1. Changing Legal Landscapes: Employment Issues Affecting Your Business

2. Top Ten Texas Employment Law Traps

3. First Trap: Something for Nothing - Provisional/Probationary/Temporary Employees

4. Embrace the at-will doctrine The At-Will Doctrine in Texas – At-will is the rule in Texas – Terminate relationship at any time, with or without notice, for any reason (or no reason) so long as it is not an illegal reason – Creating probationary/provisional/temporary employee relationships waters this down

5. At Will Doctrine Still Supports Non- Competes Even at-will employees can sign non-competes – Consideration has to be something like specialized training, confidential information, or goodwill (which included stock option plans) – Even in absence of non-compete agreements, at-will employees owe common law fiduciary duties – More on this topic can be found at Dave EvansDave Evans

6. Second Trap: Ignoring Unemployment Claims

7. The Benefits of Fighting UI Claims Free deposition May embolden a would-be plaintiff May impact your bottom line more than and longer than you think

8. Third Trap: Taking the Bait

9. The principle of the matter … Settle complaints quickly unless compelling reasons to do otherwise –Consider arbitration agreements for every employee –Litigation costs are crippling –The Retaliation Hydra

10. Fourth Trap: Assuming too much

11. Just because you have employees, doesn’t make you an “employer” under all statutes Just a few examples … – Family Medical Leave Act 50-employees/75 mile radius – Title VII/Age Discrimination in Employment Act 15-employee minimum – Americans with Disabilities Act 15-employee minimum

12. Fifth Trap: Not assuming enough

13. The gay marriage ruling I’ve heard so much about won’t affect my (small) business …

16. Sixth Trap: Misclassifying Independent Contractors

17. Independent Contractors Misclassification: Has both state and federal dimensions Hot button issue due to declining receipts and/or increased claims TWC has guidance both on UI and IRSUIIRS – Slanted against ind. contracting relationship When in doubt, treat as employees because TWC and IRS can change their minds

18. Seventh Trap: Misclassifying FLSA Exempt Employees

19. Fair Labor Standards Act Most violated employment law in the nation –Labels don’t matter –Agreements don’t matter –Salaries don’t (really) matter –Duties are the key factor (but impossible to understand) –Damages can be staggering

20. Eighth Trap: Calling An Attorney Too Late

21. Call Attorney Early in the Process Consultations should be free or low cost, but could help you avoid tremendous cost down the line. May be covered by insurance anyway Checks your blind-spot, especially with respect to comparative evidence

22. Ninth Trap: Getting Sued Away from Home

23. Venue Issues Do not personally recruit in venues you would not want to litigate in Be careful what you say about a former employee to anyone, especially if they are from another town –Only confirm name, rank and serial number Consider choice-of-venue provisions in all of your contracts, including employment contracts for certain workers

24. Tenth Trap: Paper Giveth, Paper Taketh Away

25. Be careful what you document DO use paper to document disciplinary measures, even if not provided to employee. –Oral discipline with emails to file –Just the facts - leave details and emotions out of the equation –Discuss content with recipient before sending Emails are like zombies, they never die

26. Practice What You Print Let your practices dictate your policies, not vice- versa Mimic the Texas Workforce Commission’s “Handbook for Texas Employers” on-line Leave yourself room to manuever

27. Preach What You Print Train your management to follow policies Audit employment decisions, especially for comparative past treatment of other employees Remember retaliation is its own protected classification, and perhaps the most dangerous