Employment Law Basics for Employers: How to Handle an Unemployment Claim

The Texas Workforce Commission (TWC) handles all unemployment claims. Every employee – even ones who quit – might be eligible to receive unemployment compensation depending on the circumstances. It is very important for an employer to document the facts leading to every employee’s separation from employment; try to obtain a resignation letter from each employee.

TWC’s claim investigation will focus on whether the employee was terminated for misconduct connected with their work or, alternatively, whether the employee had good cause connected with work for a voluntary resignation. For example, if an employee is being harassed at work, he or she would have “good cause” to quit. 

Some things that an employer should not do:

• Fire an employee in the heat of the moment without warning. Unless a reasonable person would believe the conduct could result in immediate termination, you should provide the employee with reasonable notice and an opportunity to correct the violation before proceeding to termination.
• Demand an employee’s resignation. Resignation under pressure from the employer can be considered an “involuntary work separation” that allows the employee to receive unemployment benefits.
• Immediately accept an employee’s resignation in lieu of discipline, or reach a “mutual agreement” that the employee will resign. Similarly, this may be viewed as “involuntary work separation” under pressure. Ask the employee to provide you with a letter of resignation containing a definite date for his last day of employment, preferably at least two weeks in the future.
• Accept an employee’s request to be “laid off.”  Reductions in force or “lay offs” are usually considered an involuntary work separation.
• Ignore communications from the Texas Workforce Commission. Employers should respond to every notice of an unemployment claim within the deadline provided.
• Fail to have HR documents and eye-witnesses available for hearings held by TWC. It is important to have proper evidence for TWC, rather than just “hearsay” or guess-work.
• Change the reason for an employee’s separation from work. Remain consistent in your explanation about the events that led to the employee’s termination. Don’t rely on memory or make assumptions; check your records, speak to anyone who observed the events directly, and get your facts straight from the beginning.
• Fail to contact an employee who does not show up for work. If an employee quits without notice, document your records by attempting to contact that employee to ask when he intends to come back to work. It also helps to have a policy in place describing the number of days an employee can be absent from work without contacting his direct supervisor (never a co-worker) before he will be considered to have voluntarily abandoned his job.

As always, when dealing with an unemployment claim, you may want to consult with an HR or employment law specialist early in the process to determine the best way to proceed.

By: Cynthia W. Veidt

Texas Employment Law - Avoiding a Retaliation Claim

Retaliation is a common complaint by an employee – and one which employers frequently lose. It is possible for an employer to be guilty of retaliation, even when there was no underlying discrimination or harassment.

“Retaliation” means that an employer may not fire, demote, harass or otherwise adversely impact or retaliate against an employee for: (1) filing a charge of discrimination, (2) participating in a discrimination proceeding, or (3) otherwise opposing discrimination. Essentially, anything that would tend to have a “chilling effect” on an employee’s decision to file a complaint or participate in an investigation is considered “retaliation.”

An employer can help avoid a claim of retaliation by refraining from taking any adverse action or attempting to discourage an employee from the following types of actions:

• filing an internal or external complaint of discrimination or harassment for himself or anyone else;
• serving as a witness in an investigation or proceeding related to another person’s complaint of discrimination or harassment;
• informing another employee of their right to file a complaint of discrimination, harassment or request for a reasonable accommodation;
• encouraging another employee to file a complaint of discrimination or harassment.

However, retaliation claims do not make an employee “fire proof.” A court must still find that the employer acted in retaliation because of the employee’s protected action. If you find yourself in a situation where an employee has engaged in protected activity, but that employee has also engaged in conduct that merits disciplinary action, or you have a business reason to re-assign or terminate that employee (such as a reduction-in-force), you should thoroughly document the non-retaliatory reasons for your decision. If you must take action within a short period of time after the employee’s protected actions (up to three or six months), you should consult with an HR or employment law specialist to determine the best way to proceed.

By: Cynthia W. Veidt, Attorney

Texas Employment Law - Avoiding a Discrimination Claim

Discrimination is only unlawful when it is based on one or more of the following “protected classes” of people: race/color, sex/gender (this includes both men and women), pregnancy, age (40 and older), national origin, religion, sexual orientation, marital status, disabilities (whether physical or mental), or veterans’ status. Differential or disparate treatment is the typical test for discrimination.

Employers can best avoid a claim of discrimination by applying employee rules and job criteria consistently. Try to treat every employee the same. Don’t give anyone special treatment or favors, or accept excuses for one employee that you would not tolerate from a different employee. Do not let some employees ignore company procedures and penalize others for failing to follow the rules. Avoid saying the following kind of things:

• jokes or frequent conversations about any protected class;
• verbal slurs or insults – even something as simple as “honey,” “your people” or “over the hill” can be taken out of context or misunderstood;
• frequent references to someone’s membership in a protected class – “hey, it’s the white girl” might seem funny at the time, but think about how it may sound when repeated to a jury or judge;
• tolerating such statements from one of your managers; and
• permitting employees from engaging in such conduct without reprimand or warning.

Treating everyone the same is harder than it sounds. We naturally like some people more than others, and employers are often willing to “cut some slack” for high performers. It is easy to justify exceptions for any number of reasons. But that one-time favor has the danger of becoming a pattern or habit that can become evidence of differential treatment.

If an employee has complained about discrimination, or simply being treated differently, don’t act in haste or immediately become defensive. Advise the employee that you take his or her concerns seriously and will look into the matter. Consider the entire situation to see if there has been any differential treatment that should be addressed. For more serious or numerous complaints, you may wish to consult with an HR or employment law specialist before responding to the employee’s complaint. 

Blog by Cynthia W. Veidt

Firing / Terminating Employees in Texas – Creating a Paper Trail

Earlier in this blog, I mentioned documenting any employee disciplinary actions that you decide to take as an employer.

Documentation helps in a number of ways. First, it will help refresh your recollection of events if your decision is challenged at a later time. Next, it will provide a contemporaneous record to demonstrate that you are not simply “making stuff up” after the fact. And proper documentation can also demonstrate that you acted in a non-discriminatory and non-harassing manner.

When documenting your actions, consider including the following items:

• a copy of your employee policies, with the employee’s signed acknowledgment of those policies;
• a copy of any documents that you reviewed, tests that you performed, and interviews or statements that you obtained when you investigated the incident giving rise to termination;
• a copy of all prior warnings or disciplinary actions that you gave to the employee prior to making the decision to terminate employment;
• a copy of any response or explanation provided by the employee concerning his or her actions;
• a copy of any resignation letter or email from the employee;
• if termination is due to a reduction-in-force or “layoff,” documents reflecting the neutral business-related criteria that you used to select those employees who were terminated; and
• if possible, a signed acknowledgment that the employee has received his or her final pay with a full release of any future claims to overtime pay or other compensation.

When in doubt, particularly if you have had continuing problems with a particular employee, you may wish to consult with an outside legal professional or in-house counsel before taking firing an employee. 

By: Cynthia W. Veidt