Category: Employment Law

As many employers prepare to open their office doors after closing them for almost a year and half, many business executives and human resources managers are brainstorming ways on how to create a safe workplace for their employees in light of the COVID-19 pandemic.  Many leaders are contemplating initiating incentive programs to encourage their workers to get vaccinated and decrease the spread of COVID-19 in the workplace. 

Before employers start instituting incentives, they should determine if there are any legal issues that they should consider.  Under the American with Disabilities Act (ADA), it is illegal for most employers to discriminate against individuals who have disabilities.  Generally, it is unlawful for business owners to require medical examinations or make inquires as to whether a person has a disability or the nature of the disability, unless it is job related or based on a business necessity.  According to the United States Equal Employment Opportunity Commission (EEOC), an employer may offer its employees incentives to voluntarily show evidence that they’ve received the COVID-19 vaccination because requesting proof of a vaccination is not a disability related inquiry.

Employers may also want to consider Title II of the Genetic Information Nondiscrimination Act (GINA), which shields employees from discrimination based on genetic information.  Genetic information consists of data, evidence or facts about a person’s genetic tests or family medical history.  According to the EEOC, an employer does not run afoul of GINA by asking an employee for confirmation of the COVID-19 vaccination because it is not acquiring genetic or family medical history information. 

After employers consider all the legal implications of incentives, they should look at the workplace’s culture.  They should assess the company’s values and principles in selecting the type of incentive that will encourage their employees to get the COVID-19 vaccination.  For example, if the culture of a workplace celebrates a work life balance, a good way for a business owner to motivate his workers to get the two shots would be for him to give a day off.  If an employer knows that its employees value extra money on their paychecks, then he should give bonuses to individuals who get vaccinated.  

Although many employers are pushing to get their employees back into the workplace, they want to ensure that their facilities are safe.  Many business owners are contemplating implementing incentive programs to encourage their workers to get the COVID-19 vaccination.  Employers should consider the legal implications and the company’s culture when instituting incentives.

As the state governors roll out COVID-19 vaccinations, and people raise their sleeves to get life-saving sticks, many people look forward to returning to normal.  For some workers that includes walking in the doors of their place of employment.  Not so fast.  Many employers may require their employees to get the COVID-19 vaccination before their first day of work.  Without a doubt some workers will question whether they are legally obligated to oblige.

Workplace issues involving vaccinations are often governed by equal employment opportunity (“EEO”) laws, such as, the Americans with Disabilities Act (“ADA”).  According to the Equal Employment Opportunity Commission, “EEO laws do not interfere with or prevent employers from following CDC or other federal, state and local public health authorities’ guidelines and suggestions.” Thus, employment laws do not prohibit employers from requesting that their workforce get COVID-19 vaccinations as public health officials have recommended them as well.

The ADA supports an employer in its COVID-19 vaccination mandate.  The law prohibits discrimination against job applicants or employees based on disability.  Also, the ADA demands that employers give reasonable accommodations to applicants and employees with disabilities as long as they do not cause an undue hardship on the company or organization.  Under the law, the employer may refuse to hire a person, and it may terminate an employee when it has a reasonable belief that the individual poses a direct threat to the health or safety of himself or others. The employer may determine that an unvaccinated person will expose his co-workers to the virus; therefore, it may require that all employees get vaccinated.   

An employee may argue that he cannot receive the COVID-19 vaccination due to his disability.  However, the employer may still prohibit the worker from the workplace if there is no way that it can provide a reasonable accommodation, without undue hardship, to eliminate the risk that the employee poses as a direct threat.

An employee may claim that his religious belief or practice prohibits him from getting the COVID-19 vaccination.  However, the employer may still prevent him from accessing the workplace if providing a reasonable accommodation would cause an undue hardship. 

As the nation begins to return to normal, many employers will open their doors again.  They may also require their employees to get the COVID-19 vaccination before they begin working.  Many employment laws, such as the ADA, support the employer’s mandate. 

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.

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.

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.

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.

What is a Nondisclosure Agreement?

A nondisclosure agreement, also known as a confidentiality agreement, creates a contract between the party who discloses the private and sensitive information, and the people who must conceal it.  The disclosing party requires the receiving party to refrain from releasing or using the confidential information and/or trade secrets.  What is confidential information?  It’s any data that a party wants to keep secret, and puts effort into doing so.  What is a trade secret? It’s a practice, procedure, method, creation, design, pattern or formula that isn’t generally known to the public, and is usually concealed.

Who uses a Nondisclosure Agreement?

Generally, startup company owners looking for investors or potential business partners request them to sign a confidential agreement before they give them details regarding their products or services.  Many times the startup company owners fear that the investors or potential business partners may try to steal their ideas.   Also, entrepreneurs who need to discuss proprietary or sensitive matters with outside individuals may ask them to sign a confidentiality agreement.  Business owners who wish to hire employees may request them to sign nondisclosure agreements to ensure that their workers don’t leave with the business owners’ exclusive ideas or procedures.    

What are some of the Limitations of a Nondisclosure Agreement?

A nondisclosure agreement is effective when the receiving party has access to confidential information or trade secrets that he didn’t have prior knowledge of.  Additionally, a nondisclosure agreement usually doesn’t cover data that is publically known, such as a formula for glue or a common quilt pattern.  Although the confidentiality agreement may deter an individual from disclosing or using private and sensitive information, it doesn’t hinder a person’s right to engage in employment opportunities that require the use of general knowledge, skills or abilities.

What are the Obligations of the Receiving Party?

The receiving party has an obligation to keep the confidential information and trade secrets private.  It must have a good understanding of what the disclosing party considers clandestine.  Additionally, it has to safe guard confidential information and trade secrets, and keep them away from unauthorized people.  Also, the receiving party must ensure it doesn’t use them.  It can’t benefit from the secretive data, facts or figures, and get a business advantage or financial gain for itself.

Once upon a time, business owners hired employees over handshakes.  Nowadays employers are more sophisticated, and they use written documents.  Those inked instruments are usually referred to as offer letters.

An offer letter is a short, informal proposal of employment which sets forth the terms of the position, such as, job title, start date, salary, supervisor’s name, work duties, conditions of employment and employment relationship.  Employers usually give offer letters to lower to middle level employees.

Some small business owners use employment agreements, which contain much of the same information as offer letters.  However, they include a few more significant details.  They specify that employment is for a certain amount of time, the circumstances of termination from employment, severance pay, more in depth benefits and restrictive covenants.  Employers often give employment agreements to higher level employees, such as, executives and specialized professionals.

Small business owners should know the difference between offer letters and employment agreements, and when to use them.  Since offer letters specify that the employment relationship is at-will, meaning that the employer and employee both have the right to terminate employment for any reason or no reason, with or without advance notice, employers may want to give them to lower to middle level workers so that employers have the flexibility to dismiss them if they are not a good fit.  On the other hand, since employment agreements are for a fixed period of time and include more fringe benefits, small business owners may want to use them to attract higher level professionals who are in demand and harder to find.

A word of caution.  Whether an employer chooses to use an offer letter or employment agreement, it must be aware of the document’s contractual implications.  Many employees have successfully brought breach of contract claims against their employers for either stating or implying in the agreement that the employee would get a raise or promotion, and he later does not.

In conclusion, employers are free to choose offer letters or employment agreements when extending job offers to new hires.  However, they should analyze the circumstances to determine which is better, and make sure that they do not state or imply a promise that they will not later honor. 

New year, new issues. Wrong!  Employers will still face some of the same problems that they had in the past.  The Family Medical Leave Act (FMLA) provides many great benefits to working people and their family members; however, it is also a source of confusion and anxiety for many human resources departments and small business owners. 

Let’s start with the basics.  What is FMLA?  According to the Department of Labor, it entitles eligible employees of certain employers, including companies with fifty or more employees, to take up to twelve weeks of unpaid, job-protected leave in a twelve month period for any of the following reasons:

• the birth and care of a newborn child within one year of the child’s birth;
• the placement and care of a child for adoption or foster care;
• to care for the employee’s spouse, child, or parent who has a serious health condition; or
• when a serious health condition causes the employee to become unable to perform the essential functions of his job; or
• any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is on covered active duty.

An eligible employee who is a service member’s spouse, child, parent or next of kin (military caregiver) is eligible to twenty-six weeks of leave during a twelve month period to care for the covered service member with a serious injury or illness.

Intermittent Leave Frustrations

Some employers feel like FMLA is a burden on the company, but they view intermittent leave as even more troublesome.  When employees take leave, some employers believe that business will suffer due to the lack of “hands on deck”.  When employees take intermittent leave, employers may not know how many people will come to work on time or show up at all.  Also, when employees get to the workplace, they still have the ability to leave early due to their medical conditions.  An unpredictable workforce makes operating a business a big struggle.  

Some Relief

There is good news!  Employers have rights under FMLA too.  An employer may require employees to take FMLA for the birth, adoption or foster case placement of a child in increments of time up to twelve weeks rather than intermittently.  However, the employer has to allow its employees and their family members with serious health conditions to take intermittent leave when medically necessary. Thus, employers do not have to worry that every single employee will try to get sporadic leave, and come to work as they please, it is only available for those who really need it.

Additionally, it is a good idea that when an employee requests leave in order to care for himself or a family member, the employer require the employee to obtain a medical certification that includes the date the serious health condition started, the likely duration, and the relevant facts regarding the medical injury or illness, such as the treatment plan.  The employer should always require a certification so that it will have an idea of the times that the employee may be absent from work.    

Employers should inform their employees that they have to provide no less than a thirty day notice to their employer about the need for foreseeable leave.  Also, small business owners and companies should tell their workers that they have a duty to try to schedule medical appointments and treatments at times that cause the least disruption to the operations. These requirements can help the employer obtain a better understanding of the comings and goings of its workforce.    

Another helpful strategy for the employer is when an employee requests a foreseeable intermittent leave, it can require the employee to temporarily transfer to an available alternative job.  The worker must be qualified for the position, and it must contain the same pay and benefits. The alternative job should better accommodate the employee’s need of reoccurring leave than his original position. This strategy may help the employer better manage its employees when they work irregular hours.

Employers should not dread the pesky intermittent leave; they should make themselves aware of their rights under FMLA.

The news is full of stories about new businesses forming in Texas.  We hear of companies relocating from others places to the state as well. There are various reasons for them coming here. Some people say Texas is “business friendly” with low corporate taxes, a vast infrastructure and highly skilled workers.

Well, when the employees arrive at their new jobs, they may face a surprise.  Some employers will require their new hires to sign covenants not to compete or non-competition agreements.  The contracts prohibit departing employees from working in a competing business for a certain length of time within a certain geographical area. 

Purpose of a Covenant Not to Compete

Texas has a culture of promoting business and competition.  Generally, it does not restrain business mobility; however, the covenant not to compete is an exception.  Still, in order for courts to enforce a covenant not to compete it has to meet strict requirements.

A Valid Covenant Not to Compete

Section 15.50(a) of the Texas Business & Commerce Code contends “a covenant not to compete is enforceable if it is ancillary to or part of an otherwise enforceable agreement at the time the agreement is made to the extent that it contains limitations as to time, geographical area, and scope of activity to be restrained that are reasonable and do not impose a greater restraint than is necessary to protect the goodwill or other business interest of the promise.”  (Covenants not to compete in the medical field are covered under different standards).

Reasons for Having a Covenant Not to Compete

Some employers want their employees to sign non-competition agreements for the following reasons:

1. They wish to guard their clients’ names and information.
2. They want to safeguard proprietary training methods.
3. They desire to protect confidential trade secrets.

Although Texas is a great state for the free movement of business and competition, a covenant not to compete protects employers from their employees leaving and using confidential information to compete against them.

This is a very brief introduction to covenants not to compete. If you need assistance with drafting a covenant not to compete or negotiating the terms of one, please contact me for further information.