As an employer and an employee, it is incredibly beneficial to understand how employment law affects your workplace. Employment law governs the relationship between employers and workers. These laws ensure that workers are treated fairly and are able to work safely while also protecting employers’ livelihoods and businesses. Employment laws, also known as labor laws, are based on federal and state constitutions, administrative rulings, court opinions, and legislation. While many workers and business owners are aware of common labor laws – including the federal minimum wage, anti-discrimination laws, and overtime pay requirements – there are many misconceptions about employment law in Texas that need clarification. Below please find 10 things you may not know about employment law in Texas:
1. While being fired may seem “unfair,” that doesn’t mean it’s illegal.
Texas is an at-will employment state, which means that an employer can fire an employee at any time and for any reason. Employers are not legally required to provide a reason for termination. There are some exceptions to this rule, however, that are important to understand. Employees may not be fired for their race, sex, color, religion, sexual orientation, gender identity, age, medical conditions, disabilities, language, marital status, etc. They may also not be fired if there is an “implied contract” with a reasonable expectation of continued employment. Employers cannot fire an employee in retaliation for reporting their workplace to a government agency or the police. Even if an employee termination seems “out of nowhere” or “unfair,” it is most likely still legal unless it runs afoul of federally protected classifications.
2. An unpleasant workplace is not necessarily a “hostile work environment.”
The phrase “hostile work environment” is thrown around quite a lot these days but it actually has a very specific legal definition. A workplace can be hostile for a variety of reasons; however, a hostile work environment occurs when an employee is subjected to pervasive abusive or intimidating behavior that makes it impossible for them to do their job. This means the behavior alters the terms, conditions, and/or reasonable expectations of a safe, comfortable work environment for the employee. Just because a manager or supervisor is strict or even aggressive with their behavior does not necessarily mean an employee is working in what would qualify as a legally hostile work environment. Illegal conduct that can create a hostile work environment for an employee includes offensive jokes, insults, slurs, name-calling, physical assaults, threats, use of sexual language, showing sexually suggestive photos, and interfering with work performance. To be considered a hostile work environment, the employer must know about the inappropriate behavior and fail to adequately address it to make it stop. An inappropriate comment once or twice is typically insufficient to qualify a workplace as a hostile work environment.
3. There is a significant difference between an “employee” and a “contractor.”
The way work is conducted typically determines the difference in classification between an employee and an independent contractor. Employees are eligible for benefits, unemployment insurance, workers’ compensation, protection against discrimination, and health and safety protection by the Occupational Safety and Health Administration. Independent contractors do not share these benefits. To determine if a worker should be classified as an employee or an independent contractor, the following must be answered:
- Is the worker free from the control of the business – meaning do they do their work without direct supervision?
- Is the work being done not the typical mode of business? For example, a worker who is painting a wall at a restaurant would most likely be considered a contractor compared to a waiter at the restaurant.
- Is the work advertised as a separate business to the general public?
If the answer is yes to the above questions, the worker is most likely an independent contractor and should be classified as such.
4. Workers cannot be forced to perform unsafe work.
In Texas, a worker has the right to refuse to do work in an unsafe environment. The Occupational Safety and Health Act of 1970 was passed to ensure workers are kept safe from harm and/or death as a result of an unsafe work environment. Employers must provide a workplace free from known dangers that could harm a worker. There are also specific Texas laws that require a safe work environment. The Texas Occupational Safety Act and Hazard Communication Act are just a few of the statutes that govern occupational health and safety.
5. Workers who are part of a protected group can still be fired.
Some terminated employees incorrectly assume their employer has fired them because they are part of a protected group (see the list in Item 1 above). If an employee is part of a protected group according to anti-discrimination laws but does not perform appropriately according to their job duties, they can be fired for those reasons. Employers may also take corrective and/or disciplinary measures against an employee who is part of a protected class as long as the motivation is not due to the reason for their protected status. An employer may not, however, take a corrective action that is motivated by an unlawful form of discrimination.
6. Workers can be fired for off-work conduct depending on the situation.
With the rise of social media, more employers are having to take into consideration their employees’ and applicants’ off-work conduct and how they represent the company while not at work. There are many people who post unprofessional, discriminatory, inflammatory, or threatening things online that could affect their place of employment. There are limitations to employer thought control, however, as there are situations in which an employee’s behavior is protected such as when it is related to the Family and Medical Leave Act (FMLA) or other legal protections are involved. Employers must walk a fine line when using off-work conduct to terminate an employee. Consulting an employment lawyer before taking action is always recommended.
7. FMLA only applies to certain situations.
If an employee misapplies FMLA rights, an employer can quickly fire that employee. FMLA protects employees’ rights to medical leave for a certain period of time and for very specific medical reasons. The employee must generally apply for a designated period of time for FMLA leave. FMLA does not allow an employee to take off whenever they want and for any amount of time.
8. Employers cannot deduct money from an employee’s paycheck for a reasonable mistake.
Employees make reasonable mistakes – it is inevitable. It may be giving a customer the wrong amount of change or breaking an item while restocking a shelf. It is illegal to deduct money from an employee’s paycheck to offset the error if the employee made the mistake genuinely. If it can be proven an employee willfully made a mistake that caused financial harm to the employer, the company can make a deduction from the employee’s paycheck as long as it can show evidence the behavior was intentional or grossly negligent.
9. Former employers can only give certain information as a reference to a prospective new employer.
In Texas, when a potential future employer calls a former employer for a reference, the former employer can only give the following information:
- The reason the employee left. If the employee was terminated, the employer can only provide the reason why the employee was terminated.
- The employee’s performance on the job.
- Information about the employee’s attendance, attitude, and effort.
This information must be true and given in good faith. A former employer is not allowed to give false information.
10. Lunch hours and work breaks are not required in Texas.
Texas employers are not generally required to give unpaid or paid breaks to employees; however, many employers do give their employees an unpaid lunch break and paid fifteen-minute breaks every four hours while at work. This is not legally required, but it is usually a benefit employers choose to give their workers. Legally in Texas, employers must allow adequate restroom breaks for workers and must accommodate breastfeeding mothers and workers who have disabilities.