Texas Employer Handbook

Insight on Employment Law for Texas Businesses

Believe it or Not – White Male Proves Discrimination

By Michael Kelsheimer on Posted in In the News, Uncategorized

A jury in an Atlanta Federal Court has determined that a white male was discriminated against according to a recent article by the Atlanta Journal-Constitution.

The Plaintiff, former Human Services Deputy Director Doug Carl filed suit five years ago when he was denied the Human Services Director’s job in favor of a black female.

Fulton County attorney, David Ware, who lost the case was incredulous about the jury’s decision.  According to Ware, who is himself black, Carl lost the job because he “completely blew his interview,” but there was apparently a lot of evidence to the contrary.

The jury heard testimony that County Commissioner Emma Darnell told one employee that there were “too many white boys” in Human Services.  Darnell was further attributed with saying that the new director should be “black and female.”

And, County Manager Tom Andrews admitted calling employees “black marbles” and “white marbles” in hiring decisions.

I regularly lament to clients that white males are the least protected class in America.  The law appears to protect everyone from white men.  I certainly acknowledge that the vast majority of discrimination has been against persons in other protected groups, but white men are becoming much more of a minority in America.  Women outnumber men in college now.  Hispanics in Texas are quickly coming to outnumber whites.

As these demographics change, perhaps white males will come to be a more protected group.   Personally, I just wish we could all get along.

Worker Adjustment and Retraining Notification Act (WARN)

By Michael Kelsheimer on Posted in Handbook Articles

Who, What, Why . . .

Who does it apply to: All employers with 100 or more full-time employees (not counting workers who have less than 6 months on the job and employees who work fewer than 20 hours per week) or employ 100 or more employees that work 4,000 hours per week combined.

What is the purpose of the law: When a business covered by the Act is laying off a large number of people at a single worksite, the Act requires the employer to give advance notice so that the employees can begin looking for other work.

What circumstances trigger the notice requirement: Of course, it is complicated, but the following represent most of the possibilities:

  • Closing a facility or operating unit on a temporary or permanent basis in a way that will affect 50 or more employees (at that location or that location plus other places);
  • Making a mass lay-off unrelated to closing a facility that affects 500 or more employees within a 30 day period, or a lay-off of 50 – 499 employees if they make up at least 33% of the employer’s active workforce.
  • A combination of a facility closing and mass lay-off during a 90 day period that would meet either threshold.
  • Sale of a business which will result in a facility closing and/or mass lay-off as part of or shortly after a sale.

WARN ActEmployers do not have to give notice when closing a facility or location due to completion of the project for which it was created (think construction site), if the facility was originally temporary, or in certain circumstances, involving unions.

Who counts as an employee: Anyone who will be laid off for more than six months, whose hours will be reduced by 50% or more, or who has been temporarily laid off with an expectation to be recalled that will no longer be recalled (including employees on worker’s comp, FMLA, or other leave). That said, “employee” does not include part-time employees, individuals who have worked less than 6 months in the last 12 months, people who are contractors or understand that their position is temporary, striking union employees, or employees who will be offered a transfer (in certain circumstances).

 Who gets notice and when: Deliver notice, timed to reach the following parties, 60 days or more before the lay-off:

  • Affected employees;
  • Employees who may be laid off if seniority allows an affected employee to bump another employee out (“bumping”);
  • The Dislocated Worker Services Department at the Texas Workforce Solutions office for your region;
  • The highest ranking elected official at the local level of government in which the site is located (probably the Mayor or County Commissioner); and

The chief representative of the union or bargaining organization for union employees.

What is the notice supposed to say: To affected employees, the notice must explain whether the planned action is temporary or permanent, whether the entire facility will be closed, the expected date when the closing or lay-off will begin and conclude, information about bumping rights (if any), and the name of the company representative employees may contact for more information. To the other recipients listed above, the notice should include the items above, the address of the site, and what positions will be affected.

Are there exceptions to giving notice 60 days in advance: You still have to give notice, but the notice may be shorter if the layoff is the result of a natural disaster, unforeseeable business circumstances, or if the company falters. Understand, however, that the Department of Labor will take a very narrow view of what meets these exceptions and when the business really knew about the need to lay-off employees.

What happens if I do not give notice: Companies may be liable for up to 60 days back pay and benefits for the affected employee, plus possible penalties and attorney fees. That said, the Act specifically prohibits the government from attempting to prevent an employer from engaging in either a facility closing or mass lay-off.

Common Situations:

We may pull it out: MegaBrands has determined that it must make a mass lay-off at its Dallas ice cream making plant because Americans have flipped over Italian gelato and business is down. They prepare the required notice under the WARN Act and send it out. A month into the warning period an earthquake in Italy levels its biggest competitor. MegaBrands can hang on for a little longer. Will its past notice suffice? It depends. If the date the lay-offs are to begin is for some reason postponed by less than 60 days, notice must be given to that effect as soon as possible. If the date the lay-offs are to begin is postponed by more than 60 days, a completely new notice will be required.

No one can know: Secrets, Inc. is going to have to close one of its plants in Lubbock, but it fears advance notice of the closing will be a sign of weakness to its competitor who has been angling for a hostile stock purchase. Secrets, Inc. decides to pay all of the employees at the Lubbock facility 60 days pay but provides no notice before closing its plant. Employees are required to sign a release of all claims against the company in exchange for the payment. Can Secrets, Inc. avoid the WARN notice requirement by paying off its employees? Yes, but in this instance they did it wrong. Secrets, Inc. could make an unconditional payment to the employees effectively cancelling whatever recovery they would be entitled to under the Act. By requiring a release of all claims, however, Secrets, Inc. made the payment about more than just avoiding the WARN notice which does leave the employees with a compensable claim.

Will it happen this month: GigantiCo has facilities all over the country and has been trying to sell its Midwest division for the last two years. Hoping to find a suitable buyer and close quickly, GigantiCo has been providing WARN notices to its employees all over the United States every 60 days since the division went up for sale. Has the company overstepped? Yes, an employer may not attempt to circumvent the timing provided by the WARN act while driving its employees totally insane.

What should I do:

Good, Better, and Best: Comply with the notice requirements above if the act becomes applicable to your business. Be careful to consider this issue in a sale of the business. Most buyers require termination of all employees before the sale so that the buyer may pick and choose who it wants to keep.

Women Finally Allowed at Augusta National

By Michael Kelsheimer on Posted in In the News

The Wall Street Journal reported yesterday that Augusta National Golf Club has admitted two women as members: financier Darla Moore and former Secretary of State Condoleezza Rice.

Augusta Allows WomenI don’t know much about golf, but I do know that Augusta National is  hallowed ground in the minds of most golfers.  As an employment lawyer, I also know about the history of discrimination at the course.

What I didn’t know is that Augusta National has roughly 300 members or that women have been allowed to play the course as guests for many years.  In fact, there are only four days a year where “members only” events are conducted and women are (were) completely excluded.  I’ve also learned that you cannot “apply” for membership at Augusta, you are nominated and approved for membership by a board.

So, how did Augusta get away with keeping women out for so long?  It is a private golf club.  Yes, that matters.  You see, the decision to allow women at Augusta national doesn’t have a lot to do with employment law, but it does have to do with a common misconception folks have about Title VII and the other anti-discrimination laws.  People think that these laws prohibit discrimination anywhere – restaurants, parks, and private clubs.

Unfortunately, or fortunately (depending on your point of view) a purely private organization can still decide who can be a member.  So, just as the neo-nazi’s can restrict membership against jews, Augusta National can restrict membership to all men and the anti-discrimnation laws we enforce as employers have no effect.

What prompted the change you may ask?  A change of heart, perhaps?  Nope. Most commentators believe it was pressure from corporate sponsors.  Many of America’s largest corporations are very sensitive to diversity and some, are headed by women.  In fact, it is likely that IBM CEO Ginni Rometty was impetus for change.  IBM is a major sponsor of the Masters golf tournament which is held each year at Augusta National and its CEO is traditionally offered membership to the club.

Yet, the club did not announce membership to Rometty in the spring during the tournament.  Instead, it waited to the end of summer after the smoke cleared to pick two other high profile women to bring in as members in a likely effort to avoid being viewed to cow to pressure.

Regardless of the cause, I am glad to see the change.  Employment laws can go only so far to stamp out discrimination.  People have to do the rest.

Ellen Pao: Suing for Harassment and Still at Work

By Michael Kelsheimer on Posted in Uncategorized

Ellen Pao is a partner at Silicon Valley venture capital firm of Kleiner, Perkins, Caulfield & Byers.  She has recently filed a lawsuit against the company for sexual harassment as the Huffington Post reports.  Pao alleges that she was harassed by a senior partner in the firm who began excluding her from key meetings and withholding key information after she rebuffed his repeated advances.  The senior partner is no longer with the firm, but the trouble continues.  Pao is still working at the company.  She has not done anything to be fired and she hasn’t quit.

KPCB.com. No Claim to to Original Work

The Pao story brings into specific perspective an issue in employment that that many employers do not even conceive could happen.  Someone sues your company for discrimination, but is still working there.  Still facing you every day.  Still showing up for company parties, as Pao has done.  How uncomfortable!

It happens more often than you think.  An employee feels passed over for a promotion, or sexually harassed and talks to an employment lawyer who believes they may have a case.  The employee then files a complaint with the EEOC but doesn’t leave the company.  While uncomfortable, the employer lives with it since the EEOC is an administrative body investigating on its own.  And then, after the EEOC investigation concludes without resolution, the employee sues.

Now that the employer is spending money on a lawyer to fight an existing employee they invariably ask the question: “They are suing me! Can’t I fire them?”  And their lawyer will reply “No”, because, it would be discrimination to terminate an employee who is making a claim.  Whether the underlying claim has merit or not, the employer would certainly be violating the discrimination laws by letting the employee go with a lawsuit in play.

And, at the same time, the employee can’t really quit either unless they want to cut off their damages.  The only way an employee can quit in the face of discrimination without limiting their damages from that point forward is to be “constructively” discharged.  This means that the conditions at the workplace have become so bad that a reasonable person placed in the same situation would have no real alternative except to quit.  And, with the offending partner gone, that certainly is not the case for Ellen Pao.  So, she really shouldn’t leave.

The tension can become unbearable as both sides try to make it along that it often causes the employee to look for another job and the employer to look for a settlement just to get rid of the uncomfortable environment.

Just another twist on employment law you may not have been thinking about brought about by current events.

 

 

Drug Reps ARE Exempt from Overtime

By Michael Kelsheimer on Posted in In the News

Over the last several years virtually every drug company has been hit with a lawsuit about whether its drug representatives or “drug reps” are exempt from overtime.  In case you have missed them on TV or in the doctor’s offices, drug reps are the folks who visit your doctor hawking drugs from all of the drug companies to get physicians to prescribe them.  Coincidentally, that is where those samples your physician may have given you at one time come from.   These drug reps don’t actually sell directly to the doctors because the doctors are actually the folks who “sell” the product to their customers.  Rather, drug reps just try their best to get doctors to choose to prescribe the medications.

The argument in all of the lawsuits goes something like this:  Everyone is entitled to receive overtime if they work more than 40 hours a week, unless they are “exempt” from the overtime requirement under one of several permitted exemptions (see my previous posts on Overtime and Exemptions from Overtime).  ”Outside sales” are one of the groups that may be exempt from overtime.  For many years drug reps have been considered by drug companies as outside sales people, and in virtually every respect they meet the requirements of the exemption that were originally laid out by the Department of Labor.

Recently, however, the Department of Labor decided to take the position that drug reps do not meet the requirements of the exemption because they don’t actually “sell” anything.  As noted above, they just push physicians to choose to use their products and “sell” the drugs.  The Department of Labor then encouraged drug reps to bring suit against drug companies by publishing this narrow view as an interpretation of its own original regulations that should be followed by businesses.

Some of the courts where suit was filed accepted the Department of Labor’s interpretation of its original requirements, giving deference to the agency that originally wrote the rules.  Other courts found that the new interpretation was a self-serving attempt to narrow the outside sales exemption to produce more overtime earning employees.  In an effort to deal with the differing opinions among the courts of appeal, the issue was put to the US Supreme Court to decide.  Last week the Supreme Court handed down its final pronouncement on the subject.  In a 5-4 decision, the Court found that drug reps are properly “outside sales” and exempt from overtime.

The Supreme Court felt that the Department of Labor was being overly technical about what constitutes a sale and found that the Department’s interpretation did not deserve deference even though it originally wrote the requirements for the exemption.

I think this is the right result.  The drug industry is a unique environment that requires special consideration.  Drug companies would be happy to sell their products directly to patients, but they can’t.  Physicians have to be the one to decide when a drug is needed and should do so based on patient need and not to line drug companies pockets.  In this system, drug reps are the closest thing to a salesman that the drug companies could have to get their product to market.  Without them, physicians might not know about or choose to prescribe a particular medicine.  The Department of Labor overstepped its bounds and even tried to cheat by redefining its own rules and the Supreme Court was looking.

Besides, drug reps are exceptionally well paid.  Many make over $100,000 per year without any special additional compensation for working overtime.  They don’t need the extra compensation.

So, what does this mean for your business?  If you are a drug company, you should be very happy.  If, more likely, you have a different business, you should know that the outside sales exemption is alive and well and if you have similarly situated sales representatives, they should be well protected.  Otherwise, it probably has limited application for you because the drug rep environment is so unique.

How the New Health Care Law will Affect your Business and Employees

By Michael Kelsheimer on Posted in In the News

Guest author and Looper Reed tax attorney Jennifer Gurevitz offers some thoughts on the recent Supreme Court decision upholding Obamacare.

Now that the Supreme Court has confirmed that the Patient Protection and Affordable Care Act is constitutional and has upheld the individual mandate providing that all Americans have minimum essential health insurance coverage or pay a penalty, it is important to understand the implications this law has on businesses and their employees. Some key implications are as follows:

For Employers:

Employer Responsibility – Providing Health Insurance or Paying a Fine.

  • Employers with Less than 50 Full-Time or Full-Time Equivalent Employees. Employers with less than 50 full-time employees (those who work 30+ hours per week) or full-time equivalent employees (determined by dividing the total number of hours worked in a month by part-time employees by 120) are not responsible for providing health care coverage for their employees and are not liable for a fine for failing to do so.
  • Small Business Tax Credit. Small businesses (defined as businesses with 25 or fewer employees and average annual wages of $50,000 or less) are eligible for a tax credit of up to 50% of nonelective contributions the business makes on behalf of their employees for insurance premiums.
  • Employers with 50 or more Full-Time or Full-Time Equivalent Employees. Beginning in 2014, employers with 50 or more full-time or full-time equivalent employees will have the option of providing health insurance for all of their employees or paying a fine.
  • Fine for Employers who Offer Health Insurance. Employers must pay a non-deductible penalty of $3,000 per year for each full-time employee who obtains health insurance through a health care exchange and receives the premium tax credit if the employer does not offer minimum essential coverage to its full-time employees and their dependents. An employer does not offer minimum essential coverage if the employer medical plan contributions equal less than 60% of allowed costs, or if an employee pays more than 9.5% of his or her household income for health coverage. This penalty is limited to an amount equal to $2,000 multiplied by the number of full-time employees of the employer (less the first 30 employees).
  • Fine for Employers who do not Offer Health Insurance. Employers who don’t offer health coverage will be required to pay a non-deductible penalty of $2,000 per employee. An employer’s first 30 employees who would otherwise qualify will not be included in the assessment.
  • Employers with Over 200 Employees. In addition to the rules provided above for employers with 50 or more full-time or full-time equivalent employees, beginning sometime in 2014 after the IRS issues regulations, employers with over 200 employees that offer health coverage must automatically enroll new full-time employees in a coverage option and must also automatically continue existing elections for current full-time employees from year to year.

Health Insurance Exchanges. Beginning in 2014, health insurance exchanges will be established in each state or through the federal government for states that have opted not to create their own exchanges or are unable to operate an exchange by January 2014. Individuals and employers with less than 100 employees (some states may limit to 50 employees through 2016) will be able to shop for insurance through the exchanges. The exchanges have the option of including employers with more than 100 employees beginning in 2017. The use of the exchanges will allow employers to choose the level of coverage they will provide and to offer their employees choices among qualified health plans within that level of coverage. This will let employers offer plans from multiple insurers but receive a single bill and write a single check. Employers purchasing coverage through an exchange may be eligible for a tax credit of up to 50 percent of their premium payments if they have 25 or fewer employees, pay employees an average annual wage of less than $50,000, offer all full-time employees coverage and pay at least 50 percent of the premium.

Reporting Requirements. Beginning in 2013 (for 2012 Forms W-2), employers that provide health insurance to their employees, whether the employer or the employee pays the premiums, must disclose the value of health benefits on each employee’s W-2 . Employers filing fewer than 250 Forms W-2 for the previous calendar year are currently exempt from this new reporting requirement until the IRS issues regulations stating otherwise.

For Employees:

Increased Tax for Some Employees and Investors. Beginning in 2013, individual taxpayers with incomes in excess of $200,000 ($250,000 for couples filing married filing jointly) will pay an additional 0.9 percent Medicare tax on the excess. In addition, they’ll pay a new, 3.8 percent Medicare tax on unearned income, such as interest, dividends, rents, royalties, and certain tax gains.

Health Insurance Premium Tax Credit. Refundable tax credits are available to eligible taxpayers to help cover the cost of health insurance premiums for individuals and families who purchase health insurance through a health benefit exchange. Credits are available for people with incomes above Medicaid eligibility and below 400 percent of the poverty level ($92,200 for a family of four in 2012) who are not eligible for or offered minimum essential coverage. The credits apply to both premiums and cost-sharing.

Cap on Flexible Spending Accounts. Beginning in 2013, Flexible Spending Account Contributions will be capped at $2,500 and future caps will be tied to increases in the Consumer Price Index.

HSA Withdrawal Penalty. The tax penalty for an unqualified withdrawal from an HSA account has been increased effective January 1, 2011, from the current level of 10% to 20%.

Hiring Kids

By Michael Kelsheimer on Posted in Handbook Articles

Who, What, Why . . .

Who does it apply to: Virtually all business owners hiring individuals under the age of 18.

What is the minimum age to hire: There is a lot of variation about the minimum age to hire and there are different restrictions placed on various age groups:

• Any age: Farm work on a parent’s owned or operated farm; perform on television, radio, movies, or other theater productions (with a permit); work for a parent’s business in a “non-hazardous” position; and, believe it or not, gathering and making evergreen wreaths.

• Age 11: Delivering (not selling) newspapers.

• Ages 12 and 13: Farm work on someone else’s farm with a parent’s consent performed outside of school hours. The work may not be “hazardous.”

• Ages 14 and 15: Farm work in “non-hazardous” positions with the following restraints: (a) outside of school hours; (b) no more than 8 hours in a day or 48 hours in a week; and (c) no work between 10 p.m. and 5 a.m. on a day followed by a school day, or midnight and 5 a.m. on a day that is not. Non-farm work (except sales, solicitation, or work in a sexually oriented business) which is not “hazardous” with the following restraints: (a) no more than 18 hours in a school week or 40 hours in a non-school week; (b) no more than 3 hours on a school day, or 8 hours on any other day; (c) no work before 7 a.m. or after 7 p.m., except between June 1 and Labor Day when work hours are extended to 9 p.m.

• Ages 16 and 17: Any “non-hazardous” work for unlimited hours.

• Age 18 and older: Any job, whether “hazardous” or not, for unlimited hours.

What exceptions are available for hardship of the child: A 14 or 15 year old child may get a waiver of the restrictions by applying with the Texas Workforce Commission. The application must provide required information, including written statements: (a) explaining the need of the child to work to support himself or his immediate family; (b) the precise type of work to be done by the child for the employer; and (c) from the child’s school regarding the advisability of letting the child work.

What is considered “hazardous” work: Again, there are different rules for different ages:

• Ages 14 and 15 (Plus the section below): Work that involves manufacturing, mining, or processing occupations (including occupations requiring the performance of any duties in work rooms or work places where goods are manufactured, mined, or otherwise processed); cooking; baking; public messenger service; occupations connected with transportation (by rail, highway, air, water, pipe, or other means), warehousing, window washing, storage, communications, public utilities, preparing meat for sale, boiler and engine rooms, maintenance and repair of a business or its equipment, and construction except for office work associated with these business types; operating or assisting in the operation of powered machinery or vehicles other than office equipment; setting up, adjusting, cleaning, oiling, or repairing power-driven food slicers and grinders, food choppers, cutters, and bakery-type mixers; working in freezers or meat coolers, and loading or unloading goods to and from trucks, railroad cars, or conveyors. And, anything the Department of Labor or Texas Workforce Commission determine hazardous in the future.

• Ages 14 through 17: Work that involves, driving under certain conditions; manufacturing or storing explosives; mining; roofing; excavation operations; logging or saw mills; manufacturing brick, tile or similar products; wrecking, demolition, and ship-breaking; firefighting; exposure to radioactive substances; operating or assisting in the operation of hoisting equipment, balers, compactors, or powered woodworking, metal forming, punching, or shearing, meat processing, baking, paper-product, saws, shearing, or abrasive cutting machines. And, anything the Department of Labor or Texas Workforce Commission determine hazardous in the future.

How much do I have to pay: All employees of all ages are entitled to at least minimum wage, however, employees under the age of 20 may be paid $4.25 per hour (plus appropriate overtime, if any) for the first 90 calendar days or until they turn 20 – whichever comes first.

Do child workers require a work permit: Though a work permit is not required, Texas does have a certificate of age document that is available to children to prove their age to an employer. Child actors or performers under the age of 14 must obtain a permit.

Are there any other special rules for child actors: For child actors under 14, there are many additional restrictions. The restrictions include prohibitions against missing school, considerations about the conditions of the wardrobe and set environment and the proximity of the child’s guardian. This is a very particularized area and should be carefully navigated with the assistance of someone who understands the laws in this area.

What if I hire someone underage without knowing it: Under Texas law, you may be subject to civil penalties up to $10,000 per violation, and criminal penalties for a Class A or B misdemeanor. Under Federal law, you may be subject to separate penalties of up to $11,000 for each violation.

Common Situations:

But it’s not part of his job: Sal’s Supermarket hires Bobby, a 15 year old, to work as a sack boy and day stocker outside of school hours. The company is careful not to work Bobby more than the hours he is permitted under the law and to keep his hours during the permitted time of day. One day, however, an 18 year old senior stocker asks Bobby to put some empty cardboard boxes in the paper compactor. This innocent mistake happened for real to Chuck E. Cheese® who let employees under 18 operate its garbage compactor. This is probably the most common under age violation. In fact, as a 16 year old working at the local theater I operated an industrial sized garbage compact on a nightly basis.

Mowing the yard: Michael’s dad wants him to learn to be responsible and what it is to start working and managing money. He gets the maintenance man from their church to hire Michael to mow the church lawn on a riding mower every week. The job doesn’t really pay, but Michael’s father secretly provides $20.00 a week for the Church to pay his son. Based on what you’ve read, this is clearly a violation of the “hazardous” job requirement and probably a violation of the minimum wage requirement depending on how many hours Michael spends each week. (Yes, this was me, too. My father and I have recently settled out of court for an undisclosed amount.)

What should I do:

Good: Post required legal notice for child employment and, as a precaution, get written consent from parents or an age certificate for employees under the age of 16. Be sure no child under 18 is placed in a position that would be hazardous under the list above.

Better: The above, and in environments where “hazardous” work is done, educate supervisors to be sure not to allow children to act in hazardous capacities – even if it is not part of their regular job.

Best: All of the above, and evaluate all of your job descriptions for positions that involve “hazardous” work and set minimum age requirements at 18 in those job descriptions to avoid any risk.

Transgender a “Protected Class?”

By Michael Kelsheimer on Posted in Quick Questions

“Mia” Macy applied for a job with the Bureau of Alcohol Tobacco and Firearms and interviewed as a male candidate.  A former police detective from Phoenix relocating to San Francisco, Macy was repeatedly told by persons she interviewed with that she would be given the job she applied for.  Some time after interviewing, but before being hired, Macy reported to the organization that she was beginning the process of changing from a man to a woman.  Shortly thereafter Macy received notice that she would not receive the position because it was allegedly closed due to lack of funds.  Later, however, Macy learned that the position was not closed and had been filled by another candidate.

Following the public sector EEO procedures which are different than those in the private sector, Macy alleged sex discrimination and discrimination regarding gender assignment.  The allegation under gender assignment was rejected and Macy filed an internal appeal with the EEOC.  On April 20, 2011, the EEOC ruled that gender assignment is a “sex” discrimination claim.

What does this mean for Texas businesses?  Maybe a lot.  Maybe not much.  The decision is not binding on Texas or federal courts, but it will be used to suggest that these courts should adopt the position that gender assignment can result in a sex discrimination claim.  If a Texas state or federal court adopts the view that it is a claim, it may become the law.  I wouldn’t count on it happening any time soon, though.   The appeals courts that govern Texas both at a state and federal level have a reputation for being very conservative.  If a decision is made at a local level that gender assignment supports a claim for sex discrimination, it will most certainly be appealed and I cannot see any of the Texas appellate courts finding in favor of it.

Regardless of your views on the issue, however, it may be worthwhile to take the decision into consideration in future employment decisions.  Gender assignment is not likely to become a viable claim in Texas any time soon, but you would probably prefer to avoid the publicity and legal expense that comes along with being the guinea pig chosen to find out!

Texas Leads Nation in . . . EEOC Complaints

By Michael Kelsheimer on Posted in In the News

Everything is bigger in Texas.  Darn right.  Well, maybe this is one distinction Texas businesses could have done without.   In recently released EEOC complaint results for 2011, Texas ranked first. One in ten complaints across the US were filed in Texas.  Of those claims filed in Texas, race charges came in first, followed by sex, age, and national origin.

Folks, we are beating California where the employment laws and employee protections run rampant!  Let’s try to take some proactive steps to avoid this distinction in the future.

The NLRB Offers New Guidance on Social Media Polcies

By Michael Kelsheimer on Posted in In the News

Desperately trying to retain its relevance in a world where unions are going by the wayside, the National Labor Relations Board (NLRB) has taken up the issue of what employers can do about employee posts on the internet.

Under the National Labor Relations Act employees are permitted to engage in “concerted activity” which is to say they can complain about the terms and conditions of their work without risk of losing their jobs.  Of course, the difference between now and 20 years ago is that employee used to go to the bar on Friday night and complain about their supervisor over a game of pool or darts.  Now, they go home and post on Facebook where the whole world can see it.

For the last several years the NLRB has taken it upon itself to protect employee rights to post on Facebook, and I have no problem with the general idea of protecting employee rights to post.  What has been driving me and my clients up the wall is the NLRB’s attack on what employers can say in a social media policy without getting in trouble.

The Board has been draconian in terms of what is acceptable.  Specifically, the NLRB uses concern that an social media policy might have a “chilling effect” on an employee’s willingness to post on the internet as a basis to strip employers rights to restrict employees from activity that would not otherwise not be protectable.

In a 24 page report published last week, the NLRB offered tidbits from recent decisions.  These are some highlights:

“Don’t release confidential guest, team member or company information” is illegal because an employee might reasonably interpret that as prohibiting them from discussing their own situations on the internet.  Hence, it is apparently inappropriate for a business to tell employees to keep the company’s secrets.

You cannot tell employees to be sure what the post on the internet about the company is “completely accurate and not misleading”.  The limitation to the truth is apparently overly broad because it might interfere with an employee’s ability to say something so long as it is not “maliciously false.”  I recognize the NLRB wants to give latitude to employees before they get in trouble, but affirmatively advocating for their ability to lie so long as it is not “maliciously false” goes overboard for me.

“Report any unusual or inappropriate internal social media activity.” is a violation because it encourages employees to report the union activities of other employees to management.  Maybe that is true, but at the same time it prevents an employer from even knowing if an employee has posted the company’s secret formula for its product online!

“Get permission before reusing others’ content or images” is unlawful, because it interferes with employees’  right to take and post photos of, for instance, employees on a picket.  This is simply untrue.  It only asks that employees get permission before posting someone else’s private content or images.

“Resolve concerns about work by speaking with co-workers, supervisors, or managers” is also unlawful because the employees are not expressly told that they can skip the internal procedure all together and go straight to ranting on the internet.  I do not disagree that employees may take grievances to the internet, but the idea that an employer is somehow chilling an employee’s NLRA rights simply because they don’t explain how employees can use the internet to blast their grievances is ridiculous.

And you cannot protect yourself by putting in a disclaimer either.  ”This Policy will not be construed or applied in a manner that improperly interferes with employees’ rights under the National Labor Relations Act,” might not make expressly clear to the employee just what they can do under the act.

For the full report, have a look here.  You will be amazed.