precedent to date.

EXCEPTION WHEN TAKING CONTROL OF IMPAIRED EMPLOYEES

But there is an exception created by the Texas Supreme Court that is important for employers to understand, particularly when company holiday parties are involved. “We have recognized a limited exception to this rule when an employer exercises control over the injury-causing conduct of its employee, imposing a duty, for example, when an employer sent an obviously intoxicated employee to drive home.” Nabors Drilling, U.S.A, Inc. v. Escoto (Tex. 2009).

That is the key to whether you as an employer will have any liability: whether you are taking any control at the time of the incident and whether it involves an incapacitated employee.

Continue reading Are Texas Businesses Liable for Employee Off-Duty Conduct? →

Vaccine/Testing Mandate Voided by Supreme Court for Businesses with 100+ Employees; Healthcare Workers Mandate Upheld

COVID-19, Medical, Personnel Policies, , , ,

On Thursday, January 13, 2022, the United States Supreme Court completely voided the OSHA Emergency Temporary Standard that required employers with 100+ employees to institute this week a vaccine or testing requirement on its employees. However, the Supremes also upheld the OSHA requirement that any size of healthcare facilities that accepts Medicare or Medicaid payments must vaccinate their workers.

The Large Employer Rule Struck Down

When addressing the OSHA ETS for large employers, the Supreme Court majority stated that the Secretary of Labor had acted too broadly. The six conservative justices ruled that “Applicants are likely to succeed on the merits of their claim that the Secretary lacked authority to impose the mandate. Administrative agencies are creatures of statute. They accordingly possess only the authority that Congress has provided. The Secretary has ordered 84 million Americans to either obtain a COVID–19 vaccine or undergo weekly medical testing at their own expense. This is no “everyday exercise of federal power.”

They went on to emphasize this opinion that “Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly. Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.

Technically, the mandate is “stayed” pending more legal action in the Sixth Circuit and possible writs of certiorari back to the Supreme Court. However, for all practical purposes, large employers can stop their efforts to determine the vaccination status of employees, stop requiring masks of all unvaccinated employees, forget about workplace testing for COVID-19 beginning in February and withdraw the written policies they just put into place.

Healthcare Mandate Gets Approval of Supreme Court

Healthcare facilities, however, have to get into compliance with the CMS mandate. The 5-4 decision states that the Secretary of Health and Human Services does have the power to require vaccinations of healthcare workers (except those with medical or religious exemptions). “Ensuring that  providers take steps to avoid transmitting  a dangerous virus to  their patients is consistent with the fundamental principle of the  medical profession:  first,  do  no  harm.  It  would be the very opposite of efficient and effective  administration for  a facility that is supposed to make people well  to  make them sick with COVID–19.”

There has been a stay pending on this mandate in 26 states, including Texas. However, that stay is no longer effective, and 10 million healthcare workers will have to be fully vaccinated or claim a medical or religious exemption (which may make them ineligible to work) in the next six weeks. Unless Health and Human Services updates their schedule, healthcare facilities that received Medicare or Medicaid payments have until January 22 to get a written vaccination mandate in place. By that date employees either have to have had at least one dose of the vaccine or have submitted a medical or religious exemption request.

By February 28, healthcare employees have to be fully vaccinated or have been granted an exemption. And exemptions don’t mean that the employee can keep working. For example, unvaccinated employees may not be able to be involved in direct patient care. Eventually, that could result in no available work for that employee. Employers should get their employment lawyer involved in the exemption process because it can lead to eventual termination of the exempt employees, which has to be done carefully to avoid discrimination claims.

Texas Employer’s New Year’s Resolutions for 2022

Compensation, Discrimination, Drug Testing, Medical, New Year's Resolutions, Personnel Policies, Sexual Harassment, , , , ,

The time between Christmas and New Year’s Day is a good time for employers to reflect on resolutions for 2022. What can you as an employer do in the new year to make your job easier, be a better employer and avoid legal landmines peppering the workplace landscape?

After more than 30 years of advising companies on employment law issues and as a small business owner myself, I have an awareness of and empathy towards the challenges that you are facing. But sometimes we just have to bite the bullet and make some difficult changes. So here are some suggestions of changes you either have to or should consider making in 2022 because of recent changes to the law or the employment arena.

Prepare for the Vaccine Mandate or Testing Policy (for Employers of 100 or more)

Yep, its back. On Friday, December 17, the Sixth Circuit Court of Appeals lifted the injunction on OSHA’s vaccine or testing mandate. That means that employers with 100 or more employees (“large employers”) are once again required to comply with OSHA Emergency Temporary Standard (“ETS”) that puts employers in the position of either requiring employees to get vaccinated or to undergo weekly testing.

In examining the reasons that OSHA argued in favor of enforcing the ETS, the Sixth Circuit ruled, “It is difficult to imagine what more OSHA could do or rely on to justify its finding that workers face a grave danger in the workplace. It is not appropriate to second-guess that agency determination considering the substantial evidence, including many peer-reviewed scientific studies, on which it relied.” The Sixth Circuit found that the mandate was both constitutional and that OSHA was acting within its statutory authority to enforce occupational health and safety in implementing the mandate.

I’ve already provided an explanation of what the ETS requires of large employers. What has changed since November 4 when I wrote that post is that OSHA has extended the deadlines, but not by much. Here are the current deadlines with which OSHA expects large employers to comply:

  • January 10, 2022:
    • Large employers must require unvaccinated employees to wear masks when indoors in the workplace or when travelling in vehicles with coworkers.
    • Large employers must have a written policy in place notifying employees of their obligation to get vaccinated or undergo weekly supervised COVID-19 testing (not at-home testing).
    • Large employers should have documented each employee’s vaccination status and started accepting paperwork for religious and medical exemptions (which means those employees won’t have to be vaccinated but will have to be tested weekly).
  • February 9, 2022:
    • Employers must start testing unvaccinated employees weekly.
    • OSHA will start enforcing the ETS.

In addition to meeting these deadlines, as a large employer, you still have significant obligations regarding daily recordkeeping, notices to employees, onsite testing and paid time off for vaccines and vaccine side effects, all outlined in the original ETS.  And meeting those obligations by the new deadlines means you are going to be busy for the next few weeks.

The Sixth Circuit’s ruling, which is effective nationwide, has already been appealed to the U.S. Supreme Court. There is still a chance that this ETS will not take effect. However, the Supreme Court has consistently upheld every COVID vaccine mandate with which it has been presented over the last year. The most recent occurrence was on Monday, December 13, when a 6-3 court (conservatives Kavanaugh, Barrett and Roberts voted with the three liberal justices) upheld New York State’s requirement that all health care workers there have to be vaccinated, even though religious exemptions will not even be considered for employees doing direct patient care. In other words, the U.S. Supreme Court refused to overturn a much more uncompromising mandate just last week.

Get Serious About Preventing Sexual Harassment

As of September 1, 2021, Texas now has one of the strictest laws in the country prohibiting sexual harassment. Instead of only affecting employers with at least 15 employees like every other federal and state discrimination law, Texas’ new sexual harassment law not only makes employers with just one employee liable, but also for the first time allows harassed employees to sue supervisors and managers (and company owners) individually for sexual harassment along with the company.

To protect your business, at a bare minimum, you must have a written policy prohibiting sexual harassment in your employee manual. In that policy, you must name a person to whom employees should report the harassment who will take the complaint seriously and get an investigation performed.

Continue reading Texas Employer’s New Year’s Resolutions for 2022 →

New Federal Vaccine Mandate Immediately Affects Employers with 100+ Employees

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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 →

Small Texas Employers Newly Liable for Sexual Harassment

Discrimination, Management, Personnel Policies, 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 →

“No Vaccination Passports”: What Does Abbott Mean?

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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? →