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texas employment rights

VIEWS: 554 PAGES: 61

									EMPLOYEE RIGHTS HANDBOOK

PREPARED BY: THE EARL CARL INSTITUTE FOR LEGAL AND SOCIAL POLICY, INC.

Employee Rights Handbook
INTRODUCTION
The purpose of this handbook is to provide Texas workers with a general overview of the laws relating to employee rights. While this handbook is not meant to serve as legal advice, it will provide you with explanation of the basic laws regarding employee rights in Texas. If you have any questions or desire legal assistance, you should contact an attorney. This handbook was prepared by the Earl Carl Institute for Legal and Social Policy, Inc. The Earl Carl Institute is a non-profit affiliate of the Thurgood Marshall School of Law at Texas Southern University that researches and advocates legal and social policies that impact the urban community.

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TABLE OF CONTENTS
EMPLOYEE HANDBOOK INTRODUCTION……………….2 GENERAL EMPLOYMENT QUESTIONS…………………...5 EMPLOYMENT “AT-WILL”…………………………….7 WORKPLACE BEHAVIOR AND APPEARANCE…………..8 APPROPRIATE DRESS FOR THE WORKPLACE……..9 APPROPRIATE WORKPLACE BEHAVIOR…….……10 PAYDAYS AND HOURLY WAGES…………………………12 PAYDAYS……………………………………………….13 WORKPLACE SAFETY………………………………………16 REPORTING DANGEROUS WORKING CONDITIONS……………………………..17 WORKPLACE INJURIES………………………………17

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EMPLOYMENT DISCRIMINATION………………………..21

DISABLED WORKERS………………………………...23 RIGHTS OF WORKERS OVER THE AGE OF 40…….25 EQUAL-PAY FOR EQUAL-WORK……………………26 SEXUAL HARASSMENT………………………………27 RIGHTS OF PREGNANT WOMEN……………………29 RELIGIOUS BASED DISCRIMINATION……………..30 DISCRIMINATION BASED ON SEXUAL ORIENTATION…………………………………………30 FILING AN EMPLOYMENT DISCRIMINATION CLAIM………………………………………………….……….32 PRIVACY RIGHTS……………………………………………37 DRUG TESTING………………………………….……..38 MEDICAL EXAMS……………………………….…….39

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CREDIT REPORTS……………………………………..40 PERSONAL PHONE CALLS & EMAILS…………...…41 BALANCING YOUR JOB AND FAMILY…………………...42 FAMILY AND MEDICAL LEAVE…………………….43 BREAST FEEDING RIGHTS…………………………...44 PERSONAL LEAVE…………………………………………...46 VACATION TIME………………………………………47 VOTING LEAVE………………………………………..47 UNEMPLOYMENT COMPENSATION……………………..48 GENERAL THINGS TO REMEMBER……………………...55 IMPORTANT PHONE NUMBERS AND EMAIL ADDRESSES……………………………………………..……..56 ACKNOWLEDGMENTS……………………………………...59

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GENERAL EMPLOYMENT QUESTIONS
EMPLOYMENT “AT-WILL”

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GENERAL EMPLOYMENT QUESTIONS
EMPLOYMENT “AT-WILL”
(1) Is an Employer required to hire me? Generally, No. Texas is an employment “at-will” State. This means that employers have great discretion when deciding who to hire and who to terminate. (2) Can my employer fire me without cause? Generally, Yes. If you do not have special protection under federal law, civil service law or by contract, then Texas law permits an employer to fire you without cause. Most Texas employees may be denied employment, denied a promotion or terminated from a job for a good cause, a bad cause, or for no cause. You may not, however, be terminated for a discriminatory reason, such as gender or race. There are situations when an employee may not be terminated without good cause, such as individuals who are members of a Union or who are working under a contractual agreement. The procedures for terminating those types of employees are generally outlined in the company’s employee manual or their employment contract. An employer cannot discriminate against employees who participate in legally-protected activities such as jury duty, military service, or filing a workers’ compensation claim. Be sure to read and understand your employee handbook and grievance process/policy.

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WORKPLACE BEHAVIOR AND APPEARANCE
APPROPRIATE DRESS FOR THE WORKPLACE APPROPRIATE WORKPLACE BEHAVIOR

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WORKPLACE BEHAVIOR and APPEARANCE
APPROPRIATE DRESS FOR THE WORKPLACE
(1) How will I know if my appearance is appropriate for work? A Company may have a Dress Code Policy that outlines the appropriate dress and grooming for its employees. In most circumstances, the dress code policy must apply equally to men and women, but it does not have to be identical. For example, a dress code that allows female employees to wear earrings but not male employees will usually be upheld. A Dress Code Policy may legally state the following: • • • • • Clothing that is too sexually suggestive is not appropriate. Tattoos and body piercing (other than earrings) should not be visible. Hair should be clean, combed and neatly trimmed or arranged. Facial hair and sideburns should be neatly trimmed. Employees are expected, depending on their work situation, to present a professional, businesslike image and attitude when dealing with customers and when representing the company to the public.

(2) Can I be disciplined because of my dress even if my company has no dress code? Yes. Even if your employer has a more casual dress code or no dress code, your appearance should still be neat, and

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appropriate for your working conditions. If you are found to be in violation of the company dress policy, disciplinary action may be taken. This may include termination. (3) So, can an employer restrict me from wearing braids or locks? Yes. An employer has the legal right to restrict the length of your hair and/or your hairstyle, because it is related more closely to the employer’s choice of how to run his/her business.

APPROPRIATE WORKPLACE BEHAVIOR
(1) How will I know what behavior is appropriate for work? A company often outlines certain rules and regulations regarding employee behavior. Generally speaking, employees are expected to have a positive attitude and conduct themselves in a positive manner. Conduct that interferes with operation, or is offensive to customers or co-workers is inappropriate. Acceptable employee conduct includes, but is not limited to the following: 1. Treating all customers, visitors and coworkers courteously; 2. Performing assigned tasks efficiently and in accord with Company standards; 3. Refraining from offensive conduct (examples include fighting and cursing); 4. Reporting to management illegal conduct or potentially violent conduct by coworkers; 5. Cooperating with Company investigations; 6. Complying with all Company safety and security regulations; 10

7. Wearing clothing appropriate for your working conditions; 8. Giving proper advance notice whenever you are unable to work or report to work on time; 9. Eating meals only during breaks and only in designated eating areas. Examples of inappropriate conduct includes, but is not limited to the following: 1. Engaging in or threatening violence; 2. Possessing firearms or other weapons on Company property; 3. Fighting or assaulting a co-worker, guest, or customer 4. Engaging in any form of sexual or other harassment; 5. Reporting to work under the influence of alcohol, or illegal drugs, or using, possessing or selling illegal drugs while on Company premises; 6. Falsifying or altering any Company record, such as an employment application or medical report; 7. Stealing or misusing Company property; 8. Sleeping on the job without authorization; 9. Wearing improper attire or having inappropriate personal appearance; 10. Engaging in sexual acts on Company property. At management’s discretion, any violation of the Company’s policies or any other conduct that is considered to be inappropriate or unsatisfactory may be subject to disciplinary action. Disciplinary action may include verbal or written warnings, or even termination.

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PAYDAYS AND WAGES

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PAYDAYS AND WAGES
(1) What is the difference between wages and salaries? A wage is the payment you receive for your labor or services, usually on an hourly, daily or piecework basis. A salary is a fixed payment, made periodically (weekly, biweekly, monthly, etc.) to you as compensation for your work. (2) Who determines when I will be paid and how much I will be paid? Wages are the compensation owed to you by your employer for work that you have completed. The Texas Employment Commission is a governmental body that handles wage-related issues in Texas. In certain situations they may set paydays. They usually handle claims related to wage disputes.

PAYDAYS:
Employers are required by Federal law to have set paydays. If no payday is designated, the employer’s paydays are to be on the 1st and 15th of each month. (3) If I am fired, when can I expect to be paid? An employer shall pay an employee in full for work already completed within six days after that employee was discharged. An employer shall pay in full an employee who is discharged from employment not later than the sixth day after the date the employee is discharged.

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(4) What is the minimum amount that my employer can pay me? The minimum wage in Texas is $5.15 an hour. Tips may be considered as a part of wages, but the employer must not pay less than $2.13 per hour in direct wages and they must make sure that the amount of tips received is enough to meet the remainder of the minimum wage. (5) What if my employer does not pay me the wages that are owed to me? An employer who fails to pay wages to his employees which are due to them, may have an administrative penalty assessed or may be held criminally liable depending on the seriousness of the offense. An employer may not withhold or deduct any part of an employee’s wages unless the employer is ordered by a court, is authorized by a state or federal law, or has written authorization from an employee. Payment of commissions and bonuses are to be paid in a timely manner according to the terms of the agreement between the employer and employee. (6) Who should I contact if I am not paid the wages that are owed to me? An employee who was not paid wages that were owed to him and were promised to him in writing, may file a wage claim with the Texas Employment Commission. A wage claim must be in writing and must be filed no later than 180 days after the date the wages claimed were due to you. The employee may file the wage claim in person at an

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office of the commission or by mailing the claim to an address designated by the commission. (7) Can I take breaks during my scheduled shift? Wage and hour laws do not guarantee your right to take breaks. However, depending on your job, workplace safety regulations may require your employer to allow regular breaks. If breaks are allowed, whether you get paid for the break depends on the length of the break. Short breaks are generally paid, and breaks that are 30 minutes or more are usually unpaid. If you are required to work during your break, you should be paid. Your employee manual, or your Supervisor will usually outline the rules for taking breaks.

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WORKPLACE SAFETY
REPORTING DANGEROUS WORKING CONDITIONS WORKPLACE INJURIES

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WORKPLACE SAFETY
REPORTING DANGEROUS WORKING CONDITIONS
(1) Who should I contact if there are dangerous conditions at my worksite? There are several laws that were established to promote safety on the worksite in an effort to reduce the number of illnesses, injuries and deaths in workplaces. The Occupational Safety and Health Act (OSHA), requires that employers provide a workplace that is free of dangers that could harm employees. Employees are encouraged to report workplace hazards to their employer. Employers are legally obligated to get rid of all “recognized hazards”, including dangerous equipment, chemicals and airborne pollutants. If the employer does not correct the problem, the employee should contact the nearest OSHA office and file a complaint. To assert an OSHA violation, an employee must prove that their employer knew of a possible hazard and failed to eliminate it. Employers may not fire or discriminate against an employee who reported unsafe conditions to the authorities. WORKPLACE INJURIES (1) What are my rights if I am injured on the job? An employee who is injured on the job may be entitled to compensation. Workers’ Compensation is a state-regulated insurance program that pays medical bills and replaces some lost wages for employees who are injured at work or who have work-related injuries or diseases. The Texas Workers’ Compensation Commission ensures that 17

employers comply with workers’ compensation laws. The commission also administers a benefit delivery system to ensure that employees with job related injuries receive health care and fair and appropriate benefits in a timely and cost effective manner. If you are injured at work in the course of your employment duties, you must notify your employer within 30 days of the incident and file a workers’ compensation claim within a year so that your medical bills will be paid and you will be paid for your lost wages. The forms will be provided by your employer. Once you receive the medical treatment that is required, you must follow the doctor’s orders’ exactly. Noncompliance will cause you to lose the right to your benefits. (2) Does it matter how I was injured? It does not matter how and when you were injured as long as the injury occurred while you were performing a task assigned by your employer; or you were exposed to a chemical/hazard while at the worksite. If you are disabled and your disability is determined to be permanent or your injury results in death, you and your family may be entitled to additional benefits. You may need a lawyer if your injuries are permanent or your worker’s compensation claim is denied. NOTE: You may not sue your employer AND also receive worker’s compensation benefits. (3) Is my employer required to carry worker’s compensation insurance? NO. Under Texas Law, employers are not required to carry workers’ compensation insurance however; they must

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inform you if they do not have any insurance. Under Texas worker’s compensation laws, an employee may sue an employer for injuries caused by an employer’s negligence, (some exceptions are listed below). A worker’s injury does not need to be caused by an accident, such as a slip and fall, or employer negligence, such as dangerous machinery. A worker may be compensated for repetitive stress injuries, including back problems, and for some illnesses, such as lung disease. (4) Are there injuries that are not covered by worker’s compensation? YES. They include, but are not limited to: 1. Injuries suffered while an employee is intoxicated or using illegal drugs; 2. Self inflicted injuries (including starting a fight);. 3. Injuries suffered while a worker was committing a serious crime; 4. Injuries suffered as the result of a worker violating company policy; or, 5. Injuries resulting from an act of God. (5) Are there workers that are not eligible for these benefits? Yes. They include: 1. Independent Contractors 2. Domestic employees in private homes 3. Unpaid volunteers

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(6) What about Social Security Benefits? Social Security benefits are reserved for those workers who are seriously injured. To qualify is not easy. You must prove that you are unable to do any work which would support you financially, and that you expect to be out of work for at least one year. For more information you can access the official website of the United States Social Security Administration at www.ssa.gov or view frequently asked questions regarding Social Security issues on the National Organization of Social Security Claimants’ Representatives at www.nosscr.or/faqind.html.

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EMPLOYMENT DISCRIMINATION
DISABLED WORKERS RIGHTS OF WORKERS OVER THE AGE OF 40 EQUAL-PAY FOR EQUAL-WORK SEXUAL HARASSMENT RIGHTS OF PREGNANT WOMEN RELIGIOUS BASED DISCRIMINATION DISCRIMINATION BASED ON SEXUAL ORIENTATION

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EMPLOYMENT DISCRIMINATION
(1) What is Employment Discrimination? Employment discrimination occurs when an employer treats some employees differently from others because of race, color, age (over 40), sex, pregnancy, nationality, religion or handicap. Title VII of the Civil Rights Act of 1964, as amended, and the Texas Commission on Human Rights Act (TCHRA) are laws that protect workers in Texas from unlawful discrimination. Under these laws it is unlawful for an employer to discriminate against an individual because of race, color, disability, religion, sex, national origin, or age. These individuals are considered to be members of a protected class. An employer may not: 1. Refuse to hire an individual, discharge an individual, or discriminate in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment; 2. Limit, segregate, or classify an employee or applicant for employment in a manner that would deprive or tend to deprive an individual of any employment opportunity or adversely affect in any other manner the status of an employee; 3. Discipline one group (ethnic, racial, religious, etc.) more harshly than members of another group for the same behavior; or 4. Any other policy that directly or indirectly treats one group better than another. This law also applies to Employment Agencies and Labor Organizations. It is unlawful for an employment agency or 22

a labor organization to fail or refuse to refer employment or discriminate in any other manner against an individual because of race, color, disability, religion, sex, national origin or age. A labor organization also may not exclude or expel from membership or refuse to represent an individual because of race, religion, etc.

DISABLED WORKERS
(1) What protections do I have as a disabled worker? The Americans with Disabilities Act (ADA) is a federal statute that protects job applicants and employees who are disabled but are otherwise qualified for a job in terms of skills, experience, training or education. If a person is able to perform the essential functions of a job with the help of certain reasonable accommodations arranged by their employer, but is denied employment on the basis of their disability, they have the right to bring an ADA-based discrimination claim. (2) What type of disabilities are protected under the ADA? A person is disabled if they have a mental of physical impairment which cannot be corrected and that substantially limits one or more of their major life activities. People with correctable physical or mental problems (ex. poor hearing, poor vision, or high blood pressure) are generally not protected under the ADA. Under Texas Law, the term disability does not include: 1. A current condition of addiction to the use of alcohol, a drug, an illegal substance, or a federally controlled substance; or 23

2. A currently communicable disease or infection, including acquired immune deficiency disease (AIDS) or infection with the human immunodeficiency virus (HIV), that constitutes a direct threat to the health or safety of other persons or that makes the affected person unable to perform the duties of the person’s employment. (3) If I am discriminated against because of my disability, how can I prove it? To bring an ADA claim under federal law, a person must prove that the reason they were not hired was because of their disability and that with some help, they could have performed the essential duties of the job. It is discrimination if an employer’s decision not to hire a person is based on bias, ignorance or fear. The same is true under Texas Law. The person bringing the claim must prove that their employer had some knowledge of the alleged disability, that they were otherwise qualified for the position (they could perform all of the essential job functions), and that the decision not to hire or to terminate him was based solely on the disability. (4) Does this law protect me if I am not disabled but someone in my immediate family is? YES. An employer may not deny a job to someone or discriminate against an employee because that person is related to, or associates with a person who has a disability. For example, an employer may not: 1. Refuse to hire someone because that person’s spouse, child or other dependent has a disability, or

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2. Refuse to hire someone because that person’s spouse, child or other dependent has a disability that’s not covered by the health insurance provided by their job or that may cause an increase in healthcare costs.

RIGHTS OF WORKERS OVER THE AGE OF 40
(1) What type of protection does the law provide for older workers? The law provides some protection to older workers who face discrimination in the workforce. The federal Age Discrimination Employment Act (ADEA) states that workers 40 years of age or older cannot be discriminated against in any employment decision because of their age. They also may not be forced to retire unless their skills begin to diminish or age is an essential part of the job. If an older employer is laid-off for no apparent reason, the employer must supply a valid reason for the layoff, which is not related to age. For example, if a company is downsizing and employees are laid-off, there is generally no violation. If however, all of the older employees are laid off and the younger employees remain, that could constitute a violation under the ADEA. An employer may set a minimum and maximum age requirement for peace officers and fire fighters. (2) What must I prove to establish a case for Age Discrimination? Under Texas Law, an employee must show that s/he: • • was discharged; and was a member of the protected class ( 40 years of age or older); and 25

• •

Despite his/her age, s/he was qualified for the position; and was replaced by someone outside of the protected class, or otherwise show that s/he was discharged because of age.

(3) What if I am denied benefits because of my Age? The Federal Older Workers Benefit Protection Act makes it illegal for employers to use an employee’s age as the basis for discrimination in benefits. Older workers may not be laid-off right before their pension rights vest. If an employer offers an employee an incentive plan to encourage early retirement, the employee has the right to negotiate the terms of their departure. If an employer requests an employee sign an agreement-not-to-sue (waiver), the employer must make sure the employee understands the conditions of the agreement and all factors surrounding it. NOTE: An employer may require an employee to retire who is age 65 or older.

EQUAL-PAY FOR EQUAL-WORK
(1) What should if I do if my employer pays me less because of my gender? An employer may not discriminate against an employee based on their gender. The Equal Pay Act protects both women and men from gender based discrimination in pay rates, however, this law is most often applied in situations where women are being paid less than men for doing similar jobs. This law only applies when men and women are doing the same work.

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(2) What must I prove to establish a claim under the Equal Pay Act? To raise a claim under the Equal Pay Act, the employee must show that a male and female employee are working in the same place, are doing the same work and are receiving unequal pay. Furthermore, it must be proven that the difference in gender is the reason for the unequal pay.

SEXUAL HARASSMENT
(1) What is sexual harassment? There is a vast distinction between harassment and sexual harassment. The former is defined as persistent annoyance and/or irritation. Sexual Harassment is defined as repeated unwanted and unwelcome sexual advances, requests for sexual favors, sexually abusive or vulgar language or behavior by a supervisor or one co-worker toward another that creates an intimidating, hostile or offensive work environment. Harassment alone is not actionable, however, sexual harassment is illegal. (2) What must I prove if I am harassed at work? In proving liability, an employer is automatically liable where a supervisor requests sex as a condition of employment; or requests sex in exchange for allowing an employee to keep their job, receive a promotion or a salary increase. Proving hostile work environment may be more challenging. Hostile work environment is a more subtle form of Sexual Harassment. It includes demeaning jokes, explicit photos or threats that interfere with the working environment. It is usually required that the offensive behavior has been reported to management before an employer will be liable. 27

(3) What is Hostile Work Environment Sexual Harassment? Under Texas Law, elements of a “hostile-work environment” in a sexual harassment claim include: 1. The Employee was subject to unwelcome sexual harassment; and 2. The harassment complained of was based upon sex; and 3. The harassment complained of affected a “term, condition, or privilege” of employment; and 4. The employer knew or should have known of the harassment and failed to take action to remedy the situation. (4) What if my supervisor offers me something as exchange for a sexual favor? This is called “quid pro quo” (“I’ll do this, if you do that”) harassment. Elements of “quid pro quo” harassment include: 1. The Employee was subject to unwelcome sexual harassment; and 2. The harassment complained of was based upon sex; and 3. Employee’s submission to unwelcome advances was express or implied condition for receiving job benefits or employee’s refusal to submit to supervisor’s sexual demands resulted in some type of job related retaliation; and 4. The harasser was in fact in a superior employment position.

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(5) What should I do if I feel that I am being sexually harassed? The first step you should consider taking if you feel that you are being harassed is to ask the harasser to stop the offensive behavior. If the verbal requests are ignored, then you should write a letter demanding that the behavior stop and send a copy to their supervisor. If you feel like your safety is threatened or you do not feel comfortable talking to the harasser you should take the appropriate legal steps to protect yourself. As with any other employment violations, one of the most important things an employee can do is to keep a written record of everything, including the specific offensive behavior, the dates of each incident, the names of all parties involved and the names of any witnesses. You should also tell others of the harassment. Furthermore, an employee being harassed should keep track of all work evaluations so that if they are terminated in retaliation for filing the complaint, they will have evidence that their work performance had been satisfactory.

RIGHTS OF PREGNANT WOMEN
(1) What protections do I have if I am pregnant? The law against sex discrimination applies to pregnancy, as well. Under Texas Law, an employer may not discriminate against, deny benefits or deny promotions to a woman because of her desire to start a family. As long as you are able to do the job, an employer may not ask you to resign simply because you are pregnant. A woman affected by pregnancy, childbirth, or a related medical condition shall be treated in the same manner as another individual who is not pregnant but similar in the individual’s ability or 29

inability to work. If you have had the job for at least one year, you may have other rights under the Family and Medical Leave Act.

RELIGIOUS BASED DISCRIMINATION
(1) What if I am discriminated against because of my religion? In Texas, it is illegal to discriminate against an employee because of their religious beliefs, observance or practice. Employers and employees may discuss their religious beliefs with each other, but they may not persist to the point that an employee feels intimidated and the work environment becomes hostile. An employer is required to accommodate the religious needs of employees so long as it does not require great costs to the employer’s business or cause significant inconvenience. A religious corporation, association, society, or educational institution or an educational organization operated, supervised, or controlled in whole or in substantial part by a religious corporation, association, or society may limit its employment or give a preference to members of the same religion.

DISCRIMINATION BASED ON SEXUAL ORIENTATION
(1) Can I be discriminated against because of my sexual orientation? Texas and federal laws do not expressly protect individuals from discrimination based on sexual orientation. However, sex discrimination consisting of same-sex sexual harassment is actionable under Title VII. To support a

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same-sex sexual harassment claim, the employee must prove that the offensive conduct constitutes discrimination because of sex.

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FILING AN EMPLOYMENT DISCRIMINATION CLAIM

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FILING AN EMPLOYMENT DISCRIMINATION CLAIM
If you believe that an employer has discriminated against you because of your gender, race, national origin, age, religion, or because of a disability, you may file a complaint with the Texas Commission on Human Rights or the federal Equal Employment Opportunity Commission (EEOC). If you file with either agency, your complaint is automatically filed with the other agency. In addition, you should also notify your employer in writing of the alleged offense. A charge MUST be filed with EEOC within 180 days from the date of the alleged violation in order to protect the employee’s rights. This 180-day deadline may be extended up to 300 days if the charge is covered by certain state or local anti-discrimination laws. In Texas, evidence of continuing or recurring violations may act to extend the time for filing discrimination claims providing one or more of the acts fall within the statutory time period. When a charge is filed, EEOC notifies the employer within ten days. Charges are given the most attention when the facts support the likelihood that discrimination has occurred. Charges may also be closed at any time if EEOC believes that more investigation will not show that employment discrimination has actually occurred. A person claiming to be harmed by an unlawful employment practice may file a complaint with the Texas Commission on Human Rights. The complaint must be in writing and under oath and it must state:

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1. That an unlawful employment practice has been committed; 2. The facts on which the complaint is based, including the date, place, and circumstances of the alleged unlawful employment practice; and 3. Facts sufficient to enable the commission to identify the person who allegedly committed the unlawful practice. According to the Texas Commission on Human Rights Act (TCHRA), prior to bringing an employment discrimination lawsuit, an employee MUST file a claim with the Texas Commission on Human Rights within 180 days of the alleged unlawful employment practice. Texas courts will not hear the claim if the employee fails to file a grievance with the commission within the 180 days. A complaint filed with the Equal Employment Opportunity Commission and forwarded by the EEOC to the Texas Commission on Human Rights, will satisfy the requirements of the TCHRA. (1) When Can You Take Your Suit to Court? A charging party may file a lawsuit within 90 days after receiving a notice of a "right to sue" from EEOC. Under Title VII and the ADA, a charging party may also request a notice of "right to sue" from EEOC 180 days after the charge was first filed with the Commission, and may then bring suit within 90 days after receiving this notice. After filing the administrative complaint with the EEOC, an employee has two years to bring a lawsuit under the Texas Commission of Human Rights Act.

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(2) What about Retaliation? It is unlawful for an employer, labor union, or employment agency to retaliate (harassment, termination, etc.) against a person who: 1. 2. 3. 4. Opposes a discriminatory practice; Makes or files charges; Files a complaint; or Testifies, assists or participates in any manner in an investigation, proceeding, or hearing.

(3) What remedies are available if discrimination is found? The relief or remedies available for employment discrimination, whether caused by intentional acts or by practices that have a discriminatory effect, may include: 1. Back pay; 2. Hiring; 3. Promotion, 4. Reinstatement; 5. Front pay 6. Reasonable accommodation; or, 7. Other actions that will make an individual "whole" (in the condition s/he would have been but for the discrimination). 8. Payment of attorneys' fees, 9. Payment of expert witness fees, and 10. Payment of court costs. A charge may be filed by mail or in person at the nearest EEOC office. Call 800-669-4000 to find the EEOC office nearest you, or go to their website at http://www.eeoc.gov/. You may contact the Houston District Office by calling

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713-209-3320. You may visit their office at 1919 Smith Street, 7th Floor, Houston, TX 77002. NOTE: The fact that your employment was terminated and someone else was hired to replace you is not sufficient evidence of discrimination. You must provide actual evidence of an unlawful employment practice.

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PRIVACY RIGHTS
DRUG TESTING MEDICAL EXAMS CREDIT REPORTS PERSONAL PHONE CALLS & EMAILS

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PRIVACY RIGHTS
DRUG TESTING
(1) Can my employer test me for drugs and alcohol? Employers generally have the right to test new job applicants for drug and alcohol use providing: 1. The applicant knows that such testing will be part of the screening process for new employees; 2. The employer has already offered the applicant the job, and 3. All applicants for the same job are tested similarly. (2) What if I use drugs occasionally? An employer may fire or refuse to hire an individual who is found in possession of, or currently using any illegal drugs. Under Texas law, an employer may design its own policies and procedures related to drug use. An employer may test his/her employees for drug and alcohol abuse providing s/he has provided each employee with a copy of the policy. (3) What can happen to me if I falsify my drug test results? In addition to not getting the job, or getting fired from your job, you may be punished criminally. In Texas, it is a Class B misdemeanor to knowingly or intentionally use or possess with the intent to use any substance or device designed to falsify drug test results. It is a Class A 38

misdemeanor for a person to possess with the intent to deliver, or manufacture with the intent to deliver a substance of device designed to falsify drug test results. (4) What if I am a recovering drug addict? The Americans with Disabilities Act prohibits employers from discriminating against an employee because of past drug problems. This includes people who no longer use drugs illegally, and individuals who are receiving treatment for a drug addiction or who have successfully recovered from an addiction.

MEDICAL EXAMS
(1) Can I be forced to take a medical exam? Employers are not generally allowed to perform random medical exams. They must identify what conditions they are testing for and get consent to perform the test from the individual before they proceed. (2) What is the purpose of a medical exam? There are three basic conclusions that the medical evaluation is meant to reveal: you are able to work, you are able to work with some restrictions, or you are not able to work. To make sure that you are physically able to perform certain jobs, employers are free to make an employment offer contingent upon the prospective employee passing a medical exam.

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(3) Can my employer share my medical records with others? The medical records of employees are generally required to be kept confidential. The Americans with Disabilities Act (ADA) imposes strict limitations on how employers are to handle the medical records of employees. An employee's medical files must be kept separate from non-medical records and they must be stored in a locked cabinet. Under the ADA employers may: 1. Inform supervisors about the necessary restrictions on an employee’s duties and about necessary accommodations 2. Inform first aid and safety workers about a disability that may require emergency treatment and about specific procedures that are needed if the workplace must be evacuated, and 3. Provide medical information required by government officials and by insurance companies that require a medical exam for health or life insurance. NOTE: Termination for falsification of application can be used to dismiss a Title VII claim

CREDIT REPORTS
(1) Can my employer view my credit records? An employer does have the right to view an employee’s credit history. The Fair Credit Reporting Act requires credit agencies to share your credit information with those who have a legitimate business need for the information: Employers qualify. Employers may use your credit rating

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to evaluate eligibility for “employment, promotion, reassignment or retention.” (2) Can my employer view my credit history without my consent? You have the right to know how and whether a current or perspective employer is evaluating your credit. Generally you must sign a form giving approval to pull your credit report. If an employer denies you employment because of your credit rating, s/he must inform you and provide you with the name of the credit agency that supplied the information. PERSONAL PHONE CALLS & EMAILS (1) May my employer monitor my phone calls? Typically, it is not a good idea to use the company phone or computers for the purpose of making personal phone calls or sending personal e-mails. In general, it is legal for employers to monitor business related telephone conversations to and from their premises. However, under the Electronic Communications Privacy Act (ECPA), employers may not monitor the personal calls of his/her employees without their consent. Employers who claim a right to read an employee’s computer files must show that they have a valid business reason for doing so.

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BALANCING YOUR JOB AND FAMILY
FAMILY AND MEDICAL LEAVE BREAST FEEDING RIGHTS

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BALANCING YOUR JOB AND FAMILY
FAMILY AND MEDICAL LEAVE
(1) Can I take off from work if my children are ill, without being penalized by my employer? Yes. If you have been at your job for at least one year, you may have rights under the Family and Medical Leave Act (FMLA). FMLA is a federal law that is intended to provide protection to workers who have to deal with the demands of a family. Under FMLA, an employee is eligible for up to 12 weeks of unpaid leave a year in order to: 1. Attend the birth or adoption of a child; 2. Care for a child, spouse or parent who is ill; or, 3. Recover from personal illness or the effects of a medical treatment. (2) Can my employer dock my pay because I took time off to care for my family? Yes. Employers may deduct paid benefits, such as vacation and sick leave from the 12 weeks allowed under FMLA. When the employee returns from taking time off, the employer must allow the employee to return to the same or similar position of the one he or she had before and employees are entitled to the same benefits. Employer’s who violate the act by retaliating against those who take advantage of its protections, may be required to pay back pay and damages.

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(3) Can I be written-up for taking time off to care for my family? If you qualify to take family and medical leave, it is against the law for your employer to fire you or discipline you for taking time off. Also, family or medical leave time cannot count against you under your employer’s absenteeism policy. If you are punished for taking time off, you may file a complaint with the Wage & Hour Division of the United States Department of Labor. NOTE: An employer may require documentation, such as a doctor’s note, to support your reason for taking off. You must give your employer at least 30 days advance notice if it is foreseeable that you will to need time off. However, if the leave is unforeseeable, such as a medical emergency, you should notify your employer as soon as of the need for the leave becomes known to you.

BREAST FEEDING RIGHTS
(1) What if I recently had a baby and need to breastfeed? Under the Federal Child Nutrition Act of 1966, businesses are encouraged to be more “mother-friendly” by permitting breast-feeding at work. The typical worksite breast-feeding policy addresses the following: 1. Work schedule flexibility, including scheduling breaks and work patterns to provide time for expression of milk; 2. Providing accessible locations allowing for privacy;

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3. Access nearby to a clean, safe water source and a sink for washing hands and rinsing out any needed breast pumping equipment; and 4. Access to hygienic storage alternatives in the workplace for the mother’s breast milk.

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PERSONAL LEAVE
VACATION TIME VOTING LEAVE

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PERSONAL LEAVE
VACATION TIME
(1) Must my employer offer me paid vacations? No. Employers are not legally obligated to pay employees for vacations. Vacation benefit guidelines may vary with each employer. Therefore, it is legal for an employer to outline a vacation policy that provides vacation time to fulltime employees, but denies the same benefits to part-time employees. An employer may also require that you work a certain amount of hours before determining the amount of paid vacation time you will be awarded.

VOTING LEAVE
The Texas Election Code requires employers to permit employees to miss work with pay to vote. However, if the polls are open for voting for two consecutive hours outside of the employee’s regular working hours, the employer does not have to grant the employee time off from work. If an employer violates this provision of the Texas Election Code it is a Class C misdemeanor.

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UNEMPLOYMENT

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UNEMPLOYMENT COMPENSATION
(1) What is “Unemployment Compensation”? Unemployment benefits were designed to provide financial support to workers when they need it. If you are laid off, while you are looking for work, you may apply for benefits through your local unemployment office. If you apply for benefits and are denied, you will receive a denial letter which will state the reasons why you were denied and give you a time period during which you may appeal the decision. (2) How can Compensation? I qualify for Unemployment

A person is qualified to receive unemployment benefits if they are totally or partially unemployed through no fault of their own. A person is not eligible if they left their last job voluntarily or was discharged for misconduct. A person is unemployed if the employer-employee relationship is terminated and the individual is performing no services and no wages are being paid to him. A person is partially unemployed if he is receiving less than the full amount of work which he would be entitled to receive if the individual was totally employed. (3) How will my benefits be determined? Unemployment benefits are based on what you earned prior to you being laid off or asked to leave. Employers are required to pay a contribution (tax) to the unemployment compensation fund through the Employment Commission. An employer may not deduct any part of that contribution from the wages of any of his/her employees. 49

For an employee to receive unemployment benefits, they must have earned wages for certain periods prior to becoming unemployed. “Benefit wage credits” are those wages used to determine an individual’s rights to benefits. Employers are required to submit a report to the Unemployment Commission that shows the amount of wages that were paid to an employee. Based on the amount of wages reported, the commission will determine your “benefit wages credits.” The more you have made, the more you may be eligible to receive in unemployment if you are ever laid off. An individual is eligible to receive benefits if the individual: 1. Has registered for work at the employment office and has continued to report to the employment office as may be required by the rules of the commission; 2. Has made a claim for benefits; 3. Is able and available* for work; 4. Has benefit wage credits for the individual’s base period; and 5. Participates in re-employment services, such as a job assistance service. NOTE: A person who is available to work does not have any restrictions on his availability. For example, a person who is not able to work hours similar to those worked when he was previously engaged is not available to work and may be denied unemployment benefits.

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(4) May I receive employee benefits if I am not a United States Citizen? If you are not a citizen of the United States, you are an alien. Aliens may not receive benefits unless they are lawfully admitted for permanent residence at the time they were employed or were lawfully present for purposes of performing the services. (5) Under what circumstances can I be disqualified from receiving benefits? An individual is disqualified for benefits if the individual was discharged for misconduct connected with the individual’s last place of employment. The individual will continue to be disqualified until the individual has returned to employment and worked for six weeks or earned wages equal to six times his benefit amount. (6) What qualifies as misconduct? Misconduct includes acts committed with wrongful intent, in bad faith or with a disregard for the employer’s interest. Some examples of misconduct are: a violation of company policy; violation of the law; neglect or mismanagement of your position; and failure to perform your work acceptably, if you are capable of doing so. When the reason for an employee’s discharge is neglect of duties, the neglect must be intentional or must show such carelessness that it indicates a disregard for consequences in order to disqualify him for unemployment benefits. The mere failure to perform tasks to the employer’s satisfaction does not constitute misconduct disqualifying employee from employment benefits.

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(7) What if I voluntarily leave work? An individual is disqualified for benefits if the individual left their last place of employment voluntarily for a reason not related to work. The individual will continue to be disqualified until the individual has returned to employment and worked for six weeks or earned wages equal to six times his benefit amount. (8) What if I was forced to leave work because of an illness? An individual who is available to work may not be disqualified for benefits because his employer would not allow the individual a reasonable amount of time off because of: 1. A medically verified illness of the individual or the individual’s minor child; 2. Injury; 3. Disability; or, 4. Pregnancy (9) What are some other reasons that I may be disqualified for benefits? An individual is disqualified for benefits if without good cause they fail to: 1. Apply for available, suitable work when directed to do so by the commission; 2. Accept suitable work offered to the individual; or,

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3. Return to the individual’s customary selfemployment, if any, when directed to do so by the commission. The individual will continue to be disqualified until the individual has returned to employment and worked for six weeks or earned wages equal to six times his benefit amount. NOTE: Suitable work is considered to be the same or similar work that was performed by an individual at their last place of employment and for equal or comparable wages. (10) What if I stop working because of a Labor Strike? An individual is disqualified for benefits if in a benefit period the individual’s total or partial unemployment is caused by the individual’s voluntary termination of work because of participation in a labor dispute or strike. An individual’s failure or refusal to cross a picket line or refusal for any reason during the continuance of the labor dispute to accept and perform an individual’s customary and available work where the individual is or was last employed constitutes participation and interest in the labor dispute. However, non-striking workmen, who are prevented from going to their jobs during a strike because of threats and fear of violence are justifiably unemployed and will not be denied benefits. Also, a disqualification from benefits does not apply when the employer prevents its employees from working as a result of a lock-out during a labor dispute.

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(11) What if I receive other forms of Payment or Compensation (Remuneration)? An individual is disqualified for unemployment compensation benefits for a benefit period if the individual is receiving other benefits in the form of disability payments (temporary or permanent), governmental or other pension, retirement pay, an annuity, or any other similar form of payments based on previous work performed by the individual attributable to the benefit period. The receipt of Federal Social Security benefits may not reduce the weekly benefit amount. (12) Are there any “good causes” (good reasons) for voluntarily quitting? Some reasons that can be “good cause” for quitting include: 1. Not getting paid wages or overtime; 2. Harassment by supervisors or coworkers (harassment can include stalking, threats of violence, etc—www.twc.state.tx.us); 3. Major changes in your job that makes your job significantly worse; 4. Unsafe working conditions; 5. Unfair discipline; or, 6. Quitting to move with your spouse. NOTE: Before you quit, you must tell your employer about the problem and give the employer a chance to fix it.

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GENERAL THINGS TO REMEMBER
You should always keep a record of your work productivity, incidents on the job, dates, times, and copies of statements members of personnel may have made to you or written reprimands you may have received, for your personal records. This makes it easier to remember later down the road. Always respond to written reprimands by filing a formal typed statement disputing false claims. If there is a place for employee comments make your protest in that section. Always be sure to sign the “acknowledge of receipt” form after receiving written warnings and reprimands, because refusal to do so could be considered insubordination. If you do not agree with the reprimand, sign your name to the acknowledgement to the receipt only and above your signature write in the words “signed under protest”. The National Labor Relations Act gives employees certain protections not covered by the Civil Rights Act of 1964, Age Discrimination, ADA, FMLA or other similar statutes. This act covers employee actions that are considered protected concerted activities. Theses activities included dealing with workplace conditions such as safety, benefits, wages, etc. Employees who protest about these conditions and are disciplined or terminated may have a claim under the NLRA. The Act also gives an employee the right to include a person of their choosing to be present in the room when there is an adverse (negative) action taken against you. Adverse actions are regarded as reprimands and termination. The denial of your request to have that person present would be in violation of the Act.

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IMPORTANT PHONE NUMBERS AND EMAIL ADDRESS

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IMPORTANT PHONE NUMBERS AND EMAIL ADDRESSES
GOVERNMENT ASSISTANCE 1) Equal Employment Opportunity Commission Call: (800) 669-4000 Website: www.eeoc.gov 2) National Institute for Occupational Safety & Health Call: (800) 356-0077 Website: www.cdc.gov/niosh/homepage.html 3) Occupational Safety and Health Administration Call: (800) 321-6742 Website: www.osha.gov 4) Safety Violations Hotline Call: (800) 452-9595 Website: www.twcc.state.tx.us/services/hotline.html 5) Texas Commission on Human Rights Call: (512) 437-3450 Website: www.tchr.state.tx.us/ 6) Texas Worker’s Compensation Commission Call: (800) 252-7031 or (713) 943-0800 Website: www.twcc.state.tx.us/ 7) Texas Workforce Commission Call: (800) 832-2829; Employee Hotline (713) 982-7400 Website: www.twcc.state.tx.us/

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8) U.S. Department of Labor (Wage & Hours Division) Call: (713) 339-5500 Website: www.dol.gov/esa/whd/ 9) U.S. Department of Labor (Women’s Bureau) Call: (800) 827-5335 Website: www.dol.gov/wb/ NON-GOVERNMENT ASSISTANCE 1) Age Discrimination American Association of Retired Persons Call: (800) 424-3410 Website: www.aarp.org 2) Sexual Harassment 9 to 5 National Association of Working Women Call: (800) 522-0925 Website: www.9to5.org 3) Discrimination Based on Sexual Orientation Lamda Legal Call: (212) 809-8585 Website: www.lambdalegal.org 4) Employment Discrimination Legal Redress NAACP-Houston Branch Call: (713) 526-3389 Website: www.naacphouston.org

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ACKNOWLEDGMENTS

The Earl Carl Institute gratefully acknowledges the contribution of the following persons in producing this handbook: 1. McKen Carrington- Thurgood Marshall School of Law Interim Dean 2. Allecia Lindsey – Staff Attorney, NAACP-Houston Branch 3. Professor Docia Rudley – TMSL Professor 4. Taft Foley-Attorney 5. Angela Graves-Harrington – TMSL Student Researcher 6. DiAndria Green – TMSL Student Researcher 7. Tameka Badger – Lead Researcher 8. Vendetta Lavine-Administrator

This project was funded in part by Thurgood Marshall School of Law and Legal Redress, NAACP-Houston Branch through a grant from the Texas Bar Association, Employment Division. Thank you!

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A Publication of the Earl Carl Institute for Legal & Social Policy, Inc. Sponsored by the Thurgood Marshall School of Law Dr. Priscilla Slade, President, TSU McKen Carrington, Interim Dean TMSL Prof. James Beard, President Institute Prof. Marcia Johnson, Director, Institute Officers James Beard, President Marcia Johnson, Vice Pres Lonnie Gooden, Secretary Thomas Kleven, Treasurer Board of Directors James Beard Fernando ColonNavarro James Cotton Martha Davis James Douglas Connie Fain Lonnie Gooden Anna James Earl Carl Institute Marcia Johnson Thomas Kleven Ana Otero April Walker Edieth Wu Tom Boston Kim Brooks Benjamin Hall Jeffrey Londa Jalene Mack Robert Miller Jo Nelson Sandra Peake Kim Phillips Frumencio Reyes Anthony Shorter Craig Washington Jack Zimmerman Advisory Board Terry Anderson Sylvia Brooks Zinetta Burney Ben Echols, M.D. Bonnie Fitch Cong. Al Green Howard Jefferson Rev. W. Lawson Matthew Nwogu Carlton Perkins Ronald Reynolds Carroll Robinson Victor Vital Fundraising Committee Algenita Davis Kim Burkley Harry Johnson John Mukoro

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