Update: Department of Labor Issues New Rule on Overtime Pay

The Department of Labor issued a final rule in September of 2019 that could allow an additional 1.3 million more American workers to become eligible to receive overtime pay. This new rule becomes effective on January 1, 2020.

One key focus of the new rule is to update the earning thresholds that exempt certain professional, executive and administrative employees from the FLSA (Fair Labor Standards Act) minimum wage and overtime pay guidelines. The new rule is also designed to allow employers to count portions of some bonuses and commissions toward meeting the required salary level.

These adjustments are being made to recognize the increase in employee earnings that have occurred since these salary thresholds were last reviewed in 2004.

Earning levels and other specific issues addressed by the new DOL rule

  • Changes are being made to the “standard salary level.” At present, the enforced earning level is $455 per week – and that’s being raised to $684 per week (or $35,568 for an entire year);
  • There’s an increase in the total annual compensation requirements for workers categorized as “highly compensated employees.” The current enforced level of $100,000 a year is now being raised to $107,432 annually;
  • Employers can now count nondiscretionary incentive payments, bonuses and commissions paid at least once annually. These sums can now be added to help satisfy as much as 10% of what’s now known as the standard salary level – recognizing how pay practices are evolving;
  • Salary levels have now been revised for specific groups of workers. These include people who labor in U. S. territories – or individuals employed by the motion picture industry.

Some of the many earlier overtime pay guidelines that still apply

  • Unlimited overtime hours.  The FLSA (Fair Labor Standards Act) still allows exempt employees age 16 and older to work an unlimited number of overtime hours during any one workweek;
  • Timely payment of overtime. Employers must pay for all hours worked, including overtime, on each regular pay day;
  • When overtime pay is required. Once a non-exempt worker has put in at least 40 hours during any one calendar workweek (which can begin on any day of the week), the overtime pay rate applies.

If you have any questions about how the new DOL overtime pay rule may affect your workforce, please give one of our Murray Lobb attorneys a call. We’re also available to provide legal advice on many other important topics – and can draft any contracts or other documents you may need.

Properly Handling Background Record Checks of Potential Employees

All companies must proceed cautiously while trying to create safe, productive and pleasant work environments. The best approach is to develop standard procedures for running background checks and investigations for all applicants who will be handling similar tasks — without regard to any discriminatory traits or characteristics.

First and foremost, you must obtain each job applicant’s written permission to run checks on their job and educational records, criminal background history and financial credit status. Should any of the information you obtain make you no longer wish to consider a specific job applicant, you must inform that person about each report’s negative findings – since all potential employees have the right to refute and correct such data.

Always be sure to also treat all applicants with equal respect and remind them that you’re simply trying to learn all you can about your top applicants. And be sure to state in writing that providing false information can cause individuals to be immediately dropped from further consideration – or be fired in the future when such misinformation is discovered.

Here’s additional information about the types of errors that can appear in background checks, how you might allow job candidates to respond to negative findings — and tips on exercising special caution when sensitive data appears on either sex offender registries or terror watch lists.

Types of negative information & errors that may be uncovered during background checks

Hopefully, most of your searches will just reveal that your applicants have provided their correct names, full address histories, all job information for recent years, accurate Social Security numbers and other basic data. However, chances are that at least some of your potential employees will need to explain about one or more of the following findings.

  • Past arrests or conviction records. Always pay close attention to the types of behavior or crimes involved, when the events occurred and how (if true) that history might affect your work environment. If you still wish to hire a person with some type of negative arrest or conviction, remember that you have a legal duty to create a safe work environment for all your employees. Also, bear in mind that future claims of negligent hiring could prove very costly to your company.
  • Fraudulent or grossly misleading information about the applicant’s academic background or work history. As noted above, make sure that all your application forms clearly indicate that providing false information on such forms (or on a resume) can be immediate grounds for dismissing an applicant from further consideration. Should you believe that any applicant may have simply made a typographical or innocent error on the forms, always allow the person to provide corrected information. Just be sure to respond to the discovery of such false information in the same manner for every applicant;
  • Misleading or inaccurate driving record information. If you’re hiring someone to deliver packages or goods for you – or drive others around on your company’s behalf, you better make sure they have an excellent driving record.
  • A very poor credit score, a bankruptcy or other signs of major financial problems. Always be sensitive and careful when asking applicants to explain this type of information;
  • The person’s name turns up on a sex offender registry or a terrorist watch list. Given the number of people who are burdened with very common names, always reveal what you’ve learned to the individual in a calm manner, preferably with at least one other human resources staff member present. If you still want to hire a person whose name was on one of these lists, always first speak with your Houston employment law attorney.

Your lawyer can tell you how you should go about carefully determining a person’s correct identity and if it’s too risky to hire someone. It may even be necessary to contact the Department of Homeland Security if the person is listed on a terrorist watch list. (Do keep in mind that even the government knows that it can be very time-consuming to remove a name wrongfully added to a terrorist watch list);

It’s crucial to maintain a standard of fairness that applies to all applicants

Be sure your company’s hiring policies provide specific time limits on when applicants must provide you with corrected information after background checks turn up negative or disturbing information. Always apply that same standard to all applicants. If someone needs more time, you should only allow a one-time extension that applies equally to others.

How long must you keep all job application forms and background check information?

The EEOC (Equal Opportunity Commission), the Department of Labor and the FTC (Federal Trade Commission) each provide slightly different guidelines on how long certain records should be kept. Overall, it’s a good idea to keep a copy of all application materials and background information for about two years. Of course, if any job applicant or employee files a lawsuit against your company, that person’s records should be kept until all legal proceedings and appeals have come to an end.

Make sure all employee records are stored in a restricted area where only one or two senior human resource officials have access to them. Once it’s time to destroy the records, it’s wise to carefully shred, burn or pulverize the data so that the material can no longer be read.

Of course, some employers keep all resumes and job application forms in case they later have problems with an employee — or come across information that indicates that the background check failed to disclose fraudulent claims were contained in those documents. Some firms just scan all such data into secure databases.

Since credit background checks are governed by the Fair Credit Reporting Act (FCRA), be sure you understand the terms of that legislation and how it impacts your specific workplace. Also, always keep in mind that the State of Texas also has laws and regulations that can impact how your company handles background checks and employee records. It’s always wise to periodically touch base with your lawyer to find out if any of these laws have recently changed.

Please feel free to contact one of our Murray Lobb attorneys so we can provide you with the legal guidance you may need while hiring employees or simply running your business. We can also provide you with any contracts you may need — or review the contents of your current employee handbook.

The SBA Suggests 10 Key Steps for Starting a New Business

Once you’ve decided to start a new business, it can be tempting to simply moved forward with various tasks as they come to mind. While this may work for a few entrepreneurs, it’s always best to create an organized plan of action so you won’t waste time and cause problems for yourself that could easily have been avoided.

Fortunately, the SBA (Small Business Administration) provides excellent online materials that can help you plan the most useful way to start a new company – or expand the current reach of an existing one. Here’s a brief review of the ten important tasks that should normally be addressed first as you launch a new business.

The key steps for creating a solid foundation for your new business

  1. Decide where to locate your company. Prior to starting any market research, you’ll need to look at several cities to decide upon the best location for your business. This decision must be partly based on if you’ll be selling goods and services to your customers from a brick-and-mortar storefront or office – or if you’ll just be contacting potential customers on the phone or over the Internet. Be sure to select a location where many well-qualified job applicants live – as well as a city and state with reasonable business taxes;
  1. Develop a reliable market research plan. Once you’re certain about the goods or services your new business will sell, you must conduct market research to verify that there’s a definite need for what you’ll be selling in a specific location. This activity also involves identifying your potential customers and all known competitors; 
  2. Create a viable business plan. Most people starting a new business choose between a traditional business plan or a lean one for a basic start-up company. If you need to borrow money to finance your company, you’ll almost certainly have to provide a lender with a traditional business plan.

The traditional plan is normally very comprehensive – it describes your specific goods and services, provides a mission statement about what you seek to accomplish in the long run and names the initial team of professionals who will be running the company. It also states where the business will be located and how many employees you’ll need to hire. A traditional business plan should also describe the business structure you’ll be using, who will be handling specific tasks – and it should review your market analysis. Initial financial projections or earnings for the company should also be included.

In contrast, a lean start-up business plan may simply describe your goods and services, provide a statement about who will be running the company and state who you believe will be your most likely customers. It should also contain information about how you’ll initially finance the company and where it will be located;

  1. Make sure you have enough initial funding for the company. You and your business partners or advisors must determine how much money you’ll need to start your business. If you cannot raise this money among your business partners, then may have to try and obtain funds from venture capitalists or request a small business loan from a bank or through SBA resources. Other options include raising capital through crowdfunding or other online resources;
  2. Select the best business structure for your company. While many people run sole proprietorships if they’ll be handling all of the major company tasks themselves, others choose between forming such structures as partnerships, limited liability companies (LLCs) — or some type of corporation or cooperative;
  3. Decide upon the best name for your company. It’s a good idea to brainstorm with your partners or investors since you want to try and choose a name that clearly reflects the nature or “brand” of your business – as well as its spirit. Be aware that one of your first tasks will be to make sure the name you select is original and that it’s not already being used by anyone else;
  1. Be sure to register and protect your business name. After you’ve chosen the best name for your company, you’ll need to take steps to protect that name by properly registering it. Keep in mind that you may also need to register any trademark you’ll be using. Since additional ways of protecting your company name may also be required, you should always discuss this topic with your Houston business law attorney;
  2. You must request state and federal tax IDs. You will need to obtain an EIN (employer identification number) for many reasons. For example, you must have an EIN to open a bank account for your company and to pay taxes (among other tasks). Depending on the different states where your company will be operating, you may also need to obtain one or more state tax IDs;
  3. Obtain all required licenses and permits. Your specific type of business activity and where you’ll be working will determine the types of permits and licenses you must obtain, if any;
  4. Be sure to open one or more business accounts for your company. These most often include checking and savings accounts, credit card accounts and a merchant services account. Depending on the nature of your business and its initial size, you may be able to simply start with a checking account and then open other accounts as the need arises.

Please feel free to contact one of our Murray Lobb attorneys for legal advice as you address any or all of the various steps named above while starting a new business. We’ve had the opportunity to help many clients establish a wide variety of successful businesses in the past and are prepared to provide you will all the guidance you may need.

Designating a Guardian for Your Children in a Will

If you’re a parent with children who haven’t yet reached the age of majority, you need to create a Will that designates a guardian to step in and look after them if you suddenly pass away. If you fail to provide for your kids in this manner, a court will usually appoint someone to serve in this role – especially if your former spouse is deceased or incapable of handling this responsibility.

A list of traits and abilities a responsible guardian should have are set forth below. If your children have entered their teens at the time when no parent remains alive to care for them, the courts will normally consider their preferences for a guardian at that time.

What are some key considerations when choosing a guardian for your children?

  • It’s often best to choose someone already known to your kid(s) or who has a definite gift for caregiving. This might be one of your parents, a sibling or a very close and trusted friend. Always be sure to obtain this person’s advance permission to name him (or her) in your Will before doing so. If you prefer, you can also designate a married couple as co-guardians;
  • If possible, try to choose a person who already lives in the same city as you — or who is willing to relocate there in the future. It can be very comforting to children if they’re allowed to remain in their same school district. If you can’t find someone who lives nearby, be aware that it may prove a bit expensive for an out-of-state guardian to handle legal matters for the children in a different state. Choosing a local guardian can prevent this type of problem;
  • Give serious thought to choosing a guardian who will fully support your faith beliefs and core ethical values. It’s always best to appoint a person who’s eager to help your children grow up in the faith community you prefer – and who will daily enforce the moral teachings you treasure most;
  • Think about the financial responsibilities involved. Hopefully, you’ll have provided well for your children’s future with life insurance and other funds prior to your death. However, regardless of how much money you’ve put in an account for your kids, you’ll need a guardian who can responsibly handle money. If you do not know of anyone with strong financial skills, you can still choose a person to serve as the caregiving guardian – and designate a different individual to manage the children’s financial resources;
  • What should you do if you do not want your estranged spouse to become the guardian after you pass away? Your Houston estate planning attorney may advise you to write and sign a letter documenting your reasons – and to attach relevant police reports or court documents to the letter. You can then give that letter to your named guardian so that it can be presented to the court after you’ve passed away;
  • How should you proceed if you have children living with you from different marriages? It may be necessary to name more than one guardian for the children. Your main goal should be to keep as many of the kids together as possible. However, you must be realistic about how many children your named guardian can handle;
  • Give some thought to the age of the person you’d like to name. If your parent or another desired guardian is still in good health, you may decide to go ahead and name that person now and simply revisit your decision within the next five years (or when that guardian’s health suddenly declines.) If you are naming a much older person as guardian, be sure to also name a secondary guardian who is willing to step in if the first one cannot serve in this capacity after you pass away. In fact, it’s always a good idea to have a back-up guardian named in your Will;
  • Remember to name every child you want to be cared for by your guardian. It’s never wise to think that a court will assume that all your kids are covered if you only name one or two. Also, extended family members might step in and try to contest your choice if every child isn’t named individually.

Before finalizing any Will that designates one or more guardians, be sure to discuss your choices with your older children. Also, make sure each named guardian is truly interested in helping you by taking on such a demanding assignment.

Please feel free to contact one of our Murray Lobb attorneys so we can prepare a Will that designates a guardian for your children. We’ll be happy to answer any additional questions you may have about this critical task. Most parents gain a greater sense of peace once they’ve legally provided for these important caregiving needs for their children.

Handling Your Adult Child’s Estate in Texas

Losing a child of any age remains one of life’s most difficult challenges. When that child is an adult, you may often need legal advice on how to manage any estate left behind, even if it’s rather limited. Now that so many Americans are living well into their 70s and 80s, the chances of losing an adult child are growing.

One study found that 11.5 percent of people age 50 or older have lost at least one adult child. That likelihood of loss is even higher for African Americans – 16.7 percent of them have lost an adult child. Furthermore, the older you get, the sense of loss can be even harder to cope with since adult children are often the closest caregivers of their aging parents.

Here’s a look at some of the legal questions you’ll need to address after losing an adult child.

Issues Surviving Parents May Need to Face After an Adult Child Passes Away:

  • Did your son or daughter live with and leave behind a spouse or partner? If so, calmly reach out to that person to find out if there’s a Will naming the personal representative of the estate. If your child didn’t have a Will or named someone else as the executor of their Will, you’ll need to interact very sensitively with that person. When you contact your Houston estate planning lawyer, be prepared to indicate your adult child’s marital status at the time of death;
  • Did your adult child have any children? It’s important to stay on good terms with your loved one’s surviving spouse or partner since visitation rights and overall family harmony may depend upon your relationship with that person. (Note: If the surviving spouse or partner has any major substance abuse problems, be sure to share that information with your lawyer. We can explain pertinent child custody and adoption laws, if necessary);
  • Did your son or daughter own considerable land or personal property? Your attorney can help you try to prevent anyone from giving away or disposing of such property before the estate can be probated – or passed on according to your adult child’s estate plan. If you’ve been named the personal representative, obtain a copy of the Will as soon as possible. If no one is living in your adult child’s former house or apartment, be sure someone visits soon to look for pets needing immediate care, valuables that must be secured and vehicles that must be locked and placed in a garage;
  • Contacting your adult child’s employer. If you were named as your adult child’s personal representative, you’ll soon need to contact that employer to find out what employee assets may still be held in a 401k or other account. Likewise, you’ll want to find out if any other benefits are still owing to your child – and if s/he held any type of insurance policy through the employer;
  • What should you do about burial, cremation and related issues? Always try to honor the instructions in your deceased child’s Will or other legal documents. If you can’t find a Will, then work with any surviving spouse/partner and other family members to handle this matter in keeping with your family’s faith practices or general traditions;
  • Do you know what to expect under Texas law if your adult child died intestate – without a Will or some other type of estate plan?  Your Houston estate planning attorney can explain how Texas courts address this type of situation. We can also inform you about how estates are handled by probate courts and how you should manage other tasks that are often required after losing an adult child.

Please know that since our firm has worked with many clients grieving over the loss of loved ones. We’ll provide our legal advice in the most caring manner possible. When you contact one of our Murray Lobb attorneys, we’ll be ready to provide you with simple steps to take so you can concentrate on obtaining comfort from family and friends.

What Types of Deceptive Trade Practices Are Forbidden in Texas?

Too many Texas consumers regularly lose money on purchases due to misleading advertising and fraudulent business practices. When those events occur – especially when large sums of money are involved – it’s often necessary to contact the Consumer Protection Division of the Texas Attorney General’s Office. That division is charged with enforcing the Texas Deceptive Trade Practices Act (DTPA) that’s set forth in the Texas Business and Commerce Code.

A Consumer Protective Division lawyer must then investigate the consumer complaint and decide if any legal remedy like an injunction must be pursued. The wronged consumer should also consider hiring a Houston business law attorney to file a lawsuit seeking Texas DTPA damages from the merchant or company that allegedly violated the DTPA.

Here’s a brief look at those who may want to file these types of complaints and lawsuits, followed by a review of some of the commonly alleged DTPA violations — and the basic types of civil damages available to plaintiffs who win these kinds of cases.

The general categories of plaintiffs under the Texas Deceptive Trade Practices Act

  • The average, individual consumer buying property or goods. When buying a home, a car, indoor furnishings or other personal property, a consumer has the right to complete such transactions without being fraudulently manipulated by false advertising or other schemes that cause the loss of hard-earned money;
  • Those seeking repairs (or other types of service) work. Consumers must be quoted fair and accurate rates. They must also be provided with correct information about the training and experience of those who will be performing the requested services;
  • Individuals or companies seeking to close expensive business transactions, within certain established financial limitations. For example, a person or company seeking to buy a business franchise worth three hundred thousand dollars will usually be covered. However, the Texas DTPA is not intended to cover any business consumer with assets worth more than $25 million or more – or a business entity with $25 million (or more) in assets that’s controlled or owned by another business or corporation that has assets valued at or above $25 million.

Types of complaints and claims often brought under the Texas DTPA

Since highly diverse claims are covered by this statute, the following list only provides a general sampling of the complaints often alleged by consumers.

  • Being sold goods or services that were not actually made by the company that claimed to have created or provided them. In other words, the seller tried to mislead the buyer as to the true maker or provider of what was being sold;
  • Buyers were intentionally misled as to where certain goods or services originated. It’s against the law to sell goods claiming they were grown or made in a specific country when the seller knew that wasn’t true. Likewise, you cannot advertise that certain services will be provided by employees or contractors from one city or region who will be coming from another location;
  • Advertising goods or services as having the approval or sponsorship of specific individuals or groups when that’s a fraudulent claim. For example, you cannot sell certain medical devices and claim they’re backed by the American Medical Association (or a local medical group) when that’s untrue. Likewise, there can be no attempt to claim that the seller had direct ties to another specific company or government entity when that’s a fraudulent misrepresentation;
  • Selling goods or services and saying that they meet certain objective standards (or are made of specific types of materials) when that’s an intentional misrepresentation. For example, a company cannot claim that a couch was made of leather when it knew it was made of Naugahyde. Likewise, a company cannot claim all service personnel have earned specific licensing credentials – or are bonded – when it knows that’s false information;
  • Making purposeful “bait-and switch” sales. It’s a deceptive trade practice to run a print ad (or an online or televised commercial) that states that a store is selling a specific brand of products – or providing a certain grade of service by specially trained personnel – when the seller knows those facts to be false. Likewise, a company cannot claim that highly experienced contractors with over 10 years of experience are being sent to someone’s home to repair a major roof leak – when the actual workers have very little experience handling such tasks;
  • Misleading the buying public as to why certain goods are being sold at a major discount. For example, a merchant cannot claim that an accidental, large shipment of goods came in and they must now be sold at a greatly reduced price – when that merchant is really trying to unload damaged goods on unsuspecting buyers;
  • Selling a car, truck or other vehicle after rolling back the odometer. When a seller has any reason to believe that someone has reset or rolled back an odometer – or has personally done so because that part stopped recording mileage – all such facts must be fully disclosed to each potential buyer;
  • Taking advantage of the buying public after a natural disaster has been formally declared by the state’s governor. The DTPA does not allow anyone to sell goods at excessive or unfair prices, especially after a natural disaster like a flood. Therefore, no store can charge inflated prices for necessities like water, food, fuel, flashlights, batteries or medicine.

While this list isn’t comprehensive, it should provide a clear idea of the types of fraud and misrepresentation that can cause lawyers with the Texas Attorney General’s Consumer Protection Division – and individual consumers — to pursue through DTPA litigation.

Penalties or damages that can be sought for Texas DTPA violations 

As your personal lawyer will tell you, the Texas Attorney General’s public remedies may include different types of injunctions, restraining orders and penalties. Should you file a private lawsuit, the penalties awarded to you can be influenced by whether the wrongful conduct was knowingly committed. When a violation of the DTPA was “knowingly” committed, penalties are sometimes awarded at the level of three times the sum awarded for the economic damages.

If you believe your consumer rights under the Texas DTPA have been violated, you should contact one of our Murray Lobb attorneys. We can provide you with the timely advice you’ll need while we help you decide whether to file a DTPA lawsuit on your behalf.

EEOC Guidelines: Training Employees About Workplace Discrimination

To create and maintain a professional work environment, employers must make sure everyone interacts in a respectful manner. The best way to promote respect is to provide proper employee training that carefully defines discriminatory behavior and clearly states what won’t be tolerated.

Newly hired employees should always be trained, even if this must be done individually. They must learn how to recognize forbidden forms of discrimination. Periodic retraining on sexual harassment and other common forms of discrimination should also be mandatory. If you don’t already have a hard copy or online employee handbook that clearly sets forth your workplace standards on discrimination, you can ask your Houston employment law attorney to help you draft one.

Here’s a review of the types of workplace discrimination and harassment that should be clearly forbidden in writing and during oral training sessions. After presenting information on these topics to all your employees, it’s best to also provide a bit more in-depth training to your supervisors and managers who will need to handle the discipline, complaints and investigations usually involved with reported acts of alleged discrimination.

What types of workplace discrimination are most common today?

  • Treating others differently due to their race, skin color, ethnic background or country of natural origin. No job applicant or employee should ever be treated unfairly due to any of these facts or traits. When investigating this type of claim, you may need to privately admonish and inform the wrongdoer that such behavior is legally forbidden and can lead to dismissal. (In egregious cases, immediate firing may be required.) Employers should keep detailed notes about all such complaints and formal reprimands. It’s wise to always have disciplined employees sign and date forms indicating that they’ve been warned that additional acts of discrimination may lead to dismissal. All employee files and complaints must be kept safely locked up and only accessed by a few managers;
  • Discrimination based upon a person’s sex including sexual harassment or current pregnancy status. All workers must learn to respect their coworkers, regardless of another employee’s sex. Stay open to questions and provide answers that are clearly supported by your company’s anti-discrimination policies;
  • Disability status. Regardless of whether someone was born with a physical disability or acquired one later in life, every effort must be made to help that person handle his/her job, unless doing so would place an undue burden on the employer. (Requests may often involve making facilities more accessible or changing an employee’s work schedule so it will interfere less with a medical disability);
  • Age. When workers are young, it’s hard for them to believe that age discrimination is real. However, as they grow older, they’ll start noticing how the most desirable promotions are often given to younger staff members – and not to older workers. And older workers often find themselves in the groups being laid off when a company claims it’s going through hard times. This type of discrimination is often self-defeating since older workers often: (1) have excellent problem-solving skills due to all their experience, (2) usually enjoy learning new skills and helping to train newcomers – and (3) often have the lowest rates of absenteeism due to their dedication to their employers;
  • Religion. Sadly, although most American adults know that one main reason this country was founded was to extend religious freedom to all citizens, too many people today treat coworkers with disrespect when they appear to follow faith practices different than their own;
  • Discrimination related to an employee’s genetic information (or family medical history). Both state and federal laws forbid this type of discrimination. One of the federal laws is named the Genetic Information Non-Discrimination Act (GINA). Title II of GINA specifically prohibits workplace discrimination based upon an employee’s genetic information. Employers must exercise great care when hiring the employees who must handle all company medical insurance and claim forms. These workers must understand that any knowledge they accidentally gain about an employee’s medical condition(s) or family history must be held in the strictest confidence.

Special training for company managers and supervisors

An additional, separate training should be periodically presented to these employees to be sure they fully understand how to handle every discrimination complaint they receive. After all, they will be playing a key role in investigating these complaints and making sure they handle their responsibilities in strict compliance with all state and federal laws.

Be sure that these higher-level employees have made the complaint process both easy and transparent for workers. It’s their job to remind employees that they will not be punished for coming forward with claims – or acting as witnesses for those who are filing claims.

In your special training program for these workers, be sure to also address the following topics.

  • Managers must understand that detailed, investigative notes must be kept. When an employee files a complaint based on alleged acts of discrimination or harassment, you need to obtain information about each time such acts were committed and get the names of all possible witnesses. Dates and times are crucial bits of information. If more than one person was involved in the illegal behavior, be sure to write down all names – and speak with each of these individuals separately;
  • All managers and supervisors need clear definitions of what can constitute a “reasonable accommodation” for a disabled employee. It’s a good idea to review the content of your training with your attorney prior to making this type of presentation;
  • Retaliation. Inform higher-level employees that all forms of retaliation for reporting alleged acts of discrimination or harassment are strictly forbidden – and can result in liability for those involved;
  • Acceptable religious attire, hairstyles and practices. Explain to your managers what type of religious clothing is fully acceptable in the workplace. You should also tell them which hair or beard styles should be allowed, based upon an employee’s stated religious beliefs. When possible, managers should try to accommodate time off from work to attend special worship services – if doing so won’t cause an undue burden on co-workers or the company;
  • Sexual harassment. Supervisors and managers must be fully acquainted with all the types of language and behavior that can constitute sexual harassment. Remind them that offensive cartoons or signs related to sex should never be posted or circulated at work;
  • Privacy is crucial to all investigations. Remind all of those involved with investigating any claims of discrimination or harassment that they must never share any information they gain with non-investigative employees – or anyone outside of the company – since confidentiality is critical for everyone.

Please feel free to contact one of our Murray Lobb attorneys if you have any questions about how you’ve drafted portions of your employee handbook, especially sections addressing discrimination and sexual harassment. We can provide you with useful advice and are always available to help should an employee file a claim with you or the EEOC alleging any form of workplace discrimination.

Key Provisions of the FLSA Most Businesses Must Uphold

The Fair Labor Standards Act (FLSA) is a federal law governing such employee issues as the minimum wage, overtime pay, child labor restrictions and record-keeping practices. It’s the duty of the Wage and Hour Division of the Department of Labor to administer this law.

The FLSA benefits exempt and nonexempt employees somewhat differently. For example, exempt employees do not have a federally guaranteed right to overtime pay — and minimum wage provisions usually don’t apply to them. Company executives and “outside sales” employees are among those who often hold exempt positions. Human resource personnel must fully understand the different rights that apply to these distinct classifications.

Here’s some additional information on jobs not usually covered by overtime pay, the wages owed to nonexempt employees, laws designed to safeguard children and basic ways that the DOL enforces violations of the Fair Labor Standards Act.

Workers or specific professions often exempt from overtime pay

  • Railroad and air carrier employees
  • Taxi drivers and some motor carrier workers
  • Those employed on American vessels at sea
  • Local delivery workers who are compensated under specific rate plans
  • News editors, announcers and chief engineers working for non-broadcasting stations
  • Farmworkers

Basic nonexempt employee wage rights

The current minimum wage in Texas is $7.25 an hour. However, waitstaff and other employees are governed by unique standards that are supposed to bring them up near (or equal to) the minimum wage. In addition to the wage rights set forth under the FLSA, state and municipal laws often provide somewhat higher minimum wages to nonexempt employees. Your Houston employment law attorney can update you on any recent changes in Texas law on this point.

Another important wage guarantee provided by the FLSA involves overtime pay. Nonexempt employees who work over 40 hours per week must be paid one and one-half times their regular pay rate for additional hours. Therefore, if a nonexempt employee normally earns $12 an hour – and is asked to work five extra hours one week – that employee must be paid $18 an hour for each of the additional five hours (in addition to the regular rate of pay for the 40 hours).

In some states, there are laws limiting how many hours a day a worker can be on duty. All employers must make sure they honor such provisions.

Federal job protections designed to benefit children

In most workplace settings, children must be age 16 or older to hold down a job – although they must be at least 18 years old to drive a motor vehicle for an employer – or to work in mining. However, exceptions have been made so that the FLSA does not apply to child actors, kids delivering newspapers or those making simple crafts at home.

Unfortunately, few restrictions protect children who’ve been hired as farm labor. Once a waiver has been obtained from the Department of Labor (DOL), a child as young as 10 or 11 can be hired to help with hand harvest labor.

There is also a “youth minimum wage” that applies to children (age 20 and younger) that’s equal to $4.25 an hour; it can be paid for 90 consecutive days of work. This makes summer jobs for teenagers easier to come by – although the pay isn’t very high. However, employers cannot displace any older workers receiving the standard minimum wage to simply save money by hiring teenagers at that lower pay rate.

The DOL’s Wage and Hour Division is charged with enforcing the FLSA

A complaint can be filed against businesses that violate any FLSA employee rights. While willful violations can be prosecuted in a criminal court, less serious or unintentional mishandling of FLSA duties may only result in civil liability. For example, if your office hires employees below the age of 16, you might be required to pay a fine of up to $1,000 for each underage young person on your payroll. A civil court might also impose specific changes in the way you handle certain hiring and record-keeping practices to prevent similar mistakes in the future.

Should the Wage and Hour Division decide that your company has failed to fully pay all that’s owed to specific workers, it can file suit against you to recover the unpaid sums of money — or obtain an injunction that will forbid any further violations of the FLSA.

If you’re uncertain whether your office is in full compliance with all FLSA regulations and all relevant Texas employment law statutes — please feel free to contact one of our Murray Lobb attorneys. We can help you review all your current practices involving the payment of a minimum wage, proper classification of all workers, the handling of overtime assignments and any other duties covered by the FLSA. A periodic review of all these workplace standards can help your business avoid any fines or lawsuits.

Always Interact Carefully with Workers on FMLA Leave

For over 20 years, the Family Medical Leave Act has helped millions of qualified employees take time off from their jobs to address serious family or personal medical issues. While it’s important to provide critical job security at such times, employers still retain the right to make important business decisions – even when FMLA rights are being lawfully exercised.

Some of the most challenging administrative issues that come up with the FMLA involve disabled employees who are covered by ADA provisions — and those who have filed worker’s compensation claims. Yet any employee’s situation can prove problematic – especially when the person has used all the FMLA time allowed – and is now requesting even more time off due to continuing medical problems.

What follows is a brief overview of an employer’s responsibility to rehire employees on FMLA leave and events that might justify firing or laying off an employee on this type of leave. The article concludes with a look at how you should respond when an employee requests additional time off after using the full 12 weeks allowed under the FMLA in a calendar year.

Must you always allow employees on FMLA leave to return to their previous positions?

The FMLA requires employers to allow workers to return to their former positions (or jobs similar in duties and pay) upon exhausting all available leave time. If a business or office covered by the FMLA fails to do this, the employee asking to return can sue for sizeable damages. However, this employee right isn’t absolute — for reasons referenced below.

What if your office had already planned to lay off everyone in the absent employee’s unit?

Employees seeking to return from FMLA leave do not have any rights that are greater than what they would have had if they had not taken leave time. In other words, if your company had already been planning to lay off everyone in the same unit as the employee who is now on leave and asking to come back – that person doesn’t have an absolute right to return.

However, you should still move forward cautiously with laying off this individual, especially if your office had not already fully documented the impending layoff. It’s always best to first consult with your Houston employment law attorney before terminating any employee away on FMLA leave — or who has been absent due to any other medically-related issue.

What if you became aware of misconduct when an employee is away on FMLA leave?

If you have learned since the absent employee’s leave started that s/he committed some type of prior fraud or malfeasance against your company, you can terminate the employee for cause. Of course, you must have very clear proof of the fraud (or gross misconduct) before terminating the employee. In many instances, you’ll probably need to meet with the employee before letting them go so they can respond to the evidence you’ve uncovered.

It’s also possible that an employee might commit some type of fraud against your company while on FMLA leave. For example, the employee might fraudulently use company-issued credit cards for personal gain without permission — or share proprietary business information with a competitor. It’s always wise to ask your attorney to evaluate the grounds for termination before terminating any employee.

What should you do when an employee asks for more than 12 weeks of FMLA leave?

While the Family Medical Leave Act does not guarantee any qualified worker more than 12 weeks of time off during any 12-month period, you should never try to immediately fire someone who claims to be too ill to return. For example, when a disabled employee has taken the full amount of time off to address medical problems under the FMLA, you may have an obligation to provide that person with additional time off – if doing so might lawfully be considered a “reasonable accommodation” under the ADA. However, no employee is entitled to unlimited leave.

Likewise, an employee who has already filed a worker’s compensation claim may still be too injured to return. Always consult with your lawyer before trying to fire these employees – since state worker’s compensation laws and ADA provisions may dictate your next steps. Should any employee simply take additional leave beyond 12 weeks without discussing their needs with you, such behavior could subject them to termination. Employers are always entitled to ask how long a leave is being requested.

While the potential problems tied to administering the FMLA are almost limitless, the discussion provided above should provide you with some useful guidance.

If you need advice on properly administering the FMLA or interacting with employees who have requested any type of leave, please feel free to contact one of our Murray Lobb attorneys. We’ve been providing this type of legal advice for many years and can help you respond fairly to all employee management issues.

Is Your Business Honoring All Federally Protected Employee Rights?

Most personnel managers must work hard to keep up with all the federally guaranteed rights owed to employees and job applicants. And when small companies aren’t required to do the same, they should still try to offer all the legal rights referenced below since every office runs more smoothly when employees are treated with respect and granted as many rights as possible. Employers must also be sure they’re upholding all state employment laws that are often more favorable to employees.

Although many federal laws govern various employee rights, there are five specific ones that set the core standards involving discrimination — and provide fairness when addressing worker hours, wages and time off to handle urgent medical needs. All business supervisors and managers can benefit from reviewing the following brief summaries of Title VII, The Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA).

Basic employment standards established by Title VII

Businesses with 15 or more employees must abide by the full provisions of this law. While some might assume that employers with fewer than 15 employees can openly discriminate, lawyers frequently point out that other federal statutes (42 USC Sections 1981 and 1983) still protect ethnic and racial minorities against discrimination. These statutes govern the formation of contracts — and hiring employees always involves some type of oral or written contract.

Title VII strictly forbids all employers from discriminating against anyone regarding all

possible terms and conditions of employment. Therefore, employers cannot discriminate when handling any of the following activities.

  • Recruiting and hiring
  • Training and assigning work
  • Evaluating or measuring work performance
  • Disciplining
  • Promoting and transferring
  • Providing all promised benefits – including those owed after employment ends
  • Discharging

If your office has any questions about these standards, it’s best to contact your Houston employment law attorney to discuss your specific concerns in greater detail.

Employee rights guaranteed by the ADEA

While it may seem like a non-existent problem to younger workers, discrimination against older employees often incurs in many workplaces, especially when workers are nearing retirement when added benefits will likely vest. The Age Discrimination in Employment Act is designed to protect all employees age 40 and older when they work for an employer with at least 20 total employees.

All the basic employer activities listed above (regarding Title VII) must be applied fairly to older workers. Stated differently, the federal government forbids treating younger workers in a preferred manner over older workers who often have both strong skills and highly valuable years of experience.

Rights guaranteed under the ADA to the disabled

When a job applicant or hired employee can demonstrate his or her ability to handle all required job functions – without or without reasonable accommodations – discrimination is strictly forbidden. The ADA defines a disability as a physical or mental impairment that substantially limits any of a person’s major life functions or activities.

Reasonable accommodations should be offered to help the disabled person fully perform all required tasks, unless such adjustments would result in a fundamental alteration or change in meeting the employer’s program needs.

While the ADA has helped many workers, there’s still a need for greater societal change since many employers who can see a job applicant’s disabilities will privately opt to only hire those who don’t appear to have any cognitive or mobility issues.

Rights provided by the FLSA to all employees

The federal government has used the Fair Labor Standards Act to establish basic standards governing worker hours, minimum rates of pay and the handling of overtime hours. However, state law can offer more favorable rights, including a higher minimum wage.

Individual employers often choose to designate workers as either at-will employees who can be dismissed without cause or contract employees who must be provided with just reasons for their dismissal. The U. S. Department of Labor (DOL) states that if a company is a covered “enterprise,” and its workers are not exempt (or contract employees), the company must comply with all the FLSA provisions. Since determining what constitutes an “enterprise” isn’t always straightforward, you may need the help of your employment law attorney to interpret this for you. However, the DOL states that even if a company doesn’t qualify as a covered enterprise, all of its employees may still be protected by the FLSA provisions if their assigned tasks meet “interstate commerce” requirements.

Worker privileges available under the Family Medical Leave Act

This legislation applies to private employers with 50 or more employees working within 75 miles of the employer’s main worksite. To qualify for the extended leave provided under the FMLA, workers must have been employed by the company for at least twelve (12) months prior to making a request — and meet other specific criteria set forth under the law. Employees are supposed to be reinstated to their past jobs (or very similar ones) upon returning.

The FMLA is often used by a worker to care for a very ill, immediate family member or when the covered employee is personally battling a serious medical condition. Great care must be exercised when any worker states that s/he is not yet physically able to return once the full amount of leave allowed has been used (to avoid running afoul of provisions of state disability laws and the ADA.)

If you have any questions regarding how your office should apply any state or federal laws to employee issues, please don’t hesitate to call one of our Murray Lobb attorneys. We can also provide you with legal advice as to how some of these laws may have been recently modified by new Texas statutes.