Employment Law for Texas Employers: Welcome to eVerify!

This blog has previously discussed the employer’s duty to avoid “illegal workers” by verifying that its employees are eligible to work in the United States. See http://texascommerciallaw.blogspot.com/2012/08/texas-employment-law-basics-for_27.html.

The U.S. Department of Homeland Security has created a free, online system to check on a prospective employee’s status: http://www.uscis.gov/e-verify.

However, this eVerify program does NOT replace the employer’s obligation to complete and retain a Form I-9 for each employee. Make sure to retain the required documents, whether in paper or electronic form, so that you can demonstrate compliance in the event of an audit.

Rather, eVerify is a cost-free method for employers to determine whether the information on their employee’s Form I-9 matches information contained in the databases of the U.S. Department of Homeland Security and the Social Security Administration.

Most employers are not required to use eVerify at this time. Federal mandates may occur during the congressional debates surrounding immigration reform, however. Employers should review their employment verification procedures periodically to ensure that they remain in compliance with all federal and Texas statutes.  

By:  Cynthia W. Veidt, cindy@lpvlaw.com

How Should a Texas Employer Handle a Wage Withholding Order/Notice?

You’ve just received a document entitled “Order/Notice to Withhold Income for Child Support,” or some similar title, related to one of your employees.  Now what?

First, do not ignore this document! A Texas employer who knowingly fails to withhold court-ordered child support may be subject to a $200 fine for each pay period during which it failed to withhold income and remit child support to the appropriate agency. You are required to begin deducting for child support during the first pay period following your receipt of this Order/Notice.

Under Section 158.206 of the Texas Family Code, you are NOT LIABLE to your employee if you comply with the Order/Notice. In fact, you could be liable to your employee for the amounts you failed to withhold if you do not comply with the order. So put this document on the top of your “to do” list.

Next, read the Order/Notice carefully. In Texas, almost every child support payment must be made through the Office of the Attorney General of Texas, Child Support Division’s State Disbursement Unit (“SDU”). You may, on occasion, be ordered to remit payment to another government agency. It is extremely unlikely that you will be ordered to make child support payments directly to an individual or his/her attorney. Follow the directions concerning the amount to be withheld, the place to remit payment, and the information to be provided. If you employ more than 50 persons, you may be required to remit payment by electronic funds transfer.

Next, check your payroll records. In Texas, you cannot withhold more than 50% of your employee’s “disposable earnings” – which means the part that remains after mandatory deductions for social security, medicare, federal income taxes, union dues, nondiscretionary retirement contributions, and medical/hospitalization/disability insurance coverage for the employee and the employee’s children. If the Order/Notice is close to or exceeds that amount, seek guidance from your friendly neighborhood employment law attorney or another Human Resources professional.

As an employer, you can also deduct a $10 per month processing fee, in addition to the amount to be withheld as child support.

Withholding orders for child support have priority over any other garnishments, attachments, writs of execution or other judgments affecting the employee’s disposable earnings. If you have received multiple orders related to an employee’s wages, seek guidance.

Special rules also apply for withholding from an employee’s workers’ compensation benefits, severance pay, and any lump-sum payments (such as bonuses or payment in lieu of accrued leave). In these situations, you should also seek further guidance.

By:  Cynthia W. Veidt, cindy@lpvlaw.com

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

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