Labor & Employment
- How are Wages Paid?
Services rendered regardless of how they are computed, commissions and bonuses according to the agreement between the parties, and certain fringe benefits due under a written agreement with or policy of the employer. Expense reimbursements, gratuities, gifts and the like are not considered wages and are not covered by the Texas Payday Law. Unless an employee agrees in writing to accept part or all of his/her wages in kind, or in another form, wages must be paid in United States currency, a written instrument negotiable on demand at full face value for United States currency, or by electronic transfer of funds. Wages must be delivered to the employee at her/his regular place of work during working hours, mailed by registered mail to be received by the employee not later than payday, or by any reasonable means, or to any person authorized in writing by the employee.
- What is the History of the “Texas Payday Law”?
Effective January 1, 1990, the Texas Employment Commission (now part of the Texas Workforce Commission) was given a mandate to receive and adjudicate wage claims. The current provisions of the Texas Payday Law are found in Chapter 61 of the Texas Labor Code; those provisions differ greatly from an earlier statute which contained virtually no enforcement procedures. Both employees and employers should be aware of the law so they will know the rights and responsibilities which are conferred on them by the law.
- Who is Covered by the Texas Payday Law?
Except for public employers, all Texas business entities, regardless of size, are covered by the Texas Payday Law. Other than close relatives and independent contractors, all persons who perform a service for compensation are considered employees.
- What are the Filing Procedures?
An employee who feels that he or she has not been paid all wages earned may file a complaint with the Texas Workforce Commission (TWC). Complaint forms may be obtained from local TWC offices, or upon request through the mail, through our agency website, or by calling 1-800-832-9243 /TDD 1-800-735-2989.
The completed form, along with any information necessary to support the claim, must be mailed to TWC at the address shown on the complaint form. The complaint must be signed, and the signature of the claimant must be verified by a Notary Public or by any employee of TWC. A wage claim must be filed no later than 180 days after the date the claimed wages originally became due for payment.
Upon receipt of a wage claim, TWC notifies the employer of the claim by sending the employer a copy of the wage claim and a form on which to furnish the employer's response. An investigator from TWC's Labor Law Department, using the information furnished by the employee and the employer, along with any additional information that the investigator feels to be essential, issues a written decision [Preliminary Wage Determination Order (PWDO)] as to whether wages are due, and if so, the amount due.
Either party dissatisfied with the PWDO may appeal that ruling to the Special Hearings Department. Requests for hearing must be made in writing no later than the 21st day after the PWDO is mailed to the parties by the Commission. This time limit is mandatory.
Appeal hearings are usually held by telephone conference call; any party may present witness testimony and submit documentary evidence. The testimony in an appeal hearing is taken under oath, and the entire proceedings are recorded on audio tape. After testimony is concluded, the hearing officer renders a written order for the payment of wages, or a finding that no wages are due. This decision states the amount of wages due, if any, any penalty that has been assessed, and advises the parties of their right to judicial review.
Either party dissatisfied with the results of the hearing may file a written motion for rehearing. This motion must be filed within fourteen days after the date on which the decision was mailed. Again, compliance with this time limit is critical, because unless a motion for rehearing is filed or the Commission reopens the hearing, the order becomes final after fourteen days.
Within thirty days after a final order of the Commission is mailed, either party may file for judicial review in a court of competent jurisdiction. In the petition for judicial review, the Commission and all parties to the proceedings before the Commission must be made parties to the suit. Again, note that the 30-day time limit is critical. If the appeal for judicial review is filed late, the court will have no jurisdiction to hear the case.
This action must be brought in the county of the claimant's residence; if the claimant is not a resident of Texas, the action must be brought in the county in Texas where the employer has its principal place of business.
If the final order of the Commission requires the payment of wages or a penalty, the party must either deposit into a TWC escrow account the total amount ordered to be paid, or file with the court a timely affidavit of inability to pay. The money deposited is placed in an interest-bearing escrow account to be disbursed at the conclusion of the judicial process, with the interest being paid to the prevailing party.
- What are the Rights, Duties and Obligations in Employment?
Each employee who is exempt from the overtime provisions of the federal Fair Labor Standards Act (FLSA) must be paid once a month; others must be paid at least twice a month. Semi-monthly pay periods must consist as nearly as possible of an equal number of days. Within those limitations, an employer may designate any paydays he/she chooses. Notices indicating the paydays must be posted in conspicuous places in the workplace. If an employer does not designate paydays, the employer's paydays are the first and 15th of each month. If an employee quits, she/he must be paid in full at the next regular payday. If an employee is terminated, he/she must be paid in full within six days. If an employee is not paid on a payday for any reason, including the employee's absence, the employer shall pay those wages on another business day as requested by the employee.
- What are Legitimate Deductions from Wages?
One of the most troublesome aspects of determining what wages are due and unpaid is the question raised by deductions from wages made by the employer. The employer may not make deductions unless ordered to do so by a court of competent jurisdiction (as in court-ordered child support payments); authorized to do so by state or federal law (as in IRS withholding); or authorized in writing by the employee, and then only for a lawful purpose. The latter category is the one that causes many problems. Authorizations that are too general or too broad may not be given effect. Deductions for out-of-pocket loans to an employee, even though there is an oral agreement to repay, or even to repay out of a particular wage payment, will not be allowed, unless the deduction is authorized in writing. Employers must be careful to get a proper written authorization before making a payroll deduction.
- Is There a Requirement to Secure Payment of Wages?
The Commission may require an employer to deposit a bond if the employer is convicted of two violations of the act or if a final order of the Commission remains unpaid after the 10th day after the order has become final and no appeal is pending. The bond must be in an amount set by the Commission; it must guarantee the payment of any sum recovered against the employer under this act, and that the employer, for a period of up to three years, will pay the employees in accordance with the Texas Payday Law. Because of the high cost of such surety bonds, the requirement that an employer furnish such security could well cause the failure of a business. Additionally, failure to deposit the bond required could result in an order from a court that the employer cease doing business until the bond is furnished.
- What About Collections of Wages?
When an order for an employer to pay money to the Commission for the use and benefit of an employee has become final, the law allows for administrative liens and bank levies. The Commission may assign the administrative lien to the claimant at the claimant's request. The Commission may enforce, by any of these collection methods, an order against a party who has filed for judicial review without depositing the ordered amount into escrow or filing an affidavit of inability to pay.
- Are There Penalties for Employers Who Don’t Pay?
If the Commission determines that an employer acted in bad faith in not paying wages as required by the statute, the Commission may assess an administrative penalty against the employer in the amount of the wages claimed or $1,000, whichever is lesser. Penalties in the same amount may be assessed against an employee who files a wage claim in bad faith. An employer commits an offense that is a third degree felony if the employer hires or intends to continue to employ an employee with the intent to avoid payment of wages owed to the employee and if the employer fails after demand to pay those wages.
- What is the Texas Child Labor Law?
The purpose of the Texas Child Labor Law is to ensure that a child is not employed in an occupation or manner that is detrimental to the child's safety, health, or well-being. "Child" is defined as an individual under 18 years of age. Except as specifically authorized by the statute, it is illegal to employ a child under 14 years of age. One of the principal exemptions in the statute allows the Texas Workforce Commission (Commission) to adopt rules which authorize the employment of children under 14 years of age as performers in a motion picture or a theatrical, radio, or television production. Pursuant to that authority, the Commission has adopted Texas Commission Rule Section 817.31, which sets out the procedure for authorization of work by a child actor. These rules also contain provisions designed to ensure that employment does not interfere with a child's education and does not pose a threat to the child's health, safety, or general well-being. The Commission or its designee may, during working hours, inspect a place of business where there is good reason to believe a child is or has been employed within the last two years and collect information about the employment of children there. Knowingly or intentionally hindering such an investigation is a violation of the law.
- What are the Hours of Employment for a Child?
A child 14 or 15 years of age may not work more than eight hours in one day or more than 48 hours in one week. A child who is 14 or 15 years of age and is enrolled in a term of a public or private school may not work between the hours of 10 p.m. and 5 a.m. on a day that is followed by a school day or between the hours of midnight and 5 a.m. on a day that is not followed by a school day. A child who is 14 or 15 years of age and is not enrolled in summer school may not work between the hours of midnight and 5 a.m. on any day that school is recessed for the summer.
- What is the Hardship Exemption?
The Commission may adopt rules for determining whether hardships exist. If, on the application of a child, the Commission determines that a hardship exists for that child, the hours restrictions do not apply to that child. Commission Rule Section 817.22 provides the procedure which must be followed in seeking a hardship waiver of the hours restrictions for 14- and 15-year olds.
- What are Permitted Occupations?
A child who is 14 or 15 years of age may be employed in the following occupations in retail, food service, and gasoline service establishments:
- Office and clerical work (including operation of office machines).
- Cashiering, selling, modeling, art work, work in advertising departments, window trimming and comparative shopping.
- Price marking and tagging by hand or by machine. Assembling orders, packing and shelving.
- Bagging and carrying out customers' orders.
- Errand and delivery work by foot, bicycle, and public transportation.
- Cleanup work, including the use of vacuum cleaners and floor waxers, and maintenance of grounds, but not including the use of power-driven mowers or cutters.
- Kitchen work and other work involved in preparing and serving food and beverages, including the operation of machines and devices used in the performance of such work such as, but not limited to, dishwashers, toasters, dumbwaiters, popcorn poppers, milk shake blenders, and coffee grinders.
- Work in connection with cars and trucks if confined to the following:
- Dispensing gasoline and oil.
- Courtesy service on premises of gasoline service station.
- Car cleaning, washing and polishing.
- Other occupations permitted by this section.
But not including work:
Cleaning vegetables and fruits, and wrapping, sealing, labeling, weighing, pricing and stocking goods when performed in areas physically separate from areas where meat is prepared for sale and outside freezers or meat coolers.
- Involving the use of pits, racks or lifting apparatus or involving the inflation of any tire mounted on a rim equipped with a removable retaining ring.
- What are the Prohibited Occupations For 14 And 15 Year Olds?
A child who is 14 or 15 years of age may NOT be employed in:
- Manufacturing, mining, or processing occupations, including occupations requiring the performance of any duties in work rooms or work places where goods are manufactured, mined, or otherwise processed;
- Occupations which involve the operation or tending of hoisting apparatus or of any power-driven machinery other than office machines;
- The operation of motor vehicles or service as helpers on such vehicles;
- Public messenger service;
- Occupations which the Secretary of Labor may, pursuant to Section 3(l) of the Fair Labor Standards Act and Reorganization Plan No. 2, issued pursuant to the Reorganization Act of 1945, find and declare to be hazardous for the employment of minors between 16 and 18 years of age or detrimental to their health or well-being;
- Occupations in connection with:
- Transportation of persons or property by rail, highway, air, water, pipeline, or other means;
- Warehousing and storage;
- Communications and public utilities;
- Construction (including demolition and repair);
Except such office (including ticket office) work, or sales work, in connection with paragraphs f(1)(2)(3) and (4) of this section as does not involve the performance of any duties on trains, motor vehicles, aircraft, vessels, or other media of transportation or at the actual site of construction operations.
2. In addition to prohibited occupations, state law specifically prohibits 1) the employment of anyone under 14 years of age and unaccompanied by a parent to sell or solicit goods or services for any person other than an exempt organization or a business owned or operated by a parent, and 2) the employment of a child to sell or solicit goods or services for any person other than an exempt organization unless parental permission is granted on a form prescribed by the Commission at least seven days before employment begins.
- What are Prohibited Occupations For 16 and 17 Year Olds?
The Commission has adopted by rule the federal regulations governing the employment of 16- and 17-year olds in occupations declared hazardous by the U.S. Department of Labor. These so-called Hazardous Orders are outlined later in this in paper. A 1995 amendment to the Texas Labor Code has eased the restriction on the hazardous occupation of driving. Under state, but not federal law, a person may employ a child to operate a motor vehicle for a commercial purpose if the child:
- has a valid driver’s license;
- does not need a commercial license to perform the job;
- operates a vehicle with no more than two axles and not in excess of 15,000 pounds gross vehicle weight; and
- performs the job:
- under the direct supervision of the child’s parent; and
- for a business owned or operated by the child’s parent.
- What are the Penalties for Child Labor Violations?
An offense under this Act is a Class B misdemeanor with the exception of the offense of employing a child to sell or solicit, which is a Class A misdemeanor. It is a defense to prosecution of a person employing a child who does not meet the minimum age requirement for a type of employment, that the person relied in good faith on an apparently valid certificate of age presented by the child that showed the child to meet the age requirement for that type of employment. In addition to the criminal penalty noted above, if an employer violates the provisions of this Act, the Commission may assess an administrative penalty against that employer in an amount not to exceed $10,000. Any violation or assessment of a penalty under this provision of the Child Labor Act may be appealed to a hearings examiner of the Texas Workforce Commission. No later than 30 days after a Commission order assessing a penalty becomes final, the employer may file a petition for judicial review of the order.
- Is Injunctive Relief Available?
The Attorney General may seek injunctive relief in district court against an employer who repeatedly violates the requirements established by this Act relating to the employment of children.
- What are the General Exemptions to the Child Labor Laws?
This chapter does not apply to employment of a child:
- employed in a:
engaged in delivery of newspapers to the consumer;
participating in a school-supervised and school-administered work-study program approved by the Commission;
employed in agriculture during a period when the child is not legally required to be attending school;
employed through a rehabilitation program supervised by a county judge; or
engaged in nonhazardous casual employment that will not endanger the safety, health, or well-being of the child and to which the parent or adult having custody of the child has consented.
- nonhazardous occupation;
- under the direct supervision of the child's parent or an adult having custody of the child; and
- in a business or enterprise owned or operated by the parent or custodian.
In this section, "employment in agriculture" means engaged in producing crops or livestock and includes:
- cultivating and tilling the soil;
- producing, cultivating, growing, and harvesting an agricultural or horticultural commodity;
- dairying; and
- raising livestock, bees, fur-bearing animals, or poultry.
For the purposes of general exemption No. 6, the Commission by rule may define nonhazardous casual employment that the Commission determines is dangerous to the safety, health, or well-being of a child.
- Outline of Hazardous Occupations for 16 and 17 Year Olds
- If both federal and state law apply, the more restrictive provision controls.
- employed in recognized apprenticeable trade;
- work is incidental to training;
- intermittent, short, and under close journeyman supervision; and registered or under written agreement about work standards.
- enrolled in authorized cooperative vocational training program; and employed under a written agreement providing that:
- work is incidental to training;
- work is intermittent, short, and under close supervision;
- safety instructions are given by school and employer; and a schedule of organized and progressive work is prepared.
Hazardous Occupations To Which The General Exemptions Apply
- Power-Driven Woodworking Machines
- Power-Driven Metal Forming, Punching, and Shearing Machines
- Power-Driven Meat Processing Machines (Slaughtering, Meat Packing, Rendering)
- Power-Driven Paper-Products Machines
- Circular Saws, Band Saws, and Guillotine Shears
- Roofing Operations
- Excavation Operations
Hazardous Occupations to Which the General Exemptions Do NOT Apply
- Manufacturing or Storing Explosives
- Motor Vehicle Operator or Outside Helper
- Coal Mining
- Logging, Sawmill, Lath Mill, Shingle Mill, or Cooperage Stock Mill
- Radioactive Substances or Ionizing Radiations
- Power-Driven Hoisting Apparatus
- Mining Other Than Coal
- Bakery Machines
- Manufacturing of Brick, Tile, and Kindred Products
- Wrecking, Demolition, and Shipbreaking
There have been some important changes to the Child Labor Laws affecting Hazardous Occupation Orders No. 2 and No. 12. The Texas Child Labor Laws restrict the types of occupations that minors under 18 years of age may perform. One such provision, Hazardous Occupation Order No.2 (HO 2), prohibits minors under 18 years of age from driving motor vehicles on public roadways unless conditions for certain exemptions are met. Another provision, Hazardous Occupation Order No. 12 (HO 12), prohibits minors under 18 years of age from operating, loading or unloading certain power-driven paper processing machines, including scrap paper balers and paper box compactors. Two amendments to the Fair Labor Standards Act were adopted by the Texas Workforce Commission by rule effective April 22, 1999. One amendment modified HO No. 2, setting the minimum age of 17 for any on-the-job driving on public roadways. Another amendment modified HO No. 12, to permit minors 16 years of age or older to load, but not operate or unload, certain scrap paper balers and paper box compactors. Changes to Hazardous Order No. 2: No employee under 17 years of age may drive on public roadways as part of their employment.
Seventeen-year-olds may drive on public roadways as part of their employment, but ONLY if all the following requirements are met:
- The driving is limited to daylight hours;
- The 17-year-old holds a State license valid for the type of driving involved in the job performed;
- The 17-year-old has successfully completed a State approved driver education course and has no record of any moving violation at the time of hire;
- The automobile or truck is equipped with a seat belt for the driver and any passengers and the employer has instructed the youth that the seat belts must be used when driving;
- The automobile or truck does not exceed 6,000 lbs. gross vehicle weight;
The driving may not involve:
- Towing vehicles;
- Route deliveries or sales;
- Transportation for hire of property, goods, or passengers;
- Urgent, time sensitive deliveries, such as pizza or floral delivery;
- Transporting more than three passengers, including employees of the employer;
- Driving beyond a 30-mile radius from the youth's place of employment;
- More than two trips away from the primary place of employment in any single day to deliver the employer's goods to a customer (other than urgent, time-sensitive deliveries which are prohibited);
- More than two trips away from the primary place of employment in any single day to transport passengers, other than employees of the employer; and,
- Such driving is only occasional and incidental to the 17-year-old's employment. This means that the youth may spend no more than 1/3 of the work time in any workday and no more than 20% of the work time in any workweek driving.
The above requirements apply whether the youth is driving a personal or employer-owned vehicle. Employers can guard against violations of the new requirements by securing documentation from 17-year-old employees who drive as part of their job. Such documentation would include evidence of the employee's age, completion of a driver education course, clean driving record and appropriate State driver's license.
Changes to Hazardous Order No. 12: Minors 16 years of age or older are permitted to load - but not operate or unload - certain scrap paper balers and paper box compactors, but ONLY if all the following requirements are met:
- The employer must ensure that the equipment meets, and continues to meet, the American National Standards Institute's Standard ANSI Z245.5-1990 for scrap paper balers or Standard ANSI Z245.2-1992 for paper box compactors (ANSI).
- Prior to permitting minors under age 18 to load materials into balers and compactors, the employer must provide a notice and post a notice on each piece of equipment that:
1. The equipment meets the appropriate ANSI standard named above, and
2. 16- and 17-year olds may only load the equipment, and
3. any employee under age 18 may not operate or unload such equipment.
- The equipment must include an on-off switch incorporating a key-lock or other system, and the control of the system must be maintained in the custody of employees who are 18 years of age or older.
- The on-off switch of the equipment must be maintained in an off position when the equipment is not in operation.
It is the responsibility of the employer to make the initial determination that the equipment to be loaded by 16- and 17-year olds meet the appropriate ANSI standards. It is also the employer's responsibility to provide the notice and post it on each piece of equipment which is loaded by 16- or 17-year old workers. The amendment also requires that all employers subject to the FLSA submit a report to the Secretary of Labor when an injury that requires medical treatment (other than first aid) or death to an employee under 18 years of age occurs as a result of contact with a scrap paper baler or a paper box compactor during the loading, operation, or unloading of the equipment. This reporting obligation, which remains in effect for two years after the enactment of the amendment, requires that such report be submitted within ten days of the occurrence of the injury or death.
The Child Labor Law Unit of the Texas Workforce Commission is developing guidelines and information to facilitate compliance. The Federal government also sets standards for child labor and teen drivers. When both Federal and State laws apply, the law setting the more stringent standard must be observed. For information regarding the Federal child labor standards, contact your local office of the Department of Labor Wage and Hour Division. For more information regarding HO No. 2 or HO No. 12 or any other child labor matter, please contact the Child Labor Law Unit of the Texas Workforce Commission.
- Are There Minimum Wages for Agricultural Employees?
The Commissioner of Agriculture is authorized to establish piece rates for agricultural commodities commercially produced in substantial quantities in Texas if sufficient productivity information is available. The piece rates are supposed to guarantee at least minimum wage for harvesters of average ability and diligence while allowing harvesters to earn more by producing more. The Act provides a procedure for contesting an established piece rate.
- Are There Exemptions from the Minimum Wage Act?
The primary exemption from the Act is for any person covered by the federal Fair Labor Standards Act (FLSA). Other specific exemptions include employment in, of or by religious, educational, charitable, or nonprofit organizations; professionals, salespersons or public officials; domestics; certain youths and students; inmates; family members; amusement and recreational establishments; non-agricultural employers not liable for state unemployment contributions; dairying and production of livestock; and sheltered workshops.
- What if I Have Not Been Paid the Minimum Wage?
An employee has two years from the date the wages were due for payment to file a lawsuit to recover the unpaid wages plus an additional equal amount as liquidated damages. The employer can be assessed reasonable attorney’s fees and court costs.
- What is employment discrimination?
Discrimination generally occurs when an employee is intentionally treated differently because of the employee`s race, color, religion, national origin, disability, gender, sexual orientation (depends on state) or age because of the employer`s system, such as its hiring process, has a negative effect on people in the protected categories or classes. To prove unlawful discrimination, employees must be able to show that an action affecting employment was based on the fact that the employee belongs to a protected class. If the action is intentionally discriminatory, it is called disparate treatment. If the operation of the employer`s system had an unintentional discriminatory effect, it is said to have a disparate impact. Even if the employee`s evidence is sufficient to show discrimination, an employer may be able to justify this action by proving that there was a business necessity for it or that a legitimate job qualification required consideration of a factor that had an unintentional discriminatory effect. When the employer makes such a legitimate justification, the employee must show that discrimination, not the employer`s justification, was the true reason for the action.
- What is the difference between disparate impact and disparate treatment?
Discrimination on its face is disparate treatment. However, rules or policies that are facially neutral can have a disproportionate impact on minorities and other members of a protected group. This is called disparate impact.
- Is discrimination in Publications Prohibited?
It is an unlawful employment practice for an employer, union, employment agency or labor-management training committee to publish any notice or advertisement that indicates any preference, limitation, specification or discrimination with respect of a protected class. However, it is not unlawful if based on religion, sex or national origin if it is a bona fide occupational qualification for employment.
- What is a For Cause Defense to a Discrimination Claim?
An employer may prevail in overcoming a prima facie case of discrimination by showing the court that it had good cause or a legitimate non-discriminatory reason for its action. For example, an employer may off set an employee alleging a discriminatory firing by proving the employee was in fact fired other legitimate reasons. The Civil Rights Act of 1991 provides that an unlawful employment practice is established where an employee has shown that a discriminatory motive was involved in an employer`s decision, even though other nondiscriminatory factors motivated the decision. If the employer can prove that the same action would have been taken absent the discriminatory motive, the employee may not recover damages or be awarded reinstatement, hiring or promotion. The Court may, however, award declaratory relief, attorney fees and cost.
- What is a Bona Fide Occupational Qualification defense to a Discrimination Claim?
Under Title VII, an employer can select employees on the basis of religion, sex or national origin in those instances in which it is a bona fide occupational qualification, reasonably necessary to the normal operation of the business. Because this qualification is narrowly construed, it is not often used as a defense in Title VII cases.
- What is a Seniority System as a defense to a Discrimination Claim?
There may be different standards of compensation or different terms and conditions of employment pursuant to a bona fide seniority system, if such a difference is not the result of intentional discrimination with regard to race, color, religion, sex or national origin. The Supreme Court has ruled that a bona fide seniority system can thus be used even if it has a discriminatory effect, so long as the system was not intended to be discriminatory.
- Does the employer have to prove business necessity in a disparate impact case?
Since the Civil Rights Act of 1991, once a prima facie allegation has been established, the employer is required to not only prove that the employment practice is job related, but that it is required by business necessity. To establish business necessity, the employer must show that its particular business practice bears a demonstrable relationship to the successful performance of the jobs for which it was used.
- What happens if there is a mixed motive in an action taken by an employer; one discriminatory and the other non-discriminatory?
When the employer had a mixed motive and if that same action would have been taken even in the absence of the discriminatory motive. The Civil Rights Act of 1991 overturns this making any discrimination unlawful, even if the employee would have suffered the same adverse action in the absence of the discriminatory motive.
- What should an Employer do to prevent retaliation against and preserve relationships with current employee charging parties?
The charge should be treated confidentially. If the charging party is a current employee, make sure no employee retaliates against the person filing the charge. Make clear to employees who file charges that their relationship with the company will not be affected. As to former employees, be sure that the EEOC filing does not affect the nature of any references given.
- What is a Business Necessity defense to a Discrimination Claim?
After the employee establishes a prima facie case of sexual discrimination; the employer may offer a business necessity defense. Business necessity is an overriding legitimate, nondiscriminatory business purpose. In order to satisfy the business necessity, an employer should satisfy three elements:
1. There must be an overriding legitimate business purpose such that the practice is necessary to the safe and efficient operation of the business;
2. The practice must effectively carry the business purpose it is alleged to serve; and
There are not any acceptable alternative policies or practices that would accomplish the business purpose advanced, or accomplish it equally with a lesser differential impact.
- Is there a lot of Sexual Harassment?
Like rape, most sexual harassment goes unreported because the victims are somehow made to feel ashamed of what has happened to them. They are afraid that other people will say "they asked for it" or that no one will believe them or they wont be able to prove it and will be branded as "trouble-makers". Rather than face embarrassment and retaliation, many victims who are lucky enough to transfer or get a new job elsewhere, quietly leave without saying anything. This leaves the harasser free to victimize others.
- What is sexual harassment?
Sexual harassment is a form of sexual discrimination when there are unwelcome sexual advances, request for sexual favors, and other verbal or physical conduct of a sexual nature is made a condition of employment. This is conduct that interferes with an individual`s work performance or creates an intimidating, hostile or offensive work environment.
- What is a Hostile Work environment and Sexual Harassment?
A hostile work environment and sexual harassment occurs when there is conduct that creates an offensive or hostile working environment. Such conduct includes unwelcome sexual advances, request for sexual favors and other verbal or physical conduct of a sexual nature that has the purpose or effect of interfering with an employee`s work performance or creating an intimidating, offensive or hostile work environment. In order to determine if a work environment is hostile to support a claim of sexual harassment, the courts have developed the use a reasonable person standard. The Ninth Circuit has interpreted this to be the perspective of a reasonable woman.
- My boss keeps making sexual comments to me that I find offensive? Do I have any legal rights?
There are various steps one can take to end sexual harassment using the legal system. However, these are generally considered only as a last resort. The first step is for the aggrieved party to talk to the person involved and tell them directly how the behavior is affecting them. It is also good practice to report the unreasonable behavior to others. Some organizations have created their own policy and procedure to prevent incidents of sexual harassment from escalating. Complaints can be filed with the EEOC or under state law with the Fair Employment Practices Agency (FEP). A private law suit or tort lawsuit can also be filed.
- Liability to Employers for Sexual Harassment
The employer is not always strictly liable for sexual harassment by its supervisors and employees. Nevertheless, under the quid pro quo theory, an employer is strictly liable for conduct of its supervisors who have authority over hiring, advancement, dismissal, and discipline. Under the hostile work environment theory, an employer is only liable for conduct of its supervisors if the act took place in the scope of the supervisor`s employment. This requires an examination of factors such as when and where the act took place, and whether it was foreseeable. Under either theory, an employer can be held liable for non-supervisory employees if the employer knew or should have known of the conduct and failed to take corrective action within a reasonable time period. An employer will be held liable for retaliatory action against an employee if it takes such action because of a complaint of sexual harassment.
- What are defenses for Sexual Harassment?
Conduct only constitutes unlawful sexual harassment if it is unwelcome. If the employer can prove that the conduct was indeed welcome, the employer can absolve itself from liability. The courts will look at the totality of the circumstances, including provocative speech, dress or actions that might have encouraged advances. One must distinguish between unwelcome and voluntary. If an employee engages in a voluntary act that is unwelcome, the employer may still be liable. Voluntary behavior is not in itself a defense to a sexual harassment claim. The employer must prove that it was welcome. Also, under certain circumstances, the employer can avoid respondeat superior liability for a hostile work environment by its supervisors if it has a grievance procedure and policy against discrimination in the work place.
Resondeat superior: Let the Master answer, under this doctrine, the master is responsible for the care given by his servants thus, the Employer is liable for the actions of the employee
Wage and Salary
- What is the difference between exempt and non-exempt employees?
Non-exempt employees are covered by the Fair Labor Standards Act (FLSA). The Act sets out the status requirements for employees. Status is dependent on what kinds of duty the employee performs in the course of his or her job. Non-exempt employees are entitled to overtime payment if they work longer than a 40-hour week.
For executives to be exempt:
o Their primary duty must be managerial (80 % of their tasks should be managerial; 60 % in retail and services).
o They have to manage the work of two or more full-time employees.
o They frequently exercise independent judgment.
o They have authority to hire and fire employees.
For administrators to be exempt:
o Their primary duty is office based or non-manual.
o They assist a proprietor or executive and perform specialized technical work or special assignments.
o They frequently exercise independent judgment and discretion.
o No more than 20 % of their time is devoted to non-administrative functions; 40 % in retail and services.
For professionals to be exempt:
o They do original and creative work in fields requiring specialist knowledge.
o They frequently exercise independent judgment and discretion.
o Their work requires intellectual acumen and flexibility.
o No less than 80 % of their time is devoted to professional matters.
For outside sales people to be exempt:
They must be take orders away from the employer`s business and do not devote more than 20 % of their time to non-sales activities.
- How much severance pay is a full-time employee legally entitled to?
There is no law that requires an employer to make a severance payment to an employee. However, most employers will offer a minimum of a week for every year worked. Employers in current climes have been getting less and less generous. If there is an amount written down in a contract or a policy specified in the Employee Handbook, then an employee may have the right to sue an employer who refuses to pay up. However, the cost of hiring an attorney for a minimal amount of compensation could far outweigh the benefits.
- Is an employer legally obliged to pay an employee for jury duty?
Under the Jury Systems Improvement Act 1978 (JSIA) an employer has the right to limit the amount of jury leave days that an employee can take off in one year. Most states have their own rules for dealing with requirements that apply to employers with regard to jury service. Some companies will lay down policies in their Employee Handbook. There is no legal obligation on an employer to pay for time off responding to a call for jury service, although some states do set out qualified rights to payment. Often the law will specify, however, that an employee cannot be fired or discriminated against should they be called to jury service.
- Is a job that involves substantial tips from customers still subject to the minimum wage requirements?
Minimum wage varies from state to state because some states have elected to adopt a number that is higher than the federally specified sum of $5.15 an hour. When employees receive regularly at least $30 a month in tips, the employer is entitled to reduce the pay to a minimum of $2.13 an hour and credit the tips against the minimum wage requirement. The employee, however, must receive all the money from tips and if the tips are significantly reduced for one month and wages and tips do not fulfill the minimum requirements, then the employer must return to paying minimum wage.
- How much vacation time is an employer obliged to give a full-time employee of long service?
There is no law that requires employers to pay employees for time off, such as vacation or sick leave. However, most employers do pay for a certain number of days off each year; the amount is often dependent on length of service. The Employee Handbook, if the company has one, will usually specify policy in this regard.
- What is Workers` Compensation?
The workers` compensation system provides payment to workers who are unable to perform their duties because of an injury or illness sustained in the workplace. In most situations, the employer`s liability is limited to paying wages and medical expenses. Each state has its own statute. If an employee can prove that the employer intentionally caused the illness or injury then the damages can be far more significant.
- What is the definition of an independent contractor?
In determining the status of a worker as an independent contractor, the party in control of the actual work is key. An independent contractor has license to decide when and how he or she gets the job done not the employer. If needs be, an independent contractor can stay up all night to complete a contract. An independent contractor is not governed by the laws that govern a full-time employee. They operate largely as a small business does and are able to claim tax concessions and benefit from the flexible working arrangement of the self employed.
- What records must be kept for joint labor-management apprenticeship committees?
If the joint labor-management apprenticeship committee has 5 or more apprentices enrolled during August and September, and if the employer or union sponsor is itself subject to Title VII, the committee must file an apprenticeship information report, EEO-2, to the EEOC. Records necessary for the completion of the EEO-2 report must be preserved for a period of one year from the due date of the report. Other records relating to apprenticeship programs must e preserved for a period of at least two years. Records relevant to a Title VII charge of discrimination must be maintained until final disposition of the charge or disposition of the litigation following the charge.
Every entity that controls an apprenticeship program must maintain a chronological list of names and addresses of all persons who have applied to participate, including the dates the applications were received. The list must identify gender and note race as White, Black, Hispanic, Asian, Pacific Islander, American Indian, or Alaskan Native. In lieu of the list, written applications will suffice if they contain a notation of the date the form was received and the above information. These records must be maintained for two-years or for the period of a successful applicant`s apprenticeship, whichever is longer.
- What are Fair Employment Practices Agencies and how do they relate to the EEOC?
There are more than 100 state and local Fair Employment Practices Agencies (FEPAs). The EEOC has cooperative relationships with all but a few of them. The EEOC and the FEPAs it works with have reached Work-sharing Agreements that divide up their common workload of charges in order to avoid duplication of charge processing. Each charge of discrimination that is covered by both an EEOC-enforced statute and the FEPAs law or ordinance is dual-filed under both laws, regardless of which agency receives it. These dual-filed charges are typically investigated by only one agency. This way, employers avoid two investigations of the same matter, but the legal rights of the charging parties are still preserved under both laws.