Texas Employer Handbook

Insight on Employment Law for Texas Businesses

Employment Law 101: Race Discrimination

Posted in Handbook Articles

racial discrimination in the workplaceWho, What, Why . . .

Who does it apply to: The law applies to all employers regardless of size.

What is the issue: The Civil Rights Act of 1866 was passed to prohibit racial discrimination in contracts of employment and applies to all employers. The Act was later codified under Section 42 USC § 1981. Title VII was passed in the 1960s to protect against discrimination based on race, color, religion, sex or national origin by employers with 15 or more employees.

What am I required to do: Employers are required not to discriminate against employees on the basis of race or color. More specifically, employers are required not to treat an employee adversely with any consideration of his or her race or color 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 race or color by failing to hire, firing, demoting, or any other type of significant slight someone might dream up, it can be actionable as race or color 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 race or color more significantly than others. If an employer institutes a policy that its employees must be clean shaven, the policy itself does not seem discriminatory because it may affect any applicant. That said, a lot of Black people have a skin condition that makes it difficult for them to shave and hence the rule has an adverse effect on Black applicants. This facially (no pun intended!) neutral rule has a disparate impact against Black applicants and may create a claim.

What counts as a race or color: Under Title VII, race and color include what most people think of differences based on race or color and may include Black, Hispanic, Indian (both kinds), etc. It even includes White, though many people mistakenly perceive that Whites are unprotected under the law. Under § 1981, “race” is more broadly defined than color and can include ancestry or ethnicity.

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 placed in positions of authority over employees.

What if race or color is a requirement of the job: Race or color cannot be a condition of a job. The Bona Fide Occupational Qualification (BFOQ) concept does not apply to race and color. Even stereotyping for language by race and color is problematic. There are plenty of Whites, Blacks, Asians and Hispanics that speak, say, . . . Farsi.

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 the EEOC. Employers cannot negatively impact a significant aspect of employment for an employee who supports another’s race or color or their complaint of discrimination. Employers also cannot retaliate against an employee for complaining of race or color discrimination or making a charge of race or color 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 race or color.

Common Situations:

No criminals here: SuperSoda, a mega soft drink company, has a policy that it will not hire anyone who has ever been arrested. The EEOC gets wind of the policy and decides to make an example out of SuperSoda. It sues the company on the basis that a disproportionate number of Blacks and Hispanics have histories of arrests to other races and colors. Is the EEOC right? I don’t particularly think it is right to tell employers they cannot exclude for arrest records, but Pepsi Co. found out otherwise when they were audited under the same circumstances. The EEOC takes the position that an arrest is not a conviction and should not be used as a factor to weed out applicants. Only applicants who have criminal histories should be excluded, and then, only when it is particularly relevant to the job at issue. See the Employer Handbook edition on Discriminatory Use of Background Checks for more information on this topic.

Over his head: Danny is a Hispanic gentleman who was hired at SuperSoda to act as a purchasing manager by another Hispanic person, Joe. Joe did not do a very thorough job of screening or even interviewing applicants and Danny is not even close to being qualified for his job. While he works with Joe, Danny’s poor performance is covered by Joe’s unwillingness to confront Danny as a fellow Hispanic. Joe is a non-confrontational person who gives Danny above average ratings that he knows Danny does not deserve. Later, Joe leaves SuperSoda to pursue a musical
career after succeeding on an audition for the television program, American Super Singer. Danny’s new supervisor, Frank, quickly discovers Danny’s inadequacy and begins counseling Danny to improve. Danny is passed over for a promotion when a new position is created under Frank, and Danny brings a claim. Is he right? Does SuperSoda have a chance? Certainly SuperSoda has a chance, but Joe’s reluctance to confront Danny has done nothing to help the company. This is why it is important to supervise the supervisors with the conduct reviews to make sure they are not giving people a pass and understand the dangers if they do so. There are few supervisors confrontational enough to be truly honest in reviews. Most of us confrontational types are lawyers!

Pay attention to listeners: Megan, a Black woman, works for Manly Manufacturing. Two Manly employees, Josh and Tim, who are both also Black, sometimes use racially charged words to poke fun at each other. Neither is offended by the other. They are just joking around. Manly’s management takes no issue with it, thinking Josh and Tim are both Black so there can be no discrimination. Megan hears the barbs regularly and takes great offense based on stories of discrimination told by her father. She complains to management, but the company takes no action because the comments are not directed at her personally. Problem? Of course. Manly needs to think not just of the individuals involved (who could tire of the jokes and make their own claim), but also of those in ear-shot. Megan has a claim for race discrimination by harassment against Manly, and Josh and Tim have no worries since they are just employees.

What Should I Do:

Good: Even though other discrimination laws do not come into play until 15 or 20 employees, consider implementing an antidiscrimination policy including race and color discrimination right from the start.

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 race, color 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 race or color.

Employment Law 101: Voting Rights

Posted in Handbook Articles

Who, What, Why . . .vote button

Who does it apply to: The Texas Election Code rules for employee voting rights and time off apply to all Texas employers.

Can I do it myself: Who is protected: All employees, including temporary or seasonal workers, are protected.

What is protected: Basically there are three protections. First, an employer must give employees time away from work to vote if the employee does not have otherwise sufficient free time while the polls are open. Second, an employer must allow the employee to take the time off without threats, intimidation or any other penalty. Third, an employer cannot reduce or threaten to reduce an employee’s wages or other benefits for voting for or against a particular candidate or refusing to disclose how they voted.

How much time must I give my employee to vote: An employee must be given a reasonable amount of time off of work in order to vote. Reasonable is not defined by any law, but the Texas Workforce Commission recommends allowing up to two hours. Employers do not have to give employees time off during the workday if the employee has already voted in Early Voting or if the employee has two hours of uninterrupted time during a day to vote. Finally, employers can define when the employee takes the time during the day as long as it reasonably gives the employee enough time off to vote.

Do I have to pay my employees when they take time off during the workday to vote: Yes, the law says that an employer may not penalize an employee for attending polls on Election Day. That said, employers do not have to pay if the polling place is open for two consecutive hours outside of the employee’s regular work schedule.

Does the time my employee is out count towards overtime: Yes, but an employer generally has the right to set the time that an employee may have off to vote.

What about time an employee takes off to attend political conventions: An employee may take unpaid time off to attend a precinct convention or other political convention. Such an employee may not be retaliated against or dismissed for taking the time. Note, employers must be careful when deducting pay like this for employees exempt from overtime. See the Employer Handbook editions on Overtime and Exemptions from Overtime for more information.

Can I make my employee show proof that he voted: There is nothing in the law that prohibits an employer from requesting proof of voting; however, it is not mandatory that an employee provide such proof.

How much notice must my employee give me: There is no requirement that an employee give notice to their employer of their intent to vote, but employers can create a policy requiring notice and discipline an employee for failing to follow that notice policy.

Common Situations:

Voting for overtime pay: J.D. is coming in at 7:00 a.m. for his daily shift and asks his boss for an extra hour at lunch to vote. Following the law, the boss-man lets J.D. have the extra time. That night, J.D. decides to work an extra hour to make up the time. Does J.D. get credit for the hour to vote and the extra hour he worked? Does it count toward overtime? Yep and nope. An employee who voluntarily turns in extra time in addition to the time off for voting gets credit for the hour worked and the voting time, but does not get extra pay or the overtime associated with it. Strange rule.

Controlling the masses: Mary Jane is undecided about who she will vote for in the upcoming election. Her supervisor, Phil, is very involved in politics and often engages the employees in political discussions and encourages all of the employees to vote for his favorite candidate. As Mary Jane leaves for the day, he shouts, “You better vote for my guy or you are FIRED!” Mary Jane calls into work the next day, unsure if she still has a job. Phil tells her it was just a joke and tells her to report for work that morning. Has the supervisor violated the law? There is a fine line here. Mary Jane has not been subjected to any penalty, but she has been intimidated by her supervisor. An employer may not threaten the loss wages or another benefit of employment in retaliation for voting a particular way. It may not get very far, but Mary Jane has a claim and the company will be on the hook for the legal fees to fight it.

Do it on your own time: Betsy is scheduled to arrive for her shift at 9:00 a.m. She says that given the morning traffic, there is no way she can vote and be on time. Traffic doesn’t matter for poor Betsy. As long as the polls are open for two consecutive hours when Betsy is not scheduled to be at work, she doesn’t get the time. Texas polling places are open from 7:00 a.m. to 7:00 p.m.

What Should I Do:

Good: Encourage your employees to exercise their Constitutional right to vote. Warn managers and other supervisory personnel that they cannot restrict any employee’s ability to vote, nor can they intimidate or harass the employee for voting for a particular party or candidate or failing to reveal for whom the employee voted.

Better: Create a written policy that clearly spells out what will happen when an employee needs time off to vote. Cover when the employee needs to notify you, the time you will pay for an employee to be out, if any, and how you will deal with requiring proof of voting.

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

Employment Law 101: Religious Discrimination

Posted in Handbook Articles

ReligiousDiscriminationWho, 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 religion. More specifically, employers are required not to treat an employee adversely with any consideration of his or her religion 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 religion by failing to hire, firing, demoting or any other type of significant slight someone might dream up, it can be actionable as religious discrimination.

Disparate impact is more subtle. Even 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 religion more significantly than others. If an employer institutes a policy that employees must all be clean-shaven, the policy itself does not seem discriminatory because it may affect any worker. That said, certain religions require their adherents to grow beards. This seemingly neutral rule has a disparate impact against workers of certain religions and may create a claim.

What counts as a religion: Good question. What counts as a religion goes way beyond what most employers would think. Observances are protected regardless of whether the employee belongs to the particular body or sect whose observance they claim. Any observance based on a strong moral or ethical belief that is sincerely held with the strength of religious views may count.

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 religion is a requirement of the job: Sometimes a person’s religion may affect his or her ability to get a job. With religion, this usually occurs with churches and other denomination- focused businesses. Under Title VII these business are exempt from the religious toleration requirement. This exemption is complicated, however. You should always check with your employment counsel before acting under the exemption.

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 religious views or their complaint against religious discrimination. Employers also cannot retaliate against an employee for complaining of religious discrimination or making a charge of religious 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 religion. The harassment must be significant enough to interfere with the employee’s working conditions or ability to handle his or her job, but little harassing actions can add up to enough harassment to support a claim. An employer has a responsibility to be aware of what is going on with its employees and discipline employees for harassing conduct.

Are there any special state laws on religious rights: The Texas Labor Code mimics Title VII’s protections, but goes one step farther. Retail employers must respect an employee’s request to be off to attend regular worship service on one day per week.

Common Situations:

Tattoo me religious: Dot is a sales representative for Mae’s Ink Works, a purveyor of the finest inks. She decides on a whim to get a tribal tattoo around her bicep. She likes it so much that she insists on wearing sleeveless shirts all the time. Mae is not hip to tattoos and feels the customers who buy her inks will be put off by Dot’s tat. Mae insists that Dot cover the tattoo at all times while working. Dot does not like Mae’s policy and talks to her tattooed friends about the issue. They turn her on to the Church of Body Modification. Dot joins and tells Mae she would be violating her religious beliefs not to show the tattoo. What happens? No employer’s life is complete until he or she has a run in with the Church of Body Modification. This is a common dodge for employees. Unfortunately, the answer is unclear. If Mae can show lost sales or complaints about the tattoo, she may have an out. Of course, the beliefs of this church present a problem for Dot. She is not required to show her tattoo. Unless she can show a strong belief and moral basis, she may be out of luck.

Google liability: Rosie is in the habit of Googling applicants to see what she can learn about them before an interview. In her examination of one applicant, she discovers that the person is a regular runner in a group through her church. Knowing that running is not a protected class, Rosie displays her knowledge in the interview of the prospect. Ultimately, Rosie chooses to hire someone else and the applicant files an EEOC charge claiming religious discrimination and relying on what Rosie must have found on the Internet. Has Rosie done anything wrong? Yes and maybe. Rosie should not Google applicants or at least she should not tell the applicants what she finds. If she did not feel the need to show off her knowledge, the applicant may have never known she looked. As to discrimination, it will be up to the EEOC and a jury to decide – after Rosie spends thousands on the assistance of counsel.

Hanukkah vs. Christmas: Michael is Jewish and a faithful adherent to all Jewish holy days. His employer, like so many companies, closes for Christmas, not Hanukkah. Michael requests that the company allow him to be off in celebration of Hanukkah and other Jewish holy days. The employer offers Michael the opportunity to take those days off without pay as a reasonable accommodation to his request. Michael, in turn, offers to work over Christmas to make up some of that time. His employer agrees. All is well. However, what happens if the company’s closure for Christmas prevents Michael from doing his job? Must the company pay Michael for his time off? Generally, no. It is considered reasonable accommodation to allow employees unpaid leave (or the use of vacation) during those days if the company is closed over Christmas.

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 workers, institute an anti-discrimination policy including religious 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 religious 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 religion.

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.