Our practice includes preventative counseling and advice to employers, including preparation and review of employment policies and procedures manuals to ensure compliance with federal and state laws. We conduct comprehensive employment audits to expose problem areas before they become legal challenges. We also offer management training seminars which equip business owners and supervisors to handle tough workplace issues.
BE A RESPONSIBLE EMPLOYER
Don’t lose your business just because you’re unaware of the law. You have a business to run and you can’t possibly be expected to know and keep-up with every employment law out there. This is why you need to consult with an Experienced Employment Law Attorney.
Many small to medium business owners think they can’t afford an employment law attorney. What you really can’t afford is to be sued by an employee whose legal rights you may have inadvertently violated.
In Texas, an employer can fire an employee for a good reason, a bad reason, or no reason at all. However, an employer may not fire an employee in violation of a State or Federal Regulation protecting the employee. Not knowing what the laws are is NEVER a defense.
It’s easy to violate the law without even knowing it! Whether or not you realize you’ve violated a law is irrelevant. There are so many Federal and State laws that protect employees, an employer may inadvertently violate one or more without even realizing it. Let an experienced Employment Law Attorney help you protect your business.
Although not exhaustive, state and Federal laws enacted to ensure employees retain certain rights and protections include; Title VII of the Civil Rights Act of 1964 (amended in 1991), the Americans with Disabilities Act (ADA) as amended by the ADAAA of 2008, the Family and Medical Leave Act (FMLA”), the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the Age Discrimination in Employment Act of 1967 (ADEA), the Fair Labor Standards Act (FLSA), the Genetic Information Nondiscrimination Act of 2008 (GINA), the Occupational Safety and Health Act of 1970 (OSH Act), the Pregnancy Discrimination Act (PDA), the Employee Polygraph Protection Act (EPPA), the Fair Labor Standards Act (FLSA), the Employee Retirement Income Security Act of 1974 (ERISA), the Uniformed Services Employment and Reemployment Rights Act (USERRA), the Equal Pay Act of 1963, the Worker Adjustment and Retraining Notification Act (WARN), the National Labor Relations Act (NLRA), the Immigration Reform and Control Act of 1986 (IRCA), and the Texas Labor Code Chapters, 21, 22, 51, 61, 62 and 81.
DON’T MISTAKE YOUR EMPLOYEE FOR AN INDEPENDENT CONTRACTOR
Generally, an employee is one who is engaged in a business of his own, is one who “follows the usual path of an employee” and is dependent on the business that he serves. An individual is an Independent Contractor if the payer of the services has the right to control only the result of the work and not what will be done and how it will be done. Although no single factor is controlling, the Supreme Court has set forth factors to be considered significant in making the Independent Contractor determination.
- The extent to which the worker’s services are an integral part of the employer’s business.
- The permanency of the relationship.
- The amount of the worker’s investment in facilities and equipment.
- The nature and degree of control by the principal.
- The worker’s opportunities for profit and loss.
- The level of skill required in performing the job and the amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent enterprise.
DO NOT EVER make the mistake of treating your Employee as an Independent Contractor. Doing this may lead to serious problems, including trouble with the U.S. Department of Labor, or the Texas Workforce Commission.
UTILIZE PREVENTATIVE COUNSELING
Become compliant with the laws before you have a problem. Don’t wait for the Department of Labor, the Texas Workforce Commission or the Equal Employment Opportunity Commission (EEOC) to sanction your business for non-compliance with State or Federal Regulations. Consult with an Experienced Employment Law Attorney who can bring you into compliance before a problem exists.
DON’T HIRE OR CONTRACT WITH ILLEGAL ALIENS
In general, it’s unlawful to hire, recruit, refer for a fee, or contract for services with an illegal alien. HOWEVER, it is also unlawful to discriminate against legal immigrants.
An employer should never assume an applicant is legal or illegal, especially based on certain characteristics such as place of birth, national origin, or an accent.
This area of Employment Law is difficult and tricky, so it’s best to hire an Experienced Employment Law Attorney to guide you.
FIGHT ERRONEOUS UNEMPLOYMENT COMPENSATION CLAIMS
An employer may only dispute an unemployment claim when it fires an employee for MISCONDUCT. Some examples of misconduct are violation of company policy, violation of law, neglect or mismanagement of the position, or failure to perform work adequately if the employee is capable of doing so. When an employee is guilty of misconduct the employer should document this and try to follow its own policies and procedures – when doing so will not jeopardize the health and safety of other employees or the public.
Sometimes it becomes necessary to terminate an employee – it’s always best to consult with an Experienced Employment Law Attorney before you make a decision to terminate.
PAY EMPLOYEES FOR OVERTIME
Under the Fair Labor Standards Act (FLSA), covered nonexempt workers are entitled to a minimum wage of not less than $7.25 per hour effective July 24, 2009. Overtime pay at a rate not less than one and one-half times the regular rate of pay is required after 40 hours of work in a workweek. A Non-Exempt Employee differs from an Exempt Employee.
“Exempt” employees are exempt from the overtime pay provisions of the FLSA, some from both the minimum wage and overtime pay provisions and some from the child labor provisions of the FLSA. Exemptions are narrowly construed against the employer asserting them and the burden of supporting the actual application of an exemption rests on the employer.
“Non-Exempt” employees must be paid overtime anytime they work over 40 hours in an individual workweek. Although there are some exemptions to this rule, never assume your employee is exempt, and never pay a non-exempt employee a salary to avoid paying overtime wages – this is an unlawful practice.
It’s important to know who is Exempt and who is Non-Exempt, and what the exceptions to the rules are. It’s always best to contact an Experienced Employment Law Attorney whenever there is a question.
IMPLEMENT A POLICY MANUAL
It’s important to create regulations for your business in order to acquaint employees with the organization and provide information about working conditions and some of the policies affecting their employment. This will create a roadmap for the management and for the employees so that everyone involved will understand how to handle problems if they arise and what procedures to follow.
Certain types of discrimination claims require the employee (or the claimant) to file a complaint with the EEOC (Equal Employment Opportunity Commission) before you may take legal action against the employer. In my opinion, is not a good idea to go through this process without a lawyer.