Texas Employment Discrimination Attorneys

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Texas Employment Discrimination Attorneys Powered By Docstoc
					    Employment Law Issues
        for Employers

               presented by
            William T. Simmons
Legal Counsel to Commissioner Ron Lehman
        Texas Workforce Commission
      tommy.simmons@twc.state.tx.us
 Avoid Claims and Lawsuits

• Once you’re sued,
  you’ve already lost
• Keep your
  employees out of
  the hands of
  attorneys!
Employment Discrimination

• Main idea: to extent possible, don’t hire,
  manage, or fire on basis of things about
  employees that they cannot change
  about themselves (race, color, religion,
  sex (gender) - includes pregnancy,
  national origin, age, and disability)
• bottom-line defense: “we did not hire X
  b/c he or she was not the best-qualified
  applicant.”
Status Not a Basis for Action

• Don’t act based on applicants’ or
  employees’ status or who they are

• Do act based on what they can do
• Do act based on their conduct
• Do act based on what they do or fail to
  do
      No discrimination based upon:
•   Race or color (1 worker of any type)
•   National origin or U.S. citizenship - 4 employees
•   Religion - 15 employees
•   Gender, including pregnancy - 15 employees
•   Age (40 or older) - 15 employees
•   Disability - 15 employees
•   Veterans, if required by grants or contracts
•   BFOQs possible, but employer has burden of
    proof
          Job Advertisements
• get the word out to a wide range of
  potential applicants
• no references to protected classes
• avoid gender-specific job titles and
  descriptions
• “XYZ Corporation is an equal
  opportunity employer.”
• affirmative action - it can be very
  simple!
               Job Applications
• ask only job-related questions
• asking anything related to minority
  categories presents a “fact issue”
• ask yourself, “Will it help me
  determine whether the applicant is
  the best candidate?”
• include EEO statement
• warn applicants about employment
  at will and about the need to supply
  accurate and complete information,
  and let them know the information
  they give will be verified
       Employment at Will

• basic rule of employment law in Texas:
  absent an express agreement or a law to
      the contrary, either party in an
  employment relationship may modify or
  terminate any of the terms and conditions of
  employment at any time for any reason, with
  or without notice
• there are only a very few exceptions
 More things you should know about
          job applications:
• you do not have to accept them if you
  have no job openings
• unsolicited applications or resumes can
  be discarded, but be consistent
• solicited applications should be kept at
  least one year, according to the EEOC
Background Checks - Criminal History
• criminal history information is generally in public
  records
• do not ask only about “convictions”, but rather if
  the person has ever been convicted or has
  pleaded guilty or no contest to a criminal
  offense
• best bet is to hire an outside agency to do such
  checks – be aware of FCRA requirements
• keep “job relatedness” in mind when using
  criminal history to screen applicants
Background Checks - Miscellaneous

• job references - have applicant sign written
  information release and waiver of liability to
  send to prior employers
• document your efforts to verify the work
  history given by the applicant
• have applicant supply certified copies of
  transcripts, certificates, licenses, and so on
• have applicant supply certified MVR copy for
  driving positions
     New Background Check Law
• For employees who will be going into
  customers’ homes
• Suitable background / criminal history check
  creates presumption against negligent hiring
             I-9 Requirements
• do not waste your time collecting this for all
  applicants - you only have to have it for the
  ones you actually hire
• you have three business days following hire
  to get the information
• the law does not require you to keep copies
  of documents you review, but keeping them
  helps show that you did review them
• keep I-9 documentation for three years after
  hire or one year after employee leaves,
  whichever comes last
       Guidelines for Interviews

• just like with applications, keep the
  questions as job-related as possible
• keep in mind that the applicant may be
  tape-recording the entire interview
• careful with note-taking - anything in
  writing or otherwise recorded is
  discoverable in a claim or lawsuit
        Medical Inquiries and the ADA
• no pre-employment medical questions
• exception: after job offer, but ask all
  offerees
• only job-related inquiries are allowed
• keep information in separate,
  confidential medical file
• drug tests are not considered medical
  inquiries
• if a disability is revealed, the issue of
  reasonable accommodation arises
              Job Offers

• if in writing, include an employment-at-will
  disclaimer
• express pay in terms of smallest possible
  pay period
• remind offeree that hiring is contingent
  upon completion of the hiring process,
  including all of the new hire paperwork
  and any unfinished background checks
 Compensation Agreements
• verbal or written
• hourly, daily, weekly, monthly, piece, job, book,
  or commission rates, or a combination of those
• the more complicated the arrangement is, the
  more important it is to put it in writing
• careful with salary offers!
• methods and rates of pay may be changed, but
  never in such a way that a retroactive pay cut
  results
      New Hire Paperwork
• I-9
• Acknowledgement of receipt of policy HB
• Consent for drug testing / search policy, if
  applicable
• Consent for video surveillance, if applicable
• Consent for background checks, if not already
  obtained
• Agreements regarding pay, schedule, work
  location, and so on (with employment-at-will
  disclaimers)
      New Hire Reporting

• Report new hires within
  first 20 days of
  employment
• Helps control benefit fraud
  and non-payment of court-
  ordered support
 Pay, Policies, and Procedures

• Employment at will applies to an ER’s right
  to change its policies and procedures at
  will, but there are practical limits:
  – give advance notice of changes
  – apply policies fairly to everyone
  – avoid exceptions unless absolutely necessary
    for some reason
            Leave Policies

•   Paid leave (vacation, sick, parental, PTO)
•   Paid holidays
•   FMLA
•   ADA reasonable accommodation
•   Workers’ compensation
•   Short-term / long-term disability
•   Jury duty, military leave
       Wage and Hour Laws
• FLSA – minimum wage, overtime, child labor, and equal
  pay
   – Recordkeeping
   – Exemptions
• Texas Payday Law – pay employees in full and on time
  on regularly scheduled paydays
   – Deductions from pay must be either ordered by a court, required
     by a statute, or made for a lawful purpose and authorized in
     writing by the employee
   – Final pay
   – Fringe benefits promised in writing
   – Advance written notice of pay cuts
      Part 541 Changes - DOL
   DOL has issued new white-collar exemption
    regulations – effective date 082304
   Minimum salary - $455/week (biweekly: $910;
    semi-monthly: $985.83; monthly: $1971.66) – on
    annual basis, that is $23660.00
   Annual total compensation of at least $100K gets
    presumption of exempt status
   Duties test – focus is on “primary duty” of exempt
    work – exempt employees customarily and
    regularly perform an exempt duty as their
    primary duty
   Salary / title make no difference by themselves
        Salary Basis Test

• True salary
• No partial-day deductions
• Partial-week deductions only if
  specifically allowed
• Special exception for FMLA
• Special rules apply for governmental
  employers
• Extra pay for extra work is OK
            Duties Test

Common threads:
• Discretion and independent judgment
• Primary duty
Exempt Salaried Employees
   the company is buying results, not specific
    amounts of time
   no way to tell how long specific projects or tasks
    will last
   discretion and independent judgment are major
    criteria
   other employees look to exempt employees for
    leadership
   their decisions affect other employees’ jobs and
    the company as a whole
Voluntary or Unauthorized Overtime

• If overtime is worked, employer must pay for it
• Whether it was authorized or wanted is irrelevant
• Employer may handle unauthorized overtime as a
  disciplinary matter
• Employees may not
  voluntarily give up
  the right to overtime pay
  – agreements to contrary
   are void
• No working “off
  the clock” allowed
           Direct Deposit
• OK under both FLSA and TPL
• Must be voluntary on employee’s part,
  according to DOL
• EEOC issue as well
• Acceptable method of wage delivery if
  employee has bank account
• No provision in law for forcing employee to
  have a bank account
• FDIC rule - ER can’t force employee to use a
  specific bank account for DD of wages
• Payment by debit card – written authorization
    General Privacy Issues

• Good starting point: all information relating to
  an employee’s personal characteristics or
  family matters is private and confidential
• Information relating to an employee should be
  released only on a need-to-know basis, or if a
  law requires the release of the information
• All information requests concerning
  employees should go through a central
  information release person or office
   Focus on Personnel Files
• Private employers do not have
  to release information in
  personnel files to anyone in the
  absence of a court order
• Best to protect such
  information from unauthorized
  disclosure
• Have different files for general
  purposes, medical information,
  grievances / investigations, I-9,
  and OSHA purposes
   Personnel Files (Cont’d)
• Release personnel file information to
  prospective new employers only if ex-
  employee authorizes it in writing
• Train supervisors to never put anything into a
  personnel file that contains unprovable,
  undocumentable allegations – too much
  danger of defamation lawsuits if information is
  released
• Even then, employers should take great care
  as to what goes into a personnel file!
              Searches
• Landmark case is K-Mart v. Trotti, 677
  S.W.2d 632 (1984) – employee won
  because she had a reasonable
  expectation of privacy in her locker.
  Even though it was K-Mart’s locker, the
  company allowed her to put her own
  lock on it and didn’t insist on a way to
  get into the locker.
       Metal Detectors – X-Ray
              Machines
• No restrictions on use of
  machines to detect metal
  objects or to “see into”
  employees’ bags, purses,
  briefcases, and other
  objects brought to work
• Use in conjunction with a
  search policy
• Can be a condition of
  continued employment
• Illegal items should not be
  handled further – notify
  local authorities
           Drug Testing
• Federal law allows drug testing of
  employees in safety-sensitive positions
• Nothing under Texas law prohibits an
  employer from instituting a drug-testing
  policy
• Case law limits application of such a
  policy in case of government employees
• Such a policy is best restricted to
  safety-sensitive positions
     Telephone Monitoring

• It is legal for an employer to monitor
  employees’ use of the company’s phones for
  business purposes
• Let employees and outside callers know in
  advance that such monitoring will take place
• Stop listening as soon as it is apparent that
  personal, private details are being discussed
  – handle from there as a disciplinary matter
Recording of Conversations

• As long as one party to a conversation
  knows it is being recorded, it is legal to
  record it
• Be on guard against surreptitious recording
  of conversations in the workplace
• Frank B. Hall Company v. Buck case –
  company hit with defamation lawsuit after
  bad statements were made in context of job
  reference calls
       Video Surveillance

• Same basic rules as for telephone
  monitoring – if audio is also recorded,
  notice of such monitoring is needed
• Only authorized personnel should ever
  view surveillance tapes – defamation
  and invasion of privacy suits can result
  if tapes are shown to unauthorized
  persons
          Camera Phones

• Risk: invasion of privacy,
  theft of company secrets,
  improper photography
• Sexual harassment
  claims have been filed
  based on coworkers’ use
  of such devices
• Employer may ban use
  or possession of such
  devices in the workplace
    Electronic Surveillance
• With the right kind of policy, employers
  have the right to monitor the following:
  – Employees’ e-mail at work
  – Employees’ use of the Internet
  – Employees’ use of company computers
Misuse of Company Computers

• Harassment
• Threats
• Theft of confidential
  information
• Pornography
• Gambling
• Sabotage of files
• Specific proof needed
 Monitoring and Use Policy

• Every employer needs to have a detailed
  policy regarding use of company computers
  and resources accessed with computers,
  such as e-mail, Internet, and the company
  intranet, if one exists
• Each employee must sign – it can be made a
  condition of continued employment
             Policy Issues

• Define computers, e-mail, Internet, and so on
  as broadly as possible, with specifics given,
  but not limited to such specifics
• Define the prohibited actions as broadly as
  possible, with specifics given, but not limited
  to such actions
• Remind employees that not only job loss, but
  also civil liability and criminal prosecution
  may result from certain actions
             Policy Goals
• Company needs to reserve the right to
  monitor all computer usage at all times for
  compliance with the policy
• Right to inspect an employee’s computer, HD,
  floppy disks, and other media at any time
• Right to withdraw access to computers,
  Internet, e-mail if needed
• Make sure employees know they have no
  reasonable expectation of privacy in their use
  of the company’s electronic resources, since
  it is all company property and to be used only
  for job-related purposes
  Where to Look on the HD
• On PCs, look in C:\Windows\ for the
  following folders:
  – Cookies
  – History
  – Temporary Internet Files
  – Start Menu: “Documents” – shows what is
    in the user’s “Recent” folder
• On Macs, look in the folder for the ISP,
  then in the folder for the browser, then
  in either “Cache f” or the above names
Text of Cookie File
      Where Else to Look

• On PCs, look in the “Recycle Bin” –
  some people forget to empty that folder
• Using whatever graphics application
  you find on the computer, click “File”
  and look at the recent files in use
• On Macs, look under “Recent
  Documents” or double-click the “Trash”
  icon
      Top 5 Reasons to Suspect
           Internet Abuse!
• Employee spends a lot of time online, more than is
  reasonably needed for the job, yet is strangely non-
  productive
• You hear a lot of hurried clicking as you approach, and
  the employee greets you with a red face
• The Temporary Internet Files folder is filled to capacity
• The employee’s computer crashes more than anyone
  else’s – viruses and excessive demands on RAM
• Increase in spam e-mail from employees leaving their
  addresses all over the Internet
             Focus on E-Mail
• Same basic rules as for telephone monitoring
• Let employees and the public know that
  monitoring will be done for whatever purposes
• If unauthorized personal use is detected, don’t
  keep listening or reading. Just note the incident
  and handle it as any other policy violation would
  be handled.
• Have your computer experts attach a disclaimer
  to all outgoing company e-mail that warns of
  confidentiality and disavows liability for individual
  misuse or non-official use of e-mail.
       Important Court Case
• McLaren v. Microsoft Corp. (1999) – state
  appeals court in Dallas ruled that an employee
  had no claim for invasion of privacy due to ER’s
  review and distribution of the employee’s e-mail
• Password does not create reasonable
  expectation of privacy
• Company e-mail system – e-mail messages were
  not employee’s personal property
• E-mail system was provided so that the employee
  could do his job
• Employee had already told company that some of
  his e-mails were relevant to an investigation
     Tracking of Vehicles via
              GPS
• Turner v. American Car Rental (2004) –
  Connecticut court ruled in favor of car rental
  company that withdrew $450 from customer’s
  bank account after GPS system (AirIQ) detected
  he had exceeded contractual speed limit 3 times
• He’d signed a contract: $150 per violation
• No speeding ticket - speeding was detected via
  GPS and sensors in the car’s electronics
• No law against using such a system in company
  vehicles in Texas
  What GPS Tracking Can Do
• System at issue in Connecticut case can do the
  following:
  – detect if a car is parked too long
  – lock and unlock the car doors
  – disable and re-enable the engine
  – keep exact track of all movements, routes, speeds, and
    times of day
  – allow a monitor to instruct the driver via Internet, cell
    phone, pager, or built-in speaker
• Most vehicles manufactured w/in last few years
  are equipped for GPS plug-ins of this type
       Medical Information

• ADA requires all medical information about
  an employee to be kept in a separate,
  confidential medical file
• This would include any documentation
  requested by an employer in connection with
  the FMLA – always use Form WH-380
• HIPPA regulations put strict penalties on
  unauthorized release of medical information
    Medical Information Policy
• Controlled access to medical files
• Prohibition against improper release of such
  information
• Safeguards against improper disclosure
• Prohibition against discussion of such
  information
• Free speech does not include the right to
  gossip about others
• Warn of potential civil / criminal liability
    Documentation is Key
• Good documentation can help prove that
  – a particular employee was treated fairly and
    was not singled out;
  – the ER acted according to known rules;
  – what happened was predictable both from the
    policy and from past practice; and
  – the alleged violation or problem occurred just
    as the ER has said.
    Right to a Fair Warning
• Court case in Houston: law firm was held liable
  for Title VII violation for failing to give
  meaningful, honest job evaluations to a female
  African-American attorney
• her subsequent layoff for failing to perform well
  exposed the discriminatory impact of ER’s
  practice of not giving her a realistic evaluation
• an honest evaluation would have given her a
  fair chance to save her job
• Vaughn v. Edel, 918 F.2d 517
 Religious Accommodation

• Rules restricting free exercise of
  religious beliefs are potentially risky
• ERs must accommodate employees’
  religious beliefs and practices, unless to
  do so would cause an undue hardship
  – violation of other employees’ rights
  – too expensive or otherwise burdensome –
    “too expensive” means more than a de
    minimis cost
         Policy Handbook

• Anything important enough to affect an
  employee’s job should probably be in writing
• Have all employees acknowledge receipt
• Employment-at-will disclaimer
• Definition and prohibition of harassment and
  other acts of illegal discrimination
• Types of employees
• Types of benefits
       Policy Handbook 2

• Full-time versus part-time employees
• Define paid leave in very specific
  language
• How to request and use leave
• Holidays – paid / unpaid
• Discipline / rules of conduct
• Safety issues
         Policy Handbook 3

• Miscellaneous policies
  –   Drug testing               - Dress codes
  –   Searches                   - Grooming standards
  –   Surveillance
  –   Electronic equipment monitoring
  –   Weapons
  –   Grievances
  –   Outside employment
  –   Nepotism
How Long to Keep Records?

• EEOC rule: keep records at least one
  year from date of employment action
• payroll records: three years
• practically all federal and state causes
  of action run out after four years
• precaution: keep everything at least
  seven years
Discipline, Discharge, and Post-
      Termination Claims

• Foundation of discipline and termination
  processes is what happened at the time of
  hire and what is in the policy HB
 Fairness and due process
are the main considerations
Consistent treatment according
     to known standards
Still, employers must take
       effective action
 Types of Work Separations
• Voluntary
   –   Resignation
   –   Walking off the job
   –   Job abandonment
   –   Retirement
• Involuntary
   –   Layoff
   –   RIF
   –   Discharge / termination
   –   Mutual agreement
   –   Resignation in lieu of discharge
     Termination Checklist
• What works for TWC is good in general:
  – was there a specific incident close in time to
    the discharge?
  – has the company followed the stated
    progressive disciplinary procedure?
  – did the claimant know, or should she have
    known, that she could be fired for such a
    reason?
  – have similarly-situated employees been
    treated more leniently?
        Retaliation Checklist
• was the employee involved in a protected activity?
  – involvement in a claim over wages, workers'
    compensation, or discrimination?
  – jury or military duty?
  – voting?
  – refusal to commit an illegal act?
  – inquiring about the legality of an instruction from the
    employer?
  – "whistleblowing"? - only public employees protected
    under current state law, but employees of federal
    contractors may be protected under federal laws; related
    issue: "qui tam" suits
            Required Notices
• COBRA - 20 or more employees - notice of
  continuation rights for health benefit plans - up to 18
  months
• “State COBRA” - 2 to 50 employees - like federal
  COBRA, but only for up to six months
• If child support garnished, notify AG’s office within 7
  days of employee’s work separation
        Unemployment Claims
•   Timely written or phone response!
•   Fax and Internet allowed as well
•   Give specifics
•   Make firsthand witnesses available
•   Supply appropriate documentation
    Unemployment Claims 2
• Voluntary work separation?
  – Show how a reasonable employee would not
    have quit for such a reason
• Involuntary?
  – Show that the discharge resulted from a specific
    act of misconduct connected with the work that
    happened close in time to the discharge, and
  – That the claimant either knew or should have
    known that discharge could occur for such a
    reason.
       Discrimination Claims
• EEOC charge is serious and must be carefully
  prepared, since it can tie an employer’s hands if the
  case goes to court
• Main defense in a discriminatory treatment or
  discharge case: the charging party was treated the
  same as anyone else would have been treated
  under the same circumstances
• Main defense in a failure-to-hire case: the charging
  party was considered fairly on an equal basis with
  all other applicants, and the most qualified applicant
  ended up being chosen – show appropriate
  diversity statistics in the response and invite
  interviews with current or former employees
 Other Post-Termination Actions
• Wrongful discharge – not very successful by itself in
  Texas due to employment at will rule
• Intentional infliction of emotional distress – requires
  proof of intentional or reckless conduct that was
  “extreme and outrageous” and which caused the
  employee severe emotional distress
• Defamation – requires an untrue statement
• Tortious interference with an employment
  relationship – inducing an employer to fire or
  adversely treat an employee
Other Post-Termination Actions 2
• Fraud – requires proof that the defendant made an
  untrue representation that was intended to be relied
  upon and which caused the employee some kind of
  harm
• Invasion of privacy – searches and drug tests
• Negligent investigation of employees – no cause of
  action for this kind of thing in Texas, but a
  “railroaded” investigation would be a different
  matter!
• All of these types of lawsuits require legal counsel
Thanks for your attendance
           and
      Good Luck!

Remember the toll-free number:
     1-800-832-9394

tommy.simmons@twc.state.tx.us

				
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