Texas Employment Law - Avoiding a Retaliation Claim

Retaliation is a common complaint by an employee – and one which employers frequently lose. It is possible for an employer to be guilty of retaliation, even when there was no underlying discrimination or harassment.

“Retaliation” means that an employer may not fire, demote, harass or otherwise adversely impact or retaliate against an employee for: (1) filing a charge of discrimination, (2) participating in a discrimination proceeding, or (3) otherwise opposing discrimination. Essentially, anything that would tend to have a “chilling effect” on an employee’s decision to file a complaint or participate in an investigation is considered “retaliation.”

An employer can help avoid a claim of retaliation by refraining from taking any adverse action or attempting to discourage an employee from the following types of actions:

• filing an internal or external complaint of discrimination or harassment for himself or anyone else;
• serving as a witness in an investigation or proceeding related to another person’s complaint of discrimination or harassment;
• informing another employee of their right to file a complaint of discrimination, harassment or request for a reasonable accommodation;
• encouraging another employee to file a complaint of discrimination or harassment.

However, retaliation claims do not make an employee “fire proof.” A court must still find that the employer acted in retaliation because of the employee’s protected action. If you find yourself in a situation where an employee has engaged in protected activity, but that employee has also engaged in conduct that merits disciplinary action, or you have a business reason to re-assign or terminate that employee (such as a reduction-in-force), you should thoroughly document the non-retaliatory reasons for your decision. If you must take action within a short period of time after the employee’s protected actions (up to three or six months), you should consult with an HR or employment law specialist to determine the best way to proceed.

By: Cynthia W. Veidt, Attorney

Texas Child Support Guidelines: What are My “Net Resources?”

Texas applies a percentage formula to the “monthly net resources” of one parent or conservator (called the “obligor”) to determine the amount of child support under statutory guidelines. The percentage changes based on the number of children involved, as will be discussed in a future topic in this blog.

To begin, what are your “monthly net resources?”

“Net resources” include the sum of all sources of income or assets from which income could be derived in a given year. So, “net resources” will include your wages, salary, overtime pay, tips, commissions, bonuses or any other compensation received for your personal services (regardless of whether you are self-employed).

It will also include any severance pay, retirement pay, pension income, social security benefits (other than supplemental security income), unemployment benefits, disability or workers’ compensation benefits, alimony, spousal maintenance, rental income from real or personal property, interest income, stock dividends, royalty income, capital gains, trust distributions, annuity income, gifts and prizes.

This list is not all-inclusive – if you received money, it will most likely be included in your “net resources” unless it falls within a specific exception recognized by the Texas Family Code. Those exceptions include: the return of capital or the return of principal owed to you on a note; accounts receivable; certain welfare benefits (such as food stamps or WIC benefits), foster-care payments, and your spouse’s income. 

From your “monthly net resources,” you may subtract a limited number of items: (a) social security taxes; (b) federal income taxes based on the tax rate for a single person claiming one personal exemption and the standard deduction; (c) state income taxes, if any; (d) union dues; (e) expenses for health insurance coverage for your child; and (f) cash medical support for your child.  You cannot subtract any deductions for contributions to an individual retirement account or 401(k) plan, insurance coverage for persons other than your child, employee stock purchases or similar items. 

By: Cynthia W. Veidt

Firing / Terminating Employees in Texas – Creating a Paper Trail

Earlier in this blog, I mentioned documenting any employee disciplinary actions that you decide to take as an employer.

Documentation helps in a number of ways. First, it will help refresh your recollection of events if your decision is challenged at a later time. Next, it will provide a contemporaneous record to demonstrate that you are not simply “making stuff up” after the fact. And proper documentation can also demonstrate that you acted in a non-discriminatory and non-harassing manner.

When documenting your actions, consider including the following items:

• a copy of your employee policies, with the employee’s signed acknowledgment of those policies;
• a copy of any documents that you reviewed, tests that you performed, and interviews or statements that you obtained when you investigated the incident giving rise to termination;
• a copy of all prior warnings or disciplinary actions that you gave to the employee prior to making the decision to terminate employment;
• a copy of any response or explanation provided by the employee concerning his or her actions;
• a copy of any resignation letter or email from the employee;
• if termination is due to a reduction-in-force or “layoff,” documents reflecting the neutral business-related criteria that you used to select those employees who were terminated; and
• if possible, a signed acknowledgment that the employee has received his or her final pay with a full release of any future claims to overtime pay or other compensation.

When in doubt, particularly if you have had continuing problems with a particular employee, you may wish to consult with an outside legal professional or in-house counsel before taking firing an employee. 

By: Cynthia W. Veidt

 

School Days: How Does “School” Affect My Texas Possession Schedule?

Most Standard Possession Orders (SPO) in Texas make specific reference to weekends extended by student holidays and teacher in-service days, or set the beginning and end of periods of possession by a parent at the time that “school” begins or ends.  But which “school” calendar controls these matters?

Unless defined differently in the specific possession order or divorce decree, “school” in a Texas SPO means either:

1. the primary or secondary school in which the child is enrolled, or  
2. if the child is not enrolled in school, the public school district in which the child primarily resides.

So, for children who are too young to attend school, parents should refer to the calendar for the school district in which the child would attend public school based on his or her primary residence (as established by the parent with the exclusive right to designate the child’s primary residence). 

For children attending private school, or who go to a school outside their “regular” district, parents should follow the calendar of the school in which their child is actually enrolled.

However, when all else fails, parents should remember that they can agree upon a different definition of “school,” and they can always agree to alter the standard possession schedule so that it makes practical sense for themselves and their child. Such agreements should be documented in writing, and signed by both parents to avoid any future disagreements or confusion.

By:  Cynthia W. Veidt

Texas Law Basics for Employers: General Recordkeeping Requirements

What records should Texas employers keep in an employee’s human resources file? And for how long should you keep them?

Each employee should have a separate human resources file which contains, as a general rule of thumb:

• their job application / resume, 
• any background checks or test results that are related to their job duties (see our previous blog post on this topic), 
• a description of their essential job duties and functions, 
• their I-9 form with copies of accompanying identification documents proving eligibility for employment, 
• any offer letters or contracts detailing their compensation structure, 
• signed acknowledgement forms for any company policies and procedures and/or employee handbook, 
• their W-4 form, 
• any applications for benefit programs offered to your employee, 
• records reflecting the hours worked each week by that employee, as well as all paid holidays and all leave or vacation time (paid or unpaid) used by that employee (see separate blog post on FLSA requirements for calculation of overtime pay due to non-exempt employees), 
• performance evaluations, 
• disciplinary actions, and 
• payroll records.

Federal and Texas state laws require that you maintain many of these records for at least two, and sometimes three years.  However, because the statute of limitation for many employment-related claims can be four years from the date of an incident, you may wish to maintain these records for a five-year period. 

By: Cynthia W. Veidt