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Texas Labor Laws for Salaried Employees - PDF

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									                                              Nonprofit Guide to Employment Law Issues in Texas   *   iv

Nonprofit Guide to Employment Law Issues in Texas
Table of Contents
Section One: Hiring a New Employee                                                   1
      A. State and Federal Employment Discrimination Laws                            3
      B. Americans With Disabilities Act                                             5
      C. Preparing a Job Description                                                 11
      D. Interview Questions: What Not to Ask in an Interview                        12
      E. Reporting and Filing Requirements                                           13
      F Resources and Forms                                                          17
         1. Pre-Hire
             a. Hiring Checklist                                                     18
             b. Sample Application Form                                              20
             c. Reference Release Form                                               24
             d. Record of Telephone Reference Check                                  26
         2. Post-Hire
             a. Texas Employer New Hire Reporting                                    28
             b. Social Security Verification                                         29
             c. Notice to New Employees Regarding Worker’s                           30
             d. Notice to New employees Regarding                                    31
                 Earned Income Tax Credit

Section Two: Paying Employees                                                        33
      A. General Information on Paying Wages                                         35
      B. Paying Non-Exempt Employees for Work Time                                   36
      C. Exempt Employees                                                            41
      D. Calculating Overtime                                                        44
      E. Minimum Wage                                                                46
      F. Employing Children Aged 17 and Younger                                      47
      G. Independent Contractors                                                     48

Section Three: Managing Employees Within the Law                                     51
      A. Harassment and Discriminatory Conduct                                       53
      B. Establishing an Effective Anti-Discrimination Program                       55
                                             Nonprofit Guide to Employment Law Issues in Texas   *   v

Table of Contents (cont.)
Section Four: Workplace Safety                                                      59
      A. Risk Management: Preventing Injuries to Employees                          61
      B. Overview of State Workers’ Compensation Law                                62
      C. Overview of Federal Workplace Safety Law                                   64
      D. Drug Free Workplace Rules                                                  68

Section Five: Leaves of Absence                                                     69
      A. Types of Leaves of Absence                                                 71
      B. Family and Medical Leave                                                   73
      C. Request for Leave of Absence Form                                          76

Section Six: Discipline and Performance Management                                  77

Section Seven: Terminating an Employee                                              81
      A. Good Rules for Employee Terminations                                       83
      B. All the Wrong Reasons to Fire an Employee                                  84
      C. Employee Releases                                                          86
      D. Employee Termination Exit Checklist                                        87

Section Eight: Useful Resources                                                     89
      A. Sample Employee Handbook
      B. Employment Audit
      C. Record Keeping Requirements Chart
      D. Application for Copy of Driver’s License
      E. Texas Employer New Hire Reporting Form
      F. IRS Form W-4
      G. IRS Form SS-8
      H. Employment Eligibility Verification
      I. Request for Family/Medical Leave
      J. Certification of Health Care Provider
      K. Required Workplace Posters
      L. Work Area Safety Checklist
      M. Domestic Violence in the Workplace
      N. C-BAR Website of Useful Resources
Nonprofit Guide to Employment Law Issues in Texas   *   vi

An Employee
Nonprofit Guide to Employment Law Issues in Texas   *   82
                                                   Nonprofit Guide to Employment Law Issues in Texas   *   83

Good Rules for Employee Terminations
Terminations are unpleasant, though sometimes necessary for the effective functioning of the
organization. Here are several steps that nonprofits should consider implementing.

    — Be fair. Treat all employees with respect and fairness, recognizing that they are
         the organization’s most important asset. Honor employees’ privacy rights and avoid
         humiliation or embarrassment.

    — Provide training. Provide training to all supervisors and employee managers to
         ensure fair and consistent treatment of all employees.

    — Provide notice. Communicate clearly and honestly with employees by providing
         notice, counseling, and a reasonable opportunity to improve deficiencies in their
         work habits or performance.

    — Consider alternatives. Termination is not the only option. Consider alternatives
         to termination such as probation, suspension with or without pay, demotion,
         transfer, salary freeze, or option to resign.

    — Be consistent. Establish a process for termination decisions that enables more
         than one person to review the facts and confirm that the organization has treated
         similarly situated employees consistently. If a progressive discipline policy is in
         place, follow it or explain the reasons that justify deviating from the policy.

    — Document problems. Document thoroughly the process leading up to the
         termination. Don’t try to gather the evidence after the termination decision has
         been made. Make sure that the documentation demonstrates that the decision to
         terminate is based on the employee’s evaluations and disciplinary record and, as
         a whole, is supported by the facts.

    — Do not terminate for unlawful reaso ns. Make sure that the reason given
         for the termination is not unlawful, such as serving on a jury, retaliation for
         reporting violations of laws, or the age of the employee.

    — Seek expert advice. Consider consulting with an attorney prior to the
         termination of an employee.
                                                     Nonprofit Guide to Employment Law Issues in Texas   *   84

All the Wrong Reasons to Fire An Employee
Nonprofits have good reason to be worried about employment-related lawsuits. Insurance
companies report that 75 per cent of the policy claims by nonprofits are employment-related.
The majority of these claims are by former employees who charge wrongful termination. The
consequences of a lawsuit by a former employee include disruption of the organization’s focus
and direction, internal turmoil, financial strains, and damage to the nonprofit’s reputation in the
community. If you have any doubt as to the legality of a termination, consult an attorney.

The following are some of the wrong reasons for firing an employee:

       — Because the employee refuses to take a lie detector test. Federal law prohibits
           employers from disciplining or discriminating against an employee or job applicant for
           refusing to take a lie detector test. Exception: Certain employees who are reasonably
           suspected of involvement in a workplace theft or embezzlement that resulted in
           economic loss to the employer may be tested. Practice Note: Consult with an
           attorney before requiring any employee to take a lie detector test.

       — Because the employee is subject to a court order for the payment of a debt.
           Federal law prohibits an employer from discharging an employee whose earnings are
           subject to garnishment for any one debt. Exception: An employee is not subject to
           protection if the employee’s earnings are subject to garnishment for a second or
           subsequent debt.

       — Because the employee is pregnant or has recently given birth or because of any
           pregnancy-related medical conditions. The federal Pregnancy Discrimination Act
           prohibits discrimination on the basis of pregnancy, childbirth or related medical
           conditions. It applies to both married and unmarried individuals. The law applies to
           organizations with 50 employees and restricts termination unless certain conditions

       — Because of the employee’s race, color, sex, national origin, disability, religion,
           or age. Under federal law, employers are prohibited from discriminating against
           individuals for these reasons. State laws and city ordinances may include additional

       — Because the employee may receive benefits under an employee benefit plan.
           The Employment Retirement Income Security Act (“ERISA”) prohibits employers from
           discriminating against employees in order to deny or interfere with their rights under
           employer-sponsored benefit plans.
                                             Nonprofit Guide to Employment Law Issues in Texas   *   85

— Because the employee has AIDS or the HIV virus. AIDS and HIV are disabilities.
   Federal law prohibits discrimination against employees because they have AIDS or are
   perceived to have AIDS. Numerous other illnesses and limitations are also considered
   disabilities and are protected under the law. Practice Note: If you are in doubt
   whether an employee’s condition qualifies as a disability, consult with an attorney.

— Because the employee has asserted his rights under state and federal anti-
   discrimination laws. Employers are prohibited from retaliating against an employee
   who makes a sexual harassment or other discrimination complaint.

— Because the employee complained about an employer’s violation of state or
   federal health and safety laws. It is illegal for employers to fire employees for
   complaining that work conditions do not comply with state or federal health and
   safety laws.

— Because the employee has alien status. Federal immigration law prohibits
   employers from firing an employee on the ground that the employee is not a U.S.
   citizen if the employee is legally working in the United States.

— Because the employee refused to commit an illegal act. State law protects
   employees from discharge for refusing to commit an illegal act, such as participating
   in corporate fraud.

— Because the employee supported a union or a union organizing drive. Federal
   labor laws prohibit discrimination against individuals for legal union activities.

— Because the employee is a veteran. Federal regulations prohibit employment
   discrimination against a person because of veteran status.

— Because the employee must attend jury service or testify in a court

— Because the employee complained about violations of federal wage laws or
   federal family and medical leave laws. The Fair Labor Standards Act and Family
   and Medical Leave Act prohibit employers from retaliating against employees who
   complain that an employer has violated these statutes.
                                                  Nonprofit Guide to Employment Law Issues in Texas   *   86

Employee Releases

A nonprofit should consider obtaining a release of claims from an employee who is terminated
or who resigns in lieu of termination. To be enforceable and effective, releases must contain
certain specific language. For example, a release of claims of age discrimination will be
enforceable only if the waiver of claims is “knowing and voluntary”. Under federal law, to be
considered “knowing and voluntary”, the release must:

       — be written in a manner that the employee can understand;
       — specifically refer to rights arising under the Age Discrimination in Employment Act;
       — not waive any rights or claims arising after the date of the release;
       — offer the employee something in return for the waiver;
       — give the employee at least 21 days to consider the release (or 45 days in the case of
         a termination program affecting multiple employees);
       — advise the employee to consult with an attorney prior to executing the release; and
       — provide the employee with seven days to revoke the release.

Practice Note: Consult an attorney if you have questions about whether a release will be
                                                       Nonprofit Guide to Employment Law Issues in Texas   *   87

                                    Employee Exit Checklist

The following form is a sample checklist for employers to use when an employee leaves the
workforce, whether the employee resigns or is terminated.

                                    Employee Exit Checklist

Employee name:                                           Position:
Date of hire:                              Date of termination:


       ”   Salary through last day of employment: ___________________                   ____
       ”   Accrued, unused vacation through last day: ____________________
       ”   Other adjustments (training reimbursements, travel expenses, etc.): _______
       ”   Total of final paycheck:             _____________________________________
       ”   Final paycheck delivered within 6 days after involuntary termination or on next regularly
           scheduled payday for voluntary resignations

Em ployee Benefits

Health Insurance
       ” COBRA information given to employee (if at least 20 employees)
       ” Date coverage ends: ____
       ” Reimbursement due employee for premium:
       ” Insurance company notified

Life Insurance
        ” Date coverage ends:
        ” Insurance company notified

Retirement and Pension Plans
       ” Withdrawal/Rollover information given to employee

Return of Company Property
       ” Keys or key cards
       ” Equipment (laptop PC, pager, cell phone, tools, etc.)
       ” Credit cards
       ” Books or other printed material
       ” Company ID
       ” Other items, list:
                                                Nonprofit Guide to Employment Law Issues in Texas   *   88

Employee Exit Checklist for ______________________, cont.

Future Contact Information

Employee’s forwarding address:

Reference Information

        ” Employment reference release signed

Completed By


Position:                                               Date:

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