25 Jun BOP Newsletter Summer 2021
BOP NEWSLETTER • Summer 2021
Setting the Culture: Negative Policies and Your Team
by Alan Twigg & Tim Twigg
Everyone is struggling with hiring right now. Due to many pandemic-related and unrelated factors, there just aren’t enough qualified candidates for all of the job openings. This means any decent or stellar employee currently in your office should be treated like a rare and precious asset. No employee should be treated as disposable in today’s economy.
Employee and team engagement is a critical component to keeping your employees around. Disengaged employees will seek a better environment somewhere else, and in this market, they will have no problem finding another employer. Engagement goes beyond just wages and benefits. It encompasses trust, respect, appreciation, recognition, and support. In other words, your overall culture.
What is your office culture? What words would you use to describe it? Overall, how positive or negative is it? How forward-thinking is it? How easy is it to discuss and implement change? What is the new-hire experience like? How do your employees feel on a day-to-day basis?
Obviously, if you are dealing with a toxic employee situation right now, that is an acute challenge which should be worked through as soon as possible. As always, if you want guidance on how to navigate your particular situation, our HR Specialists can assist you with what to do, what to say (or not say), how to document it, and so on. Our colleague and friend Katherine Eitel-Belt is also a great resource for having these types of “courageous conversations.”
Beyond the toxic employee, as an employer, it is important to always ask yourself, what, if anything, are you doing that might be contributing to an undesirable culture and a lack of engagement? Sometimes, it is your policies that can lead, in subtle ways, to an overall culture of negativity, lack of trust, and fear.
Use the following questions and scenarios to see if any apply to you and, if so, learn how you might change it.
1 – Do you have policies that punish employees for small mistakes?
For example: maybe you put a policy in your manual/handbook that if employees lose their paycheck, they have to pay the stop-payment-reissue fee. Or, if they lose their parking pass, they have to pay for the replacement cost.
This might be the result of a bad experience once when someone somewhere sometime lost a paycheck or parking pass. Now this financial punishment on future employees feels justified in order to mitigate the inconvenience on you or the office.
Often, these charges are arbitrary and inconsistent. Why have an employee pay a $25 check-replacement fee but not pay for $50 in supplies that are mistakenly thrown away, or pay for a broken tool, or pay a proportionate amount for equipment that was used incorrectly and wore out faster than normal?
Whether or not these types of charges are allowable is a topic for another article. In general, they are not, or they have requirements that must be met first, or they have certain limitations on how much can be collected and how, and so on. This is an area that requires knowledge about federal and state rules before implementation in order to ensure compliance and avoid liability.
The real questions are: should you have these policies? What sort of message do these arbitrary and minimal cost policies convey in your office? How would these policies look to a brand-new hire, reading your manual/handbook for the first time? Let’s say your office is financially successful, this person is excited to begin a new career chapter at your particular office, and now they learn that the office won’t absorb a one-time $25 mistake. Does this inspire confidence and trust, especially as a first-impression?
As an alternative, you could take each situation on an individual case-by-case basis. If an employee loses their paycheck once, chalk it up to “mistakes happen” and move forward. If an employee loses their paycheck multiple times, treat this like any other performance issue and proceed accordingly with disciplinary action (verbal and/or written counseling, suspensions, termination).
2 – Do you have strict and punitive policies about employees paying back money for continuing education (CE) courses if their employment ends?
This one is often a reaction from one employee, in the past, who attended a CE course and then resigned. The most extreme versions require an employee to pay back the full cost regardless of when their employment ends. In this case, someone could attend a course in 2021, quit in 2023, and have to pay hundreds, maybe thousands, of dollars back to the office.
As with #1 above, these policies are illegal in some states, and difficult to collect in-full even if allowable, regardless of whether there is a signed agreement. Furthermore, if the costs associated with CE events are required to be paid by you, which is often the case, then it can’t be recouped even if you want it to be. When viewed as the “cost of doing business,” the burden can’t be placed on the shoulders of your employees.
We understand the desire for fairness and recouping your investment. A “middle ground” position could be a loan program where the cost is paid back in a forgiveness manner over a set period of time (assuming recouping this cost is allowable by law).
For example, the course is $2,400, and you agree that it will be paid/forgiven in 2 years, or 24 months. This is a monthly payment of $2,400 ÷ 24 = $100. Therefore, each month that the employee remains employed, the $100 is forgiven. If employment ends after 12 months, the employee would owe half of the total, or $1,200.
Again, how you would be able to collect this amount is a different matter altogether. Like #1, state and federal laws come into play and have limitations that must be applied.
Another perspective is seeing these costs as a good-faith investment in your team. In general, when you invest in your employees, they invest in you. Are there selfish bad apples out there? Absolutely. That’s why background checks, reference checks, calling past employers, and ensuring due diligence in your hiring practices are so important. But don’t let the fear of one bad apple ruin the investment and positive growth on the whole. Your team is your competitive advantage and worth investing in.
Spend some time thinking about your Unique Employee Proposition (UEP). Why should someone work for you versus the office down the street? If a person is experienced, qualified, and has a fantastic attitude, what do you offer that is unique and special? Anyone can compete on money or benefits. Long-term retention of quality employees comes from your office culture, and how you make the people feel.
3 – Have you spent significant time debating whether to payout unused sick time, vacation, or PTO at termination? Or requiring 2-weeks’ notice to payout unused benefits?
This one is also born out of bad experiences where an employee uses their vacation and quits immediately. This can result in an employer adopting complicated paid time off calculations, strict controls on usage, changing to a system of “advancing” time off benefits so the employee “owes” them back if they quit at a certain point, outright elimination of all paid time off benefits, and other such modifications all in an effort to protect oneself in the future. Employers will spend precious time trying to determine the exact way to prevent this at all costs, some of which may or may not be legal depending on your state laws.
Something that will definitely cost more than paying out paid time off benefits is turnover. Turnover estimates consistently put the total cost equal to that person’s annual salary (or more depending on the position and how long it takes to fill it and get the new person up to speed.) So, if you lose an employee who makes $45,000/year, then your office will ultimately suffer at least a $45,000 loss in direct and indirect costs. Compared to these numbers, one week of vacation is an incredibly small impact.
Rather than focus on recouping the cost of paid time off, focus on why this person quit in the first place. The reasons for turnover have been covered in other articles, but the short version is this: happy, engaged, and appreciated employees don’t quit. When leaving, they might say “I can make more money at another office.” What they are really saying is “I’m not making enough money to put up with this work environment.”
Now, flip your hat from employer to employee: Would you work for you? How would you feel if you were considering working for you and these were the rules and policies in place?
This article might persuade you to revisit your written policies and adjust or eliminate them—that is a good first step.
Next is asking yourself, how do you view your team? Do you think of them as an asset or a liability, a resource or an expense? Don’t let a negative perception worm its way into your entire office culture.
The team you have is hopefully your team of the future—a team of capable, decent people who genuinely want to do a good job. They may not be perfect (no one is) but they want to support you and be supported in turn.
Employee and team engagement is absolutely possible; it’s never too late to start. We have clients who experience little to no turnover. Their employees show up on time, work hard, have a great attitude, and stick around. Are these offices just plain lucky? No. Whether intentionally or unintentionally, these offices view their employees in a positive light and continually demonstrate their appreciation. The engagement results speak for themselves.
Ask around and see who hasn’t had to hire a new employee for 5, 10, 20, or 30 years. You will hear (as we do) inspiring stories of focusing on the future. If you want the positive office culture you’ve dreamt about, it begins with your leadership, the tone you set in your verbal and written communications, and a consistent focus on employee and team engagement.
Q: We have a new employee recently out of school, and we’d like her to get additional training to increase her skills. The cost of the training course is $425 dollars and is on a Saturday. We have told her we will pay the course fees but not her time attending it on a Saturday. The course fees are nonrefundable within 7 days of the event date.
In doing this, we’d also like to have her sign an agreement stating that if she doesn’t attend the course, then the amount we paid would be deducted from her paycheck.
Can we do this? What are your recommendations?
A: Unfortunately, this is a course in which you would have to pay her, by law, to attend. I base this off of two things:
- You have asked this person to attend.
- This is directly related to her job.
In order to avoid compensation requirements when employees attend continuing education courses, there are 4 criteria that must be met. The two items listed above do not meet 2 of the 4 criteria.
To comply with the law, you will need to pay her for her time traveling to and from the event (minus any normal commute time to the office) as well as her time spent in the training.
This can be paid at a different capacity work rate as long as that rate is minimum wage or higher and is agreed upon, in writing, prior to the course.
If this causes her to go into overtime for the week, then overtime pay would also be required.
Expenses, such as tuition, can be on the employee up to a point. Minimum wage standards must be upheld at all times. Therefore, if subtracting $425.00 from her pay for the week in which she attends the event would cause her wages to drop below minimum wage (before taxes), then the employer must pay for some or all of the expenses in order to make that person’s paycheck whole.
As for requiring her to pay you back under certain conditions, that will only work for the cost you incur that is above what you are required to provide by law. Therefore, you could not get paid back for her time, but you might be able to try to get some of the tuition back if you didn’t have to pay for all of it by law. In other words, if, by law, you must pay for half of the $425.00, then you could only seek to get paid back for half.
Paycheck deductions are limited under the law and may not be allowable in this case. You would need to check with your state’s law to be certain. Otherwise, you may ask for it to be repaid, but would have little recourse if it didn’t happen other than very time-consuming actions like small claims court.
Q: Last year we increased one of our employee’s job duties, after discussing it with her, and gave her a raise. At that time, we also asked her to increase her schedule once she graduated from her college classes. Specifically, we wanted her to work five, 8-hour days instead of four, 10-hour days. Although she agreed, she changed her mind once she got closer to graduation.
Now, a few months have gone by, and we have identified that her schedule of four, 10-hour days is proving to be a hardship on the business. We really need her, along with other employees, working Monday – Friday. We would like to reopen the conversation of changing her schedule.
What are our rights? For that matter, what are her rights? Can we stipulate that this change is a requirement to keep her position?
A: Employers have the right to change employees’ schedules and hours, whether that’s an increase or a decrease. You can even make this a requirement of the job and, if the individual does not agree, it can result in termination of employment.
While decreasing hours is pretty straightforward, one catch to this would be the reason(s) someone may have for not being able to increase their hours and whether or not they’re protected under some law. For example, if the employee is pregnant and says that she can’t physically work more due to her pregnancy after consulting with her doctor, then that may need to be accommodated during the pregnancy. Likewise, if someone has a medical condition or a disability, which causes them to be unable to increase their hours, then that may need to be accommodated, depending on the circumstances and the documentation obtained.
If the reason is just “I don’t want to,” then that would not be protected at all and could result in ending someone’s employment.
I would start by re-engaging with her about the situation. Tell her that the needs of the business have changed and, while it was okay originally that she did not change her hours, that’s not the case now. She will need to work the new schedule. If she doesn’t provide any valid reason beyond not wanting to, then advise her that the new schedule is required and by her refusal that means she will be effectively ending her employment by resigning.
Q: When we were unable to provide a raise to one of our employees after she asked for one, she told us she would be resigning. She gave us a month’s notice. However, over the weekend, she sent a message through our Whatsapp group stating that we don’t appreciate her, are bad people for posting a job for her position, and would not be coming to work anymore with us. Can we take this message as her immediate resignation? Can we send her a letter stating she cannot contact any of our patients now that her employment is over?
A: Yes, you may count her message as her immediate resignation. We recommend that you finalize the ending of this relationship in writing by sending her a letter confirming her resignation. In this letter, you could say something like:
- Per the message you posted on our WhatsApp group on ___________ (insert date) in which you stated you would no longer be returning to work in our office, we have concluded that you have resigned from your position, effective immediately. We accept your resignation.
As for telling her that she cannot contact your patients, that’s tricky. While she cannot do that via illegal means, such as taking your patient information, there is nothing preventing her from contacting those she may have already established a connection with in some way outside of work. This could be any kind of social media, regular friendships that may have developed, and so on. These actions are legal, which means there’s not much an employer can do about it.
Some states allow for non-solicitation agreements for certain positions. If you’d like to establish this for the future, if allowable, you will need to speak with an attorney in your area.
Q: A newly-hired employee has a personality that seems to be annoying to other employees. One of my trusted employees feels that this may become a problem. Do you have any recommendations of how to constructively address this situation?
A: Why she’s annoying is kind of key to working through this, which is not clear from your question. In other words, is it something that can be fixed?
For example, someone may just have a voice that grates on someone, which can’t be fixed, our voices are permanent. Sometimes the way someone laughs seems annoying to others, which also can’t be fixed. Sometimes people have certain appearance aspects that they can’t change but it bothers other people.
While other things like the language we use when talking, or how we dress, or how we interact with people, or jokes that we tell can be addressed with the goal of fixing the problem.
I think the first step is figuring out if these annoyances are something that can actually be fixed if someone tried. If they are, then the person may be approached and hopefully coached into better behavior. In doing so, you would be specific (what happened, when, where, etc.), explain how it is not appropriate (it was rude, disrespectful, not professional), and then express that it can’t happen again.
If these things can’t be fixed even if someone tried, or the issues are just trivial and do not affect work, then you may have to say, “not everyone has to get along. You just have to be professional and work together as best as possible.” Not everyone will like each other, and some people just rub others the wrong way, but if the person can do their job well, then those people may have to move past it.
If these things are trivial and/or not fixable and it’s just not going to work no matter what, then you’ll have to decide when to say, “I’m sorry but it’s not working out” and end employment. This is tough because having a reason to terminate is hard to come by, unless there are other work-related issues as well. It’s hard to say “we don’t like your voice” or whatever the case may be. But, so long as there isn’t anything else going on that would prevent termination, then a simple, “it’s just not working out” is allowable.
Paid Sick Leave Law in 2022
Beginning on July 1, 2022, New Mexico private employers will be required to provide paid sick leave to their employees. Here are some basics of the Health Workplaces Act (HWA):
- Applies to all employers with 1 employee
- Employees will accrue one hour of paid sick leave for every 30 hours worked, up to a total of 64 hours a year.
- Employees may use paid sick leave for the following reasons:
- Mental or physical illness, injury, or health condition (for employee or employee’s family member);
- Medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition (for employee or employee’s family member); or
- Preventive medical care (for employee or employee’s family member);
- For meetings at the employee’s child’s school or place of care related to the child’s health or disability; or
- For absence necessary due to domestic abuse, sexual assault, or stalking suffered by the employee or a family member of the employee.
- Employers with paid time off (PTO) policies that provide the minimum amount of leave required by the HWA (i.e., 64 hours) may use their PTO policy to comply with their HWA requirements, so long as employees can take PTO for the same reasons set forth in the HWA and under the same terms and conditions.
Expanded Disability Discrimination Protections
Effective July 1, 2021, Virginia further expands the scope of the Virginia Human Rights Act (VHRA) to prohibit discrimination on the basis of disability.
Under the expanded VHRA, employers will be required to make reasonable accommodation to the known physical and mental impairments of an otherwise qualified person with a disability, if necessary. Further, employers will be prohibited from:
- Taking any adverse action against an employee who requests or uses a reasonable accommodation;
- Denying employment or promotion opportunities to an otherwise qualified applicant or employee because the employer will be required to make reasonable accommodation to the applicant or employee;
- Requiring an employee to take leave if another reasonable accommodation can be provided to the known limitations related to the disability; and
- Failing to engage in a timely, good faith interactive process with an employee who has requested an accommodation to determine if the requested accommodation is reasonable, and if such accommodation is determined not to be reasonable, discuss alternative accommodations that may be provided.
An accommodation must be provided, unless an employer can demonstrate the accommodation would impose an undue hardship.
Workplace Safety and Health Law
According to the NY Department of Labor, the Health and Essential Rights Act (HERO Act) “is intended to prevent current and future occupational exposure to airborne infectious diseases at workplaces throughout New York state. This new law:
- Requires the Department of Labor, in consultation with the Department of Health, to create and publish a general model airborne infectious disease exposure standard for all worksites and, where appropriate, differentiated by industry. The standard must include retaliation protections and be published in English and Spanish
- Requires private employers to establish an airborne infectious disease exposure plan by adopting the model standard, or an alternative plan that equals or exceeds the model standard
- Requires employers to provide written notice to workers about the model standard
- Authorizes the Department of Labor and the New York State Attorney General to take appropriate enforcement measures
- Allows employees to establish and administer joint labor-management workplace safety committees.”
This is a developing issue for NY employers. For more information as it is provided by NY, please visit: https://dol.ny.gov/ny-hero-act
Amends Pay Equity Law
The new law, which goes into effect on October 1, 2021, extends the prohibition on sex-based compensation discrimination to comparable as opposed to equal work, and imposes new requirements on Connecticut employers to disclose the wage range for vacant positions to both job applicants and existing employees.
Under the new law, a Connecticut employer cannot:
- Fail or refuse to provide an applicant for employment the wage range for a position for which the applicant is applying, upon the earliest of (a) the applicant’s request or (b) prior to or at the time the applicant is made an offer of compensation.
- Fail or refuse to provide an employee the wage range for the employee’s position upon (a) the hiring of the employee, (b) a change in the employee’s position with the employer, or (c) the employee’s first request for a wage range.
“Wage range” is defined as the “range of wages an employer anticipates relying on when setting wages for a position.” It can include reference to pay scales, previously determined wages for the position, actual ranges for the employees who currently hold a comparable position, or the employer’s budgeted amount for the position.
New Legislation Significantly Impacts Employers
Senate Bill 1480 amends the Illinois Human Rights Act, the Illinois Business Corporation Act, and the Illinois Equal Pay Act of 2003. The amendments are available at: https://www.ilga.gov/legislation/publicacts/101/101-0656.htm.
Human Rights Act Amendment − Consideration of Criminal Histories; Effective immediately: Requires additional steps when reviewing an individual’s criminal record. The amendment makes it a violation to discriminate against an individual based on prior convictions unless:
- there is a “substantial relationship” between the conviction(s) and the position sought; or
- granting the employment or continuation of employment would involve an “unreasonable risk” to property or the safety or welfare of specific individuals or the general public.
If the employer determines that it will not offer employment to an applicant or that it will disqualify an employee for a new position based on his or her criminal record, the employer must first notify the individual of the preliminary decision in writing, and the notification must include:
- notice of the disqualifying conviction(s) that are the basis for the preliminary decision and the employer’s reasoning;
- a copy of the conviction report; and
- an explanation of the individual’s right to respond to the notice before the employer’s decision becomes final.
The employee must be given at least 5 business days to respond to the notification.
If the employer makes a final decision to disqualify or take adverse action against the individual based on the conviction record, the employer must provide the applicant or employee with notice of the disqualifying conviction(s) that are the basis for the final decision, any information about the individual’s right to challenge this decision if such a process exists, and must also inform the individual about his/her right to file a charge with the Illinois Department of Human Rights (IDHR).
For more information, visit the IDHR Frequently Asked Questions page on its website: https://www2.illinois.gov/dhr/FilingaCharge/Documents/IL%20SB1480%20-%20Conviction%20Record%20Protections%20FAQ%20from%20IDHR.pdf.
Business Corporation Act Amendment – Reporting Employee Demographic Information. Each domestic or registered foreign corporation that is required to file an EEO-1 report with the Equal Employment Opportunity Commission (EEOC) must provide substantially the same information to the Illinois Secretary of State in a format approved by the Secretary of State, which will publish the data on the gender, race, and ethnicity of each corporation’s employees on its official website. Employers will have to meet this new obligation by including the employee demographic information with the corporation’s annual report filed on and after January 1, 2023.
Equal Pay Act of 2003 Amendment – Equal Pay Registration Certificate Required. Requires private employers with more than 100 employees in the State of Illinois to obtain an “equal pay registration certificate” from the Illinois Department of Labor (IDOL) by March 24, 2024.
New Overtime Wage Law Enacted
Beginning July 1, 2021, Virginia employers will be subject to new state overtime pay requirements. Previously, Virginia had been content to rely on the overtime pay requirements of the federal Fair Labor Standards Act (FLSA).
As with the FLSA, the Virginia Overtime Wage Act obligates employers to pay one and one-half times an employee’s “regular rate of pay” for hours worked in excess of 40 in a workweek. Under the FLSA, an employee’s “regular rate of pay” is the sum of all remuneration for employment (barring certain statutory exclusions) divided by total hours worked in a workweek.
The Virginia Overtime Wage Act employs a different calculation for determining an employee’s “regular rate of pay” that depends on whether the employee is paid on an hourly or a salary basis.
For hourly employees, the regular rate of pay is the hourly rate plus any other non-overtime wages paid or allocated for the workweek — not counting the same items that would be excluded from the FLSA calculation — and then divided by the total number of hours worked in the workweek. For employees who are salaried or paid on some other regular basis, the regular rate of pay is one-fortieth (0.025) of all wages paid for the workweek.
Vaccination Status a Protected Class and Limits Inquiries into Immunization Status
Under House Bill 702, which was effective immediately, Montana became the first state to recognize an individual’s vaccination status as a protected category. The law also prohibits employers from requiring employees to disclose their immunization status and bars employers from requiring employees to receive certain types of vaccines or to possess an immunity passport.
This law states that employers may not discriminate against or refuse to employ an individual based on whether the person has been vaccinated or possesses an immunity passport. Further, it bars employers from requiring employees to receive vaccines, such as the current COVID-19 vaccine.
New Laws to Prepare for the Next Pandemic
During a public health emergency regarding infectious or contagious disease, the Health Emergency Labor Standards Act (HELSA) provides “frontline employees” who are exposed “through respiratory droplets or aerosols or contact with contaminated surfaces” with a rebuttable presumption of an “occupational disease” required for workers’ compensation coverage.
Senate Bill 5190 provides a stronger presumption of workers’ compensation coverage for healthcare workers exposed to any disease causing a public health emergency. To overcome that presumption, an employer must provide clear and convincing evidence, a higher burden than a preponderance of the evidence under HELSA.
HELSA also codifies some protections of the High-Risk Worker Proclamation. During a public health emergency, no employer may discharge, permanently replace, or discriminate against an employee who is “high risk” for seeking accommodation regarding exposure or, if no accommodation is reasonable, utilizing all available leave options, such as unpaid leave and unemployment insurance.
The law defines a “high risk” employee as one whose:
- Age or an underlying health condition puts them at high risk of severe illness from the disease creating the public health emergency, as defined by the CDC; and
- Medical provider has recommended removal from the workforce.
Finally, under HELSA, employers with more than 50 employees have 24 hours to inform the state that 10 or more employees at a worksite test positive for the disease creating a public health emergency. All employers have one business day to notify workers at the location where a person tests positive, is diagnosed, ordered to isolate by a public health official, or dies of the disease. The notice must be written but may not identify the ill worker.
Legalizes Recreational Marijuana, Protects Lawful Off-Work Use
As mentioned in a previous newsletter, Initiative 190, which legalized recreational marijuana, was passed by the voters in November 2020. Recently, Governor Greg Gianforte signed legislation designed to establish the framework for recreational marijuana.
Of particular importance to employers, the legislation will amend Montana’s definition of “lawful products” to include marijuana. As a result of this amendment, employers will be prohibited from taking adverse action against an employee for lawful use of marijuana when off-duty, subject to various exceptions in the law.
- Workplace use/possession can be prohibited.
- Driving under the influence or impaired is not permitted.
- Employers may continue to take adverse action against employees if their off-duty marijuana use:
- affects employees’ ability to perform job-related employment responsibilities or the safety of other employees;
- conflicts with a bona fide occupational qualification that is reasonably related to the employees’ employment; or
- violates a personal service contract with an employer and the unique nature of the services provided authorizes the employer to limit the use of marijuana (or other products).
- An employer can also take adverse action if the employer is a non-profit organization whose primary purpose or objective discourages the use of marijuana.
- Limited safe harbor for established policies and agreements.
The amendments appear to make it clear that an employer’s ability to act based purely on a positive marijuana drug test is no longer an option. While testing is not prohibited, employers cannot reject an applicant or take adverse action against an employee solely because they use or test positive for marijuana
Expanded Requirements for Lactation Rooms at Worksites
The new law, which goes into effect October 1, 2021, requires employers with one or more employees “to provide a room or other location, in close proximity to the work area,” where a woman can express milk in private. The room or location cannot be a toilet stall.
Furthermore, these areas must also “(1) be free from intrusion and shielded from the public while such employee expresses breast milk, (2) include or be situated near a refrigerator or employee-provided portable cold storage device in which the employee can store her breast milk, and (3) include access to an electrical outlet.”
Employers must “make reasonable efforts” to offer the above so long as there is no undue hardship on the employer’s business operations.
Fifth Circuit Rules Incomplete Payroll Records Led to Employer Liability
The Fair Labor Standards Act (FLSA) requires employers to pay non-exempt employees overtime wages for all hours worked in excess of 40 hours in a workweek. Additionally, the FLSA imposes recordkeeping requirements on employers regarding the hours worked by their nonexempt employees. In U.S. Department of Labor v. Five Star Automatic Fire Protection, LLC employers can see the danger in failing to comply with these requirements.
A little background: the 53 construction workers employed by Five Star Automatic Fire Protection, LLC would travel to client sites to install and/or repair fire protection equipment. These employees typically worked from 7:00 a.m. to 3:30 p.m. The company’s personnel policy required employees to record all the hours they worked. However, testimony from employees uniformly reflected that they were required to show up between 15 and 30 minutes before the start of their shifts at 7:00 a.m. and/or were either explicitly told, or it was implied, that they could not record their time prior to 7:00 a.m. Additionally, the employees did not record their time from the end of their shifts at client sites for their travel back to the company’s premises at the end of the day.
In making its ruling, the Fifth Circuit applied Anderson v. Mt. Clemens Pottery Co., a 1946 decision by the Supreme Court of the United States holding that if an employer does not keep accurate time records, the employees’ testimony regarding the hours they worked may provide an inference of correctness as to the hours worked. If the time records are inadequate to reflect the time worked and an employee “‘produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference[,]’ [t]he burden then ‘shifts to the employer to [produce] evidence of the precise amount of work performed or … evidence to negat[e] the reasonableness of the inference’” in favor of the employee. The Fifth Circuit determined in this case that because the produced time records did not reflect the pre-shift and post-shift times worked, the employees’ testimony provided a reasonable inference of the time that they had worked and the employer could not rebut such evidence because it lacked accurate records. The Fifth Circuit affirmed the trial court’s award of back pay and liquidated damages to the employees.
Texas Court Rules that Texas Law Protects Against Sexual Orientation Discrimination
In Tarrant County College District v. Sims, No. 05-20-00351 (March 10, 2021), the Court of Appeals for the Fifth District of Texas held that “claim[s] of discrimination based on sexual orientation may be brought under the Texas Commission on Human Rights Act (TCHRA).”
In the court case, the plaintiff sued Tarrant County College District (TCCD) alleging discrimination based upon her sexual orientation in violation of the Texas Constitution and retaliation under the Texas Whistleblower Act.
The Fifth Court of Appeals determined it was appropriate for the court to “look to federal law for guidance.” Recently, the Supreme Court issued its opinion in Bostock, wherein the court held that Title VII’s prohibition on discrimination “because of … sex” prohibited an employer from discriminating against an individual for being homosexual or being a transgender person.
Consequently, the Fifth Court of Appeals concluded that it must follow Bostock “[i]n order to reconcile and conform the TCHRA with federal anti-discrimination and retaliation laws under Title VII” and held that “the TCHRA’s prohibition on discrimination ‘because of … sex’ … prohibit[ed] discrimination based on an individual’s status as a homosexual or transgender person.”