Texas Employment Law Update

Texas Employment Law Update

A Resource for Texas Employers

Guide to New EEO-1 Pay and Hour Reporting

Posted in Human Resources, News & Commentary

Employers with 100 or more employees and certain federal contractors have been required to submit EEO-1 reports, identifying the number of employees working in each job category by race, sex and ethnicity, since 1996. In 2016, under the Obama administration, the EEOC proposed revisions to the information required to be reported each year on the EEO-1 form to include pay and hours data, known as Component 2 data.

Then, in 2017, the Trump administration’s Office of Management and Budget issued a memorandum staying the new rules from going into effect. This stay was vacated by a U.S. District Court for the District of Columbia on March 4, 2019, The Court ruled that covered employers must submit Component 2 data for both 2017 and 2018 calendar years by September 30, 2019.

EEO-1 Component 1 Overview

To recap, for Component 1 reporting, covered employers must report the number of employees employed in each of 9 job categories by race, sex and ethnicity. There are 9 job categories:

1.1. Executive/Senior Level Officials and Managers
1. First/Mid Level Official and Managers
2. Professionals
3. Technicians
4. Sales Workers
5. Administrative Support Workers
6. Craft Workers
7. Operatives
8. Laborers and Helpers
9. Service Workers

Employers must pull required data from one pay period in either October, November or December of the survey year. Employers choose which month to use from those three. Employers must report both full and part time employee data.

Covered employers that have multiple establishments (or locations) need to file separate reports for: (a) the headquarter location; (b) each business site (or establishment) that has 50 or more employees; (c) all business sites with fewer than 50 employees on one consolidated report with all of those locations’ data; and (d) a consolidated report that includes data for all employees of the company.

Employers must give employees the opportunity to self-identify their race/ethnicity for the EEO-1 report. Only if employees choose not to self-identify can employers use other employment records or observations to provide the required information.

New EEO-1 Component 2

The new EEO-1 Component 2 requires employers to additionally report hours worked and pay data, broken down by race, sex, and ethnicity and by EEO-1 job category (the same 9 job categories use for Component 1) for 2017 and 2018 payrolls by September 30, 2019.

Hours Data

Hours data should be reported by the employer in the aggregate for all employees in each pay band and job category by race, ethnicity and sex.  For non-exempt employees, employers must report hours worked as recorded for FLSA purposes during the reporting year, including overtime. For exempt employees, employers may choose to report actual hours worked, if the employer maintains accurate records of hours worked OR may report proxy hours. If the employer chooses to use proxy hours for exempt employees, they should report 40 hours per week x the number of weeks worked in the year for full time employees and 20 hours per week x the number of weeks worked in a year for part-time employees. Weeks worked for exempt workers = the number of weeks paid in a year.

Obviously, once hours data is determined for both exempt and non-exempt employees within each job category, pay band, ethnicity and sex, these numbers are aggregated together for reporting.

Wage Data

Employers must report pay data for employees within the following 12 pay bands, and broken down by job category, race, ethnicity and sex:

1. $19,239 and under
2. $19,240-$24,439
3. $24,440-$30,679
4. $30,680-$38,999
5. $39,000-$49,919
6. $49,920-$62,919
7. $62,920-$80,079
8. $80,080-$101,919
9. $101,920-$128,959
10. $128,960-$163,799
11. $163,800-$207,999
12. $208,000 and over

The reporting for each EEO-1 job category will look similar to the chart below. Once employers determine pay data, they should report the number of employees within each pay band and category:

For determining which wages to report, employers should report the wages found in Box 1 on each employee’s W-2 form. This includes wages, tips, overtime, bonuses, fringe benefits, employer contributions to HSA’s or other compensation. It does not include elective deferrals such as employee contributions to a 401(k) plan.

City of Dallas Paid Sick Leave Ordinance Scheduled to Take Effect August 1, 2019

Posted in Leave of Absence, News & Commentary, Wage & Hour

The City of Dallas passed a paid sick leave ordinance requiring private employers to provide up to 64 hours of paid sick leave to employees working in the City. Barring court intervention, the law will take effect August 1, 2019.  Here are the highlights of the ordinance:

  • Requires employers with 15 or more employees to provide 1 hour of paid sick leave accrual for every 30 hours worked up to 64 hours. Employers with less than 15 employees must provide accrual for up to 48 hours of paid sick leave per year.
  • Accruals state on commencement of employment but employer can preclude use until employee has worked at least 60 days.
  • Employees can use the paid leave for the employee’s physical or mental illness, physical injury, preventative or health care or health condition; the employee’s need to care for their family member’s physical or mental illness, physical injury, preventative medical or health care or health condition; or the family members need to seek medical attention, seek relocation, obtain services of a victim services organization, or participate in legal or court ordered action related to an incident of victimization from domestic abuse, sexual assault, or stalking involving the employee or the employee’s family member.
  • Covered leave is paid out at what employee would have earned if employee had worked scheduled work time, exclusive of any overtime, premium, tips or commission, but no less than the state minimum wage.
  • Employers may adopt reasonable verification procedures to confirm the employee’s request for earned sick time meets the requirements of this section if the employee request to use earned paid sick time for more than three consecutive work days. Employers may not adopt verification procedures that would require an employee to explain the nature of the domestic abuse, sexual assault, stalking, illness, injury, health condition or other health need when making the request for earned paid sick time.
  • Accrued but unused paid sick leave rolls over to the following calendar year unless the employer provides employees with 64 or more hours at the beginning of each calendar year.
  • Employers must provide employees at least monthly with written or electronic statement showing employees’ available, earned paid sick time.
  • Employer handbooks must include a notice of employee rights and remedies under the statute in the handbook.
  • Employers must post signs describing the requirements of the chapter in conspicuous places in English and other languages determined by the Director.
  • Employers using something other than a calendar year for sick pay accrual must notify employees in writing of the policy at the commencement of employment or its effective date –whichever is later.
  • Records must be kept for same period of times as payroll records under the FLSA regulations –(i.e., three years)
  • Employers may not require employees to find replacements to work the employee’s shift but the ordinance does not prohibit an employer from allowing an employee to voluntarily exchange hours or voluntarily trade shifts with another employee or prohibit an employer from establishing incentives for employees to voluntarily exchange hours or voluntarily trade shifts. The law also does not prohibit employee donation programs to donate available earned paid sick time to another employee.
  • The law prohibits retaliation against employees for requesting of using earned paid sick time.
  • Complaints are investigated by the Director who is required to commence a prompt and full investigation to determine if there is sufficient cause to believe a violation has occurred. Complaints must be filed within two years of the date of the violation. The Director has the authority to issue subpoenas in the course of the investigation.
  • Violations may result in a civil fine up to $500. No penalties will be assessed until after April 1, 2020 except for retaliation. Employer may appeal any civil penalty assessed under the chapter.
  • The law does not create a private right of action nor establish a criminal offense.
  • There is no requirement accrued but unused sick pay be paid on termination of employment. However, if an employee is rehired in 6 months or less, the employer must grant the employee’s prior sick leave balance.

Employers with employees performing services in the City of Dallas should begin to make preparations now for the effective date of the ordinance.

Employers in Dallas and San Antonio Prepare for Paid Sick Leave

Posted in Leave of Absence, Legislation, News & Commentary, Wage & Hour

The Texas Legislature ended its session last week without passing a bill that preempts municipalities from passing laws requiring private employers to provide paid sick leave to employees. Consequently, employers in Dallas and San Antonio must prepare for the implementation of the local paid sick leave laws that take effect August 1, 2019.

Dallas, San Antonio and Austin each passed local ordinances requiring private employers in the cities to provide paid sick leave for employees. The Austin ordinance is currently enjoined by court order and is on appeal to the Texas Supreme Court. It was anticipated that the Texas legislature would pass a law prohibiting municipalities from passing these kinds of laws.  However, the bills to do so never made it out of the House committees.

Barring court action in Dallas or Bexar County, or an order of the Texas Supreme Court striking down the Austin ordinance (The Dallas and San Antonio laws are modeled after the Austin ordinance), the Dallas and San Antonio’s laws take effect August 1, 2019. In the coming days I will summarize the requirements of the Dallas and San Antonio laws here.

When is a resignation not a resignation disqualifying an employee from unemployment benefits?

Posted in Human Resources, Unemployment

In a Texas unemployment benefit proceeding, the employee usually bears the burden of establishing an entitlement to benefits when the employee resigns.  The employer bears the burden to show disqualification for benefits when the employer initiates the termination.  However, when an employee offers more than two weeks’ notice of intent to resign and the employer accepts the notice of resignation immediately, the employer then shoulders the burden to show that when it accepts the resignation, the employer had reasons to terminate the employee at that time that disqualified the employee from unemployment benefits (i.e., misconduct connected with the work).

Consequently, if an employee offers a company more than two weeks’ notice of intent to resign and the employer desires to avoid being charged for the employee’s unemployment benefits, the employer has three options to avoid having the resignation treated as a termination.  First, the employer can accept the resignation immediately and pay wages in lieu of notice (i.e., paying wages for the entire notice period), thereby rendering the action a resignation.  Second, the employer can wait until only two weeks remain in the notice period and then accept the resignation.  Most unemployment hearing examiners will treat this as a resignation placing the burden on the departing employee to show eligibility for unemployment.  Finally, the employer could allow the employee to work out the full  notice period.  In each of these cases, a notice of resignation greater than two weeks is likely to still be treated as a resignation rather than a discharge.

Texas Court Holds Request for Reasonable Accommodation is not Protected Activity

Posted in Case Summaries, Disability, Reasonable Accommodation, Retaliation

Texas courts routinely look to and take guidance from federal law when evaluating claims under the Texas Commission on Human Rights Act. The TCHRA is the Texas state law that prohibits employment discrimination on the basis of disability (and other status) and requires employers to provide reasonable accommodation to qualified individuals with disabilities.

In a departure from absolute to blind following of federal precedent, and departing from one Texas courts of appeals addressing the issue, the Austin Court of Appeals held that an employee’s request for reasonable accommodation of a disability does not constitute protected activity sufficient to satisfy a plaintiff’s prima facie case of retaliation.

In Texas Department of Transportation v. Lara, a twenty year employee took a leave of absence for surgery, recovery and complications related to gastrointestinal distress.  When the Department advised Lara that he had exhausted all leave available to him, Lara made several requests to extend his unpaid leave of absence.  Some requests were granted but subsequent requests were eventually denied and Lara’s employment was terminated.  Six months after the termination, Lara filed a charge of discrimination alleging disability discrimination and retaliation.

In the trial court, the Department argued that Lara’s retaliation claim must be dismissed because Lara engaged in no protected activity. The trial court denied the Department’s request.  On appeal, the Third District Court of Appeals held that Lara had not engaged in any protected activity and his retaliation claim had to be dismissed.  In analyzing the argument, the Court noted that the only two potential bases for Lara’s protected activity were his charge of discrimination (filed six months after his termination) and his requests for extension of his unpaid leave of absence. While the charge of discrimination was clearly protected activity, it could not save a retaliation claim because there was no causal connection between the termination and the filing of the charge occurring six months later.

Analyzing important differences between the ADA and TCHRA, the Court also held that requests to the employer for reasonable accommodation do not constitute protected activity under the TCHRA as a matter of law. The ADA makes it unlawful to interfere with any individual’s exercise of any right granted or protected by the Act.  This, according to the Court, included interfering with or retaliating against an employee because of requests for reasonable accommodation.  On the other hand, the Court noted that the TCHRA limits protected activity to opposing a discriminatory practice, making or filing a complaint or testifying, assisting or participating in an investigation.  Notably absent from the Texas definition was the prohibition against interfering with any right granted or protected by the chapter.  Given these differences between the ADA and the TCHRA statutory language, the Austin Court of Appeals held that requests for accommodation were not legally protected activity that would support a retaliation claim.

A copy of the majority opinion can be downloaded here.

The concurring and dissenting opinion is here.



U.S. Supreme Court Invalidates Arbitration Agreements of Interstate Truck Drivers

Posted in Arbitration, Case Summaries, Wage & Hour

Earlier this year, the U.S. Supreme Court invalidated the arbitration agreements that an interstate trucking company had with its independent contractor drivers. That case arose in the context of a class action wage and hour lawsuit brought by a group of independent contractor interstate truck drivers alleging that they were not properly paid.  The company attempted the force the claim into arbitration based on the arbitration agreements it had with its contractors.  The Court held that the Federal Arbitration Act’s (FAA) provision excluding “contracts of employment with seaman, railroad employees or any other class of workers engaged in foreign or interstate commerce” precluded enforcement of the arbitration agreement thereby subjecting the carrier to the wage and hour collective action in court.

The New Prime decision is a good reminder for transportation companies utilizing arbitration agreements that their arbitration programs should consider whether to implement and apply state law rather than the FAA so as to avoid a similar result as in New Prime or to have state law act as a substitute in the event the FAA is inapplicable.

A copy of New Prime v. Oliveira is available here.

Texas Employees Beware: CBD Oil Remains Illegal in Texas

Posted in Human Resources, News & Commentary

With the passage of the 2018 Farm Bill, Congress legalized much, but not all, hemp products containing less than .3 percent THC concentration.  Cannabidiol, or CBD oil, is a hemp product that is touted as having many positive medical and health benefits.  CBD oil may or may not contain THC.  The media reports surrounding the legalization in the Farm Bill and intense marketing efforts of CBD oil distributors has caused some Texas employees to believe that CBD oil and other hemp products are now legal in Texas.  That belief may cause employees to suffer adverse employment consequences and even potential criminal prosecution.

Except for CBD oil having a THC concentration of less than .5 percent prescribed for intractable seizures by a physician licensed and registered to prescribe the oil (and confirmed by a second physician), possession, use or sale of the CBD oil is a felony under state law.  An employee’s reliance on the packaging material of hemp products that they contain little or no TCH is also not something that an individual should place much reliance on.  According to a 2017 Research Letter from the Journal of the American Medical Associations, 78 percent of 84 tested products were mislabeled.

While it is not expected that Texas district attorneys will spend significant resources prosecuting users of these products, the fact that it remains a second degree felony should cause employees to be cautious in purchasing and using these products until Texas law is amended to provide fewer restrictions on their possession, sale and use.

Fifth Circuit Affirms Summary Judgment for Employer in Transgender Title VII Case

Posted in Case Summaries, Discrimination

In Wittmer v. Phillips 66 Company, the Fifth Court of Appeals affirmed a trial court’s summary judgment in favor of Phillips 66 on a claim of employment discrimination based on transgender status.  While affirming the judgment for the employer, the Court wrote to reject the district court’s summary conclusion that Title VII prohibited employment discrimination on the basis of transgender status.  In affirming the trial court’s judgment, the appeals court expressly rejected the district court’s summary holding that Title VII prohibits employment discrimination based on transgender status because the court did not address binding Fifth Circuit precedent holding that Title VII does not prohibit sexual orientation discrimination nor distinguish the Wittmer case from that precedent.  Wittmer leaves open the possibility that a federal court in the Fifth Circuit might properly hold that Title VII prohibits transgender employment discrimination so long as the court distinguishes the binding precedent in this Circuit holding that Title VII does not prohibit sexual orientation discrimination (i.e., that Title VII prohibits transgender discrimination but not sexual orientation).

A copy of the opinion can be accessed here.

San Antonio Passes Ordinance Requiring Private Employers to Provide Paid Sick Leave

Posted in Human Resources, News & Commentary

In a 9-2 vote, the San Antonio City Council voted to require private employers doing business in San Antonio to provide one hour of paid sick leave to employees for every 30 hours worked. The ordinance allows employees to accrue between 48 and 64 hours of paid sick leave to be used if the employee or the employee’s family member is sick or injured; is a victim of stalking, domestic abuse or sexual assault; or otherwise require medical, mental or preventive care.

San Antonio’s ordinance is scheduled to take effect on August 1, 2019 but employers with five or fewer employees will have until 2021 to comply.

A copy of the ordinance can be found here.

Austin Court of Appeals Temporarily Enjoins Austin Sick Leave Ordinance

Posted in Human Resources, News & Commentary

Earlier this year, the City of Austin passed the first local ordinance requiring employers in Austin to provide paid sick leave to its employees.  The law was scheduled to take effect on October 1, 2018.  Late last week, the Austin Court of Appeals issued a temporary stay of the ordinance while the Texas Association of Business’ interlocutory appeal of the trial court’s denial of an application for temporary injunction is heard.  This will likely stay enforcement of the ordinance for several months and could extend past the October 1, 2018 effective date.

Meanwhile, San Antonio recently passed a similar sick pay ordinance.   The Texas Legislature is likely to consider bills prohibiting local municipalities from passing such ordinances when it convenes in Summer 2019.

The Court’s order can be downloaded here.