texas employer’s legal guide · everything you need ... social media & mobile technology...

Texas Employer’s Legal GuideRelease No. 12

Knowles Publishing, Inc. | Fort Worth, TX 76111 | 1-800-299-0202 | www.knowlespublishing.com

New and UpdatedAnalysis:

• Texas Employment Discrimination• New Regulations for Paying

Overtime• Retaliation Claims & How to

Investigate Them• Texas Child Labor Law• Employment Risk Analysis• Texas Payday Law• New Checklists

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Everything you need ...Social Media & Mobile Technology IssuesSuccessful Strategies to Prevent Employment ProblemsEmployment Policies and HandbooksForms & ChecklistsContracts & Employment at WillImportant DeadlinesState and Federal Laws & How They Affect EmployersCompensating & Terminating Employees

Bullying in the Workplace

Discrimination Claims

Evaluating Job Applicants

Alternative Dispute Resolution

Job Descriptions

Service & Assistance Animals

Respondeat Superior

and more!

TEXAS EMPLOYER’S LEGAL GUIDEBy Kevin Johnson

CHAPTER 1EMPLOYMENT DISCRIMINATION

(Texas Labor Code, Chapter 21)

INTRODUCTION & BASIC PLAN

1.1 DEFINITION OF DISCRIMINATION AND HARASSMENT(A) What It Is(B) What It Is Not(C) A Little More Detail(D) Employee

1.2 WHO IS COVERED(A) Employer Defined(B) Employment Agency(C) Labor Organization(D) Employee

1.3 UNLAWFUL EMPLOYMENT PRACTICES(A) By Employers(B) By Employment Agency(C) By Labor Organization(D) Methods of Proving Unlawful Discrimination

(1) The “Pretext” Case(2) The “Mixed-Motive” Case(3) Adverse Employment Action

(E) Race and Color Based Discrimination(F) Disability Based Discrimination(G) Religion Based Discrimination(H) Sex-Based Discrimination

(1) Generally(2) Pregnancy and Childbirth(3) Abortion(4) Sexual Harassment

(a) Quid Pro Quo Harassment(b) Hostile Work Environment Harassment(c) Common Elements(d) Employee Relationships

(I) National Origin Based Discrimination(J) Age Based Discrimination(K) Retaliation(L) Aiding or Abetting Discrimination(M)Discriminatory Notice or Advertisement(N) Other Unlawful Employment Practices

1.4 EMPLOYER DEFENSES(A) Bona Fide Occupational Qualification(B) Business Necessity(C) Seniority or Merit Systems and Production Quotas(D) Replacing One Employee with Another

KNOWLES PUBLISHING • PAGE 1

(E) Disability(F) Employees in Different Locations(G) Legitimate Business Practice(H) Anti-Harassment Policy(I) Employee’s Complaint is Unfounded(J) Procedural Defenses

1.5 ENFORCEMENT AND REMEDIES(A) Local Enforcement(B) Commission on Human Rights

(1) Filing of Complaint(2) Service of Complaint(3) Alternative Dispute Resolution(4) Investigation of Complaint(5) Temporary Injunctive Relief(6) Lack of Reasonable Cause(7) Determination of Reasonable Cause(8) Resolution After Determination of Reasonable Cause(9) Failure to Resolve the Case by Commission

(C) Judicial Enforcement(1) By the Commission(2) By the Employee(3) Statute of Limitations(4) Equitable Relief(5) Compensatory and Punitive Damages(6) Attorney’s Fees and Costs

1.6 HOW TO RESPOND TO AN EMPLOYMENT DISCRIMINATION COMPLAINT

ChecklistsBasic Prohibitions Under This ActAuthority of the Texas Commission on Human RightsWho is Covered by This ActUnlawful Employment Practices by EmployersUnlawful Employment Practices by Employment AgenciesUnlawful Employment Practices by Labor OrganizationsHow Unlawful Discrimination Must Be ProvenDefenses to a Claim of Unlawful DiscriminationOutline for a Policy Dealing with HarassmentPenalties for Violation of This ActWhat to do When an Employee Makes a Complaint Under This ActDetermining Whether an Individual is Your Employee Under This ActHow is Quid Pro Quo Harassment ProvenHow Hostile Work Environment Harassment is ProvenMandatory Content of an Employer’s StatementThings an Employer Should Always Do During an Investigation


CHAPTER 2EMPLOYMENT OF CHILDREN



2.1 BASIC LAW IN TEXAS(A) The First Rule(B) Federal Law or Texas Law?(C) Who is Covered Under Texas Law?(D) Who is a Child?

(1) Employment Prohibitions by Age(2) Verifying Age of Child

2.2 EMPLOYMENT OF FOURTEEN- AND FIFTEEN-YEAR-OLDS(A) Permitted Work Schedule(B) Permitted Jobs(C) Prohibited Jobs(D) Hardship Exemption

2.3 EMPLOYMENT OF SIXTEEN- AND SEVENTEEN-YEAR-OLDS(A) Permitted Work Schedule(B) Permitted Jobs(C) Prohibited Jobs

2.4 ENFORCEMENT AND REMEDIES(A) Enforcement Process(B) Employer’s Defense(C) Penalties

ChecklistsTypes of Identification to Verify an Employee’s AgePermitted Work Schedule for MinorsWhen an Employee Under Age Eighteen Can Drive as Part of the JobHazardous Jobs in Which No Child Under Age Eighteen Can WorkAppealing a Preliminary Decision

FormsChild Labor Laws PosterApplication for Certificate of AgeChild Labor ComplaintParental Consent to Employ a Child to Solicit

CHAPTER 2AMISCELLANEOUS RESTRICTIONS ON LABOR


2A.1 CONSECUTIVE DAYS OF WORK IN RETAIL EMPLOYMENT

2A.2 SATURDAY/SUNDAY CLOSING LAW

2A.3 PROHIBITED WORK BY FOREIGN SHIP’S CREW

2A.4 HOES USED BY AGRICULTURAL EMPLOYEES


2A.5 BLACKLISTING PROHIBITED

2A.6 COERCION OF EMPLOYEE TRADE PROHIBITED

2A.7 EMPLOYEE CANNOT BE PENALIZED FOR COMPLYING WITH A SUBPOENA

CHAPTER 3TEXAS PAYDAY LAW



3.1 GENERALLY

3.2 WHO IS COVERED

3.3 PAYDAYS(A) Setting Paydays(B) An Employee’s Final Payday(C) Missed Paydays

3.4 PAYMENT OF WAGES(A) Wages Defined and When Wages Must be Paid(B) Payments Not Covered by This Law(C) Form in Which Wages Must Be Paid(D) Where Wages Must Be Paid(E) Fringe Benefits

3.5 DEDUCTIONS FROM WAGES; WITHHOLDING PAY(A) Basic Rule(B) Deductions Required by Law(C) Deductions Authorized by Law(D) Minimum Wage Requirements and Deductions(E) Employee’s Prior Written Authorization

3.6 ENFORCEMENT(A) Criminal Enforcement(B) Attorney General Enforcement(C) Enforcement by the Texas Workforce Commission(D) Penalties(E) Employer Bond(F) Lien Against Employer Failing to Pay Wages

3.7 ABANDONED WAGES(A) Wage Payments Made in Cash(B) Wage Payments Made by Check(C) When the Employee Finally Appears to Collect Unclaimed Wages

3.8 ISSUES CONCERNING PAYCHECKS GIVEN TO EMPLOYEES(A) Lost Paycheck(B) Stolen Paycheck(C) Paycheck Not Cashed(D) Electronic Deposit Fails(E) A Mailed Paycheck is Returned


ChecklistsSetting Paydays Under This ActMissed and Final PaydaysHow Wages Are to Be PaidPermitted Deductions from Employee PaychecksEmployees Exempt from Overtime Requirements

of the Fair Labor Standards Act

FormsPayday PosterWage ClaimEmployer Response to Wage ClaimAgreement For Deduction From Wages

CHAPTER 4TEXAS MINIMUM WAGE ACT



4.1 GENERALLY

4.2 WHO IS COVERED(A) Employers(B) Employees

4.3 THE TEXAS MINIMUM WAGE(A) Current Minimum Wage(B) Employees Who Receive Tips(C) Employees Who Are Furnished Meals or Lodging(D) Employees Subject to Call(E) Texas Department of Mental Health and Retardation

4.4 AGRICULTURAL PIECE RATE WORKERS

4.5 INFORMATION IN THE EARNINGS STATEMENT

4.6 ENFORCEMENT AND PENALTIES

4.7 OTHER STATES’ MINIMUM AND OVERTIME WAGES(A) State Minimum and Overtime Table(B) State Minimum Wage Amounts for Tipped Employees

4.8 BENEFITS(A) Definition(B) How to Create and Use Benefits(C) Specific Types of Benefits

(1) Bonuses, Dividends, Profit Sharing(2) Commissions(3) Advances Against Future Earnings(4) Overtime Pay(5) Tips(6) Severance Pay(7) Comp Time(8) Vacation Leave(9) Sick Leave/Personal Leave

(10) HolidaysKNOWLES PUBLISHING • PAGE 5

(11) Life Insurance(12) Disability Insurance(13) Health Insurance(14) Education(15) Child Care(16) Transportation(17) Merit Pay(18) Hazard Pay

4.9 HOURS OF WORK(A) Determining Hours of Work(B) Is an Employee at Work(C) Why an Employer Must Know When an Employee is at Work(D) Case Law

4.10 WAGE REQUIREMENTS IN GOVERNMENT CONTRACTS(A) Federal Contracts

(1) The Davis-Bacon and Related Acts(2) The McNamara-O’Hara Service Contract Act(3) Contract Work Hours and Safety Standards Act(4) The Copeland “Anti-Kickback” Act(5) The Walsh-Healey Public Contracts Act

(B) State and Local Government Contracts

4.11 EMPLOYEE ASSISTANCE PROGRAM (EAP)

ChecklistsEmployers Who are Not Covered by the Texas Minimum Wage LawEmployees Who are Not Covered by the Texas Minimum Wage LawRequirements for the Earnings StatementThe Texas Minimum WagePenalties for Violation of the Texas Minimum Wage LawDetermining When an Employee Is Working

FormsDavis-Bacon Act PosterBeck NoticeWalsh-Healy Public Contracts Act and Service Contract Act Poster

CHAPTER 5STAFF LEASING SERVICES(Texas Labor Code, Chapter 91)

5.1 GENERALLY

5.2 LICENSE REQUIREMENTS

5.3 STAFF LEASING SERVICES AGREEMENT

5.4 DUTIES OF A STAFF LEASING SERVICE


ChecklistsDescription of a Staff Leasing Services CompanyDescription of an Assigned EmployeeRequired Elements of a Staff Leasing Services Contract


CHAPTER 6TEMPORARY COMMON WORKER EMPLOYERS


6.1 GENERALLY

6.2 LICENSE REQUIREMENTS

6.3 DUTIES OF TEMPORARY COMMON WORKER EMPLOYER


CHAPTER 7TEMPORARY EMPLOYMENT SERVICES


7.1 DEFINITIONS(A) Temporary Employment Service(B) Temporary Employee

7.2 OBLIGATIONS OF THE TEMPORARY EMPLOYMENT SERVICE

CHAPTER 8LABOR ORGANIZATIONS

(Texas Labor Code, Chapters 101 and 102)

8.1 RIGHTS OF WORKING PERSONS(A) Right to Organize(B) Picketing

8.2 RIGHT TO WORK(A) Union Membership Cannot Influence Employment Decisions(B) Enforcement and Penalties

8.3 STATE LAW REGULATING LABOR UNIONS(A) Definitions

(1) Labor Union(2) Labor Organizer(3) Enforcement Officer

(B) Election of Union Officers(C) Fees(D) Expulsion from Union Membership(E) Records and Reports(F) Enforcement and Penalties

8.4 PICKETING(A) Definition(B) Permitted Picketing(C) Prohibited Picketing

8.5 LABOR ARBITRATION(A) Arbitration Defined(B) Procedure

(1) Selection of Arbitrators(2) Powers and Duties of Arbitration Board


(3) Party Conduct During Arbitration(4) Handling the Dispute

CHAPTER 9TEXAS UNEMPLOYMENT COMPENSATION ACT

(Texas Labor Code, Chapters 201-217)

9.1 GENERAL PURPOSE

9.2 DEFINITION OF EMPLOYER

9.3 DEFINITION OF EMPLOYMENT(A) Employment Defined(B) Location of Employment(C) Certain Activities Defined as Employment(D) Certain Activities Excluded as Employment(E) Mixed Employment

9.4 DEFINITION OF WAGES

9.5 DEFINITION OF UNEMPLOYMENT(A) Total Unemployment(B) Partial Unemployment(C) Unemployed(D) Misconduct

9.6 EMPLOYER CONTRIBUTIONS(A) Contributions(B) Chargebacks

9.7 UNEMPLOYMENT INSURANCE COVERAGE

9.8 BENEFITS(A) Payment of Benefits(B) Benefit Eligibility(C) Ineligibility for Benefits

(1) Academic Teachers, Researchers, and Administrators(2) Athletes(3) Aliens(4) Discharge for Misconduct(5) Voluntarily Leaving Work(6) Involuntary Separation(7) Failure to Apply for, Accept, or Return to Work(8) Labor Disputes(9) Receipt of Remuneration

(10) Receipt of Pension or Annuity(11) Sale of Business(12) Quitting Work to Pursue an Education(13) Refusal to Treat a Communicable Disease

9.9 CHALLENGING A BENEFIT CLAIM(A) The Formal Procedure

(1) Determination by Examiner(2) Redetermination by Examiner(3) Appeal Tribunal


(4) Commission Decision(5) Judicial Review

(B) Advice for an Employer(C) Locations of TWC Tax Offices

9.10 ENFORCEMENT OF TEXAS UNEMPLOYMENT COMPENSATION ACT(A) Employer Penalties(B) Criminal Penalties and Sanctions

9.11 UNEMPLOYMENT TAX REGISTRATION(A) Employer Registration(B) Information Needed To Register(C) Employers Who Cannot Register Online

ChecklistsWhen an Employee is Eligible for Unemployment BenefitsWhen an Employee is Not Eligible for Benefits Due to Misconduct Definition of

“Available for Work” as a Condition of Benefit EligibilitySituations When an Employee is Not Eligible for Benefits

FormsStatus Report for Nonagricultural EmployerStatus Report for Farm and Ranch EmploymentAmended Status ReportStatus Change FormNotice That Employment or Business Has Been DiscontinuedApplication for Termination of Coverage

CHAPTER 10TEXAS WORKERS’ COMPENSATION ACT

(Texas Labor Code, Chapters 401-406)


10.1 GENERALLY

10.2 WORKERS’ COMPENSATION INSURANCE COVERAGE

10.3 LIABILITY FOR COMPENSATION

10.4 EXCEPTIONS TO LIABILITY FOR COMPENSATION

10.5 DEFENSES OF UNINSURED EMPLOYER

10.6 COVERAGE OF CERTAIN TYPES OF EMPLOYEES UNDER THIS ACT(A) Exempt Employees(B) Covered Employees

10.7 INDEPENDENT CONTRACTORS

10.8 PROCEDURES(A) Notice of Injury(B) Dispute Resolution(C) Workers’ Compensation Benefits

10.9 CASES


ChecklistsEmployer’s Liability Under Workers’ CompensationWhat Happens When an Employee Makes a Claim

FormsNotice to Employees That Employer Has Workers’ Compensation Insurance CoverageNotice to Employees That Employer Does Not Have Workers’ Compensation Insurance CoverageNotice to New EmployeesDWC Form-001 Employer’s First Report of Injury or IllnessDWC Form-7 Noncovered Employer’s Report of Occupational Injury or Illness

CHAPTER 11TEXAS AGENCIES

11.1 TEXAS WORKFORCE COMMISSION(A) Generally(B) Contact Information

11.2 TEXAS WORKFORCE COMMISSION CIVIL RIGHTS DIVISION(A) Generally(B) Contact Information

11.3 TEXAS DEPARTMENT OF INSURANCE—DIVISION OF WORKERS’ COMPENSATION(A) Generally(B) Contact Information

CHAPTER 12THE JOB DESCRIPTION


12.1 DEFINITION(A) Written Statement(B) Essential Duties(C) Essential Elements

12.2 PURPOSE OF A JOB DESCRIPTION

12.3 PREPARING A JOB DESCRIPTION(A) The Requirement of a Writing(B) What a Job Description Should Include(C) What a Job Description Should Not Include(D) Job Descriptions are Like Product Descriptions

12.4 BEST PRACTICES CONCERNING JOB DESCRIPTIONS

12.5 CASES CONCERNING JOB DESCRIPTIONS

ChecklistsJob DescriptionsHow to Prepare a Job Description

FormsWorksheet for Preparing a Job DescriptionJob Description Form


CHAPTER 13THE HIRING PROCESS


13.1 GOALS WHEN LOOKING FOR APPLICANTS(A) Understand the Qualifications Wanted(B) Collecting Information(C) Verifying Information(D) Managing Information

13.2 DIFFERENT METHODS FOR FINDING APPLICANTS(A) Most Commonly Used Methods(B) The Search Must be Consistent with the Job Description(C) Best Practices for Conducting a Job Search

13.3 CASES

13.4 EMPLOYER’S LEGAL AUTHORITY IN EVALUATING APPLICANTS

13.5 STRUCTURING THE EVALUATION PROCESS

13.6 TESTING(A) Guidelines(B) Polygraph Testing(C) Drug and Alcohol Urinalysis Testing(D) AIDS/HIV Testing(E) Medical Examinations(F) Psychological Testing(G) Aptitude Testing(H) Testing Ability and Proficiency(I) Probationary Period of Employment

13.7 PROFESSIONAL AND SOCIAL NETWORKING WEBSITES

13.8 THE DECISION TO HIRE(A) The Decision to Hire(B) Communicating the Decision

(1) Making the Job Offer(2) “You Didn’t Get the Job”

13.9 HIRING GUIDELINES FROM THE EEOC(A) Gender(B) Marital Status(C) Marital Status of Women(D) Pregnancy and Childbirth(E) Religion(F) National Origin(G) English Language Requirements(H) United States Citizenship(I) Unfair Testing(J) Prior Training or Experience(K) Education and Official Licenses or Certification

ChecklistsBeginning a Job SearchEvaluating Job Applicants


How to Conduct a Job InterviewChecking References and Giving ReferencesUsing Social Media for Applicant Evaluation

FormsWorksheet: Advertising for EmployeesJob ApplicationInterview WorksheetEmployee Confidentiality StatementAcknowledgment of Receipt of Employment PoliciesStatement of Employment-at-Will, first versionStatement of Employment-at-Will, second versionStatement of Employment-at-Will, third versionAcknowledgment and Consent for Background Check

CHAPTER 14EMPLOYMENT CONTRACTS


14.1 DESCRIPTION OF AN EMPLOYMENT CONTRACT

14.2 ADVANTAGES AND DISADVANTAGES OF EMPLOYMENT CONTRACTS(A) Advantages(B) Disadvantages

14.3 CONTRACT LAW BASICS(A) Offer and Acceptance(B) Consideration(C) Capacity(D) Legal Purpose(E) Contract Performance(F) Written and Oral Contracts(G) Express and Implied Contracts(H) Contract Interpretation

(1) Ordinary Words and Phrases(2) Special Words and Phrases(3) Course of Performance(4) Course of Dealing(5) Industry Custom(6) When Interpretation Remains a Problem

(I) Breach of Contract(1) That the Contract Exists(2) The Terms of the Contract(3) That There Has Been a Breach of the Contract(4) That the Breach is Not Justified(5) Damages

(J) Remedies for Breach of Contract(K) Defenses to Breach of Contract

14.4 COLLECTIVE BARGAINING AGREEMENTS (UNION CONTRACTS)(A) Definition(B) Issues Included(C) Management Rights(D) Use of Attorney


14.5 SPECIFIC PROVISIONS OF AN EMPLOYMENT CONTRACT(A) Identification of Parties(B) Pay and Benefits(C) Employee’s Job Description(D) Employer’s Obligations(E) Noncompete Agreement(F) Confidentiality(G) Intellectual Property(H) Specific Authority of Employee(I) Termination of Contract(J) Executing the Contract(K) Using the Contract

14.6 ENFORCING AN EMPLOYMENT CONTRACT(A) Breach(B) Filing the Lawsuit(C) The Lawsuit or Arbitration(D) Remedies

(1) Injunction(2) Damages

ChecklistsPreparing and Using Employment ContractsTypical Issues Covered in an Employment ContractHow to Avoid Contract ProblemsBreach of Contract

FormsEmployment ContractCovenant Not to Compete

CHAPTER 15THE NEW EMPLOYEE


15.1 NEW EMPLOYEE ORIENTATION(A) Description and Elements(B) Best Practices

(1) Focus on the Goal(2) New Employee’s Poor Conduct(3) Criticism(4) Sharing of Personal Information(5) Guarantees of Continued Employment

15.2 NEW EMPLOYEE PAPERWORK(A) Form W-4—Employee’s Withholding Allowance Certificate(B) Form I-9—Employment Eligibility Verification(C) Other Forms Required by Law(D) Insurance Forms(E) Retirement, Investment, and Benefit Plans(F) Confidentiality Statements(G) Noncompete Agreements(H) Employment Policies(I) Statement of Employment-at-Will


15.3 CREATING AN EMPLOYEE’S FILE

15.4 PROBATIONARY PERIOD OF EMPLOYMENT

FormsTexas Employer New Hire Reporting FormMulti-State Employer Notification Form for New Hire (W-4) Reporting

CHAPTER 16EMPLOYMENT POLICIES AND HANDBOOKS


16.1 DEFINITION AND PURPOSE OF EMPLOYMENT POLICIES(A) Definition(B) Purpose(C) Policy Limitations

16.2 PROPER AND IMPROPER EMPLOYMENT POLICIES(A) Proper Policies(B) Improper Policies

16.3 IMPROPER WORDING OF EMPLOYMENT POLICIES

16.4 HOW TO RECORD, MAINTAIN, AND PUBLISH EMPLOYMENT POLICIES(A) Recording Policies(B) Maintaining Policies(C) Publishing Policies

16.5 DESCRIPTION, PURPOSE, AND ORGANIZATION OF EMPLOYEE HANDBOOKS(A) Description(B) Purpose(C) Organization of an Employee Handbook

16.6 EMPLOYEE HANDBOOK OR EMPLOYEE CONTRACT(A) Why This Question is Important(B) A Presumption Against Contract(C) How a Policy Becomes a Contract

ChecklistEmployment Policies

FormsEmployment Policy TemplatesSample Employee Handbook

CHAPTER 17EMPLOYEE FILES


17.1 DESCRIPTION, PURPOSE, AND ORGANIZATION OF EMPLOYEE FILES(A) Description(B) Purpose(C) Organization of Employee Files(D) Cases


17.2 INFORMATION THAT MUST BE MAINTAINED IN AN EMPLOYEE FILE(A) Information Required for all Employees(B) Information That Must be Kept for Hourly Employees(C) Information That Must be Kept for Employees Exempt from Wage and Hour Laws(D) Information That Must be Kept Pursuant to the Occupational Safety and Health Act(E) Information That Must be Kept Pursuant to the Worker Adjustment and Retraining Notification Act(F) Information Required to be Maintained in Files Separate From Individual Employee Files

17.3 INFORMATION THAT SHOULD BE MAINTAINED IN AN EMPLOYEE FILE

17.4 GOOD PRACTICES TO OBSERVE WITH EMPLOYEE FILES

ChecklistsInformation Required to Be Included in the File of Every EmployeeInformation That Must Be Kept for Hourly EmployeesInformation That Must Be Kept Pursuant to OSHAInformation Required to Be Maintained in Files Separate from Individual Employee FilesInformation That Should Not Be Maintained in an Employee’s FileOverview of Information to Be Included in an Employee’s FileHow to Keep Employee FilesPolicy for Employees to View Their Files

CHAPTER 18PROPERTY AND PRIVACY ISSUES


18.1 THE EMPLOYER’S PROPERTY(A) The “Workplace”(B) Not the “Workplace”(C) When Your Employee is Working in a Foreign Nation(D) Workplace Authority and Responsibility

18.2 SPECIFIC TYPES OF PROPERTY(A) Supplies, Equipment, and Inventory (B) Machinery and Furnishings(C) Lockers, Closets, Desks, and Storage Facilities(D) Technology for Communication and Information Management(E) Property, Technology, Information, and Passwords Owned by the Employee(F) Whether to Provide Mobile Technology or Rely on Employees Using

Their Own (Bring Your Own Device - BYOD)

18.3 EMPLOYEE PRIVACY RIGHTS(A) Right Against Unreasonable Intrusion(B) Right Against Appropriation of Employee’s Name or Likeness(C) Right Against Unreasonable Publicity About the Employee’s Private Life(D) Right Against Publicity That Unreasonably Places the Employee in a False Light(E) Conduct that Invades an Employee’s Right of Privacy(F) Consequences of Violating Employee’s Right of Privacy(G) Employee First Amendment Rights(H) Searches by the Employer

18.4 INTERNET, EMAIL, AND SOCIAL MEDIA ISSUES(A) Privacy and Security(B) Email(C) Handheld Devices, Apps, and Social Media


(D) Employee Misappropriation of Electronic Data(E) Social Media(F) Websites and the Americans with Disabilities Act

18.5 WEAPONS IN THE WORKPLACE(A) Firearms(B) Knives(C) Nonlethal Weapons

18.6 TOBACCO, ALCOHOL, AND DRUGS(A) Tobacco(B) Alcohol(C) Drugs

18.7 MAKING AN INCIDENT REPORT(A) Defined(B) How to Prepare an Incident Report

18.8 SERVICE AND ASSISTANCE/SUPPORT ANIMALS(A) Service Animals(B) Assistance or Support Animals

ChecklistsConducting Searches at the WorkplaceFactors to Consider When Preparing an Email/Internet Use PolicyHow to Prepare an Incident ReportInternet Issues and Private Employers

FormsEmployee Policy Regarding Use of Company PropertyEmployee Policy Regarding Internet/Email UseEmployee Policy Regarding Property of EmployeeEmployee Policy Regarding Workplace SearchesWritten Consent to SearchComputer Fraud and Abuse Act Notice

CHAPTER 19EMPLOYEE PERFORMANCE


19.1 “EVALUATION” AND “DISCIPLINE” DEFINED(A) Evaluation(B) Discipline

19.2 DISCIPLINE POLICIES(A) In General(B) Evaluation Policies(C) Discipline Policies

19.3 PROPER FORMS OF DISCIPLINE(A) Warnings(B) Demotion(C) Cut in Pay/Benefits(D) Job Reassignment(E) Geographic Transfer


(F) Job Suspension(G) Required Rehabilitation Programs

19.4 IMPROPER FORMS OF DISCIPLINE(A) Corporal Punishment(B) Humiliation(C) Withholding Money from Pay(D) Inconsistent Use of Proper Discipline

19.5 PROBLEMS(A) Unlawful Discrimination(B) Lawsuits

(1) Battery(2) Assault(3) Defamation of Character

(C) Criminal Charges(D) Employee Grievance Against Discipline(E) Employee Refusal to Participate in Discipline

ChecklistsHow to Evaluate Employee PerformanceSetting a Policy for Employee DisciplineHow to Evaluate a Discipline Policy

FormsRecord of Action Taken Against EmployeeRecord of Action Taken Against Employee (Short Form)Sample Discipline PoliciesEmployee Performance Evaluation

CHAPTER 20EMPLOYEE ABSENCE


20.1 WHEN THE EMPLOYER CONTROLS THIS ISSUE

20.2 REQUIRE EMPLOYEES TO REQUEST TO BE ABSENT

20.3 TYPES OF ABSENCES(A) Employment Contract(B) Employer’s Own Policies(C) When Required by the Law

20.4 PAID AND UNPAID ABSENCE


CHAPTER 21LIABILITY ISSUES


21.1 THE EMPLOYER’S LIABILITY TO AN EMPLOYEE(A) Injuries or Illness(B) Discrimination and Harassment

21.2 LIABILITY FOR ACTIONS OF THE EMPLOYEE(A) Respondeat Superior(B) Scope of Employment

(1) Express Authority(2) Implied Authority(3) Apparent Authority(4) Authority by Ratification

(C) Actions Outside Scope of Authority

21.3 LIABILITY TO CUSTOMERS AND OTHERS(A) Customers(B) Others Doing Business with the Employer(C) Trespassers

21.4 LIABILITY FOR EMPLOYEE ACTS TOWARD FELLOW EMPLOYEES(A) The Fellow Servant Doctrine(B) Exceptions to the Fellow Servant Doctrine(C) When the Employee Alone is Liable

21.5 LIABILITY FOR SHARED EMPLOYEES

21.6 BENEFITS FROM AN EMPLOYEE(A) Customers(B) Inventions and Discoveries(C) Ideas and Suggestions

21.7 INVESTIGATING EMPLOYEE MISTAKES AND MISCONDUCT(A) How Do You Know Whether to Begin an Investigation?(B) First Things to Do When Beginning an Investigation(C) Conducting the Investigation(D) What to do with Investigation Results(E) Problems(F) How to Use Your (an) Attorney

CHAPTER 22DISCRIMINATION AND HARASSMENT


22.1 TYPES OF DISCRIMINATION/HARASSMENT(A)Sex-Based(B) Religion(C) Race, Skin Color, and National Origin(D)Age(E) Disability(F) Genetic Information(G)Military Service


22.2 AN EMPLOYER’S FIRST LINE OF DEFENSE(A)Education(B) Prohibit Discrimination(C) Written Policy and Investigation(D)Employer and Employee Training(E) What do Do with Those Involved(F) Keep Records

22.3 WHEN THE FIRST LINE OF DEFENSE IS NOT SUCCESSFUL(A)Defenses(B) Things to Do Upon Receipt of a Complaint(C) Cases

22.4 RETALIATION(A)Defined and Described(B) Adverse Action(C) Covered Individuals(D)Protected Activity

22.5 BULLYING

ChecklistsOutline for an Anti-Harassment PolicyA Successful Harassment Training ProgramExamples of Appropriate Action to Take After an Investigation Confirms HarassmentFactors to Consider When Deciding on the Appropriate Action to be Taken After

Confirming Harassment

FormWorksheet for Investigation of Employee Claim of Harassment

CHAPTER 23ALTERNATIVE DISPUTE RESOLUTION (ADR)


23.1 TYPES OF ALTERNATIVE DISPUTE RESOLUTION(A) Informal Conversation with a Supervisor(B) Peer Review(C) Grievance(D) Mediation(E) Arbitration(F) Retaliation(G) Court Ordered Alternative Dispute Resolution

23.2 ADVANTAGES AND DISADVANTAGES OF ADR(A) Informal Procedures(B) Formal Peer Review or Grievance(C) Mediation(D) Arbitration

23.3 MEDIATION/ARBITRATION CONTRACT LANGUAGE

23.4 HOW TO CREATE AND IMPLEMENT AN ADR PROGRAM

23.5 TEXAS ARBITRATION ACT


23.6 FEDERAL ARBITRATION ACT (9 U.S.C. §§ 1-16)(A) Purpose of the Act(B) Businesses Covered by the Act(C) Main Requirements of the Act(D) Defenses(F) Penalties for Noncompliance

CHAPTER 24HANDLING EMPLOYMENT ISSUES

INTRODUCTION

24.1 BUILD A NETWORK OF RELIABLERESOURCES FOR EMPLOYMENT LAW INFORMATION

24.2 YOU HAVE TO UNDERSTAND YOUR ORGANIZATION AND ITS PEOPLE

24.3 REVIEW WHAT YOU DO

24.4 DO NOT MAKE ASSUMPTIONS, ALTHOUGH A PRESUMPTION IS OKAY

24.5 MAKE PLANS, THINK AHEAD, BE READY FOR THE FUTURE

24.6 WHEN THE NEED ARISES, HIRE AN EXPERIENCED LAWYER

24.7 HOW TO CREATE AND USE YOUR OWN HR “DEPARTMENT” (REGARDLESS OF YOUR COMPANY’S SIZE OR BUDGET)

CHAPTER 25ENDING EMPLOYMENT


25.1 METHODS FOR ENDING EMPLOYMENT(A) Resignation by Employee(B) Firing an Employee(C) Laying Off Employees(D) Wrongful Termination

25.2 REASONS FOR ENDING EMPLOYMENT(A) Employment-at-Will(B) Good Cause(C) Contract(D) The Law(E) Public Policy(F) Business Conditions

25.3 WARNINGS(A) Definition and Purposes

(1) Merely a Notice(2) Chance to Improve

(B) No Legal Requirement to Warn (Almost)(1) Worker Adjustment and Retraining Notification Act(2) Employment Contract(3) Employer’s Own Policy

(C) How to Give a Warning(D) What to Include in a Warning


25.4 TERMINATION WITHOUT WARNING (IMMEDIATE TERMINATION)(A) When Proper(B) After Being Given a Warning(C) Adverse Business Conditions

25.5 HOW TO HANDLE THE ACTUAL TERMINATION(A) Factors to Consider When Deciding to Terminate Employment(B) Telling the Employee(C) After Telling the Employee(D) Termination is Not Pleasant(E) The Employer Must Be in Control

25.6 WHEN THE EMPLOYEE WANTS TO RESPOND TO TERMINATION

25.7 ALTERNATIVES TO TERMINATION(A) Cutting Employee Compensation(B) Changing Duties of Employees(C) Offers of Early Retirement(D) Employee Attrition

25.8 SEVERANCE PAY

ChecklistsHow to Terminate an EmployeeWhen Immediate Termination of an Employee is ProperHow to Prepare and Give WarningsGuidelines for Cutting Pay Due to Business Conditions

FormsEmployee Termination WorksheetSample Warning Letter

CHAPTER 26SURVEY OF KEY FEDERAL STATUTES

INTRODUCTION(A) The Role of Government in the Workplace(B) Explanation About Public Policy(C) Explanation About Discrimination

26.1 TITLE VII OF THE CIVIL RIGHTS ACT OF 1964(A) Purpose of the Act(B) Businesses Covered by the Act(C) Main Requirements of the Act(D) Defenses(E) Penalties for Noncompliance(F) Lilly Ledbetter Fair Pay Act of 2009(G) Case Law

26.2 AMERICANS WITH DISABILITIES ACT OF 1990 (ADA) AND ADA AMENDMENTS ACT OF 2008(A) Purpose of the Act(B) Businesses Covered by the Act(C) Main Requirements of the Act(D) Defenses(E) Penalties for Noncompliance


(F) Lilly Ledbetter Fair Pay Act of 2009(G) Case Law

26.3 OCCUPATIONAL SAFETY AND HEALTH ACT(A) Purpose of the Act(B) Businesses Covered by the Act(C) Main Requirements of the Act(D) Defenses(E) Penalties for Noncompliance

26.4 FAIR LABOR STANDARDS ACT OF 1938 (WAGE & HOUR REGULATIONS)(A) Purpose of the Act(B) Businesses Covered by the Act(C) Main Requirements of the Act(D) Defenses(E) Penalties for Noncompliance(F) Case Law

26.5 EQUAL PAY ACT OF 1963(A) Purpose of the Act(B) Businesses Covered by the Act(C) Main Requirements of the Act(D) Defenses(E) Penalties for Noncompliance(F) Case Law

26.6 AGE DISCRIMINATION IN EMPLOYMENT ACT(A) Purpose of the Act(B) Businesses Covered by the Act(C) Main Requirements of the Act(D) Defenses(E) Penalties for Noncompliance(F) Lilly Ledbetter Fair Pay Act of 2009(G) Case Law

26.7 CIVIL RIGHTS STATUTES AND THE CIVIL RIGHTS ACT OF 1866(A) Purpose of the Act(B) Businesses Covered by the Act(C) Main Requirements of the Act(D) Defenses(E) Penalties for Noncompliance

26.8 FAMILY AND MEDICAL LEAVE ACT(A) Purpose of the Act(B) Businesses Covered by the Act(C) Main Requirements of the Act(D) Defenses(E) Penalties for Noncompliance(F) Case Law

26.9 WORKER ADJUSTMENT AND RETRAINING NOTIFICATION ACT(A) Purpose of the Act(B) Businesses Covered by the Act(C) Main Requirements of the Act(D) Defenses(E) Penalties for Noncompliance


26.10 VETERANS’ REEMPLOYMENT RIGHTS (USERRA)(A) Purpose of the Act(B) Businesses Covered by the Act(C) Main Requirements of the Act(D) Prohibition of Discrimination(E) Defenses(F) Penalties for Noncompliance(G) Case Law

26.11 MIGRANT AND SEASONAL AGRICULTURAL WORKER PROTECTION ACT(A) Purpose of the Act(B) Businesses Covered by the Act(C) Main Requirements of the Act(D) Defenses(E) Penalties for Noncompliance

26.12 EMPLOYEE POLYGRAPH PROTECTION ACT(A) Purpose of the Act(B) Businesses Covered by the Act(C) Main Requirements of the Act(D) Defenses(E) Penalties for Noncompliance

26.13 AFFIRMATIVE ACTION(A) Purpose of the Act(B) Businesses Covered by the Act(C) Main Requirements of the Act(D) Defenses(E) Penalties for Noncompliance(F) Voluntary Affirmative Action

26.14 DRUG-FREE WORKPLACE ACT OF 1988(A) Purpose of the Act(B) Businesses Covered by the Act(C) Main Requirements of the Act(D) Defenses(E) Penalties for Noncompliance

26.15 CONSOLIDATED OMNIBUS BUDGET RECONCILIATION ACTOF 1986 (COBRA)(A) Purpose of the Act(B) Businesses Covered by the Act(C) Main Requirements of the Act(D) Defenses(E) Penalties for Noncompliance

26.16 HEALTH SAVINGS ACCOUNTS, FLEXIBLE SPENDING ARRANGEMENTS, ANDHEALTH REIMBURSEMENT ARRANGEMENTS(A) Health Savings Accounts(B) Flexible Spending Arrangements(C) Health Reimbursement Arrangements

26.17 SMALL BUSINESS JOB PROTECTION ACT (SIMPLE PLANS)


26.18 PERSONAL RESPONSIBILITY AND WORK OPPORTUNITY ACT OF 1996(A) Purpose of the Act(B) Businesses Covered by the Act(C) Main Requirements of the Act(D) Defenses(E) Penalties for Noncompliance

26.19 FEDERAL CHILD LABOR LAWS(A) “Child” v. Adult(B) Employment of Sixteen- and Seventeen-Year-Olds(C) A Caution(D) Employer’s Defense

26.20 FOREIGN WORKERS(A) The United States Citizenship and Immigration Service(B) Employment Eligibility (Form I-9)(C) Social Security Numbers(D) Employment Authorization Document (Work Permit)(E) Permanent Labor Certification and Immigrant Visas(F) Nonimmigrant Visa Classifications(G) The E-Verify Program(H) Rights of Foreign Workers Working Illegally in the United States(I) Myths About Foreign Workers

26.21 HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT (HIPAA) ANDHEALTH INFORMATION TECHNOLOGY FOR ECONOMIC AND CLINIC HEALTH ACT (HITECH)(A) Purpose of the Act(B) What is Covered by HIPAA/HITECH(C) Requirements of the Act Relevant to Employers

26.22 GENETIC INFORMATION NONDISCRIMINATION ACT OF 2008 (GINA)(A) Purpose of the Act(B) Employers Covered by the Act(C) Main Requirements of the Act(D) Defenses(E) Penalties for Violation of GINA

26.23 PATIENT PROTECTION AND AFFORDABLE CARE ACT OF 2010 (PPACA)(A) Determining the Number of FTEs (Large Employers)(B) Affordable Coverage(C) Penalties

26.24 RETALIATION(A) Described(B) The Elements of Retaliation(C) Preventing Retaliation

ChecklistsDealing with Government AgenciesUnlawful DiscriminationAmericans with Disabilities ActOccupational Safety and Health ActFair Labor Standards Act of 1938Equal Pay Act of 1963Family and Medical Leave Act


Worker Adjustment and Retraining Notification ActVeteran’s Reemployment RightsMigrant and Seasonal Agricultural Worker Protection ActEmployee Polygraph ProtectionDrug-Free Workplace Act of 1988Consolidated Omnibus Budget Reconciliation Act of 1986Foreign WorkersHealth Insurance Portability and Accountability ActPatient Protection and Affordable Care Act

CHAPTER 27INDEPENDENT CONTRACTORS AND EMPLOYEES


27.1 DESCRIPTION OF EMPLOYEE(A) Definition(B) Types of Employees(C) Personnel Who are Not Your Employee(D) Determining if Someone is Your Employee

27.2 EMPLOYMENT-AT-WILL(A) Definition(B) Modifications and Exceptions

(1) Employment Contracts(2) Federal and Texas Law(3) Public Policy

(C) Modern Definition of the Employment-at-Will Doctrine(D) Best Practices Concerning Employment-at-Will(E) Employment-at-Will Cases

27.3 BORROWED SERVANT DOCTRINE(A) Definition(B) Determining Which Employer is General and Which is Special

27.4 INDEPENDENT CONTRACTORS

27.5 INTERNAL REVENUE SERVICE GUIDELINES

ChecklistsCharacteristics of an EmployeeCharacteristics of an Independent Contractor

APPENDIX ATABLE OF CHECKLISTS

APPENDIX BTABLE OF FORMS

APPENDIX CBIBLIOGRAPHY OF STATUTES AND CASES

USED IN PREPARATION OF THIS BOOK

INDEX


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