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

 

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, cindy@lpvlaw.com

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