Employment law is probably the area of law most misunderstood of those that affect people on a daily basis. There is a lot of information floating around that is inaccurate or inapplicable to Texas law. Each state has its own set of labor and employment laws. What is true in one state may not be true here in Texas. As an employment lawyer in Texas there is only so much I can do to help people who have been lawfully fired over a misconception of Texas employment law, particularly about wages, overtime, harassment, discrimination and FMLA rights. Today’s post will dispel seven misconceptions I commonly hear in my Texas law office about employment law.
1. I can’t be fired if I am part of a protected group under Texas law or federal anti-employment discrimination laws.
Sometimes people incorrectly assume their employer will not fire them because they are part of one or more groups protected under anti-discrimination laws. It might be true that some employers are hesitant to fire certain employees out of fear of litigation. That does not mean your employer cannot fire you or otherwise take disciplinary measures. Your employer may not take corrective action motivated by an unlawful form of discrimination. Your employer can take corrective action including termination for any lawful reason.
2. My employer has to give me breaks and lunches in Texas.
In Texas an employer is generally not required to give paid or unpaid breaks during the workday. Many employees receive paid fifteen minute breaks every four hours with a thirty minute or one hour unpaid lunch. However, this is provided as a custom or negotiated benefit rather than a legal obligation. Employment law in Texas requires some types of breaks. Employers must make reasonable restroom breaks available. Certain break periods may be necessary for breastfeeding mothers, intermittent FMLA leave, as a reasonable accommodation for a disability. Certain industries require breaks in particular positions.
If your employer provides the usual break schedule only as a matter of policy then it is free to require you to work instead of receiving breaks. However, your employer cannot make you work through unpaid breaks and not pay you for that time. If you are working then you must receive pay.
3. Anything unpleasant at work is a hostile work environment.
The term “hostile work environment” has a specific meaning under employment law. A workplace could be hostile for any reason. When we talk about a hostile work environment we mean a particular level of hostility motivated by select reasons. When the workplace qualifies as a hostile work environment then it will give rise to a claim against the employer. The hostility must be motivated by either unlawful discrimination or complaining of an unlawful employment act.
The hostility must also rise to the level of being severe or pervasive. There is a particular standard set for what is either severe or pervasive. If the workplace hostility does not qualify as a hostile work environment as defined under employment law then the employee may have to make other decisions.
4. Every employee gets overtime pay in Texas.
Many employers take every opportunity to underpay employees, often through unlawful activities like misclassifying employees as independent contractors or wrongfully classifying non-exempt employees as exempt employees to avoid overtime pay. However, not all workers have a legal entitlement to overtime pay. Overtime pay is required as a matter of law for employees who are non-exempt from the minimum wage and overtime provisions of the Fair Labor Standards Act. Employees also receive it as a matter of contract for any worker who works under a contract or collective bargaining agreement requiring the employer to pay overtime. An employer may choose to pay overtime as a voluntary policy to keep good workers. Without a legal or contractual duty to pay overtime the employer does not have to pay overtime. There is no claim against the employer for not paying overtime in that case.
That leaves out many workers who are exempt from these provisions including:
- Properly classified exempt, salaried employees paid on a fixed, non-hourly basis;
- Properly classified independent contractors who do not receive an overtime pay rate in their contract;
- Lawyers, doctors and other employees who meet another exemption under the Fair Labor Standards Act;
- Employees wholly exempt from the Fair Labor Standards Act and covered by other statutes.
A question I often receive comes from salaried employees who work well over forty hours each week and cannot understand why they do not receive overtime. If the employee meets the salaried exemption under the Fair Labor Standards Act (which requires more than payment on a salary basis) then the employee does not have to receive overtime pay. That is just one of the trade-offs to receiving wages on a salaried basis rather than an hourly basis. However, the salaried employee may not be exempt just because the employer says so. An employee misclassified as exempt may recover unpaid overtime pay plus other remedies.
5. My employer has to follow its own policies according to Texas laws.
Remember when your parents would tell you, “As long as you’re living under my roof you are going to do things my way” and “Do what I say not what I do”? The same quips apply when you go to work. A good employer should set reasonable policies and follow them to set a good example. Unfortunately not all employers share that view. Sometimes policies are applied, disregarded, changed, or just outright made up for whatever is convenient to the situation. In most cases employers are free to set a poor example and not follow their own policies. It certainly seems unfair but it makes clear a simple truth: the employment relationship is not a relationship of equal partners. The employer runs the roost.
There are some times when the employer actually does have to follow its own policies or expose itself to legal liability. These include:
- The policies are consistent with statutory or regulatory requirements and the employer must follow the requirements regardless of its policies;
- Policies are part of an employment contract or collective bargaining agreement in which the employer has contractually agreed to the policies;
- Policies consist of plan rules for a benefit plan covered by ERISA;
- Language of the employee handbook or other policy statement creates a contract even where the employer did not intend this result;
- Employer’s decision to disregard its own policies motivated by an unlawful form of discrimination.
Beyond these reasons an employer might still expose itself to liability for unemployment benefits when it discharges an employee and fails to follow its own procedures in the disciplinary process or its reason for discharging the employee. This often arises when the employer has a progressive disciplinary procedure but fires the employee without taking the employee through every step of the disciplinary process. Sometimes the employee’s misconduct is sufficiently terrible to justify skipping steps. Often the employer cannot justify deviating from its policies resulting in an unemployment benefit award. In these situations the former employee may receive unemployment benefits but does not have other claims against the employer merely for declining to follow its own procedures.
6. My Texas employer can’t fire me for what happens outside of work.
Increasingly employers are considering their employees’ and applicants’ off-work conduct in making employment decisions. A motivating factor in this behavior is social media. So many people post material that an employer could find unpleasant or unprofessional that it is becoming a real problem. This can range from complaining about the employer or co-workers to almost anything found online. Social media, however, is not the only problem. Employers with a smoke-free workplace sometimes fire employees found smoking outside of work. Some employers investigate employees on medical leave to determine whether the employees are behaving consistently with the reason given. So employers certainly can and do find reasons to fire employees for off-work conduct.
There are limitations to the employer’s ability to make employment decisions based upon off-work conduct. There are limitations to what information on social media an employer can use against an employee. (Particularly when the employee is discussing workplace problems or health conditions.) Employers are limited in how much they can investigate employees outside of work when FMLA and other leave protections are involved. Sometimes the line between acceptable employer conduct and unacceptable conduct is razor thin. For that reason, any employee fired or otherwise disciplined for off-duty conduct should talk to an employment lawyer.
7. If I have FMLA leave then I can take off work any time in Texas.
This might be the most dangerous misconception for an employee. Misapplying FMLA rights can give the employer a clear reason to fire the employee. FMLA protects the right to medical leave for a limited period of time for limited medical reasons. When applying for FMLA the employee generally must identify the time period for the requested leave. Upon approving the FMLA leave request the employee receives protects for the time periods approved for FMLA leave. The employee does not receive the full twelve weeks of FMLA unless properly requested.
Taking time off and expecting FMLA to protect that leave when not approved under FMLA generally gives the employer the freedom to take any disciplinary action it wants. The primary exception is where the leave would be protected by FMLA but the employee had no opportunity to seek prior approval, such as an emergency medical situation.