Employing Mentally Disabled Employees

Medical

            It is disconcerting to consider the issues an employer faces with a mentally impaired employee.

            The Americans with Disabilities Act and the Texas Human Rights Act protect employees with mental impairments when they are employed by a company with at least 15 employees. But many employers are unprepared to legally interview, hire, employ and occasionally fire a mentally impaired employee.

            Generally the ADA protects employees who are qualified for the job but whose physical or mental impairments substantially limits major life activities such as concentrating or interacting with others. Employers must reasonably accommodate these disabled individuals if they can perform the essential functions of the job.

            Most employers I work with are willing to give mentally ill employees a fair chance and many mentally impaired employees are performing satisfactorily at all sorts of jobs.

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Recent Employment Law Developments

Employee Rights

            I often use this column space to try to update you on one area of employment law in which a new development has occurred. But employment law is changing so rapidly that rather than explaining any of the latest changes in detail, I just want to alert you this month to several important changes.

            As a business owner or supervisor of employees, you need to seek specific advice, information and/or training on any of these recent employment law developments that affect your workplace.

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2008 New Year’s Resolutions

New Year's Resolutions

            Every year in January I make resolutions. Not for me, but for you: the business owners, the supervisors and anyone else who has to manage employees on a daily basis.

            I spend so much time in my employment law practice trying to bail clients out of trouble with their employees, much of it trouble that could have been avoided in the first place. I would much rather teach you to prevent employee legal issues than have to defend you in court for your management mistakes.

            If you haven’t been sued by one of your employees for sexual harassment, age discrimination, or a workplace injury, consider yourself due. Small business with just 20 employees will see an employee lawsuit at least once every 5 years on average. Larger business will face these types of claims much more often.

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Privacy in the Workplace

Employee Rights, Ethics

            “Relying on the government to protect your privacy is like asking a peeping tom to install your window blinds”. – John Perry Barlow

 

            “I never liked working. To me a job is an invasion of privacy.” – Danny McGoorty

           

            I often encounter people who still believe they have a constitutional right of privacy in this country. Privacy is not addressed in the constitution. And in my opinion, the Patriot Act and the current administration’s domestic wiretapping program has eroded much of whatever small measure of privacy the common law and the courts used to give us.

            Privacy is even scarcer in the American workplace. Private corporations, businesses, stores, sole proprietorships, and other nongovernmental employers can and do invade their employees’ privacy on a daily basis as part of the normal course of business.

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Family and Medical Leave Act Mistakes

Employee Rights, Medical

Although the law was adopted with much political posturing in August 1993, I have rarely mentioned the Family and Medical Leave Act (“FMLA”) in this column over the last ten years that I’ve been writing it for two reasons:

1.    It only affects employers who have 50 or more employees on the payroll; and

2.    It provides only unpaid leave, so very few employees can afford to take the 12 weeks off that the FMLA allows.

But I have decided it is time to readdress the FMLA if for no other reason than to combat the misinformation that seems to exist about it. If you are an employer that is affected by it, then you need a lot more knowledge than I can provide in this column, but this should act as an introduction for you.

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Legal System not the Answer for Employees

Employee Rights

My law office is now located in a beautiful historic home in Amarillo where I share office space with first-rate lawyers like Kevin and Ginger Nelson, Chris Wright and Jeff Voiles.

It is a professional place with lots of advice given to clients on serious legal matters. It is not the kind of place where you would expect me to be charting the phases of the moon.

However, I have noted that the full moon changes the type of calls I receive at the office from potential clients. Normally, I hear from business owners and managers calling for help with employment policy manuals and answers about how to avoid discrimination claims.

During the full moons I get bombarded with calls from employees who believe they have been victimized at work. They all seem to think that an employment lawyer can magically fix their employment problems and make their jobs more pleasant.

Some of the callers are looking for legal loopholes to explain away their own failures at work, like the ones who want to know how to avoid random drug testing or who want to sue their employer when they test positive and are inevitably fired.

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New Laws Affect Employers

Personnel Policies

            Every two years, Texas businesses hold their collective breath and wait to see what kind of new regulations the Texas legislature will pass that place additional burdens on doing business in this state.

            Since the regular session of the 2007 Texas legislature just ended, this is a good time for us to review the new laws that will affect you as an employer. Only a few bills that regulate employers made it through the process to become laws, so you can rest easy until 2009.

            Let’s first look at a few of the bills that did not pass, which should give you many reasons to be thankful. Several bills that would have prohibited you from banning concealed handguns on all of your business property, particularly the parking lot, did not pass.

Although the change to the “castle doctrine”, the law that allows a person to use deadly force to protect himself in his home, received lots of press coverage when the legislature extended the law to include deadly force used to protect a citizen in his vehicle and place of employment, it doesn’t change your company’s right to prohibit employees from carrying weapons. This means that you are still free to regulate your own property and protect your employees from possible violence by enforcing a complete on weapons in the workplace.

            Bills that would have made a person’s sexual orientation a class that must be protected from employment discrimination failed. This will reduce the number of possible discrimination claims that employees could file against your company. Continue reading New Laws Affect Employers →

Hiring Tips

Hiring

           My husband, Rohn, heard a wonderful speaker from West Texas A & M’s career center the other day. She said that most employers spend less than one minute on each application they review. No wonder job seekers need a very eye-catching resume.

            I hope that, as an employer, your initial review of a huge stack of applications is the only part of the hiring process you perform so quickly. Hiring can be fraught with liability dangers for employers with 15 or more employers. Taking your time to “hire right” is just practicing smart legal preventative medicine.

Here are some tips on reducing any employer’s chances of violating employment laws during hiring:

            Have one well-trained manager who does all of your hiring for you. Letting each supervisor do their own interviewing will surely result in one of them asking the wrong question or hiring the wrong candidate because they had a “gut feeling” about the applicant.

            Take the time to draft a job description for the position before you start advertising it. You have to know what duties need to be performed before you try to find the right person to perform them.

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Hiring Teen Workers

Employee Rights, Hiring

Summer is coming and you may be thinking about hiring some teen workers under the age of 18. Here’s some lawyerly advice: Proceed with Caution.

 

There are lots of legal restrictions on hiring teens, which are still considered “child labor” by the Department of Labor. You need to review the basic rules on the Department of Labor website, www.dol.gov, such the limitations on the hours that 14- and 15-year-olds can work:

  • Non-school hours;
  • 3 hours in a school day;
  • 18 hours in a school week;
  • 8 hours on a non-school day;
  • 40 hours on a non-school week; and
  • hours between 7 a.m. and 7 p.m. (except from June 1 through Labor Day, when the evening hours are extended to 9 p.m.)

If you are hiring a 16- or 17- year old, there are no limits on the hours that he can work. However, there are limits on the duties anyone under 18 can perform. He generally cannot work in any occupation considered hazardous, including construction jobs, warehousing jobs, public messenger jobs or jobs that require the use of power-driven machines, such as meat slicers, bakery equipment, power saws, etc.

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2007 New Year’s Resolutions

New Year's Resolutions

             For 10 years, I’ve been writing a column for this paper simplifying the complex legal issues of being an employer in the Panhandle of Texas. Each January, I offer several New Year’s resolutions. Not for me, of course, but resolutions for business owners, supervisors and other employers to change a few bad habits and protect yourselves from employee lawsuits.

            Most of the resolutions I suggest arise from legal issues that my clients have faced all year and questions that come up repeatedly in the corporate training that I do on employment issues.

Some bad employer practices, like poor documentation, have to be addressed every year. Being an optimist, I think that if I keep writing about it, someday you employers will change your ways and start protecting yourselves by writing down the disciplinary issues you discuss with your employees.

One of my clients laughed when I told him this and said, “But my bad habits keep you in business”. While I am always grateful for the work, there really are enough employment problems around to keep me busy without you as an employer repeating avoidable mistakes.

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