Tag Archives: Texas Employment Law

Firing without Fear

Termination, , , , ,

Many Texas business owners and managers that I know are extremely authoritative and competent until it comes to firing an employee. Then the most confident bosses become fearful. Getting sued by an employee scares them and rightfully so. But times are tough economically and you may have to terminate some employees just to keep your business afloat. So how do you fire without fear of the legal fallout?

A “good” termination doesn’t happen overnight. I have often advised employers that even though quick, decisive action is needed, the employer may need as long as six months to fire someone if the employer hasn’t been diligent about policy-making, documentation and training before then. So before you can fire without fear, here are some preliminary steps:

  1. Make sure you have a great employee policy manual that is up to date and makes clear your expectations of all employees. Policies that clearly prohibit illegal harassment, discrimination, drugs, Internet pornography and violence, as well as strict procedures for reporting violations of these policies, can dramatically reduce your exposure in lawsuits.
  2. Training of your supervisors is essential to firing without fear. Day to day careless comments made by a first line supervisor often comprise the most damaging evidence in an employee lawsuit. Make it clear through training of every person with any supervisory authority that throwing an “Over the Hill” birthday party can indicate age discrimination, compliments about a woman’s clothes can be twisted into a sexual harassment complaint and grumbling about an employee’s reluctance to work on a Sunday can be perceived as religious discrimination. The behavior required of supervisors nowadays often defies common sense and human nature, so training is the only sure-fire way to know that your supervisors will not say or do something that the company will come to regret after a termination.
  3. Regular performance evaluations that honestly identify an employee’s short-comings are essential to a “good” termination for poor performance. No one should be surprised that he is being fired because at least a couple of prior poor performance reviews should have preceded the termination.
  4. Don’t fire anyone unless for disciplinary violations such as absenteeism unless you have warned him in writing at least a couple of times that his behavior is unacceptable. Those written warnings should include a plan for improvement and a statement that if his actions do not improve, he will be “subject to disciplinary action, up to and including termination.”
  5. Call your employment lawyer before you fire the employee. Your attorney will probably want discuss the employee’s entire employment to identify all the possible red flags that this particular employee’s record could wave. (Click here for a checklist for termination red flags when a Texas employee is involved.) Be prepared to send your lawyer your policy manual, the supervisory training records and the employee’s file for review. The lawyer may want also to talk to the employee’s direct supervisors to gauge any exposure there before advising you as to the wisdom of a job termination.
  6. Write a termination memo to give to the employee. It should briefly set out the policy violations that resulted in the employee’s job termination. This memo may be repeatedly scrutinized by the employee, her lawyers, the Texas Workforce Commission, the Equal Employment Opportunity Commission and even a jury, so it must be worded carefully. However, don’t skip this step out of fear. The memo will prevent the “he said, she said” exaggerations if litigation does ensue and keep everybody focused on the nondiscriminatory reasons that the firing occurred.
  7. Terminate the employee when you are calm and well-rested and you have another trusted manager available to be a witness. Make the meeting brief. Just hand the employee the termination memo and ask if she has any questions. Stand firm on your decision and don’t argue with the employee. Assure the employee that she can return to gather her belongings at a mutually agreeable time (don’t just give her ten minutes to pack up her belongings and then march her out under armed guard). Let her leave with some dignity and wish her well.

Brief Updates

Attendence, Compensation, Discrimination, Hiring,

The Department of Labor has released new notification forms to be used with Family and Medical Leave. If you have more than 50 employees (names on the payroll, whether full or part time), you should have an FMLA policy in your handbook and the FMLA poster on your employee bulletin board. Once an employee has requested any absence from work that might qualify as family or medical leave, then it is up to the employer to notify the employee of the employee’s eligibility for federally mandated family and medical leave, to ask for medical certification of the condition necessitating the leave and to make a final determination of eligibility. Also the employer must provide leave to military families under certain circumstances. The necessary forms to use for all of these determinations are available on the Department of Labor’s website, which you can access by clicking here.

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The wage discrimination laws that I discussed in my January 6 blog post were unsurprisingly passed by the U. S. House of Representatives last week. If they clear the Senate, you can be assured that President Obama will promptly sign them. As I stated in that post, you can get ready for this law by deleting any policy still in your employee manual that prohibits employees from discussing their salaries. You can also review the salaries of any employees performing the same jobs and make sure that you have a rock-solid (meaning something in writing from the time the salary was determined) explanation relating to tenure or extra educational or licensing qualifications to explain why a male employee is making more than a female employee.

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The Texas Legislature started its biennial circus last week in Austin. Once the drama of the Texas Speaker’s race subsided, it was time to look at the proposed legislation that could affect employers. Some of the ones I will be watching include a bill to require all employers to pay an employee her regular wages while she serves on jury duty, lots of bills penalizing employers who don’t carry worker’s compensation insurance, and family leave bills to allow parents time off to attend school activities involving their children. If any of these or other employment-related bills pass during this legislative session, I’ll keep you posted.

* * *

Somehow, the last tidbit on giving time off to parents for school activities reminded me of this joke about an employer’s reply to an employee’s request for time off:

“So you want a day off? Let’s take a look at what you are asking for!

There are 365 days this year.

There are 52 weeks per year in which you already have 2 days off per week, leaving 261 days available for work.

Since you spend 16 hours each day away from work, you have used up 170 days, leaving only 91 days available.

You spend 30 minutes each day on coffee break. That accounts for 23 days each year, leaving only 68 days available.

With a one hour lunch period each day, you have used up another 46 days, leaving only 22 days available for work.

You normally spend 2 days per year on sick leave. This leaves you only 20 days available for work.

We are off for 5 holidays per year, so your available working time is down to 15 days.

We generously give you 14 days vacation per year which leaves only one day available for work and I’ll be damned if you’re going to take that day off!”

Smoking as a Hiring Disqualification

Discrimination, Hiring,

The latest employment controversy in Amarillo is Baptist St. Anthony hospital’s new policy of refusing to hire new employees whose pre-employment drug test shows the presence of nicotine. BSA is straightforward about its refusal to hire any new smokers for its non-smoking campus, in part because its sole mission is healthcare. Click here to read the original story from the Amarillo Globe-News. From the number of comments this story has generated on the Globe-News website, the KVII website and the letters to the editor it appears that many people have strong opinions on this subject, many believing that BSA’s policy is discriminatory.

The advantages of the policy for BSA are obvious: adherence to its mission of promoting health, improved morale of persons bothered by the smell of smoke, less absenteeism and eventually decreased health insurance premiums and claims. While the policy may also shrink the pool of qualified job applicants, I would bet that in the current economic crisis BSA is not too concerned about that problem.

But can BSA legally enforce this policy? In the Globe-News story, I was quoted as saying that there is no federal or state discrimination law that is violated by BSA’s new policy. I stand by that quote. Jeff Blackburn, another local attorney who tends to take the employee’s side of things, apparently disagrees with me and says that it is a violation of a person’s civil rights to deny a smoker employment. Click here for his comments on KVII TV’s website. I don’t know of any Texas or federal law that supports Jeff’s argument, so Jeff and I will just have to agree to disagree on this point. It might be different if smoking were like race or age, a protected characteristic that you can’t change and which should not put you at an employment disadvantage. However, smoking is a choice, and one of the consequences of that choice now will be that you cannot be hired at BSA.

Other states handle this issue differently.

According to the National Workrights Institute, 30 states and the District of Columbia currently have some form of smokers’ rights laws on the books. These so-called “lifestyle antidiscrimination” laws protect employees and applicants from discipline or other adverse employment actions either specifically because they smoke or generally because the persons use a lawful product, such as tobacco, outside of work.

Legal Trends: Smelling Smoke, HR Magazine (December 2006).

Since there is no lifestyle antidiscrimination law on the books in Texas and since Texas courts generally uphold the “at will” employment rights of businesses to fire someone for good reason, bad reason or no reason at all, I think Texas courts would support BSA on this one. Texas employers, in my opinion, are free to screen for nicotine just like any other drug at the pre-employment stage and free to refuse to hire anyone who fails that drug test.

I am interested in your opinion on this matter, so feel free to click the word “comment” below and tell me what you think.

Employer’s Ten Commandments

Management,

If you are a Texas employer, you may be wondering whatever happened to the concept of employment at will, where you could hire, discipline and fire an employee for a good reason, a bad reason, or no reason at all. You are worried that the pat on the back that you once gave for encouragement is now considered sexual harassment. You may feel like you are fighting a workplace war and you seem to be losing.

You have good reason to be worried. Jury Verdict Research reports that the median discrimination verdict in the United States was $252,000 in 2007. In 2008, we saw the largest single plaintiff employment law verdict ever–$46.6 million awarded to a supervisor who refused to fire three employees in their 60s and was then fired himself. With the economy in the toilet, more employees will lose their jobs, which always results in an increase of employment litigation for wrongful termination of some sort.

But the business owners and managers that I talk to everyday as an employment lawyer can’t keep up with the new laws and regulations that they have to follow. They understand that the laws are designed to bring fairness and equality to the jobsite, but unless the laws are merged into some kind of simplified and usable form, they find compliance almost impossible.

How can you run your business without spending all your time on employment issues? These are the ten basic principles that you and your managers need to follow to comply with most employment laws and avoid a costly lawsuit: Continue reading Employer’s Ten Commandments →

You Can’t Ask That!

Hiring,

Here’s a quick list for you to print out and slide under the glass on your desktop. These are the questions that you can’t ask an applicant when you are interviewing them. Okay, you can ask them. Nobody’s stopping you. But you won’t ask them if you are smart, rational, prudent and consider a discrimination lawsuit against you or your company a big waste of your valuable time, money, energy and emotion.

Don’t ask:

  • Where are you from? Where did you grow up? What kind of accent is that? (national origin discrimination)
  • When were you born? When did you graduate from high school? How old are you? What is your birthdate? (age discrimination)
  • Where do you go to church? Do you believe in Jesus? What do you do with your Sundays? (religious discrimination)
  • Are you married? Do you have kids? Where does your husband work? Who takes care of your kids after school? (gender discrimination)
  • Have you ever been arrested? What for? (possible racial discrimination)
  • Are you a U.S. citizen? (national origin discrimination)
  • Have you ever made a worker’s compensation claim? Have you ever been injured on the job? How’s your back? (disability discrimination)
  • Do you belong to a union? Have you ever belonged to a union? Are you sympathetic with union members? (violation of the National Labor Relations Act)
  • Have you ever used illegal drugs? Have you ever had a problem with alcohol? What medications are you on? Do you have any physical or mental impairments? What’s wrong with your arm, leg, hearing, speech, etc.? (disability discrimination)
  • Are you pregnant? Are you planning on having kids? (pregnancy and/or gender discrimination)
  • Have you ever declared bankruptcy? (discrimination under the Bankruptcy Act)
  • What clubs and organizations do you belong to? What causes do you support? (this could reveal illnesses, religious beliefs, family issues, marital status, race and other grounds on which you could be accused of discriminating)
  • Is English your first language? Do you know that we have an English-only policy? (national origin discrimination)
  • Do you have elderly parents or an illness in the family that would take you away from work? (disability discrimination)

If this seems like a whole bunch of rules to remember, try focusing on this one rule: If your question isn’t related to how the applicant could perform the job, don’t ask it.

What Can You Say About a Former Employee?

Termination

So you fired an employee because you smelled alcohol on his breath right before he jumped into the cab of a company delivery truck. You let your assistant go because she was late for work at least two days per week and was recalcitrant when confronted.  You found your salesman so abrasive and arrogant that you couldn’t stand him and just eliminated his job one day.

If you are a Texas employer, what do you say about these and other former employees when their prospective employer calls for a reference? If you have attended any human resources management seminars in the last 10 years, you have been told to “say nothing”. Give out the dates of employment and salary, but no specifics on the employee is the frequent advice of employment lawyers.

I understand. I often say that too when I realize that explaining the nuances of giving out references takes too long and will probably be misinterpreted by my audience. But for this blog I am going to try to take off your straitjacket and tell you as a Texas employer how to give out informative references in a way that will give you a good chance of avoiding legal trouble: Continue reading What Can You Say About a Former Employee? →

Policy Manual Blunders

Personnel Policies,

Like all good employment lawyers, I encourage my clients to have an employee policy manual that outlines, among other things, the company’s expectations regarding employee performance, explaining the available benefits, setting guidelines for using the company technology and prohibiting harassment, violence and drug abuse.

I regularly draft new policy manuals for my clients or review and revise their old manuals. There are several serious blunders I often run across in the employee handbooks I review. If you are a business owner or supervisor, pull out your handbook now, blow the dust off the top of it and crack it open to see if you have made similar mistakes in your manual: Continue reading Policy Manual Blunders →

Employees Who Lie

Discrimination, Documentation, Termination,

Have you ever discovered that an employee lied about something important at work? For example, what would you do if an employee called in sick on two scheduled workdays and then you found out she had really been in Las Vegas during her sick leave?

The Third U.S. Circuit Court of Appeals ruled that a city’s discharge of a worker for dishonesty about her sick leave was a valid reason for discharge even though she produced a doctor’s note confirming her illness. Hughes v. City of Bethlehem (October 2, 2008). The city suspended her without pay while they investigated her sick leave excuse and confirmed her little gambling jaunt. Since the investigation confirmed the employer’s suspicions of dishonesty, the city terminated her job.

She, of course, sued for everything but the kitchen sink, including gender discrimination, disability discrimination, unlawful retaliation for seeking accommodation under the Americans with Disabilities Act, violation of Family and Medical Leave, and deprivation of procedural due process, since she was employed by a governmental agency.

Fortunately, the Third Circuit was able to see through all the allegations to the main point: Continue reading Employees Who Lie →

What Every Supervisor Must Know

Discrimination, Management, Training,

Most employee lawsuits are caused by the actions of a first-line supervisor. In other words, that woman that you just promoted from cashier to assistant manager is the one most likely to get your company sued by a disgruntled employee or former employee. Why? Because the first-line supervisor has the most day-to-day contact with your employees. And during that contact, the first-line supervisor may make racist comments, forget to accommodate the disabled, show favoritism to those of his/her own religion, or make an employee work “off the clock”.

Remember that your lowest-ranking supervisor still represents “the company” and can make your business liable for discrimination, retaliation, compensation errors and other legal violations.

So from a preventative viewpoint, the selection and training of a new supervisor involves much more than just taking your hardest-working employees and giving them a raise and the keys to the storeroom.  Here are some of the things to consider when promoting an employee to a supervisory role: Continue reading What Every Supervisor Must Know →

Test Your Employment Law Knowledge

Compensation, Discrimination, Personnel Policies,

Just for fun today (if you are like me and have no life!), test your knowledge of federal and Texas employment law. If you manage people in the workplace in Texas, this is the kind of information you should know off the top of your head. Give yourself about 10 minutes to answer these questions, then click on the answer page and see how you did.

  1. What is “employment at will” and why is it important?
  2. True or false: A “contract employee” is someone who works full-time for you but for whom you do not have to pay payroll taxes nor report as an employee.
  3. True of false: To prevent violence in the workplace, you should check your applicant’s criminal arrest record.
  4. Age discrimination claims can be filed by an employee who is ____ years of age or older.
  5. True or false: if an applicant is mentally ill, you don’t have to hire that applicant.
  6. At what age can you make an employee retire?
  7. True or false: The company can be liable if a customer sexually harasses its employee.
  8. How many people does a company have to employ before the Family and Medical Leave Act applies to that company? ______ employees.
  9. What is required to legally deduct anything other than payroll taxes from an employee’s paycheck?
  10. You can hold an employee’s final paycheck until he turns in : (check all that apply)   ____ uniforms; _____ company credit cards; _____ tools and other company equipment; ____ keys to company facilities; _____ all money owed to the company for salary advances, benefits, etc.
  11. How many days do you have to get an employee’s final paycheck to him in Texas if he has been fired?  ____ days.
  12. What is the current minimum wage? $_____ per hour. What will the minimum wage be on July 24, 2009? $ _____ per hour.
  13. True or false: An employer must prove that the employee committed “misconduct” if the employer wants to avoid an award of unemployment benefits to a fired employee.
  14. True or false: An employee who was fired for poor performance (just couldn’t do the job correctly) has committed “misconduct” so that she won’t receive unemployment benefits.
  15. How many employees do you have to have before you are liable under the federal and state discrimination laws, such as the laws prohibiting sexual harassment or disability discrimination? Continue reading Test Your Employment Law Knowledge →