Human Resources

San Antonio Passes Paid Sick Leave Ordinance But Will It Ever Go Into Effect?

On August 16, 2018, the San Antonio City Council adopted a paid sick and safe leave ordinance which, aside from minor linguistic differences, is identical to the ordinance passed earlier this year in Austin. The next day, the Texas Court of Appeals,Third District, issued an order that temporarily enjoins Austin’s ordinance from taking effect until the appeal is resolved.

The City of Austin is currently embroiled in a legal challenge to its law, which, depending on the outcome, could impact San Antonio’s ordinance. Various organizations, including the Texas attorney general, have argued that state law preempts the Austin ordinance (and any similar local law). A state district court judge denied the challengers’ request for a temporary injunction preventing the ordinance from taking effect.  However, the denial was appealed to a state appellate court, which, as noted above, issued a temporary order that prevents the Austin law from taking effect as scheduled on October 1, 2018, until the appeal is resolved. On appeal, the
only issue that will be addressed is whether the lower court should have granted a temporary injunction. The appellate court will not decide the lawsuit’smerits, i.e., whether the ordinance is valid or preempted by existing state law.  Even if the legal challenge to Austin’s ordinance does not eventually succeed, the Austin ordinance may not exist for long, and the San Antonio law might never take effect, because state representatives are expected to introduce a law that expressly prohibits local governments from enacting paid sick and safe time ordinances. Such a legislative bill has a higher-than-average likelihood of passing in Texas’ conservative environment.

Should Austin succeed in defending its law’s validity and/or the state does not enact a preemption law, employers with San Antonio operations will need to familiarize themselves with what the new law requires. San Antonio’s ordinance is scheduled to generally take effect on August 1, 2019, although for employers with five or fewer employees in the preceding 12 months, compliance obligations are delayed until August 1, 2021. 

Covered Employers, Employees, and Relation
The San Antonio law covers all private employers. However,  a greater leave amount must be provided by employers with more than 15 employees.  Only employees who perform at least 80 hours of work for pay within the city limits are covered, including those performing work through the services of a temporary or employment agency. The ordinance does not cover independent contractors or unpaid interns. Unlike many similar laws, the ordinance applies to employees covered by a collective bargaining agreement (CBA) and only one provision in the law – accrual caps – may be partiallywaived via a CBA.  Employees can use leave for themselves or to care for or assist a family member, which includes an employee’s child, parent, or spouse, or any other individual related by blood or whose close association with the employee is the equivalent of a family relationship.

Accrual, Caps, and Carryover
Employees must accrue at least one leave hour for every 30 hours worked in San Antonio. Leave accrues in whole-hour units, not proportionally.  Different annual accrual caps apply based on an employer’s size. For employees of employers with 16 or more employees, annual accrual is capped at 64 hours, whereas a 48-hour annual accrual cap applies to employees of smaller employers.

Using Leave
Generally, leave is available for use as soon as it is accrued, but employers may restrict use during the first 60 days of employment for employees whose term of employment is at least one year.  Therefore, for your usual at-will employee who is not guaranteed at least one year of employment, if leave is accrued, the employee can immediately use it.  An employer is not required to allow an employee to use leave on more than eight days in a year.  When employees use leave, they must be paid what they would have earned had leave not been taken, which cannot be less than the minimum wage. 

Prohibitions, Penalties & Enforcement
Employers cannot require employees to find replacement workers to cover the hours they use leave. Additionally, they cannot transfer, demote, discharge, suspend, reduce hours, or directly threaten these actions against an employee because that employee: (1) requests or uses leave; (2) reports or attempts to report a violation of the law; (3) participates or attempts to participate in an investigation or proceeding under the law; (4) otherwise exercises any rights afforded by the law

US Supreme Court Upholds Class Action Waivers in Arbitration Agreements

 

The Supreme Court in Epic Systems Corp. v. Lewis (Epic) has upheld the use of class and collective action waivers in arbitration agreements, finding such waivers lawful and enforceable under the Federal Arbitration Act (FAA).  The Court’s decision ends a circuit split and overturns the National Labor Relations Board’s (NLRB) position that class and collective action waivers violate employees’ rights under the National Labor Relations Act (NLRA).  In a 5-4 opinion authored by Justice Gorsuch, the Court held the FAA requires arbitration agreements to be enforced on the same grounds as any other contract, and the NLRA, which was enacted after the FAA, contains no contrary congressional command excluding class action waivers from the FAA’s mandate. 

The Court went on to hold that the NLRA does not grant employees the right to engage in class or collective actions as a Section 7 right.  Section 7 instead guarantees employees the right to bargain collectively and organize unions.  In reaching this conclusion, the Court noted that when the NLRA was adopted in 1935, the Federal Rules of Civil Procedure had not created the class action, and neither had the Fair Labor Standards Act codified its collective action provision.  Thus, the NLRA does not contain a congressional command contrary to the FAA's central purpose, which is to enforce agreements to arbitrate in accordance with their terms.  As Justice Gorsuch noted, “it’s more than a little doubtful that Congress would have tucked into the mousehole of Section 7’s catchall term an elephant that tramples the work done by these other laws.”

Finally, Justice Gorsuch also rejected the argument that the NLRB was due deference for its position on class and collective waivers.  By finding class and collective action waivers unlawful, the NLRB was not just interpreting the NLRA, it was interpreting the NLRA along with the FAA, the latter being a statute it does not administer.  According to the Supreme Court, this type of analysis concerning two different statutory regimes is for the courts, not an administrative agency. 

The Court’s decision is a great win for employers, and it brings an end to the years of uncertainty created when the NLRB first changed course to challenge arbitration agreements. The class/collective action waiver in an arbitration agreement can insulate employers from having to defend wage and hour collective actions.

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Mark Jodon, a shareholder in Littler Mendelson’s Houston office, is board-certified in labor and employment law by the Texas Board of Legal Specialization.  Mark serves as the Chapter’s attorney and chairs the HR Committee.  He can be reached at (713) 652-4739 and mjodon@littler.com.  

Compensating Employees for Overnight Travel

DOL Issues Opinion Letter on Travel Time

On April 12, 2018, the United States Department of Labor (DOL) issued an opinion letter that provides guidance on how employees without “normal working hours” should be compensated for travel time involving an overnight stay.  The opinion letter, FLSA2018-18, confirms long-standing DOL positions regarding when travel time is compensable under the Fair Labor Standards Act (FLSA) (e.g., hotel to worksite travel is a normal non-compensable commute).  However, the opinion letter also addresses a nagging issue that has remained unsolved for many years.

For employees with irregular schedules, how do you determine their “normal work hours” during which they must be paid when travel requires an overnight stay? This letter provides employers with two different methods to reasonably ascertain an employee’s normal work hours, and determine whether travel time is compensable.  The employer may review the employee’s time records during the most recent month of regular employment and use the average start/end times during that time period.  Employers also may negotiate with the employee or employee’s representative and agree to what constitutes the employee’s normal work hours.  If employers use either of these methods, the DOL will not find FLSA violations when employees are not paid for travel time occurring outside these normal working hours on work or non-work days.

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Mark Jodon, a shareholder in Littler’s Houston Office, serves as the chapter attorney for the ABC Gulf Coast Chapter and he chairs the Human Resources Committee.  Mark is board certified in labor and employment law by the Texas Board of Legal Specialization.  He can be reached at (713) 652-4739 and mjodon@littler.com.

Keys to Effective Discrimination & Harassment Prevention Training

Discrimination and harassment prevention training are vital for setting standards of appropriate workplace behavior. However, careless training practices can create issues for an employer.  The following is a list of guidelines for employers providing antidiscrimination and anti-harassment training:

  • Trainers should not ask participants about their own stereotypes or biases: Anti-discrimination and anti-harassment trainers should not ask participants to discuss their own feelings on diversity issues or about particular groups. If participants are revealing their own stereotypes and biases, even indirectly, these statements could be used later against the organization
  • Trainers must not ask for or rely on participants’ promises of confidentiality: Even if participants agree to keep what is said during the training confidential, everything said or written can be revealed in subsequent litigation. Requesting confidentiality may infringe employees’ Section 7 rights under the National Labor Relations Act.  
  • Trainers should not draw legal conclusions: If a trainer declares any specific conduct “is unlawful,” “is sexual harassment” or “is discrimination,” the trainer is drawing a legal conclusion that could compromise future legal defenses. In a training program, it is better to describe the hypothetical conduct with terms such as “inappropriate” or “disruptive.” Trainers should be wary of participants who pose supposedly hypothetical situations and ask the trainer whether such conduct is, for example, harassment, discrimination or unlawful. The participant may be describing a real situation and the trainer’s response may bear on future litigation.  
  • Remember that training materials may be discoverable: Employers should draft and review training materials with an eye to their possible discoverability during litigation. If an employer later becomes involved in litigation, these materials may have to be provided to the plaintiff.
  • Don’t rely on training alone—conduct an audit as well: Effective training is crucial, but employers must not see it as a “magic pill.” Employers should also undertake a comprehensive audit of the company’s official policies and actual practices, and identify any gaps between the two. A company that regularly examines its own policies and practices will be in a better position to reduce the risk of litigation, and if litigation does occur, will likely be in a better position to defend it.
  • When training supervisors and managers, include legal obligations while providing tools to change conduct: Management skills training and employment law basics training are connected. Yes, supervisors and managers need training on basic management skills. However, this training can effectively be linked with the legal obligations of the organization. Such training should include information about who is protected by the law and should give examples of conduct that is inappropriate. Training topics should be kept specific to the employer’s work environment, such as issues that may arise around interviewing job candidates in protected classes, managing performance in a nondiscriminatory and consistent way and avoiding retaliation. By linking the two subjects—skills and compliance—companies will be better positioned to defend against wrongful termination claims or to avoid litigation altogether.
  • Train supervisors and managers on how to respond to complaints: Supervisors and managers need to know how to respond to complaints of discrimination and harassment under both the law and company policies. In some instances, unbeknownst to managers, the express obligation to respond to employees’ complaints is set forth in the company’s employee handbook. A prompt, effective response to a complaint can limit liability, and may also demonstrate to complainants that the company takes their concerns seriously. Supervisors and managers must be informed that their action or inaction regarding complaints not only exposes the company to liability, but also exposes the supervisor/manager to personal liability.
  • Teach all employees about the company’s own policies: All employees need to know about the employer’s own anti-harassment and anti-discrimination policies and the consequences of failing to abide by them. In some cases where the employer was found liable for discrimination or harassment, the employer had a policy in place but did not ensure that the company’s employees were aware of its existence. In other cases, employers were found liable because supervisors and managers did not follow the procedures outlined in the policy. Employers should disseminate these policies widely and make sure that all employees know how to invoke and use them.
  • Provide tools for continued awareness: Training can lay the groundwork for attitudinal change, but attitudes do not change overnight. Thus, it is important to train employees how to challenge conduct by colleagues that is inappropriate, discriminatory or harassing. Most employees do not want to condone discriminatory and harassing conduct, and may need guidance to better understand how to appropriately respond to it.
  • Keep records of who is trained: Employers should make sure they keep records regarding who has been trained and the curriculum followed. Training can be an effective defense.
  • Training is a continual process: Courts often examine the regular nature of an employer’s efforts. For example, in EEOC v. Caterpillar, Inc., the court noted 13 separate training events over an 11-year period as a basis for the decision to reject the EEOC’s punitive damages claim.  Furthermore, employees' memories may fade and they will likely retain only the most general impression of key learning points after one to two years.*****************

Mark Jodon, a shareholder in Littler Mendelson’s Houston office, is board-certified in labor and employment law by the Texas Board of Legal Specialization.  Mark serves as the chapter attorney and HR Committee Chair for the ABC Gulf Coast Chapter.  Contact Mark at (713) 652-4739 or mjodon@littler.com to schedule a free 1-hour training session – a benefit of your ABC membership.


Keys to Minimizing the Risk of Workplace Bullying

Bullying behavior has often been excused as simply a “personality conflict” or an aggressive “management style.”  Employers typically do not see bullying as behavior that rises to the level of “unlawful” harassment.  Consequently, bullying often goes uninvestigated and it is often condoned. However, if neglected, a bully-rich environment can be just as toxic as other types of harassment and expose a company to substantial liability.

A purposeful anti-bullying campaign, if implemented constructively, can help employers and supervisory employees to effect change, revise policies, and create a positive, more productive workplace culture.  The following may help employers proactively manage bullying in the workplace: 

1.  Create a culture of respect for all employees: It is crucial that this message comes “from the top down.” Top management must set and enforce the tone. 

2.  Establish the culture and set the right tone (for everyone) from the very beginning. Have a policy (separate from an unlawful harassment policy) that outlines the company’s expectation that employees will be treated with respect and dignity, and that the company does not tolerate disrespectful behavior. Employers that do not set the expectation leave it to chance to get the desired result. Clearly defining what bullying and respectful behavior means within the company will enable all employees to know what is expected. 

3.  Send a clear message of respect, tolerance and professionalism: Deliver “respect-based” messaging in your training of supervisory and nonsupervisory employees, separate from and in addition to an anti-harassment mandate. Anti-bullying is not about protected classes; it is about treating everyone with respect so that corrosive environments are less likely to arise or persist. Some employees may have come to think of bullying behavior as normal or acceptable—perhaps it was learned from past bosses, from home situations, or in social settings. Regardless of the origin of this belief, make it clear that, at the workplace, professionalism and respect are the order of the day. 

4.  Include “effective leadership” as part of the company’s basic supervisor/manager training: Tie the company’s anti-bullying/respect-based workplace message to “effective leadership” skills. Create managers’ buy-in with performance-backed expectations. Such training should include the skills a manager can use to hold employees accountable and improve the employees’ performance without the manager relying on his or her own bullying behavior. “Management-by-bullying” is simply not good leadership. Employees (and employers) want leaders who are respectful, consistent and motivating.

5.  Hold all employees accountable for bullying and disrespectful behavior: Training, by itself, is not the complete solution. Employers must hold employees accountable with appropriate discipline and remedial measures.

6.  Set expectations in performance: This includes the expectation that all employees treat others with respect, dignity and civility. Make “getting along with others” a performance measurement. 

7.  Teach empathy: On both sides of a contentious dynamic, the ability of an individual to step back and engage in a sincere, empathic response (e.g., “I understand you’re frustrated. Help me understand what we could do to improve the situation...”) rather than a retort that escalates the situation, can be a game-changer at resolving the issue at hand.

8.  Promptly and appropriately investigate: If a complaint of bullying is registered, investigate with the same vigilance that would attach to a complaint of harassment.  Thoroughly investigate the complaint and then take appropriate remedial action that stops the bullying behavior.

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Mark Jodon, a shareholder in Littler Mendelson’s Houston office, is board-certified in labor and employment law by the Texas Board of Legal Specialization and he frequently conducts EEOC and other HR training for companies.  Mark serves as the chapter attorney for the ABC Gulf Coast Chapter.  He can be reached at (713) 652-4739.

-------------------------- Littler Mendelson, P.C. is part of the international legal practice Littler Global, which operates worldwide through a number of separate legal entities. Please visit www.littler.com for more information.

Time to Revisit Your Sexual Harassment Policy

Sexual harassment has been unlawful in the workplace for more than 50 years.  Yet it remains the most visible employment issue facing corporate America today.  Victims of sexual harassment are emboldened to speak up, and a remarkable number of business leaders in many industries are being called out for alleged bad behavior and forced to step down.  Every day there are allegations in the headlines and news of another firing due to inappropriate conduct.

 According to EEOC statistics, last year more than 13,000 administrative charges alleged sex-based harassment. As more victims find their voices, it will be no surprise if the number of sexual harassment charges filed with the EEOC reach record numbers in 2017.  Businesses face huge legal and reputational risks if they turn a blind eye to serial perpetrators at any level of the organization, but especially at the top. In today’s climate, the wisest business practice will be to identify pro-actively inappropriate behavior and end it swiftly and decisively. 

 What should concerned businesses be doing?  Consider the following action steps:

 1.  Review existing anti-harassment policies and audit the effectiveness of their complaint reporting mechanisms and anti-retaliation precautions. 

2.  Hold employees accountable—especially at the executive level—for their bad behavior in a meaningful and proportional manner. 

 3.  Identify vulnerabilities by harnessing complaint data, both historical and current, to determine if there are any trends by geographic location, business unit or job category.

 4.  Consider conducting an anonymous employee survey to determine whether unreported and still-festering harassment issues, rumors or open secrets negatively impact the company and pose continuing legal risks. 

 5.  Make necessary or desired adjustments to the content and frequency of anti-harassment training and schedule training for all employees at all levels of the company.

 6.  Because workplace culture is critical to identifying and preventing harassment, schedule and spend time on leadership “buy-in” before rolling out the updated policy, and educate leaders regarding how best to proactively promote a workplace culture free from harassment, and spell out for them the potential consequences—both to the company and to them individually—of failure to achieve such a culture.   

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G. Mark Jodon, a shareholder with Littler Mendelson, is board-certified in labor & employment law by the Texas Board of Legal Specialization.  Mark serves the ABC Gulf Coast Chapter as its chapter attorney and chairperson of the Human Resources Committee.  Mark can be reached at (713) 652-4739 and mjodon@littler.com.  Please email Mark if you would like to receive a comprehensive resource on harassment, discrimination and retaliation at no charge.