Texas First Quarter 2015 Business Today Hope Andrade Commissioner Representing Employers

as Busin Tex ess TBC C s onference

Committed to Serving Texas Employers Texas Business Today Texas Business Conferences: A Vital Employer Resource

Our Texas Business Conference (TBC) series is one of the services offered by my office that I am most proud of. These one-day seminars provide an opportunity for employers and small business Commissioner’s owners to Corner connect directly with the state’s preeminent employment law attorneys and learn about important legal updates regarding how to successfully manage their employees. Each year, our goal is to host up to twenty conferences throughout the state, touching each region and providing opportunities for business owners, CPAs, HR professionals, and anyone who manages employees to receive updates and have their employment law questions answered. For a listing of upcoming conferences, turn to page 19.

“I want to thank all of the speakers and the material handouts. It was one of the best educational seminars I’ve attended in years. TWC Commissioner Representing Employers Hope Andrade joins her staff in congratulating Senior Legal Counsel The information is priceless. I highly William T. Simmons on being awarded the Texas Star Award, which recognizes TWC employees who perform above recommend this seminar. I will and beyond at promoting agency systems and solutions and provide outstanding customer service and support. Pictured clockwise from left: Commissioner Andrade, Legal Counsel Mario R. Hernandez, Legal Counsel Elsa G. Ramos, Senior definitely attend again.” Legal Counsel William T. Simmons, Legal Counsel Velissa Chapa. Photo by Amy Kincheloe/TWC Staff – Employer who attended Brownsville TBC 2014 from each region we visit. on the phone with our Texas employers One thing that seems to always and their incredible customer service For the most part, the attorneys pleasantly surprise our conference never ceases to amaze me. As a small who answer your questions via our attendees is how accessible our business owner myself, I am reassured Employer Hotline (1-800-832-9394 presenters are for questions and one- that I would feel very comfortable or [email protected]) are on-one discussions. Our attorneys are given their patience at explaining even the same experts who present at our available for questions throughout the the most complex legal issues and TBCs. In fact, the topics covered at day, and host a Q&A session for the their earnest desire to help me and my the conference are based on the most whole conference at the end of the day. business. common phone call inquiries that our I am very proud of my attorney team In fact, I regularly hear from attorneys receive from employers. We that puts on these conferences. I often employers on how impressed they also strive to host special guest speakers listen to them in the office when they are are with our attorneys’ expertise and

2 First Quarter 2015 commitment to serving our Texas share of read-the-PowerPoint-slide- nearest you, please go to business community: To learn more to-you courses, I wasn’t sure what to www.texasworkforce.org/tbc. about the attorneys who present at expect, but I can truly say that I was We look forward to seeing you at the TBC and answer the Employer blown away at the quality of next conference in your region! Hotline, turn to page the experience.” 18. as Busin Sincerely, Tex ess – Employer who attended “I was so Grapevine impressed TBC 2014 by the quality Last year, of the TBC in order to Hope Andrade speakers, make these Texas Workforce Commission their breadth Co es conferences Commissioner Representing of knowledge, nferenc more accessible Employers the availability of and convenient for our qualified staff and attorneys employers, we introduced a new to answer specific questions and the online registration and payment system. sheer volume of information that was To review the 2015 TBC schedule and disseminated. Having attended my register for the upcoming conference

Commissioner's Corner ...... 2

Vicarious Liability For an Employee’s Actions? ...... 4

An Employee's Pregnancy Rights in the Workplace ...... 6

Metropolitan Statistical Areas Redefinition...... 9

Frequently-Asked Questions From Employers – Answered ...... 10

Employer Policies Regarding Wage Discussions ...... 12

A Developing Trend in EEO Cases ...... 14

Business and Legal Briefs ...... 16

Cover image: Texas Business Conferences offer a full-day conference where you will learn the relevant state and federal employment laws that are essential to efficiently managing your business and employees. Composite image by Amy Kincheloe/TWC Staff

3 Texas Business Today Vicarious Liability: When Will An Employer Be Liable For An Employee’s Actions?

Employers in Texas navigate through whether employees were acting within passengers was a social gathering that a countless number of employment their scope of employment when their was not part of his work responsibilities. issues on a daily basis. One matter of actions took place. The term “frolic” Although the events of the case were particular concern is the concept of means that the employee was engaged tragic, the court illustrated that an vicarious liability. In short, vicarious in an independent journey or task employer cannot be held liable for the liability means that employers will that was outside the bounds of his actions of its employees if those actions be held responsible for the actions of or her job duties as delegated by the are unauthorized and constitute a their employees. In addition, employers employer. A common example given to personal trip or errand. should be aware that vicarious liability illustrate a frolic is the truck driver that While the court in Montez found that can arise from actions both inside and is responsible for delivering supplies engaging in a frolic severs the liability outside of the workplace. While the to a buyer or customer, but instead that an employer has for the actions focus of this topic will be to describe chooses to deviate from this task and of an employee, a “detour” presents vicarious liability situations outside commit armed robbery at a local bank. a different set of circumstances. In of the workplace, be sure to look for In this latter example, it is clear that the relation to vicarious liability, a detour a similar article discussing vicarious employee is acting outside the scope of is defined as a mere departure from an liability occurrences inside the employment. As a result, the employer assigned task while still acting inside workplace in next quarter’s issue. would likely not be held liable for the the scope of employment. For instance, To begin with, vicarious liability consequences of its employee’s criminal if a pizza delivery person receives a call shares close ties with the tort (a behavior. order and opts to take a shortcut path wrongful act) theory of Respondeat Unfortunately, not all cases of instead of the normal route to reach the Superior (Latin: “let the master vicarious liability are as evident. For customer’s residence, the employer will answer.”) This theory holds that in example, in the case of Montez ex rel. likely be liable for injuries that result many instances an employer will Montez v. Department of Navy, 265 from that employee’s actions. Unlike be held responsible for the actions F.Supp. 2nd 750 (N.D. Tex. 2003), a tort a frolic situation, the employee in the of its employees if those actions case was filed against the U.S. Navy by pizza delivery example was engaging in are performed within the scope relatives of deceased family members activity that was in the furtherance of of employment. Identifying the who were killed when an off-duty an employer objective. “scope of employment” is critical in naval clerk lost control of a passenger In addition, instances of detours vicarious liability cases because if it vehicle while trying to make a turn create concern among employers is determined that the employee was at a high rate of speed. Although the since they can be held responsible for acting outside the bounds of his or her plaintiffs in this case argued that the money damages and attorney’s fees job, the employer will likely not be held naval clerk was acting within the scope associated with vicarious liability liable for those actions. As it pertains to of his employment when the accident cases. Specifically, in Garcia v. vicarious liability that occurs outside of occurred, the court disagreed. The court United States, No. C-12-108 (S.D. Tex. the workplace, two key terms need to be reasoned that the naval clerk was acting 2012), a Chief Petty Officer had just considered by employers. Those terms outside the bounds of his job duties completed a required training course are “frolic” and “detour.” because he was not given permission that left him considerably fatigued. These concepts, of “frolic” and to use the vehicle for personal reasons With his supervisor’s permission to “detour,” are essential in establishing and that the destination of he and his return to his duty station on base, the

4 First Quarter 2015 officer got in his vehicle, drove away, The court added that the employer demonstrated that there are similar and eventually drove to his off-base would need to show that the employee characteristics for determining whether residence. Subsequently, while driving was on a personal errand or frolic at an employer will be responsible for the back to the naval base, the officer the time of the accident to rebut the actions of its subordinates. Employers fell asleep at the wheel, drifted into presumption. More importantly, the would be well advised to remember that oncoming traffic, and collided with the court laid out the three-prong approach if an employee is engaging in activity plaintiffs. The defendant, the U.S. Navy, that Texas uses to determine when an that is sanctioned by the employer for attempted to have the case dismissed by employee is acting within the scope of the purposes of completing a business arguing that the officer was not acting employment. First, the employee has to objective, the employer could potentially within the scope of his employment be acting within the general authority face an uphill battle avoiding liability when the accident occurred. However, given by the employer. Second, the if an injury occurs as a result of that the court disagreed by referencing the activity has to be in furtherance of activity. By keeping the principles of permission that the officer had secured the employer’s business. Lastly, the vicarious liability in mind, employers from his superior. Moreover, the court activity has to be in connection with will be better situated to identify when noted that the activities the officer had the job duties for which the employee is they will be responsible for the actions engaged in were in furtherance of the employed. of their employees. employer’s objective: to return back to In conclusion, vicarious liability the base in time for a pinning ceremony. that lurks outside of the workplace is Although the court conceded that the a legitimate concern for employers. Mario R. Hernandez officer had deviated from the employer’s However, court rulings have Legal Counsel to Commissioner Andrade instructions by driving to his off-base residence, they indicated that his detour did not constitute a departure from his assigned tasks. The rulings in Montez and Garcia comprise only a small portion of the voluminous decisions that courts have rendered regarding vicarious Job Duties liability. However, both cases contained commentary that shed light on other situations where an employer would not be held vicariously liable for employee action. Particularly, the Garcia court indicated that an employee who goes out drinking while on a business Detour trip is not acting within the scope of employment. The court also quoted a previous judicial decision that ruled an injury caused by an employee’s personal animosity is not conduct in furtherance Frolic of an employer objective. Similarly, the Montez court described key principles that are applicable to vicarious liability. The court noted that “there is a presumption that an employee involved in an accident while driving the employer’s vehicle is acting within the As it pertains to vicarious liability that occurs outside of the workplace, two key terms need to be considered by scope of employment.” employers. Those terms are “frolic” and “detour.” Photo illustration by Amy Kincheloe/TWC Staff

5 Texas Business Today An Employee's Pregnancy Rights in the Workplace

Employers are faced with many her co-workers, and even the employer. more. Let’s address each one of these challenges when managing employees. On the other hand, employers running separately. Are the employees performing to the a business and looking at their business best of their abilities? Are they loyal needs may dread the possibility Less than 15 employees: and committed to the company? From that a pregnant employee will most If an employer has fewer than 15 employee performance to employee undoubtedly be missing work at some employees, then it is not covered by absences, employers have a lot of issues point in the future. What should an any anti-discrimination laws related to consider. One of the most confusing employer do in these situations? Does to pregnancy or disability. That means issues for employers is that of employee the law require or prohibit employers that the employer faced with a pregnant pregnancy. On the one hand, the news from taking certain actions? The answer employee is not legally required to that an employee is expecting a baby depends on the number of employees hold a job, provide a certain amount of is usually met with much joy and that an employer has: less than 15, 15 leave, modify the job duties, or change anticipation by the pregnant employee, or more but less than 50, and 50 or the employee’s schedule because of FIRST-TIME MOTHERS AT WORK Now and Then: How first-time mothers have changed their employment and leave patterns

When Did First-Time Mothers* Stop Working WhenWhen Did Did First-Time First-Time Mothers Mothers Stop Stop Working Working DuringDuring Pregnancy? Pregnancy? Percentage of First-Time Mothers *excludesDuring women Pregnancy? who did not work during pregnancy PercentagePercentagePercentage of First-Time ofof First-TimeFirst-Time Mothers MothersMothers 1961-1965 vs. 2006-2008 Who Worked During Pregnancy 1961-19651961-1965 vs. vs. 2006-2008 2006-2008 WhoWho Worked Worked During During Pregnancy Pregnancy 100 Who Worked During Pregnancy of 100100 81.6 1961-1965 2006-20082006-2008 81.681.6 1961-19651961-1965 2006-2008 first-time mothers worked 80 80 80 (2006-2008) during pregnancy(2006-2008) during pregnancy 60 60 60 35.4 44.4% 65.6% 40 34.6 35.435.4 44.444.4% % 65.665.6% % 40 4034.634.6 17.1 20 17.117.1 12.9 20 20 6.6 6.5 12.912.9 6.66.6 6.56.5 5.55.55.5 0 0ta ge percen ta ge percen 0 39.7% full time 56.1% full time ta ge percen 39.7%39.7% full fulltime time 56.1%56.1% full fulltime time 1 month or less 2 months 3–5 months 6 months or more 1 month1 month or orless less 2 months2 months 3–53–5 months months 6 months 6 months or ormore more 4.7%4.7% part part time time 9.5%9.5% part part time time MORE WOMENmonths beforeARE due WORKINGdate MORE WOMEN ARE WORKING 4.7% part time 9.5% part time Withinmonthsmonths a yearbefore before after due first due date birth date Within a year after first birth

2005-2007 1961-19651961-1965 2005-2007 More Women Are Working Sooner After FIrst Birth Leave Arrangements* MoreMore women women are are Used By First-Time MothersMothers† Who Who Worked Worked During During Pregnancy Pregnancy workingworking within within * Totals exceed 100 percent because women may use multiple types of leave. 17% 64% * Before or up to 12 weeks after giving birth a year after 17% 64% † Before or up to 12 weeks after giving birth a year after 1981-1985 2006-2008 firstfirst birth birth 9.9% 44.2% 16.8% 63.8% 3.5 let go 4.7

6.3 disability leave 9.5 of mothers who Within 3 months of mothers who Within a year 33.7 unpaid leave 42.4 returned returned to towork work within within 12 12months months paid leave 37.3 50.8 of ofgiving givingof birthmothers birth who returned to work within returned to their12 same months employer of giving birth(2005-2007) returned to returned to% their same employer (2005-2007) 35.7 quit 21.9 their same employer (2005 - 2007)

Source: U.S. Census Bureau, Income and Program Participation Survey dol.gov Source: U.S. Census Bureau, Income and Program Participation Survey 80 dol.gov Source: U.S. Census Bureau, Income and Program Participation Survey dol.gov

6 First Quarter 2015 the pregnancy. The employer is free contained in Title VII of the Civil other temporarily disabled employee. to handle the situation in any way the Rights Act of 1964. The complete text For example, the employer may have employer sees fit. of the regulation can be found here: to provide light duty, alternative However, employers should be www.gpo.gov/fdsys/pkg/CFR-2006- assignments, disability leave, or unpaid aware that if their employee policies title29-vol4/xml/CFR-2006-title29-vol4- leave to pregnant employees if it does contain provisions regarding sick leave sec1604-10.xml. so for other temporarily disabled or medical leave that would be applied The PDA provides in part: employees.” (For more information: to any and all employees, then an (a) A written or unwritten www.eeoc.gov/laws/types/pregnancy.cfm). employer should abide by those policies employment policy or practice which Therefore, under the PDA, the and allow its pregnant employees the excludes from employment applicants employer is required to treat pregnant benefit of the policies. If, on the other or employees because of pregnancy, employees the same way that any other hand, employers had no provisions for childbirth or related medical conditions employee with a medical condition any sick or medical leave, employers is in prima facie violation of Title VII. would be treated. Take, for example, should still treat pregnant employees (b) Disabilities caused or contributed an employee who was hospitalized consistently with non-pregnant to by pregnancy, childbirth, or related for two weeks after a car accident and employees. medical conditions, for all job-related who, according to doctor’s orders, Just because it is not illegal to purposes, shall be treated the same was only able to work light duty for do something, it does not mean that as disabilities caused or contributed a month. If the employer was able to engaging in such behavior will yield to by other medical conditions, under accommodate this injured employee no consequences. For example, if an any health or disability insurance or under its written or unwritten policy, employer with less than 15 employees sick leave plan available in connection then the employer would be required to chose to discharge a pregnant employee with employment. Written or also accommodate a pregnant employee because the employer believed that unwritten employment policies and who needed medical leave or a modified the employee would not be able to practices involving matters such as job schedule or modified job duties. carry out her assigned duties due to the commencement and duration of Although the employer is not required her pregnancy, and that keeping her leave, the availability of extensions, the to treat pregnant employees any better employed would be too much of a accrual of seniority and other benefits than any other employees with medical hassle, the employer could legally and privileges, reinstatement, and conditions, they should not be treated terminate the employee without payment under any health or disability any worse. violating any discrimination statutes. insurance or sick leave plan, formal or If a pregnant employee However, the employer’s dismissal informal, shall be applied to disability communicates to the employer that of the employee could result in some due to pregnancy, childbirth or related she is unable to perform some of her undesirable results such as: employee medical conditions on the same terms job functions due to the pregnancy, complaints, issues with employee and conditions as they are applied to the employer is not required to simply morale, an increase in employee other disabilities. take the employee’s word on the matter. turnover, negative feelings toward the 29 C.F.R. §1604.10 (1979) [44 FR 23805, The employer has the right to require employer, and damage to the employer’s Apr. 20, 1979] the employee to provide medical reputation in the community. After The U.S. Equal Employment documentation from her healthcare all, remember that employees are free Opportunity Commission (EEOC) provider outlining any medical to discuss their working conditions explains that, “The [PDA] forbids restrictions on her ability to work. At among themselves and will most likely discrimination based on pregnancy that point, the employer can better discuss them with friends and families. when it comes to any aspect of assess if it can reasonably accommodate So just because an employer can employment, including hiring, firing, the employee’s restrictions to enable legally discriminate against pregnant pay, job assignments, promotions, the employee to continue working. employees, it does not mean that doing layoff, training, fringe benefits, such Reasonable accommodation can include so would be the employer’s best course as leave and health insurance, and any many things, such as: a change in job of action or always in the employer’s other term or condition of employment.” duties, a reduction in work hours, a best interest. Furthermore, it provides that, “If a change to meal or rest breaks, a change woman is temporarily unable to perform to the work schedule, as well as a 15 to 49 employees: If an employer her job due to a medical condition reasonable amount of leave. has at least 15 employees but less than related to pregnancy or childbirth, the 50, then it is covered by the Pregnancy employer or other covered entity must Discrimination Act (PDA), which is treat her in the same way as it treats any Continued on page 8

7 Texas Business Today

Continued from page 7 diabetes or pre-eclampsia, which might about the FMLA here: www.dol.gov/ be characterized as disabilities for whd/regs/compliance/whdfs28.pdf. purposes of the ADA. In that case, the While employers should be aware of But what about maternity leave once ADA would apply and the employer the possible implications, many women the baby is born? The PDA does not should be aware of the requirements have perfectly normal pregnancies set out any guidelines for employers to under this statute. Employers can learn with no serious complications. follow in determining an employee’s more about their obligations under the Fortunately, these employees are able maternity leave. Remember, if an ADA here: www.eeoc.gov/facts/ada17. to work and perform their normal job employer already allows a temporarily html. In addition, the EEOC has a fact duties throughout the majority of their disabled employee to take either paid sheet for small business which explains pregnancy and any disruption to their or unpaid leave, as in the car accident employer requirements under the PDA work is minimal. Ultimately, pregnancy example above, then the employer must and the ADA here: www.eeoc.gov/eeoc/ can be a time of celebration for the allow an employee who is temporarily publications/pregnancy_factsheet.cfm. pregnant employee, but it can also be a disabled due to pregnancy to do the time filled with confusion and difficult same. The pregnant employee should 50 or more employees: issues for employers who must weigh a be treated at least as favorably as other Employers with at least 50 employees pregnant employee’s needs and wants employees who suffer from medical are covered by the Family Medical with the employer’s best interest and conditions. Leave Act (FMLA) in addition to the business needs. By being aware of the Employers should understand PDA and the ADA. Unlike the PDA, the relevant laws, employers will be better that pregnancy discrimination is FMLA provides guidance on the length equipped to make the best decisions discrimination on the basis of sex as of leave an employer is required to grant under the circumstances. Learn more opposed to discrimination on the basis a pregnant employee who meets the about pregnancy rights in the workplace of disability. Discrimination based on FMLA initial eligibility requirements. by reviewing this section in our an employee’s disability is prohibited An employer must provide up to employer handbook, Especially for under the Americans with Disabilities 12 weeks of job-protected leave for Texas Employers, www.twc.state.tx.us/ Act (ADA). A normal pregnancy is not absences due to pregnancy, other news/efte/pregnancy_rights.html. considered a disability under the ADA. qualifying medical conditions, or for However, there are certain conditions certain specified family reasons such as or complications that may arise parent-baby bonding time after the birth Elsa G. Ramos from pregnancy, such as gestational of a baby. Employers can learn more Legal Counsel to Commissioner Andrade

Employers should be aware that if their employee policies contain provisions regarding sick leave or medical leave that would be applied to any and all employees, then an employer should abide by these policies and allow its pregnant employees the benefit of the policies. Photo by iStock/Thinkstock

8 FirstFirst QuarterQuarter 20152015 2000 Census vs. 2010 Census-based Metropolitan Statistical Areas (MSAs) and Metropolitan Divisions (MDs) in Texas

9 Texas Business Today Frequently-Asked Questions From Employers – Answered

The following questions were care to follow its policy as closely as A: Assuming that the employment compiled from past Texas Business possible in that regard. The employee's relationship is at will, i.e., not governed Conferences around the state and statements about the reactions of by an express employment contract, questions from Texas employers on others should raise serious concern at reducing the employee's hourly wage our Employer Hotline. the highest levels of the company. If a could be as simple as giving the sexual harassment claim or lawsuit ends employee written notice that, effective Q: A server has indirectly accused up being filed because management on a certain date in the future, his her manager of creating a hostile tolerated attitudes like those, and new pay rate will be "xx.xx" per hour. work environment. The interesting such attitudes contributed toward an The pay would have to be at least thing is the employee never reported environment that fosters future acts of minimum wage (currently, $7.25/ it. Both the general manager and I harassment or retaliation, the owners hour). If the employee remains with the approached the employee after being of the company could end up literally company after learning of the change, mentioned by other employees who losing their company to a successful he is deemed to have agreed to the were complaining about the general plaintiff and her attorney. It is that change and will be bound by the new serious – it could be a business-closing behavior of this manager. I do not wage agreement. As to the possible event. So, the company should consider know if this is significant, but it seems unemployment claim implications of investing in an outside HR consultant or odd. When I approached this employee, a reduction in pay, please review the law firm to get them to come and hold she mentioned that her concern was for material in the following topic in our mandatory harassment training for all other employees that would be hired book Especially for Texas Employers: of the workers. In addition to the usual http://www.twc.state.tx.us/news/efte/ after she was gone. I have interviewed wording about what harassment is and ui_law_the_claim_and_appeal_process. the manager in regards to all of the why it is wrong, the employees need to html#ui-20percentrule. allegations against him. He has get a clear and unequivocal message admitted to pulling apron strings and that treating others with respect, and putting his hand on employee’s backs refraining from committing unwelcome Q: The City is creating two new to move them from one side to another. acts of harassing and even creepy employee positions for janitorial However, I have not yet discussed behavior, is not an option, and that work at the City Hall and at the civic these specific allegations from this failing to follow the company policy center. The City Council is considering employee with the manager; at least, can, in most cases, lead to immediate paying a flat amount for each position. not all of them. I have suspended the termination of employment. The training The janitorial work at City Hall will manager pending the outcome of this for managers would go beyond that and generate approximately 8 hours of investigation. I am thinking I should would let managers know that they must work per week and hours worked at address these specific allegations not only follow the policy themselves, the civic center will only be needed as with him one by one and give him a but must also support it and remind the center is utilized. So there may be chance to respond before I make a final employees of it whenever needed. Make weeks that there are no hours worked decision regarding his employment? compliance with and support of the at the center. Will these two positions Your thoughts? company policies one of the criteria qualify for salaried non-exempt A: If your company's investigation for raise reviews and performance employees? of the allegations indicates that they evaluations. It would probably be a good A: There would be no legal obstacle are true, then the manager's conduct idea to advise upper management to read to paying such employees a salary, as would appear to have been in violation some basic EEOC or law firm materials long as the salary, divided by the actual of the company's written harassment about sexual harassment and what hours worked each week, amounts to policy. Depending upon the seriousness employers are expected to do in such at least $7.25/hour. However, the city of what is proven to have occurred, the situations. would have to keep exact, detailed corrective action could range anywhere records of all time actually worked from a warning (usually written) all Q: Can you please tell me what steps by the employees, and they would the way to termination of employment. an employer must take to reduce an be entitled to overtime pay for hours However, the company should take employee’s hourly wage? actually worked in excess of 40 in a

10 First Quarter 2015 seven-day workweek. The city should her part, but the decisions she makes are of pay." As explained at http://www.twc. keep in mind that if they miss work limited to how best to apply established state.tx.us/news/efte/h_regular_rate_ and do not have paid leave to cover the guidelines to assigned tasks, since salaried_nx.html in Section H.1, the absence, the city would need written her duties primarily revolve around regular rate of pay for an employee like authorization from the employees to following procedures and accomplishing her is calculated by dividing her salary deduct the value of the time not worked tasks within parameters designed by by the number of hours the salary is from the salary (assuming that the others above her in the organization. intended to compensate. Any absence, city would not want to pay them for a Clerical support employees are never in any amount of time, may be deducted full schedule when they worked only exempt. This person sounds like a from the employee's available paid a portion of their regular schedule). senior-level support person, but her leave balance. What goes toward PTO With that in mind, what might be better primary duty is not at the level at which usage depends upon your company's is simply paying such employees an she would be designing jobs for staff PTO policy. Absences not covered hourly rate. That way, the city would like herself. Her supervisor would by available paid leave may be either pay only for time actually worked, with presumably be exempt. Other exempt ignored, or covered with a paid leave no need to worry about getting written employees within the company would advance that would be offset by future authorization for deductions for time not be the president / CEO, the general leave accruals (depending upon what worked. manager, employees operating at a vice- you have in your paid leave policy), or president level who have true discretion deducted from the employee's salary and independent judgment as to matters (however, any such deductions from pay Q: We are trying to decide about of significance for the company, and must be authorized by the employee in an overtime exemption for a salaried possibly the office administrator, if that writing – for an example of how to do employee. She is paid a salary of person has true administrative authority that, see item 12 in the sample wage $32,500 for hours 7:45-5, M-F. The as described in the regulations for deduction authorization agreement at salary was meant to include any administrative-exempt employees. www.twc.state.tx.us/news/efte/wage_ overtime, as the hours were indicated Since the office support employee deduction_authorization_agreement. with the job offer. The position is office has a fixed salary that is meant to html). support and is a crucial position. She compensate her for a standard workweek handles scheduling sales appointments of 40 hours or so, depending upon her for cities in our marketing area; standard lunch breaks, any overtime she schedules and assigns techs for William T. Simmons works would be compensated at time Senior Legal Counsel to projects in all cities; coordinates and a half based upon her "regular rate Commissioner Andrade with project owners; orders supplies, calculates needs; assist with PR for techs; schedules CEU training for employees; handles warranties; invoices clients; makes collection calls; and processes credit card payments. She totally works independently and makes decisions on her own. I want to be certain if she is exempt from OT or not, but also want to be clear about what blocks of time she can be assessed towards PTO or not. She misses a lot of work with illness, child illness, early school release, school closings, and vacation. Does this all go towards her PTO? She is an asset and we enjoy working with her, but we want to be clear on how to handle it all and we don't want to short her or us. A: The employee does not sound like an exempt salaried employee as described. She simply does not operate at a high-enough level within the company. Her position involves a There would be no legal obstacle to paying such employees a salary, as long as the salary, divided by the actual limited amount of decision-making on hours worked each week, amounts to at least $7.25/hour. Photo by iStock/Thinkstock

11 Texas Business Today Employer Policies Regarding Wage and Workplace Discussions

While maintaining a positive work example, while many employers may the law. The National Labor Relations environment can be a difficult challenge feel that wage discussions can lead to a Board (NLRB) – an independent for employers, many continue to fight tense atmosphere in the workplace, the agency – is in charge of investigating the battle because it is believed to be a fact remains that having an employer allegations of unfair labor practices. true business necessity. Negativity in policy banning such discussions would Past NLRB cases shed some light the workplace can affect the working amount to an unfair labor practice in on what constitutes “protected, environment, including worker violation of the NLRA. Violating an concerted activity.” Generally, productivity as well as the overall employee’s rights under the NLRA employees are allowed to discuss reputation of the business itself. For this can cause damage to an employer in the terms and conditions of their reason, many employers try to prevent many ways. Not only could it harm the employment. In a broad sense, this issues by implementing policies that employer’s reputation, but a violation includes discussions regarding pay prohibit employees from discussing could expose an employer to costly and (including pay cuts and pay raises), certain subjects, such as their pay or time-consuming lawsuit in which the as well as working conditions and working conditions. Unfortunately, employer could be required to reinstate the working environment. Moreover, however, such a policy is illegal under the worker and pay back pay. many employers mistakenly believe the National Labor Relations Act Therefore, employers need to that the protected activity must involve (NLRA), and the employer may face understand what “protected, concerted two or more employees, but this is not serious penalties for a violation under activity” includes to ensure that they true. Discussions involving a single this law. are not impeding on employee rights. individual may also be protected. The National Labor Relations Act is As a starting point, it is important to Employees may also discuss filing a federal law that provides employees note who is covered under the NLRA grievances and have the right to wear with several rights with respect to and who is not. First, non-union union insignia. their employment. Most of these members fall under NLRA coverage. Because discussions regarding rights are simple to understand. For In fact, most private sector employees working conditions are protected example, employees have the right are covered under this law. Some under the NLRA, employees can under the NLRA to organize, form, examples of employees who are not discuss how they are treated as well as join, or assist a union, to engage in covered include government or union the physical working conditions. For collective bargaining with respect to a employees, independent contractors, example, a California case explains hiring agreement, and to go on strike. agricultural workers, and supervisors. that after an employee was discharged However, this article is focusing on According to the NLRA, a supervisor for raising safety concerns, the one of the more complicated employee is “any individual having authority . employer was required to reinstate rights afforded under the NRLA: . . to hire, transfer, suspend, lay off, the employee and pay back pay in the the right to take part in “protected, recall, promote, discharge, assign, amount of $20,000. In the same vein, concerted activity.” reward, or discipline other employees employees may also be allowed walk Section 7 of the NLRA provides . . . or effectively recommend such off the job or sign a petition in order to employees with the right to discuss action . . . .” Because supervisors are protest the working conditions. These the terms and conditions of their usually held to a higher standard than working conditions include but are not employment, including their wages and their subordinates, they do not have limited to complaints regarding harsh the overall work environment. Such the same freedoms to engage in these treatment from co-workers and upper activity, if concerted, falls under NLRA activities. The specific language of who management. Employers should also be protection. This law prevents employers is covered under the act can be found at especially careful not to bar employee from banning such activity, regardless the following link: http://www.nlrb.gov/ discussions regarding harassment, as of whether or not it occurs in the resources/national-labor-relations-act. the employer has a duty to investigate workplace. An employer may not take The next challenge involves such allegations when they become or any adverse action against an employee determining what constitutes should have become apparent to the for participating in these activities. For “protected, concerted activity” under employer. Employees can also discuss

12 First Quarter 2015 an employer’s failure to accommodate employees to obtain approval for adding would agree with them regarding what medical restrictions. connections on social media, as that they consider to be mere complaining Employers should also be careful not would likely be considered unlawful without intent to initiate change. to terminate an employee preemptively under the NLRA. In conclusion, the employer if it is discovered that the employee Equally important to note is that should exercise caution when moving plans to discuss wages, hours, or there are certain limits as to these forward with any policy that may even working conditions. The NLRB has also employee rights. If an employee potentially violate the NLRA. The made it clear that employers may not discovers the information they are NLRB takes a broad interpretation have an arbitration policy that prevents discussing through illegal means of what is covered under the law, employees from filing joint claims. (such as accessing areas or files of and recent trends have appeared These employee rights are not just which they do not have authorization to expand the view on what constitutes limited to the workplace. Employee to see), then that activity may not be “protected, concerted activity.” coverage extends out of the workplace, protected. In addition, information Therefore, an employer should be including the internet and media outlets. protected by privacy laws, reckless or careful to avoid blanket prohibition Several cases before the NLRB have malicious behavior (including planned policies and should never leave a policy made it clear that discussions on social insubordination), credible threats, media are equally protected, as are open to interpretation, as ambiguous online videos, television interviews, engaging in violence, and dishonesty language could weaken your case. and newspaper articles. The employees are not protected. In one particular case, Ultimately, if an employer plans to were protected in these cases because mere “griping” was not found to be fashion a policy attempting to the public airing of their complaints protected activity, as the employee was regulate workplace discussions, they involved accurate descriptions of not seeking to initiate any group action should seek an employment attorney their concerns. Therefore, employers and the comments were only for the for assistance. should be careful to avoid having a individual’s benefit. However, because blanket policy prohibiting work-related the interpretation of the law is still discussions via social media. Employers developing, it would be dangerous for Velissa R. Chapa should also avoid any policies requiring an employer to assume that the NLRB Legal Counsel to Commissioner Andrade

The NLRA provides employees with the right to discuss the terms and conditions of their employment, including their wages and the overall work envioronment. Therefore, employers should not adopt a policy banning such activity, regardless of whether or not it occurs in the workplace. Photo by iStock/Thinkstock

13 Texas Business Today A Developing Trend in EEO Cases There are certain fundamental employers, such as state or federal as the EEOC, the U.S. Department principles at the heart of employment contractors or grantees, may also be of Labor, and the U.S. Department of discrimination laws. First, they are subject to laws protecting a person's Justice. grounded in the ideals of individual status as a veteran. However, despite The starting point in any discussion liberty and freedom enshrined in an increasing number of cases from of this developing area of employment our country's founding documents, around the country, there is no mention law is the U.S. Supreme Court decision all standing for the proposition that in current statutes of discrimination in the Price Waterhouse v. Hopkins people should be free to be who they protection on the basis of sexual case in 1989 (490 U.S. 228). In that are as long as they do not infringe on orientation or gender identity. This case, a female manager had been denied the rights of others. Second, they are article will discuss important trends a partnership in her accounting firm. based on the idea of respect for others. in such cases, as well as moves on She was advised by a male partner that Finally, the main thrust of the various a federal level to address the issue in the future, "in order to improve her discrimination laws is that employment via federal contracting and EEOC chances for partnership, [she] should decisions should not be based upon guidelines. In considering the cases 'walk more femininely, talk more so-called "immutable characteristics," and agency guidelines, it is important femininely, dress more femininely, i.e., things about a person that the to remember that the most important wear make-up, have her hair styled, person cannot change, or should not be decisions are the ones that come from and wear jewelry.'" The Court held expected to change, as a condition of the U.S. Supreme Court, followed by that the manager had been illegally getting or keeping a job. decisions of the federal circuit courts discriminated against due to her failure The well-known "protected classes" of appeal, then by decisions of federal to conform to established gender of people that are expressly mentioned district courts. Still important, but stereotypes. in current statutes are race, color, subject to review by federal courts, are Other cases began following a religion, age, gender, national origin, regulations, guidelines, and decisions similar path. In Oncale v. Sundowner and disability. Certain groups of issued by government agencies, such Offshore Services, 523 U.S. 75 (1998), the Supreme Court held that same-sex sexual harassment can be actionable under Title VII if the evidence shows that the acts of discrimination were done "because of sex," based in this case upon the victim being perceived as less masculine than his male coworkers thought he ought to be in the "hyper- masculine environment" in which they worked (an offshore oil drilling platform). On the federal appeals court level, the case of Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000) held that in the context of a claim under the Gender-Motivated Violence Act, a viable sex discrimination claim may exist where the evidence shows that the discrimination was based on the

Legislation has been filed on both a state and federal level to expressly provide protection to emplyees and applicants victim's failure "to conform to socially- based on sexual orientation and gender identity or expression. Photo by iStock/Thinkstock constructed gender expectations."

14 First Quarter 2015

Similarly, in Smith v. City of Salem, 5, 2009), the courts followed the same EEOC Appeal No. 0120121354 (August Ohio, 378 F.3d 566 (6th Cir. 2004), a basic principle. 13, 2013) transgender employee was the victim Not all of the cases have gone against Aside from those cases involving of discrimination. That court ruled that employers in this area of the law. In the federal employees, recent executive "[s]ex stereotyping based on a person's Kastl case noted above, the same court orders by the President have led the gender non-conforming behavior that in 2009 supported the principle EEOC and the U.S. Department of is impermissible discrimination, of Title VII covering instances of Labor's Office of Federal Contract irrespective of the cause of that discrimination based on non-conformity Compliance Programs (OFCCP) to issue behavior; a label, such as 'transsexual,' with gender stereotypes found that guidance and regulations recognizing is not fatal to a sex discrimination an employer is not prohibited from that illegal discrimination may occur claim where the victim has suffered enforcing a rule requiring employees in any case in which an employee or discrimination because of his or her to use the restrooms associated with applicant is treated adversely based gender non-conformity." In 2009, the their biological genders (the law seems upon their failure to follow established Ninth Circuit ruled in Kastl v. Maricopa to be evolving in that area of workplace gender-based norms. County Community College District, relations, though - more on that in a Legislation has been filed on both 325 Fed.Appx. 492, that “it is unlawful future issue of TBT). In the district a state and federal level to expressly to discriminate against a transgender court case of Chavez v. Credit Nation provide protection to employees and (or any other) person because he or Auto Sales, Inc., 2014 U.S. Dist. LEXIS applicants based on sexual orientation she does not behave in accordance 128762 (N.D. Ga., July 18, 2014), a and gender identity or expression. In with an employer's expectations for male-to-female transgender employee the previous session of Congress, House men or women . . . Thus, [plaintiff] did not prevail in her Title VII case due Bill 1755 and Senate Bill 815 were states a prima facie case of gender to evidence of acts of misconduct at the filed under the title "Employment Non- discrimination." In Glenn v. Brumby, workplace (such as making unwelcome Discrimination Act of 2013;" neither 663 F.3d 1312 (11th Cir. 2011), the comments to coworkers about the bill passed. In the current session of court upheld a lower court's decision medical procedures she would undergo, the Texas Legislature, HB 412, HB in favor of a transgender employee due and sleeping in a customer's car while 582, and HB 627 would all provide a to "ample clear evidence" showing that on the clock). measure of employment discrimination "the employer acted on the basis of the It would also be important to note protection for employees based on employee's gender non-conformity." that even though the EEOC and courts sexual orientation and/or gender identity Finally, our own Fifth Circuit ruled in are likely to protect employees against or expression. EEOC v. Boh Brothers Construction discrimination based on failure to Regardless of whether any such Co., L.L.C., 731 F.3d 444 (2013) that a conform to gender stereotypes, there is legislation is passed into law, employers male plaintiff had been illegally singled no case or agency guideline suggesting would be well-advised to take note out for harassment because he did not that an employer's policy on workplace of the clear direction followed by the act "manly enough." harassment should not be equally EEOC, the OFCCP, and by courts Many federal district courts have applied to all employees, regardless of around the country. In any event, most weighed in on this issue as well. A court their status of any type. employers already do their best to decision that has been cited in many The EEOC's recent administrative follow what is widely regarded as an other decisions around the country decisions with regard to gender HR best practice, which is to treat all was Schroer v. Billington, 577 F.Supp. discrimination claims by transgender employees fairly and consistently in 2d 293 (D.D.C.2008), in which the employees have followed the holding accordance with known standards and court ruled that "[i]n refusing to hire in the Schroer v. Billington case from rules, with no ill treatment based upon [plaintiff] because her appearance and 2008. Here is a representative list of personal or individual characteristics background did not comport with the some of those decisions: that have nothing to do with their ability decisionmaker's sex stereotypes about Macy v. Dep't of Justice, EEOC or willingness to do the work. Such how men and women should act and Appeal No. 0120120821 (April 20, 2012) employers would have no difficulty appear ... [defendant] violated Title VII's Complainant v. U.S. Postal Service, dealing with the rapid pace of change in prohibition on sex discrimination"). EEOC Appeal No. 0120122376 this area of workplace relations. In Lopez v. River Oaks Imaging & (February 19, 2013) Diagnostic Group, Inc., 542 F.Supp.2d Complainant v. Dep't of Energy, 653 (S.D.Tex. 2008), and in Creed v. EEOC Appeal No. 0120131136 (August William T. (Tommy) Simmons Family Express Corp., No. 3:06-CV- 13, 2013). Senior Legal Counsel 465RM, 2009 WL 35237 (N.D. Ind. Jan. Complainant v. Dep't of the Interior, to Commissioner Andrade

15 Texas Business Today Latest Developments and Legal Updates

Take Care When Referring to "Legal" Workers The NLRB issued a decision in the EMPLOYEE RIGHTS case of Labriola Baking Company UNDER THE FAIR LAbOR STANDARDS AcT (361 NLRB 041; apps.nlrb.gov/link/ THE UNITED STATES DEPARTMENT OF LABOR WAGE AND HOUR DIVISION document.aspx/09031d4581885375), holding that a union decertification FEDERAL MINIMUM WAGE election can be invalidated by an PER HOUR employer’s $7.25 comments Business & BEGINNING JULY 24, 2009 to the effect Legal Briefs OVERTIME PAY At least 1½ times your regular rate of pay for all hours worked over 40 in a workweek. that striking CHILD LABOR An employee must be at least 16 years old to work in most non-farm jobs and at least 18 to work in non-farm workers might have to be replaced by jobs declared hazardous by the Secretary of Labor.

“legal workers.” As noted by the Board, Youths 14 and 15 years old may work outside school hours in various non-manufacturing, non-mining, even though it could have been the non-hazardous jobs under the following conditions: result of a faulty translation, the phrase No more than • 3 hours on a school day or 18 hours in a school week; itself could have had a chilling effect • 8 hours on a non-school day or 40 hours in a non-school week. on workers who might be uncertain. Also, work may not begin before 7 a.m. or end after 7 p.m., except from June 1 through Labor Day, when As with most matters involving unions evening hours are extended to 9 p.m. Different rules apply in agricultural employment. and collective bargaining matters, it is TIP CREDIT Employers of “tipped employees” must pay a cash wage of at least $2.13 per hour if they claim a tip credit best to work with an experienced labor against their minimum wage obligation. If an employee’s tips combined with the employer’s cash wage of at least $2.13 per hour do not equal the minimum hourly wage, the employer must make up the difference. law attorney in structuring a company's Certain other conditions must also be met. response to union situations. ENFORCEMENT The Department of Labor may recover back wages either administratively or through court action, for the employees that have been underpaid in violation of the law. Violations may result in civil or criminal action.

Employers may be assessed civil money penalties of up to $1,100 for each willful or repeated violation of Why Companies Should Post the minimum wage or overtime pay provisions of the law and up to $11,000 for each employee who is the subject of a violation of the Act’s child labor provisions. In addition, a civil money penalty of up to $50,000 Required Notices may be assessed for each child labor violation that causes the death or serious injury of any minor employee, Aside from the fact that various and such assessments may be doubled, up to $100,000, when the violations are determined to be willful or repeated. The law also prohibits discriminating against or discharging workers who file a complaint or agencies may be able to impose participate in any proceeding under the Act. administrative penalties for failing to ADDITIONAL • Certain occupations and establishments are exempt from the minimum wage and/or overtime pay post required notices in the workplace, INFORMATION provisions. • Special provisions apply to workers in American Samoa and the Commonwealth of the Northern Mariana a recent court decision (Cruz v. Maypa, Islands. • Some state laws provide greater employee protections; employers must comply with both. 773 F.3d 138 (4th Cir. 2014) illustrates • The law requires employers to display this poster where employees can readily see it. another good reason to display every • Employees under 20 years of age may be paid $4.25 per hour during their first 90 consecutive calendar days of employment with an employer. poster required by law. In that case, the • Certain full-time students, student learners, apprentices, and workers with disabilities may be paid less than court ruled that the employer’s failure the minimum wage under special certificates issued by the Department of Labor. to post the required FLSA notice about For additional information: minimum wage and overtime pay 1-866-4-USWAGE WHD “equitably tolled” the three-year statute (1-866-487-9243) TTY: 1-877-889-5627 U.S. Wage and Hour Division of limitations for filing an FLSA action in court. The effect of the ruling was to WWW.WAGEHOUR.DOL.GOV allow the former employee to maintain U.S. Department of Labor Wage and Hour Division WHD Publication 1088 (Revised July 2009) her FLSA suit despite its late filing.

16 First Quarter 2015

Act of 1964 “extends to claims of exemption). On January 14, 2015, the Severe Consequences Possible discrimination based on an individual’s U.S. district court in the District of for Violating Immigration Laws gender identity, including transgender Columbia ruled in the case of Home A recent decision by the Second status.” The DOJ memorandum Care Association of America, Inc. Circuit U.S. Court of Appeals announcing Holder’s position is v. David Weil, et al, that DOL had highlighted the sometimes-extreme online at www.justice.gov/sites/ overstepped its authority, and the court consequences of hiring and harboring default/files/opa/press-releases/ issued an injunction preventing DOL undocumented workers. In United attachments/2014/12/18/title_vii_memo. from enforcing the new rules. The rules States v. George, No. 13-2762, 2015 WL pdf. are now on hold pending an expected 774576 (2d Cir., Feb. 25, 2015), the court appeal by DOL. To see the decision, held that forfeiture of the employer’s New NLRB Ruling on Use of visit: ecf.dcd.uscourts.gov/cgi-bin/ home, valued at almost $2 million, Company E-Mail show_public_doc?2014cv0967-32. was not an excessive punishment In the case of Purple in light of the employer’s actions, Communications, Inc., 361 NLRB New Federal Resource Site for consisting of illegally harboring and No. 126 (Dec. 11, 2014), a majority of ADA Compliance employing an undocumented worker the Board voted to overturn an earlier The Americans with Disabilities Act for six years, failing to pay minimum NLRB precedent case holding that and related laws protecting individuals wage and overtime for what were up to employees have no right under the with disabilities can be challenging for 17-hour days, six and seven days per NLRA to use their employers’ e-mail employers to understand and comply week, failing to report wages and pay systems for purposes of exercising with, and so the EEOC has partnered appropriate payroll taxes, forcing the their rights to discuss their terms with other agencies charged with worker to sleep in a closet in the home and conditions of employment and to disability discrimination prevention that was forfeited, and not allowing the engage in collective action, such as to provide a resource guide titled worker to leave the home during the organizing a union. Under the new “Recruiting, Hiring, Retaining, and time she was employed. decision, employees indeed have the Promoting People with Disabilities.” right to do that during non-working The resource kit is available online New Rules from OFCCP time. One member dissented, but unless at www.whitehouse.gov/sites/default/ The U.S. Department of Labor’s the decision is reversed in a court, files/docs/employing_people_with_ Office of Federal Contract Compliance employers will need to exercise caution disabilities_toolkit_february_3_2015_ Programs has adopted new rules for regarding e-mail use policies and should v4.pdf. federal contractors that implement the engage the assistance of experienced President's recent executive order 13672. labor law counsel in designing and Final Rule on FMLA Spousal The rules basically prohibit employment administering such a policy. Leave Rights Takes Effect discrimination against employees on Effective March 27, 2015, the the basis of sexual orientation or gender Update on DOL's Proposed FMLA’s provisions relating to taking identity, and the effect is to protect Rules for Companions job-protected leave in the event that a lesbian, gay, bisexual, and transgender The U.S. Department of Labor spouse has a qualifying condition will employees who work for companies had earlier issued some proposed apply to all couples, including those with federal contracts. Employers may regulations restricting application who are in same-sex marriages entered find more information on the OFCCP of the “companionship” exemption into in states where such marriages are website at www.dol.gov/ofccp/LGBT/; under Section 213(a)(15) of the FLSA legal. That is a change from the former compliance resources are at www.dol. to companions hired directly by the rule, which applied to same-sex spouses gov/ofccp/LGBT/LGBT_resources.html. elderly and disabled clients they served, only if same-sex marriages were thus excluding companions assigned recognized in the state in which the U.S. Attorney General Clarifies to clients of third-party providers, and employee works. For more information Position in EEO Litigation the definition of "companion" would on the DOL regulations, visit www.dol. Attorney General Eric Holder have excluded direct-care providers of gov/whd/fmla/spouse/. announced on December 18, 2014 any service beyond companionship, that he has instructed the Department fellowship, and protection. In addition, of Justice, with regard to any future the proposed rules provided that third- litigation in support of EEO cases party employers of care providers William T. Simmons involving public employers, to take may not claim the overtime exemption Senior Legal Counsel to the position that the Civil Rights under Section 213(b)(21) (the “live-in” Commissioner Andrade

17 Texas Business Today Meet the Legal Staff for the Commissioner Representing Employers

William T. She was born and raised in McAllen, employment law matters and employee (Tommy) Texas, and received her undergraduate management issues. Simmons degree from Southwestern University in Ramos received both her serves as senior Georgetown, Texas. Velissa earned her undergraduate degree in architectural legal counsel for law degree from Texas Tech University studies and her law degree from the Commissioner School of Law, and during her time University of Texas at Austin. Andrade, the there, she became active in several She spent the first eight years of her Commissioner organizations, including the Hispanic career in private practice handling Representing Law Student Association, Intellectual criminal defense cases and family law matters in Travis and surrounding Employers at the Texas Workforce Property Student Association, and the Commission, where he advises counties. She joined the Commission International Law Society. She also the Commissioner on final-level Appeals department of the Texas served as the Executive Student Writing unemployment and wage claim Workforce Commission in 2010 and Editor for Volume 14 of the Texas Tech appeals, assists business groups with became a permanent staff attorney Administrative Law Journal and was employment-related legislation, and for the office of the Commissioner an active participant in the law school's counsels employers on Texas and federal Representing Employers in January employment laws. Simmons has served advocacy program. In addition to her 2012. as legal advisor to the Commissioner work, Velissa enjoys the outdoors and Ramos shares her home with her representing employers since 1987 takes advantage of living in Austin husband of 17 years, her 10 year- and has given over 2000 talks before whenever she can by attending events old daughter, her 8 year-old son, two employer groups. He authored the TWC supporting local parakeets and one rabbit. When not at book Especially for Texas Employers music, art, and the office, she enjoys spending time and is the editor of the Employment Law film. with her family. She recently decided to Handbook of the Texas Association of take up rollerskating so she could keep Business. Recent awards from employer Elsa G. Ramos up with her kids. groups include the Texas Payroll is legal counsel Conference (Spirit of TPC - 2004, and to Hope Andrade, Mario Hernandez Government Partner Award - 2008) the Commissioner completed his undergraduate and the Texas Association of Business Representing Employers at the Texas studies in (Lifetime Friend of Employers Workforce Commission. She advises Award - 2012). Simmons has also government at Commissioner Andrade on high-level published employment law software for the University of unemployment appeal cases, policy desktop computers and mobile device Texas at Austin. apps for employers in three different initiatives and legislative changes. He went on to earn his doctorate in formats: web app (any mobile device), Ramos is a regular participant at the jurisprudence at St. Mary’s University Android, and Texas Business Conferences. These in San Antonio. While at St. Mary’s, iPhone/iPad. seminars are hosted by TWC throughout he participated in the clinic for legal the state and are designed to educate and social justice and provided legal assistance to indigent and low- Velissa Chapa employers on various employment income individuals. Before joining serves as legal related topics. She also speaks at Commissioner Hope Andrade’s legal counsel to the various events on the topic of Handling team in 2014, he spent four years as Commissioner Unemployment Claims and Appeals. In general counsel for a home health Representing addition, Ramos provides information company in the Rio Grande Valley. In Employers of and guidance to employers who contact his spare time, he enjoys listening to the Texas Workforce Commission. the office hotline with questions about music, running and fishing.

18 First Quarter 2015

Please join us for an informative, full-day conference where you will learn the relevant state and federal Upcoming Texas Business employment laws that are essential to efficiently Conferences managing your business and employees. Wichita Falls ...... April 10, 2015 We have assembled our best speakers to guide you through ongoing matters of concern to Texas San Marcos ...... May 1, 2015 employers and to answer any questions you have regarding your business. Katy ...... May 22, 2015*

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