Texas Employment Law Update : Texas Employment Lawyer & Attorney : Russell D. Cawyer : Kelly Hart & Hallman Law Firm : Dallas TX Labor Updates

Hurricane season begins June 1 for the Texas coast.  The Tropical Meteorology Project from Colorado State University predicts in its 2009 Atlantic Seasonal Hurricane Forecast that there will be 12 named storms; 6 hurricanes; and 2 intense hurricanes this year.

Texas law protects most employees who evacuate their homes and work areas in compliance with a government evacuation order.  The law prohibits employers from terminating the employment of or otherwise discriminating against employees (other than emergency services personnel with adequate emergency shelter and employees needed to restore vital services) who leave their employment to to comply with an emergency evacuation order.  While evacuation orders are most frequently issued in Texas in connection with a  hurricane evacuation order, the law applies to any evacuation order.  Evacuation orders may be issued for emergencies such as wild fires, natural disasters, explosions or water contamination, chemical escapes or spills, terrorism activity, military action and other emergency actions.  Evacuation orders providing employees protection can be issued by local, county, state or federal authorities.

Not only are employees protected from discharge or discrimination from complying with such orders, they may also be eligible for unemployment benefits.  The employer's unemployment benefit account will not be charged for the benefits paid under this circumstance.

(Photo courtesy of NOAA Aug. 29, 2005 at 11:15 a.m.)

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By now most of  you have read or heard that President Obama nominated Sonia Sotomayor for the U.S. Supreme Court to replace Justice David Souter.  Judge Sotomayor is currently an appellate judge on the U.S. Court of Appeals for the Second Circuit based in New York.  She also served on the federal district bench before joining the Court of Appeals.  The following links are useful to anyone who wants to get up-to-speed on Judge Sotomayor and her judicial philosophy.

• Michael Fox has done a good summary of Judge Sotomayor's appellate opinions in employment cases.  You can find that summary here.
• The Supreme Court of the United States Blog has done a comprehensive review of Judge Sotomayor's civil opinions.  You can find a four part review of those opinions at Part 1, Part 2, Part 3 and Part 4.  For extra credit, here is the blog's summary of Judge Sotomayor's civil opinions with dissents (here).
• The WSJ.com discusses what effect, if any, Judge Sotomayor's diabetes might have on the confirmation process.  The article can be found here.  The WSJ.com also has views of Judge Sotomayor's appointment from commentators on the Left and Right.

Given that Judge Sotomayor has twice obtained Senate confirmation, most commentators are expecting that her appointment will be confirmed.  

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In 2008 the Genetic Information Nondiscrimination Act (GINA) was passed.  Earlier this year the EEOC issued proposed regulations interpreting GINA and those regulations are expected to be finalized this month.  GINA generally prohibits employers from possessing and using genetic information about individuals or from making employment decisions using that information, with several limited exceptions.  A number of other commentators have provided a great deal of thoughtful analysis about GINA and its proposed regulations.  The Employer Law Report, Connecticut Employment Law Blog and the Ohio Employer's Law Blog all have useful information on GINA.

In thinking about GINA's likely impact, I question whether it will have a significant effect on Texas employment practices.  First, the type of information protected by GINA is not the kind of information typically used or gathered by employers.  With the exception of employers who use healthcare providers to conduct business-related, post-offer of employment physicals, it is difficult to imagine a systemic employment practice an employer might engage in that would run afoul of GINA.  For those business-related, post-offer of employment physicals, employers can avoid violating GINA by instructing the healthcare provider to either take no family medical history from the individual or make sure it does not pass that information on to the employer.

Second, Texas has prohibited discrimination in employment on the basis of an individual's genetic information or refusal to submit to a genetic test since 1997.  Like GINA, the Texas statute also requires that any person holding genetic information must keep it confidential with few exceptions.  Although the law has been in effect for 12 years, there are no reported Texas state or federal opinions where an applicant or employee sued an employer alleging violation of the Texas statute.

At first blush GINA appears to be a solution looking for a problem.  While I think GINA  is an interesting statute --one which employers must pay attention to and comply with --it is unlikely to have a significant impact on the way employers operate on a day-to-day basis.

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I just returned from Tulane University Law School's 27th Annual Multi-State Labor and Employment Law Seminar held at the La Cantera resort in San Antonio, Texas.  (See brochure here).  Attendees and presenters at this conference are some of the finest and most experienced labor and employment lawyers in the country.  During my three days at the conference, I did an unscientific, anecdotal survey of the practitioners I visited with.  Without exception, the practitioners I talked to disfavored the arbitration of employment disputes.  I've already written about the disadvantages of arbitration on this blog. (See post here). However, I was surprised that I did not find a single lawyer at this conference (and I don't profess to have spoken to all or even a majority of them) that preferred trying a case in arbitration over a case tried to a judge of jury.  No one I spoke to had ever enjoyed the "benefits" of a faster or more inexpensive resolution of the dispute in arbitration than would have realized in court.  No attorney extolled the virtue of the the limited appeal rights or the "finality" arbitration promises over the appellate rights our Texas rules provide.  Therefore, I want to encourage Texas employers to abandon the use of mandatory arbitration programs with their employees in favor of adopting mutual waivers of jury trials.  To read about the advantages of jury waivers, click here.

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Following Arlen Specter's announcement that he was opposed to the Employee Free Choice Act in its current form and other senators expressing strong reservations about the bill (See Michael Fox's post here), there has been much speculation about what the next step will be in organized labor's attempts to obtain labor organization reform.  Will Labor seek to have a compromise bill passed this year?  Will it wait until the 2010 mid-term elections or until the economy improves to try and pick up a filibuster-proof majority in the Senate?  Only organized labor knows for sure what it will do next.

However at this weekend's 27th Annual Multi-State Labor and Employment Law Seminar sponsored by the Tulane University Law School in San Antonio, Texas, Nancy Schiffer, Associate General Counsel for the AFL-CIO in Washington, D.C. presented a paper entitled "Change We Can Believe In --The Employee Free Choice Act."  In her remarks, Ms. Schiffer unequivocally stated that Congress will pass some form of labor organization reform this year --likely before September 2009.  The remarks, from the Associate General Counsel of one of the nation's largest unions, makes clear that organized labor has not given up on its efforts to pass the EFCA in its current form. It appears that organized labor does not intend to wait until after the mid-term elections or an economic recovery to seek this reform.  I expect that organized labor will rejuvenate its efforts and lobbying campaign to pass the EFCA once Al Franken is seated in the U.S. Senate and the Democrats have  a 60 vote majority in the Senate.  Consequently, the stories of the EFCA demise may be greatly exaggerated and employers should not forgo their efforts to prepare for its potential passage. 

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With only a few weeks left in the 2009 Texas legislative session, here is an update on the status of several bills to watch for Texas employers.   To see a bill's current status, click on the links below that are updated by the Texas legislature.

• HB 32  Prohibiting discrimination against employees of workers' compensation nonsubscribers who sustain an injury in the course and scope of their employment.  (Update:  Left pending in subcomittee).
• HB 183  A bill to link the Texas minimum wage to the federal minimum wage.  (Update:  No action taken in subcommittee).
• HB 226 Prohibits an employer from discriminating against an employee that has refused to participate in an employer's charitable deduction campaign.   (Update:  No action taken in subcommittee).
• HB 978  To amend, and greatly expand, prohibited disability discrimination under the Texas Commission on Human Rights Act. (Update:  Passed in the House).
• SB 730 prohibits an employer from implementing policies prohibiting employees from keeping legal firearms and ammunition in locked vehicles on the employer's parking lot.  (Update:  Committee reports sent to calenders). 
• SB 986 To extend the statute of limitations for discrimination claims alleging discrimination in the payment of compensation.  State law equivalent of the Lilly Ledbetter Fair Pay Act.  (Update:  Referred to Business and Commerce Committee). 
• HB 615 Permitting employees with a child enrolled in a special education program and having at least one year tenure with the employer take 10 hours per year of unpaid leave to meet with certain school officials.  (Update:  Subcommittee members named).
• HB 1005 Requiring employers to provide employees employed at least 90 days to take up to 40 hours per year unpaid leave to meet with teachers or attend to certain school events, ceremonies or meetings. The bill also contains anti-retaliation provisions.  (See also SB 649).  (Update:  Subcommittee members named).
• HB 1057 Permitting employees with at least 6 months service to take not less than 2 weeks accrued paid leave for the birth or placement of adoption of a child.  Employees of employers that do not provide paid leave, who have insufficient paid leave or are ineligible for leave are entitled to between 2 and 6 unemployment benefits.  The bill does not mandate the creation of any leave programs but does provide a right to reinstatement for employees that utilize leave under this proposed law.  (See also SB 692).   (Update:  Subcommittee members named).
• SB 60   Requires employers to provide for unpaid time off to employees who are the victims of certain violent crimes to attend court proceedings.  The bill also provides a civil cause of action, damages and anti-retaliation provisions for violations.  (Update:  Referred to Business and Commerce Committee). 
• HB 538 Prohibits discrimination in employment on the basis of sexual orientation, gender identity or expression.  (Update:  Referred to State Affairs Committee).

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With the increased number of layoffs and reductions in force, many Texas employers are paying out large amounts of severance payments and wages in lieu of notice. Employers making these payments must not forget to comply with any court orders they have received regarding the deductions or garnishments from employee wages on these payments. A Texas employer that has received a spousal or child support order from a court must be sure to deduct the amount set forth in the order from any severance payments or wages paid in lieu of notice.

For example, if a child support order requires the employer to deduct $150 per month from the employee’s wages and the employer promises to make a 6 month severance payment to the employee, the employer must deduct $900 from the severance payment to comply with the court order. Since this wage deduction is made pursuant to a court order, no written authorization from the employee is necessary.

For more information on compliance with spousal and child support orders in the context of severance payments, see the Texas Attorney General website.

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On April 30, 2009, the Department of Homeland Security announced that it distributed new enforcement guidance to Immigration and Customs Enforcement.  The new enforcement guidance emphasizes the Department's focus on targeting employers who knowingly hire illegal workers and thereby cultivate illegal workplaces.

According to Ginger Thompson of the New York Times, the guidelines state that "ICE must prioritize the criminal prosecution of actual employers who knowingly hire illegal workers because such employers are not sufficiently punished or deterred by the arrest of their illegal work force."  ICE will also be looking for evidence of worker mistreatment, identification document fraud, trafficking, smuggling, harboring and money laundering.  Susan Carroll of the Houston Chronicle reports that “The guidelines require that field agents have either an arrest, indictment, search warrant –or at least a commitment from the U.S. Attorney’s office to prosecute the employer –before arresting employees for civil violations at the work site.”

Given the heightened targeting of employers by the Department and the increased possibility of criminal prosecution, employers should train their hiring officials to ensure they understand the importance of hiring only workers legally authorized to work in the U.S.  Employers should also conduct periodic I-9 audits to ensure that all employees have proper documentation authorizing them to work in the United States.  Finally, employers may also consider whether voluntary enrollment in the E-verify program is appropriate for their operations.  By taking these proactive steps, employers may be able to avoid the imposition of harsh monetary penalties and criminal prosecution.

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