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Human Resources

When Your Former Employee Does Not Deserve Unemployment Benefits

Tanille Royston

At one point or another a supervisor or a manager will unequivocally state that a former employee does not deserve unemployment benefits.  They will profess that it is not about the money, it is the fact that the former worker’s actions were so egregious that he is unworthy of getting another dime from the company.  Well, the good news is that the supervisor or manager may be in luck!   

According to the Texas Workforce Commission (“TWC”), a former employee must meet certain requirements before collecting unemployment benefits.  One of them is to show that he is no longer working due to no fault of his own, and the TWC will review the last incident before the end of his employment.  If the employer terminated the former employee, then it must produce evidence to show that it was due to the claimant’s misconduct for the TWC to deny unemployment benefits.

What is misconduct?  According to Section 201.012 of the Texas Labor Code, “Misconduct’ means mismanagement of a position of employment by action or inaction, neglect that jeopardizes the life or property of another, intentional wrongdoing or malfeasance, intentional violation of a law, or violation of a policy or rule adopted to ensure the orderly work and the safety of employees.”  Furthermore, the TWC indicates that the employer must show that it terminated the former worker because of misconduct that happened closely to the discharge of employment.  Also, the employer must prove that the claimant either knew or should have known that he could be terminated for that purpose.  

Are there any times in which the employer can simply discharge an employee without first notifying him that he is in danger of losing his job?  The answer is yes.  When the claimant’s misconduct is so egregious that no reasonable employee could have believed that he would still be employed after committing the bad act, the employer can terminate the employee and he may be ineligible for unemployment benefits.  

Last, a leader in upper management may believe that a former employee should not be entitled to collect unemployment benefits from the company. The employer can show proof that the reason that it terminated the worker was due to misconduct, then the TWC may deny unemployment benefits.

Human Resources

Increasing Workplace Productivity

Tanille Royston

Many company owners and managers often wonder how to attract and retain the best employees.  They know that a good worker will help grow and maintain their business.  However, many company owners and managers struggle to find and keep the right employees due to many reasons, such as, low employee engagement and high turnover.  Fortunately, there are several tactics an employer can use to get the right person in the door, and keep him performing at the highest level. 

According to the Society of Human Resource Management (SHRM), talent management is the method in which the company owner or manager seeks and maintains the best talent for the organization.  Also, “SHRM” indicates that the goal of talent management is to increase workplace productivity.

Employers should start obtaining the best workers in the recruiting process.  First, it should examine the company’s values and mission statement, and select a worker that will best exemplify them. Also, the organization’s owners and managers may want to look for employees at job agencies or schools that share their same principles and ideals.

In order for employers to attract and retain good employees they should have a thorough and complete orientation and onboarding process, which should fall in line with the company’s values and mission statement.  The orientation and onboarding procedures should introduce the new hire to the organization, and prepare him well for the position.

The company should have a strong training and development program as well, and the course should highlight the employer’s values and mission statement. Training and development of employees is imperative to growing a business, and retaining a worker.  The manager in charge of the training and development program should not only teach the employee, but also coach and guide him.    

Employers should develop an employee engagement plan, which should align with the company’s values and mission statement, to retain high performing workers. An employee who is connected is more likely to be productive, and want to see the company succeed. The employer can engage its workers by asking about their feelings and opinions about the company in regular one on one meetings or through surveys.

In conclusion, an employer can attract and retain high achieving workers through the talent management process.  A thorough and complete recruitment procedure, orientation and onboarding process, training and development program and employee engagement plan can help increase a worker’s productivity.

Business Law

Five Key Items Needed in Your Partnership Agreement

Tanille Royston

When two or more people intend to do business together for a profit, they form a partnership. They agree to build and nurture a company.  Although they have a desire to grow a successful business together, there may be bumps along the road.  Many partners face challenges running their company when they don’t have a crystal clear vision as to how it will function.  A partnership agreement helps the partners establish an understanding of each person’s roles and responsibilities.  Here is a list of five important items that a partnership agreement should contain:

1. Contributions

The partnership agreement should clearly and concisely list what each partner will contribute to the business.  It should contain the amount of money, time and effort, equipment, or other resources given to the business.   Also, the partnership agreement should provide the percentage of ownership interest each party has.  

2. Distributions

The partnership agreement should indicate how the partners will divide the profit from the business.  The partners should decide whether the distributions are in relation to each party’s ownership interest.  Also, the partnership agreement should explain whether the partners will take a salary.  If they decide to take one, they should determine when they should get paid, and how much they should receive.

3. Partnership Management

The partnership agreement should explain the roles and responsibilities of each partner.  It should identify who will perform certain key tasks, such as, marketing, sales, paying bills, supervising employees, etc. When each partner understands his roles in the beginning, it helps the business operate more efficiently.  Also, when each party knows his responsibilities, it may help alleviate confusion later down the road.

4. Dispute Resolution

The partnership agreement should address how disputes between partners are handled.  It’s hard to imagine that there won’t be any disagreements between parties.  Most times partners can resolve disputes, and then move on to the next issue.  Occasionally, the parties will not see eye to eye.  Thus, the partnership agreement should discuss how the partners should come to a resolution. 

5. Dissolution

The partnership agreement should provide the necessary steps for terminating the business, and indicate if all partners must consent to the dissolution. 

In conclusion, a partnership agreement helps all of the partners have an understanding of their roles and responsibilities.  Although there are many items to include in the partnership agreement, some of the important ones are contributions, distributions, partnership management, dispute resolution and dissolution. 

Employment Law

Employee Handbook Topics

Tanille Royston

A business should have an employee handbook.  It explains the company’s vision, mission and values.  The employee handbook provides a roadmap of where the company is going, and the actions it will take to get there.  The manual communicates what is expected of a worker, and what he should expect from the employer.  There are many topics that a company should include in its employee handbook.  I will discuss a few below. 

At-Will Employment

It is very important for the employer to include an at-will statement in the employee handbook.  It informs the employee that he does not have any rights to employment. In an at-will position, an employer can terminate an employee with or without notice or cause.  Also, an employee can leave his positon with or without notice or cause.

Anti-Discrimination

All employers should include an anti-discrimination policy in its employee handbook.  It expresses that the company takes a stand against discrimination, and the employer will take measures to prevent and correct illegal behavior. The anti-discrimination policy should indicate how an employee should notify the company about discriminatory behavior.  It should explain that the employer will take action against anyone involved in discriminating against another person.

Anti-Harassment

It is imperative that the employer include an anti-harassment policy in the employee handbook.  An anti-harassment policy shows that the company is committed to maintaining a safe workplace, and it will take measures to prevent bad behavior.  The company should define the actions that constitute harassment.  The policy should indicate how an employee should notify the company about harassing behavior.  The policy should explain how the employer will take action against anyone involved in harassment.

Progressive Discipline

The employee handbook should contain a progressive discipline policy.  It informs all employees of the actions that the company will take to correct bad behavior.  The policy should explain the progression of disciplinary steps that an employer will take when an employee breaks the company rules.  The employer should indicate that it has the right to skip steps due to the severity of the employee’s actions.  Most importantly, the company must consistently follow the policy. 

Confidentiality

The employee handbook should include a confidentiality policy where the employee agrees to keep company information, such as intellectual property, trade secrets and proprietary details private, and not disclose them while he is employed.  The worker may have to keep company information confidential for a while after he leaves as well.

Conclusion

All employers should have an employee handbook.  They explain a company’s vision, and provides a roadmap of where the business is going. Some of the topics the employee handbook should cover are at-will employment, anti-discrimination, anti-harassment, progressive discipline and confidentiality.

Employment Law

Is this Worker an Independent Contractor or an Employee?

Tanille Royston

This is a question that a small business owner may ask himself at some point.  He may respond by stating that his worker is indeed an independent contractor.  The small business owner may think about the ways that the individual fits his idea of a freelancer, and he may be unequivocally wrong.  Many people believe they know what an independent contractor is, but they are mistaken. 

According to the Internal Revenue Service (IRS), a person is an independent contractor when he exercises control over how the work he is paid to do will get done. The individual who offers to pay for the job can only direct the result.  Alternatively, an employee is a person who is employed by a business to perform a duty.  He is expected to follow his superiors’ directives, and do his work according to their instructions.      

The IRS indicates that there are two major points when determining whether a person is an independent contractor or an employee.  The first factor is control.  The employer can only control the end product or service.  The second point is relationship.  The IRS will look at the facts of a situation to determine how both the business and the worker perceive their relationship to one another.

When deciding whether the individual is an independent contractor or an employee, a small business owner may want to consider whether he has to provide the tools and resources for the worker to complete the job.  He may want to think about whether the person is free to work for other businesses.  Also, the small business owner may want to consider whether the job duties are an essential element to the company’s business.  Last, he may want to think if he wants the worker to sign an employment contract.  These are just some points to consider, the IRS will look at the entire relationship when determining whether a person is an independent contractor or an employee. 

Although, many small business owners may think of their workers as independent contractors, it’s imperative that they make sure that they are following the IRS’ guidance on the matter.

Human Resources

Recruiting Employees in COVID-19 Times

Tanille Royston

The COVID-19 pandemic severely disrupted the workforce.  Many companies had to create innovative ways for their employees to work while staying safe.  Some employers closed their facilities, and others permitted their employees to work remotely.  Many businesses kept their doors open, but had to ensure that their workplaces were safe. 

Now, many employers are contemplating slowly reopening their businesses. They have plenty of tasks to complete before they do.  One of them may be trying to find new employees in a changed work environment.

Due to the COVID-19 pandemic, many businesses had to furlough, lay off or terminate their workers.  Some employees had to quit working because they had to care for their children when schools closed, or they had to attend to sick family members. Additionally, many individuals did not want to return to their former positions due to the fear of catching COVID-19.  Thus, where do business owners find good and dependable workers?

A good way for employers to get employees is by recruiting them.  The recruitment process involves locating qualified candidates and recommending that they apply for the company’s open positions.  First, the business owner should develop a recruiting plan so that he will have a clear vision as to how he will find top talent for his organization.  Second, he should review the job description so that he truly understands what he is looking for.  Third, the business owner should determine the characteristics of the ideal candidate.  Last, he should implement the recruitment plan. 

The business owner can start the process by posting an advertisement on all the well-known job sites, such as, Indeed and Zip Recruiter.  LinkedIn and Facebook are also popular platforms for posting open positions.  Another option for the business owner is to ask former employees if they would like to return to the workplace, if not, he can inquire if they know of any other people that may be interested in the available job.  The business owner can speak with trade or professional organizations to see if they can inform their members of the company’s open positions.  Also, he can reach out to recruitment agencies so that they can help look for viable candidates as well.

Although a business owner may have a good recruitment plan, the process of locating qualified workers takes time.  It could take weeks or months.  The recruitment process is not an overnight activity. Top talent is scarce and there are many business owners searching for it.  However, a recruitment plan will definitely keep an employer on track in finding the best workers.   

In conclusion, many employers are still facing difficulties during the COVID-19 pandemic.  Some are challenged by finding qualified employees.  Business owners should develop and implement a thorough recruiting strategy to assist them in locating top talent.

Business Law

Contract Basics Part II

Tanille Royston

In my last article, I discussed the basics of a contract, which consists of an offer, acceptance and consideration. In this piece, I will examine some other important components found in a contract.

Modifications

A modification is any change in whole or part to the terms of the contract. Many agreements explain how alterations can be made.  If you sign a contract, and it explains that you have to make changes in writing, the other party doesn’t have to honor your modification request via a phone call.

Unless otherwise noted, modifications can be made at any time, but all parties must agree to them.  Additionally, consideration is needed for a change, but in a sales contract, it’s not required. 

 Waivers

A waiver or a release is an agreement to voluntarily relinquish the right to take legal action.  Waivers need to be part of a legally enforceable contract.  They are useful when there is the potential for risks. For example, a seller may insist that its buyer waives its right to fees for delivering goods late.  A company may ask its customer to forgo his right to pursue legal action if he is harmed on its premises; thus, waivers can limit the amount of claims filed against a party.

Warranties

A warranty is a promise that something is true.  An assurance that a product will do what it’s intended to do.  Warranties can be expressed or implied. There are several implied warranties, such as, the Warranty of Merchantability, the Warranty of Fitness for Particular Purpose, the Warranty of Free and Clear Title, and the Warranty Against Infringement.

Warranties can be disclaimed when the seller informs the buyer that he will not be responsible for any promises made about the good.  The Warranties of Merchantability, Fitness for a Particular Purpose, and Infringement can be disclaimed by using words like, “as is”.  The Warranty of Free and Clear Title can be disclaimed when the buyer has reason to know by the seller’s specific language or actions that the seller doesn’t have good title, and he’s only conveying as much as he has.

Warranties should be part of the contractual agreement, not in a separate document.  In most cases, the disclaimer must be in crystal clear writing, and conspicuously located in the contract.

Conclusion

Modifications, waivers and warranties are some important elements often found in a contract.

Business Law

Contract Basics

Tanille Royston

Imagine that you just opened your own business.  In walks your very first customer.  You offer him your product, and he accepts.  And just like that, you entered into your very first contract, a legal agreement between two or more parties.  In this article I will discuss the basics of a general contract. 

The Offer

There is so much to learn about the makeup of an agreement, but to keep it simple, I will discuss the bare essentials.  First, the parties, known as the offeror and offeree, must mutually agree to enter into a contract.  The offeror, who initiates the proposition, needs to provide an offer with definite or material terms, such as the name of the parties, price, service or quantity of goods and duration of the contract.  However, there are times when a court will provide reasonable terms to an agreement when they are absent.

The Acceptance

The offeror must communicate the offer to the offeree, as it can only be accepted by the party to whom it’s made.  Depending on the type of contract, the offeree accepts the offer by agreeing to it or showing his acceptance through his actions.  If the offeror prescribes a specific way to accept the proposition, then an offeree must act accordingly if he wishes to enter into an agreement.

The Consideration

In addition to an offer and acceptance, a contract must have consideration for validity.  There is no agreement without it.  Consideration is the bargain for exchange of something of value.  It doesn’t have to be money; promises, property, services or almost anything else will suffice.  The value of consideration can be big or small, as long as it has been bargained for. 

Conclusion

As a business owner you enter into contracts on a regular basis.  Although agreements are sometimes complex, the basics of a contract are an offer, acceptance and consideration.

Employment Law

Appealing an Unemployment Denial

Tanille Royston

Unemployment Process

Employers must pay unemployment taxes so that an eligible employee can temporarily collect monetary benefits while looking for work.  An applicant must file a claim for unemployment with the Texas Workforce Commission (“TWC”) to receive payment.  The TWC requires the individual to supply information, such as, the dates of his employment, the number of hours worked, and wage details.  Then, the TWC determines whether the applicant has met the eligibility requirements.  Some of the conditions are that the applicant earned a minimum amount of wages during a twelve month span or base period, he is actively seeking work and has been fully or partially unemployed for at least seven days straight.  

Employer’s Notice of Unemployment

The TWC sends a notice of the claim for unemployment to the employer.  The business or company may read the letter, and do nothing or it may provide the TWC with information that may adversely affect the claimant’s entitlement to unemployment.  For example, the employer may indicate that the former employee failed to work for the required amount of time or it terminated the individual due to misconduct.

Right to Appeal

The TWC will send both parties a Determination Notice.  If it decides that the claimant has no right to unemployment benefits, the claimant will have fourteen calendar days from the date of the letter to request a redetermination or an appeal.  There are various reasons for denying a request for unemployment payments.  The TWC may disallow it when the employer discharged the claimant from employment due to misconduct in relation to his last work or the former employee voluntarily left employment without good cause.

Appeal

If the claimant decides to file an appeal, the TWC will mail the Notice of Telephone Hearing Packet to the individual and the employer with the hearing date and time, issues for discussion, relevant information received regarding the claim, important statements found and other details.

During the appeal, the TWC hearing officer will review the issues that he will cover during the recorded proceeding.  Also, he will explain the process, and inform the claimant and employer that he will ask questions.  Both parties can make inquiries of the opposing party.  The claimant and employer may submit evidence and call witnesses as well.   During the end of the proceeding, the hearing officer will explain that he will provide a written determination to the appeal in around ten days.  The claimant or the employer may also appeal that decision.

Conclusion

Although a former employee may request unemployment benefits, the employer may provide information that may adversely affect the claimant’s right to payment.  The TWC may rely on the employer’s report, and deny unemployment benefits.  The former employee may appeal the determination.  If you need assistance handling an unemployment matter, please contact me.

Employment Law

Consider the ADA When Strategically Planning for the Return of your Employees

Tanille Royston

Background

In March, the World Health Organization declared the coronavirus disease 2019 (“COVID-19”) an international pandemic.  Around the world government officials ordered businesses and schools closed to prevent the spread of the virus.  In May, many American governors allowed some businesses in their states to open their doors in a limited capacity despite people steadily becoming infected with the disease.  Although some company owners have received the green light to get up and moving, they still need to develop a reopening plan to protect the health and safety of not only their clients and customers, but their employees too. 

When drafting a strategy for starting business again, owners may want to consider consulting with the Center for Disease Control (“CDC”), state and local health officials, Occupational Safety and Health Administration (“OSHA”) and other authorities.  Also, they may consider speaking with an employment attorney for a more thorough explanation on employers’ responsibilities in protecting the health and safety of their employees.

Americans with Disabilities Act of 1990

For the purpose of this article, I will focus on some of the requirements and standards of the Americans with Disabilities Act of 1990 (“ADA”) that employers may want to reflect on when drafting a return to work plan for their employees.  Title I of the ADA forbids private employers with fifteen employees or more, also called covered employees, from discriminating against a qualified person with a disability in employment matters, such as, hiring, compensation, promotion, training and other undertakings.  According to the ADA, a disability is described as a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of an impairment, or a person who is perceived by other people as having an impairment.

In most cases, the ADA prohibits covered employers from making disability related inquiries and requesting medical examinations of applicants and employees.  When the CDC determines that there is an influenza pandemic in the United States, the Equal Employment Opportunity Commission (“EEOC”) finds that a person who poses a direct threat, which is a great risk of substantial injury to the health and safety of others that cannot be eradicated or diminished by reasonable accommodation, can be subjected to a covered employer’s disability related queries and medical testing.  According to the EEOC, a person with COVID-19 or symptoms of it would cause a great risk of substantial harm to others if he were in the workplace at this time.

Strategic Plan 

Based on the “direct threat” argument, employers can establish several effective policies and procedures without worrying about violating employment laws.  First, they may ask if employees are experiencing coronavirus like symptoms.  Second, business owners can take employees’ temperatures to check for fever. Third, employers can send workers home if they start exhibiting coronavirus like symptoms.  Although these inquiries and examinations would normally violate the ADA, business owners can implement them as part of their strategic reopening plan to keep workers healthy and safe during the COVID-19 pandemic.   

Please contact Attorney Tanille Royston if you need any assistance in developing a comprehensive reopening strategy.