The workplace has myriad employment law issues, from employment “at will” to wages and benefits, from privacy to the use of social media at work.
A panel of three Fort Worth attorneys – Leslie L. Hunt, Caroline Harrison and Monica Narvaez – answered questions relating to their employment practice specialty during a presentation May 21 at the Fort Worth Business Assistance Center.
Hunt, a shareholder at Decker Jones PC, primarily focuses on employment law, business litigation and probate litigation.
Harrison is a partner at Cantey Hanger LLP and a member of the firm’s labor and employment practice group. She focuses on employment litigation and counseling. She assists employers in a variety of areas, including issues of discrimination and retaliation based on gender, race, age, national origin, disability and religion.
A native of Ohio, Narvaez moved to Texas in early 2013 to join the Underwood Law Firm’s main office in Amarillo. She relocated to its Fort Worth office in December 2014. Before joining Underwood, Narvaez was an assistant Ohio attorney general and a human resources policy attorney for the state of Ohio.
Their discussion, part of the Breakfast at the BAC Speaker Series, was moderated by Mike Coffey, president of the human resources firm Imperative Information Group.
Following is a sampling of topics covered during the one-hour panel discussion:
Coffey: One thing that comes up all the time is “at will.” A lot of people have this idea “at will” means they can do whatever the hell they want to with their employees. What does “at will” really mean?
Narvaez: It’s an illusion, I would say. In general, most employers think they can fire people whenever they want. They also think that there’s a probation. The reality is you need policies and procedures to offer protection. You need to give notice and check off the box on certain things with employees because it’s almost like they have protections that aren’t written. You do need policies on things and you do need notices. You just have to be very careful.
Coffey: What kind of mistakes do you see employers making with “at will”?
Harrison: Not documenting when they have a discipline issue. It’s pretty common to have somebody ready to terminate a person but when [the human resources department] asks why they want to terminate, they have not documented the discipline issues. With “at will,” you can still terminate them but you have to realize that if they are in a protected class they might be able to make an argument because of their protected status. A well-documented file will help you tremendously.
Hunt: I have found that probationary periods are more detrimental to the employer because it does give weight to the argument that for those 90 days you are guaranteed a job, even if you say in your handbook that you’re not. It’s just better, in my opinion, that employers should ditch the probationary period. There’s no reason for it. If they mess up after 90 days you’re allowed to terminate them if they’re at will unless there’s some sort of ulterior motive. The policies that are important are under scrutiny right now by the National Labor Relations Board. I do recommend you make sure your policies are up to date and are not violating some new recent development in the law.
Coffey: The two most dangerous phrases for an employer to hear in Texas are “at will” and right-to-work. Most people have no clue what that means. What does right-to-work mean here in Texas?
Harrison: I think a lot of people use it interchangeably with the term “at will.” What we’re talking about is the fact that we have unions but you don’t have to be a member of a union in order to work at a [unionized] business. If you have a manufacturing plant, for example, the union cannot require you to become a member.
Hunt: And just to add something on the National Labor Relations Act, for the longest time employers thought if they did not have unions in their workplace the National Labor Relations Act had no application. Since the last [Obama] administration the National Labor Relations Board has made very clear that there are sections of that act that apply to non-unionized workplaces. They’re really focusing right now on non-unionized workplaces, especially in Texas.
Coffey: Another area the NLRA is paying a lot of attention to is employee expressions on social media. You don’t want your employees saying something stupid or embarrassing about your company or your customers on Facebook or Twitter. Does anyone want to chime in on that?
Narvaez: I’ve seen it in the school law practice in our firm and it’s kind of mixed. Teachers will say something about their students and they get fired. It opens up a way they can communicate and commiserate with each other but employers may not see it that way. I would suggest you have somebody look at your policy because social media rules change almost every day with the NLRB.
Harrison: The NLRB website has examples of what is and isn’t acceptable in social media. It’s a good resource to use for your policy.
Narvaez: Also, the “at will” statement is on the NLRB website with some pretty good examples.
Hunt: Just to give one example, suppose one of your employees posted on their Facebook page complaints about his work environment and it’s riddled with profanities. The employer doesn’t even call me first. They just terminate because it’s so obvious if an employee does something like that, which is so disrespectful of the company, then surely that’s a reason to terminate. Unfortunately, the NLRB says no. It’s not a solid no; it’s black and white. My advice would be if you terminate because of social media issues just run it by an attorney.
Harrison: A 10- or 15-minute conversation with an attorney at $50 is not that expensive because once you get into a lawsuit you could be looking at $50,000 easily. You can save yourself money by having an attorney at least on retainer.
Narvaez: My approach to everything is just plan. Plan and train and prepare. You have to have policies and procedures in place and training for managers and for employees in all types of things.
Coffey: And there are some good consultants and resources in town who can give you that kind of training.
Hunt: My biggest recommendation is care about whatever it is. Even if they are a troublemaker, go to them and talk to them and make them feel like you care about what they’re complaining about. If they’re talking smack about their supervisor don’t just take the supervisor’s word for it that they’re not mistreating the person. Talk to the person and find out why they’re talking negatively about the supervisor. You need to make sure if something needs to be corrected or changed. It’s the employee who feels ignored that will cost you the most money.
Coffey: Let’s talk about paying our employees. What are some of the biggest mistakes you see employers making in how they pay employees?
Hunt: Overtime. They think if the employee is salaried then they don’t have to pay them overtime.
Coffey: What’s the difference between paying by salary and exempt or nonexempt?
Hunt: You either pay somebody by the hour or by salary. Under the Fair Labor Standards Act, which dictates federal pay, there is not a category of salary workers. It’s exempt or nonexempt. The general rule is that you are not exempt from overtime [pay].
Coffey: What about employees who work overtime and you didn’t ask them to?
Hunt: First of all, if you don’t want your employees to work overtime, you need to write a policy that says you don’t work overtime. If they violate the policy you can discipline them or write them up for violating the policy, but you still have to pay them for that overtime. I wouldn’t advise termination for the first time they violate the policy, but you should give them a stern warning that you won’t allow this again and they could be terminated.