Changing Legal Landscapes: Employment Issues Affecting Your Business.
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Transcript of Changing Legal Landscapes: Employment Issues Affecting Your Business.
Changing Legal Landscapes:
Employment Issues Affecting Your Business
Top Ten Texas Employment Law
Traps
First Trap:Something for Nothing -
Provisional/Probationary/Temporary Employees
Embrace the at-will doctrine
• The At-Will Doctrine in Texas– At-will is the rule in Texas
– Terminate relationship at any time, with or without notice, for any reason (or no reason) so long as it is not an illegal reason
– Creating probationary/provisional/temporary employee relationships waters this down
At Will Doctrine Still Supports Non-Competes
• Even at-will employees can sign non-competes– Consideration has to be something
like specialized training, confidential information, or goodwill (which included stock option plans)
– Even in absence of non-compete agreements, at-will employees owe common law fiduciary duties
– More on this topic can be found at Dave Evans
Second Trap:Ignoring Unemployment
Claims
The Benefits of Fighting UI Claims
• Free deposition
• May embolden a would-be plaintiff
• May impact your bottom line more than and longer than you think
Third Trap:Taking the Bait
The principle of the matter …
• Settle complaints quickly unless compelling reasons to do otherwise– Consider arbitration agreements for
every employee
– Litigation costs are crippling
– The Retaliation Hydra
Fourth Trap:Assuming too much
Just because you have employees, doesn’t make you an “employer” under all statutes• Just a few examples …
– Family Medical Leave Act • 50-employees/75 mile radius
– Title VII/Age Discrimination in Employment Act • 15-employee minimum
– Americans with Disabilities Act • 15-employee minimum
Fifth Trap:Not assuming enough
The gay marriage ruling I’ve heard so much about won’t affect my (small) business
…
Sixth Trap:Misclassifying
Independent Contractors
Independent Contractors Misclassification:
• Has both state and federal dimensions
• Hot button issue due to declining receipts and/or increased claims
• TWC has guidance both on UI and IRS– Slanted against ind. contracting
relationship
• When in doubt, treat as employees because TWC and IRS can change their minds
Seventh Trap:Misclassifying FLSA Exempt Employees
Fair Labor Standards Act
• Most violated employment law in the nation– Labels don’t matter– Agreements don’t matter– Salaries don’t (really) matter – Duties are the key factor (but impossible to
understand)– Damages can be staggering
Eighth Trap:Calling An Attorney Too
Late
Call Attorney Early in the Process
• Consultations should be free or low cost, but could help you avoid tremendous cost down the line.
• May be covered by insurance anyway
• Checks your blind-spot, especially with respect to comparative evidence
Ninth Trap:Getting Sued Away from
Home
Venue Issues
• Do not personally recruit in venues you would not want to litigate in
• Be careful what you say about a former employee to anyone, especially if they are from another town– Only confirm name, rank and serial
number• Consider choice-of-venue
provisions in all of your contracts, including employment contracts for certain workers
Tenth Trap:Paper Giveth, Paper Taketh
Away
Be careful what you document
• DO use paper to document disciplinary measures, even if not provided to employee.– Oral discipline with emails to file– Just the facts - leave details and
emotions out of the equation– Discuss content with recipient
before sending• Emails are like zombies, they
never die
Practice What You Print
• Let your practices dictate your policies, not vice-versa
• Mimic the Texas Workforce Commission’s “Handbook for Texas Employers” on-line
• Leave yourself room to manuever
Preach What You Print
• Train your management to follow policies
• Audit employment decisions, especially for comparative past treatment of other employees
• Remember retaliation is its own protected classification, and perhaps the most dangerous