BY A. Kevin Troutman, Fisher Phillips Houston
While at-will employment remains a bedrock principle in most states, including Texas, healthcare employers must ensure that their leaders and supervisors never make the mistake of relying exclusively upon this principle when making employment decisions. The “myth” of at-will employment is especially dangerous when decision-makers do not recognize the myriad limitations on the proposition that either the employer or employee may terminate the employment relationship for any legal reason or for no reason at all.
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If a company makes employment decisions without thinking through all of the laws that may apply to the situation, the results can be costly and painful. To top it off, this process is getting tougher all the time, not only because some risks are less than obvious, but also because the landscape of employment law continues to change rapidly.
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Of course, almost all leaders fully understand that they cannot discriminate against employees based on race, national origin, gender, age and disability, among other reasons, many do not recognize how easily these claims can arise and how difficult they can sometimes be to defeat. Specifically, most do not understand that non-discriminatory intentions will insulate them from accusations of discrimination when circumstances suggest that one employee may have been treated less favorably than others outside of a particular protected classification.
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Most managers also recognize that they cannot retaliate against an employee because that employee engaged in legally protected activity, such as complaining about perceived discrimination or simply participating in an investigation of such allegations. Many managers will recognize other common scenarios that can result in legal claims. These days, however, the challenge is even greater because the legal landscape is evolving rapidly, leading to more and more exceptions to the at-will employment doctrine.
Even in Texas, where state employment laws closely mirror federal laws, without adding layers of additional requirements or restrictions, the challenges are increasing. New developments under federal law also are continuing, and it is no secret that, over time, many trends that arise in other states eventually work their way into Texas. All of this underscores the importance of training senior leaders and first-line managers — not to become human resources experts — but to recognize potential problems and know when to seek guidance from HR.
A few examples illustrate emerging trends, each of which requires consideration when making employment decisions. Pay equity or equal pay issues are attracting substantial attention, even though pay discrimination on the basis of gender or race has been illegal for many years. As a result, the EEOC has recently focused much attention on how it can collect and analyze employers’ pay data. This is yet another reason why HR should be intimately involved in all compensation decisions, to ensure consistency and documentation of the reasons. At the same time, California and New York City have barred prospective employers from asking applicants about their salary history. This is a significant change from past practices. It remains to be seen to what extent this trend may advance.
Speaking of trends, although the EEOC issued guidance about how employers may use information regarding applicants’ history of criminal activity, about a dozen states and more than 100 municipalities (including Austin, Texas) have passed so-called “ban the box” laws, prohibiting private employers from even asking applicants about their criminal history. Additionally, Austin, San Antonio, and Dallas have adopted ordinances requiring employers to pay a $15 an hour minimum wage. In Texas, these ordinances are being challenged, but other cities around the country have implemented similar requirements.
In another evolving area of the law, questions remain about employers’ obligations to enforce non-discrimination not only based on sexual orientation, but also on the basis of an individual’s transsexual or transitioning status. Even though Title VII of the Civil Rights Act does not expressly prohibit discrimination based on sexual orientation, the Equal Employment Opportunity Commission, courts, and the vast majority of private employers support this principle. This is true even though some disagreement remains as to exactly how to analyze specific scenarios. Again, some states and municipalities have adopted their own laws. Houston’s so-called “bathroom bill,” for example, was recently the subject of considerable controversy. Again, one thing is certain: The rights and protections of transsexual and transitioning individuals are still developing.
Even though many states have legalized the recreational or medical use of marijuana, this is another area of the law that represents a moving target. While employers broadly retain the right to prohibit marijuana use (and other substances that may interfere with employees’ ability to perform their duties safely), New Jersey recently revised its statute, making it more difficult for companies who operate there to restrict employees’ use of marijuana.
As if the foregoing developments are not enough, other issues on the horizon include the state of Washington’s recent action to include obesity among the categories protected by its non-discrimination laws. California has adopted a law prohibiting race discrimination based upon hairstyles.
In the shorter term, with the flu shot season approaching, mandatory vaccinations represent another issue that hospitals will again be facing. Although an employer’s right to require such inoculations is broadly accepted, the issue illustrates an important principle that applies across the board: Now more than ever, employers can find little comfort in a “one-size-fits-all” approach to key employment decisions. Instead, they must evaluate the facts of each situation, conduct an individualized analysis and at least consider alternatives before making a final decision. Failure to do this increases exposure to legal claims.
As the legal landscape of employment issues continues to evolve, hospitals will be well served to train managers with one thing in mind, which recalls a refrain that emerged from the same era as the Civil Rights Act itself: “The Times They Are a-Changin’.”