The HR Specialist: Texas Employment Law

Some employers have retooled the traditional method of setting paid time off in separate categories by folding vacation, personal or sick leave entitlements into one “bank.”  So-called paid time off (PTO) programs offer benefits for employers and employees alike, but there are some potential pitfalls if you are not careful.

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Most federal district courts routinely hold that out-of-court settlement agreements, to the extent that they purport to waive FLSA claims, are unenforceable. That has made it difficult and expensive for employers to resolve pay issues, even when they realize they made a mistake and want to compensate the employee fairly. Last year, the 5th Circuit Court of Appeals took a more pragmatic ap­­proach in Martin v. Spring Break ’83 Productions.

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Before you approve a creative approach to paying hourly employees, be sure to get expert help. That’s essential if your em­­ployees may have to put in more than 40 hours of work per week, because you will have to calculate their regular rate of pay to calculate overtime compensation. And that’s something the DOL wants done right.

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An attorney in Texas Attorney Gen­­eral Greg Abbott’s office has filed a whistle-blower complaint claiming he has been forced to work in a hostile environment. Among his allegations: rampant discrimination, misuse of taxpayer dollars and falsification of hourly time sheets.

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Employees who participate in internal investigations into discrimination charges are protected from retaliation. That’s why it’s good policy to keep investigations confidential. Don’t divulge the names of cooperating employees to anyone who doesn’t need to know.

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Employees who file discrimination charges are protected from retaliation; any adverse action an employer takes afterward can be retaliation. The closer in time the two events are, the more likely a retaliation claim will stick. Your only real protection is having a rock-solid reason for your action.

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Most employers that use arbitration agreements require employees to sign them. If that’s your practice, don’t worry about getting the company’s “signature” on the dotted line. As long as the company can show it intends to be bound by the agreement, it is valid with just the em­­ployee’s signature.

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If a prehire drug test is inconclusive, you may want to offer the applicant a second chance to take the test.

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Despite the FMLA’s protections, supervisors are free to insist on consistent attendance. They can require employees to meet job goals as long as they don’t interfere with their FMLA rights and don’t treat them differently than employees who haven’t exercised their FMLA rights. Simply put, reg­­ular attendance is a reasonable work expectation.

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You can reasonably expect em­­ployees to cooperate with internal investigations so you can get all the facts and make well-informed decisions. You can and should discipline workers who won’t assist.

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