Tag Archives: Federal Employment Law

Lubbock Business Settles Disability Discrimination Claim

Discrimination, Documentation, Medical, , , , ,

A Lubbock auto dealer was accused of disability discrimination and recently settled the claim for $250,000. The Equal Employment Opportunity Commission (“EEOC”) sued Benny Boyd Chevrolet-Chrysler-Dodge-Jeep, Ltd., d/b/a Benny Boyd Lubbock, and Boyd-Lamesa Management, L.C., for discriminating against the dealership manager with multiple sclerosis. Click here for more information.

The manager was hired before his diagnosis with promises of future ownership in the dealership. He managed the dealership successfully for six months before he revealed his disability, according to the EEOC. He was then faced with comments like, “What’s wrong with you? Are you a cripple?” He was also denied the partnership and quit, claiming he was forced to resign.

I am always concerned when my Texas Panhandle business clients don’t believe that employment lawsuits like this can happen to them. I’m sure this Lubbock dealer felt the same way. But there were there were approximately 10,000 charges of discrimination filed in Texas with the EEOC and the Civil Rights division of the Texas Workforce Commission during fiscal year 2014. Around 27% of those charges claimed disability discrimination. It can and does happen to employers here, and some of the cases, like the one in Lubbock, can be very costly.

What can you do to prevent or at least prevail in such suits?  Continue reading Lubbock Business Settles Disability Discrimination Claim →

Employee Free Speech on Facebook

Employee Rights, Forms and Policies, Personnel Policies, Termination, , , ,

Is your employee free to post a Facebook rant about one of your supervisors that says, “Bob is such a nasty M___ F___ don’t know how to talk to people!!! F___ his mother and his entire f___ing family!!! What a loser!!! Vote YES for the UNION!!!”?

Many of my West Texas employers would fire the employee on the spot for that Facebook post.  But if you called an employment attorney, you would be advised against that termination because the National Labor Relations Board (NLRB) just decided last month that the employer involved in this mess had to reinstate the foul-mouthed employee and pay him lost wages.

The NLRB reasoned that the employee’s vulgar rant was “protected, concerted activity” protected by the federal act relating to the formation of unions. The NLRB noted that the harassment policy in the company’s handbook didn’t prohibit vulgar or offensive language, even though that policy was cited as the basis for the discharge. No employee had ever been fired by this employer before for obscene language. In addition, the company was in the middle of an election to decide if the workplace would be unionized.

However, even if your workplace will never be unionized, your actions as an employer can be scrutinized on the basis of employees engaging in “protected, concerted activity” to improve their pay and working conditions. For a summary of the cases that the NLRB has pursued against non-union employers, see the NLRB’s new website dedicated to their enforcement of that law. https://www.nlrb.gov/rights-we-protect/protected-concerted-activity

The NLRB has also been very busy telling non-union employers what can and can’t be in an employee policy manual. On March 18, 2015, the NLRB’s general counsel released a memo concerning those employment policies that the NLRB believes have a “chilling effect” on employees’ rights to engage in protected activities. https://www.nlrb.gov/reports-guidance/general-counsel-memos

Here are precautions you can take as an employer to avoid running afoul of the NLRB or a crafty plaintiffs’ employment lawyer that sues you for your “illegal” handbook policies: Continue reading Employee Free Speech on Facebook →

Accommodating Pregnant Employees

Discrimination, Forms and Policies, Medical, , , ,

Employers often face the question of how to reasonably accommodate pregnant employees. Many of my male (and some of my female) clients panic when they discover that one of their employees is pregnant. They fear that the pregnant employee won’t be able to do the work, that the employee will have some kind of workplace injury or that the employee won’t return to work after maternity leave.

Most employers walk on eggshells around their pregnant employees, even afraid to ask when the baby is due so that the employer can plan for work to get done while the employee is out on maternity leave. Overall, employers are just scared that they will inadvertently do something that will get them sued for pregnancy discrimination.

Their fear is not unfounded. The Equal Employment Opportunity Commission and the courts are taking a careful look at pregnancy discrimination. They want employers to reasonably accommodate the pregnant employee just as you would a disabled employee. You would do this anyway if the expectant mother had any pregnancy complications, such as gestational diabetes.

The only change is that now you would be wise to accommodate an employee who is having a normal, healthy pregnancy, if the employee asks for a reasonable accommodation.

A recent U.S. Supreme Court case held that a plaintiff can establish an initial case of pregnancy discrimination by showing that she is pregnant, that she sought some sort of reasonable accommodation for her condition, that the employer did not accommodate her, and that the employer did accommodate others “similar in their ability or inability to work.”

In other words, if you let other employees work light duty jobs from time to time, you need to allow your pregnant employee the same privilege. If you would allow an employee who has severe back problems to skip the duty of lifting heavy boxes, do the same for a pregnant employee is she asks for that accommodation. If standing at a cash register all day is hard on an expectant mother, offer a stool for her to sit on, just as you would an elderly employee.

Don’t be patronizing and assume that a pregnant employee can’t work or needs an accommodation. Allow her the dignity of working without help if she chooses. But if an accommodation is requested, you should engage the employee in a discussion (“the interactive process”) to determine what help she needs. You can decide together if her request is reasonable or if there are other equally effective options. Work willingly with your employee to help her out for a few months and she will most likely be glad to return after her maternity leave to be a very productive employee.

Here are a few other quick tips for dealing with pregnant employees: Continue reading Accommodating Pregnant Employees →

The DOL’s Database of Investigations on Compensation

Compensation, , , ,

In a recently posted database, the federal Department of Labor (“DOL”) has allowed the public to see the companies who have been investigated for various violations of the laws the DOL enforces, including overtime violations, minimum wage violations and independent contractor violations.

I quickly scanned the records just for 2014-2015. During that time, more than 35 Amarillo businesses were investigated. Some employed just three or four people. Others employed more than 100. But there are some visible trends in the local DOL investigators’ handiwork.

Local preschools were put under the microscope because they often pay their teachers on salary rather than hourly, resulting in frequent Fair Labor Standards Act violations. Amarillo and Canyon hotels are a favorite target, often because they pay housekeeping personnel by the room, rather than by the hour. Amarillo restaurants were repeated targets because of common violations of the tip wage credit, which allows restaurants to include tips in the calculation of whether their employees are making minimum wage or because the restaurant paid employees on salary. Local construction companies, heating and air companies and plumbers showed up on the investigation list probably because their blue-collar workers were not paid overtime correctly, weren’t paid for their travel time, or were put on salary as supervisors when they regularly  performed labor that should have been paid hourly.

Other industries that were affected by the DOL’s local efforts in the last year included home healthcare, landscaping, retail, trucking, medical, automobile service and online companies.

What can you do in your business to assure that you are paying your employees correctly? This is a very complicated area of the law, but here are some quick generalities: Continue reading The DOL’s Database of Investigations on Compensation →

Workplace Romance

Discrimination, Forms and Policies, ,

Since it is Valentine’s Week and I am an employment lawyer, my thoughts naturally turn to all of the ways that workplace romances can disrupt your business.

Don’t think it isn’t happening at your company. Of the almost 1,900 employees who responded to a 2014 office romance survey by Match.com, 56% of workers said they have been in a workplace relationship. Can you say “hostile environment”? It gets worse: of those who dated a co-worker last year, 20% of women and 9% of men said it involved dating a supervisor. Can you say “quid pro quo sexual harassment”?

Workplace romances are fraught with sexual harassment and retaliation risks. Many times the relationship creates opportunities for gossip, name-calling, sexual jokes and scorn. If the couple breaks up, the cold shoulder, the back-biting and the anger can easily be twisted into a claim that the workplace has become a hostile environment based on gender.

If a boss dates a subordinate and then the relationship ends, it gets even messier. The claim can become quid pro quo (loosely translated “this for that”), meaning that the subordinate may say that he or she was passed over for a raise or promotion or even fired because the boss isn’t getting what the boss wants. Quid pro quo cases involving a tangible job detriment, such as a demotion, are the worst kinds of sexual harassment cases for an employer to try to defend.

Many employers are hesitant to get involved in their workers’ “private” lives. If it is developing in your workplace, it is hardly private. If you have at least 15 employees (and are therefore subject to sexual harassment laws), you may need a written policy to establish clear boundaries regarding workplace romances. The policy can include: Continue reading Workplace Romance →

More Businesses Are Now Required to Keep Records of Work-Related Injuries

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As of January 1, 2015, many employers who were previously exempt from the OSHA (Occupational Safety and Health Administration) requirements of tracking work-related injuries, will now have to prepare and maintain records of occupational injuries and illnesses using OSHA 300, 301, and 300A forms. If you have more than 10 employees, you may be one of those employers who has never had to worry about this before but will have to start this recordkeeping at the beginning of the new year.

Any employer of any size must report all work-related fatalities to OSHA within 8 hours. Under the new rule, all employers are also now required to report all work-related in-patient hospitalizations, amputations and loss of an eye within 24 hours to OSHA.

Those extreme situations are the only reporting requirements if you employ 10 or fewer people because you don’t have to worry about keeping injury logs for OSHA. Even if you have more than 10 employees, you do not have to keep the OSHA logs if you are in a “low-hazard industry.” But the definitions of “low-hazard industries” have changed, and that’s why you may have new reporting OSHA recordkeeping requirements.

Because OSHA has revised the regulation and is now using the North American Industry Classification System (NAICS) instead of the Standard Industrial Classification (SIC) to determine which industries fall into the low-hazard category, hundreds of thousands of employers will now be required to keep records that never had to before. It is important that you determine what the NAICS code is for your type of business so that you can tell how you will be affected by this revised rule, if at all.

Some of the business industries that will now have to keep OSHA 300 logs and post their injury records for employees to view include bakeries; automobile dealers; automotive parts, accessories, and tire stores; building material and supplies dealers; specialty food stores; beer, wine, and liquor stores; commercial and industrial machinery and equipment rental and leasing; performing arts companies; museums, historical sites and similar institutions; amusement and recreation industries; and some other personal services industries.

Some businesses that will still be defined as “low hazard” and will not have to keep OSHA records are law offices, insurance brokers, accounting firms, architectural and engineering firms, advertising agencies, schools, doctor and dentist offices, day care facilities, electronic and computer servicing companies, and religious organizations.

For more information and to discover if your industry now has to keep the OSHA records, go to https://www.osha.gov/recordkeeping. Here you can find links to a complete list of all of the business industries that are required to keep injury records, as well as a list of the exempt business industries.

You should also remain careful about terminating any employee who has reported an injury or workplace illness. OSHA prohibits employers from retaliating or discriminating against any employee who has suffered an on-the-job injury.

Employer’s Prompt Actions Defeat Harassment Claim

Discrimination, Employee Rights, Personnel Policies, , , ,

As an employer with at least 15 names on your payroll, you should take any claim of sexual, racial or other illegal harassment seriously and work quickly to determine the validity of the claim, to put a stop to the offending behavior, and to deal with the offender.

The necessity of quick action was confirmed in Williams-Boldware v. Denton County. In that case, the Fifth Circuit Court of Appeals decided that an employer’s “prompt remedial action” stopped the offending behavior, so that the claims of racial harassment and hostile work environment were defeated.

The key word here is “prompt”. In this case, within 24 hours of a racial harassment complaint being made, the supervisor had reported the claim to Human Resources, which began investigating. The co-worker who had made racially inappropriate comments immediately issued a written apology and the employer met with the complainant to discuss the claim, letting her know they took the matter very seriously, and they even asked for her input in deciding the best course of action to take. This included reprimanding the co-worker, requiring him to attend diversity training, and transferring the complainant to another department so there would be no more contact between them.

The best way to prevent racial, sexual, or other illegal harassment from ever becoming an issue is to make sure that your employees are aware of company policies regarding harassment in the workplace. You should have a written policy in place that clearly states what behavior is expected of your employees, what is not tolerated, and what the consequences will be for violating company policy. In addition, you should take serious and immediate steps to investigate and stop the harassment when a complaint is made.

Employers Can’t Prohibit Wage Discussions

Employee Rights, , , ,

Many employers require their employees to sign and abide by the terms of some type of confidentiality agreement, confidentiality clause, or non-disclosure agreement as a condition of employment.  Usually, the intent of such an agreement is to protect sensitive information and prevent such information from being discussed outside of the company.  But employers should carefully consider the language and wording of confidentiality agreements to make sure they are in compliance with the standards set forth by the National Labor Relations Act (NLRA).

While you might think you are well within your rights to require a confidentiality agreement that prohibits an employee from discussing such things as company “financial information” or “personnel information”, the Fifth Circuit of Appeals (which decides federal appeals for cases originating in Texas) ruled in Flex Frac Logistics v. NLRB that such an agreement is unlawful. The ruling applies even to non-unionized companies like yours.

The Fifth Circuit decided that by prohibiting the employee from discussing company financial information and/or personnel information, the employer was infringing upon the employee’s right to discuss and negotiate the terms of their employment, including salary and hours. The NRLA protects activities by employees that would aid in the formation of unions, including free discussion of the employer’s pay practices.

Therefore, if you are contemplating incorporating some type of required confidentiality agreement or non-disclosure agreement into your company policies and procedures, or if you already have an existing confidentiality policy, the terms and conditions should be carefully reviewed to insure compliance with the NLRA.  And keep in mind that the NLRA applies to ALL employers, regardless of whether or not the employer has union employees.  Also, make sure you don’t have any other policies (written or generally understood) or employment agreements that prohibit employees from discussing wages.

Counting Consequences

Benefits, Discrimination, Management,

One of the things I admire most about many of my clients in the Texas Panhandle is their entrepreneurial spirit. Many of them have created and nurtured several businesses to success. But there is a downside to owning many businesses: your employment headaches increase.

For example, if you have one employee who works for two of your businesses, such as a receptionist at your main office, you might be paying that employee out of two business accounts and not realizing that you have overtime obligations to that employee. Your two businesses may be “joint employers” of this receptionist if there are common officers or directors of the companies and/or there are common insurance, pension or payroll systems. If so, you must take the hours that receptionist works at all of your businesses into account when determining whether that employee should be paid overtime for working more than 40 hours in any one workweek.

Another consequence of owning more than one business is that the number of employees working at all of your businesses may need to be combined when deciding whether you have to comply with various federal employment laws, such as Title VII (which goes into effect when you employ 15 employees), the Americans with Disabilities Act (which requires 15 employees), the Age Discrimination in Employment Act (which requires 20 employees), the Family and Medical Leave Act, which requires that you provide up to 12 weeks of unpaid leave to your employees if you have 50 names on the payroll, or the Affordable Care Act, which mandates that employers with 50 or more full-time equivalent employees provide health insurance to their employees beginning in 2015 or face substantial penalties.

The Department of Labor and the EEOC will apply an “integrated employer” test to determine whether separate but related businesses are deemed to be a single entity for counting the number of employees (names on the payroll) to determine whether you are liable for discrimination under Title VII, the ADA, the ADEA or the FMLA. This test looks at four factors: common management of the two companies, interrelation between the operations of the companies, central operation of labor relations and some degree of common ownership or financial control. If your companies are integrated, you need to count names on all of your payrolls to determine if you need to be complying with these federal laws.

The Affordable Care Act counts employees a little differently and combines related companies differently also. The ACA requires that related entities count employees as if they were employed by one business to determine if you employ at least 50 full-time equivalent employees (and remember that the definition of “full-time” under the ACA is 30 hours per week). If your related companies all together employ 50 FTEs or more, you will have to provide your employees with health insurance beginning in 2015 or be ready to pay the penalties imposed on employers who do not comply. The ACA combines into one employer related entities such as parents and their subsidiaries, brother/sister companies where the same five people or entities own the equity in two or more companies, and affiliated service groups such as law firms, accounting firms, civic organizations and temporary staffing companies that are linked by at least some ownership (the statute refers to a 10% threshold) and closely collaborate in the services they provide.

Accurately counting the number of employees you employ when you own more than one business can be much more complicated than it initially appears. But getting that accurate count is essential to operating your businesses legally.

ACA Standard Measurement Periods May Need to Be Set Now

Benefits, Forms and Policies, , ,

If your business employs at least 50 full-time equivalent employees, you know that the Affordable Care Act will penalize you in 2015 if your business does not provide your full-time employees with affordable health insurance. But did you know that the determination of who is a full-time employee may need to start as early as November 1, 2013?

When deciding if an employee works full-time (30 hours per week), the ACA allows employers to set measurement periods during which you keep careful track of an employee’s hours of service (hours actually worked and hours of pay for vacation, sick leave, etc.) and then decide if that particular employee has actually averaged 30 hours per week over that measurement period.

For current employees whose hours fluctuate over and under the 30 per week criterion or whose hours fluctuate over the course of the measurement period (such as construction employees who may work 60 hours per week during the height of a building project and 10 or 20 hours per week when the project slows down), this standard measurement period can be between 3 and 12 months.

The standard measurement period is followed by an administrative period of no more than 3 months, during which the employer can make the calculation and offer the employee insurance if he/she is averaging 30 hours or more per week.

That administrative period is followed by a stability period of at least as long as the standard measurement period, during which the employee must be allowed to stay on health insurance even if he/she drops below the 30-hour per week standard.

Many employers are choosing a standard measurement period that lasts the maximum of 12 months. Then they will need at least a couple of months for their administrative period to make their calculation and get their employees enrolled. For employers who are on an insurance plan that renews with the calendar year, or for those who want to make sure they are completely in compliance with the Affordable Care Act before the employer penalties start in 2015, they would be well-advised to start their standard measurement period on November 1, 2013 and conclude it on October 31, 2014. The administrative period would then take all of November and December 2014. The result would be that all employees who are full-time would be measured and offered health insurance in time for a January 1, 2015 enrollment. The stability period would then run from November 1, 2014 to October 31, 2015, concurrently with the next standard measurement period.

The employer who faces this issue will need a written policy setting out the dates that the employer has chosen for its measurement periods with an explanation of how it works for the employees.