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The HR Specialist: Texas Employment Law

In 2007, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs selected Frito-Lay for an audit by issuing a scheduling letter. Two years later, the agency re­­quested hiring data for January 2008 to October 2009 claiming it had found a “statistically significant” difference in its hiring rate for women at its Dallas facility. Frito-Lay refused, claiming the scheduling letter did not authorize the new data’s release.

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When Suzanne Benoit, SPHR, joined Wright-Ryan Con­­struc­­tion as its HR director, she learned that the company had been using an annual performance review process that wasn’t yielding the results it wanted. She then created a new process designed to improve performance, accountability and employee engagement. Here’s a conversation we recently had about how that process worked and its results.

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Whether it is a small inquiry that might only involve a couple of questions, or a weighty investigation into serious allegations of misconduct, being deliberate and intentional about an investigation will create a more helpful and less disruptive process.

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USERRA makes it illegal to discriminate against those who serve. Counting the time off required for reserve personnel to train violates USERRA. Make sure you don’t count it.

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In a bizarre legal twist, the 5th Cir­­cuit Court of Appeals has ruled that a supervisor who was sued over his decision to terminate an employee for taking FMLA leave may be personally liable for terminating her—despite the fact that the public employer may be immune to an FMLA lawsuit.

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When you evaluate whether a former employee may sue you successfully over her discharge, consider this: If you replaced her with someone belonging to the same protected class, she’ll have a hard time winning a lawsuit that claims you were biased against her class.

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Sometimes, simple medical procedures turn out to be not so simple after all. A few days off for outpatient surgery may morph into a lengthy FMLA leave and render the employee disabled. Don’t jump the gun and terminate the employee without considering whether he’s now entitled to FMLA leave and reasonable accommodations.

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Want to avoid unnecessary lawsuits over whether an applicant is qualified for a job opening or promotion opportunity? Then make sure your job announcement includes specific information about minimum requirements so that those don’t become the basis for a lawsuit.

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Here’s some good news for HR managers handling sexual har­­assment complaints. As long as you act fast, investigate and use your best efforts to prevent a repeat performance, one sexually explicit comment isn’t grounds for a lawsuit.

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Employees are entitled to fair treatment, but that doesn’t mean HR has to become a court of law and prove beyond a reasonable doubt that an employee did something deserving of discharge. As long as you reasonably believe an employee broke a rule or other­­wise did something deserving of discharge, a termination will stand up to a legal challenge.

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