The HR Specialist: Texas Employment Law

A company that contracted to provide gate attendants for oil fields has won its battle with the DOL over whether the workers are em­­ployees or independent contractors. The decision represents a big loss for the DOL, which sought repayment of more than $6 million in back wages—and has engaged in a nationwide campaign to force more employers to recognize independent contractors as employees.

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In some rare cases, employers can win a case in which they disciplined or terminated an employee for illegal reasons. Usually, the employer has to pay the employee’s legal costs. But it’s been an open question whether that’s true in “mixed-motive” retaliation cases. Now the 5th Circuit has clarified that the em­­ployer isn’t on the hook for em­­ployee attorneys’ fees.

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In a case decided the same day as UTSWMC v. Gentilello, MD, the Supreme Court of Texas concluded that complaining to senior leadership about alleged illegal activity doesn’t constitute protected whistle-blowing under the Texas Whistleblower Act.

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Genter’s Detailing in Frisco, Texas, has agreed to pay $22,345 to its employees follow­ing a DOL Wage and Hour Division investigation. The in­­vestigation revealed that the car wash and auto detailer regularly reduced the wages of 53 current and former employees by $200 to $400 for costs allegedly associated with damage to vehicles under their care.

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When an employee finishes FMLA leave, she is entitled to return to the same or an equivalent job. The reinstatement provision gives employees some flexibility. How­­ever, it’s a mistake to think it’s OK to return the employee to any old job.

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Here’s some good news for em­­ployers: According to a recent Supreme Court of Texas decision, workers who complain to their super­­visors about alleged illegal activities aren’t protected from retaliation under the Texas Whistleblower Act. That’s true even if the supervisor is responsible for legal compliance.

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Here’s another powerful reason to maintain meticulous wage-and-hour pay records. If you don’t—and a worker claims you owe him money for unpaid work—the court will rely on the employee’s recollection or records.

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One of the best ways to fight hostile work environment claims: a handbook with a strong sexual harassment policy that shows em­ployees exactly how they should report problems.

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The fact that a worker may endure slights, insults or even plots to drive him out of the job aren’t necessarily the basis for liability. It’s up to the employee to prove a connection between incidents and something like his race, age, disability or other protected characteristic.

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If you are receiving reports that a manager or supervisor is engaging in name-calling, look beyond the obvious problem. It just may be that discrimination is a pervasive problem. It’s your job to bring it to light before it’s too late.

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