Employment Law

Employers must comply with various state and federal laws that deal with all aspects of the employee/employer relationship. Find Employment Law advice on: hiring, terminations/layoffs, immigration compliance, employment background checks, union organizing, workplace discrimination, disability law, FMLA leave, maternity leave laws, FLSA overtime labor law and state workers’ compensation laws. Find legally smart strategies and employment law advice to keep you out of court.

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    Because Texas is an “at-will” state, employers are generally free to fire employees for any reason or no reason. Of course, firing employees under circumstances that would be illegal under any specific employment law won’t fly. But other than that, there is only one other discharge reason that puts employees outside at-will employment: Employers can’t fire employees for refusing to perform an illegal act.

    Illegal immigrants who can’t legally work in the United States are still eligible for benefits under the Longshore and Harbor Workers’ Compensation Act (LHWCA), according to a recent 5th Circuit Court of Appeals decision.

    You may be worrying too much about firing an employee right after she files a discrimination complaint! If you can easily show that you would have fired her regardless of her complaint, a court is unlikely to connect her complaint with your decision. And in Texas, timing alone isn’t enough to prove the firing was retaliation.

    Following two days of deliberation, a Travis County jury has ruled against an Austin firefighter who accused the Austin Fire Department of discrimination.
    In September 2008, El Paso Police Department Assistant Chief of Staff Diana Kirk filed a lawsuit charging the city with discrimination and retaliation. Now the El Paso City Council has voted to settle the suit, which alleged bias against Hispanic and female members of the police department.
    Natalie Schroeder was seven months into a high-risk twin pregnancy when she missed a doctor’s appointment. Her boss at Advanced Neuromodulation Systems in Plano told her she had to finish a report before she could leave. Three days later she went into labor and delivered a healthy girl—and a stillborn son. Now she is suing.

    A Houston-area construction company will pay $122,500 to settle a lawsuit that alleged a Muslim employee had to endure religious and national-origin discrimination. The EEOC backed the lawsuit against Pace Services, filed by Mohammad Kaleemuddin.

    Q. We have an employee who recently submitted an expense report for more than $1,300 for an extended business trip. We accidentally reimbursed him twice. He did not report the double payment and we did not learn of the mistake until an internal audit two months later. Our company policy prohibits dishonesty and we want to fire the worker for violating this rule. Will he be able to collect unemployment benefits? May we withhold the vacation pay that is due to him under our policy, which would just about make us whole?

    Employees who complain about alleged discrimination are protected from retaliation for doing so. In order for the employee to win a lawsuit, the retaliatory act must be adverse—that is, it must be an act that affects the employee in more than an inconsequential way. In a recent case, an employee claimed that by merely ignoring her complaint, her employer was retaliating. The 2nd Circuit Court of Appeals nixed that idea.

    New York City employers may soon find out whether merely being obese is a disability under the New York City Human Rights Law (NYCHRL). That’s because the federal 2nd Circuit Court of Appeals has sent a case back to the trial court for just that determination. If the lower court concludes the NYCHRL does cover obesity, New York City employers will face three standards for disability—the ADA, New York State Human Rights Law (NYSHRL) and the NYCHRL.

    If you thought having a sexual harassment policy and a clear process for complaining was enough in New York, think again. The Court of Appeals of New York has ruled employers have to prevent supervisor harassment or face strict liability. The court rejected the so-called Faragher-Ellerth defense and said employers are strictly liable for supervisor harassment even if that harassment doesn’t result in direct employment-related harm.

    Sometimes, it seems as if employees just make up reasons to sue their employers. Fortunately for employers, when employees’ claims turn out to be ludicrous, courts quickly dismiss the lawsuits.
    Can you fire a current employee who, during employment, is convicted of a crime? It’s still not clear that you can fire him because of that conviction. Until the law is clarified, consult your attorney before firing someone based on criminal records.
    You may not be liable personally under the ADA, but that doesn’t mean you are entirely off the hook. Under the New York State Human Rights Law, an individual who “actually participates in the conduct giving rise to the discrimination claim” can be held liable for the consequences.
    Good news for those worried about being on the hook personally for ADA violations: A federal court considering a New York case has rejected an employee’s bid to hold supervisors personally liable for alleged disability discrimination.
    Q. We have all new employees fill out a data sheet. Is it OK to ask them to reveal their race on this form?
    The U.S. Department of Justice has mediated a settlement between a black highway worker and Green Brook Township, ending an EEOC lawsuit that alleged harassment and retaliation.
    On May 11, U.S. Citizenship and Immigration Services announced it will begin issuing a redesigned Permanent Resident Card, commonly referred to as the “green card.” Employers should familiarize themselves with the new card by visiting the USCIS web site, as they will soon be seeing the new card presented when employees complete required Form I-9.
    Workers at Charlotte-based Bank of America’s retail branches and call centers in five states have filed a lawsuit claiming they are due unpaid overtime from the banking giant.
    The U.S. Citizenship and Immigration Services does publish a Spanish-language version of the Employment Eligibility Verification Form I-9. But as noted by Gary Perl, a partner at Fragomen Del Ray in San Diego, “It’s not up to you to use that version … Employers can only use the Spanish form if their employees are in Puerto Rico.”
    “The battle lines are drawn,” said Greg Guidry, attorney at Onebane Law Firm in Louisiana. “Federal and state agencies are absolutely intent on cracking down on independent contractor misclassification. You have an increased chance of being audited this year and next year.”

    Sometimes, the best lessons are learned from the worst examples. That’s often the case with HR management. When employers make big mistakes and have to pay for them in court, other employers with good practices—that maybe need just a little tweaking—can discover what not to do. Here’s a good example:

    Q. We require all employees to be in by 9 a.m. One of our exempt employees is constantly late. Can we discipline exempt employees for poor attendance?
    The Department of Labor has launched a new web-based employment law guide on how to conduct union elections. The purpose: walking union members and officials through the steps necessary to comply with labor-relations law. If you have union workers, you owe it to yourself to learn how they'll probably conduct their next election.
    Q. We want our employees to know that they don’t have guaranteed employment. Can you provide an example of a tough at-will statement that we can give them?
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