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
a. Hiring Checklist 18
b. Sample Application Form 20
c. Reference Release Form 24
d. Record of Telephone Reference Check 26
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
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.
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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
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.
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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
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.
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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
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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
COBRA information given to employee (if at least 20 employees)
Date coverage ends: ____
Reimbursement due employee for premium:
Insurance company notified
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.)
Books or other printed material
Other items, list:
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Employee Exit Checklist for ______________________, cont.
Future Contact Information
Employee’s forwarding address:
Employment reference release signed