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

I recently wrote about the importance of documenting employee performance deficiencies.  I also tried to outline several items to consider including in that performance documentation.  You can read my post here.

This week, two fellow blawggers posted additional examples about why documenting employee performance problems is essential.  Jay Shepherd at Gruntled Employees provides a humorous post on why "writing it down" is essential to winning a suit against a disgruntled employee.

Next, Michael Fox at Jotting by an Employer's Lawyer summarizes a real world example where the employer's failure to document the alleged performance problems caused it, in part, to lose a case against a former employee.

Keep these examples in mind when considering whether to document instances of employee misconduct or performance deficiencies.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Employees frequently stay connected with work through company issued smart phones.  Smart phones, like the iPhone, Blackberry, and Treo, allow employees to have access to their work e-mails, calenders and contacts --in addition to making and receiving calls.  In my practice, a smart phone is incredibly useful in staying in touch with my client's needs when I'm in court or out  of the office.  However, with every advance in technology, come employment law challenges.

As recently reported in the WSJ.com, several lawsuits have been filed seeking damages for unpaid work time spent reading and responding to e-mails and customer complaints outside of regular business hours.  For example,T-Mobile USA Inc. was sued in July 2009 by three current and former employees for unpaid working time claiming they were required to use their T-Mobile issued phones to read and respond to message outside of working hours. (View the Complaint here).  In March 2009, CB Richard Ellis Group, Inc. was sued by a maintenance worker for unpaid work time after hours that included reading and responding to e-mails on his company-issued smart phone.  (View the Complaint here). 

Jon Hyman at the Ohio Employer's Law Blog argues that even if employees use smart phones for isolated and sporadic short-term reading and responding to business e-mails, that time is not necessarily compensable time.   Hyman argues that:

Most messages can be read in a matter of seconds or, at most, a few short minutes.  The Fair Labor Standards Act calls such time de minimus, and does not required compensation for it.  "Insubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes, may be disregarded."

Hyman's point is a good one; however, can this time be precisely recorded for payroll purposes?  Redwood Technologies, for example, has a smart phone application (Momentum) that allows the user to capture time spent reading and responding to e-mails and time spent on the telephone.  It allows the user to allocate that time to different client accounts.  Although this same technology could be used by employers to capture the time nonexempt, hourly employees spend reading and responding to e-mails.  This may not resolve the administrative impracticality of determining which e-mails are personal or business related, I suppose that there are applications out there which would allow an employer to capture this time if it was so inclined. 

While is remains to be seen whether the time spent reviewing and responding to e-mails outside of normal business hours will be recoverable in an FLSA lawsuit, some commentators have suggested implementing polices to either pay employees for this time or to prohibit (by policy) employees from using company issued smart phones outside of working hours.  The following is a menu of options employers may consider in deciding how to deal with the issue of providing company issued smart phones to nonexempt, hourly employees. 

• Do not provide nonexempt, hourly employees with company issued phones capable of reading or responding to e-mail (i.e., smart phones). 
• Purchase a technology solution that captures the amount of time the user spends reading and responding to e-mail and pay nonexempt employees for that time.
• If the employer does not intend to pay for this off-hours review of e-mails, it should clearly set out its expectations that employees should not read and review those messages outside regular work hours.  For example, implement policies that prohibit employees from reading and responding to e-mails outside of regular working hours; require employees to leave company issued smart-phones at work; require employees to program the smart phones to turn themselves off during non-working hours. 
• Limit the employees that are provided with company issued cellphones to those who have a legitimate business need to be routinely contacted outside of business hours and limit that outside contact for matters where it is necessary.
• Pay employees who submit time for the nonbusiness hours review of e-mail and then discipline the employee for violating the employer's policy prohibiting business use of company cellphones outside working hours (if the employer has implemented such a policy).

If the lawsuits referenced above conclude with successful results for the employees (or in class certification), employers can expect to see many more of these kinds of cases filed. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Employees occasionally sue Texas employers for breach of contract claiming the employer violated its handbook policies in taking some action against the employee.  Texas law precludes most breach of contract claims premised on violations of an employee handbook where the handbook contains a provision expressly disclaiming any intent to create binding or contractual rights --whether express or implied.  

John Hyman at the Ohio Employer's Law Blog recently wrote a post explaining the importance of handbook disclaimers.  (See post here).  While John is an Ohio practitioner, the seven vital elements he explains should be included in a comprehensive handbook disclaimer apply equally to Texas employers.  John's seven vital elements include:

1. A specific statement that employment is at-will, without exception.
2. An explanation, in plain English, of what at-will employment means.
3. A statement that no one can create a contract contradictory to the provisions of the handbook.
4. A statement that the handbook is merely a unilateral statement of rules and policies which creates no rights or obligations.
5. A statement that the handbook is not a contract and not intended to create an express or implied contract.
6. A statement that the employer has the unilateral right to amend, revise, or eliminate policies and procedures as needed.
7. A statement that employees should not rely on any statement in the handbook as binding on the company.

One word of caution.  If the handbook contains some provisions where the employer does intend to create binding, enforceable contractual rights, such as an arbitration provision or waiver of right to jury trial, those provisions should be specifically carved out of the disclaimer.   Including an effective handbook disclaimer can provide a powerful defense to any breach of contract claim based on handbook provisions. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In addition to containing reasonable restrictions as to time, geographic scope and scope of activity to be restrained, Texas imposes additional requirements for enforceable covenants not to compete with licensed physicians.  Those additional requirements include that the covenant: 

1. not deny the physician access to a list of his patients whom he had seen or treated within one year of termination of the contract or employment;

2. provide access to medical records of the physician's patients upon authorization of the patient and any copies of medical records for a reasonable fee as established by the Texas Medical Board;

3. provide that any access to a list of patients or to patients' medical records after termination of the contract or employment shall not require such list or records to be provided in a format different than that by which such records are maintained except by mutual consent of the parties to the contract;

4. provide for a buy out of the covenant by the physician at a reasonable price or, at the option of either party, as determined by a mutually agreed upon arbitrator or, in the case of an inability to agree, an arbitrator of the court whose decision shall be binding on the parties; and

5. provide that the physician will not be prohibited from providing continuing care and treatment to a specific patient or patients during the course of an acute illness even after the contract or employment has been terminated.

This legislative session, the law was amended to clarify that these additional limitations are not required to enforce a noncompetition agreement covering a physician's business ownership interest in a licensed hospital or licensed ambulatory surgical center.  (Link here).  An ambulatory surgical center is a facility that operates primarily to provide surgical services to patients who do not require overnight hospital care.  In connection with a physician's ownership interest in those operations, only the standard requirements for enforceability in the non-physician context apply. 

The additional physician-specific requirements for covenant not to compete enforcement appear to still apply to those licensed physicians who perform management or administrative roles within hospitals and healthcare facilities. The new law become effective September 1, 2009.

 Follow the Texas Employment Law Update on Twitter here.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The U.S. Department of Labor recently issued guidance via answers to some Frequently Asked Questions regarding work furloughs.  The FAQs can be found here.  I've previously written on employer use of furloughs.  You can read that post here.

Richard Tuschman at the Florida Employment and Immigration Law Blog also has a good post on furloughs that explains some of the potential legal pitfalls furloughs can cause.  You can find his post here.

• Email This
• Print
• Comments
• Trackbacks
• Share Link