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

Every once in a while I write a post just for fun. One example was the post I wrote about religious reasonable accommodation and the Church of the Flying Spaghetti Monster.  Today is another fun post I felt compelled to write to justify the hour I spent watching funny video's this weekend --the first weekend without real football (Yes, I know the Pro Bowl was last weekend but that is not real football).  

Follow me on Twitter @RussellCawyer.

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As I was driving home last night, NPR played a clip from the 1947 folk song "16 Tons."  Its a catchy tune about 1940's coal mining.  The chorus of the song has the coal miner asking St. Peter to delay his death because he owes his soul to the company store.  Employers used to provide "company stores" for employees where they could purchase items (usually at inflated prices) from a store owned by the employer.  Employees "paid" for their purchases through debts secured against their wages.  Here is Tennessee Ernie Ford's rendition of "16 Tons."

While there are few employers that maintain "company stores," many states have enacted laws that prohibit employers from requiring employees to purchase the employer's products. Some employers have been sued because they maintained policies that require employees to buy and wear their brands while working --the modern equivalent of the "company store."    

Texas has a law that prohibits employers from requiring, through coersion, employees to purchase items from the employer.  The Texas Labor Code provides a modest monetary penalty for any person that requires or attempts to require an employee to purchase food, clothing or merchandise from a place or store. Despite the fact that this law has been in place since 1993, there are no Texas cases citing the section.  This suggests that Texas employers are not requiring employees to purchase items from the employer or the statute's lack of a civil remedy (i.e., a cause of action to sue for in court) means that these practices aren't seeing the light of courthouse.

A copy of the Texas Labor Code provision is available here.

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Last week there was a lot of coverage about Mitt Romney's remarks on being able to terminate those who provide services to him.  In viewing his remarks, I think the criticism of his comments comes, not so much from what he said, but how he said it.  In a somewhat cavalier manner, Romney said he liked have the option to be able fire people; not that he liked firing them.   Here is the context of what he had to say:

Romney's remarks have been construed to mean that he likes firing people; something I don't think he said or meant.  However, I've written before on the dynamics of terminating the employment relationship with employees.  Studies have shown that losing a job can be one of the most stressful life events one can experience --akin to the loss of a family member or divorce.  And while terminating the employment of an employee is not normally easy, it is an inevitable part of most manager, supervisor and human resource professional's job.  

Terminating the employment relationship with an employee is a serious matter and should be treated as such.  When communicating the decision, an employer should be guided by being as compassionate as is possible under the circumstances.  That doesn't mean that the decision is debated with the employee.  Rather, it goes more into delivering the planning of the announcement. Plan to communicate the decision in a way that will minimize the trauma to the employee to the extent possible.  Take steps to ensure that the employee is not unduly embarrassed by the decision.  It is good to remember that we are all human before communicating an employment termination decision, particularly where there is not egregious.  We all have families to support and the decisions made by employers, and the employees who call upon employers to make those decisions, have consequences.  Communicate adverse employment actions to employees accordingly.  And never, never (whether you are running for President or not) tell anyone you like firing people.

Follow me on Twitter @RussellCawyer.  

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Wow!  That is all I could say after I read the recent NLRB decision holding that an employer's requirement that employee sign mandatory arbitration agreements waiving the right to litigate claims in a collective or class action violates the National Labor Relations Act.  

In the case styled D.R. Horton, Inc. and Michael Cuda, the Board considered an arbitration program used nationwide by the home builder employer.  The arbitration agreement, signed by all employees, required that all disputes be resolved through arbitration and that no disputes would be arbitrated on a class or collective basis in any forum, judicial or arbitral.  When Michael Cuda sought to bring a nationwide wage and hour class action on behalf of all of the company's superintendents, the company sought to enforce the arbitration agreement and its mandate that claims be litigated individually --not collectively.  Cuda filed an unfair practice charge claiming that the waiver of arbitrating or litigating claims on a representative, class or collective action basis violated the employees' Section 7 rights to engage in mutual aid or protection.  

Since the U.S. Supreme Court decision in Concepcion, more employers have incorporated strategies to ensure that claims are litigated on a level playing field by requiring employees to arbitrate or litigate those claims on an individual (or non-class action) basis.  Notwithstanding the Board's commentary to the contrary (i.e., the Board professed that the decision would impact few agreements), the Board's decision will have widespread ramifications on companies use of arbitration programs.  Despite the disadvantages that arbitration carries, one advantage was the widespread belief that employers could better manage the prospect of having to litigate class actions with large numbers of their workforce through arbitration agreements designed to decide claims on an individual basis. The decision in D.R. Horton eliminates that potential advantage of arbitration.  Moreover, the Board's decision is not limited to arbitration programs and its rationale may be applied outside of arbitration agreements such as agreements with individual employees

Finally, because it is a decision applying federal labor law, a law that applies to most employers and employees, the Board's position could have wide-reaching, adverse consequences for employers seeking to control the risk of defending against class or collective actions.  This is an important decision that warrants following through the inevitable appeal that D.R. Horton will make.

You can download a full copy of the Board's decision here.

Follow me on Twitter @RussellCawyer.

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The current federal administration is making significant changes in employment law through its rulemaking and regulatory authority rather than seeking Acts of Congress.  Another example of this method of legislature-through-rulemaking is the new federal regulation taking effect on January 3, 2012 that prohibit all commercial motor vehicle drivers from using hand-held telephones while driving.  The new rules provide significant penalties for drivers and employers of drivers caught violating them.

In summary, the final rule provides as follows:

• Restricts use of hand-held mobile telephone by drivers of commercial motor vehicles;
• Prohibits employers of CMV drivers from requiring or allowing drivers to use hand-held mobile telephones while driving and provides a civil monetary penalty of up to $11,000 per violation;
• Imposes new driver disqualification sanctions for drivers violating the rules, or state law equivalents, on multiple occasions;
• Requires states, within three years, to implement the new rules regarding disqualifying CDL drivers for violating the new serious traffic violation of using a hand-held mobile telephone while driving a commercial motor vehicle;
• Provides limited exceptions for communications to law enforcement personnel and emergency services;
• Applies to school bus drivers and drivers of small, passenger-carrying vehicles (designed to transport 9-15 passengers), not for direct compensation that were otherwise exempt from the Federal Motor Carrier Safety Regulations;
• Defines "use [of] a hand-held mobile telephone" to include holding, dialing and reaching in a proscribed manner to conduct voice communication;
• Includes "push-to-talk" functions within definition of hand-held mobile telephone. 

If you are a CDL driver or employer of CDL drivers, you should review these regulations carefully and update your fleet management and employee handbook policies accordingly.  A full copy of the final regulation can be accessed here.

Follow me on Twitter @RussellCawyer.

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I read a thought provoking article by Colin Turner in Business Review Europe about the importance of rewarding employees at Christmas and how those rewards can motivate employees. The article emphasized the importance of rewarding employees not only for the service they have provided, but to reward them prospectively for the service the employer expects to receive. This pay-it-forward concept is exemplified by the following: 

The tale goes that prior to the 18^th century you would give a tip to the groom at the Highway Inn in advance of the service you wanted. This was to insure performance that your horse would be fed and watered. Similarly if we want the best out of employees we must take the opportunity to reward them in advance of the service we expect and at the time when people really want to be valued – Christmas or the Festive Holiday.

The take-away from the article was that if employers should treat their employees as the valued professionals it expects and wants them to be, the employees will respond accordingly. Its an interesting philosophy to think about and may be successful in motivating some employees.

A full copy of Colin’s article can be review in at page 60 of December's Business Review Europe published by White Digital Media.

Follow me on Twitter @RussellCawyer.

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Last weekend, the Dallas Cowboys lost a close game to the Arizona Cardinals.  If you watched the game, you know how it ended (and probably have a bad taste in your mouth).  For those of you who didn't see the game, here is a summary of what occurred.  

With two minutes left it the 4th Quarter and the score tied 13-13, Dallas is driving down field.  At about 28 seconds left in the game and still possessing 2 timeouts, Quarterback Tony Romo completes a pass to Dez Bryant to Arizona's 32 yard line making a first down.  Rather than calling a time-out to run a few plays to gain a few yards for a shorter game winning field goal attempt, Dallas ran the clock down to 7 seconds before stopping the clock.  Then, a split second before his kicker kicks the field goal, Dallas head coach Jason Garrett called a timeout --but not before the kicker knocked the 49 yard field goal through the uprights.  Because Garrett called the timeout, the kick had to be redone and was missed.  The teams went to overtime where the Cowboys lost.

In the post-game press conference, Garrett refused to accept blame for any of the poor time management and decisions made in the final minute of the game. Moreover, with 24 hours to reflect on the events of the game (and every sports radio and television talk show critical of his decision), in Garrett's Monday press conference, he did not accept blame nor did he concede that perhaps he should have made different decisions.  His explanations appeared, to some, to be of questionable believability.

And here is where the lesson lies for employers.  From time-to-time we all make mistakes. When an employer, with the benefit of hindsight, makes an obvious mistake in the manner or treatment of an HR issue, the employer should not attempt a cover-up or set forth explanations of dubious believability.  Rather, the employer should consider whether a sincere apology is in order along with taking steps to minimize or correct the mistake.  Of course acknowledging or admitting to a mistake may be used against the employer as an admission and can carry adverse legal consequences.  It may, however, help the employer avoid a lawsuit altogether. 

Garrett's explanations for his game day decisions, in my opinion, did far more to undermine faith in his judgment and credibility than a simple acknowledgment of his mistake would have done.  Employers can learn from his mistake.

Follow me on Twitter @RussellCawyer.

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What do you get as a holiday gift for the HR person who has everything?  Here are 5 suggestions:

1. The Nothing Surprises Me, I Work in HR Ipad Case (It would be nice if the Ipad were supplied too).
2. Show me Your Resume Wall Clock.
3. The Essential HR Handbook: A Quick and Handy Resource for any Manager or Human Resource Professional by Sharon Armstrong and Barbara Mitchell 
4. The Employer's Legal Handbook by Fred Feingold, J.D.  
5. An 8 lb Smoked Turkey from Greenberg Smoked Turkey, Inc.  I couldn't find a way to link this an HR subject, but a Greenberg Smoked Turkey is so darned good I had to include it on the list.

Of course what would really be nice is an increase in the 2012 HR training budget; the ability to provide merit increases to worthy employees; and job growth and security. 

Follow me on Twitter @RussellCawyer.

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A service letter is a letter issued by a former employer stating an employee's dates of employment; position held; and reasons for separation of employment.  There are two uses employees typically make of service letters.  First, they are used to document or confirm a segment of the employee's work history or to use to qualify for unemployment benefits.  More frequently, however, service letter are requested by employees who have left employment involuntarily and are considering some form of legal action against the employer and want to take the letter to an attorney.  Texas has a service letter statute on the books that purports to require the employer to provide an employee the truthful reason for discharge.  It provides that:

A corporation, company, or individual may give, on application from a discharged employee or a person desiring to employ the employee, a written truthful statement of the reason for the discharge. The statement may not be used as the cause for a civil or criminal action for libel against the person who furnishes the statement.

The Texas Attorney General has a long-standing opinion that Texas' service letter statute is unconstitutional.  Consequently, Texas employers are under no obligation to issue, under the service letter statute, a written explanation of the reasons for an employee's discharge.

Follow me on Twitter @RussellCawyer.

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It is almost 2012 and here is a list of seven items you want to make sure you have, or consider adding, to your employee handbook for the new year.  

• Social Media Policy providing employees with proper guidance on acceptable and unacceptable uses of social media and containing a disclaimer that no provision of the policy is intended to infringe on employees' NLRA Section 7 rights (i.e., to engage in concerted activity for their mutual aid and protection and to collectively bargain).
• Social media policy that incorporates provisions regarding employee endorsements that comply with the Federal Trade Commissions guidance on those endorsements.
• Consider adding a mutual Waiver of Jury Trial or class action/collective action waiver --or some other form of alternative dispute resolution.  Check with your employment attorney to make sure the form in which you implement this renders it enforceable.
• Updated FMLA policy implementing the changes from 2008 and 2009 amendments if you have not had the policy updated since then.  
• Policy regarding the employer's commitment to providing reasonable accommodation to qualified individuals with disabilities and explaining the process an employee can initiate to request reasonable accommodation.
• Ensuring that any neutral absence control or maximum duration of leave policy carves out protected leave such as FMLA, military leave and leave provided as a reasonable accommodation to a qualified individual with a disability.
• A provision prohibiting the surreptitious audio or video recording by employees during working hours or while on the employer's property along with a NLRA section 7 disclaimer.

Follow me on Twitter @RussellCawyer.

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I want to thank my clients and other readers of the Texas Employment Law Update for your loyalty and support.  More importantly, I hope that you and your families have a safe and happy Thanksgiving holiday.  For my part, our family will be spending a traditional Thanksgiving (traditional for us) with extended family and friends, both a smoked and cajun fried turkey, and as much football as is humanly possible to consume in a single day.  While I won't be participating, much of my family will brave the Black Friday crowds looking for deals and kicking the holiday season off in full force.

Despite the fact I'll be enjoying the holiday, employment law and related-matters won't be far from my mind.

Here are a few Thanksgiving-related employment items for your consumption.

Department of Labor is encouraging retailers to take steps to provide for crowd managment and safety during Black Friday sales.  Additional resources for retailers, employees and shoppers related to Black Friday sales and safety can be found here.

Facts about Texas Employment Law and Thanksgiving.

• Texas has no law requiring employers to provide a day off at Thanksgiving.
• Texas law does not require premium pay for working on holidays like Thanksgiving.
• Employees on FMLA leave may be entitled to the paid Thanksgiving holiday under company policy if the company's policy provides holiday pay if the employee were on vacation instead of FMLA leave.  

Next week I'll turn to seven things you should consider adding or confirming are in your employee handbook for 2012.

Happy Thanksgiving!

Follow me on Twitter @RussellCawyer.

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Several years ago I took the deposition of the business owner who hired several employees from a competitor in violation of a noncompetition agreement the employees had with the competitor.  As part of enforcing the agreements against the former employees, the competitor sued the new employer for tortious interference with contract because the new employer/business owner was aware of the noncompetition agreements and hired the employees nonetheless.

During the deposition the indignant business owner repeatedly justified the hiring of the employees that had noncompete agreements as being appropriate because, "Texas is a right to work state!"  It made me realize that some employers, and probably many employees, don't know what it means to be a right to work state.  Here is what it means.

A right to work state is one in which prohibits employers and unions from agreeing to make membership in a union a condition of employment.  The fact that Texas is a right to work state has no effect on the enforceability of a noncompete agreement nor does it provide any legal excuse or justification to ignore the employees prospective employees have with their former employers.   So if you are a business owner considering hiring employees from a competitor who have noncompetition agreements, don't think that the fact that Texas is a right to work state will justify that behavior and contact a labor and employment lawyer to ensure that the hiring of those employees will not result in litigation.  There may be other good and sufficient grounds to have the noncompetition agreements set aside, but the the fact Texas is a right to work state is not one of them.

Follow me on Twitter @RussellCawyer.

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Its the time of the year again when companies begin planning whether and how to sponsor an end-of-year holiday parties.  Two years ago I wrote about how companies can plan their employer-sponsored celebrations to reduce potential liability resulting from those events.  The advice is as timely today as it was two years ago.  You can access my 9 tips to consider when planning the end-of-year holiday here:  Keeping Off Santa's Naughty List Because of What You Did at the Company Christmas Party: Minimizing Employer Liability Arising From Employer-Sponsored Holiday Parties .
 

Follow me on Twitter @RussellCawyer.

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Many employers understand the need for having a neutral reference policy (i.e., a policy whereby only dates of employments, positions held and sometimes last salary is disclosed). The policies help prevent and defend against potential defamation claims by former employees. Last week, I attended a panel discussion on Post Employment Conduct by Employers and Employees:  Not the Time to Let Your Guard Down at the ABA 5^th Annual Labor and Employment Law Conference. 

During conference, Jeffrey Shane of Allison & Taylor made an interesting presentation on the services his company provides. Allison & Taylor specializes in conducting personalized reference checks. One aspect of the company’s business is conducting reference checks on behalf of applicants who believe they are getting negative references from their prior employers and supervisors. The company boasts over 300 attorneys with whom they’ve worked and a 100 percent success rate in stopping untruthful negative references that they discover.

So, if you are an employer that has a negative reference policy, or a supervisor working at a company with such a policy, beware. If you are not following the policy, every reference check you get may not necessarily be on behalf of a genuine prospective employer and may instead be being used to establish evidence for a defamation claim.  Remember, defamation claims are one of the relatively few employment law claims where supervisors can sued and held individually liable.  Thumper said it best, "If you can't say something nice, don't say nothin' at all."

Follow me on Twitter @RussellCawyer.

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I have already written about the Herman Cain story and won't opine further on it here except to say, I have no idea who is telling the truth in the he-said-she-said (and she-said; and she said) story.  The headlines do remind me about what little rights the accused harasser has when, as Herman Cain claims, a false complaint of harassment has been made.   And before you start sending me the hate mail over this HSO, read the remainder of this post.

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The recent scandal at Penn State University is both shocking and troubling.  That high level officials of a such a prestigious university would allegedly overlook or cover-up allegations of the sexual abuse of a child is truly reprehensible.  Notwithstanding the intense media coverage of these events, each of those accused is presumed innocent until proven guilty.  But how does the scandal at Penn State tie into Texas employment law?  Here is the nexus.

Texas, like many other states, is a mandatory reporting state when it comes to the suspected abuse or neglect of a child.  Every person who has cause to believe that a child is being abused or neglected is required to report it.  Certain Texas professionals are required to report with 48 hours.  Similarly, federal law requires employers and IT professionals to report violations of involving child pornography on employer computers to the Cyber Tip Line at the National Center for Missing and Exploited Children (who will in turn report to the appropriate law enforcement agencies).  Employers and employees must understand their legal reporting requirements.

Employees and employers who believe that child abuse or neglect is occurring or that an employer's computer system possess child pornography should immediately report their concern to the in-house legal department or human resources and also to the NCMEC, the Texas Department of Family and Protective Services or another appropriate law enforcement agency.  Failure to do so may subject the employer and employee to significant criminal jeopardy, fines and a a potential Penn State size media catastrophe --not to mention delaying an end to the abuse of the child.

Follow me on Twitter @RussellCawyer.

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The Fort Worth Star Telegram has reported that the Texas Rangers are investigating the leak of Manager Ron Washington's pre-game speech to the team before Game 7 of the World Series.  The speech was reportedly taped by a member of the clubhouse staff and then leaked to JoeSportsFan.com.  You can listen to the full recording here.  (Foul Language Warning).

Where every employee, customer and vendor carries a high capacity telephone, video camera and tape recorder in the form of a PDA or smart phone, employers should adopt written policies prohibiting employees from making video or audio recordings during working time and while on the employer's property.  These audio and video recordings can be posted to Facebook, YouTube or Twitter and can have the effect of embarrassing an corporation or disclosing confidential, trade secret information.  Written policies provide a deterrent for employees who would attempt to harm the company through surreptitious records and provide a basis for disciplining employees who violate the policy.  And of course, if employees record communications in Texas to which they are not a party, they are potentially subject to criminal prosecution.  Keep in mind that any policies that prohibit these recordings must either be tailored so as to not violate employees' NLRA Section 7 rights or should contain a disclaimer that the policy is not intended to nor will it be applied to trample on those rights.

Follow me on Twitter @RussellCawyer.

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In this current political cycle there is a lot of talk about the adverse effect unnecessary governmental regulation has on business.  Here is one example.  The FMLA requires employers to post notice of FMLA rights (and include an FMLA policy in their handbooks) even if they have no FMLA eligible employees that can take FMLA leave.  Employers with fifty or more employees have to post notice of FMLA rights even if they do not have fifty or more employees within seventy-five miles of one another.  As written, this is a ridiculous regulation.  The regulation requires employers to advise employee about rights that they don't have.  Do you think some of those ineligible employees might be confused about the rights?   If I'm an employee, I'm not thinking that my employer would include policies in a  handbook that have no applicability to me.  Indeed, based on the employer's inclusion of such a policy in its handbook, I would likely think that government-mandated FMLA leave was available to me.

Certainly I don't think this specific regulation is cause of our Nation's economic troubles.  It is, however, an example of how regulation can place ridiculous obligations on business.  Hopefully the political debate will cause all involved to require governmental agencies to review the regulations they put in place to determine which are necessary and eliminate the ridiculous ones.  

Follow me on Twitter @RussellCawyer.

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In an informal discussion letter issued by the EEOC, the Commission suggests that an employer might be required to let an employee or applicant suffering from paruresis or "shy bladder" syndrome to satisfy drug testing obligations through an alternative test.

According to the discussion letter, paruresis:

is the inability to urinate in public restrooms or in close proximity to other people, or the fear of being unable to do so. Paruresis is generally considered to be an anxiety disorder, and typically is treated with cognitive-behavioral therapy. Your letter states that paruresis is also a chronic pelvic floor dysfunction. Individuals with paruresis sometimes are subjected to adverse employment actions because they are unable to pass standard tests designed to detect the illegal use of drugs, and are denied permission to take alternative tests that do not involve urination.

Assuming that the paruresis constitutes an actual disability rather than a perceived disability, the Commission suggests that the employee or applicant could be permitted to take a saliva, patch or other test (e.g., blood or hair) to satisfy an employer's drug testing obligation.  A "regarded as" disability is not entitled to any reasonable accommodation.

Is this a widespread issue?  Probably not, but it is important advice for an individual who suffers from paruresis or for an employer that has to address drug testing issues involving employees with this condition.

Follow me on Twitter @RussellCawyer.

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While the FMLA normally requires an eligible employee be reinstated to an equivalent position at the end of his FMLA leave, the employee has no greater right to reinstatement than if the employee had been continually employed.  Thus, there are several situations where an employee is not entitled to reinstatement.

First, where an employer conducts a layoff or reduction in force while the employee is on FMLA and would have been laid off had the employee not been on leave, the employer's obligation to reinstatement and continuation of benefits ends on the date of termination.

Second, employees hired for specific project or for a specified term, have no right to reinstatement after the termination of the project or specified term.

Third, employees who have obtained leave fraudulently have no right to reinstatement.

Fourth, employees who are unable to perform the essential functions of the position of employment at the end of leave are not entitled to reinstatement.  To avoid an ADA claim, the employee must only be denied employment if he or she cannot perform the essential functions of the position with or without reasonable accommodation.

Finally, employer's may deny reinstatement to salaried, eligible key employees when the denial of reinstatement (not leave itself) is necessary to prevent substantial and grievous economic injury to the operations of the employer.  Key employees are those salaried employees who are among the highest paid 10 percent of all employees employed by the employer within 75 miles of the employee's worksite.  Substantial and grievous economic injury sufficient to warrant denial of reinstatement to a key employee includes those situations where reinstatement would jeopardize the viability of the company itself.  Minor inconveniences and costs the employer would otherwise experience in the normal course of business, however, would not qualify.  Keep in mind that the employer must provide "key employees" with certain disclosures at the time the employee gives notice of the need for leave to be able to deny reinstatement.

While an employee's use of FMLA leave will normally entitled the employee to reinstatement to an equivalent position, keep these exceptions to the general rule in mind when managing leave programs.

Follow me on Twitter @RussellCawyer.

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Employers should provide (and pay for) the cell phones and other PDA's used by their sales force.  Why?  So that the company is entitled to, and can insist on, the return of the telephone, the assigned telephone number and the contacts and other wealth of information contained on those devices when the employment relationship ends.  If a company allows an employee to use his or her own cell phone or telephone number (even if the company reimburses the employee for the service) , the company may not have a right to insist the telephone be turned over to it to clear the customer information from the phone.  Even worse, when your customers use the normal telephone number to place an order with their sales contact, who has since left your employment, they will be connected with your former employer who is now working for your competitor --and the employee didn't even have to do anything to solicit the customer's business for the new employer. 

Consequently, a comprehensive effort to protect confidential information, trade secrets and company goodwill may well include providing company-owned cell phones for the sales staff.

 Follow me on Twitter @RussellCawyer.

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Prompt and thorough investigations of complaints of harassment and discrimination can provide solid legal defenses to employee lawsuits.  Even where there may not be a technical, legal defense (e.g., supervisory harassment resulting in an adverse employment action), investigating employee complaints of inappropriate behavior can paint the employer in a favorable light and is just a good business practice for employers concerned about providing a professional workplace. 

One of the first choices an employer receiving an employee complaint of discrimination, harassment or even misconduct, has to make is who will investigate the complaint on behalf of the company.  Complaints do not necessarily have to be investigated by lawyers or even those external to the company.  However, there are certain qualities an employer should consider in selecting the investigator (not all qualities are necessarily required for a prompt and thorough investigation).

• Experienced --someone with prior human resources experience and that has conduct prior investigations of discrimination, harassment, retaliation or workplace misconduct;
• Unbiased and objective --someone that is neither accused of misconduct or who reports to or is the direct organizational chain of the the person being complained about;
• Articulate --an individual who is well-spoken and makes both good verbal and physical appearance.  This will be the company's spokesperson at any trial where the company has to describe and defend its investigation and any remedial measures taken as a result of the investigation;
• Knowledgeable --person should be knowledgeable of the subject matters being investigated as well as the company policies that apply to the investigation and the misconduct alleged;
• Approachable --someone that the complaining party, witnesses and the person being complained about will open up  to.  For example, in the investigation of a sensitive sexual harassment investigation, it may be (but is not required to be) that a person who is the same gender as the person making the complaint may be the proper choice.
• Available --the individuals selected needs to have the time devoted the conduct and conclude the investigation promptly.

As prompt and thorough investigation can be an effective defense to a discrimination, harassment or retaliation lawsuits.  The best defense starts with selecting the right quarterback to run the investigation.

Follow me on Twitter @RussellCawyer.

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One of the most popular posts (i.e., most read) I've written is one I published two years ago on whether employer can or should ban the use of e-cigarettes in the workplace.  Some employers have gone so far as to implement the complete ban on the use of all products containing nicotine --both during and after work.  I thought that now would be a good time to update my thoughts on the subject.

Recently, the U.S. Department of Transportation issued a press release announcing its proposal to explicitly ban electronic cigarettes on U.S. flights.  According to the DOT's release:

Electronic cigarettes cause potential concern because there is a lack of scientific data and knowledge of the ingredients in electronic cigarettes.  The Department views its current regulatory ban on smoking of tobacco products to be sufficiently broad to include the use of electronic cigarettes.  The Department is taking this action to eliminate any confusion over whether the Department’s ban includes electronic cigarettes.  The proposal would apply to all scheduled flights of U.S. and foreign carriers involving transportation to and from the U.S.

Amtrak has banned the use of electronic smoking devices on trains and in any area where smoking is prohibited. The Air Force Surgeon General issued a memorandum highlighting the safety concerns regarding electronic cigarettes and placed them in the same category as tobacco products. The U.S Navy has banned electronic cigarettes below decks in submarines.  Further, several states have taken steps to ban either the sale or use of electronic cigarettes.

This is a fairly contentious issue.  On the one hand, smokers and supporters of e-cigarettes claim that they are odorless devices that emit nothing more than water vapor and are no more harmful to coworkers than allowing a nearby employee to chew nicotine gum or wear a nicotine patch.  On the other hand, some employers have expressed concern over the lack of scientific evidence over what is emitted into the air from the electronic cigarettes; over the perception that the employer is condoning or sponsoring any kind of addiction or dependence; and whether some of the types of employment (i.e., retail or customer service) are inconsistent with image the company wants to foster.

In the end, and assuming that nicotine dependence is a disability that must be reasonably accommodated under the ADA, an employer can reasonably accommodate the disability without allowing the use of e-cigarettes in the workplace or at work stations.  It is the long-standing rule that the employer gets to select the accommodation provided among various effective accommodations.  For example, the employer could allow the use of e-cigarettes in the same manner as it allows employees to use other tobacco products (e.g., outdoors during break times).  Similarly, the employer could allow the the employee to use nicotine gum during working time.  If the employer allowed the use of e-cigarettes during working time or in working locations (and assuming it is not prohibited by state law), the employer could require that the employee refrain from using scented e-cigarette flavors to further reduce the potential effect on nearby co-workers.

Follow me on Twitter @RussellCawyer.

DOT Notice of Proposed Rulemaking here.

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One of North Texas' largest employers announced that it will not longer hire or consider for hire any individual who uses any nicotine product (i.e., cigarettes, nicotine gum or patches, chewing tobacco or electronic cigarettes).  Baylor Health Care Systems announced its new policy on the careers page of its website stating:

As a health care system committed to improving the health of those we serve, we are asking our employees to model the same behaviors we promote to our patients. Beginning January 1, 2012, Baylor will no longer hire individuals who use nicotine products. Applicants who profess to use nicotine will not have their applications processed. Anyone who is offered and accepts a position with BHCS will be tested for nicotine during our regular post-offer pre-employment testing. Applicants who test positive for nicotine will be eliminated from consideration and pending job offers will be rescinded.  We encourage candidates who do not pass the nicotine testing to consider taking steps to stop the use of nicotine and reapply for consideration after a period of 90 days. 

The policy appears to screen out any applicants, regardless of the type of product used containing nicotine and whether the product is use on non-working time off the employer's premises.  Smoking or nicotine dependence has not historically had success in the courts as being a recognized ADA disaiblity.  However, it will be interesting to see if in a post-ADAAA world, where the definition of disability has been greatly relaxed, this policy comes under scrutiny by the EEOC or applicants rejected for employment based on their use of products containing nicotine. 

Baylor is not the first hospital to implement such a policy.  However, similar policies are not without their critics.  The National Workrights Institute, a nonprofit human rights organization focused on workplace issues, has been quoted that "such policies are a slippery slope — that if they prove successful in driving down health care costs, employers might be emboldened to crack down on other behavior by their workers, like drinking alcohol, eating fast food and participating in risky hobbies like motorcycle riding." 

Presumably Baylor had its policy fully vetted by its legal experts and believes it can defend the policy.  However, a quick, admittedly nonexhaustive research search, failed to find any cases holding that nicotine addiction is not a disability under the ADAAA.  Only time will tell whether these kinds of policies will be upheld by the courts.

Follow me on Twitter @RussellCawyer.

Other Articles on Failure to Hire Tobacco Users:

Refusing to Hire Tobacco Users --Valid Argument or Just Blowing Smoke?

Hospital Hiring Goes Up in Smoke.

Hospitals Shift Smoking Bans to Smoker Ban

ADA Amendments May Open the Door for Nicotine Addiction Claims

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Next week is the deadline for all covered employers (i.e., those subject to Title VII and with 100 or more employees; or first tier or prime federal contractors with 50 or more employees or more than $50,000 in federal contracts) to file their federal EEO-1 surveys.  The EEOC has a FAQ page if you are new to or unfamiliar with the annual filing requirement.

Follow me on Twitter @RussellCawyer.

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If you are are regular reader of this blog, you know that by November 14, 2011, most private employers (union and non-union) have to post notice of employees' federal labor rights to form and join a union.  Some of you may have even already posted the NLRB-sanctioned poster.  

However, several lawsuits have been filed seeking to have the new NLRB rule declared invalid.  The U.S. Chamber of Commerce and the South Carolina Chamber of Commerce sued in federal district court to have the new posting rule declared invalid.   The U.S. Chamber's lawsuit follows on the heels of last week's suits seeking similar relief by the National Federation of Independent Business and the National Association of Manufacturers.

Given the uncertainty about whether the posting requirement will actually take effect, it may be prudent to wait and see whether one or more federal courts will enjoin the NLRB from enforcing its new rule.  And while an injunction may or may not be binding on the NLRB in Texas (because neither lawsuit seeking an injunction was filed in Texas) an injunction could prohibit the NLRB from enforcing it nationwide.  In the meantime, employers should hold off on posting the new poster until November 14, 2011 so that the courts have an opportunity to address this issue.

Follow me on Twitter @RussellCawyer.

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I've previously written about the new NLRB requirement that most employers post notice of employee's NLRB rights (post here).  The posting requirement is effective November 14, 2011, for both union and non-union employers.  Yesterday, the NLRB made available an appropriate posting for download.   The NLRB's site also has answers to some commonly asked questions about the posting requirement that you can access here.

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Texas employers have the option of purchasing workers’ compensation insurance or going as a nonsubscriber.  Deciding whether to be a nonsubscriber or purchase workers’ compensation insurance requires an idea of what your anticipated workers’ compensation premium will be (usually obtained through your insurance broker) as well as understanding what legal protection a Texas employer gets by becoming a workers’ compensation insurance subscriber. Here is a quick summary of the differences between being a subscriber versus a nonsubscriber.  

Workers' compensation is a form of insurance purchased by employer to provide coverage for medical expenses, partial income and disability benefits for an employee suffering an injury or illness arising in the course and scope of his or her employment. In Texas, employers are permitted to opt-out of the state worker’s compensation. These employers are called nonsubscribers. There are advantages and disadvantages

The primary advantage of worker’s compensation coverage is that workers compensation subscribers (i.e., employers having workers compensation insurance coverage) cannot be held liable in court for employee injuries or illnesses that occurred in the course and scope of the employee’s employment. This protection does not apply to individuals who are independent contractors of an employer. The primary disadvantage to worker’s compensation coverage is its cost. Another disadvantage is that worker’s compensation subscribers cannot discriminate or retaliate against employees who report or have workplace injuries, and employees can sue employers if they experience an adverse employment action shortly after reporting or having a worker’s compensation claim.

Nonsubscribers, on the other hand, cannot be sued for discrimination or retaliation for taking adverse action against an employee that has been injured on the job.  They can, however, be sued by the employees for negligence and gross negligence when they are injured at work. The law is written to encourage employers to purchase workers compensation insurance. Consequently, nonsubscribers have few defenses to these claims such as claims for contributory or comparative negligence (aka “proportionate liability”) where liability is apportioned between the employer and employee based on percentages of relative fault. The only legal defenses a nonsubscriber has to a claim that an employee was injured in the course and scope of employment are that the employee was the sole cause of the injury or was intoxicated at the time the injury occurred. 

Understand that your general liability, homeowners or umbrella insurance policies alone do not provide coverage employee injuries or illnesses. Most such policies have exclusions that do not cover claims made by employees or those otherwise providing services for the employer (i.e., independent contractors). Whether to purchase worker’s compensation insurance is an important business decisions and the pros and cons of that decision should be weighed carefully.

Follow me on Twitter @RussellCawyer.

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Next week we celebrate Labor Day; the first Monday in September (although my Labor Day celebration starts a little later today).  Labor Day is and has been one of my favorite holidays.  As a child, we didn't start school until after Labor Day and it marked the end of summer vacation.  Now, my children start school much earlier; but they still get an extra day off.  In most years when a trial or other proceeding hasn't been unfortunately scheduled the week after the Labor Day, I also get to spend an extra day with the family. 

But Labor Day wasn't started so school children (and their lawyer fathers) could get an extra day off.  Labor Day was originally celebrated to honor workers and as a force for changes in the workplace.  In particular to encourage reforms in employee safety, working conditions and pay.  On Monday, celebrate America's workers and the sacrifice they make (albeit not unrewarded) for their employers and their families.

Have a safe and happy Labor Day holiday weekend.

Now for a little Texas Labor Day employment law (or as evidenced below, the lack of Texas employment law).

Texas Holiday or Premium Pay for Labor Day

Unlike some states, there is no requirement that employees be paid premium pay or overtime merely because they work on an official holiday like Labor Day.  Of course, if the employee is non-exempt and the work on Labor Day pushes him over the 40 hour per week threshold, the FLSA would require overtime be paid for those hours worked over 40 per week.

Follow me on Twitter @RussellCawyer.

More Labor Day resources:

U.S. Department of Labor's 2011 page.

A History of Labor Day and More Labor Day History.

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In 2010 Congress passed the Telework Enhancement Act of 2010.  The law requires federal agencies to assess and implement telework (aka telecommuting or work-from-home) arrangments for its workforce to the maximum extent practicable without sacrificing operations of the agency or employee performance.  The US Office of Personnel Managment recently published a Guide to Telework in the Federal Government.  The Guide is intended to provide practical information to assist federal agencies and employees in implementing telework arrangements.  

Some private employers have long used telecommuting as an option for certain types of employment.  Telecommuting (or telework) can reduce an employer's real estate and energy costs, promote management efficiencies, allow for work to get done during periods of inclement weather or other emergencies and allow greater employee flexibility for work-life balance.   The Guide published by OPM may provide useful guidance for employers considering allowing certain types of employees to telework.  Considerations include:

• Telework arrangements should have the expectations and understandings between the employer and employee set forth in a written agreement or document;
• Employee need to understand that telework is a privilege, not a right;
• Telework is only satisfactory so long as it does not reduce employee performance or the operations of the employer;
• Determine the location of the telework work site; 
• If the teleworking employee is nonexempt, outline how worktime will be recorded and reported;
• Ascertain what equipment will be needed for the telework assignment and who will be responsibile for maintaining it;
• Consider how injuries incurred during course and scope of telework will be reported and handled;
• Specify frequecy of telework anticipated (e.g., days of week or hours of day that are to be worked during telework);
• Communication expectations during telework (e.g., frequency of contact and whether the contact will be by telephone, e-mail, instant messages and the expected time frame for responses to inquiries made during telework);
• How illness or absences will be reported and handled on telework days.

Other Resources:

OPM's Telework Website

Manager Handbook for Measuring Employee Performance

Guidelines for Alternative Work Arrangements

Follow me on Twitter @RussellCawyer.

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Walter Olson at Overlawyered started they debate by asking “If I could press a button and instantly vaporize one sector of employment law…”  He answered age discrimination.  I'll let him defend his selection and you can read his explanation here. 

Jon Hyman and Daniel Schwartz weighed in that they would reform the depression-era outdated Fair Labor Standards Act and leave laws generally.  Both areas are ready for reform and simplification.  I asked my partners what area of employment law they thought most needed vaporizing (or at least reform).  One identified the varying mosaic of state immigration laws that are being passed across the country and that carry substantial (perhaps catastrophic) financial penalties for employing individuals not authorized to work in the U.S.  Another colleague identified the new health care law that requires employers to provide health plans or pay a penalty for each uninsured employee as an area of law that is stifling job growth --at least for small to mid-sized employers. 

My choice for vaporization is a little more specific.  I would target the FMLA regulations that limit how much information an employer can require from an employee on intermittent FMLA leave --particularly when the leave results from unexpected, anticipated and unscheduled flare-ups of serious health conditions.  These limitations place unreasonable restrictions on an employer's ability to manage and identify intermittent FMLA abuse.  Employers face regulatory barriers in determining whether the employee's absence on Friday was a result of his migraine headache (for which he was approved to take intermittent leave) or because he stayed out too late with friends carousing.  Verifying, in a meaningful way, that employees are using intermittent FMLA leave for approved purposes should not be prohibited or even discouraged.

If you think a particular area of employment law needs vaporizing (or at least reform), post it in the comments below and I'll publish them to continue the debate.

Follow me on Twitter @RussellCawyer.

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The EEOC is reviewing whether the use of arrest and criminal conviction information acts as a hiring barrier and whether employers should be precluded from asking about criminal convictions.  The EEOC publicized the meeting in a press release titled  Striking a Balance Between Workplace Fairness and Workplace Safety.  Particularly troubling about this hearing is the fact that the EEOC appears to be looking at the issue as one of workplace fairness rather than discrimination.  Workplace fairness is admirable, however, the EEOC's mission and mandate is not to try and achieve workplace fairness.  The EEOC's mission is educate, investigate and enforce the protections put in place by Title VII and related laws.  Stated differently, the EEOC is charged with ensuring that individuals are not treated differently because of their race, sex, color, religion, national original, age, and disability; not to ensure that the workplace is fair.

In my experience, few (if any) employers ask for or rely on arrest information in making hiring decision.  I've never seen an employment application that stated that a criminal conviction would be an outright bar to employment.  Most employers that seek criminal conviction information consider the nature and severity of the offense, the length of time since the offense occurred and the position for which the applicant is applying.  Banning the box (i.e., prohibiting employers from asking about criminal convictions on applications) will result in employers needlessly interviewing applicants who, by the nature or severity of their crime, will not ultimately be hired.  This is a waste of employer time and resources.  Moreover, given the EEOC's limited resources, its time, effort and money would be better spent on core mission rather than trying to administratively expand the scope of Title VII to effectively make convicted felons a protected class.

Follow me on Twitter @RussellCawyer.

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Imagine this, its Friday and you are sitting in your office as Director of Verizon’s newly created Office of Reasonable Accommodation.  An employee, I’ll call him Joe, walks into your office.  Joe tells you he's recently converted to the Church of the Flying Spaghetti Monster (i.e., he is now a Pastafarian); that Friday’s are his religion’s holiday; and that his religion requires him to wear a spaghetti strainer on his head at all times. He requests, as a reasonable accommodation of his religious beliefs, all Friday’s off from work and to have the photograph on his employee identification badge retaken so that he be shown wearing a colander on his head. What do you do?

Most employment civil rights laws require that employers treat all employees equally without regard to age, sex, color, race, national origin etc.  The ADA and Title VII's protection of employee's religious beliefs, however, may require employers to treat employees differently (i.e., reasonable accommodation).  Here, Joe's request to accommodate his beliefs (which appear sincerely held) can only be denied if accommodating the belief would cause undue hardship to the employer.  Undue hardship under Title VII is different than under the ADA.  Under Title VII, a proposed religious accommodation is often an undue hardship where it requires the employer to incur more than de minimus expense; violates a CBA, law or valid seniority system; ignores safety risks or requires other employees to work longer or harder. 

Applying these rules to Joe's request, unless you can establish that for security reasons employee photographs on access badges must be taken without headwear, you should probably tell Joe to get his colander while you get out the Kodak.  With respect to the request for all Fridays off, unless Joe's request would violate a CBA provision regarding bidding for schedules or would otherwise make Joe's co-workers work longer or harder, Joe should probably be allowed to take his Fridays off.

Follow me on Twitter @RussellCawyer.

Church of Flying Spaghetti Monster Resources Facebook and Wikipedia.

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Yesterday Rob Radcliff over at the Smooth Transitions Law Blog wrote a post about a lawsuit filed by an attorney against the recruiter that placed him at his new law firm.  In essence, the attorney alleged that the recruiter made representations that she was independent (and not tied to any particular law firm) and fraudulently convinced the attorney to join a Washington D.C.-based firm with whom the recruiter had a retainer relationship.  Radcliff warned recruiters about being explicit in representations made to potential candidates and disclosing who has retained the recruiter to avoid claims of misrepresentation and breach of fiduciary duty.

There is another area where recruiters need to be careful when conducting their search activities.  Recruiters need to be careful about where they place a candidate when they know the candidate has a noncompetition agreement that restricts the candidate's post-employment activities.  Recruiters can be sued for tortious interference with contract and/or conspiracy when the recruiter knowingly assists a candidate in violating his or her noncompetition agreement by putting the candidate in touch with a client company or for a position that would violate the terms of the candidate's post-employment obligations. 

On a few occasions, I'm aware of recruiters (and their search firms) who have been sued along with the former employee and the new employer over violations of a noncompetition agreement.  In those cases, the recruiters expressed shock and surprise that he/she could be held liable for assisting the candidate in violating the noncompetition agreement.  In one particular case, when the recruiter was asked whether she was concerned about putting a candidate with a noncompete in touch with a direct competitor (that was prohibited by the noncompete), she proclaimed, under oath, "That is just not something that I worry about!"   

As recruiters increasingly become entangled in disputes among competitors over enforcement of noncompetition agreements, the existence of a candidate's noncompetition agreement is probably something that recruiters should be concerned about.

Follow me on Twitter @RussellCawyer.

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In Texas, employees and employers are entitled to a telephone hearing before a hearing officer if either party disagrees with an initial determination issued by the Commission in unemployment benefit and Texas Pay Day Act claims.  There are some occasions, however, where an employer may consider foregoing these telephone conferences --even if it means losing the unemployment benefit claim.

Telephone hearings before hearing officers are conducted under oath and are recorded.  This constitute sworn testimony that will be binding on the parties in subequent proceedings.  Some attorneys representing employees use these telephone hearings to conduct discovery on potential discrimination, retaliation, harassment or wage and hour claims they may be thinking about filing.  If you appear for an administrative telephonic appeals hearing without your labor and employment counsel and the employee on the other side has a lawyer; think long and hard about whether you want to participate further in the proceeding without advice of counsel.  You might win the battle (i.e., the telephone hearing) but lose the war by having the testimony offered at the hearing used against the employer in a more significant lawsuit with more exposure.  Sometimes it may be better to just hang up and not oppose the unemployment benefit claim.

Follow me on Twitter @RussellCawyer.

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There has been significant coverage of the unfair labor practice charges that have been filed by employees who were terminated over their postings made on Facebook, Twitter and other social media applications.  (Examples here, here and here).  The NLRB actions in some of these cases have lead to the belief by some union agents and employee representatives that comments made by employees (whether working at union or nonunion shops) through social media have greater protection than comments made in person. 

Recently, the NLRB Office of General Counsel issued three advice memoranda clarifying what does and does not constitute protected concerted activity in the social media context.  This advice dispells the argument that comments made through social media gain any greater protection under labor law than comments made in person.  This guidance is important in that it makes clear that employers may discipline employees for their personal comments made in the social media world when:

• the comments are merely expressions of an individual's gripe or frustration with an individual in management rather than an attempt to initiate or induce coworkers to engage in group action.
• the comments are made to those who are not co-workers of the employee (and the employee wasn't Facebook friends with any co-workers).
• merely communicating with friends about happenings at work.

Whether an employee's comments, whether made through social media or in person, constitutes protected concerted activity is an incredibly fact-intensive analysis.  It may depend on whether the employee has any co-worker Facebook friends, Twitter followers or included in Google+ circles; what comments or feedback co-workers provide to the posts; whether posts are discussed with or seen by co-workers; and of course, the content of the communications themselves.  The General Counsel guidance provide useful parameters for determining whether the conduct is protected under federal labor law.

You can download a copy of the Advice Memorandum here, here and here.

Follow me on Twitter @RussellCawyer

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Verizon agreed to pay $20 million dollars and ceasing using its no-fault attendance policy for  absences caused by impairments qualifying as disabilities under the ADAAA.  Whatever the size of Verizon's Human Resources Department, it looks like its going to need to be a lot larger.

As part of the settlement with the EEOC, Verizon agreed that before it would charge ANY absence against an employee under its no-fault attendance policy, it would determine whether:

• the employee has a mental or physical impairment that substantially limits one or more major life activities of such individual as defined by the ADA;
• the employee's absence was caused by a disability;
• the employee, or someone else on the employee's behalf, requested a period of time off from work due to a disability;
• the employee's absence have been unreasonably unpredictable, repeated, frequent or chronic;
• the employee's absences are expected to be unreasonably unpredictable, repeated, frequent or chronic;
• Verizon could determine, from the request by or on behalf of the employee or through an interactive reasonable accommodation process, a definite or reasonably certain period of time off that the employee would need because of a disability; and
• the employee's need for time off from work poses a significant difficulty or expense for the business.

Let me say this again; Verizon agreed that it would investigate every single absence before it applies that absence against the employee under its attendance policy.  Don't believe me, here is the link to the consent decree entered in the case.  (Consent Decree).

So, if you are a Human Resources professional in transition or looking for a transition, consider applying at Verizon; its going to need the additional help.

Follow me on Twitter @RussellCawyer

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There's an old saying in rural America that "pigs get fat and hogs get slaughtered."  We used the phrase to describe someone who, instead of being satisfied with what he has, gets greedy.  In the litigation context it can be used to describe a party that takes overly aggressive, unreasonable and untenable positions.  My fellow bloggers, Work Blawg and Employment and Labor Insider posts last week about the EEOC's apparent position that attendance is not an essential job function (or not working as Work Blawg refers to it) makes me think the EEOC might be getting a little Hog-like in its attack on employer leave of absence and attendance policies.  The issues comes up in discussions of Verizon's record-setting $20 million settlement with the EEOC over its no-fault attendance policy.  As Robin Shea points describes the dispute that was settled:

The case was about charging absences under a no-fault attendance policy to employees who missed work because of medial conditions that were 'disabilities' within the meaning of the ADA.  It does not appear that medical leaves were at issue.  Exempting ADA conditions from no-fault attendance policies is a huge deal.

With the Verizon settlement, the EEOC is apparently signaling that it believes an employer commits a violation of the ADA when it charges an employee absence against a no-fault attendance policy when the absence results from a medical condition that qualifies as a disability.  Because the ADAAA now renders everyone disabled, the EEOC's position is troubling.  It suggests that the EEOC believes that attendance is not an essential function of most jobs. 

The problem with the EEOC's position (and where it crosses the line from being piggish to hoggish) is that the ADAAA made no changes to what is considered an essential job function or the well-settled standard that an employer need not eliminate essential job functions in providing reasonable accommodation.   Certainly, the ADAAA has given the EEOC ample reason to be aggressive in litigating issues on what constitutes a disability or is a substantial limitation on a major life activity.  However, the ADAAA made no changes to the statute regarding what constitutes reasonable accommodation or essential job functions.  Most courts have held that attendance is an implicit, essential job function of most employment.  Consequently, the EEOC's position that attendance is not an essential job function and employees cannot consider absences caused by "disabilities" under no fault attendance policies is puzzling.  If accepted by the Courts, the EEOC's position would require employer's to investigate each and every absence to determine whether the employee is disabled and whether absence was caused by a disability. 

Follow me on Twitter @RussellCawyer.

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Once the employer makes the decision to terminate the employment relationship with an employee, there is often (or should be) a discussion about when to have the meeting with employee to communicate the decision.  There are two primary schools of thought.  One thought is to communicate the decision at the end of the business day at the end of the workweek.  The rationale for communicating the decision at the end of the workweek is that it will have less of a disruption on the workforce by having an intervening weekend between the termination and the next time employees gather together for work.

Another school believes that the decision should be communicated to the employee at the beginning or middle of the workweek.  The thinking here is that the employee can use his or her time during the business week productively to file for unemployment benefits; begin looking for and applying for work;  contacting recruiters; and attempting to schedule interviews.  It may be in the employer's interest to have the employee use the time productively looking for work rather than sitting around obsessing over the termination decision over a weekend when they cannot apply for benefits or make progress in obtaining another job and instead may spend the time searching the yellow pages or Internet for a lawyer.  

I believe that, with few exceptions, the termination decision should be communicated as soon after the decision is made as is possible regardless of the time of the week.  Once the employer has gathered all of the information it believes is necessary to make its informed decision to terminate, advising the employee as soon as possible reduces the likelihood that intervening acts occur that might give the employee grounds to challenge the decision.  For example, some employees who are under investigation for workplace misconduct may a charge of discrimination under the belief that the employee will not terminate the relationship shortly after the filing of a  "blocking" charge.  Similarly, employees that believe their job is on the line may have a suspicious workplace injury. 

As I said above, there are exceptions to any rule regarding when to communicate a termination decision.  Employers should avoid communicating termination decision on significant dates like birthdays, anniversaries or immediately before holidays.  A termination decision is difficult enough for the affected employee and if additional anguish can be avoided by waiting a day or two before communicating the decision, the employer should try and do so.

Follow me on Twitter @RussellCawyer.

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Employment Practices Liability Insurance, or EPLI, is business insurance an employer can purchase that will provide protection from losses caused by certain employment disputes with current or former employees. EPLI is in addition to commercial general liability or umbrella policies that normally contain exclusions for most employment claims.

EPLI normally covers the employer, its employees and executives for losses (including defense costs) attributed to claims for discrimination, harassment and retaliation; wrongful discharge; defamation (i.e., libel and slander); invasion of privacy and false imprisonment.  It normally does not include coverage for wage and hour claims (FLSA); claims for breach of contact or claims by independent contractors; claims arising under WARN, NLRA, OSHA, ERISA, COBRA and some ADA claims. It will also not include coverage for attorney’s fees associated with claims brought by the employer against the former employee such as counter claims (e.g., breach of contract, theft of trade secrets). Depending on the state where the claim is made, punitive damages may also be excluded or uninsurable.

Defense costs, including attorney’s fees, are often the largest expense an employer faces in defending an employment claim brought by a former employee. Even a frivolous claim or a claim the employer eventually wins is expensive to defend. These fees and costs are usually covered by EPLI but have the effect of decreasing the amount of coverage available to pay a judgment or settlement. Another potential limitation of EPLI coverage is that the insurance company normally gets to select the defense counsel that will defend the employer for covered claims. If selection of or use of particular lawyer is important (i.e., your normal labor and employment counsel), the employer should have included in its policy a provision that gives it the right to select defense counsel. 

EPLI policies are normally claims made policies. A "claims made" policy means that it will only protect against losses that occurred during the policy period and that are reported within a short period following the end of the policy period. Because an employer may learn of a potential claim until months after the employee leaves employment (and potentially after the expiration of the policy period), the employer may want to consider purchasing additional coverage that will extend the protection the employer has for up to a year after the end of the policy period (aka tail coverage).  Failure to timely make a claim and put the insurance carrier on notice of the potential claim can be grounds for the carrier to deny the claim.

EPLI can also be expensive. Rates depend on a variety of factors including the location(s) where the employer has employees; the number of employees; the employer turnover rate; and prior history of employment litigation among others. However, EPLI can be an important part of many business' overall risk avoidance or minimization strategy. If you have questions about whether EPLI is right for your business, contact your insurance broker or your labor and employment attorney.  

Follow me on Twitter @RussellCawyer

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This morning the meteorologist advised that our high temperatures in Texas won't dip below 100 for the foreseeable future.  I'm thankful I heeded my Kindergarten teacher's (Wanda Kite) advice to avoid anything ending up on my permanent record and I don't have to dig ditches for a living.  However, many Texans work outdoors everyday in these conditions and Texas employers need to take steps to ensure their employees have safe working conditions.

Secretary of Labor, Hilda Solis, has the following comments and recommendations:

Record heat is hitting the nation, putting outdoor workers at risk of heat-related illnesses, including heat exhaustion and heat stroke. Plan now so that you can take the precautions needed to protect outdoor workers during this heat wave:

• Have a work site plan to prevent heat-related illnesses and make sure that medical services are available to respond to an emergency should one occur.

• Provide plenty of water at the job site and remind workers to drink small amounts of water frequently — every 15 minutes.

• Schedule rest breaks throughout the work shift and provide shaded or air conditioned rest areas near the work site.

• Let new workers get used to the extreme heat, gradually increasing the work load over a week.

• When possible, schedule heavy tasks for earlier in the day.

OSHA has a number of resources to educate employees and employers on precautions that should be taken during this time of extreme heat.  You can check out those resources here. In the meantime, stay hydrated and cool to the extent  you can until late October when this heat is finally expected to break.

Follow me on Twitter @RussellCawyer.

Related Link:

Austin Enacts Mandatory Rest Breaks for Construction Industry

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I keep reading reports that Wal-Mart v. Dukes, where the Court reversed a class certification including 1.5 million women (who worked all over the U.S. under different supervisors at different stores) that was based on the company giving supervisors too much discretion, 125 anecdotal stories and an expert report employing dubious social framework analysis, demonstrates that the Court has a pro-business slant.  (Examples here, here and here).  These articles are prompted largely by the Senate Judiciary hearing held June 29, 2011 entitled "Barriers to Justice and Accountability: How the Supreme Court's Recent Rulings will Affect Corporate Behavior."  I disagree that the Court has a pro-business bias in employment discrimination, harassment and retaliation cases.

In the four employment cases heard this term, the Court found for the employee/plaintiff on three of those cases --all retaliation cases.  For example, in Kasten the Court held that employees can engage in FLSA-protected activity by making complaints orally rather than just in writing.  In Thompson, the Court held that an employee who has never engaged in Title VII protected activity can bring a retaliation claim if they are closely associated with another that has engaged in protected activity.  Finally, in Staub, the Court held that an employee can maintain a USERRA retaliation case even where the decision maker is unaware of the employee protected activity if the plaintiff can show that

Dukes is an example of a case that should have never been certified as a disparate treatment (i.e., intentional discrimination) case in the first place.  Nothing more; nothing less.  In fact, Dukes was more of a procedure case than it  ever was an employment discrimination case.  Certainly, it is not proof that the Supreme Court has a pro-business bias.

Follow me on Twitter @RussellCawyer.

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Here are quick list of 15 questions you should not ask applicants in the interview process.

1. How old are you? 
2. When did you graduate high school?
3. Do you have small children or do you plan to have children?
4. Have you ever had a workers' compensation claim?
5. What medicines are you taking?
6. Are you married?
7. What country were you born in or are you a U.S. citizen?
8. Are you in Army Reserve or National Guard?
9. What is your native language?
10. What religion or religious holidays do you observe?
11. How many more years do you intend to work before you retire?
12. Do you have any physical or mental impairments or disabilities?
13. Have you ever been arrested?
14. Have you ever filed or threatened to file a charge of discrimination?
15. Have you ever sued your current or former employer? 

Follow me on Twitter @RussellCawyer. 

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The Texas Supreme Court has issued an opinion this morning holding that noncompetition agreements supported by stock options and good will are not unenforceable as a matter of law.  I previewed this case here.  As I have time to digest the majority, concurring and dissenting opinions, I'll provide more thoughts on this case.

You can download the majority opinion here.

Concurring opinion here.

Dissenting opinion here.

Follow me on Twitter @RussellCawyer.

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Schools are out for the summer and many college and graduate students are looking for experience in what they hope will be their chosen careers.  Employer's looking to provide that experience through the use of unpaid internships must understand the rules that qualify an internship for "unpaid" status or unwittingly create potential wage and hour liability.  Last summer, the U.S. Department of Labor announced that it would crack down on employer's improper use of unpaid internships.  There is no reason to believe the DOL's interest in these kinds of investigations will be lessened this summer and so a refresher course is in order.

The Fair Labor Standards Act requires that employees be paid at least minimum wage for all hours worked.  The FLSA excludes from coverage those persons who work for another for their own advantage such as an unpaid internship.  The DOL has developed a six factor test for determining whether an internship qualifies for unpaid status.  The factors include:

1. Whether the internship, even though including actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
2. Whether the internship experience is for the benefit of the intern;
3. Whether the intern displaces regular employees, and works under close supervision of existing staff;
4. Whether the employer providing the training derives no immediate advantage from the activities of the inter; and on occasion its operations may actually be impeded;
5. Whether the intern is entitled to a job at the conclusion of the internship;
6. Whether the intern understands that he is not entitled to wages for the time spent on the internship.

If the internship meets all six factors, it may qualify for unpaid status.  However, the DOL takes a very narrow view of this exemption and believes that very few "for profit" employers can properly offer these programs.  The DOL has published a Fact Sheet on Internship Programs under the FLSA.  You can download the Fact Sheet here.

Other posts about unpaid internships:

Unpaid Internships May be a Problem:  Are they Employees or Not?

Unpaid Internships:  Do they Violate the FLSA?

When to Pay Summer Interns:  FLSA Guidance You Need to Know

6th Circuit Tosses DOL's Internship Test (Cautionary Note:  The Fifth Circuit (which includes Texas) has not tossed the DOL's internship test).

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The EEOC published its final regulations interpreting the ADA Amendments Act on March 25, 2011.  Consequently, those regulations become effective on March 24, 2011.  The effect of the Act and these regulations is that large numbers of employees will qualify as disabled under the law thereby triggering an increased number of applicants and employees who may be eligible for reasonable accommodations.  Here are a summary of the regulations:

1. Defines "major life activities" broadly to include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, working and the operation of a major bodily functions such as the immune system, special sense organs and skin, normal cell growth and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal and reproductive systems.
2. Clarifies that the term "substantially limits" is not to be a demanding standard; should be construed expansively; the impairment's limitations should be viewed in their active, rather than remissive, state; mitigating measures should not be considered; and the examination should not usually require scientific, medical or statistical analysis.
3. Identifies impairments that will almost always substantially limit a major life activity such as:  deafness, blindness, intellectual disability, cancer, cerebral palsy, diabetes, epilepsy, HIV, multiple sclerosis, depressive disorder, bipolar disorder, OCD, schizophrenia, muscular dystrophy. 
4. Confirms that temporary or episodic conditions (including those in remission) may qualify as disabilities and that it is appropriate to consider the additional time, effort or pain the employee experiences in performing a major life activity in determining whether it is substantially limited (i.e., the conditions under which the individuals performs the activity).
5. Confirms that individuals qualifying as "disabled" only under the "perceived as" prong are not entitled to reasonable accommodation but those who are disabled due to "actual disability" or a "record of disability" are entitled to reasonable accommodations that do not cause undue hardship.

 You can access a full copy of the regulations here.

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Today the U.S. Department of Labor announced publication of a time keeping App for smart phones --the DOL -Timesheet.  Employees can download the free App through iTunes and can be used with the iPad, iPhone and iTouch.  The App is an electronic timesheet that allows employees to record their hours worked and calculate the amount of wages (including overtime) the employee may be owed by the employer.

The App allows employees to track multiple employers; input time manually or start and stop work time automatically; track meal period and other breaks and can even e-mail reports of the hours worked that are already converted into Excel format.  Finally, the App contains a glossary explaining common wage and hour terms and even a function to contact the Department of Labor.  DOL Timesheet is programmed for FLSA compliance; however, I would expect state wage and hour divisions or enterprising wage and hour class action counsel to develop similar Apps that would apply state wage and hour laws.

DOL Timesheet is another example (like the private attorney referral program --Bridge to Justice) of the Department's attempt to make it easier for employees to pursue claims against employers for wage and hour violations.  Employers must be vigilant to ensure that they are properly paying employees for all hours worked and at appropriate rates of pay for those hours.

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I've written several posts advocating the advantages of employer's use of waivers of jury trials to resolve employment disputes with employees.  (See posts here and here).  To recap, the mutual waiver of jury trial provides the employer and employee a fair way to resolve employment disputes without some of the disadvantages that other forms of alternative dispute resolution present.  The Fort Worth Court of Appeals recently enforced an employer's agreement with its employee to waive the jury trial of any disputes between them.  

In In re Frank Kent Motor Company, the Court of Appeals found that the waiver of jury trial provisions contained in the employer's handbook, and that the employee was aware of, was enforceable even though the employee argued he did not sign the acceptance of the waiver knowingly, voluntarily or intelligently.  The employee argued that his acceptance of the policy was not knowing and voluntary because he feared he would lose his job if he did not sign the agreement; he wasn't represented by a lawyer when he signed; he refused on two prior occasions to sign the agreement; the agreement was not negotiated and the employer indicated no willingness to negotiate changes; and his supervisor told him he had no choice but to sign the agreement.  Despite these allegations, the Court of Appeals found the allegations insufficient to overcome the presumption that the agreement was knowingly and voluntarily accepted. 

You can find a copy of the full opinion in In re Frank Kent Motor Company here.

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In another example of social media exposing an employee's lack of judgment, the Washington Post reports that an Indiana assistant attorney general was discharged for tweeting that police should "use live ammunition" when clearing protesters outside the Wisconsin state capital.

Social media doesn't cause employee lapses in judgment; it merely exposes them.  Perhaps the best Social Media policy is the simplest: "Use good judgment."

Molly DiBianca identifies other examples of discipline at the The Delaware Employment Law Blog:

Employee’s Fake Jury-Duty Leave Busted via Facebook

District Attorney's Sexting Is a Lesson for Employers

Use Twitter, Get Fired (Discussing the Philadelphia Eagles' Employee terminated for his tweet)

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If I had a dollar for every time I reminded a client that "no good deed goes unpunished," my childrens' college funds would be flush and I'd be planning to retire early.  The recent case of Terwilliger v. Howard Mem. Hosp. (W.D. Ark. 1/27/2011) reminds us that employees will often attempt to ensure that "no good deed goes unpunished" and employers are often "darned if they do and darned if they don't."

Fellow bloggers have comprehensively covered Terwilliger (See Ohio Employer's Law Blog, The FMLA Blog, FMLA Insights, Employment Law Matters) and so only a brief summary is necessary.  In that case, Terwilliger was out on FMLA leave for a back-related injury.  She testied (which the court was required to accept as true) that her supervisor called her weekly while on leave to inquire when she was going to return to work.  As a result, she felt pressured by these calls to return to work.  Because of this testimony, the Court denied the employer's motion for summary judgment finding that a fact-issue existed on Plaintiff's claims that these calls chilled her willingness to and interferred with the exercise of FMLA rights. This is probably the technically correct ruling at the summary judgment stage, but at trial I suspect a different story will be told where the jury, unlike the court, will not be required to accept the plaintiff's version as true.

At trial, I suspect the supervisor will testify that, if she called at all, she was merely calling to check on how the plaintiff was doing and to check on her well-being.  Should that be illegal?   Imagine, if the supervisor never called to check on the employee.  The employee can then complain, "They never even bothered to call to see how I was doing."  Instead, because the supervisor called to check on the employee, she complains that her FMLA rights were interferred with.  Terwilliger teaches that employers cannot always predict how their actions will be spun by creative lawyers representing employees.  Instead, supervisors should ensure they follow the law; treat employees consistent with the employer's policies; and in a manner in which they would want to be treated.  Leave it to the company lawyers to take the spin out of the employee's efforts to punish good deeds.

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Many times one competitor sues another competitor over the hiring or two or more employees (whether over allegations of a breach of contract or misappropriation of trade secrets), the Complaint will make allegations of employee "poaching".  This gives rise to the question about whether Texas recognizes a cause of action for one competitor's poaching of another competitor's employees.  The answer is "yes" and "no." 

While there is no recognized cause of action called "poaching" for a competitor's targeting, soliciting and hiring groups of its competitor's employees (remember, Texas is a right to work state and restraints of trade are highly disfavored), there are recognized causes of action, remedies and tools available to employers who find their workforce the target of a competitor's poaching.  These include use of and enforcement of covenant not to competes; investigating and bringing claims for misappropriation of confidential information; theft of trade secrets; claims for unfair competition; breach of the duty of loyalty and fiduciary duty; tortious interference with contract; computer fraud and abuse; and conspiracy to tie together all the defendants acting in concert together.  

So while there may be no claim titled "poaching" under state law, there are recognized claims that can allow for an employer remedy against a competitor that has unlawfully targeted another competitor's employees.

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By now we know that the Pittsburgh Steelers will play the Green Bay Packers in Superbowl XLV.  While most people know the game will be played in Cowboys Stadium, fewer realize that Cowboys Stadium is in Arlington, Texas --not Dallas.  Moreover, for the entire week leading up to the Superbowl, ESPN has relocated its headquarters and broadcasts to downtown Fort Worth, Texas.

What does this have to do with Texas employment law?  I'm not sure it has anything to do employment law but since my beloved Cowboys aren't making an appearance as the first team to ever play a Super Bowl in their home stadium, I have to find some angle to be interested in the game.  As ESPN sets up its studios for broadcasts beginning this weekend, I'll try to find an employment law connections related to the hosting of the Super Bowl.  If my posts in the next two weeks are infrequent, its because I'm in the parking lot next door watching ESPN's Mike and Mike in the Morning show.

Photo of crews beginning the set up of ESPN's studio in Fort Worth, Texas from my office.

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The mid-term elections are approaching.  Today I want to take the opportunity for a brief refresher on the Texas legal requirement for providing employee time off to vote.  Under certain circumstances, Texas employers may be required to give employees paid-time off to vote.  As I wrote about last year:

The Texas Election Code makes it a Class C misdemeanor for an employer to refuse to allow an employee to be absent from work on election day for purpose of attending the polls to vote.

An employer is not, however, required to allow time off to vote if the polls are open on election day for voting for two consecutive hours outside of the employee's working hours.  For example, if you have an employee that regularly works 8:30 a.m. to 5:30 p.m. with a one-hour lunch break, an employer may have to give that employee time off from work on election day to attend to the polls and vote. In Texas, the election polls are generally open from 7:00 a.m. until 7:00 p.m. 

Because the term "penalty" means a loss or reduction in wages, an employer should provide paid time off for the employee to attend the polls to vote if the polls are not open on election day for at least two consecutive hours outside the employee's working hours.

An employer can avoid this interruption and the payment for otherwise nonworking time by rescheduling work schedules on election day so that employees have two consecutive hours off while the polls are open (e.g., reschedule the employee to work 8:00 a.m. to 5:00 p.m. on election day). 

Consider yourself refreshed.

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In March 2010, the President signed the Hiring Incentives to Restore Employment Act (“HIRE Act”). The law was part of a $17.6 billion jobs creation package that includes incentives for businesses to hire unemployed workers. This law provides Texas employers with an opportunity to reduce some of their payroll tax obligations for 2010.

The HIRE Act provides, among other things, an exemption for the employer’s share of Social Security payroll taxes in 2010 (normally 6.2 percent for the first $106,800 of wages) for each eligible employee that is hired between February 3, 2010 and January 1, 2011. To qualify for the exemption, the employee must: 1) swear that he did not work more than 40 hours during the last 60 days; and 2) not replace another employee except one who voluntarily resigned or was terminated for cause.  Additionally, the eligible employee must not be related to the employer.  The IRS has published an affidavit for use by eligible employees. (Form W-11).  The affidavit is not filed with the IRS but is retained by the employer to justify the use of the exemption in the event of an IRS audit.

Additionally, the law provides a tax credit for retaining employees. Employers that retain newly hired employees for at least 52 consecutive weeks can claim a tax credit on their 2011 tax returns if they meet certain conditions.  To be eligible for the tax credit (i.e., a dollar for dollar reduction in tax), the employee must: 1) be employed for 52 consecutive weeks; and 2) the employee's wages in the last 26 weeks of the 52 week period must be at least 80 percent of his wages during the first 26 weeks of the period. The tax is capped at the lesser of $1,000 or 6.2 percent of the employee’s wages during the 52 week period. These provisions provide an opportunity for an employer to reduce its payroll tax obligations during this period of economic recovery in 2010.

For more information, see these links:

Two New Tax Benefits Aid Employers Who Hire and Retain Unemployed Workers

HIRE Act: Questions and Answers for Employers

Special Payroll Tax Exemption Form Now Available

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Last week the EEOC issued two Informal Discussion Letters addressing employment practices or policies that might create liability under a disparate impact theory of discrimination.  Since the discussion letters do not constitute official opinions or interpretations of the Commission, the significance of back-to-back letters on the same topic is not the content (the letters do not break any new legal ground or make any surprising pronouncements), but that it suggests the Commission might be interested in finding and bringing more disparate impact claims.  The following is a brief summary of the discussion letters.

The first letter dated February 19, 2010, discusses whether a proposed qualification standard that Public Health Directors possess a master's degree, without the possibility of substituting experience or other education, violates Title VII.  The Attorney-Advisor of the Office of Legal Counsel noted that if the master's requirement had a significant disparate effect on a protected group, it might be unlawful if the employer cannot justify that the requirement is "job related and consistent with business necessity" and there is no alternative practice "that would be equally effective in predicting job performance, but that would not disproportionately exclude the protected group."

The second letter dated March 9, 2010, discusses employers' use of credit checks to screen job applicants.  While acknowledging that the EEOC has no authority to enact legislation to prohibit employer credit checks, its authority does extend to circumstances where an employer's use of credit information disproportionately excludes minority candidates and the employer was unable to show that the practice was needed to operate safely or efficiently.  The Commission's Assistant Legal Counsel also noted that in May 2007, an attorney who primarily represents class action plaintiffs against employers testified that "credit checks have not been shown to be a valid measure of job performance."  Including a reference in the discussion letter to testimony opining that credit checks do not effectively predict job performance (and then posting the letter on the Commission's website) suggests that some at the Commission may share a similar view about the use of credit checks to screen applicants.   

While these Informal Discussion letters do not constitute a written opinion or interpretation of the EEOC they are instructive in that they highlight an issue that the EEOC is focusing at least some of its resources.

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By Executive Order dated March 25, 2010, Houston Mayor Annise Parker, added sexual orientation and gender identity as protected categories under the City's anti-discrimination, harassment and retaliation policy.  The Order prohibits discrimination, harassment and retaliation based on gender identity and sexual orientation in all of the City's employment, contracting and vending activities and in the provision and accessing of all City services, facilities, programs and activities.

Specifically prohibited the policy are the following:

• Failing or refusing to hire, recruit, appoint, promote or train any individual or otherwise discipline, demote, transfer lay off, fail to recall, or terminate any individual because of such individual's sexual orientation and/or gender identity;
• Limiting, segregating or classifying employees or applicants in a way that would deprive, or tend to deprive, any individual of equal opportunity or otherwise adversely affect the status of the employee or applicant because of the individual's sexual orientation or gender identity;
• Failing or refusing to recommend any contract or purchase for award based on a contractor or vendor's sexual orientation or gender identity;
• Failing to make available to any member of the public or employee use of a city facility or receipt of city service because of their sexual orientation or gender identity;
• Impeding access by an employee or member of the public to a city restroom facility that is consistent with and appropriate to that person's expression of gender identity;
• Limit participation by any city employee or member of the public in any city-sponsored activity because of the person's sexual orientation or gender identity in which they would otherwise be permitted to participate.

 You can access a full copy of the Executive Order here.

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I wrote about an unusual dispute between the EEOC and a San Antonio law firm where the EEOC sought enforcement of an administrative subpoena seeking law firm records in connection with a charge of discrimination filed by a former employee of the firm.  You can read that post here.

Well, like Spring itself that blows in like a lion and out like a lamb, the law firm has provided the information sought by the EEOC subpoena and the EEOC has requested dismissal of its application to enforce the administrative subpoena (which has been granted).  Much ado about nothing after all.  You can review the EEOC's Motion to Dismiss here.

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Since at least 1995 Texas law has provided that women has a right to breastfeed in public in any place in which they are legally authorized to be.  Last week, the health care reform signed by the President amended the Fair Labor Standards Act to require covered employers to provide reasonable break time for nursing mothers to express breast milk for nursing children.  The FLSA is the federal law that requires most employers to pay minimum wages and overtime for hours worked in excess of forty per week.

The new law provides that:

• Employers must provide reasonable break time for an employee to express breast milk for her nursing child for one year after the child's birth;
• Provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk;
• Break time is unpaid in Texas (unless of course the employee is an exempt employee entitled to full salary in workweeks where any work is performed).

The law does not apply to employers with 50 or fewer employees if "the requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature or structure of the employer's business."

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With Congress finalizing a health care reform bill to send to the President, what exactly will the 2,000 page bill mean for Texas employers?  As reported today by U.S.A Today, employers should expect, among other things:

• A health care exchange where small businesses can comparison shop for insurance policies;
• Fines for employers with 50 or more employees if any full-time workers qualify for health care subsidies; and
• Increases in Medicare payroll tax.

Only time will tell what the true cost of this reform will be for employers and whether the benefits cost.  

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This week the Department of Labor published a poster that must be used by all employers employing employees under H-2A visas.  H-2A visa holders are non-immigrant employees employed in temporary or seasonal agricultural jobs.  A copy of the required poster (in English) can be accessed here.  (Spanish here)  This poster is required by federal rules published February 12,  2010 and must be posted in the place of employment both in English and any other language other than English spoken by a significant portion of the workers. 

For more information on the eligibility requirements to employ H-2A employees, see the Department of Labor's fact sheets that can be accessed here.

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When investigating a charge of discrimination, the EEOC has the authority to issue administrative subpoenas requiring employers to produce relevant information.  This power, however, is rarely used because most employers voluntarily comply with the EEOC's reasonable requests for information. 

In San Antonio, a law firm respondent is testing the EEOC's powers to require information be produced via administrative subpoena.  In EEOC v. Malaise law firm, the EEOC is seeking the names and addresses of employees working for the law firm as potential witnesses.  The request was made in connection with the Commission's investigation of a claim of sexual harassment.   The firm responded that this information was not relevant, constituted a fishing expedition, and invaded the privacy rights of nonparties   The EEOC persisted in its efforts to obtain the information and ultimately issued an administrative subpoena to the firm.  The law firm filed objections to the subpoena which the EEOC overruled (Yes, the EEOC gets to make the rulings on objections made to its subpoenas).  The law firm still failed to comply with the subpoena and the EEOC filed a Petition to Enforce the subpoena in the U.S. District Court. 

The interesting part about the fact the EEOC had to go to court to get this information is that the Commission's court filing shows some insight into how it goes about investigating charges of discrimination. You can read the EEOC's Petition to Enforce here and the affidavit in support of the petition (with all of the fun-to-read exhibits containing the charge and letters between the firm and EEOC)  here.

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As a light dusting of snow falls on much of North and West Texas, I thought it was a good time to review the rules regarding deductions from exempt employee salaries for weather-related absences.  Employees qualifying for the white collar exemptions (e.g., professional, administrative and executive exemptions) are generally entitled to receive their entire salary for any workweek where they perform work, regardless of the amount of work performed during the week (like most things, there are some exemptions not addressed here). 

When an employer closes its business for less than a full week due to weather-related conditions such as snow, the employer must pay the exempt employee the full salary for the week.  In this case, while the employer must pay the exempt employee the full salary for the workweek, nothing prohibits the employer from deducting that period of time from the exempt employee's PTO or vacation bank --so long as the employer's written policies do not prohibit it from doing so.  If an exempt employee has exhausted all available PTO or vacation, the employer should still pay the full salary for the workweek under this situation.

Conversely, where the workplace is open for business and the exempt employee elects not to report to work for a full day because road conditions are treacherous, the employer may reduce the exempt employee's salary for the workweek for the period of full day absences caused by weather.  An absence under these circumstances constitutes an absence for personal reasons.  An employer could also pay the employee and deduct the time from the employee's PTO or vacation balance.  An employer should not, however, deduct from the exempt employee's salary a partial day deduction (e.g., where the employee reports late for work due to road conditions).  Treating exempt employees' pay for absences occasioned by weather-related absences is important because failing to do so may jeopardize the employees' eligibility for exempt status.

DOL Opinion letters here and here.

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Companies using independent contractors to perform work normally performed by employees beware; state and federal governmental taxing authorities are challenging those classifications in an effort to increase tax revenue on wages that are not properly reported.  According to a recent article by the Associated Press, "the Internal Revenue Service and 37 states are cracking down on companies that try to trim payroll costs by illegally classifying workers as independent contractors rather than as full employees." 

In September 2009, the IRS announced that it would (beginning in February 2010) audit at least 6,000 randomly-selected companies to investigate employment tax compliance.  Among other things, one of the areas targeted is worker misclassification as independent contractors. Companies may misclassify workers for a variety of reasons.  Companies have greater tax withholding obligations and employment tax liabilities with respect to employees.  Moreover, independent contractors are not entitled to overtime compensation, unemployment insurance and other employee benefits.  It is estimated that classification as an employee rather than independent contractor may add up to 30 percent to the labor cost of the worker.  The Government Accountability Office estimates that employee misclassification results in an estimated underpayment of $2.72 billion in social security, unemployment insurance and income taxes by companies annually.  

The 2011 federal budget proposes up to $3.8 trillion in spending measures to eliminate legal incentives for employers to misclassify employees, such as using budgeted funds to investigate, prosecute and penalize employers misclassifying employees as independent contractors and provide states with competitive grants to boost enforcement initiatives targeting misclassification.  There is also legislation introduced in Congress, the Taxpayer Responsibility, Accountability and Consistency Act of 2009, designed to make it more difficult to classify workers as independent contractors and to increase penalties for such misclassification. 

Secretary of Labor Hilda Solis also announced that her Department will hire more than 90 new wage and hour investigators and enforcement personnel to target worker misclassification.  According to Secretary Solis:

When employees are misclassified as 'independent contractors,' they are deprived of benefits and protections to which they are legally entitled. For example, independent contractors do not receive overtime and are ineligible to receive unemployment benefits. The FY 2011 budget includes an additional $25 million for a Misclassification Initiative to target misclassification with 100 additional enforcement personnel and competitive grants to boost states' incentives and capacity to address this problem.

With heightened Executive and Legislative enforcement efforts, companies using independent contractors should be sure their relationships have been vetted and are in strict compliance with the labor and tax laws.  The Departments of Labor and Treasury will surely be watching and scrutinizing those relationships.

Other Related Links:

Bill Would Make it Harder to Qualify Workers as Independent Contractors

Proper Classification of Workers as Employees or Independent Contractors May Reduce Litigation Exposure

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Last night CBS launched its new series "Undercover Boss" following the Super Bowl.  The premise of the semi-reality series is the president of a large company goes undercover as a rank-and-file employee to work for the company and get a bottom-to-top look at how the company operates.  [Spoiler Alert --Don't read further if you have the show DVR'd to watch later].  Last night's episode exemplified a situation where appropriate and legal policies formulated at the corporate level sometimes get contorted or twisted at the tactical level.

In last night's episode the President and COO of Waste Management (Larry O'Donnell) went to work undercover as a new employee in various operations of his company over the course of a week.  At a recycling plant operated by Waste Management, the company apparently had a policy requiring employees to take exactly a thirty minute meal period.  It was unclear from the show whether the policy was required by state law, but an employee had to clock-out for exactly thirty minutes.  If the employee clocked in a minute late, local management, docked the employee for 2 minutes of pay.  Presumably, if the employee clocked in 5 minutes late, she would be docked 10 minutes of pay.  In any event, it is unlikely that Waste Management's Human Resources or Legal Departments encouraged or condoned the application of the policy in this manner given the potential that such docking of work time (depending on the state and whether the total time docked is de minimus) could result in a wage and hour violation . 

The lesson employment lawyers and human resources personnel can take away from "Undercover Boss" is that there is often a difference in how a policy is designed to work and how it actually works in practice.   When investigating a potential legal claim to answer a complaint or draft a statement of position to the EEOC, it is often important to talk to the people who are actually responsible for implementing company policies to determine how they really operate in the field rather than relying on middle or senior management who may only know how the policies are supposed to work.  Failing to do so can cause employers to make misrepresentations to governmental agencies or courts and can lead to accusations that the employer either doesn't know what is going on in the workforce or to claims that the stated reasons for taking some action against an employee are pretextual or false. 

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Recently I wrote about ADP's 12th Annual Screening Index summarizing employment screening and hiring trends.  Employers using third-party background screening services must remember to comply with the Fair Credit Reporting Act's (FCRA) procedures prior to using consumer reports, in whole or in part, employment taking employment actions.  Moreover, while Texas has no specific statutes governing use of consumer reporting information in the employment context, some states have laws or regulations imposing more restrictive requirements than the FCRA that must also be followed.

In summary, the FCRA requires employers using consumer reports (i.e., information about your personal and credit characteristics, character, general reputation, and lifestyle) to:

• Disclose, in writing, your intent to obtain consumer reporting information before requesting the information;
• Obtain written authorization to obtain the consumer reporting information before requesting the report;
• Prior to taking an adverse employment action, provide the applicant/employee with pre-adverse action notification containing a copy of the report and a summary of rights under the consumer reporting act;
• After taking the adverse employment action, provide the applicant/employee with post-adverse action notification that contains the name and contact information of the consumer reporting agency (CRA) that prepared the report; a statement that the CRA did not make the decision and advising the individual of his or her right to dispute the information in the report with the CRA within 60 days.

Background checks and pre-employment screening are effective tools to use in hiring qualified employees.  Doing so,  however, without understanding an employer's obligations under state and federal law, can give rise to liability. The Federal Trade Commission enforces the FCRA.  For more information on an employer's rights and obligations under the FCRA, click here.

Earlier: Annual Survey of Employment Screening and Hiring Trends Released.

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This month ADP released its 12th Annual Screening Index report summarizing its evaluation of employment screening and hiring trends.  The summary was gleaned from nearly 5.5. million individual background checks and 1.7 million criminal background checks performed during calender year 2008.  The Screening Index:noted several interesting data points:

• Nine percent of background checks contained an adverse record (concerning criminal history, credit and driving records).
• Forty-six percent of reference and credential verifications revealed a discrepancy between information provided by candidates and what the screening revealed on employment, education and/or reference checks.
• More than one-third (37 percent) of driving record checks showed “one or more violation(s) or conviction(s).”
• Approximately six percent of the criminal record checks revealed a criminal record within the last seven years (out of 1.7 million checks performed).  

Because employers utilize background screens to identify appropriate candidates for employment; confirm the veracity of information provided on employment applications and as part of a comprehensive strategy of maintaining a safe workplace, the ADP summary provides interesting information about the American workforce --on a macro level. A copy of the full report can be downloaded here (must provide ADP with some identifying information prior to download).

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Manpower has published its most recent research on jury verdicts and the news is not good for employers.  According to a summary of the full report:

• Employers won the lowest percentage of discrimination jury trials this decade; only 39 percent.  Employers won on 33 percent of age cases and 52 percent of disability discrimination cases.  Expect employer's winning percentage to decrease in disability discrimination cases in the next years as post-ADAAA cases make their way to juries.
• Age discrimination cases result in the largest verdicts followed by disability, sex and race.
• Employers are better off in federal court than state court.  Employers won 43 percent of the cases in federal court versus only 37 percent in state court.  The median federal jury award was also lower at $164,925 v. $270,000 in state court.
• Median settlement rose to the highest this past decade at $90,000.

Several reasons may explain Manpower's most recent findings.  First, the economy, and juror attitudes may be affecting outcomes.   In my two most recent jury trials this year, there was a significant number of potential jurors who were either out of work or had a close family member who was unemployed.  With the national unemployment rate topping 10 percent, the increase in the unemployment rate may signal that there are more prospective jurors who may sympathize with an unemployed plaintiff-employee. 

Second, in a poor economy, some employers may choose to try cases they might have settled in the past.  Some employers may elect to try those cases that can be tried to verdict for less than they can be settled.   This may be a fiscally sound decision only in the short term or if the employer prevails at trial.

Finally, the results may reflect the fact that employers are having to try tougher cases to defend.  In any event, Manpower's research suggests that juror attitudes in employment discrimination cases are swinging in favor of plaintiff-employees and against employers.

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Last week's season finale of AMC's critically acclaimed series "Mad Men" shows a prime example of how to get involved in big time litigation when leaving a former employer to start-up a competing enterprise or work for a competitor. Mad Men is a made for cable series set in the 1960's about a Madison Avenue advertising firm.

In the season finale, Don Draper, Roger Sterling and Bert Cooper learn that their New York subsidiary of a London-based advertising firm ("PPL") is being sold to a competitor.  Shackled by noncompetition agreements they signed when their firm was purchased by the London firm and intent on not working for their competition, they evaluate their options. 

The solution --conspire with the office manager (a long-time PPL employee who will be cast aside following the sale) to terminate their contracts (fire them) in return for a partnership interest in the new venture.  To ensure that their plans are not discovered, the office manager strategically waits to advise PPL's home office of the terminations until the close of business Friday afternoon thereby ensuring that PPL will not learn of the change until Monday morning.  Over the course of the weekend, Draper and company loot client files; take account and marketing materials; and go on a wholesale campaign to solicit firm clients to join the new firm.  This is the season finale and so we don't yet know whether the 1960's London-based company response will be to file lawsuits or do nothing. 

In today's times, I would expect the next season would begin, and end, as follows.  The episode opens in a courtroom where Draper, Sterling and Cooper are about to be sentenced for certain criminal offenses.  The next scene then flashes back to last season's finale with Draper and company wheeling out boxes and boxes of information from their old employer; making solicitations to the customers of their old firm; and competing fiercely for new business.  Lawyers are engaged; lawsuits are filed.  Draper and company are slapped with injunctions that prohibit them from calling on or doing business with old firm clients and from using the confidential, proprietary information that was misappropriated from the old employer.  Next, a grand jury is summoned by the U.S. Attorney for the Southern District of New York. Our heroes are indicted for theft of trade secrets and a whole host of other misconduct.  Draper files for bankruptcy since his resources are drained by being a partner in an advertising firm that is enjoined from working with clients --not to mention the divorce from his lovely wife Betty.  Finally, our Mad Men plead guilty to criminal offenses and are sentenced to moderately lengthy prison sentences.  Next season's opener ends up being the series finale because the protagonists misappropriated and used information that belonged to their old employer.

What this episode of "Mad Men" teaches is that if one is going to leave an employer and either work for a competitor or start a competing venture; don't do it like the Mad Men.  Departing employees should 1) honor reasonable and enforceable contractual agreements regarding competition and nondisclosure of confidential information; 2) not take or use anything from the former employer; and 3) compete fairly.

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Let the Festivities Begin.

It’s that time again. The leaves are changing; there is crispness in the air and it’s time to start planning the company’s annual end of year or holiday party. While these events are wonderful opportunities for employees and their families to get together to celebrate the season, they can have unanticipated legal implications and bring with them the potential opportunity to create employer legal liability. 

Not only can the fun and festivities of a company Christmas party lead to employer liability resulting from alcohol related accidents or injuries, but the relaxed environment and the introduction of alcohol can also lead to allegations of sexual harassment. The following ideas are a few suggestions an employer should consider in planning and carrying out a company-sponsored event.

Don’t Require Attendance And Don’t Take Roll.

There are several reasons why an employer does not want to mandate that its employees attend the company party as a condition of employment. For example, if the company sponsors an annual Christmas party, there may be some employees who subscribe to religious faiths that do not celebrate or recognize Christmas. Mandating employees attend these parties, or disciplining employees because they do not attend, could result in charges of religious discrimination. For this reason, many companies have elected to use secular names for their seasonal parties such as “Holiday” or “Winter” party.

Another reason to avoid mandating attendance at the company party is to minimize the possibility of accidents or injuries to employee-guests occurring at the event being compensable injuries and covered by workers’ compensation.

Discourage Overindulgence of Alcohol.

One of the most effective ways of avoiding many of the adverse issues that arise from company sponsored events is to avoid serving alcohol. However, if a company is going to supply or permit the use of alcohol at a company event, it should plan effectively so that alcohol is used responsibly. 

Through pre-party meetings or memos, employees can and should be subtly reminded that, while occurring outside of working hours, the party is still a company-sponsored event and to avoid excessive alcohol consumption (i.e., drink in moderation). Employees should also be reminded that while certain workplace conduct policies may be relaxed during this nonworking time, the policies directed at prohibiting harassment (sexual and otherwise) continue to apply at all company-sponsored events. 

Unfortunately, some employees incorrectly believe that the company party is the time and the place to let it all hang out and that there will be no consequences for their conduct occurring outside of regular working hours. Unlike Las Vegas, things that are said and done at the company party don’t necessarily stay there and may have to be investigated by Human Resources after the event. Employees must understand that there can be consequences for their behavior –even at the company holiday party.

Pay To Play Or Distribute Drink Tickets.

Two ways to reduce the alcohol consumption at the company party include offering a cash bar or distributing a limited number of drink tickets to each guest. Many companies have elected to use cash rather than open bars at company-sponsored events. Frequently, when guests have to purchase their own drinks, they tend to consume fewer drinks. If an employer is going to have an open bar at its expense, another alternative is to distribute drink tickets that can be redeemed for a beverage of choice. While there is always the possibility of a guest collecting unused drink tickets from teetotaling guests, drink tickets can help limit or reduce the amount of alcohol consumed by guest employees.

Invite Spouses.

It is important when determining who will be invited to attend the company's annual holiday party to consider including spouses.  Many sexual harassment claims arising out of the company's sponsored events would likely be avoided if employee-spouses were invited and attended.  I analogize inviting spouses to annual holiday party in a similar way to this, "Would you jay walk if a policeman were standing on the corner to observe you?"  Probably not, and for the same reasons, spouses served as the policeman on the corner for some bad behavior that might occur in their absence.  Conversely, including spouses can sometimes create conflict such as when an employee perceives that his or her spouse's honor has been disrespected.  This typically involves an overindulgence of alcohol making use of drink ticket or other limitations on alcohol important.

Location, Location, Location/Hire A Caterer To Operate The Bar.

Another consideration should be the location of the event. It is often appropriate to schedule the event away from the office at an offsite location. This helps protect the employer’s property and assets. It can also be particularly important in preventing unauthorized access to confidential or trade secret information in the workplace or access to hazardous or dangerous equipment that may be used in the employer’s business. 

Employers can also employ the use of a coat check system where guests can check their coats and other personal articles. Guests should also be encouraged to leave their automobile keys with the coat check. Prior to leaving, guests can be individually observed to ascertain their ability to drive home when retrieving their coats and keys. Another alternative is to use a complementary valet system. Most guests will use the valet service. The employer (or its third party valet service) will then have possession of the guests’ keys and can evaluate each guest at the end of the party before returning the car keys. In either situation, it is important to have a responsible person that is trained in identifying the signs of intoxication. Off duty, plain-clothed law enforcement officers can usually be employed for this task.

Finally, hire a caterer or other third party to operate the bar. Ensure that the caterer is instructed verbally (and even better yet in writing) that they are not to serve any guest that appears to be intoxicated and the employer should designate a representative whom the caterer should notify in the event a guest may have overindulged.

Offer Plenty of Food and Non-Alcoholic Beverages.

Be sure that as a part of the event the company offers a variety of food and that it stays well-stocked so that employees can eat plenty with their cocktails. While everyone loves salty, greasy and sweet foods, those kinds of foods make guests feel thirsty and can have the effect of increasing alcohol consumption. Try to include foods that are high in starch and protein which stay in the stomach longer and slow the absorption of alcohol into the bloodstream.

Last Call and No Roadies.

Close the bar long before the party is expected to conclude. After the bar has closed, continue to serve food and other non-alcoholic beverages. This will give guests an opportunity to let some of the effects of any alcohol they may have consumed subside and may give the employer additional time to identify guests who need additional assistance getting home.

Arrange alternative transportation.

Despite your best efforts, there may be an employee who needs assistance in getting home. Anticipate this need and make arrangements for some alternative means of transportation such as a taxi or car service. Encourage all employees to make use of this service if they consume any alcohol.

If the event is being held at a hotel, negotiate discounted room rates when booking the event. Some employees might prefer to stay the night after the party rather than travel home. If this is negotiated in advance, it can be advertised to employees with the holiday invitations and they can better plan their evening activities.

Investigate Complaints.

Occasionally, a company sponsored event like a holiday party may spawn an employee complaint such as an unwelcome sexual advance. Some employers incorrectly believe that because the conduct complained of occurred during non-working hours or away from work that such conduct need not be investigated. This can be an expensive mistake. Prudent employers investigate all complaints that they receive from their employees having any nexus to the workplace. Complaints about conduct occurring at the annual party should be investigated like any other complaints as the conduct may affect an employee’s working relationship with co-workers.

Company parties are intended to be fun, rewarding occasions for co-workers and their families to share time away from the stresses of the workplace. With careful planning an employer can maximize the opportunity for fun and celebration and minimize the chances that the event becomes something the company might prefer to forget.

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The EEOC issued a new poster that incorporates provisions of the Genetic Information Nondiscrimination Act (GINA).  The new poster also includes updates from the Department of Labor.  A copy of the poster can be printed here.  Covered entities are required to post GINA notices not later than November 21, 2009.   Covered entities include, among others, employers with 15 or more employees.  

According to the EEOC, there are several ways to comply with the new posting requirement by November 21, 2009.

• Print the supplement (download here) and post it alongside EEOC’s September 2002 “EEO is the Law” poster or OFCCP’s August 2008 “EEO is the Law” poster.
• Print and post the EEOC’s November 2009 version of the “EEO is the Law” poster.  (here)
• Order a new poster through the EEOC Clearinghouse.  The new posters is currently on backorder and will be shipped when available. 

Of course, employers can also order new posters from their vendor that provides multiple required employer posters in a single poster. 

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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.

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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. 

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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. 

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In the trial of most employment discrimination, harassment or retaliation cases, the employer's documentation of its actions is critical.  An employer defending against these claims will need to be able to prove to a jury that it was its legitimate nondiscriminatory or non-retaliatory reason that motivated its actions as opposed to unlawful animus.  Contemporaneous written documentation of an employee's performance problems, while not required, can go a long way in persuading a jury what, more likely than not, motivated the decision.  In writing effective performance documentation, here are some tips that can be considered.

• Address the performance deficiencies or misconduct timely.  Rather than waiting for the "last straw" counsel employees on areas where they need improvement contemporaneously when those issues arise.  This provides the employee with fair notice that his or performance is deficient and will generally provide them with sufficient warning and opportunity to improve the performance.  Jurors, many of whom are employees themselves, expect plaintiff-employees will be given notice of their performance problems (unless sufficiently severe) before they rise to the level of terminable offenses.  
• While it sounds simple enough, describe what it was that the employee did that violates the employer's policies or expectations.  Be specific with the dates, times and places of the misconduct or poor performance.  If the employee has only been provided with verbal warnings in the past, describe the dates, times and places of those verbal warnings when it comes time to move to more formal discipline like a written write-up.
• If the employee has received previous warnings or performance improvement documentation for the same or similar violation, include that information along with the date of the previous write-up and the specifics of that incident(s) as well.
• If the employee has been advised of the policy or expectation that has been violated, set forth how the employee was informed of the policy or expectation.  For example, if the policy is set forth in the employer's handbook, note that fact as well as the fact that the employee has been provided a copy of the handbook and signed a written acknowledgment of receipt. 
• Be sure that the documentation advises the employee that improvement is expected and which such improvement must be accomplished.  For example, a warning for insubordination or safety violations might require immediate improvement whereas improvement based on a performance quota might be accomplished over time --e..g, 90 days.
• If there is to be some follow-up by the employer, make sure that follow-up takes place and that the employee is given honest feedback on his or her progress toward accomplishing the improved performance.
• Consider whether you will provide an area for the employee to provide a rebuttal or what the employee intends to do to improve his or her performance.   While this provides the employee with an opportunity to provide an excuse or justification for the poor performance, it also provides employees with an opportunity to give thoughtful consideration to the concrete steps he or she will implement to improve the performance.  This increases the likelihood that the employee will be successful in improving his or her performance.
• Have a place for the employee to sign and date the form (or for a witness to sign that it was presented and discussed with the employee in the event the employee refuses to sign).  In cases where the employee has not signed the performance documentation, there is the possibility that the employee will deny that the events occurred.  Even worse, the employee could accuse the employer of fabricating the performance documentation for purposes of the termination or litigation.  The presence of an employee signature reduces the ability or effectiveness of an outright denial by the employee that he or she was warned of the prior performance deficiencies or misconduct.
• Use a preprinted form for performance issues.  This will assist in ensuring that the information suggested in this post is included.  A sample form is available here.

With these tips, employees can be better apprised of their performance deficiencies and the documentation can be valuable evidence in the event the employer has to defend its actions in court.

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Driving home recently, I was nearly run off the road by another commuter.  This driver appeared to be driving with her knees while text messaging on her phone.  As I avoided the swerving car and slowed to let the other driver proceed on her merry way, it was clear that this driver never noticed that she almost caused a collision.  

According to studies referenced in a recent NY Times article, drivers using cell phones are 23 times more likely to be involved in an automobile accident and drive about as well as drivers having a .08 blood-alcohol level --over the legal limit in most states.  As the Fort Worth Star-Telegram reported today, talking and texting on cell phones account for more automobile deaths each year than drunk driving.

Most employment and corporate fleet vehicle usage policies prohibit operating company vehicles under the influence of alcohol or other substances likely to have a detrimental effect on the driver's alertness or responsiveness. Many employer policies also prevent the usage of cell phones in company owned vehicles or while on company-sponsored business unless hands-free devices are used. Given that we live in a world where Darwinian principles don't work quickly enough to thin the herd of those too "distracted" to realize that they should not text message while driving, employers should considering adding specific prohibitions against using laptop computers, personal handheld devices, GPS/navigation devices and text messaging while driving to their vehicle fleet usage policies and other policies that govern employees who may drive as part of their duties and responsibilities.

One of the first highly publicized lawsuits dealing with distracted drivers using cell phones involved the case against Jane Wagner.  Ms. Wager was an associate for a large law firm.  On her way home from working long hours she struck and killed a 15 year old girl.  The girl's family not only sued Wagner but also sued her law firm alleging that she was on a business call at the time of the accident.  The lawsuit initially sought 25-30 million dollars.  The law firm settled for an undisclosed amount but Wagner's case proceeded to trial.  The jury awarded the family $2 Million.   In another case, an Arkansas lumber wholesaler, Dykes Industries, paid $16.2 Million to a woman who was severely disabled in a car accident involving one of its employees who was talking on his cell phone at the time of the accident. 

These cases involved drivers who were allegedly only distracted by talking on their cell phones.  Imagine what the verdicts or settlements would have been had the employees been texting while driving.  Employers should ensure that their fleet usage policies are updated to prohibit the types of activities employees may engage in while using company vehicles or on company business and should vigorously enforce those policies.  Failure to do so can give rise to potential tort claims when those employees are involved in accidents and there is an indication that the driver was distracted because of cell phone, PDA or other non-driving activity.  

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This legislative session the Texas Legislature passed, and the Governor signed, amendments that significantly expands the scope of the Texas Commission on Human Rights Act ("Act") as it relates to individuals with disabilities.

The amendment provides that:

• The definition of "disability" is to be broadly construed to the maximum extent possible and shall include impairments that are episodic or in remission that substantially limit major life activities when active;
• Whether an impairment substantially limits a major life activity should be made without consideration of the ameliorative effects of mitigating measures;
• Being "regarded as having [a substantially limiting] impairment" does not include an impairment that is minor and is expected to last or actually lasts less than six months, regardless of whether the impairment limits or is perceived to limit a major life activity.
• No claim exists for non-disabled individuals for reverse discrimination;
• No reasonable workplace accommodation is required if the individual's disability is based solely on being regarded as having an impairment that substantially limits a major life activity.

The new law also adds a definition of "major life activity" that was missing from the Act.  Major life activity under the Act means:

caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. The term also includes the operation of a major bodily function, including, but not limited to, functions of the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

The new law becomes effective September 1, 2009 and is not retroactive to conduct occurring prior to the effective date. 

What should Texas employers do to prepare for the new law?  Since the Texas amendments are identical to the ADA Amendments Act of 2008 (which was effective January 1, 2009), employers that have already taken steps to comply with the federal amendments may need to do very little.  For employers that have not addressed the changes made to the federal law should consider doing the following sooner rather than later:

• Review all policies and procedures to ensure that they comply with the new laws (e.g., if there were definitions or examples of major life activities, conform the definition to the amendment; if there are instructions to consider mitigating measures in determining the severity of limitations, change those provisions to conform to the law);
• Train your supervisors, human resources staff and employees responsibility for assessing requests for reasonable accommodation on the amendments;
• Update Job Descriptions to ensure that capture all of the essential elements of the relevant job;
• Focus in the interactive process --determine what the barriers are that need to be accommodated and then provide an effective accommodation that has the least adverse impact on the business.

With the state law mirroring the post-amendment ADA, there is no incentive for plaintiff-employees to file lawsuits under the ADA or in federal court as there might have been in the absence of the Texas amendments. 

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Texas does not require employers to provide a prospective employee with a formal offer letter.  Many employers chose to do so to avoid misunderstandings and clarify some of the important aspects of the proposed employment.  For employers that use offer letters, here are a few items that an employer should consider including in every offer letter.      

• Identify the job title, work location and start date for the proposed employment.
• Add an at-will disclaimer.  If the employment is intended to be at-will, advise employees in writing of that fact and specifically disclaim any intent to create any actual or implied contract.  
• Set forth the manner in which the employee will be compensated.  For example, if the arrangement is an hourly arrangement it may be sufficient to say that the employee will be paid $20.00 per hour. If the compensation arrangement is a salary; state the salary in a weekly or monthly amount rather than on an annualized basis.  If the employee will be paid commissions consistent with a commission plan, make sure that you say so.  Tell the employee that he or she will be paid consistent with the terms and conditions of the employer's commission plan and state when that plan will be provided to the employee.  There is a significant amount of litigation over commission payments when there is no written commission arrangement or the commission plan is vague, ambiguous, or otherwise poorly drafted.
• If the employee is being hired from a competitor,  confirm that the employee is not subject to any restrictive covenants or noncompetition agreements that would prohibit the anticipated employment.  If the prospective employee has no such agreements, have the employee represent, in writing in the offer letter, that he or she is not bound by any covenants not to compete or restrictive covenants.
• Expressly advise the employee not to bring any information from his or her former employer.  Tell the employee that your company doesn't need that information and doesn't want such information.  Furthermore, specifically instruct the employee that he or she is not to use or disclose any confidential, proprietary or trade secret information from the old employer in furtherance of the new employment.
• Have the employee sign, date and return the offer letter.  Under Texas law, a signed acceptance is not necessary to show acceptance (only knowledge of the terms and then the beginning of employment).  However, a signed acceptance is very persuasive evidence that the employee knew and accepted the terms.

These drafting tips may help employers and prospective employees avoid disputes over offer letters and the resulting employment.

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In this post I want to outline a series of steps an employer can implement that may decrease its unemployment tax rate and taxes.  The state unemployment tax rate is the only tax rate that an employer can effectively control.  Because the tax rate is calculated over a three year rolling average, it may take a year or two to start realizing these savings.  Here are the steps. 

• Document employee problems and rule violations at the time those issues occur.  Keep thorough, accurate records of these issues in the employee's personal file.  An even better record is one where the employee signs, at the time the performance is documented, that he has had an opportunity to review the documentation.
• Make solid hires and don't over hire.  Turnover can dramatically increase your unemployment tax rate.  Consequently, make sure that you take all reasonable steps to ensure you are hiring good, qualified candidates for employment.  Do background checks (but comply with the Fair Credit Reporting Act) and check references.  Don't hire more employees than you think you will need for the foreseeable future. 
• Designate a specific person to receive and review unemployment claims.  Ensure all employees responsible for receiving and distributing company mail know where to route correspondence from the Texas Workforce Commission.  Ensure that when the designated person is away from work for vacation or leave of absence that another person is responsible for timely receiving and reviewing claims.
• Review every claim immediately.  Ensure that all information on the claim form is correct.  Errors in the employee's stated compensation or termination date can result in the Texas Workforce Commission paying at incorrect rates or for improper periods.  
• Timely respond to the TWC's requests for information.  This seems obvious, but the deadline for opposing unemployment benefit claims is jurisdictional and it is difficult to convince the Commission that good cause exists for a late response.  Moreover, keep in mind that the deadline for the response runs from the date of mailing; not the date you receive the claim or determination.
• Timely appeal determinations that incorrectly award benefits.  Some reasons for benefit ineligibility include: 1) misconduct connected with the work (this includes policy violations and intentional acts --not general poor performance); 2) voluntarily leaving work (i.e., a resignation that is not a constructive discharge or due to injury, illness or pregnancy); 3) aliens not authorized to work in the United States; 4) failure to apply for, accept or return to work; 5) leaving work pursuant to a labor dispute (i.e., union strike); 6) any periods where the employee is receiving wages in lieu of notice or is receiving workers' compensation benefits for temporary or permanent disability.
• Attach evidence to support the reasons for benefit disqualification.  For example, in a resignation case, attach the letter of resignation.  In misconduct cases, attach copies of the policies the employee violated; evidence that the employee received notice of and/or training on those policies (e.g., handbook acknowledgments signed by the employee); and any copies of written warnings the employee received related to the ultimate reasons for termination.
• Appear at the telephone appeal hearing.  Provide supporting evidence to the hearing officer several days prior to the hearing and bring witnesses that can testify and support the reasons that the employee should be disqualified from the receipt of benefits.

One final word of caution.  If you think the former employee is likely to file a lawsuit or charge of discrimination against the company and the employee shows up at the appeal hearing with a lawyer (Remember: appeal hearings are recorded testimony under oath), the employer should seriously consider whether it might be prejudiced by moving forward with the hearing in the absence of counsel.  Stated another way, consider whether it is worth winning an unemployment benefit hearing only to give the employee's lawyer a preview of the company's defenses that might be used in later litigation.  Some plaintiff's lawyers use unemployment benefit hearings as opportunities to conduct early free discovery and they know that most employers use nonlawyers to appear and attend these hearings.

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A recent Wall Street Journal article described the controversy that e-cigarettes are creating.  As Lauren Etter writes,

[E]lectronic cigarettes, [are] the smokeless nicotine products embraced by a growing number of people trying to kick the habit or avoid bans on smoking in public.  Electronic cigarettes typically consist of a metal tube containing an atomizer, a battery and a cartridge filled with liquid nicotine. When a user sucks on an e-cigarette, a light-emitting diode causes the tip to glow and the atomizer turns the liquid nicotine into a vapor -- thus it is called vaping instead of smoking. The vapor can be inhaled and then exhaled, creating a cloud that resembles cigarette smoke but dissipates more quickly and doesn't have the lingering odor.

Etters' article started me thinking about whether employers can or should prohibit electronic cigarettes in the workplace.   I'm not a proponent of anything as addictive as nicotine.  However, could employers realize some increase in productivity by permitting smokers to use electronic cigarettes at work?  Presumably, smokers use their regular breaks as their smoke breaks.  Some employees complain, however, that employers tolerate more frequent and longer breaks for smokers than for non-smokers.   Could employers benefit by allowing employees to satisfy their nicotine fix at their desk or break room rather than taking 20 minutes every hour or two?  Indeed, how is the use of an electronic cigarette meaningfully different from the use of nicotine gum or the morning caffeine fix that employees consume at work?  Are there health benefit savings that employers might enjoy by allowing or even encouraging employees to use e-cigarettes instead of smoking regular cigarettes?

Do existing employer policies prohibiting smoking in the workplace (as well as building codes and local ordinances) prohibit the use of vaping at work?  While courts have historically rejected the argument that nicotine addiction is a disability, the Americans with Disabilities Amendments Act and its more expansive definition of disability could call the courts to revisit and closely scrutinize those holdings.  If nicotine addition was recognized as a disability, could employers be required to allows the use of electric cigarettes as a reasonable accommodation?  Would it be difficult for an employer to show the use of an electric cigarette in the workplace is an undue hardship when the employer allows the use of nicotine infused gum or other prescription medicines at work? 

When I started writing this post I was inclined to recommend prohibiting the use of this new technology in the workplace.  After thinking about the answers to the questions I proposed above, I'm not certain I would recommend an employer prohibit the use of electric cigarettes in the workplace.  In the end employers should carefully consider and be able to articulate their legitimate business interest before electing to prohibit the use of electric cigarettes in the workplace.  As of the writing of this post, there are no reported employment court opinions discussing the use of e-cigarettes in the workplace.   With the widening use of this new technology, reported cases are sure to be on the horizon.

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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.

Follow the Texas Employment Law Update on Twitter (here).

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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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With our close proximity to Mexico and the outbreak of reported swine flu infections in that country, Texas employers have a greater need to prepare their workforces for a swine flu pandemic.  There are now reported cases of swine flu in Fort Worth, Richardson, and Guadalupe County (near San Antonio).  Additionally, the World Health Organization's recent increase in the pandemic alert level from phase 3 to phase 4 suggests that employer preparation of the workplace is prudent.

There is a great deal of public information available to employers that desire to prepare for and deal with an influenza pandemic. The U.S. Department of Health & Human Service has a full web page dedicated to workplace planning for a pandemic outbreak. OSHA also has guidance on preparing the workplace for an influenza pandemic.  The IFMA Foundation also has a Pandemic Preparedness Manual that contains specific steps for preparing a business continuity program designed to insure that business operations are not substantially disrupted during a disaster or crisis.

Suggestions for Employers.

• Discourage nonessential business or recreational travel to Mexico and other high risk areas;
• Make sure employees recognize the signs and symptoms of swine flu;
• Instruct employees on influenza avoidance behaviors;
• Discourage sick employees from coming to work;
• Identify and designate "essential personnel" for the organization as key roles in the event nonessential personnel need to be told to stay home;
• Prepare a Business Continuity Plan.

These simple suggestions may help employers minimize the effects of this potential pandemic and better weather the consequences if the pandemic becomes more widespread. 

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As we approach local elections, it is good to remember that Texas law may require an employer to provide an employee with paid time off to vote.  The Texas Election Code makes it a Class C misdemeanor for an employer to refuse to allow an employee to be absent from work on election day for purpose of attending the polls to vote.

An employer is not, however, required to allow time off to vote if the polls are open on election day for voting for two consecutive hours outside of the employee's working hours.  For example, if you have an employee that regularly works 8:30 a.m. to 5:30 p.m. with a one-hour lunch break, an employer may have to give that employee time off from work on election day to attend to the polls and vote. In Texas, the election polls are generally open from 7:00 a.m. until 7:00 p.m. 

Because the term "penalty" means a loss or reduction in wages, an employer should provide paid time off for the employee to attend the polls to vote if the polls are not open on election day for at least two consecutive hours outside the employee's working hours.

An employer can avoid this interruption and the payment for otherwise nonworking time by rescheduling work schedules on election day so that employees have two consecutive hours off while the polls are open (e.g., reschedule the employee to work 8:00 a.m. to 5:00 p.m. on election day). 

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For several years the EEOC has enhanced its education and enforcement efforts using existing laws to protect employees with caregiving responsibilities (i.e., caring for children and ill family members).  This week the Commission issued guidance for employers it describes as "Best Practices" to assist employees in balancing work and family responsibilities.  Best Practices are proactive measures going beyond federal nondiscrimination requirements to help employees achieve a satisfactory work-life balance.

Acting EEOC Chairman Stuart J. Ishimari remarked that "Today we take another step forward, articulating not just the bare minimum required to avoid unlawful discrimination, but also thinking broadly about the ways in which family-friendly workplace policies can improve workers' ability to balance caregiving responsibilities with work."

The new guidance supplements the EEOC's 2007 guidance on Unlawful Treatment of Workers with Caregiving Responsibilities.  In addition to some common sense recommendations (e.g., train managers; develop, disseminate and enforce a strong EEO policy; investigate complaints), the most interesting suggestions to me are those related to flexible work arrangements. Some of the alternative work arrangements suggested include:

• Flexible work hours (i.e., permit a varying starting and stopping time within a certain range);
• Flexible week opportunities (e.g., work week consisting of four 10-hour days);
• Allowing for voluntary rather than mandatory overtime and allowing overtime to be scheduled in advance;
• Telecommuting, work-at-home or flexplace programs;
• Reduced-time options (i.e., part time work or job sharing programs).

EEOC's guidance provides a useful reference for any employer desiring to become more family-friendly and better assist its employees in achieving a balance between family and work. 

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