HR Specialist: Texas Employment Law

Everything’s bigger in Texas – including employer liability. Aggressive attorneys don’t stop with federal laws like FMLA, ADA and FLSA: they use state and local living-wage statutes, rural codes, plus discrimination and other laws to sue employers for sky’s-the-limit damages. This Texas-specific newsletter arrives monthly to help sue-proof every aspect of HR. Written in plain English, it’s your insurance policy for staying in step with current interpretations of state and local laws – and staying out of court. Learn more about HR Specialist: Texas Employment Law and the free report you’ll get when you subscribe...

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Work site enforcement efforts directly support the Department of Homeland Security’s border security measures, Secretary Janet Napolitano said at a recent border-security conference. She said keeping illegal immigrants from crossing the U.S.-Mexico border depends on making sure employers don’t hire undocumented workers ...

Like most employers, you probably have a rule that tells nonexempt employees they must take their meal breaks. The rule is there to prevent FLSA violations for uncompensated work. But having the rule isn’t always enough—especially if some of your supervisors encourage employees to work during their breaks or turn a blind eye when they do.

Here’s a reason to slow down and act deliberately when disciplining an employee who has filed an EEOC complaint: A court has concluded that coincidental timing alone can be enough to keep a case alive. That’s true even if it turns out that all the accusations in the EEOC complaint turn out to be unfounded.

Employers that need seasonal employees often rely on foreign workers to fill those slots. Workers from other nations must apply for an H-2B visa before coming to the United States to work. Until now, the 5th Circuit Court of Appeals had not yet decided whether expenses related to H-2B workers’ travel to the United States had to be reimbursed by the employer. It has now decided that they do not.

The U.S. Supreme Court has ruled that the city of New Haven, Conn., violated the rights of white and Hispanic firefighters who took promotion exams when it refused to use the test results to promote the highest scorers. The court ruled that the city could not use “[f]ear of litigation alone” to justify rejecting the results simply because the test appeared to have a disparate impact on another minority—namely the black firefighters who took the test.

An employee facing discipline may bristle if you choose to believe someone else’s version of what happened instead of his own. He may even offer to take a lie detector test to prove what he’s saying is true. You don’t have to accept that offer.

Here’s an important reminder for all managers and supervisors: If the workplace becomes a battleground over employee religious beliefs, count on a lawsuit. The best policy: Keep religion out of the workplace as much as possible. After all, we’re here to work.

Employers know they are not supposed to discriminate against employees based on protected characteristics such as race, age or sex. But HR can’t be everywhere, and in large organizations, it may be hard to monitor equal treatment. A centralized discipline-tracking system can help you check for possible hidden discrimination by comparing proposed discipline against past discipline.

Employees sometimes don’t do what they are told to do because they don’t think the task is possible or is too hard. If you fire such an employee for breaking a company rule—“Do what your boss tells you to do!”—you might be able to defeat the employee’s unemployment compensation claim.

A Galveston County registered nurse is suing the University of Texas Medical Branch, arguing that she was discharged from her job because of her race.

A federal district court has ordered Lufkin Industries, the East Texas oilfield and industrial equipment manufacturer, to pay more than $3 million in back wages to a group of approximately 900 employees who claim they were victims of race discrimination.

Men can sexually harass men, and women can sexually harass women. The U.S. Supreme Court has outlined three ways an employee can prove that an incident of same-sex harassment is sex discrimination:

According to a critical report surveying the construction industry, 20% of Austin-area construction workers last year reported on-the-job injuries that required a trip to the doctor, and 20% of those employees said employers refused to pay their medical bills.

Many employers have rules that prohibit off-duty conduct that may reflect negatively on the company. But even with such policies, it’s tricky to discipline employees for the things they do on their own time away from the workplace. In fact, you’re free to use discretion in deciding whether an employee should be warned, suspended or terminated.

Terminations aren’t always clean. Sometimes they’re damned-if-you-do, damned-if-you-don’t situations. That’s often so when you conclude that an employee harassed another and must be terminated. With nothing to lose, the fired employee may try to concoct a discrimination lawsuit.

When the person who hires someone is the same one who conducts the firing, courts typically discount the idea that discrimination was involved. After all, why would someone who hired an applicant discriminate later because of that person’s age, race or sex? But be aware that the defense doesn’t always work if there is clear discrimination evidence.

Here’s another reason to act fast when an employee says a co-worker has sexually harassed her: Employers that act quickly seldom lose sexual harassment lawsuits if their action stops the harassment.

Be careful if you transfer an employee who filed a discrimination complaint to another position. Even if the new job provides the same benefits and pay, it may look like retaliation if the position comes with fewer advancement opportunities.

The owner and two managers of a Houston-based used clothing exporting business were recently sentenced to prison for conspiring to harbor illegal immigrants. During a raid at Action Rags USA Inc. last year, ICE agents arrested 166 undocumented workers from Mexico, El Salvador, Guatemala and Honduras.

Rosanne Piatt, an instructor at St. Mary’s University School of Law, recently filed a charge of discrimination with the EEOC and the Texas Workforce Commission Civil Rights Division. She claims the university discriminated against her on the basis of her age and gender.

Texas Workforce Commission Chairman Tom Pauken of Dallas recently announced that Texas employers should expect their unemployment insurance taxes to rise significantly next year. Pauken said the increase in layoffs is close to exhausting a state trust fund.

Texas’ Third Court of Appeals in Austin recently upheld a jury’s order that Carl Yeckel, the former president of the board of directors at the Carl B. & Florence E. King Foundation, give up $5.3 million in excess compensation that he and other board members allegedly authorized for themselves.

Employees who qualify as “disabled” under the ADA have the right to reasonable accommodations to allow them to perform the essential functions of their jobs. But choosing those accommodations requires an “interactive process” between employer and employee. Employers that rush to judgment about the alleged disability or the accommodation request will risk legal trouble.

It’s easy enough to do. While calculating an employee’s remaining FMLA leave, you make a mistake and tell the employee he has to return by a certain day when in fact his leave expires earlier. How can you fix the problem if you discover it while the employee is out on leave? Just let him know that you made a calculation mistake and give him the correct information—before he has to return.

Employers often get into trouble when they punish someone who has filed an internal harassment or discrimination complaint. But that doesn’t mean you shouldn’t discipline employees for legitimate reasons just because they filed an unrelated complaint. The key is being able to show a good reason for your actions.