Crafting Effective Job Descriptions and Ads

Creating the type of job ads that attract large pools of highly qualified candidates takes careful thought and planning, like every other important business task. Besides providing an accurate job title and listing the main duties of a position, you need to let job applicants know if a specific job will fit in with their current lifestyle and priorities.

Of course, you must also describe the minimum job qualifications and what you require in the way of prior experience and training. And all of this must be done in a manner that carefully avoids discriminating against anyone.

While drafting a proper job description may sound a bit intimidating, it can be done with relative ease if you’ll start by making a list of the key facts you need to communicate – while still making the job sound highly desirable. The job ad itself should be considerably shorter, in keeping with the online or print forum where you’ll be placing it.

Here’s a closer look at some of the broad topics and details you should always try to include.

After picking an appropriate job title — add a clear list of essential job duties

Since all jobs tend to change a bit over time, it’s a good idea to visit briefly with the person who recently supervised the worker in the vacant position. This will let you know if your old job description needs to be updated or expanded. Next, make a list of the most common tasks the person hired will need to handle on a regular basis. Always start by listing the most time-consuming job assignments.

Also, be sure to indicate if the open job is an entry-level, mid-level or senior-level job. And you’ll need to note whether the position involves training or supervising other employees —

and what percentage of the employee’s time may be devoted to such tasks.

What type of academic background – and prior job experience – are you seeking?

To avoid potentially discriminatory language, it’s wise to indicate that you’re looking for someone with either a college degree “or equivalent experience.” Be sure to also specifically list any professional licenses or certificates that the person must have already earned. Likewise, you should clearly state whether it’s a job that may frequently require over-time, weekend shifts or travel.

When you fail to mention such factors, you’ll likely end up interviewing people who would never have applied had you provided that crucial information.

Make one list of all the required skills – and a separate list of all desired skills

If the work requires clerical skills, you might indicate a minimum typing speed and then list the specific types of software program skills required. If you need someone who is bilingual, make it very clear if you’ll expect complete fluency.

Should you believe the job requires the ability to work well under pressure while meeting strict deadlines, it’s always wise to include that information, too.

Provide a brief description of the job culture, if possible

If your company is in start-up mode, be sure to share that since there are people who know that they usually do their best work in more stable or established work environments. Likewise, if you’ll be expecting this person to always work in-house – or remotely on one or more days – try to indicate that as well since some workers either strongly prefer that lifestyle or know that they do their best work in an office setting where they can readily consult with others on a regular basis.

Consider indicating the desired new hire’s personality type and work traits

If the person you want to hire needs highly developed interpersonal skills – perhaps because it’s a receptionist or job training position — you may want to mention that as a desirable strength. Likewise, if the new employee will be conducting considerable research for your firm, it’s fine to say that you’re looking for someone with strong analytical skills and keen attention to detail.

Unique job demands or requirements

In order to avoid creating problems for yourself with the Americans with Disabilities Act and other legislation designed to protect specific job applicant and employee rights, it’s best to note unique requirements in your job ad so applicants will clearly know what’s required in advance.

Here are some job demands that should always be noted in your full job description provided to all selected applicants prior to job interviews.

  • Night shifts. Let applicants know if the new person may have to regularly tackle night shifts, in keeping with your company’s changing needs;
  • Ability to lift and/or carry small or large objects of a certain weight. People deserve to know in advance if they’ll need to lift heavy boxes or other objects on a regular basis. When possible, try to provide an accurate range of weights involved;
  • Use of personal vehicle. Be sure to note this and indicate that any job offer will be conditional, based on an applicant providing a recent copy of an acceptable driving record;
  • On-call work shifts. If this employee must be available on an on-call basis during certain days or weeks – on a regular schedule — be sure to note this since it lets those with unique family obligations (or physical limitations) know whether the job is still a desirable one for them.

If your company does federal contracting work – keep EEOC requirements in mind

When a business does this type of work, it must always note in any job ad that all applicants will receive full consideration, regardless of their color, race, sex, national origin or religion. Many companies simply note this at the end of their ads by indicating that they’re an EEO (Equal Employment Opportunity) Employer. 

Even some companies who aren’t required to include an EEOC statement include one so that their applicants will be fully aware that they’re encountered an employer dedicated to fair hiring from a fully diverse group of applicants.

Additional comments about legally risky, outdated jargon & online “keywords”

Remember to use gender-neutral labels like “salesperson” as opposed to salesman and “server” in place of waiter. Likewise, “general repair person” is better than “handyman.” It’s also preferable to indicate you’re seeking to fill a “part-time position” than to indicate that you’re looking for a college student.

Finally, give thought to obtaining direct advice – or even job-writing templates – from one of the major online job boards like Monster.com, Indeed.com or Careerbuilder.com. They can also help you with selecting the most useful “keywords” that you’ll want to include in your ad.

Please feel free to contact one of our Murray Lobb attorneys whenever you need any advice about how to properly attract and interact with job applicants – or if you need help with any employee management issues that may arise. Our firm can also supply you with any employee contracts and other general business documents.

Determining Fault After an Employee’s Accident in a Company Car

One of the most awkward moments for any worker is getting into a vehicle accident while driving a company car. Since every employee wants to be viewed as highly responsible, this type of event requires sincere humility while explaining the circumstances of the accident.

If the employee was clearly at fault and using the company car for personal reasons at the time the collision occurred – liability issues can quickly multiply – especially if a third party was injured.

Before noting some of the key factors that must be evaluated when this type of event occurs, here’s a quick review of some insurance policy definitions.

Insurance policies that may be involved when an employee has a vehicle accident

  • Commercial auto policy. The coverage or protection this type of policy offers to a company can be crucial following an accident. It’s designed to protect the business from having to cover all the personal injury expenses and property damage. Brokers often speak of this as a business auto or commercial auto policy;
  • A general liability policy. Most employers carry one of these because it offers protection against all kinds of third-party legal claims, including those that might be filed after a third party falls down and is injured on company property – or hurt during an auto accident caused by an employee driving a company car;
  • Worker’s compensation insurance. All employers of a certain size should carry this type of insurance that normally provides benefits to workers injured on the job – including those who were handling official business in a company car when a vehicle accident occurred;
  • A policy rider. An amendment to an insurance policy. Some employees who choose to use their personal cars for business add a special rider to their personal auto insurance policies to provide coverage if they get into an accident while handling company business. Depending on the employee’s relationship with the company, some employers will reimburse the employee for the added expense this type of rider adds to the employee’s basic auto insurance policy.

Once liability for the accident is determined, one or more of the policies referenced above will have to be used to cover all the injury expenses and property damage repairs.

The legal doctrine of respondeat superior and employer liability

When an employee is driving a company car at the time of an accident (while actively handling assigned business tasks) – that s/he did not personally cause – the employer will normally be responsible for paying for all the damages.  However, since various jurisdictions apply aspects of the respondeat superior doctrine differently, it’s important to check with your Houston business lawyer to find out exactly how this doctrine is applied in Texas.

Stated in general terms, respondeat superior usually indicates that the principal (employer) is normally responsible for most activities handled by the employee (agent).

One or more of the employer’s insurance policies (in addition to worker’s compensation), will normally cover medical expenses and the costs incurred due to property damage. However, insurance companies often quarrel over whether the employee was clearly handling business tasks at the time of the accident — and if s/he had current authorization to use the company vehicle.

Liability can shift when an employee was totally or partially responsible for the accident

The circumstances surrounding each accident will normally determine the exact percentage of damages that an employee must pay under his/her own policy. Whether any type of indemnity is offered to the employee usually depends on whether the third party involved caused the accident.

In most cases, an employee who caused a collision will be held fully responsible for all damages under his/her own personal auto accident policy.

However, when a third party caused the accident, there are still specific circumstances that will allow an employer to deny all liability. Several of these exceptions are set forth below.

  • The “frolic or detour” exception. If the employee was running a personal errand at the time the accident in the company car occurred, she must normally cover all the damages under her own personal auto accident policy;
  • The employee was under the influence of alcohol or drugs at the time of the accident. Once this has been conclusively established, the employer may be able to deny all liability;
  • The accident did not take place during normal business hours. However, there can be exceptions – like when a salesperson is traveling to his/her next sales destination on behalf of the company;
  • The employee was an independent contractor using his/her own vehicle. Potential liability for all types of vehicle accidents should be clearly spelled out in each employee’s company paperwork – before that individual can handle company business in any vehicle.

It’s always wise for an employee who was just in a company vehicle accident to request a timely meeting with company officials as soon as that person’s health allows. Everyone may benefit if a

compromise regarding liability can be reached – unless the employee’s behavior was clearly unacceptable.

If you have any questions about how your business or insurance provider should handle a specific type of accident involving a company car, please feel free to call one of our Murray Lobb attorneys. We can provide you with our legal opinion and possibly suggest legal paperwork you might want to have every employee sign before ever issuing any of them a company car for their use.

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.

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.

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.

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.

Ways to Avoid Defamation When Disciplining Employees

Every employer has the right to create a pleasant and productive workplace. Yet this goal can be elusive when a worker acts unethically or behaves poorly toward others. If the behavior was grossly unethical or offensive and the person was an “at-will” employee, you can usually fire him on the spot. However, some misconduct claims must be thoroughly investigated.

General principles to bear in mind when disciplining employees

If immediate firing isn’t appropriate, you must handle all investigatory matters in a private manner. You should also only inform those with a formal “need to know” regarding specific information you are learning. Always make sure to act in a non-discriminatory manner. You can never let anyone go in a way that violates their civil rights or unjustly defames them.

Here are some suggested steps your business should take while resolving problems with difficult employees.

Responsible ways to discipline workers

  1. Create a written policy that states how your office will interact with employees who are accused of wrongful behavior. While you should be consistent in taking certain steps, you must clearly state that your office always reserves the right to immediately fire at-will employees when circumstances justify such actions. When an exempt employee is involved, try to provide warnings and always listen to their side of the story. It’s a good idea to place this policy in an employee handbook and to reference it upon first hiring all employees – and during all periodic work evaluations;
  2. Investigate all accusations, especially when immediate firing isn’t necessary. Be sure to handle all interviews in a private setting, stressing the confidential nature of the process. If there is written or documented proof of wrongdoing, obtain copies of the materials;
  3. Create a separate investigation file for the accused employee. You should also create notes in the person’s regular personnel file – making sure only a small number of employees can review either folder. In very rare circumstances, it may be necessary to hire an outside group to handle the investigation for you. Your Houston employment law attorney can fully explain when hiring outside investigators may be necessary;
  4. Create a clear plan for each employee’s disciplinary investigation. Avoid making accusations or labeling someone as a “thief.” Let the person know that you are investigating the claims. When meeting with the individual, always take notes and have at least one other staff member present as a witness. You may want to ask the employee to sign a statement, indicating awareness of the investigation.  In order to get an employee to sign a form, you may need to note in it that his/her signature does not constitute any admission regarding wrongful behavior – only that the person knows certain claims are being investigated. Be sure to listen carefully to any defense claims the employee may offer – but do not let any meeting become confrontational. If tempers flare, note that you will reschedule the appointment for a later time;
  5. Do not publicize the investigation. Only share limited information about it with those who have a “need to know” regarding it;
  6. Once a decision is reached regarding discipline, advise the employee. Make sure your decision is based on fully objective and reasonable grounds – and note them in your files. Document what you’ve decided to do in the regular personnel file – and reference the separate investigative file where all detailed notes are kept. Do not allow anyone access to the main investigative file who doesn’t have a right to see it. Be sure to keep all investigative files for a lengthy time period in case future lawsuits are brought against your company;
  7. If you decide to terminate an employee, do so in an orderly fashion. Allow the person to gather together all personal possessions before leaving the building in a private fashion. If the fired employee was fired due to dishonesty – or any violent or inappropriate behavior – you may want security to escort the person off the premises. To protect the fired employee’s privacy concerns (and to avoid defamatory actions), you may want the exit to occur when few other employees are present;
  8. Do not share details about any firing with other employees. Unless there was documented criminal activity that all personnel may need to know about, you have a duty to maintain privacy regarding the exact reasons why you chose to fire an employee.

Always remember that you cannot discipline an employee for taking lawful advantage of any state or federal right. This can include taking time off under the Family Medical Leave Act after you’ve approved the temporary departure – or taking a military or pregnancy disability leave.

Additional behaviors to avoid when disciplining employees

  • Never jump to conclusions about any claim. Don’t allow yourself to be greatly swayed by reports made by one or two individuals. Be sure to speak with all key witnesses and interview the employee concerned – to hear his/her perspective on what happened;
  • Always be/remain reasonable and flexible. Don’t ever over-penalize an employee for a minor infraction. Also, if you’re having to fire a more senior, exempt employee, make sure you have fully documented all proven reasons (or “just cause”) as to why the employee must leave;
  • Seriously consider documenting verbal warnings. While this may not be necessary, it’s usually a wise move. One way you can document them is to send yourself an email, noting in general terms (using a computer at work) why you had to verbally discipline an employee on a specific date;
  • During regular employee evaluations, be sure to note any disciplinary actions taken and how they’ve been resolved. Always have the employee sign the evaluation, noting that the person recalls all that’s happened and how all situations have been resolved;
  • Avoid telling an employee after being disciplined that you’re sure the person is likely to have a bright, long future with the company. A court might later view this type of language as reasonable proof that you were creating a new employment contract, one providing some type of guaranteed or continuing employment – as opposed to the at-will status the employee once had; and
  • Don’t punish workers for trying to improve working conditions or wages during breaks or at other times when “off the clock.” Rights like these are normally protected under the federal National Labor Relations Act.

If you’re concerned about how to handle any employee discipline or firing issue, please feel free to contact one of our Murray Lobb attorneys. We can provide legal advice based on the specific circumstances that you relate to us — and help you decide when you may need to hire outside investigators to handle a specific claim. We can also draft professional language for describing your employee discipline policy in your employment handbook.