Workforce Q&A

Meghaan C. McElroy

Meghaan C. McElroy
Haynes and Boone LLP
Question: Under what circumstances are interns considered employees subject to the minimum wage and overtime requirements of the FLSA?

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Harry J. Joe

Harry J. Joe
Jackson Lewis LLP
Question: Should employers use forensics to complete or audit I-9s?

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Jaclyn Caugherty
Littler, Dallas
Question: I have a small business in Texas whereby my employees work closely with animals. Can I require all of my employees to get vaccinated for rabies and tetanus? And if they refuse, can I terminate their employment?

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Gilbert Sanchez

Gilbert Sanchez
Kemp Smith
Question: A male employee (Joe) at my company filed a complaint of sexual harassment against a male co-worker (Steve). Joe reported that Steve spanked him on the rear end twice and has commented that he (Joe) is “cute.” Steve denied spanking Joe but did admit that he and Joe often make comments to each other in a joking manner. Can my company be held liable for sexual harassment where the employees involved are the same gender?

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Harry J. Joe

Harry J. Joe
Jackson Lewis LLP
Question: My company has been assessed a large fine by United States Immigration and Customs Enforcement (USICE) for I-9 Employment Verification violations. Recent Occupational and Safety and Health Administration (OSHA), and Wage and Hour investigations also have resulted in fines that have impacted our ability to pay the Immigration and Customs Enforcement (ICE) assessment. Will the judge take this into consideration?

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Question: Effective Jan. 1, 2014, most U.S. citizens and lawfully present individuals are now required to have a minimum level of health care coverage. According to the Affordable Care Act, how much is the penalty if a person does not get health insurance coverage in 2014?

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Jacqueline Johnson

Jacqueline C. Johnson
Littler Mendelson, P.C.
Question: As an employer, what should I be doing to make sure my company’s confidential and proprietary information is legally protected?

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Dorian Bass Taibel
Bracewell & Giuliani LLP
Question: We have an employee who keeps requesting military leave for Army reserve duty. He was off four weeks and now has brought in the necessary paper work to be off again. Can we put some type of restriction on time off for this type of leave?

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Kimberly Cheeseman
Norton Rose Fulbright
Question: Can an employer require someone who handles food to take an HIV or AIDS test?

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Question: Do employers have to file their wage reports and pay taxes online now with TWC? Also, is it true that employers might lose chargeback protection even if they win an appeal?

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Question:During a performance counseling meeting or while an employer is in the process of placing an employee on a Performance Improvement Plan (PIP), the employee reveals for the first time that he or she has an intellectual disability, such as Attention Deficit Hyperactivity Disorder (ADHD). The employee voluntarily provides the information as a justification for the substandard performance while objecting to being placed on the PIP. How should an employer handle such a situation in compliance with the Americans with Disabilities Act (ADA)?

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A. Robert Fischer

A. Robert Fischer
Jackson Lewis LLP, Austin
Question: How will the Uniform Trade Secrets Act affect Texas business?

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Christopher Ziemba
Monitor Liability Managers
Question: If an employee posts something on social media that embarrasses or portrays the company in a negative light, can we fire him?

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Question: How would mandatory E-Verify in a Comprehensive Immigration Reform Bill impact small business?

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Jaclyn Hermes Caugherty
Fulbright & Jaworski
Question: My employee took FMLA leave for his own health condition. He has now exhausted his FMLA leave but has not returned to work. Can I fire him?

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Question: My employees don’t sign non-competes or non-disclosure agreements. An ex-employee just opened a shop across the street and is raiding my sales people and customers. I feel like she kept some documents. Do I have any remedies?

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Jacqueline Johnson
Littler, Dallas.
Question: We have an employee leaving to go to work for a competitor. What steps should we take to protect our confidential information and trade secrets?

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Question: My company, which is based in Texas, is growing at a fast pace and is expanding into several other states. Our industry is highly competitive, and we give our salespersons specialized training on our products and access to information we consider confidential and which we would like to protect. What issues should we consider when we are hiring new salespersons in the states into which we are expanding and would like to begin using noncompete agreements?

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Question: Can we impose a premium surcharge on tobacco users who enroll in our health plan?

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Question: Can we legally take a commission away from salespeople for disciplinary reasons? One of our sales people quotes whatever price the customer wants to hear, and then the customer calls with overbilling questions.

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Colleen Cockrum

Question: I heard the Equal Employment Opportunity Commission (EEOC) recently issued new requirements for criminal background checks. Does this mean my company can no longer run criminal background checks on prospective employees? Do we need to remove the question about an applicant’s criminal record from job applications?

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Question: My company has a longstanding policy to terminate any employee who is on a leave of absence that exceeds one year. I’ve heard that these policies are coming under attack from the Equal Employment Opportunity Commission (EEOC). Do we need to change our policy?

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Question: I believe that some of my independent contractors may be considered by the IRS to be employees, although I tried to meet the 20 IRS factors to make sure that my workers were employees. Is there an IRS program allowing me to change contractors into employees with no penalties?

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Question: One of our exempt supervisors was subpoenaed to testify out of town in a child custody dispute between his sister and former brother-in-law. While the employee was subpoenaed to appear on Monday, he was told by the judge to stand by, and ultimately did not testify until Friday morning and was then released by the judge to leave. The employee, who had no paid leave time available, missed all week before returning from out of town on Friday afternoon and working just two hours before the end of the work day. How much of the employee’s weekly salary are we required to pay?

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Alex Stevens

Question: The National Labor Relations Board is making some changes to Notice Posting Requirements. What does that mean for my business?

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Question: My company received an unemployment claim notice on a former employee who quit after his pay was cut as part of a company-wide reduction to save costs. Do we even need to respond, since he quit? Employees who quit are automatically disqualified, correct?

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Harry Joe

Question: My company is engaged in the purchase of refined bulk oil from refineries which are then packaged into smaller quantity containers under a private label and sold to large wholesalers and retail chain stores. We successfully bid on and received a federal contract to supply our private labeled oil to the U.S. Army Base Exchanges in West Texas, New Mexico and Arizona. Will our company have to use E-Verify for our workforce?

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Question: I am concerned about the future of my portfolio and retirement accounts because of the wild swings on Wall Street. What advice would you give me about dealing with these feelings of uncertainly and anxiety?

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Question: Our company requires all employees to sign confidentiality agreements which prohibit employees from divulging confidential and proprietary business information. One of the examples of confidential information included in the agreement is “personnel information.” One of our managers tells me it is not legal to have that confidentiality requirement, is that correct?

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Question: I hear the federal DOL is auditing more Texas businesses and creating new costly programs that affect Texas employers. Is that true?

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Michael Lombardino
Bracewell & Giuliani LLP
Question: How will the Securities and Exchange Commission (“SEC”)’s proposed rules on the new whistleblower provisions in Section 922 of the Dodd-Frank Act, if approved, impact my company’s internal compliance program?

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Question: I heard there is a new law that requires employers to provide employees who are nursing mothers with breaks and a private location to express breast milk. I am a small business and do not have space for this. Is there an exception that might apply to me?

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Question: Our Company has an exempt employee who exhausted her 12 weeks of leave under the Family and Medical Leave Act in 2010 caring for her son who was in an automobile accident. Our FMLA year is the calendar year. She now needs to take FMLA leave to attend physical therapy sessions with her son, sometimes once and twice a week. She will be gone several hours when she attends these sessions. Is she entitled to more FMLA leave? Can we convert her to hourly status so that we can better manage the time she will be off, i.e. require her to clock in and out when she attends the therapy sessions?

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Question: Our company has an employee who has just returned to work after having a baby and has notified us that she is still nursing. Are we required to provide a lactation space for her?

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Question: We have an employee who was recently injured on the job and is now out on workers’ compensation leave. Can we require him to use Family and Medical Leave Act leave (FMLA) during this time?

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Robert S. Nichols
Bracewell & Giuliani LLP
Question: Our company has a problem with employees losing company cell phones. Can we have a policy that an employee who loses or damages company property will have to pay the cost?

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Question: Are private agreements to arbitrate employment-related disputes still enforceable in Texas?

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Question: We discovered that an employee our company hired recently has been on deferred adjudication. We confronted the employee because he answered ‘no’ to the question on our employment application about whether he had been convicted of a crime. He said because he finished his probation successfully, the conviction was erased, so he was truthful on the application. Is that correct, and can we terminate his employment anyway?

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Question: My company is a defense contractor and I was recently told that we cannot continue to use mandatory arbitration agreements with our employees. Is this true?

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Rebecca L. Baker
Bracewell & Giuliani LLP
Question: Can an employer in Texas adopt a mandatory direct deposit policy for payment of all wages to employees?

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Travis Wayne Gill
Bracewell & Giuliani LLP
Question: One of my employees was out sick for several days but did not call in to tell me he could not come to work due to medical reasons. After returning to work, the employee claimed he did not have to follow the company’s policy to request leave because his absence was covered by the FMLA. Is it unlawful to require employees to comply with the company’s usual notice and procedural requirements for requesting leave, including contacting a specific individual to request leave?

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Question: One of our employees is married to a career military officer, who is being deployed overseas for the first time. We are covered by the Family and Medical Leave Act and the employee is an eligible employee under the Act. Our employee has asked to take time off to attend various briefings related to her husband’s deployment. Are we required to give the employee time off for these types of activities?

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Question: I operate a small business, and overhead costs and obligations are frustrating me. I keep hearing these advertisements telling me about companies that will take over all my human resources and payroll responsibilities. Is this a good idea?

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Robert S. Nichols
Bracewell & Giuliani LLP
Question:What is the “Franken Amendment” and how does this new law impact employers?

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Question:When are you required to investigate an employee’s complaint and what should be placed in writing?

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Robert S. Nichols
Bracewell & Giuliani LLP
Question: What is the “Franken Amendment” and how does this new law impact employers?

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Amy Karff Halevy
Bracewell & Giuliani, LLP
Question: Is an employee’s electronic signature sufficient to establish that the employee received an employment policy?

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David Jordan, Sr.
FULBRIGHT & Jaworski
Question: I am worried about all of the recent media coverage on H1N1 giving my employees another excuse to stay home. Can I require employees who have symptoms to still report to work?

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Question:I’m afraid my employees are Facebooking and Tweeting when they should be working. What can I do, and are there any legal risks or issues I should be concerned about?

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Question:I’m the new HR manager for a business with 30 employees. The owner told me there is no policy handbook, and that individual policy memos have worked fine for her. How important is it for my company to have a policy manual?

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Bruce Burdett
Frost Insurance
Question: We are looking at ways to improve our company’s viability in these tough economic times, and there just seems no way to do that without small-scale layoffs. Some of the most vulnerable employees have been here a long time, and we are concerned about liability, even though we feel we have a strong business case for downsizing. Is there anything we can do to protect ourselves? We are looking at ways to improve our company’s viability in these tough economic times, and there just seems no way to do that without small-scale layoffs. Some of the most vulnerable employees have been here a long time, and we are concerned about liability, even though we feel we have a strong business case for downsizing. Is there anything we can do to protect ourselves?

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Ashley Scheer
Jackson Walker L.L.P.
Question: Our company has more than 50 employees. I know that the new FMLA regulations became effective this year. Do we need to do anything now to comply?

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Question: What is the current law on partial-day absences for exempt employees? Can an employer make an exempt employee use vacation time for hours taken off in a day for personal reasons? How about partial days for sick leave?

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Question: Our company is trying to reduce its payroll costs, and would like to require employees to take a forced vacation or sabbatical. Are there any legal problems with requiring employees to take unpaid time off?

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Robert S. Nichols
Bracewell & Giuliani LLP
Question: In an effort to motivate better attendance, our company wants to adopt a perfect attendance bonus program. If an employee is away from work on a leave protected under the Family and Medical Leave Act (“FMLA”), are we allowed to count that absence against the employee for purposes of qualification for the perfect attendance bonus?

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C. B. Burns
Kemp Smith LLP
Question: We are a growing business currently with 50 employees. We’ve heard a lot about the Lilly Ledbetter Fair Pay Act. What is its significance and what practices should we adopt going forward to ensure compliance?

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Question: We are moving our plant to a different site. If some of the employees choose not to travel to work at the other site, will they be able to collect unemployment benefits if they quit?

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C. B. Burns
Kemp Smith LLP
Question: I understand that the American Recovery and Reinvestment Act of 2009 (“ARRA”) made changes to COBRA. What changes have been made that will affect my business?

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Question: How do you handle pay issues when you have to shut down the office or company when there is inclement weather? Do you need to pay the non-exempt employees? What do you do about someone who doesn’t come in because of bad weather when others from the same area in town make it in?

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Question: How can I know that my company and our employees are working with a quality investment professional?

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Question: What is the Employee Free Choice Act (EFCA) and should I be worried about it?

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J. Alfred Sutherland
Ogletree Deakins, Houston
Question: Our company is small (less than fifteen employees), and in order to keep costs down, the owners have decided to declare everyone a “salaried employee.” None of the employees work more than thirty hours a week, and all perform, as part of their daily duties, some degree of administrative work on client contracts. However, for accounting purposes, we require each employee to track the amount of time that they spend in the workplace each day. Additionally, on those occasions when employees do work more than their regular thirty hours within a week, they are paid on a per-hour basis (as determined by a percentage of their salary) for each hour over thirty that they work. Are there any issues with our paying our employees in this manner?

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Question: One of our former employees failed to return his company-issued laptop computer. What options do we have for getting it back?

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Question: Creditors are bothering one of my employees. What law prohibits creditors from calling employees at the workplace?

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Question: What changes can companies expect to see in their audits as a result of the new standards influenced by Sarbanes-Oxley?

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Question: Can you accept an expired driver’s license when filling out the new employee’s I-9?

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Question: I have a real problem with one of my best employees. She is the lead processor in our billing department and there is no position that is more critical. If we are even a day late on getting bills out it can really hurt the financial performance of the business. I feel bad because she has had so many problems, but I am afraid that they are going to interfere with her work. She has a three year old boy, who has severe developmental disabilities. Her mother lives with her and she is very nice, but she is getting older and has had some medical problems herself that has caused my employee to ask for some time off from work. She hasn’t really missed much work, but I am concerned that she will. Today, she told me that she was pregnant. I am really concerned, so I talked with her about moving to accounts payable because that would not hurt as bad if she missed. It wouldn’t be as the lead, but it would still be a good job and I could keep her at the same rate of pay, although I couldn’t give her a raise this year. She was not happy about the idea and I have now heard that she was saying that maybe I was guilty of “family responsibility discrimination.” I never even heard of that. Is there some new law I missed?

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Question: We issue laptops, cell phones, and special ID badges to our employees. If they lose or damage those items, can we make a deduction from their pay?

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Robert S. Nichols
Bracewell & Giuliani LLP
Question: Our company is very concerned about safety and we have adopted a safety bonus plan under which nonsupervisory employees receive certain bonus amounts for achieving specific safety goals. I now have been told that paying these bonuses increases the overtime pay due to employees for overtime hours they work. Is that correct?

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C. B. Burns
Kemp Smith LLP
Question: An employee quit and gave her two weeks notice. We decided to let her go immediately without requiring her to work the two-week period. Do we have to pay for the two-week period and if so, when is her final paycheck due? Can we withhold money for some unreturned manuals from that final pay?

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Question: We are moving our plant to a different site. If some of the employees choose not to travel to work at the other site, will they be able to collect unemployment if they quit?

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