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

 

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. 

By: Cynthia W. Veidt

Texas Employment Law Basics for Employers: Avoiding Illegal Workers

You will be required to complete an I-9 form and other state-approved forms to report each new employee in Texas’ “new hire directory” (maintained by the Texas Workforce Commission) within twenty (20) days of that employee’s start date. This process will help ensure that your employees are eligible to work in the U.S., and is also used to track and collect social security, federal income taxes and other government-authorized deductions from that employee’s paychecks.

The confirmation process is usually pretty straightforward, but issues sometimes occur. For example, you’ve hired a new employee, but he or she refuses to disclose their social security number or claims not to have one. What should you, the new employer, do in this situation?

According to the U.S. Department of Homeland Security, you cannot legally require that the employee disclose their social security number (SSN). Although a social security card is the most common method of demonstrating that the employee is eligible to work in the United States, it is not the only method for proving eligibility.

This causes some problems for the new employer in Texas. You will be required to complete a “new hire” report form on which you must provide the employee’s SSN. Although there is little guidance from the various federal and state agencies, it appears that you may be able to avoid compliance issues by submitting an affidavit stating that the employee does not have an SSN or refuses to provide it.

You and the employee should each complete a Form P-1 (a privately-prepared form captioned the “Reasonable Cause Affidavit by Payor for Not Obtaining Payee’s Identifying Number”) which you can find via a quick internet search. Refusal by the employee to complete this form, in addition to his or her refusal to provide an SSN, may be grounds for termination. In addition, courts have stated that an employer is not required to hire someone who refuses to provide an SSN on his or her job application.

If this situation occurs, please consult with someone well versed in employment law to determine what rights and obligations/liabilities you may have as the new employer.

By: Cynthia W. Veidt, attorney