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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Q. A staffing agency has informed my company that a temporary worker who was previously assigned to us is returning from a leave under the FMLA. What are our obligations to this individual?

You can terminate employees who are unable to return to their jobs after their FMLA leave has expired. Just make sure you’re consistent. If you apply the same termination rule to all employees—regardless of race, age, sex or membership in any other protected category—you won’t have to worry about lawsuits.

Some employees may want to save up their FMLA leave for an anticipated event like a birth or upcoming surgery. Even if they’re eligible for intermittent FMLA leave, they may request that they not be docked for the time off. If you agree not to charge the time off against FMLA leave, make sure you document the request. Then feel free to treat the absences as you would any other absence under your attendance policy.

Here’s a bit of good news for employers facing an angry former employee who wants to sue but can’t find an attorney willing to take the case. Courts are unlikely to appoint an attorney to help with the litigation if the EEOC has already concluded that there wasn’t enough evidence to warrant taking up the case itself.
The 5th Circuit Court of Appeals has refused to expand the ways in which employees can charge their employers with age discrimination. It ruled that the ADEA pre-empts Section 1983 of the Civil Rights Act when it comes to age discrimination.

Former employees of Brazoria County have filed an EEOC lawsuit claiming that a former judge sexually harassed them and that the county ignored the presence of sexual harassment in the workplace. The two women, previously employed in the county’s juvenile probation department, claim that Judge James Blackstock, who resigned last year over the scandal, has been harassing female county employees since 1993.

Houston Mayor Annise Parker has signed an executive order protecting lesbian, gay, bisexual and transgender (LGBT) city employees “at every level of municipal government” from discrimination and harassment based on their sexual orientation.
Texas residents had one of the nation’s lowest per capita tax rates in 2009, according to the watchdog web site Taxadmin.org. Texas ranked 46th in state per capita taxes in 2009, up two slots from 48th in 2008.
According to the latest numbers from the Bureau of Labor Statistics, Texas gained almost 60,000 union jobs last year, and the rate of union membership grew from 4.5% in 2008 to 5.1% in 2009.

Here’s a big new worry for Texas employers: Employees who want to sue over long-ago discriminatory pay decisions can do so within 180 days of the last discriminatory paycheck, at least according to one state appeals court. The 1st Court of Appeals has ruled that the federal Lilly Ledbetter Fair Pay Act applies to discrimination cases under the Texas Commission on Human Rights Act as well as Title VII claims.

You know how important it is to consistently apply disciplinary rules and ensure no form of bias creeps into the disciplinary process. That’s one reason it’s crucial for HR to keep disciplinary records on file. If employees allege that you disciplined them in a discriminatory way, you’ll be able to show no one was treated more favorably than anyone else.

Employers have the right to set grooming policies—within limits. One thing you can’t demand: Grooming practices that may be impossible for some employees to follow. Consider, for example, a rule that forbids facial hair. That could have a disparate impact on black men because of a genetic and permanent skin condition called pseudofolliculitis barbae. The condition makes it impossible to maintain a closely shaved face.

If you decide not to hire an applicant based on a background check, the applicant has a right to see the information the reporting agency provided. But what about complaints from customers or clients that become the basis for termination? Do those complaints have to be disclosed to the fired employee? Not according to a recent 5th Circuit Court of Appeals decision.

Let’s say you’ve got one very good reason to fire an employee, plus several other halfway decent reasons. Why not wrap them all into one big package of employee shortcomings when it comes time to show her the door? Because such overkill could play badly in court if the dismissed employee ever sues you.

Alliance Rental Centers recently agreed to pay $21,500 to settle an EEOC religious discrimination suit brought by a former employee whose religious beliefs kept him from complying with the company’s dress code. The conflict emerged when Tyler Templeton, who worked in the company’s Bridgeport Aaron’s Rents store, refused to participate in the “Red Shirt Friday” program in which employees wore special shirts to show support for the U.S. military.
The U.S. Department of Labor has announced that Cobra Stone will pay its quarry workers $364,403 in overtime back wages. The Florence-based company, which produces natural stone for construction projects, will pay the back wages to 169 current and former employees.
A former employee is suing Mike Smith Autoplex and Group 1 Automotive, claiming he was forced to resign from the Beaumont car dealer because of his race.
Texas nursing home employees who report alleged patient abuse to state authorities are protected from retaliation under the Texas Health and Safety Code—but only if they formally report the problem.

What should you do if an employee becomes disabled and can’t perform the essential functions of his job under any circumstances? The employee may be entitled to a transfer to another position—if one is open and the employee is actually qualified for the position. But you don’t have to move employees around to create an opening.

Employers sometimes try to avoid taking sides when they learn of possible sexual harassment out of fear that one of the employees involved will sue. Then the situation escalates, and they end up in court anyway. The only realistic employer response: Be prepared to make tough decisions. Investigate the claim.

Employees who are transferred to other positions after complaining about discrimination could end up collecting big from their employers. That’s true even if the transfer doesn’t result in a base pay cut or lost benefits. Reason: The law lets juries punish employers for retaliation based on factors such as lost prestige, overtime pay and other, less tangible benefits.

Employers that change their disability or other benefit plans know to inform their employees about those changes. But what about employees on military leave? Make sure they get notice, too.
Most employers know they aren’t allowed to destroy evidence (including e-mail, other electronic communications and records) when a lawsuit is imminent. But what about when an employee who is about to sue the employer destroys evidence? Employers can use that destruction to their advantage in a lawsuit.

The costs of employee absenteeism—reflected in lost production, overtime and temporary replacements for the absent worker—can add up quickly. What’s the best way to combat the problem? With a clear policy, careful documentation, consistent application of the policy and progressive discipline.

If you’re considering hiring inmates through a work-release program, carefully weigh whether you will have to pay them as regular employees under the FLSA, or whether you may be able to pay them less. According to a recent 5th Circuit decision, prisoners specifically sentenced to hard labor may not be covered by the FLSA. Their employers may pay them less than minimum wage, and they’re not eligible for overtime pay.