How to Carefully Address Alcoholism in the Workplace

Whenever a new employee starts a job, personnel managers privately hope they’ve adequately screened the person. Hiring workers has become a much more complex task now that so many qualified professionals move freely between long-term positions, the “gig economy” and periods of self-employment.

Finding productive employees is also hard because many people who suffer from alcoholism or “alcohol use disorders” have learned various ways to try and hide their problems.

What exactly is alcoholism or “alcohol use disorder?”

The Mayo Clinic website states that people who experience “repeated significant stress and problems functioning” in their daily life due to drinking, usually suffer from alcohol use disorder.

Those attempting to cope with this daily disorder also struggle with increased drinking in hopes of obtaining the same “high” that helps them escape their emotional pain. Over time, many alcoholics find it hard to even quit thinking about alcohol. Still others stay busy with “binge drinking” spells — or the physical and psychological problems that occur during withdrawal.

Some larger companies have employee assistance programs that can readily offer counseling and other services to workers struggling with addictions and other psychological problems. However, there will always be many workers who remain in denial about their critical drinking problems — and small businesses who simply cannot afford to provide a wide array of special services to their workers.

What follows is a brief review of American alcohol abuse statistics, a list of signs that workers may have drinking problems – and a look at how employers can try to reach out and help employees with apparent alcohol use disorders.

What statistics tell us about alcohol abuse in America

  • Well over 12 million adults struggle with alcoholism. In fact, one 2018 study revealed that 14.4 million adults (at least 18 years of age or older) were battling alcohol use disorder (AUD). Approximately 9.2 million of these individuals were men and 4.1 percent were women.
  • Heavy use and binge drinking are also common. This same 2018 study noted that when adults age 18 or older were asked about their drinking during the prior month, 6.6 percent of them said they were heavy drinkers. And 26.45 percent of them admitted to binge drinking during the past 30 days.
  • Every year, about 88,000 people die of alcohol-related causes.

As these statistics indicate, every business surely has more than a few problem drinkers. And experts estimate that lost productively due to alcoholism can cost American employers between $33 billion and $68 billion each year.

Common signs that employees may have drinking problems affecting their work

  • Repeated, unexplained absences from work
  • Ongoing tardiness
  • Frequent use of sick leave
  • Too many absences occurring the day after payday – or a pattern of taking too many three-day weekends
  • Falling asleep on the job
  • Moody behavior and difficulty getting along with other employees
  • Bloodshot eyes, an unsteady gait – and the faint smell of alcohol
  • Claims of too many sudden “emergencies” during relatively short timeframes
  • A steady stream of assignments finished late
  • Incomplete assignments or clear signs of inadequate effort
  • Ongoing problems with meeting assigned sales or other quotas

How should employers address one or more of these problem behaviors?

  1. You will need to schedule a private meeting with the employee. Prior to this meeting, you should review all recent employee work evaluations and privately talk with the person’s supervisor (who may also want to attend the meeting). Be sure to take notes. Also, make it clear that you’ll be checking back with the employee at a later (specific) date to see if their work and/or attendance record is improving.
  2. If your company has an EAP (employee assistance program), meet with your personal representative of that program prior to the meeting referenced above. It may be necessary to schedule some type of intervention with the employee, after that person is given ample notice of the meeting. This event (which should probably be managed by your EAP contact) can include the person’s workplace supervisor, spouse, clergy or other family members. All who attend must indicate that they’re simply trying to help the person improve their health and keep their job.
  3. In some cases, you are likely to meet up with an employee’s denial. If so, you must still make a referral to your EAP — or remind the person to obtain this type of outside help on his or her own if your company doesn’t provide EAP resources. You must also clearly state that if one or two more unexplained absences (or poor work performance reports) are received, the employee will be terminated. Be sure to have at least one other company official present during such meetings and keep detailed, confidential notes.
  4. You must be prepared to tell an employee who appears to be intoxicated at work to stop working immediately. This is especially true if the person is driving a work vehicle or handling potentially dangerous equipment. You may also have want them to take an evidentiary breath testing (EBT) device.

Employers should avoid taking the following steps when alcoholism may be present

  • Covering up for an employee with a drinking problem
  • Loaning money to the person with alcoholism
  • Helping the tardy employee make up assignments later, instead of disciplining him/her
  • Requiring co-workers to complete the apparent alcoholic’s assigned work
  • Allow a spouse to call in absences for the employee

Hopefully, the problem drinker will respond to your outreach efforts, agree to a temporary term of leave and then follow-up care. If all goes well, this person will then be able to carry a normal workload again. While this is always a very difficult problem to handle, it’s important to remember that those who do recover from an alcohol abuse disorder may one day become your most loyal employees, grateful that you gave them a chance to fully address their problems.

Please feel free to contact one of our Murray Lobb attorneys when you need help deciding how to respond to this type of employment law issue. Our office also remains available to help you draft any contracts or other documents you may need while running your business.

Drafting Valid Texas Non-Compete Agreements

Although Texas courts will uphold valid non-compete agreements, they expect these documents to contain clear and reasonable terms. In addition, Texas employers can only execute these types of ancillary agreements when they’re directly related to a main document like a valid employment contract.

Companies that ask workers to sign these agreements must also make sure they’re offering proper “consideration” to each employee. Simply providing someone with continued employment will not be considered adequate. The employer must be offering such valid “consideration” as a definite plan to share highly valuable “trade secrets” or unique, proprietary information with each employee required to sign a non-compete agreement.

Basic terminology regarding these agreements

Covenants not to compete are also sometimes referred to as non-compete agreements or “non-solicit” agreements. That latter term refers to the departing employee’s promise not to solicit any of the former employer’s customers until after a set time period noted in the agreement has ended.

In some cases, the shared information might just be limited to the the names and addresses of the employer’s current customers. Of course, the validity of all terms set forth in a non-compete agreement may one day be subject to a court’s interpretation.

What follows is a closer look at the terms and definitions governing Texas non-compete agreements. They’re set forth in Section 15.50 (and following) of the Texas Business and Commerce Code. Stated succinctly, non-compete agreements must set forth reasonable time limitations, detail the scope of activities to be restrained – and describe the geographical area to be covered. This article concludes with a discussion of how you and your Houston employment law attorney should respond if you learn that a former employee has violated his/her covenant not to compete.

A reasonable limitation on the geographical area you seek to control

Stated simply, your agreement will probably be viewed as valid by a court if it only restricts the former employee from competing against you (or working for a competitor of yours) within the same basic geographical area where s/he worked while still employed by you. While a broader area might be considered legitimate, you might have to justify that to a court one day, based on unique aspects of your business industry or other similar issues.

Courts often frown upon these types of covenants when they’re overly broad. The law favors free trade and competition unless a greater employer right (or threat to employer interests) can be clearly established.

A reasonable time period is referenced for restricting the former employee’s activities

Although there don’t seem to be any legal experts willing to name a specific time period you should choose, the consensus appears to be that you shouldn’t make this part of the covenant unduly burdensome.

Speaking in very general terms, if you name a time period much longer than one or two years, (directly dependent on the nature of your company’s work), your lawyer may have to justify that longer time period in court. After all, people are entitled to move on with their lives, regardless of whether you fired them — or they simply wanted to do something new in their work lives.

The scope of the activities being restricted must be fair and reasonable

You normally cannot completely restrict a departing employee’s best options for finding new work. For example, assume an employee has worked exclusively in the computer field for all his or her life, up until leaving your firm. A court would probably consider it overly burdensome if your non-compete agreement forbids that person from accepting or soliciting all types of work in that very broad field.

However, if that employee provided you with highly specific work in a unique sub-field of computer science, you might be able place a restriction on that type of work for a relatively short period of time. Reasonableness is crucial.

What can you do if you discover a former employee is violating a non-compete agreement?

      A. When the questionable behavior does not raise an urgent concern

If that former employee signed what you believe is an enforceable covenant not to compete, you can ask your Houston employment law attorney to take one or more actions on your behalf. However, if the need to stop the past employee from further infringing your rights is not immediate, your lawyer can start by sending the former employee a letter, reminding him/her of the agreement and of your belief that s/he is likely violating it and must stop doing so.

Should you again learn that the former employee is still violating your agreement, you can also contact that individual’s employer and state your concerns, noting the earlier letter sent by your attorney.  If the infringing activity continues, you can file a lawsuit. (Employers are often tipped off about such questionable behavior by current, loyal customers who’ve been recently contacted by the former employee.)

     B. When the wrongful behavior could cause immediate damage to your company

If you believe that you’re about to suffer irreparable harm due to the former employee’s current use of your company’s “trade secrets” or contact with your customers, your lawyer can ask a court to issue an injunction. If granted, this should put an immediate stop to the alleged, illegal activities.

Should the judge decide that the current threat posed to your company is highly significant, s/he can even grant a temporary restraining order (TRO) that prohibits the former employee from doing anything further that could violate the agreement until a first hearing can be held. Anyone who ignores a TRO (or violates one) can be treated as being in contempt of court. That person can then be punished with a fine, some form of imprisonment – or even possibly both.

Conclusion

Always remember that Texas courts demand that all terms in your non-compete agreement be reasonable. Former employees do have a right to move on with their lives and find new opportunities to support themselves that do not directly interfere with your business or its current viability.

Our Murray Lobb attorneys welcome requests for legal advice about covenants not to compete and other employment law issues. We’re also fully equipped to address most corporate and business law matters, as well as your estate planning needs. Please feel free to contact us if you ever need us to draft any contracts or other documents required by your business.

What Employers Should Cover in Their Sexual Harassment Policies

Providing employees with a carefully drafted sexual harassment policy communicates respect and helps everyone stay focused while doing their best work. To make sure you include the most critical legal passages, it’s always best to meet with your lawyer — who can also help you address any special needs of your workforce.

Here’s a brief overview of the most crucial components of this type of policy. As you read over the list, jot down any questions that come to mind since they may help you have a more productive meeting with your Houston employment law attorney.

Key information that should be included in most sexual harassment policies

  • A general statement about why you’ve created the policy. It’s important to note that your company recognizes that every employee has the right to work in a safe environment. No employee should ever be coerced into developing a sexual relationship in order to keep a job. Likewise, sexually suggestive or offensive behavior should never be inflicted on anyone;
  • A detailed definition of sexual harassment – preferably one that also provides specific examples of the different types of verbal and non-verbal behaviors that are covered. Clearly indicate that sexual harassment always involves unwelcome behavior that tends to offend, intimidate or upset others. It can even include something as simple as posting sexually suggestive cartoons and other materials in the workplace. Also note that your company will not tolerate any sexually harassing behavior between parties of the same sex;
  • A statement that your policy also provides protection against third-party harassment. Your company’s customers, clients, contractors and others will never be allowed to sexually harass your employees;
  • There must be a detailed description of your complaint procedures. Employees must be told that you’ll respond to all complaints in a private, confidential manner – and will conduct all necessary investigations in as professional manner as possible. It’s also important to note that you’ll try to have at least two senior staff members trained (and available) to handle these complaints – one woman and one man. Workers should be extended the courtesy of being able report their complaints to someone of their own gender.

Offer your employees both an informal way of processing complaints – and a more formal approach. After all, some employees aren’t interested in filing a legal claim against the alleged abuser – they’re mainly interested in stopping the abuse and returning to work (perhaps in a new department). However, you must provide clear information to each complaining party that s/he has the right to file a more formal complaint with the EEOC. Finally, you must also state that your company will not tolerate any type of retaliation against the alleged victim – regardless of the position held by the party who has been accused of the sexually inappropriate behavior;

  • Provide a commitment that your company will try to expedite the complaint process as much as possible, recognizing the needs of all involved. However, you should also explain the different types of interviews that may need to be conducted so that all parties have the chance to be fully heard. Employees must also be told that if the complaint involves unusually aggressive behavior – or if multiple complaints have been recently received regarding the same alleged offender, it may be necessary to turn over part or all of the investigation to an outside, objective party hired for that specific purpose;
  • Name some of the specific disciplinary steps that will be taken if the company’s investigation finds that harassment has occurred.
  1. The offending party will receive a written or verbal reprimand
  2. A negative performance evaluation will be placed in the wrongdoer’s personnel file
  3. There may be a reduction in wages
  4. A demotion or transfer may be imposed on the wrongdoer. In some instances, the victim may be allowed to obtain a transfer;
  5. The offending party may be forced to accept an immediate suspension — or just be fired. (Make sure all these possible forms of discipline are noted in your company’s employee handbook).

Be sure your company has a policy of requiring every new employee – regardless of rank – to undergo sexual harassment training as part of their initial company orientation. Furthermore, all employees should be required to take an annual refresher course on this topic. (You may want to include a statement about this training requirement in your sexual harassment policy).

When designing or choosing a sexual harassment training program for your employees, always make sure it includes a “question and answer” segment since employees often need to ask questions to be sure they fully understand the different behaviors that co-workers may consider offensive.

Our lawyers always welcome inquiries from both new and established clients seeking advice on employment law matters. We’re also fully prepared to draft the many contracts you may need to run your business as your clients obtain the many goods and services you currently offer. Feel free to contact us so we can schedule an appointment at your convenience.

Workplace Evaluations: Skills, Aptitude, Psychological and Lie Detector Tests

Ideally, every job applicant should be fully tested and evaluated before being hired for any position. However, state and federal laws impose certain restraints on the specific types of tests that can be given to job seekers. While skills tests are usually the most critical and widely accepted exams, care must be taken to administer them fairly and accurately.

Here’s a general overview of the types of job applicant rights you must respect while using any of the types of tests referenced above. As will be referenced below, all tests must be given in full compliance with the Americans with Disabilities Act (ADA).

Skills and aptitude tests – evaluating clerical, computer software and other job skills

A general rule of thumb that can guide you about many tests is that they must be specific to the types of skills that a job requires on a regular basis. Therefore, it’s usually fine to find out how fast a potential clerical employee can type or how much someone knows about repairing and maintaining computer systems if you’re hiring a computer help desk employee.

While you can usually test most the job skills of the disabled, you may need to make some accommodations in how you administer such tests. Cornell University’s publication entitled, Pre-Employment Testing and the ADAis well worth reviewing to gain a better understanding of job testing requirements. Just keep in mind that certain timed tests may need to provide slightly longer completion times and accommodations may need to be extended to applicants who’ve made their special testing needs known to you, in advance.

Although general aptitude tests can still be given using multiple choice tests, great care must be taken to avoid formats that may mainly reward test-taking skills over a job candidate’s ability to properly handle future job tasks. Short-answer questions based on factual job topics may provide greater insights into a person’s capabilities.

Psychological testing of job applicants

Although some employers still place great value on these types of tests, they are no longer highly favored. Two of the chief reasons that employers are thinking twice about administering these types of tests is that they can sometimes illegally discriminate against certain job applicants or invade their privacy regarding their moral and religious beliefs.

Employers should only administer psychological profile tests that have been scientifically validated, indicating direct correlations with a worker’s job performance. Another potential problem with psychological testing is that the ADA does not allow medically oriented tests to be administered to applicants who are disabled — if it might help discern their disabilities.

In certain situations, the ADA may also require you to revise a psychological or other test if an applicant claims it tests skills related to his/her disability (such as hearing capacity) – that are not regularly required for the job.

Lie detector or “honesty” tests for job applicants and employees

In general, the federal Employee Polygraph Protection Act – with only limited exceptions – prevents employers from requiring job applicants or employees to undergo lie detector tests. While certain types of unique applicants or employees may have to take such tests – including those wanting to provide armored security services (or dispense pharmaceuticals) – restrictions must still be honored as to how such tests are administered and evaluated.

Most of the time, in the few instances when a larger employer might want to administer this type of test, it’s normally only used when there’s reasonable suspicion that an employee may have embezzled from the company or committed other workplace theft.

At present, experts on this topic indicate that it’s nearly always best to restrict the use of any type of “honesty” test to situations where an employee may need to handle cash.

Always remember that in order to protect your company or business from any possible future claims of discrimination, you must make sure that all job applicants take the required tests at the same basic time in the hiring process.

Every employer may want to create a copy of this EEOC document designed to help determine the best job candidates — while fully complying with all federal laws.

Please feel free to contact one of our Murray Lobb lawyers if you need legal advice about administering specific tests to any of your job applicants or employees. We also remain available to discuss any other legal concerns you may have – and can readily draft a wide range of contracts and other documents you may need while conducting daily transactions with your business customers and other parties.

Key Issues Targeted by EEOC in Recent Lawsuits Filed Against Employers

Periodically reviewing the most recent cases filed by the EEOC (Equal Employment Opportunity Commission) against various companies can help remind your office of the federal employment rights that must be regularly extended to all job applicants and current employees.

Far too often, employers fail to protect workers against hostile work environments and many different forms of harassment and discrimination.  Employees being sexually or racially harassed can never do their best work. This also holds true for people mistreated due to physical disabilities, religious beliefs – or their national origin. These types of illegal activities are constantly monitored by the EEOC so that equal employment rights can be guaranteed to everyone trying to get hired or hold down a job.

What follows is a brief review of some recent cases filed by the EEOC against companies they believe have violated federal employment laws. While some of these actions have been resolved, others are still awaiting a final ruling.

New EEOC cases reveal the broad spectrum of employment rights regularly enforced

  • A Dallas pregnancy discrimination case was decided against the employer. A receptionist working for Smiley Dental Walnut spoke to human resources to inform them that she was pregnant. After being ordered to tell her supervisor this news, the young woman complied. During the conversation with her supervisor – who noted that she did not wish to keep training the young woman since she might leave relatively soon — the pregnant employee was fired.

The U.S. District Court for the Northern District of Texas, Dallas Division, ruled against the employer. Attempts to settle prior to litigation failed. Injunctive relief (sought to make sure the company never repeated this same type of illegal behavior in the future) was sought and awarded – along with back pay and other damages. The company was ordered to pay $20,000 to the wronged employee;

  • Walmart was ordered to pay $5.2 million for intentional discrimination against a disabled employee. The mistreated worker had dutifully worked around his developmental disability, deafness, and visual difficulties for 16 years. However, a new store manager came in and demanded that new medical paperwork be submitted to document all the employee’s disabilities. The disabled employee was then suspended temporarily from his job.     

However, once the requested paperwork was produced, Walmart cut off further communications with the disabled man — basically resulting in his termination. The EEOC prevailed in this case in which $5 million of the award was for punitive damages;

  • Two female nurses filed an EEOC complaint about unequal pay. The women had job experience equal to that of a male nurse – yet the women were paid less. All three nurses complained about this issue. The EEOC won the case on behalf of the female nurses, noting the importance of closing the pay gap that often works against women in this country;
  • A case was filed involving discrimination based on national origin and religion. Three Pennsylvania employees from Puerto Rico were working for a caster and wheel company when they were subjected to workplace harassment based on their national origin and their religious (Pentecostal) beliefs. Oddly enough, it was the plant manager who was making the derogatory remarks when the harassed employees decided to report his illegal and upsetting behavior. The three employees were then subjected to retaliation (in the form of lesser work assignments) for complaining about the way they were being treated.

The EEOC stated in its pleadings that company managers should always act respectfully as role models—and never be the ones who harass their own employees;                                          

  • A sexual harassment lawsuit was filed on behalf of two female employees. The EEOC alleged in its lawsuit that the defendant hospitality companies created an abusive and hostile working environment for two of its female employees. The women complained about sexually rude comments and behavior directed toward them by their manager.

When the employees complained to their supervisors and others, nothing was done to improve their situation. In this case, a request was made for both compensatory and punitive damages – along with back pay for the two women. This suit is still pending;

  • A disability discrimination case was filed based on the way a hearing impaired job applicant was treated. When a problem arose during the hiring process related to the applicant’s hearing disability, the employer failed to accommodate her reasonable request to simply be interviewed in person and not over the phone. The company never responded to the job applicant’s email proposing this simple alternative.

Instead, four other applicants (who didn’t require any type of accommodation) were then interviewed and one of them was chosen for the job opening. The EEOC lawsuit requests lost wages, punitive and compensatory damages – and injunctive relief to prevent the employer from repeating this type of discrimination against other job applicants (or employees) who have disabilities in the future;

  • A racial slurs and harassment case. A man hired as a deckhand by a New Orleans transportation company was subjected to offensive racial epithets and conduct. When the man asked for help in stopping this behavior, the situation did not improve. Soon thereafter, a rope tied in the form of a noose was dropped near this harassed man on the deck where he was working.

The EEOC described these wrongful acts as “deeply offensive.” The government is seeking injunctive relief against the transportation company – along with compensatory and punitive damages — and any other relief the court decides is necessary.

Each of these new cases and decisions document how common intentional acts of workplace discrimination still are in this country. All employers should consider requiring annual training for every employee in hopes of seriously discouraging all forms of workplace discrimination and harassment.

Should you need help interpreting any of the federal (state or local) laws that are designed to protect employee rights, please contact one of our Murray Lobb attorneys. We’ll be glad to help you analyze any problems that you may have — or help you draft any new workplace contracts or employee handbook sections related to this (or any other employment law) topic.

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.

What Should Be Included in Your Employee Handbook?

Both large and small companies can benefit from providing their workers with employee handbooks. These texts help employers answer key questions and clearly document that the same standards and rules govern their interactions with everyone. After all, no one wants to work for an employer who grants special privileges or benefits to some workers and not to others.

Employee handbooks also let employers set forth all their behavioral standards and procedural rules in a manner that can help them limit future liabilities — should anyone ever try to sue them for wrongful termination or acting in a discriminatory manner.

Before reviewing some crucial sections that many businesses like to include in their employee manuals, here’s a quick look at some of the topics that most workers want to see addressed.

Employees often search for information about key standards and office procedures

  • Be sure to outline your behavioral standards, attendance rules, office attire and the level of respect required for all relationships. Most employees are eager to learn how you view tardiness and what you consider acceptable clothing. Likewise, new workers want to learn about your conduct standards — and if your office has a “zero tolerance” policy toward all forms of sexual harassment and discrimination;
  • Always provide clear information about pay grades, qualifications for receiving medical insurance, pay periods and all forms of employee benefits. Workers usually start to relax more once they’re told how often they’ll be paid and the exact size of their payroll deductions. Likewise, it’s important to tell employees when (and if) they may be considered qualified for healthcare insurance;
  • Always state how often employee evaluations are conducted and the best ways workers can try to position themselves for future raises and promotions;
  • Be sure to note any individual or family leave policy provisions that your company honors. Always have your Houston employment law attorney read over this information for you, to be sure it fully complies with all current federal, state and local laws; and
  • Describe your most crucial emergency and safety procedures. Always tell your workers how they should evacuate from the office during extreme weather events, fires and even possible shooting incidents. Each new worker should be shown the proper way to exit the building on their first day on the job – and be shown where fire extinguishers and first aid kits are kept.

While these are just a small sampling of the general topics most employees want to see covered, they should help remind you of many other important subjects that you should cover in your employee handbooks.

The following list is compromised of some of the most commonly used sections in employee handbooks.

Key headings or sections most employers include in their employee handbooks

  • A “Preface” section. You may want to provide a general history of the company here, along with information about the founding members of the business. You can also note who currently heads up various office branches. The company’s key values and goals for the future are also often stated here. If you like, you can also add a brief congratulations to each new employee for being hired;
  • Material explaining all basic pay arrangements, promotions and current employee benefits. You can describe any 401k or stock options in this section, as well as the various types of retirement benefits. Overtime pay policies should also be covered;
  • A section that describes “at-will” employment versus jobs offered under contract;
  • Standards for employee behavior. Be sure to address the need for regular attendance; rules governing personal cell phone use during the work day – and any restrictions on using work computers for private purposes. (Ask your attorney if you need to obtain written permission from all employees to monitor their computer usage);
  • Formal leave policies. In this section, you’ll need to list all paid office holidays, how employees should handle vacation and sick leave, personal days off, family medical leave and time off to honor current military service commitments;
  • Employee termination policies. Be sure to note that these can vary, depending on; if an employee is considered an “at-will” worker who can be dismissed rather informally or if the person was hired under a formal contract.
  • Confidentiality policies. Be sure to clearly state what information and trade secrets the company considers confidential and trade secret. Ideally, all employees would signed a confidentiality and non-disclosure agreement.

Should you wish to review a large number of sections that different employers have included in their employee handbooks, consider reading 53 Key Sections of an Employee Handbook (and Other Helpful Tips).”

The Texas Workforce Commission also has a number of policies and a form of Employee Handbook available for free at https://twc.texas.gov/news/efte/table_of_contents-az.html. However, choosing the right sections for any employee handbook often requires a keen understanding of employment law and many complex human resources issues.

Please feel free to contact one of our Murray Lobb attorneys for help in drafting your new or updated employee handbook. We can provide you with the proper legal terminology required to meet your company’s unique needs.

Key Drafting Points for a Texas Employment Contract

Although Texas employers hire many workers on an “at-will” basis to make it easier to dismiss them (for reasons that doesn’t violate governing statutes), they also still provide employment contracts to others. After all, a well-drafted employment contract helps employers clearly establish what’s expected of their employees and makes it easier to protect proprietary information when workers leave.

If your company prefers to negotiate employment contracts with highly skilled employees, try to first meet with a Houston employment law attorney so that all of your most important needs and interests can be protected during the hiring process. And always be sure to communicate carefully with prospective employees since it’s easy to accidentally convey contract terms you may not have intended.

Before reviewing some of the important terms that should be included in most Texas employment contracts, it’s wise to note how some employment contract terms can become binding when set forth outside of contracts.

Ways employers may convey certain employment terms to job applicants or new hires 

Always carefully review the following ways that your company may be granting certain rights you didn’t intend to include in your formal employment contacts.

  • Through verbal agreements. Only allow a limited number of interviewers and other hiring staff to discuss key employment terms that may or may not be set forth in writing;
  • Statements made in offer letters. Always reread these before sending them out to make sure they do not contradict what’s in your written employment contract;
  • Provisions set forth in your employee handbook. (You should periodically ask your attorneys to review this material – to be sure it’s still current regarding new laws and recent court decisions);
  • All emails and faxes sent to prospective employees or new hires;
  • Statements made on workplace job notice boards.

While this list isn’t intended to be comprehensive, it should remind you that all written materials and formal conversations with applicants and new hires must be conducted carefully.

Here’s a look at some the terms you must properly address in your contracts.

Written employment contracts should always address these key terms and conditions

  • All core duties and responsibilities of the employee. It’s often wise to also note when the employee’s performance will be evaluated. For example, after the first 30 to 60 days – and then at other stated intervals;
  • Pay rate. This should be carefully discussed while making the initial offer and then documented in the employment contract;
  • All employee benefits, such as healthcare and stock options, should be listed and at least briefly explained;
  • Work locations and hours. If rotating shifts are required or if you strictly forbid working from home – you should set forth all these relevant restrictions;
  • Clear information indicating how employee disciplinary actions will normally be handled;
  • Reimbursement of approved expenses. If you do not cover any major expenses, you must state this very clearly;
  • How employee terminations are handled under different circumstances. This is a good place to possibly offer some type of severance pay if provided with two weeks’ notice (or some other time period you may prefer). You can then state that no general severance packages will be offered to those who fail to provide advance notice of their departure;
  • Dispute resolution terms. If you and the employee later have a dispute regarding the employment terms set forth in the contract, state whether you require the use of a specific form of dispute resolution — before any litigation can be pursued;
  • A reasonable covenant not to compete when employees are leaving. You should also include some type of clear statement that the departing employee must not disclose any trade secrets to others upon leaving.
  • A confidentially agreement. All employees who have any access to any company trade secrets, proprietary information or information the company deems to be of a sensitive or confidential nature must sign a confidentiality agreement.

If any of these terms are especially important to your company, give serious thought to asking all employees to not only sign their employment contracts – but to also initial certain paragraphs – clearly indicating that they were asked if they had special concerns or questions about those topics.

Please get in touch with one of our Murray Lobb attorneys once you’re ready to draft any employment contracts for new employees. We are also available to help you modify any of these contracts when various employment conditions change.

Brief Overview of Texas and Federal Whistleblower Laws

All employers must respectfully interact with employees who report alleged wrongdoings in the workplace. Often referred to as “whistleblowers,” these individuals are trying to correct illegal practices or behaviors they believe are harmful to many. Although some whistleblowers may have improper motives, you always ignore them at your own peril – especially since there are Texas and federal laws designed to protect them under certain circumstances.

The following information about whistleblower laws and related activities can help you better understand why an employer must obtain timely legal advice from a Houston business law attorney once any employee threatens to file this type of complaint.

The Texas Whistleblower Act

This statute is found in Sections 554.001 (and following) of the Texas Government Code. It only provides protection against employer retaliation for public employees – not private ones. The law expressly forbids public employers from suspending, terminating or otherwise imposing adverse personnel actions employees who report alleged legal violations by the employer or co-workers.

However, the complaining party – who must report the alleged wrongdoings to the appropriate law enforcement authority – must undergo (exhaust) all employer grievance or appeals processes before being allowed to sue the employer. Under the Texas statute, all whistleblower lawsuits must be filed within 90 days of the reported wrongdoing.

Damages may include obtaining a legal injunction against the employer – as well as receipt of all back pay owed if the employee was terminated (or demoted) in a retaliatory move. Successful whistleblowers (who meet all statutory requirements), are also entitled to receive full reinstatement, all fringe benefits owed, full seniority rights, actual damages, reasonable attorney fees, court costs and a set maximum of possible other compensatory damages.

Furthermore, a supervisor found to have violated the complaining employee’s rights under this Texas statute (Section 554.008) can be forced to pay up to a $15,000 civil fine.

While the burden of proof is on the whistleblower, the possible penalties can be formidable.

Federal laws often relied upon by various whistleblowers

  • The Sarbanes-Oxley Act (passed shortly after all the illegal Enron activities). It mainly addresses the penalties available in the wake of fraudulent accounting practices.
  • The Dodd-Frank Wall Street Reform and Consumer Protection Act.
  • OSHA violations. Many construction workers and other employees file “whistleblower” complaints based on these Occupational Safety and Health Administration statutes and regulations.
  • Various Department of Energy laws and statutes.
  • Environmental Protection Agency (EPA) laws and regulations.
  • Federal airline regulations.
  • The False Claims Act (as recently updated).
  • The Fraud Enforcement and Recovery Act of 2009.
  • Hazardous waste regulations.
  • The Patient Protection and Affordable Care Act — and other government statutes related to the provision and receipt of proper medical care.

While this list isn’t intended to be comprehensive, it provides a general overview of the types of statutes and regulations often referenced in many whistleblower complaints.

The following information reviews the most common types of illegal retaliation some employers take upon learning that a whistleblower complaint has been filed.

Forbidden, retaliatory actions taken by some employers

  • Job termination. Far too many employers look for “clever” ways to fire complaining employees once they learn a whistleblower complaint may be filed.
  • Demotion. An aggrieved employee may be called in and told that there have been long-standing complaints about his/her performance – requiring demotion to a lower position with considerably lower pay.
  • Thinly disguised harassment on the job.
  • Retaliatory discipline. This may include the placement of highly negative performance reviews in an employee’s file – making it much harder for the workers to receive any future promotions or favorable recommendations upon leaving the job.
  • Blacklisting. Some employers will “discreetly” contact their peers throughout the same industry, purposefully designating the specific, complaining employee in hopes of preventing that person from every landing another job in that same field.

Two high-profile whistleblower events help explain how such actions often unfold

One of the best ways to gain a stronger understanding of whistleblower activities is to read all you can about how former Enron employee Sherron Watkins reported her concerns about her employer. You may also want to learn more about all the late FBI agent W. Mark Felt (“Deep Throat”) did to expose President Richard Nixon’s illegal activities tied to the Watergate scandal.

As one Texas Monthly article puts it, the Enron scandal involved highly questionable financial practices that included the creation of financial entities to help Enron conceal the company’s growing debt from Wall Street, regulators and the general public. The book Power Failure provides an in-depth look at how all of Enron’s troubles began and how its illegal activities ruined the lives of so many.

Conclusion

Always make sure your company (or government office) provides all supervisory personnel with comprehensive training on the proper ways to respond once a whistleblower complaint has been filed (or is referenced by an employee). And remember that retaliatory acts must be avoided since they’re illegal and often very costly.

If you believe an employee is preparing to file a “whistleblower” complaint against you, please contact one of our Murray Lobb attorneys right away. We can explain your legal rights to you and help you take the proper steps to respond appropriately. Timely intervention can prevent critical misunderstandings and unnecessary litigation.

Everyone Should Benefit When an Employee Is Properly Fired

While most people don’t enjoy being fired from a job, everyone can benefit if the process is handled properly. To understand how this result is possible, it’s important to remember that your employees must be able to work together as a team. When one member is completely out of sync with the others or simply cannot do the assigned work in a timely manner, everyone suffers. So, once you’ve efficiently moved through the firing stages, most staff members will finally get the chance to perform at their highest level again.

The following information provides a brief overview of important goals to keep in mind when firing an employee. It also provides tips for protecting your company from wrongful termination lawsuits and describes the best way to meet with people while firing them.

How to Display Good Character and Protect the Business from Lawsuits

  • Be sure to clearly explain all employee management and firing guidelines in an employee handbook. Always hand one of these out to all new-hires on their first day at work and have them sign a simple form noting that they’ve received the booklet and will carefully review it right away. It’s even better to gather together “new hires” within a week or two of their starting at your company and covering basic information in the handbook;
  • Carefully investigate all the facts involved with possibly firing a specific employee. Also, make sure all supervisors are regularly interacting with each employee and telling them when their performance needs improvement – in writing (be sure to have the employee sign and date this form before placing it in a permanent file);
  • Review all applicable state and federal laws regarding termination. If necessary, speak with your attorney if you have any major questions – or believe the employee is likely to sue. Always remember that some employees are very sensitive to issues involving race, gender, ethnicity, religion, nationality, veteran status, disability, age and sexual orientation;
  • Gather together all pertinent, written evidence concerning the employee’s work record. Be prepared to keep this file in a very safe place in case a lawsuit is later filed. While doing this, rethink all the hiring practices that may need to be revised so you can avoid hiring a similar person in the future;
  • Treat the employee with dignity and respect. Don’t gossip about your firing plans. Meet with the employee in a private office setting with at least one other staff member present to serve as a witness. Respect the fact that the process of being fired may be hard on the individual. Unless the employee is guilty of terrible misconduct, remain open to paying a later unemployment insurance claim. Consider offering a severance package in exchange for the employee signing a waiver not to sue for wrongful termination. Be polite yet firm when simply stating the reasons for your decision. Finally, let the individual speak briefly about how they feel about the event. And be sure to pay all monies owed for accrued sick leave and vacation time;
  • Know that you may face sociological repercussions among other workers after the firing. If what you have done in firing a specific person is considered unfair, you may have a problem regaining the respect of many co-workers and superiors. It’s always wise to meet briefly with all concerned employees and simply state that the individual is no longer with the company and that you would prefer to not discuss it further for privacy reasons;
  • Be sure to retrieve all company property prior to providing a last check to the fired employee. You’ll also want to ask for the company laptop and any keys to office property. Be sure to immediately notify your computer and building security forces so they can block the employee’s future access to the company database and email system.  You’ll also need to collect all company I.D. cards and uniforms.

Finally, try to part on pleasant terms with outgoing employees, perhaps noting that you believe that they’ll find a better fit in other positions soon. Everyone really can benefit from a properly handled firing since it can eventually improve workplace morale. In fact, even the fired employee may soon find an equal or better position somewhere else.

Be sure to call our firm if you need any specific advice about preparing an employee handbook, interacting with troublesome staff members — or any other employment law issue.