THEHRA
PIECES OF THE
EMPLOYMENT LAW PUZZLE
A/K/A LEGAL EMPLOYMENT UPDATE:
EMPLOYEES & THE WORKFORCE
Rhonda Vickers Beassie
Assistant General Counsel
Texas State University System
› Discussion is on general topics and not
intended to serve as legal advice. Please
consult with legal counsel for specific situations.
› Any video or images are used for educational
purposes.
› Videos or images may contain offensive
language.
› An example or war story may not be based on
where I work or who you know
› Yet, we may have colleagues in the room that
experienced exact or similar case.
Identify Issues; Identify Sources
Chrissy is a pretty cool boss. She is younger than most people in her
position and she makes work fun. Everyone in the office has a
constant GroupMe text going, and people post on each other’s
Facebook pages frequently.
Recently though, Rod is getting pretty steamed up about politics.
He is increasingly upset when people post negative Trump stories
(and seriously, this happens almost every hour).
The other day Chrissy posted another news article heralding an
anticipated US decline in world power due to some Trump-ian
action. Rod called in sick the next day. While out he posted a live
Facebook video ranting about how his department had declined in
productivity and morale due to supervision by his ineffective,
Democrat supporting, liberal boss.
Because both the institution and the department are clearly
identified on Rod’s Facebook page, both Chrissy and her boss want
Rod to be fired.
What are the
legal issues?
› Free Speech
› Privacy
› Discrimination
What law governs –
where do you start?
› Institutional Policies?
– Social media?
– Discipline?
– System rules?
› Do your policies comply with the
law & conform with each other?
What law governs social media?
SUPREME COURT
›
Highest court in the federal system
›
Nine Justices, meeting in Washington,
D.C.
›
Appeals jurisdiction through certiorari
process
›
Limited original jurisdiction over some
cases
DISTRICT COURTS
›
Lowest level in the federal system
›
94 judicial districts in 50 states &
territories
›
No appellate jurisdiction
›
Original jurisdiction over most cases
COURT OF APPEALS
› Intermediate level in the federal
system
› 12 regional “circuit” courts,
including D.C. Circuit
› No original jurisdiction; strictly
appellate
What law governs social media?
FEDERAL
STATE/TEXAS
› Constitution
› Constitution
› Cases
› Cases
– U.S. Supreme Court
› Nothing yet – Packingham
– 5th Circuit
› Speaking as a citizen?
› Matter of public concern?
› Disruptive to employer
operations?
› Graziosi v. City of
Greenville
– Tex. Supreme Court
– Tex. Courts of Appeal
What law governs social media?
FEDERAL
STATE/TEXAS
› U.S. Constitution
› Texas Constitution
› Cases
› Cases
› Statutes
› Statutes
› Regulations
› Regulations
› Guidance/Decisions
› Guidance/Decisions
› Veteran Preference
› All things being equal, an individual with
veteran status will be hired over any
other candidate.
What law governs Veteran
Preference?
FEDERAL
STATE/TEXAS
› U.S. Constitution
› Texas Constitution
› Cases
› Cases
› Statutes
› Statutes
› Regulations
› Regulations
› Guidance/Decisions
› Guidance/Decisions
› Texas Government Code,
Chapter 657
› Establish goal: 20% of
employees will be veterans
› If > 500 employees, establish
a veteran liaison and name
on website
› Quarterly report to controller
› Who qualifies for preference?
–Disabled veteran,
–Veteran, (Labor Code)
–Veteran’s unmarried surviving
spouse,
–Orphan of deceased veteran if killed
on active duty.
› Implementation
–10-15 points added to any examination
–Veteran only positions
–Required interviews (so long as vet
applications received)
› Conflicts?
–What about other protected categories
important to your affirmative action
plan?
To the Borders – Employee Status
EMPLOYMENT AT WILL
› General Rule in Texas
› Employee can quit and employer
can terminate for any reason, with
or without cause or prior notice
› BUT - You have to consider
protected classes and protected
activities
17
EMPLOYMENT AT WILL
Protected Classes:
• race, gender, national origin, religion,
disability, age, veteran status, citizenship,
pregnancy, …
Protected Activities:
• Reporting violations of the law (primarily
public sector)
• Concerted activity (discussing pay, work
conditions)
• Filing charge w/ EEOC or TWC
• Reporting discrimination (as to self/others)
• Taking FMLA leave (or about to)
• Reporting overtime and other wage
violations
18
Contract Employee
Faculty
Coaches
Special Purpose
Constitutionally Protected Interest
“life, liberty, or property”
Property Rights in Employment – Due Process
What about student workers?
› Governs minimum wages
and overtime.
› Exempt and non-exempt
› Significant changes on
hold
– Judicial injunction
– Regulation freeze
– Extension request for
lawsuit response
– New Secretary of Labor
› Did you dodge a
bullet in December?
Or,
› Did you feel you
ruffled feathers for
nothing?
› Do you feel you want
that part of your life
back?
› Still a very real area of
potential liability
› Difficult Higher Ed Issues
– Athletic Trainers
– Assistant Coaches
– Resident Advisors
– Non-Exempt Staff that
teach as adjuncts
– Travel time
A new puzzle: Facts that may or may
not be discrimination.
Rod and Chrissy revisited. Rod is a 50 years
old Caucasian male and he has 4 peers that
are all younger women.
Rod knows he is the old white guy and figures that is why he is rarely
asked to lunch, baby showers, or those other girly things.
The department requires frequent representation at national events
focused on recruiting and success of minority students. In the last three
years Chrissy hasn’t selected Rod to attend conferences. In his last
evaluation, Rod asked Chrissy why he was no longer traveling. He
thought maybe it was because his gender created a need for an extra
room and caused a financial problem.
Chrissy told him she didn’t think he was interested in the subject matter of
the conferences. He admitted he didn’t really like the topic, but that he
did want the professional opportunities.
Since then, Chrissy quit asking Rod to present to new students at
admitted student days and orientation.
› Protected class
› Qualified individual
› Denied opportunity/suffered adverse
action
› Circumstances give rise to inference of
discrimination
› Has Rod experienced discrimination?
› Subjected to unwelcome conduct
› Perceives working environment to be
abusive/hostile
› Reasonable person in same or similar
circumstances would consider working
environment to be abusive or hostile
› Has Rod experienced a hostile work
environment?
› Initiate or participate in protected activity.
› Adverse employment action.
› But-for causal connection between
protected activity and the adverse action
› Has Rod experienced retaliation?
› The bar for adverse action is much lower
for retaliation.
› HR must
– Follow your policies
– Investigate promptly
– Including interviewing more than the supervisor
– Document the investigation
– Provide appropriate notices
– Take appropriate actions;
document concluding
conversations
Pregnancy can be covered under
− Title VII – sex discrimination
− Pregnancy Discrimination Act
Pregnancy matters involving protections include
− Fertility treatments
− Pregnancy
− Childbirth
− Related medical conditions
− Lactation
− Disability
− FMLA
Texas Government Code Chapter 619 requires
− Policy regarding expressing milk
− Lactation space
› UPS accommodated others injured on the job and
those who lost their driver licenses.
› Yet, Young who was pregnant was denied light duty,
placed on leave, and ultimately lost her job.
› Results
– Employers must provide accommodations for pregnant
employees similar to those provided to other disabled
employees.
– Policies that pose a significant burden on pregnant
employee give rise to inference of discrimination.
› Employer requirements
changed under FLSA and
Tex. Gov. Code Chap. 619
− Written policy regarding
expressing milk
− Lactation spaces – other
than a bathroom
− Breaks for breastfeeding
employees
› Pro-Employer Era expected
› New Secretary of Labor – Alexander
Acosta
› New DOE Deputy – Adam Kissel
› Immigration & DACA
› Employee Travel
› Stay tuned
Thank you so much
Rhonda Vickers Beassie
Assistant General Counsel
Texas State University System