Thursday, October 18, 2012

Texas Employment Law Basics for Employers: Employee Discipline

Employers face the unenviable task of determining when and how to discipline employees for violations of the company’s policies or federal/state laws. Inevitably, the employer must consider whether taking disciplinary action will result in a claim by the employee of discrimination, harassment or other legal claims.

As an employer, you will never be “bulletproof.” But there are a few things that you can do to help minimize risk and maximize your defense when you must take appropriate disciplinary action.

First, make sure that you have communicated your policies and procedures to your employees in writing, preferably with a signed acknowledgment of receipt by each employee.  This should include your workplace rules and expectations concerning attendance, safety, employee conduct, and how you will address theft or other violations of criminal law, violations of non-discrimination and anti-harassment laws, and violations of workplace rules.

A progressive disciplinary policy is recommended, with a range of discretionary measures from an oral or written warning to immediate termination depending on the gravity of the violation. But if you do implement such a policy, be aware that you must BE CONSISTENT. No exceptions or exemptions for your favored or star employee should be allowed without a compelling and urgent (and reasonable) business necessity.

Make sure that the employee knows what your next step will be if the violations continue.

When you decide to take disciplinary action - document, document, document. Conduct an impartial investigation, obtain written statements from witnesses, make notes to the personnel file, and have the employee sign the warning or other disciplinary action.

Don’t act in haste or while emotions are running high. Take some time for reflection and consider all of the options available to you before deciding on a course of action.

When in doubt, run your proposed disciplinary action past another person. If you cannot articulate a neutral and compelling argument for taking that action, under these circumstances, you may wish to consider another alternative.

By: Cynthia W. Veidt,

Monday, October 1, 2012

Texas Law Basics for Employers: General Recordkeeping Requirements

What records should Texas employers keep in an employee’s human resources file? And for how long should you keep them?

Each employee should have a separate human resources file which contains, as a general rule of thumb:

  • their job application / resume, 
  • any background checks or test results that are related to their job duties (see our previous blog post on this topic), 
  • a description of their essential job duties and functions, 
  • their I-9 form with copies of accompanying identification documents proving eligibility for employment, 
  • any offer letters or contracts detailing their compensation structure, 
  • signed acknowledgement forms for any company policies and procedures and/or employee handbook, 
  • their W-4 form, 
  • any applications for benefit programs offered to your employee, 
  • records reflecting the hours worked each week by that employee, as well as all paid holidays and all leave or vacation time (paid or unpaid) used by that employee (see separate blog post on FLSA requirements for calculation of overtime pay due to non-exempt employees), 
  • performance evaluations, 
  • disciplinary actions, and 
  • payroll records.

Federal and Texas state laws require that you maintain many of these records for at least two, and sometimes three years.  However, because the statute of limitation for many employment-related claims can be four years from the date of an incident, you may wish to maintain these records for a five-year period.