There are several pending bills in the Texas legislature that could effect the leaves of absence private employers must make available to their employees.  Some of these types of leaves have already been passed in more liberal states such as California and Massachusetts.  Pending leave of absence bills in the Texas legislature include:  

  • HB 615 Permitting employees with a child enrolled in a special education program and having at least one year tenure with the employer take 10 hours per year of unpaid leave to meet with certain school officials.
  • HB 1005 Requiring employers to provide employees employed at least 90 days to take up to 40 hours per year unpaid leave to meet with teachers or attend to certain school events, ceremonies or meetings. The bill also contains anti-retaliation provisions.  (See also SB 649)
  • HB 1057 Permitting employees with at least 6 months service to take not less than 2 weeks accrued paid leave for the birth or placement of adoption of a child.  Employees of employers that do not provide paid leave, who have insufficient paid leave or are ineligible for leave are entitled to between 2 and 6 unemployment benefits.  The bill does not mandate the creation of any leave programs but does provide a right to reinstatement for employees that utilize leave under this proposed law.  (See also SB 692)
  • SB 60   Requires employers to provide for unpaid time off to employees who are the victims of certain violent crimes to attend court proceedings.  The bill also provides a civil cause of action, damages and anti-retaliation provisions for violations.

 

On March 19, 2009, the U.S. Department of Labor issued four new model COBRA notices for use under the American Recovery and Reinvestment Act (ARRA).  ARRA authorized a 65 percent government subsidy for continuing COBRA health care coverage for employees laid off between September 1, 2008 and December 31, 2010. Additionally, the Department issued answers to 25 frequently asked questions regarding the premium reductions under ARRA.

Weingarten rights are the rights a union member has to, upon request, have a union representative present during an employer’s investigatory interview that may lead to disciplinary action. For nearly thirty years Weingarten rights only applied to employees who worked at employers that had been organized by unions.

In July 2004 a primarily Democratically appointed National Labor Relations Board extended Weingarten rights to employees working for private, unorganized employers. In July 2004, a Republican appointed majority of the Board reversed its position and held that private employees not represented by a union do not have Weingarten rights. Now that the Democrats occupy the White House, are Weingarten rights on the horizon for non-organized employers?

The Board is currently comprised of two members –one appointed by President Bush and one by President Obama. With three open vacancies, President Obama can appoint a majority of the Board. Thereafter, with a Democratically appointed majority of the Board it is predicted that Regional Directors will once again begin accepting unfair labor practice charges by employees of non-organized employers who have been denied Weingarten rights. As those cases once again reach the Board level, I think it is likely that Weingarten rights will again apply to non-unionized employers.

Since at least 2004 Texas law has permitted Texas employers to enter into predispute agreements with their employees to waive a right to a jury trial. The predispute waiver of the right to jury trial can be a desirable option for employers that would prefer to avoid the potential jury trial of a civil rights or employment dispute but also dislike the disadvantages that accompany the mandatory arbitration of disputes.

Last month the Supreme Court of Texas reinforced the enforceability of predispute contractual waivers of the right to a jury trial. In re Bank of America, N.A., — S.W.3d — (Tex. Feb. 27, 2009). The Court’s opinion should remind Texas employers of the availability of this option and of the advantages that such agreements may have over arbitration programs. For example, advantages that the wavier of the right to jury trial may enjoy over arbitration include: having a Texas state or federal judge decide the dispute; no expenses incurred in employing the decisionmaker (i.e., judge); and full rights to a meaningful appeal of an adverse decision.

Moreover, despite the current legislation in Congress that is intended to invalidate the predispute arbitration agreements between employers and employees to resolve employment disputes through arbitration, it is unlikely that contractual waivers of the right to a jury trial will be affected by any version of the Arbitration Fairness Act of 2009. Texas employers utilizing mandatory arbitration programs may want to consider adopting a policy or program to make use of contractual waiver of jury trial if the Arbitration Fairness Act of 2009 passes and invalidates the predispute agreements to arbitrate civil rights and employment disputes.

Furloughs: An Alternative to Layoffs.

During challenging economic times employers utilize various ways to reduce payroll expenses. These include layoffs, pay freezes or pay cuts, hiring freezes and reduced workweeks. However, in this latest economic crisis, employers are using employee furloughs with increasing frequency. 

What is a furlough?

A furlough is a temporary, unpaid period of time away from work. Furloughs are usually involuntary; however, some employers have offered voluntary furlough employee programs to allow employees to volunteer from a period of unpaid time off. The largest employer in California –the state of California – is utilizing furloughs to reduce payroll by requiring employees of government offices to take at least two Fridays off per month without pay. Other employers have required each employee to take an additional week off away from work during the year without pay –similar to an additional week of unpaid vacation.

Advantages of Furloughs.

The advantages of furlough programs may include avoiding severance costs; retaining talented employees (employees the employer would like to retain when business improves); and avoiding or reducing increases in unemployment insurance premiums.  

Implementing the Program

In implementing a furlough program the employer must be mindful of the wage and hour requirements in the state where the employees will be furloughed. Compared to other populous states, Texas is highly unregulated in its state wage and hour laws. For nonexempt employees, furloughs provide few challenges. Nonexempt employees are paid their hourly rate for all hours worked. During periods of furlough the nonexempt employee performs not work and is not paid for those hours that they would have normally worked but for the furlough. Exempt employees, however, must be paid their full salary when they perform any work during the work week. Consequently, furloughing exempt employees requires that the employees be furloughed in full work week intervals and they must be completely relieved of their job duties for the employer to enjoy payroll savings without putting the employees’ exempt status in jeopardy.

Effects of Furloughs

Furloughs that reduce employee hours substantially may have an effect on the employee’s eligibility for benefits. For example, employee hours may drop such that they become part-time employees rather than full-time employees and lose eligibility under certain employer benefit plans. Additionally, where the furlough of an employee reduces his or her hours significantly, it may render the employee partially unemployed and eligible for unemployment benefits.