Texas Employer Handbook

Insight on Employment Law for Texas Businesses

Employment Law 101: Jury Duty

Posted in Handbook Articles

jury dutyWho, What, Why . . .

Who does it apply to: The Jurors Right to Reemployment Act and the Jury System Improvement Act of 1978 applies to all employers in Texas. These laws protect the employment status of those employees serving jury duty in either state or federal court.

Who is protected: All permanent employees serving jury duty are protected. Temporary or seasonal employees, those that work for a specific length of time or until a specific project is completed, are not protected.

What are they protected from: Not only are the employees protected from being fired, employers cannot threaten, intimidate or attempt to coerce employees to avoid jury duty.

Do I have to pay employees out on jury duty: Federal law does not require covered employers to pay employees for days that they do not work except as noted here:

• Salaried Exempt Employees: If an employee works any part of a week (5 minutes would count) and misses the rest of the week for jury or witness duty, he must receive “regular wages” for the workweek, but if the employee misses a full week, no pay is due for that week. “Regular wages” means the standard salary for the week, but does not include performance bonuses or services performed on any day the employee would not have earned wages, such as a scheduled day off. See the Employer Handbook editions on Overtime and Exemptions from Overtime for more guidance on what “exempt” means.

• Salaried and Hourly Non-exempt Employees: Employers do not have to pay the wages of non-exempt employees during jury service.

• Temporary Employees: Employers are not required to pay temporary or seasonal workers for jury service. Further, the job protection provisions of the laws do not apply to these workers.

Employers can opt to have employees use paid vacation or other paid time off for jury duty leave as long as it is not contrary to any existing company policies or labor agreements (this includes salary exempt employees). That said, an employer may not terminate healthcare benefits during jury service leave.

Do I need a policy: It is a good idea to create a policy for employees called to jury duty, so that when the situation arises, expectations are clear for both the employer and the employee. A lot of issues and questions can arise on this subject – use of time off, when to report the summons, how is unpaid leave handled, what are employees to do if they are released early one day, etc.

Does jury service count towards overtime: No. The hours spent in jury service do not count toward overtime, just as other types of paid leave and paid holiday hours do not count toward overtime.

Do I get reimbursed if I pay for jury service: Yes, but not for the full wages. The government doesn’t have that kind of money or they would dole it out to the employee directly. Employers who pay the employee regular wages during jury duty are entitled to be paid the amount the employee was paid for jury duty – yippee an extra $6 a day!

Do employees have to give notice: There is no law that requires employees to give notice to the employer of jury service. For this reason it is important to have a policy instructing the employee to give notice as soon as possible. If they don’t, you can discipline or fire them for failing to give adequate notice and reasonable time for you to react.

What penalties is an employer subject to for a violation of jury duty? Criminally, an employer may be on the hook for a Class B Misdemeanor if it threatens, coerces, or terminates an employee over jury duty. In civil court, an employer may be liable for reinstatement and damages between one and five years compensation.

Common Situations:

Perception is reality: Bob is a salesman who has been with his company for five years. Over the past year his sales have decreased and he has been counseled several times, given two written warnings, and encouraged to increase his sales. Bob gets called for jury duty and is out of work for two weeks. When he returns, his employer, without a written reprimand, fires him, citing his low sales and lack of improvement. Although there may have been good reason for firing Bob before he left for jury duty, firing him so close to his absence may land you in hot water. An employee who serves jury duty is entitled to return to the same position as when he left. It would be better to wait to avoid the perception of impropriety and give Bob a claim that probably is unwarranted.

Supervisor gone awry: Jenna is one of Happy Dale’s most valued employees. She was summoned for jury duty and promptly notified her supervisor of the dates she would be required to be out of the office. In the weeks leading up to her service, her supervisor constantly makes negative comments to her about how she should lie and tell the court she is a racist to get out of jury duty. Jenna is then picked for a jury and is absent for three days. When she notifies her supervisor, he is furious and tells her that she has been assigned an important project that needs her immediate attention. When Jenna returns from jury service her supervisor fires her for failure to complete the project on time. Even if Happy Dale’s owners are totally ignorant, they can be liable. Supervisors and other employees should be counseled that jury duty is job-protected leave. Employers will face penalties for any intimidation, coercion or negative employment actions based on an employee’s jury service.

You lost your spot: Steve is a decent employee at Bob’s Account Temps. He is called for jury duty and gets stuck on the J.O. Simpson murder trial that goes on and on and on for months. In the interim Bob’s is forced to hire a temporary worker to cover Steve’s work. The temporary employee turns out to be exceptional and Bob (the owner in case you didn’t guess) hires the temp to replace Steve – permanently. Does the glove fit Bob? Unfortunately. Finding a better player does not warrant letting the employee go. That said, if Steve finishes jury duty and fails to call or return to work because he is working the interview circuit and writing a book about his experience, Bob may be in the clear. It is unfair that the employer does not have a right to know the employee’s intent, but the law allows the employee to count on the employer keeping his job open.

What Should I Do:

Good: Encourage your employees to fulfill their civic responsibilities and ensure that the employee is allowed to take time off for service and allowed to return to the same job and the same responsibilities, benefits, etc. Counsel supervisors about the law and let them know that it is illegal to intimidate or coerce an employee not to serve on a jury.

Better: Create a written policy that clearly spells out what will happen when an employee is called for jury service. Cover when an employee is expected to work if not at jury duty, when the employee needs to notify you of jury service, the time you will pay for an employee to be out, if any, how to deal with Court issued compensation, and whether use of paid time off will be required.

Best: Good and Better get it done for this edition.

Employment Law 101: Sex Discrimination

Posted in Handbook Articles

sexual discriminationWho, What, Why . . .

Who does it apply to: The law applies to all employers with 15 or more employees.

What is the issue: Title VII was passed in the 1960s to protect against discrimination based on race, color, religion, sex or national origin.

What am I required to do: Employers are required not to discriminate against employees on the basis of sex. More specifically, employers are required not to treat an employee adversely because of his or her sex in relationship to any significant aspect of employment.

What constitutes a violation: There are two kinds of violations – direct mistreatment and disparate impact. Direct mistreatment is straightforward. If an employer affirmatively mistreats an employee because of sex by failing to hire, firing, demoting or any other type of significant slight someone might dream up, it can be actionable as sex discrimination.

Disparate impact is more subtle. If an employer creates a policy that is neutral or non-discriminatory on its face, that policy might have a consequence of negatively impacting workers of one sex more significantly than others. If an employer institutes a policy that it prefers to hire people with military service, the policy itself does not seem discriminatory because it may affect any applicant. That said, there are statistically fewer women in the military and hence the rule has an adverse effect on women applicants. This facially neutral rule has a disparate impact against female applicants and may create a claim.

What counts as a sex: The answer appears straightforward but really is not. While homosexuality and gender identity are not expressly protected under Title VII, actions based on sexual stereotypes are permissible. For example, if a man brings a claim for being treated differently becuase he does not act manly enough (instead of alleging discrimination based on homosexuality) a jury may be allowed to award damages.

What if my employee violates without consent: Choose carefully who you place in charge. Employees placed in positions of authority with the power to control the circumstances of other employees are not personally liable. Their liability is placed with the employer even if the employee acts without authority. The same is true of independent contractors (whether properly characterized or not) placed in positions of authority over employees.

What if gender is a requirement of the job: Sometimes a person’s sex may affect their ability to get a job based on a Bona Fide Occupational Qualification (BFOQ). There are, however, very few circumstances where such a requirement will stand up in court outside of the entertainment industry in which a particular sex is cast for a role. BFOQs are complicated and you should always check with your employment counsel before implementing one.

Can retaliation play a part: Title VII protects employees who engage in protected activities such as supporting another employee’s claim of discrimination, resisting instruction to discriminate, and filing a complaint about discrimination with the employer or EEOC. Employers cannot negatively impact a significant aspect of employment for an employee who supports another’s sexual identity or their complaint against sex discrimination. Employers also cannot retaliate against an employee for complaining of sex discrimination or making a charge of sex discrimination with the EEOC.

What about harassment: Even if an employer does not discriminate against an employee directly, the employer may be liable if its employees harass an employee about his or her sex. Sex harassment is such a pervasive concern that it receives its own topic. See the Employer Handbook edition on Sex Harassment for more guidance.

Common Situations:

Babymaker: Doowe Cheatum & Howe is a prestigious law firm filled with go-getter attorneys that are willing to sacrifice almost anything for their careers. The few women working at the firm gave up on having children from the outset to convince the firm’s leaders they would not take time to raise a family. Can the firm select only women disinterested in having children? Of course not, but businesses do it every day.

I ain’t working for her: Tom’s Construction is looking for a new superintendent to oversee two of its crews. Megan, a well qualified graduate of Texas Tech’s Construction Engineering department, applies for the position. Tom, who is interviewing applicants, takes a moment to call Megan to let her know she
shouldn’t get her hopes up because he simply cannot hire a woman for the position even though she is well qualified. Tom tells Megan almost apologetically, “Those men won’t work for a lady.” Has Tom strayed out of bounds? Yep. While we can identify with the concern he raises, it is Tom’s job to create an
environment in which women can work side by side with men, even if it means he has to make changes to his crews.

Equal pay: Sally has worked for Bob’s Banjos for 23 years. Ted started with the company at about the same time. Each has risen to the job of Shift Manager, yet while at lunch one day, Ted mentions to Sally how much he earns – 10% more each year. Does Sally have a claim? Yes, it is sex discrimination, but it is
also a violation of the Equal Pay Act, covered in more detail in the Employer Handbook edition on that topic.

What Should I Do:

Good: Count up your workers every few months to know whether the law applies to you. Once you have more than 15 employees institute an anti-discrimination policy including sex discrimination.

Better: In addition to developing a policy, control who is permitted to interview and make material decisions about employees to be sure they are aware of the concerns of sex and other discrimination.

Best: In addition to the items above, create job descriptions for each position. Use the job descriptions to prepare advertisements for positions, to ask objective interview questions, and to create a uniform and objective performance review system to avoid accidentally discriminating against someone based on sex.

Employment Law 101: Americans with Disabilities Act

Posted in Handbook Articles

Who, What, Why . . .

Who does it apply to: The law applies to all employers with 15 or more employees.

What is the issue: It is against the law to discriminate against an employee or a prospective employee based on a disability the person has, or that you view them as having (even if they don’t). The prohibition extends not just to hiring and firing, but to any discrimination in any significant term and condition of employment.

What is more, employers are required to reasonably accommodate any employee or prospective employee to assist that person in completing his/her job duties so long as the accommodation does not create an undue hardship on the business. Reasonable accommodations range from special keyboards for employees with carpal tunnel, to specialized monitors for employees with vision issues, and everything in between. What may be a reasonable accommodation is limited only by the imagination of the parties, what technology and devices are available, and the cost or hardship to the employer of implementing the accommodation.

What is a “disability”. . . under the law: Everyone has a personal view of what “disabled” means, but personal views do not count in the eyes of the government. The law defines disability as a physical or mental impairment that substantially limits one or more major life activities which may be permanent or temporary. Employers must be careful, however. Treating or “regarding” someone as though they have a disability is just as though the person actually has whatever malady the employer treats them as having. And, after changes in the law in 2009, almost anything can be a disability so employers should err on the side of viewing any malady as a temporary or permanent disability.

How does reasonable accommodation work: The process of accommodating an employee should be an interactive process. The employer and the employee are each required to work together to come up with solutions to accommodate the disability without undue hardship to the business. The goal is to help the employee to be able to perform the “essential functions” of the employee’s job so that the profitable relationship between employee and employer may continue. The process may involve consulting with a disability specialist and physicians to determine what can be done at what cost. And, be careful, too quickly deciding the accommodation creates an undue hardship on your business. The government’s view of an undue hardship is likely to be far higher than your own.

What are these “essential functions”: In any job there are critical or essential functions the employee was hired to perform and less critical functions the employee performs, which the employer could assign to another employee, if necessary. An employer can terminate a disabled employee or refuse to hire a disabled applicant if that person cannot perform the essential functions of the job even with accommodation. An employer cannot adversely affect a disabled person who cannot perform a non-essential function that can be assigned to another employee. For example, a person with a bad back who occasionally lifts a box of paper for the copier cannot be fired if the company can get another employee to do it.

What if I need a prospective employee to take a physical: A prospective employee’s capacity to handle the work sometimes is not obvious from looking at them. A person may look okay on the outside to be a lifeguard, but you need to know how well they swim, and whether they can carry an injured person back to shore. To protect against disability discrimination, employers are required to consider all other hiring factors before administering the physical and make an offer of employment conditioned only on the result of the physical examination.

What constitutes discrimination: By now a familiar refrain in EH editions, there are two basic types of violation – direct mistreatment and disparate impact. Direct mistreatment is straightforward. If an employer affirmatively mistreats an employee because of a disability, it can be actionable.

Disparate impact remains more subtle. If an employer creates a policy that is neutral or non-discriminatory on its face, that policy might have a consequence of negatively impacting disabled workers more significantly than others. This is less likely in a disability situation, but it can happen.

What if my employee violates without consent: Also, a familiar refrain in EH editions on discrimination. Employers may be liable for the actions of their employees who commit discriminatory acts without the employer’s knowledge.

What if no accommodation works: If the employer and the employee engage in an interactive effort to find a reasonable accommodation and come up empty or discover the solutions are just too hard on the business to make them workable, the employer may terminate the relationship. Because of the risk of
a claim, however, it is strongly recommended that the employer consult a qualified employment attorney to be sure they have done everything possible before terminating the relationship.

Common Situations:

You’re outta here: Bob, who is blind, is called into his manager’s office and let go from the company. Bob’s manager is a nonconfrontational person. Instead of explaining to Bob that he is being fired for totally screwing up a major project, she tells him that the company is experiencing financial difficulty and cannot afford him anymore. She thinks this will be a softer blow and certainly will make for an easier termination meeting. Bob carries a chip on his shoulder about his disability and is convinced he was let go because of his blindness, so he files a disability discrimination claim. Bob’s employer is off the hook because disability wasn’t a factor, right? Hopefully, but the employer has made it much more difficult. When the lawyer explains the real reason Bob was let go, it will look like the employer is lying and a jury could infer discrimination.

But, that’s impossible: Derek runs Oil Express, an oil and gas drilling company. Henry, an employee of the company, is injured severely in an accident at a site. He is no longer able to use his right arm. Derek feels for Henry, but does not think Henry can return to work after he returns from worker’s comp leave. He spends some time on the internet looking for solutions, and asks Henry for his thoughts. Henry does not know where to start. Feeling he met his obligations, Derek lets Henry go. Henry files a claim. Did Derek do anything wrong? Maybe. Spending a little time on the internet is likely not enough to meet the requirement of working interactively. There are organizations that help answer these questions for employers at little or no cost. The Texas Department of Assistive and Rehabilitative Services, for example, can provide guidance to inexperienced employers.

What should I do:

Good: Establish a written policy notifying employees to bring disabilities requiring accommodation to the company. Be careful not to assume an employee’s health issue is a disability until the employee complains about it. Work with any disabled employee to find a reasonable accommodation – and be careful – a reasonable accommodation may be a period of unpaid time away from work for treatments.

Better: The above and train one employee to be knowledgeable about the ADA and address all complaints to that person to get a better result. Be wary of harassment or segregation. A disabled employee may still make a claim even with accommodation if the employer harasses or ostracizes him or her.

Best: All of the above and create job descriptions outlining the “essential functions of the job” and any physical requirements of the job. This will set the standard in case a claim for disability is made. Carefully sanitize job postings to avoid unnecessarily leaving out disabled persons.

The $185 Million – Yes – $185,000,000 Single Employee Discrimination Case

Posted in In the News

On November 17, a federal jury returned a verdict against AutoZone in favor of a single plaintiff for the insane amount of $185,000,000.00 in punitive damages. The plaintiff alleged gender and pregnancy-related harassment, discrimination, and retaliation. On November 19, a federal judge in the U.S. District Court for the Southern District of California upheld the jury’s verdict and finding on punitive damages. The case is entitled Juarez v. AutoZone (Case No. 3:08-CV-00417). An appeal will surely be filed.

Ms. Juarez was employed as an AutoZone store manager. Ms. Juarez alleged that when she became pregnant the district manager harassed her and attempted to force her resignation. She complained to AutoZone human resources department, but alleged that nothing was done. She further alleged that despite her complaints to human resources, she was demoted to parts manager while AutoZone promoted less qualified males. As a result of her perceived discrimination, Ms. Juarez filed a charge of discrimination with the California Department of Fair Employment and Housing and also filed suit. Subsequently, she was terminated and claimed that AutoZone retaliated against her for filing her charge and her lawsuit. The jury believed Ms. Juarez and returned a verdict in her favor finding that AutoZone was liable for discrimination, harassment, and retaliation. She was awarded $872,719.52 in compensatory damages and a whopping $185,000,000.00 in punitive damages.

While this is an extreme example, employer’s need to realize that there is real money at stake in a single plaintiff discrimination, harassment, or retaliation case. These cases must be taken seriously from the time a charge is filed with a state agency or the EEOC. As a practical matter, employers need to take measures in the workplace to avoid these claims ever being brought. A good employee handbook outlining an employer’s discrimination, retaliation, and harassment policies and a consistent application of those policies will certainly aid in prevention. While I doubt that the $185 million punitive damages award will hold up on appeal, it certainly should serve as an eye opener for employers across the country.

Corporate Wellness Programs: It’s Time for a Check-Up

Posted in In the News

The EEOC is back at it! This time it has targeted corporate wellness programs and is challenging the legality of such programs under the ADA. The EEOC contends that the biometric testing and health risk assessments are “disability-related inquiries and medical examinations” that are not job-related and consistent with business necessity and, therefore, violate Title I of the ADA. The EEOC is focusing on the voluntary element of employee’s participation in a wellness program. Because while it is permissible for an employer to conduct a truly voluntary medical examination, it is illegal to force an employee to submit to such testing involuntarily, absent some statutory exception for the testing.

The EEOC is arguing that an employee should not have to submit to a medical examination in order to avoid a monetary penalty such as having to pay his full insurance premium or some cancellation fee. Where steep penalties are imposed for failing to participate in the wellness program, the wellness program is arguably involuntary, certainly in the eyes of the EEOC.

Employers should be careful when starting or managing a corporate wellness program. While this area is not settled by any means, these decisions will be an important guide for employers. To be safe, employers should make sure that when an employee elects not to participate in a wellness program they are not punished or penalized.

Employment Law 101: Employee Handbooks

Posted in Handbook Articles

 

This month, our e-notification linked to the blog rather than the PDF of our Employer Handbook article.  Sorry.  If you are saving copies of the PDFs (hint, hint), please click here

 

Who, What, Why . . .

Who does it apply to: It is up to you. A business with two employees might benefit from an employee handbook. A business with 100 might function fine without one. There are no legal rules about when a handbook must be created.

Can I do it myself: Yes, certainly, but there are many pitfalls and many things to consider. Whatever an employer does, they must be careful to make policies that are consistent with their practices, and, of course, the law. Nothing is worse than downloading something off the internet that might follow the laws of another state and which is inconsistent with your goals and practices.

What policies should I include: That also is up to you, but I would consider these the most important:

  • Discrimination, Harassment, Disability, and EEO. The most legally significant issue a small business can address is the prohibition of discrimination among employees. Some of the discrimination laws don’t kick in until an employer has 15 or 20 employees, but at least one kicks in with just one employee. The policy needs to address both the prohibition and reporting.
  • Holidays, Vacation, Sick, or PTO. This issue is not as legally significant as it is practically important. The first couple of employees may be handled one way, but after a while, many businesses seem to struggle with consistency.
  • Family Medical Leave. This topic is only third because it doesn’t apply to a business with under 50 employees. Family medical leave is complicated to get right, and a written policy is the first step toward doing so.
  • Employee Dating. This is always a hot topic. I generally recommend employees not be permitted to fraternize and insist that supervisors, at least, not be permitted to date subordinates.
  • Employment At-will. If you employ people on an at-will basis (see the EH edition on this topic) it is important to confirm that nothing in the handbook creates a contract of employment for a period of time and that all employees are still at-will unless otherwise notified in writing.
  • Performance and Discipline. Consistency in these areas is important to protect against discrimination claims. Employers should lay out their disciplinary policy so there are no questions about the employer’s rights to terminate. I recommend leaving yourself the right to terminate for any issue if you feel it is important rather than using a regimented progressive policy.
  • Privacy. Make sure employees know that you can install video cameras, and search anywhere you like, including their desks, phones, and company email accounts.
  • Worker’s Comp. Whether you are a subscriber or not, consider addressing what employees need to do if they are injured on the job. You have legal obligations to report injuries within a certain period whether you are covered by the act or not.
  • Exceptions and Revisions. Always reserve the right to make changes without warning and clarify that there may be policies of the business which are not covered by the handbook – otherwise it would be as thick as a phone book.
  • Wage Deductions. Clarify in advance what deductions may be made from pay so the employees cannot cry foul. Examples include uniforms, damage to company property, theft, and repayment of loans.

What else should I address: Beyond these key topics the second tier policies are:

  • Military Leave. It is important to let employees know you follow the law regarding time off for deployment or for National Guard or Reserve duty.
  • Benefits. Provide an explanation of the types of benefits you offer employees including insurance and 401(k).
  • Bereavement. Let employees know what they can expect if they lose a relative. Who are they entitled to take time off for and what time do they get.
  • Jury Duty and Voting. Employees are legally granted the right to participate in both without losing their job. Define your policy and whether the employee’s time away from work for either is paid.
  • Accidents Involving Employees and Others. Cover what employees should do if they, a co-worker, or a third-party are injured in the workplace or while working.
  • Tracking Hours, Lunches, and Breaks. Let employees know when they are expected to be at work, when they get breaks, and how to keep track of their hours so that you stay out of overtime trouble.

Is a full handbook necessary: No. In fact, I imagine the first employee handbooks were collections of policies that someone decided to organize into a book. A business can get along with individual key policies set out in a way that all employees can find them.

Do I need employees to sign that they read it: It is a good idea to have employees sign a document acknowledging receipt of the handbook and confirming they have read it. This will help in the event the employee makes a claim about something covered by the handbook.

Are paper copies necessary: I advise clients that an electronic copy handbook is preferred. Store the handbook on an intranet or send a copy out to every employee by email. Using an electronic handbook makes editing the handbook much easier – no need to print a whole new copy for everyone or send out an addendum.

What should I do:
Good: Create policies that are important until you feel a handbook is necessary. Cover the basics.

Better: Build an employee handbook that meets your needs and reflects your actual practices. A handbook that reflects your ideal workplace (as opposed to how you actually do business) may be more hurtful if you find yourself in a dispute with a former employee.

Best: All of the above and go beyond a basic acknowledgement of receipt. Have the employees confirm their agreement to searches of their space, drug testing, employment-at-will, patent rights, their worker’s compensation election, and wage deductions. It may also be a good document to use for getting an agreement for periodic driving record checks and release of liability for references.

EEOC Trying to Change the “Status” for Transgendered Employees

Posted in In the News

On September 25, 2014, the EEOC filed lawsuits in Florida and Michigan accusing employers of discriminating against transgendered employees. These are the first two cases ever filed seeking to protect transgender workers under Title VII.

In the Florida Case, EEOC v. Lakeland Eye Clinic,  the EEOC claims that Lakeland terminated an employee, Branson, in violation of Title VII. Specifically, the lawsuit alleges that “[a]t the time of hire, Branson presented as male (e.g., used the male name ‘Michael,’ wore male attire, and otherwise appeared to conform to traditional male gender norms).” During the course of employment, however, Branson began identifying herself as a female, and presented herself as female. She also informed Lakeland that she was undergoing a gender transition and was in the process of legally changing her name from Michael to Brandi. Lakeland claimed that Branson’s position was being eliminated.  The EEOC, however, alleges that Branson was discriminated against because of sex when she was terminated because she was replaced by a male in the same position two months later.

The Michigan Case is similar to the Florida case. In EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., a funeral home fired an employee who presented himself as male at the time he was hired but was terminated two weeks after the employee notified her employer that she planned to undergo a gender transition and planned on presenting herself as female—wearing female clothes and conforming to female gender roles. In the lawsuit, the EEOC alleges that the employer terminated the employee by “telling her that what she was ‘proposing to do’ was unacceptable.”

Two years ago I wrote about the EEOC’s position on protecting transgender employees.  These cases are proof the EEOC was serious.  If successful, the EEOC will have legal precedent to rely upon to pursue employers under a broader definition of “sex discrimination” under Title VII. Employers must think twice before terminating an employee for making the decision to change gender. I strongly recommend employers check with counsel to obtain guidance about how to proceed if this issue presents itself.

Shop Until You Drop – But Take a Day to Pray

Posted in In the News

From the time that S. Truett Cathy opened his first Chick-Fil-A in 1946, he made the decision to close his restaurants every Sunday to give his employees “an opportunity to rest, spend time with family and friends, and worship if they choose to do so.”  When I heard the news that S. Truett Cathy passed away yesterday, his management philosophy reminded me of an employment law enacted by Texas lawmakers in 1993 requiring retailers to give their employees a weekly break for worship or rest.

Specifically, retail stores cannot force an employee to work seven consecutive days without giving the employee one day off to worship or rest. Like the ADA, retail stores must also accommodate the religious beliefs of employees unless it would impose an undue hardship on the business of the stores.

If a retailer denies an employee a day off to worship, they’ll need to hire a criminal lawyer to defend the Class C Misdemeanor that they could be charged with. If, however, the employee volunteers to work and signs a written statement to that effect, the employer has an affirmative defense to prosecution.

In my last post, I suggested that employers not set out on a mission discover each employees religious beliefs. This remains true in this setting as well. Retailers should consider giving employees a random day off, unless they request a specific day off. If an employee requests a specific day off, remember that you should accommodate the employee’s request unless it would impose an undue hardship on the store’s business.

Employment Law 101: Worksite Lactation Breaks

Posted in Handbook Articles

Who, What, Why . . .

Who does it apply to: According to the Patient Protection and Affordable Care Act, all employers with more than 50 employees nationwide are required to comply. Employers with less than 50 employees may not comply if it would be an undue hardship.

What am I supposed to do: Employers must offer reasonable time for breaks to nursing mothers who need to express milk and must provide an appropriate space to do so.

Who is entitled to the breaks: Employees who are not exempt from overtime. (See the EH Edition on Overtime Exemptions for more information on that topic). Employers are not required to offer the breaks to exempt employees.

How many breaks per day must be given: There is not a specific requirement in the law. The employer must offer a break “each time the employee has need to express the milk.” According to the US Department of Health and Human Services (“DHHS”), an average employee will have the need to express milk two to three times per day for 15 to 20 minutes excluding set up and take down time and the convenience of the location. Employers should err on the side of caution granting as much time as necessary.

Do I have to pay: Strictly speaking, no. Non-exempt employees may be asked to clock out unless they use an already offered, paid, work break for lactation. Employers who choose to offer lactation breaks to exempt employees, however, may not dock their pay for the time.

What type of space is required: The law requires that the space be shielded from view and free from intrusion by co-workers and the public. The space may be temporary and created when needed by an employee. A lock is not required, but is suggested to avoid intrusion. It is important to note, however, that the space must be offered in any location where an employee requiring lactation breaks is stationed – even if there is only one employee at the location.

How long do I have to offer breaks: Breaks must be offered up to one year following the birth of the employee’s child.

What is sufficient to show “undue hardship”: As noted above, employers with fewer than 50 employees nationwide who show undue hardship may opt out of the Act. There have been no cases reported on this subject yet, but employers must at least show “significant difficulty or expense, when considered in relation to size, financial resources, nature or structure of the employer’s business.” The Department of Labor (“DOL”) openly states it believes this to be a stringent standard available in very limited circumstances.

Are there any signs to post: There are no employer posting or notice requirements in the law. The DOL encourages employees to provide advance notice to their employers so the employer can prepare for compliance. Employers can likewise ask a pregnant employee whether she intends to take lactation breaks after the baby is born.

Is there any upside: While many employers will perceive this as one more encroachment upon their ability to get work done, there may be tangible monetary benefits other than helping employee morale. According to the DHHS, employers are likely to have lower health insurance claims because breastfed infants have up to three times fewer medical visits. Turnover rates are likely to be lower because 86-92% of breastfeeding employees return to work when offered lactation break options versus 59% otherwise.

Common Situations:

Ewww, not there: Commodes Unlimited is splitting at the seams with staff. There are very limited spaces available to offer for worksite lactation breaks. The company puts a lock on the women’s restroom to create the space. It complies with the law in every respect . . . except one. The law specifically states the space for lactation breaks cannot be a restroom. Sanitation is a concern.

Seriously? How can I do that: United Parcel Express has delivery drivers in trucks all day, every day. Janet, a delivery driver, has recently returned from having a child and would like to express milk. The company has more than 50 employees, but no real means to provide a space. What is it supposed to do? Comply. The law has no pity for inconvenient businesses. I searched on-line to try to find ideas for a scenario like this. The only thing I found about shipping companies was a UPS driver’s use of dressing rooms in various shops along her route. That hardly sounds compliant. Through a little looking, I did discover there appear to be “Workplace Lactation Consultants” who may be able to help with troublesome situations.

What should I do:

Good: Consult with employees who plan to return to work after giving birth. Work toward a mutually agreeable solution. If you have buy-in from the employee, you are unlikely to have a complaint from the employee or the DOL. Create a temporary place to meet the employee’s needs and offer adequate time for the employee to express milk daily. If you plan to claim undue hardship, please consult with your legal counsel about the appropriate path.

Better: Create a permanent space for employees to express milk. Consult with a lactation consultant to work through more difficult workplace scenarios such as traveling employees.

Best: Consider becoming a recognized Texas “Mother-Friendly Business.” In addition to the requirements of the federal law, employers only have to add access to a clean, safe water source and a sink in the space and a hygienic place to store expressed milk to meet the standard.

Losing My Religion: Do I Want to Know My Employee’s Religious Beliefs?

Posted in Quick Questions

The Fifth Circuit Court of Appeals recently updated employees’ guide to southern manners. Don’t worry, employees should still say “yes ma’am” and “no ma’am.” But you know the old saying that you should never discuss politics or religion at work? Well employees better forget that saying ever existed. Not only should employees discuss their religion at work, they should make their religious beliefs known to management when religious accommodations are necessary. Yes. You read that right. Employees should tell their bosses about their specific religious beliefs to establish their inclusion in a protected class.

In Nobach v. Woodland Village Nursing Center, Inc., et al., the Fifth Circuit ruled that if a company’s decision makers involved in an employee’s termination are unaware of the employee’s religious beliefs, then the company cannot be liable for religious discrimination. Nobach, a certified nurse’s aide at Woodland Village Nursing Center, was terminated for refusing to pray the rosary with a patient. Nobach refused because she was a former Jehovah’s Witness and still held many of the same beliefs.

Unfortunately, Nobach made a big mistake. She didn’t discuss her religious beliefs with her boss. I know most people are thinking, “well of course she didn’t!” But the Court held that because the managers involved in her termination were not made aware of her religious beliefs until after her termination, they could not have discriminated against her based on those beliefs. So the Fifth Circuit overturned her sizeable monetary award granted by a jury.

Employers, I’m not suggesting that you go out on a “witch hunt” and attempt to identify the religious beliefs of all of your employees. I’m suggesting quite the opposite. While most employers know not to ask about these sensitive issues in an interview, if a current employee does not tell you about their religious beliefs or need for a religious accommodation, DON’T ASK! This is one case where what you don’t know actually can’t hurt you. If you’re not aware of someone’s inclusion in a protected class—age, sex, religion, race, color, ethnicity, pregnancy, military status, disability, genetic information, and national origin—then it will be hard for a court to find that you to discriminated against an employee without knowledge of their protected status. Now you can’t turn a blind eye or bury your head in the sand. But some classes are more discreet than others. Obviously, if an employee is wearing a burqa and refuses to pray the rosary – you probably have some idea that the employee was may be Muslim (and, hence against her religious beliefs).

That said, employers need to have open lines of communication with management teams. If a manager learns about someone’s religious beliefs, national origin, or other inclusion in a discreet protected class, there needs to be policies and procedures in place that require reporting up the food chain. Such policies will allow upper management to avoid unlawful discrimination and protect the company from potential lawsuits.

For those who missed it, “Losing My Religion” is the title of a 1991 REM song.  I forget that some people who read this won’t be of my vintage.