Get The Shot Or Get Fired?

Get The Shot Or Get Fired?

President Biden issued an Executive Order compelling companies with more than 100 employees to require all employees to be vaccinated or provide proof of weekly negative COVID-19 tests. This also applies to smaller companies that are federal contractors. 

While this order creates many legal questions for companies, the most pressing decision employees must make is whether to get the shot or be fired. 

Though there are exceptions to a vaccine mandate, most employees likely do not fit within either of the exceptions. The two main exceptions deal with ADA disability accommodations and accommodations for sincerely held religious beliefs. 

 ADA Issues

 If a disability prevents you from getting the vaccine, you may request to be excused from getting the vaccine as a “reasonable accommodation” under the ADA. 

 However, be prepared to prove that you do have a medical condition that will prevent you from getting it.  Expect your employer to verify that you really do have a disability that will prevent you from getting the vaccine. 

 A company is not going to just take your word for it. Nor should it.  Because going unvaccinated can put others in danger, a company is well within its rights to request medical information to verify that you do have a disability when it considers your ADA reasonable accommodation request. That proof will need to be more than just saying, “my doctor said I should not get it.”

 Sincerely-Held Religious Beliefs

 Some employees request an exemption from the mandatory vaccine requirement because a sincerely held religious belief prevents the employee from receiving the vaccine. 

 Generally, this is a small part of the workforce population.  However, in recent weeks, it has expanded rapidly, with many websites starting to pop up offering “advice” to employees on how to seek this accommodation or even selling pastoral “notes” to employees.

 If you ask for a religious accommodation, know that you must show that you have a sincerely held religious belief. Be prepared to identify the specific religion.  Be prepared to explain why this sincerely held religious belief requires accommodation.

Companies are already wise to employees who “suddenly” claim to hold sincerely held religious beliefs that prevent them from getting the vaccine.

One popular request for an accommodation addresses that the vaccine was developed (in part) using fetal stem cells. Many employees claim that fact prevents them from getting vaccinated.

One employer is pushing back. It requires its employees to verify and attest that they do not take any medication or vaccine developed with the use of fetal stem cells.  This includes very popular and commonly used medicines such as Tylenol, Pepto-Bismal, Aspirin, Ibuprofen, Ex-Lax, Benadryl, and Claritin. That company wants to know how committed the employees are to the sincerely held religious belief.  If the employee takes any of those medications, an argument can be made that the employee is not necessarily all that committed to the belief.

If you intend to ask your company for religious accommodation, be prepared for questions about your request.  

If it makes you mad to provide evidence of a disability or a sincerely held religious belief, think about why your employer is asking for it.  Remember, companies owe a duty to their other employees and customers to provide a safe environment. 

If you don’t want to do support your accommodation request, you may walk with your feet. You do not have to continue to work for a company that requires you to be vaccinated.  You can quit. 

If you don’t want to quit, please remember that your company is trying to balance its duties owed to other employees and customers.  It is going to take all of us working together to get through this pandemic.  Do your part to keep everyone safe.

 

The Perils of Working Remotely

The Perils of Working Remotely

Many companies are now asking—or demanding — that employees return to work in the office. Many employees don’t want to go back. Employees loved the flexibility of remote work and not making long commutes into an office. Many employees say the past 18 months show they can work effectively remotely.  So, why do they have to go back to the office? The answer:  because their employers want them to come back to the office.

Every company gets to make its own decision as to whether it will allow employees to work remotely or in the office. Even though businesses kept running during COVID-19, many companies want their employees back in the office.   These companies find value in employee face-to-face interaction and collaboration. These companies think the opportunity for brainstorming and informal data sharing when workers are together is missing with 100% remote work.

Employees who embraced remote work often don’t see that value.  They argue that they can fully work remotely and that they have shown that over the last year. If you are in this position and your company wants you to come back to the office, exercise caution in taking this strong stand.  While you may have valid arguments about working remotely, you risk damaging your career and beneficial relationships.

A recent study from the Society of Human Resources points out the risks to the remote workers:

  • 42 percent of supervisors said that they sometimes forget about their remote employees when assigning tasks.
  • 67 percent of supervisors admitted they consider remote workers more easily replaceable than those working onsite.

Change is a constant in both life and business. Companies routinely restructure how their business operates, which can mean a significant layoff of employees. When change comes, you want to be the employee the company wants to keep.  You want to be the employee the manager fights to keep off of the layoff list.  You want to be the employee the manager won’t want to replace.

This SHRM study shows us that your real risk of being “out of sight” daily is being “out of mind” for the manager.  If 67% of supervisors admit that they consider remote workers more easily replaceable than those working onsite, there is a good chance the remote worker is the first one on the chopping block when layoffs come. Do you want to be that person? 

If your company wants you to return to the office, can you resist returning to work without damaging your relationship?  Can you resist returning to the office without becoming the employee that 67% of managers will consider easily replaceable? Can you resist returning to the office without creating a permanent shift in your supervisor’s perception of you?

As someone who represents employees in employment matters, I am not taking a position here as to what is right or wrong. I urge you to know the risks and make educated decisions about this.  Every person needs to consider whether resisting the return to the office risks future damage to their career. 

What Is Happening With Non-Compete Agreements?

What Is Happening With Non-Compete Agreements?

A stubborn myth is non-compete agreements are not enforceable in Texas. Nothing could be further from the truth.

New clients regularly tell me that the non-compete agreement they signed is not enforceable because Texas is a “right to work” state. Unfortunately, that means only you cannot be required to join a union as a condition of employment in Texas.  “Right to work” has nothing to do with whether a non-compete agreement can be enforced in Texas.

Even though a non-compete is considered a restraint in trade, Texas law allows parties to enter enforceable non-compete or non-solicitation agreements. The reason for this is that specific business interests—such as trade secrets or business goodwill—are considered interests worthy of protection from a departing employee for a determined period.   

However, attitudes towards non-compete agreements are changing. In recent years, some places passed laws barring companies from including non-compete agreements in employee contracts. For example, the District of Columbia passed such a law that took effect in March 2021.

President Biden recently issued an Executive Order on Promoting Competition in the American Economy.  A part of this Executive Order asks the Federal Trade Commission to use its regulatory authority to “curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.”

While this Executive Order does not change the law, it is important.  What makes it important is that the President is using his bully pulpit to complain about the use of non-compete agreements and how those impact employees. President Biden asks the FTC to consider acting to limit the use of non-competes in employment.

What does that mean for the future of non-competes? We don’t know. 

The FTC has the power to issue rules and regulations.  It seems unlikely the FTC will have rules or regulations that ban non-competes in all situations.  However, the FTC will look at whether non-competes are overused or used so in a way that unfairly limits a workers’ ability to move from job to job.

The FTC might distinguish between low-wage workers who do not routinely work with highly confidential information and senior-level executives who know the company’s trade secrets and confidential strategies.  That distinction would make sense. If the FTC does act, there might be litigation over the scope of the FTC’s rule-making authority.

Congress is also looking at non-competes as well.  The Workforce Mobility Act of 2021 was introduced in the Senate and the House of Representatives.  It has bipartisan support.  If this law passed, it would limit the use of non-competes to situations involving a sale of a business or dissolution of a partnership. That would be a huge change in the law and would affect employers in all 50 states.

We don’t know what the future will be for non-competes.  However, President Biden made his thoughts clear that non-competes have the potential to harm employees with his Executive Order. What that means is that we must be paying attention to what the FTC does and what Congress does soon.

Sexual Harassment in Texas Now:  What You Need to Know

Sexual Harassment in Texas Now: What You Need to Know

Big changes to the law in Texas on sexual harassment become effective on September 1, 2021.  These new changes have gotten surprisingly little publicity but make it easier to pursue a sexual harassment case in Texas. 

The changes are in a new subchapter to Texas Labor Code Chapter 21 addressing only sexual harassment claims.

First, in the past, laws that protected people from sexual harassment only applied to companies with 15 or more employees for at least 20 weeks of a year.  So, for people who worked for small companies, there was no real and effective protection from sexual harassment. 

Second, the harasser usually could not be sued individually under Title VII or Texas Labor Code Chapter 21 for sexual harassment.  The harasser might be sued for assault when there was unwelcome touching.  However, if there was no assault involved, the harasser typically could not be sued individually.

Finally, under Texas law, the period to file a sexual harassment charge was a short 180 days.

That all just changed in Texas. 

Under this new law, an “employer” means a person who employs one or more employees.  It also can mean a person who “acts directly in the interests of an employer in relation to an employee.”

This fills a gap for employees in small companies.  Now, anyone who works for a company with just one employee has protection from sexual harassment. 

The biggest change is that the harasser may be considered an “employer” under the law if the harasser acts directly in the interests of an employer in relation to an employee. With this definition, if there is a coworker harassing his or her peer, that coworker really won’t fit in the definition of “employer.” However, if a boss is harassing a subordinate, there is a good chance the boss can now be sued individually. That is a new and very big change to Texas law.

Finally, the deadline to file a charge of discrimination in Texas for sexual harassment has now been increased to 300 days.  That gives victims a little bit more time to decide whether to pursue a claim for sexual harassment or not.

This increased deadline from 180 days to 300 days only applies to sexual harassment.  All other types of discrimination claims under Texas law are still subject to the normal 180-day deadline.

These changes are huge.  Given that the Texas legislature has lagged far behind in changing its laws to protect women on equal pay issues, it is great to see the Texas legislature get out in front on sexual harassment. 

Even though these changes are not effective until September 1, 2021, expect to see the number of sexual harassment claims increase. For the victims who fell between the cracks in the law before, this is a very welcome change. For the people who harass employees and who now fall within the definition of “employer” and can be sued individually now, this will be a very unwelcome change.

Laws Requiring the Disclosure of Salaries:  A Welcome Trend

Laws Requiring the Disclosure of Salaries: A Welcome Trend

Connecticut recently passed a law that will require employers to provide wage range information to employees and job applicants for their positions.  This law becomes effective in October 2021.  In passing this law, Connecticut joins California, Colorado, Maryland, and Washington.

Texas has no such law on the books.  However, it is high time that the Texas legislature considers this.

Pay discrimination thrives in secrecy.  Even though it is illegal, far too many employers still tell employees they cannot discuss their pay with co-workers and put those unfair rules in employee handbooks. 

Even though those companies that don’t explicitly forbid discussing pay in their policy manuals still strongly discourage it.  Far too many employment contracts specifically require the employee to keep salary information and the other terms of the contract confidential. 

Under the new Connecticut law, an employer must provide an applicant the wage range for a position for which the applicant is applying upon the earliest of (1) the applicant’s request, or (2) prior to, or at the time the applicant is made an offer.  The employer must also provide an employee the wage range for the employee’s position upon (1) the hiring of the employee, (2) a change in the employee’s position within the company, or (3) the employee’s first request for a wage range.

This is great.  Though the company has to provide only the range of wages paid for a particular position, that range contains much valuable information.  If the person is hired at the bottom of a salary range, that person can then ask questions about why the salary is set there and how the person can increase within the range for the position.

This also forces employers to take a hard look at the pay ranges for positions and to figure out the reason such a wide range in pay might exist. 

In doing this analysis, many employers might be shocked to see that the women in a particular role are paid towards the lower end of the range.  If the company sees a trend like that, it can figure out the reasons for the pay disparity and fix it.

Most companies will likely hate these laws because the companies prefer keeping salary data highly confidential.  Yet, that confidentiality allows companies to hide discriminatory practices. 

Since Texas does not have a law like this, Texas employees or job applicants must be proactive to make sure the pay is fair and comparable to members of the opposite sex.

How to do that?  First, do some research. Figure out what the market wages should be.   Glassdoor.com can be a good place to start. Ask friends and colleagues about their pay. In some cases, hire a compensation consultant to give you a salary review in the particular market.

Second, ask the employer what the salary range is for any position and how an employee moves up within that salary range. If a company is reluctant to share that information with you, ask why.   

Ask the company this question:  “If you won’t tell me what you pay others in this position, how will I know I’m paid fairly?” 

Many companies won’t like this question, but it is only in pushing these boundaries will truly pay parity will be put in place. 

Finally, lobby our legislators in Texas to pass a law similar to the new Connecticut law. That is when real change will occur.