employment law- issues, avoidance of issues, new case law
TRANSCRIPT
EMPLOYMENT LAW- ISSUES,
AVOIDANCE OF ISSUES, NEW
CASE LAW
Diane R. Kliem Attorney/CPA/Mediator
Presented By:
MISSION STATEMENT
“We provide prompt and responsive legal services to individuals and businesses at reasonable prices and with exceptional quality. We are committed to and active in our communities and dedicated to our clients and take our responsibility as their advocate and representative seriously.”
Our areas of practice
Primary Practice areas:Estate Planning- Wills, Trusts, ProbateFamily Law- Divorce, Child Support & Custody,
Modifications, Adoptions, Paternity
Debt CollectionsBusiness Organization & LitigationGeneral Litigation MattersOil & GasSerious Personal Injury
Other areas of practice:
Contract LawEmployment Law
Real Estate Matters
Website: www.kliemlaw.com
OUTLINE
I. ISSUES TO WATCH OUT FOR EMPLOYEE VS. INDEPENDENT CONTRACTOR DEDUCTIONS AGREEMENTS WITH EMPLOYEES NON-COMPETE AGREEMENTS DISCRIMINATION
II. PROACTIVE STEPS TO TAKEIII. REGULAR REVIEW PROCESSIV. RECENT CASE LAW IN THE
EMPLOYMENT AREA OF LAW
QUESTIONS TO ASK:1. DOES THE BUSINESS HAVE THE RIGHT TO DIRECT
AND CONTROL HOW THE WORKER DOES THE TASK? DOES THE BUSINESS PROVIDE TRAINING TO THE
WORKER? EXAMPLES: a. WHEN AND WHERE TO DO THE WORKb. WHAT TOOLS OR EQUIPMENT TO USE
c. WHAT WORKERS TO HIRE OR ASSIST WITH THE WORKd. WHERE TO PURCHASE SUPPLIES OR SERVICES
e. WHAT WORK MUST BE PERFORMED BY A SPECIFIC INDIVIDUAL
f. WHAT ORDER OR SEQUENCE TO FOLLOW
Employee or Independent Contractor?
2. ARE THERE FACTS SHOWING WHETHER THE BUSINESS HAS A RIGHT TO CONTROL THE BUSINESS ASPECTS OF A WORKER’S JOB? EXAMPLES:
A . UNREIMBURSED EXPENSESB. EXTENT OF WORKER’S INVESTMENTC. WORKER’S SERVICES AVAILABLE TO
RELEVANT MARKETD. HOW THE BUSINESS PAYS THE WORKERE. THE EXTENT TO WHICH THE WORKER CAN
REALIZE PROFIT OR LOSS
KEY: HAS BUSINESS RETAINED THE RIGHT TO CONTROL DETAILS OF WORKER’S PERFORMANCE OR
GIVEN UP THAT RIGHT?
Employee or Independent Contractor?
3. TYPE OF RELATIONSHIPa. WRIT TEN CONTRACT
b. EMPLOYEE TYPE BENEFITSc. PERMANENCY OF THE RELATIONSHIP
d. EXTENT TO WHICH SERVICES PERFORMED ARE KEY ASPECT OF REGULAR BUSINESS
OF THE COMPANY
WRONG CLASSIF ICATION COULD HAVE S IGNIF ICANT LEGAL AND TAX
RAMIF ICATIONS- FOR MORE INFO, SEE U.S . DEPARTMENT OF LABOR ADMINISTRATOR’S
INTERPRETATION NO. 2015-1
Employee or Independent Contractor?
Deduction Issues & Agreements with Employees
Deductions ordered by court or required by law do not require employee authorization, while other deductions must be specifically authorized by the employee to be valid.
Best to have the employee sign a wage deduction authorization listing when hired with all the types of deductions from pay that may arise with the amount for same listed. (Texas Payday Law)
Employee loans and wage overpayments need special handling!
Interesting Fact: Federal law prohibits discharging an
employee due to any one indebtedness that results from a garnishment order
Click icon to add pictureUsual Rule:
Don’t take deductions that would take the employee’s net pay below what they would have made on minimum wage. (Example: Uniforms, Tools).
Properly documented loans, advances and voluntary assignments may be taken even if it means employee nets less than minimum wage. (Cannot use for in house purchases of goods or services).
Treat any employee loan just like a bank for documentation!
FMLA Issues:For deductions that are “make up”, a policy is recommended. Language such as “If the employeeseparates from employment prior to repaying theadvance in full, any unpaid balance remaining from the advance at the time of the employee’s separationfrom employment will be deducted in full from the employee’s final paycheck.”
Treat all employees the same in this regard to avoidany discrimination claims!
Misappropriation Deductions
Employer may deduct cash shortages that are the result of theft or other misappropriation by the employee even if it takes employee below minimum wage. However, employer bears the burden of proving that the employee was personally and directly responsible for the misappropriation.
Ordinary cash register shortages, losses of money due to ordinary negligence and losses due to damage, destruction, or loss of equipment may NOT be deducted from wages to the extent that the deductions take the employee below minimum wage.
Non Compete Agreements
Enforceable if: It is ancillary to an otherwise enforceable agreement at
the time the agreement is made; It contains limitations of time, geographic area, and
scope of activity that are reasonable and do not impose a greater restraint than necessary to protect the promisee’s goodwill or other business interest.
CONSIDERATION MUST BE PROVIDED BETWEEN THE EMPLOYER AND EMPLOYEE!
CAN BE A VERY VALUABLE TOOL FOR A BUSINESS’S PROTECTION!
Protected Classes:
Question:In Texas, can you fire
someone because they have dark, curly hair?
At Will Employment in Texas. “At the will of the employer” unless protected by discrimination statute, retaliation statute, employment contract or common law contract or tort principle.
RaceReligionColorNational OriginSex (including
pregnancy)AgeDisabilityMilitary Status
Discrimination Claims
Burdens of Proof
Basics of Establishing:The employee is a member
of a protected class;Was qualified for the
position;Suffered an adverse
employment action (could be hiring, discharge, promotion or compensation)
And was replaced by someone outside of the protected class or others similarly situated were treated more favorably.
Constructive Discharge:
Employee must establish that working conditions were so intolerable that a reasonable employee would feel compelled to resign.
Factors may include evidence of badgering, harassment, or humiliation by the employer calculated to encourage the employee’s resignation.
Planning & Timing is Everything! Be
Proactive!
Click icon to add pictureWhat are some things that can be done?
1. Employee Handbook for policies & procedures
2. Document training
3. Non-compete and/or confidentiality agreements
4. Document deductions that are not statutory
5. Regular written reviews of behavior and performance issues
6. SUPERVISOR TRAINING!
7. Training of Human Resource and Payroll Personnel is critical
For Employees For The Company
Be honest. Do not sugarcoat the issues.
Put in in writing and get their signature that they understand the expectations.
Do not put it off!Do not hesitate to make
the tough decisions if necessary.
Review and revise policies on some regular basis.
Get an outside third party to assist.
Seek input from all areas of the organization.
The Regular Review Process
Recent Case Law
Young v. United Parcel Service, Inc., 135 S. Ct. 1338 (2015)
Pregnancy Discrimination Act Case (Maryland)The Act specifies that Title VII’s prohibition
against sex discrimination applies as to the basis of pregnancy, childbirth or related medical conditions.
Young’s job required that drivers be able to lift up to 70 pounds. Doctor told pregnant Young not to lift more than 20 pounds.
UPS told her she could not work with the restriction.
Continued:• Disparate Treatment Test: 1)
employee belonged to protected class, 2) employee sought an
accommodation, 3) employer did not accommodate the employee, and 4) the employer accommodated others similar in their ability or inability
to do work.• Court held that Young did not have prima facie case- The Court found that those Young compared herself with – those falling on the job, DOT or ADA
categories- were too different to qualify as similarly situated
comparators.
EEOC V. ABERCROMBIE & FITCH STORES, INC . , 135 S . CT. 2028 (2015)
• DISCRIMINATION ACTION- MUSLIM JOB APPLICANT WHO SOUGHT ACCOMMODATION FOR WEARING HEAD
SCARF. POLICY AGAINST “CAPS” FOR A&F.• PROSPECTIVE EMPLOYEE WON. COURT RULED THAT
NEED ONLY SHOW THAT THE RELIGIOUS ACCOMMODATION WAS A MOTIVATING FACTOR IN THE PROSPECTIVE EMPLOYER’S ADVERSE DECISION. NEED
NOT SHOW THAT THE EMPLOYER ACTUALLY KNEW THAT THE APPLICANT’S PRACTICE WAS A RELIGIOUS
PRACTICE THAT REQUIRED AN ACCOMMODATION.
More Recent Case Law
IN THE ESTATE OF THOMAS TREVINO ARAGUZ, DECEASED, WHARTON COUNTY, TEXAS. OVERTURNED BY THE COURT
OF APPEALS (2015)• MARRIAGE TO SOMEONE BORN AS A MAN (GENDER REASSIGNMENT)- LOWER COURT SAID MARRIAGE WAS VOID SO MANY BENEFITS WENT TO CHILDREN FROM
PREVIOUS MARRIAGE UNDER THAT SCENARIO• APPEALS COURT RULED THAT BASED UPON PROVISION
IN TEXAS FAMILY CODE, A TRANSGENDERED PERSON IS ELIGIBLE TO MARRY A PERSON OF THE OPPOSITE SEX. NIKKI WAS ENTITLED TO VARIOUS DEATH BENEFITS OF
MORE THAN $500K.• MOOT POINT NOW AS SUPREME COURT HAS MADE TEXAS
CATCH UP TO THE REST OF THE COUNTRY IN THIS REGARD.
More Case Law
“ H E W H O R E P R E S E N T S H I M S E L F H A S A F O O L F O R A C L I E N T ” - A B R A H A M L I N C O L N
“ Y O U C A N L O O K O N T H E I N T E R N E T A N D L E A R N H O W TO TA K E O U T Y O U R O W N K I D N E Y B U T T H AT
D O E S N ’ T M E A N I T ’ S A G O O D I D E A ” - D I A N E K L I E M
“ A G O O D P O R T I O N O F M Y B U S I N E S S I S F I X I N G W H AT P E O P L E H AV E D O N E T H E M S E LV E S O R
T E L L I N G T H E M I C A N ’ T H E L P T H E M B E C A U S E D O C U M E N T S O R L E G A L P R O C E E D I N G S W E R E D O N E
I N C O R R E C T LY ” - D I A N E K L I E M
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