Tag Archives: Texas Employment Law

Avoiding Ageism Claims, Part 3

Discrimination, Documentation, Termination,

As I have pointed out in the earlier posts in this series on age discrimination, the demographics of the available workforce are soon going to require you as an employer to recruit and retain older workers. With historically low unemployment rates in the Texas Panhandle, that time may already be upon us.

Many business owners and managers that I work with still seem to believe that at age 65, an employee becomes more of a liability than an asset. I recognize that group health insurance premium rates play a big part in that perception, but there is also an assumption that an older employee’s cognitive and technical skills diminish at that point. That may be true for a few employees, but many senior citizens do not exhibit those losses and remain solid performers. They often demonstrate much more loyalty, commitment, experience and emotional maturity than their younger coworkers.

However, there will come a time when you have had enough of an older worker who is not performing up to your expectations. Then you have to consider terminating that worker’s employment. How do you do this without guaranteeing an age discrimination lawsuit? VERY CAREFULLY! Here are a few tips on firing your oldest workers without your actions backfiring upon you: Continue reading Avoiding Ageism Claims, Part 3 →

Avoiding Ageism Claims, Part 2

Discrimination,

In the previous blog in this series on age discrimination, I pointed out the necessity of employers recruiting and retaining older workers in the future. By 2020, workers over 55 will make up almost one-quarter of the workforce. If you like to hire only young, fresh, cool (and cheap) workers, in the next decade you will find that you don’t have enough people to fill all the jobs in your workplace.

But as you are employing older workers, you have to be careful that you don’t get tripped up by claims of age discrimination. I always tell the corporate and civic groups to whom I am speaking that age discrimination cases scare me more than any other kind of case.

Why? Because the fear of growing old and being considered useless is universal. Every jury member can empathize with the older plaintiff who claims that he was retired against his will to make way for some young “whippersnapper.” Also age discrimination cases are expensive to fight and expensive to lose. According to Jury Verdict Research, age discrimination cases yield the highest dollar amount verdicts of all employment cases.

So every employer should be aware of ways in which you can avoid ageism claims, both now during an economic downturn (when the number or discrimination lawsuits goes up) and as the older worker population grows. First, consider your hiring practices and resist the following mistakes: Continue reading Avoiding Ageism Claims, Part 2 →

Avoiding Ageism Claims, Part 1

Discrimination,

Ten years from now, one quarter of the American workforce will be over 55. Because retiring Baby Boomers will leave a critical shortage of qualified workers, no longer will employers have the luxury of employing “new blood” and “fresh faces” (i.e. young, cheap labor) as employees. The visage of the American workforce will be a little grayer and a little more wrinkled.

Employers will simply have to find a way to satisfy and keep older workers in order to have enough employees to keep American businesses strong. And yet, many employers still mistakenly believe that people should automatically retire at 65 or that older workers will naturally lose their faculties and need to be “put out to pasture” like aging racehorses. Take it from a Baby Boomer: whether realistic or not, we believe that we still have plenty of turns around the track left in us.

One aspect of the graying of the workforce will inevitably be that Boomers, never shy about asserting their rights, are going to be suing their employers who try to force them out of the workforce. Two-thirds of the Boomer respondents in a 2002 AARP survey believed that age discrimination exists, that older workers are always the first to go when there are workforce cuts, and that age 49, when many workers peak in their productivity, is also the average age when workers begin to face age discrimination in their jobs.

So as a business owner or manager, you have to start deciding now how you are going to attract and retain valuable older workers and how you are going to avoid age discrimination claims when you have to get rid of those employees who are no longer able to perform well. I’ll give you some guidance in this series on ageism claims, so please check back at least twice per week for more information on this topic.

Here’s the first tip: Continue reading Avoiding Ageism Claims, Part 1 →

Employees Required to Prevent ID Theft

Personnel Policies, Training

A CVS pharmacy employee threw prescription forms in the dumpster behind the store in Houston. A Radio Shack worker in Corpus Christi dumped customer credit applications. EZPAWNS employees throughout Texas threw away customers’ bank statements. And the Levelland police found more than 4000 customer records in the garbage containers behind Select Physical Therapy. These were not isolated incidents, because according to the Federal Trade Commission, Texas ranks fourth in the nation in identity theft.

The Texas Attorney General, Greg Abbott, was not pleased by these incidents and has started prosecuting these businesses and others under Texas’ new Identity Theft Enforcement Act and other recently-enacted laws to protect people from identity theft. Businesses like yours can be fined between $500 and $50,000 for improperly disposing or disclosing sensitive customer information, such as

  • Credit and debit card numbers
  • Social Security numbers
  • Bank account information
  • Mother’s maiden name or other personal identifying information
  • Tax forms
  • Passwords
  • Dates of Birth
  • Account numbers

These types of information often appear on receipts, applications, bank statements, checks, personnel files, medical forms, and in discarded computers.

What should you do to protect your business from identity theft exposure? As I often say in this blog and in my training presentations to businesses throughout the Panhandle of Texas, as with most legal problems in your business, you have to take four steps to avoid litigation and prosecution for identity theft exposure: Continue reading Employees Required to Prevent ID Theft →

Employee Acknowledgment Form

Forms and Policies, Personnel Policies

If you haven’t discovered the Texas Workforce Commission’s book Especially for Texas Employers, you are missing out on an invaluable and free resource to help you avoid costly legal mistakes in managing your employees. You can get a hard copy of the book at Panhandle Workforce Solutions at 1206 W. 7th Street in Amarillo. There are also offices in Borger, Childress, Dalhart, Dumas, Hereford, Pampa and Tulia.

You can also access this book with all of its wonderful forms online by clicking here. It includes lots of solid advice for employers and suggested personnel policies and forms.

One example of a good form available in Especially for Texas Employers is an acknowledgment of receipt of the employee policies.

Continue reading Employee Acknowledgment Form →

The Myth of Contract Labor

Compensation,

My clients sometimes fall for the myth of “contract labor”, which is about as real as Bigfoot and the Loch Ness monster. The Texas Workforce Commission’s mythbusters explain it this way:

“Contract labor” may be the most widely used misnomer in business today. The issue is really whether a given worker is an employee or an independent contractor. In basic terms, an employee is someone over whose work an employer exercises direction or control and for whom there is extensive wage reporting and tax responsibility. An independent contractor is self-employed, bears responsibility for his or her own taxes and expenses, and is not subject to an employer’s direction and control. The distinction depends upon much more than what the parties call themselves. . . . It is important to note that it does not matter that one or both parties may call their arrangement “contract labor”.

I can’t tell you how many employers I know who still try to claim that an employee is “contract labor”, a “subcontractor” or an “independent contractor”. The IRS and the TWC will very likely see your situation differently . . . even if the employee has signed a contract labor agreement . . . even if your employee agrees to this arrangement . . . even if you’ve always done it this way . . . even if your employee doesn’t work full-time . . . etc.

While there is no easy test, let’s just put it this way: The person performing work for you is your employee. Unless the worker advertises his services in the phone book, works by the job and has lots of other clients besides you, the government is probably going make a finding that he is your employee.

If you really, strongly, firmly believe that your situation is unique and you really do use independent contractors instead of employees, talk to your employment lawyer before deciding that you can get away with not following the tax and employment laws as to any particular worker. Otherwise, get ready for a TWC payroll tax audit, a Department of Labor overtime investigation or an IRS audit. Or maybe all three.

Checking An Applicant’s Past Employers

Hiring

One of the crucial parts of hiring a new employee is calling each past employer that the applicant discloses to find out what kind of employee the applicant has been during his career. It is true that some former employers won’t give out specific information about past employees, mainly because their employment attorneys have advised them to keep quiet. Even if the former employer won’t talk, you still need to document that you made the attempt to investigate to avoid any kind of negligent hiring claim.

However, in many small towns, like those in the Texas Panhandle, you can get a former employer to talk, mainly because you probably attend Rotary with, go to church with, or coach t-ball with the former employer. But even if you know you can find out something about the applicant, what do you want to know? Here are suggested questions to ask about an applicant: Continue reading Checking An Applicant’s Past Employers →

Salary Advance Form

Forms and Policies

In Texas and most states, an employer cannot deduct anything (except taxes) from an employee’s paycheck without written authorization from the employee. I often see this rule violated when it comes to salary advances. If you ever want to be repaid for a salary advance, use this or a similar form to get a very clear statement from the employee about your rights to make deductions from his paycheck

Otherwise, just think of your salary advance as a gift! If your employee quit tomorrow, there would be no way to require repayment if you don’t have a written agreement. And you would not be allowed by the Texas Payday Law to withhold what is owed to you from the employee’s final paycheck unless you have a written authorization signed by the employee.

Here is an easy form you can adapt for salary advances: Continue reading Salary Advance Form →

Required Employee Posters

Discrimination, Employee Rights, Forms and Policies,

For this week’s Friday Form, I thought I would provide you with the links for many of the employee rights notices that you as an employer should have posted in your workplace.

Most of the necessary posters are available free from the agencies that require them, so don’t bother paying money to a commercial vendor for them. The posters change too often to make that a good deal.

Here is where you can find explanations and instructions for downloading almost all the posters required by federal law.

Here is where you can find almost all the posters required of Texas employers in addition to the federal posters.

Failure to post the required notices for your employees to see can cost you as much as $100 per poster per worksite if anyone spots or reports your violation. It is so easy to post these things that there is really no reason not to do so.

Employee Resignation Form

Documentation, Forms and Policies, Termination

I’m thinking of putting a form or policy online each Friday to help you as a Texas employer. Let me know what you think of that idea by leaving a comment.

Last Friday I posted a written warning form that you can adapt for your Texas business. This week I decided that I would post a written employee resignation form.

It is so important that you get your resigning employees to sign a written resignation. Continue reading Employee Resignation Form →