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Employment Law

Some internal complaints may qualify as whistle-blowing

07/02/2010
The Texas Whistleblower Act protects some employees who report violations of the law to “an appropriate law enforcement authority.” But does that include complaining up the employer’s chain of command? Sometimes.

Beware discussions concerning employee longevity

07/02/2010
Casual business conversations can come back to haunt you if some comments imply that you could save money without so many long-term employees.

Good news: Texas Supreme Court says no double claims for sexual harassment

07/02/2010

The Texas Supreme Court has issued a ruling in a closely watched sexual harassment case involving a woman who charged co-worker sexual harassment and common-law failure to supervise. The court said that because the underlying facts were the same for both claims, the woman could sue only for sexual harassment.

Looking for ‘creative’ ways to avoid overtime? Courts will look for ways to make you pay

07/02/2010

Before you are tempted to come up with clever ways to avoid paying overtime to employees, consider this: It’s usually easy for courts to see through such ruses. And after they discover shenanigans, courts usually reward the wronged employee with a bonus payment equal to the lost overtime wages—plus the employer has to pay the legal fees.

Opt-in to Texas workers’ comp to cut liability

07/02/2010

Good news if you’ve opted into the Texas workers’ compensation system and you sometimes rely on temporary staffing agencies to supply workers. If one of those workers gets hurt on your premises—and if you control crucial elements of the worker’s day, such as telling him when to work and take breaks, and supply tools or equipment—you may be saved from direct liability for the injury. Workers’ comp will cover the injury.

When good workers go bad: ‘Employee of year’ award doesn’t give immunity from firing

07/02/2010

Sometimes, for whatever reason, a seemingly great employee makes an awful decision that forces you to terminate her. The key: Be consistent. Letting bad behavior slide because the worker is a stellar performer can trigger a discrimination claim. The best way to show bias played no part in the decision: Document the employee’s unacceptable behavior.

When employee complains, you must investigate — but you can insist on a civilized complaint

07/01/2010

Sure, everyone knows that employees who make a good-faith complaint alleging some form of discrimination are protected from retaliation. But that doesn’t mean that no one can criticize the employee for making the complaint in a way that’s out of line. If he or she is discourteous, you can and should put an end to the disruptive behavior.

New worry: ‘Mob’ charges for hiring illegals

07/01/2010

The immigration law landscape keeps changing, and employers must keep up. Even employees who are in the United States illegally can sue you for unpaid overtime. Now you also have to be aware of another risk: Clever attorneys have begun filing RICO Act lawsuits, alleging that some employers are essentially running “mob” operations by knowingly hiring illegal immigrants.

Document rationale for all discipline to show it wasn’t a pretext for bias

06/29/2010

If you carefully document disciplinary actions and punish all employees fairly, courts will usually uphold your decisions. That’s because an employee who challenges the reason for her discharge has to show that the reason wasn’t legitimate—that, rather, the rationale was merely a pretext for some form of discrimination. And it takes more than just coincidence to do that.

Document any slippage in employee performance to insulate against later discrimination claims

06/29/2010
If you can show that the employee wasn’t living up to your legitimate expectations, her discrimination case will most likely be dismissed. Legitimate expectations—or adequate performance—aren’t measured just by performance evaluations. That’s especially true if the last performance evaluation occurred months earlier and performance has since changed.