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Misclassification often occurs when a Texas employer classifies an employee as an independent contractor as opposed to an employee. In some instances, a business may do this inadvertently; however, it is important to keep in mind companies receive many benefits when they classify employees as independent contractors. Employers may misclassify employees as independent contractors to avoid payroll taxes and benefits, and to circumvent wage and hour laws.  If an employer misclassifies an employee, the employee can file a status request by submitting IRS Form SS-8 with the IRS. Employers are prohibited from retaliating against employees because they filed this form.

Generally, the IRS will only allow a request from an employer or employee to determine employment taxes and withholdings. It is essential that Texas employees appropriately and accurately complete the form and provide all required information. Some critical information includes how the employee obtained the position. Specifically, the IRS needs to know whether the job was through an employment agency, general application, or a bid. Further, the employee should provide detailed information about their job duties and the work they performed. The employee must provide a thorough explanation regarding why they believe their categorization is incorrect. The IRS will also review any written agreements or contracts.

The IRS will determine whether the employer had behavioral and financial control over the worker, and what their relationship entailed. The IRS will also evaluate training, assignments, problems, routines, and roles of other workers. Further, it will consider who provides equipment and reimbursements. Financial control determinations also include examining the type of pay, who pays the worker, and what the economic risks are. Finally, the IRS will investigate benefits, penalties, non-compete agreements, union agreements, and how the business represents its workers to the community.

Employers who require employees to take lie detector tests may be in violation of state and federal anti-discrimination laws. The Employee Polygraph Protection Act (EPPA) is a federal law that bars private employers from requiring potential or current employees to take lie detector tests. This law prohibits employers from using a polygraph during pre-employment processes or during the course of employment. Generally speaking, private Texas employers cannot use or inquire about lie detector test results to discriminate against an applicant or employee. However, the law does not apply to federal, state, and local government employees.

There also some exceptions in the private sector. Certain businesses, such as security firms and pharmaceutical companies, may lawfully require their applicants and employees to take lie detector tests. Additionally, some private employees who are suspected of financial crimes against the employer may be subject to a lie detector test.

The EPPA specifies that most people have a right to employment without being burdened with a lie detector test. In instances where a lie detector test is permitted, the employers must follow strict guidelines regarding testing conditions and procedures. For example, Texas requires that anyone who performs lie detector tests must be licensed. Additionally, the examiner must have professional liability coverage and abide by confidentiality rules.

Texas employees who have suffered discrimination in the workplace may utilize two agencies to bring an employment discrimination lawsuit. These two agencies are the Texas Workforce Commission (TWC) or the Equal Employment Opportunity Commission (EEOC).

Federal employment discrimination lawsuits include discrimination complaints based on retaliation, national origin, disability, gender, race, age, pregnancy, and religion. Texas has implemented the Texas Commission on Human Rights Act (TCHRA). In addition to the federal protections, the TCHRA also protects employees from discrimination based on genetic information.

The EEOC is a federal agency that enforces federal employment discrimination laws. The Age Discrimination in Employment Act, Americans with Disabilities Act, and Title VII of the Civil Rights Act, are all administered by the EEOC. The TWC is a state agency that provides workforce services to Texas employers, job seekers, and employees. The TWC enforces the TCHRA.

A whistleblower is an employee who reports a workplace violation. Whistleblowers are responsible for making the workplace a safer and more equal environment. However, employees often do not report violations in the workplace because they fear that if they did, their livelihood might be jeopardized based on potential retribution from their employers. To promote workplace safety and to ensure that companies and organizations are not violating the law, federal and state governments enacted various whistleblower protection acts.

Most recently, a presidential Executive Order required the Department of Veterans Affairs (VA) to establish the Office of Accountability and Whistleblower Protection (OAWP). This office is designed to ensure the VA is accountable for its policies, procedures, and conduct. VA employees, potential employees, and former employees can report certain violations to this office. The OAWP is required to receive and investigate these disclosures. Furthermore, they ensure the employee does not face any retaliation for their disclosure. Retaliation includes actions taken against the employee based on their complaints such as termination, demotion, or any other adverse employment action.

Typically, the OAWP will investigate allegations regarding violations of rules or laws, fund mismanagement, abuse of authority, and behavior that is dangerous to public health or safety. The OAWP directly reviews claims of misconduct, retaliation, and performance issues that involve certain VA employees. The scope of the investigation is limited to VA employees that are senior executives or those that are in a confidential or policy-making position. The office will investigate supervisory employees if the allegations concern retaliation against an employee.

The Equal Employment Opportunity Commission (EEOC) reports that retaliation is the most common type of discrimination lawsuit employees bring against their employers. Under state and federal anti-discrimination laws, Texas employees and prospective employees cannot be punished for any “protected activity.” Protected activity is a legal term used to describe an employee’s right to engage in certain activities without fear of retaliation.

After an employer receive a complaint of discrimination, an investigation should take place to substantiate the claims. During these investigations, employees and co-workers may face questions about what they have witnessed in the workplace, or if they have any knowledge or experience with the issue at hand. Employees are expected to answer truthfully and fully cooperate in these investigations. In some cases, employees are discouraged from participating in these investigations for fear of retaliation. However, employers are not permitted to retaliate against an employee for cooperating in an investigation, even if the investigation does not lead to the filing of a discrimination lawsuit.

If an employee is fired, demoted, transferred, or otherwise punished for engaging in activities such as filing or participating in an employment discrimination complaint or lawsuit, that is retaliation for engaging in protected activity. The EEOC prohibits retaliation against an employee for participating in the complaint process. Employees are also protected if they try to oppose discrimination in the workplace in any other way. However, the employee must be able to show they were acting on a reasonable belief that discrimination was taking place. Employees frequently claim they experienced negative performance reviews, verbal abuse, ridicule, undesirable transfers, or even termination after participating in an employment discrimination investigation.

Under the Americans with Disabilities Act (ADA), employers cannot discriminate against prospective or current employees based on their disability. The ADA provides that qualified individuals with disabilities should receive a reasonable accommodation to perform their job duties, unless it imposes an undue burden on the employer. These accommodations offer disabled individuals the ability to engage in equal employment opportunities.

Reasonable accommodations can be provided at all stages of employment and in various ways. For example, employers may be asked to change the application process or training process to accommodate a prospective or new employee. Moreover, an employer could adjust equipment or software to assist a disabled employee. Although employers are not required to create new positions, they may be required to reassign employees if a qualified position becomes available.

In some instances, an employee may request to work at home to accommodate their disability. Although not every job can be performed at home, teleworking can be a reasonable accommodation depending on the circumstances. The ADA does not mandate employers offer teleworking as a reasonable accommodation; however, if an employer does retain a teleworking policy, they must allow disabled employees that same opportunity. The result may be an employer modifying their current teleworking policy to accommodate a person with disabilities.

The Fourth Amendment to the United States Constitution provides citizens with protections against unreasonable searches and seizures, and gives them the right to be secure in their persons, houses, papers, and effects. While this may seem to confer privacy rights to employees, the Amendment was intended to protect citizens from government intrusions and does little to protect employees’ right to privacy. As a result, Texas employers will often search an employee’s email and make an employment decision based on information that an employee thought was private.

Courts have held that employees do not retain an expectation of privacy in specific work areas. As such, employers often maintain the power to search through employee’s work areas — this includes their office, desk, or even lockers and company cars in certain instances. In most cases, employees do not have a right to privacy in their work email or any other information contained on an employer-owned computer server. If an employer provides the employee with an email address or computer, the employer is allowed to monitor the contents of the email account or computer.

While it may seem as though employers have free reign over searching an employee’s email, there are certain instances where employees can expect email privacy. One situation where this may be the case is when there is a collective bargaining agreement or another contract that indicates that the employer is not permitted to search through work emails and computer servers.

The Immigration and Nationality Act (the Act) provides U.S. citizens, permanent residents, asylum seekers, and refugees protection against employment discrimination based on their immigration status. The Act applies if an employer has more than four employees.

Discrimination under the Act occurs when an employer treats a person differently based on their immigration or citizenship status. The law requires Texas employers treat people equally when they announce a position, solicit applications, conduct interviews, make job offers, hire an individual, or terminate employment. Moreover, employers cannot retaliate against an employee if they file a claim of discrimination, participate in an investigation, or assert their rights under any anti-discrimination law. However, this rule does not apply to permanent residents who fail to file for naturalization within six months of eligibility.

If a prospective or current employee suffers any type of adverse employment action based on their immigration status, their employer may face liability. Some common forms of discrimination based on immigration status are when an employer only hires U.S. citizens, if an employer does not want to hire a person because of the paperwork involved in hiring a temporary resident, or demanding to see specific un-required documents.

The Texas Workforce Commission (TWC) oversees unemployment compensation cases for Texas citizens who are out of work through no fault of their own. To determine whether an individual is entitled to an employment benefit, such as unemployment compensation, the TWC must know what caused an employee and employer to go their separate ways.

The first determination is whether separation was voluntary or involuntary. The type of separation determines what benefits an employee may receive. A voluntary work separation is any separation that is initiated by an employee. These types of separations are those where an employee retains more power than the employer. Voluntary separations occur as long as the employer did not force the employee to resign. An involuntary work separation is an employer initiated separation.

Involuntary separations occur when an employer engages in some action or behavior that make it impossible for an employee to continue employment after a specific date. Unlike voluntary departures, an employer retains more power than the employee in these scenarios.

The Fair Labor Standards Act (FLSA) establishes specific standards for part-time and full-time employment. The FLSA applies to private, state, and local, and federal government employees in Texas. According to the Texas Workforce Commission, this federal act covers minimum wage, overtime pay eligibility, and record keeping.

Although the FLSA covers some critical employment issues, unfortunately, several employment practices are not included. Generally, under Texas law, employers are not required to provide pension plans to their employers. Further, Texas employers do not need to give raises unless there has been an increase in the minimum wage. The FLSA also does not require employers to pay their employees extra pay for holidays or weekends. Similarly, employers do not have to pay shift differentials; meaning employers do not have to provide extra compensation for undesirable shifts.

Employee Breaks Under the FLSA

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