Texas employers may limit or prohibit audio recording in the workplace

What’s Inside

What’s Online

Immigration

Refusing to hire DACA

recipients may invite alienage

discrimination claims ......... 2

Just Ask Jacob

You can mandate that exempt

employees take PTO in set

increments ............................. 3

Agency Action

New opinion letters from

DOL address common FLSA

issues ...................................... 4

FMLA Leave

Employers that offer paid

FMLA leave now eligible for

tax credit ................................ 5

Austin Legal Limits

Business groups, AG file suit

over Austin’s paid sick leave

ordinance ............................... 7

Part of your Texas Employment Law Service

by Jacob M. Monty

Monty & Ramirez, LLP

With the introduction of camera

phones, digital voice recorders, pen record-

ers, and wristband audio recorders, individ-

uals can effortlessly record anything with

the touch of a button. Some of those devices

are so small that individuals are unaware

they are being recorded. The arrival of new

technology has created various implica-

tions for employers and employees. While

Texas and federal law allow surreptitious

recording as long as one party to the con-

versation consents to recording (of course),

some activities still aren’t permitted—e.g.,

recording conversations in restrooms and

installing surveillance cameras in employee

changing areas or locker rooms.

Different times,

different perspectives

The subject of surreptitious record-

ing has been at the forefront of people’s

minds, especially with the arrival of

small voice recording devices. At one

point, the legal community discussed

whether it was proper for attorneys

to make undisclosed recordings of

conversations with clients or third

parties. The authorities on the issue

originally opined that it was improper

for attorneys to record telephone con-

versations with clients or third par-

ties without informing them that the

conversations were being recorded

because it offended “the sense of honor

and fair play of most people.”

That view has changed. In 2006,

the Texas Professional Ethics Commit-

tee ruled that lawyers are permitted to

make undisclosed recordings of tele-

phone conversations between them-

selves and other people in Texas absent

an unlawful purpose or affirmative

act of deception. The committee con-

sidered the legitimate reasons a law-

yer would have a need to record con-

versations with a client or third party.

Among many reasons, the committee

proffered “to aid memory and keep an

accurate record,” “to gather information

from potential witnesses,” and “to pro-

tect the lawyer from false accusations.”

Furthermore, the committee found that

nothing in the ethics rules prohibited

“a lawyer’s unannounced recording of

telephone conversations in which the

lawyer participates.”

The ethics committee’s ruling com-

plements Texas’ one-party consent law.

Under Texas’ wiretapping law, surrepti-

tious recording is permitted as long as

one party to the conversation consents

to the recording. That means at least one

party must participate in the conversa-

tion. An individual would not be able to

claim the benefits of the one-party con-

sent law if she were to leave a recording

device out in the open, just waiting for it

to pick up something.

FisherBroyles, LLP, Constangy, Brooks, Smith & Prophete, LLP, and

Monty & Ramirez, LLP, are members of the Employers Counsel Network

Vol. 29, No. 6

June 2018

Michael P. Maslanka, Editor • FisherBroyles, LLP

Mark Flora, William E. Hammel, Coeditors • Constangy, Brooks, Smith & Prophete, LLP

Jacob M. Monty, Coeditor • Monty & Ramirez, LLP

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2 June 2018

Texas Employment Law Letter

Regardless, you would be well advised to always

disclose up front that a conversation is being recorded.

Regarding the workplace, employers and employees in

Texas can ordinarily record workplace conversations

they are part of. However, workplace privacy can still af-

fect the legality of recording audio conversations.

Some recording activities

still unpermitted

There is no “expectation of privacy” in public work

areas such as conference rooms, stairwells, and lobbies.

There are locations in the workplace, however, where

privacy interests will outweigh an employee’s lawful

right to record audio conversations. One example is rest-

rooms. For obvious reasons, employers and employees

may never record conversations in restrooms. Similarly,

an employer that installs surveillance cameras in em-

ployee changing areas or locker rooms will be inviting

invasion of privacy claims. Furthermore, employers are

prohibited from filming, recording, or secretly attending

union meetings.

Implementing policies that

prohibit recording

While the law generally permits employees to record

conversations in public workplaces, Texas employers do

not have to allow workplace recordings. Texas’ “one-

party consent” law allows individuals to legally make

secret recordings of conversations they are part of, but

employers have the authority to implement policies that

limit or prohibit recordings in the workplace. However,

an overly broad no-recording policy is not permitted.

In 2017, a federal court of appeals held that an em-

ployer’s overly broad recording ban was not permitted

under the National Labor Relations Act (NLRA). When

crafting an enforceable no-recording policy, employ-

ers should tailor their policy narrowly and identify le-

gitimate reasons for enforcing it. Employers that choose

to implement narrowly tailored policies restricting

employees’ ability to record conversations in the work-

place should provide notice of the policy to all employ-

ees. Federal courts have found no problems with em-

ployers’ policies prohibiting secret recordings that are

narrowly tailored and are enforced uniformly and fairly

among all employees.

Jacob M. Monty, the managing partner of Monty &

Ramirez, LLP, practices at the intersection of immigration and

labor law. He can be reached at jmonty@montyramirezlaw.

com or 281-493-5529. D

IMMIGRATION

WEB, imm, lit, hiring, pp, ina, nod, ec,

Civil rights law opens door

for DACA recipients to file

alienage discrimination claims

by Jacob M. Monty

Monty & Ramirez, LLP

In the past, employers were comfortable instituting poli-

cies that permitted them to refuse to hire Deferred Action for

Childhood Arrivals (DACA) recipients with employment au-

thorization. The policies were founded on the belief that since

DACA recipients were not classified as “protected individuals”

under the Immigration and Nationality Act (INA), employers

had absolute discretion under the law in choosing not to hire

them.

In 2014, a federal court in New York pronounced that re-

fusing to hire DACA recipients with employment authoriza-

tion could constitute “alienage discrimination” under the Civil

Rights Act of 1866. The development has had far-reaching

implications for employers. Employers are getting hit with a

string of lawsuits over policies that allow them to deny employ-

ment opportunities to DACA recipients. The spike of alienage

discrimination lawsuits by DACA recipients will certainly

transform employers’ practices on hiring, firing, and recruit-

ment or referral for a fee from here on out.

INA’s antidiscrimination

provisions only go so far

The INA contains antidiscrimination provisions

that prohibit employers from participating in national

origin discrimination, citizenship status discrimination,

unfair documentary practices (e.g., employers specify-

ing the types of documentation employees may provide

or refusing to accept valid documents), and retaliation

against individuals who assert rights protected under

the INA. National origin discrimination and citizenship

status discrimination are distinct in nature.

National origin discrimination occurs when an em-

ployer treats an injured party unfavorably regarding

hiring, firing, or recruitment or referral for a fee simply

“because the injured party is from a particular country

Texas Employment Law Letter

June 2018 3

or part of the world,” “because of the injured party’s eth-

nicity or accent,” “because of limited English ability,”

or “because the injured party appears to be of a certain

ethnic background, even if he or she is not.” When an

employer participates in any of those prohibited dis-

criminatory acts but does so on the basis “of the injured

party’s immigration status” or the fact that the injured

party “is or is not, a U.S. citizen,” citizenship status dis-

crimination occurs.

Under the INA, all work-authorized individuals

may obtain relief for national origin discrimination.

However, only individuals who are classified in one of

five protected classes may obtain a remedy for being

discriminated against on the basis of their citizenship

status. The INA defines “protected individual” as (1) a

citizen or national of the United States, (2) a permanent

resident, (3) a lawful temporary resident, (4) a refugee, or

(5) an asylee. Individuals with DACA status do not fit in

any of the protected classes. Regrettably, the INA’s an-

tidiscrimination provisions only go so far in protecting

DACA recipients.

Employers’ practices may

soon become outdated

DACA is a federal program created by President

Barack Obama that authorizes “recipients to remain in

the United States for two years and to obtain an Employ-

ment Authorization Document (EAD), a federal work

permit, and a Social Security number.” Faced with citi-

zenship status discrimination, DACA recipients were

unable to file charges under the INA’s antidiscrimination

provisions because they did not belong to a protected

Requiring exempt workers to take PTO

in full- or half-day increments

by Jacob M. Monty

Monty & Ramirez, LLP

Q We are considering having exempt employees account

for time away from work in increments of one hour. Is there

a specific law that requires exempt employees to take paid

time off (PTO) in increments of either four hours (half a

day) or eight hours (a full day)?

A There is no specific federal law requiring exempt

employees to take PTO in increments of four or eight

hours a day. Because federal law is silent on PTO, you

are largely free to deduct from PTO balances in four-

hour, eight-hour, or other increments. However, some

states have unique rules governing PTO, and laws

change regularly. Thus, you should always consult

a local employment attorney before making a policy

change.

Q An employee recently put in her two-week notice, but

her manager went ahead and removed her from the sched-

ule. Are we obligated to pay her for the time she was sched-

uled in those two weeks?

A No. You are obligated to pay only for time actu-

ally worked. But you should consider the impact not

paying the employee will have on morale and how

it might affect whether other employees give a two-

week notice.

Q Can company payroll personnel ever be held personally

responsible/liable for errors made while processing payroll?

A Under the Fair Labor Standards Act (FLSA), any-

one who qualifies as an “employer” can be liable for vi-

olations of its wage and hour provisions. “Employer”

refers to someone acting directly or indirectly in the

interest of an employer in relation to an employee and

generally refers to managers, supervisors, and own-

ers. Payroll personnel will not typically qualify, but

the determination requires a fact-intensive review

of the position and the authority of personnel. For a

more complete answer, please consult an employment

attorney who can review your specific situation.

Q Are we allowed to ask job candidates for a copy of their

most recent performance evaluation from their previous em-

ployer when they come in for an interview?

A Yes, you can request the information. However,

you must consistently apply your policy, request-

ing the information from all candidates for a posi-

tion rather than requesting the data

selectively.

Jacob M. Monty, the managing part-

ner of Monty & Ramirez, LLP, practices

at the intersection of immigration and

labor law. He can be reached at jmonty@

montyramirezlaw.com or 281-493-5529. D

JUST ASK JACOB

4 June 2018

Texas Employment Law Letter

class. Employers found an opportunity to tailor their policies in

a manner that would preserve their ability to deny DACA re-

cipients employment opportunities without breaching the INA’s

antidiscrimination provisions.

Everything changed in 2014, however, when a federal

district court in New York found that refusing to hire DACA

recipients with employment authorization could constitute

“alienage discrimination” under the Civil Rights Act of 1866

as codified by 42 U.S.C § 1981. In its commentary, the court re-

vealed that § 1981 prohibits race and alienage discrimination

in making and enforcing contracts, including employment

contracts. Lawyers representing DACA recipients began to use

§ 1981 to bring alienage discrimination lawsuits. The law was

becoming the proper avenue to bring citizenship status dis-

crimination claims. In every single one of the lawsuits, DACA

recipients asserted that their employer’s policies constituted

intentional discrimination based on alienage by rescinding or

denying them employment contracts because they were not U.S.

citizens, permanent residents, refugees, or asylees.

The new development in the law has begun to have far-

reaching implications on not only foreign nationals but also

employers. Employers’ practices may soon become outdated.

Apolicy that reflects a prohibition on hiring DACA recipients

may show intentional discrimination by the employer if it’s

based on an employee’s or candidate’s alienage.

Bottom line

Section 1981 fills a gap that was left by the INA’s classifica-

tion of protected classes. Although it may once have been the

norm for employers to implement policies that allowed them

to refuse to hire DACA recipients with employment authoriza-

tion, that may no longer be the case. Employers that choose not

to hire DACA recipients based on their policies should think

carefully about updating them since failing to do so may invite

alienage discrimination lawsuits.

Jacob M. Monty, the managing partner of Monty & Ramirez,

LLP, practices at the intersection of immigration and labor law. He can

be reached at jmonty@montyramirezlaw.com or 281-493-5529. D

DOL issues opinion letters on FLSA. The U.S.

Department of Labor’s (DOL) Wage and Hour Divi-

sion (WHD) in April announced three new opin-

ion letters related to the Fair Labor Standards Act

(FLSA) and other laws. The letters released on April

12 concern (1) what counts as work time under the

FLSA when employees travel for work, (2) whether

15-minute rest breaks required every hour by an

employee’s serious health condition must be paid

or may be uncompensated, and (3) whether certain

lump-sum payments from employers to employees

are considered “earnings” for garnishment pur-

poses under Title III of the Consumer Credit Protec-

tion Act. An opinion letter is an official document

authored by the WHD on how a particular law

applies in specific circumstances presented by the

person or entity requesting the letter. Opinion let-

ters represent official statements of agency policy.

DOL issues bulletin on tip pools. Since provi-

sions related to tipped workers were included in the

Consolidated Appropriations Act, the DOL in April

issued a Field Assistance Bulletin (FAB) to address

enforcement of tip credit rules under the FLSA. As a

result of the legislation, employers may establish tip-

pooling arrangements between “front of the house”

and “back of the house” staff such as cooks and

dishwashers. The Act vacated the WHD’s 2011 reg-

ulations that barred tip pooling when employers pay

tipped employees at least the full minimum wage.

Additionally, Congress gave the DOL authority to

prevent employers from taking employees’ tips in all

circumstances. FAB 2018-3 confirms that employers

that pay the full federal minimum wage to tipped

workers may allow nontipped workers to participate

in tip pools.

USCIS unveils new E-Verify website. U.S. Citi-

zenship and Immigration Services (USCIS) in April

announced a new website, E-Verify.gov, to be a

source for information on electronic employment

eligibility verification for employers, employees,

and the general public. The site provides infor-

mation about E-Verify and Form I-9, Employment

Eligibility Verification. E-Verify.gov allows employ-

ers to enroll in E-Verify directly and permits cur-

rent users to access their accounts. Individuals with

myE-Verify accounts also can access their accounts

through E-Verify.gov.

New guidance addresses multiemployer pen-

sion plans. The Pension Benefit Guaranty Corpo-

ration (PBGC) announced in April it was issuing

guidance to assist multiemployer pension plans that

request PBGC review of alternative plan rules for

satisfying employer withdrawal liability. The guid-

ance explains the PBGC’s review process, the infor-

mation needed, and factors the PBGC considers in

reviewing plan proposals. D

AGENCY ACTION

Texas Employment Law Letter

June 2018 5

FAMILY AND MEDICAL LEAVE

FED, taxes, loa, fmla, ms, empben, pp

New tax credit rewards companies

that offer paid FMLA leave

Employers that offer paid family and medical leave may get an

unexpected tax benefit next year at tax time. The tax reform law that

passed earlier this year contains a little-noticed tax credit for employers

that provide qualifying types of paid leave to their full- and part-time

employees. The credit is available to any employer, regardless of size, if:

• It provides at least two weeks of qualifying leave annually for em-

ployees who have been with the company for at least 12 months;

and

• The paid leave is at least 50% of the wages normally paid to the

employee.

The IRS recently issued a series of FAQs on the credit that are

designed as a temporary measure to help employers understand (and

hopefully take advantage of) the credit while waiting for official guid-

ance in the form of regulations. Let’s take a look at some of the key

things employers need to know to claim the credit on their 2018 taxes.

What types of leave qualify for the credit?

The credit is available when an employer pays for leave that

would fall into the same categories for which leave is available

under the federal Family and Medical Leave Act (FMLA). That

includes both the FMLA’s original reasons for leave (pregnancy,

childbirth, and serious health conditions) and leave that relates

to the military service of an employee’s family member (mili-

tary caregiver and qualifying exigency leave).

In addition, however, employers can claim the credit when

they offer paid leave for any of the listed (FMLA-like) reasons.

For example, an employer that offers paid parental leave would

be able to claim the tax credit even if it doesn’t offer paid leave

for the other types of qualifying leave. Employers that offer

self-funded disability benefits should discuss whether they can

claim the credit for those benefits with their attorney.

Women more likely to see pay disparity,

survey finds. Nearly a third of women (32%) par-

ticipating in CareerBuilder’s Equal Pay Day survey

in April said they don’t think they are making the

same pay as men in their organization who have

similar experience and qualifications. That com-

pares to 12% of men who think that way. The sur-

vey also found that men are more likely to expect

higher job levels during their career, with 29% of

men saying they think they will reach a director

level or higher, compared to 22% of women. The

survey also found that 25% of women never expect

to reach above an entry-level role, compared to 9%

of men. Almost a third of the women in the sur-

vey (31%) said they think they’ve hit a glass ceiling

within their organizations, and 35% don’t expect

to reach a salary over $50,000 during their career,

compared to 17% of men who expect that salary.

Study finds banning use of salary history

easier than anticipated. The total rewards associa-

tion WorldatWork has released data showing that

44% of employers that have implemented a ban

on asking job candidates about their salary history

say imposing the ban was either very or extremely

simple. Just 1% reported implementing the ban

was extremely difficult, and 8% said it was very

difficult. The survey of WorldatWork members

found that 37% of employers have implemented

a policy prohibiting hiring managers and recruit-

ers from asking about a candidate’s salary history

in all U.S. locations, regardless of whether a local

law exists requiring the practice. Thirty-five percent

of employers reported prohibiting the practice only

when laws are in place. The data show that for em-

ployers that have yet to implement a nationwide

salary question ban, 40% are somewhat likely or

extremely likely to adopt a nationwide policy in the

next 12 months.

Brand familiarity found important to attract-

ing talent. Employers with low brand awareness

are more likely to be overlooked by jobseekers, ac-

cording to research from job site Glassdoor. A sur-

vey showed that candidates are 40% more likely

to apply for a job at a company in which they rec-

ognize the brand compared to a company they

have not heard of. The survey, conducted among

750 hiring decision makers (those in recruitment, in

HR, and responsible for hiring) in the United States

and the United Kingdom, also found 60% of those

surveyed said their employer brand awareness is

either a challenge or a significant barrier to attract-

ing and hiring candidates. Seventy-five percent of

those surveyed agreed that if a candidate is aware

of their brand name and products or services, the

recruiting process is easier. D

WORKPLACE TRENDS

6 June 2018

Texas Employment Law Letter

The credit isn’t available for paid sick leave, paid vacation, or

paid time off unless it’s specifically offered for one or more of the

qualifying reasons listed. Nor is it available for paid leave that is

otherwise required by law.

Who must offer (and be offered) leave?

Employers don’t have to be subject to the FMLA to take

advantage of the credit. In other words, employers with fewer

than 50 employees may claim the credit if they offer a qualify-

ing type of paid leave.

The credit may be claimed when paid leave is offered to em-

ployees who (1)have worked for you for at least 12 months and

(2)made less than $72,000 in the previous year. There is not yet

any guidance on how the salary amount is calculated.

How much is the credit?

For employers that offer paid leave in the amount of 50% of

an employee’s wages, the credit is 12.5% of the amount paid. The

credit is increased by 0.25% for each percentage point by which

the paid leave exceeds 50% of the employee’s normal wage, but

it is capped at a maximum credit of 25%.

Ordinarily, employers would claim paid leave as a general

business deduction for wages or salaries paid or incurred. To

claim the credit, that deduction would have to be reduced by

the amount of the credit claimed. So it’s possible that you would

claim the credit for some employees (those who make less than

$72,000 per year) and the deduction for others (those who make

$72,000 or more).

The maximum period of paid leave for which the credit

may be claimed is 12 weeks.

Final thoughts

The law specifically requires employers to have a written

policy describing the paid leave offered. In addition, employ-

ers are required to provide part-time qualifying employees a

Teamsters president slams threat to public-

sector unions. Teamsters General President James

P. Hoffa spoke out against the U.S. Supreme Court

case Janus v. AFSCME during an April conference,

saying the case is about politics and “people who

hate unions.” The case could remove the require-

ment that nonunion members pay certain union

fees to cover costs of collective bargaining. In

March, Hoffa also met with Senator Bernie Sand-

ers (I-Vermont) to discuss the threat the Janus case

poses to public-sector unions.

Unions demand disclosure of how companies

use gains from tax cut. Leaders from the Commu-

nications Workers of America, the Service Employ-

ees International Union, the American Federation

of Teachers, and the Teamsters in April sent letters

to several corporations requesting detailed infor-

mation about how they are using their gains from

the recently enacted corporate tax cut. The request

is to determine how much the companies are ben-

efiting from the tax cut, what portion of those ben-

efits they are using to raise wages and create jobs,

and how the tax cut legislation has affected their

decisions to send and keep jobs overseas. Aunion

statement said failure to disclose the information

could subject the companies to an unfair labor

practice complaint under the National Labor Rela-

tions Act (NLRA).

Laborers’ union praises changes to permitting

processes. Terry O’Sullivan, general president of

the Laborers’ International Union of North America

(LIUNA), spoke out in April to praise the Trump

administration’s action to streamline the federal

review and permitting processes for major infra-

structure projects. “LIUNA members are America’s

builders, but costly and time-consuming review

processes are holding us back from rebuilding our

nation’s great roadways and bridges, unlocking

our domestic energy reserves, and making cru-

cial repairs to our aging drinking water systems,”

O’Sullivan said.

Workers call for wage theft investigation. The

Communications Workers of America announced

in April that workers at five federal contract call

centers operated by General Dynamics Informa-

tion Technology filed wage theft complaints with

the U.S. Department of Labor’s (DOL) Wage and

Hour Division (WHD), calling for an investigation

of allegations of misclassification and underpay-

ment of workers. The complaints were filed on

behalf of current and former workers in Phoenix,

Arizona; Tampa, Florida; Corbin and London,

Kentucky; and Waco, Texas. The new allegations

follow other recent wage theft complaints made

by the union on behalf of workers at four of the

company’s other call centers: Lawrence, Kansas;

Bogalusa, Louisiana; Hattiesburg, Mississippi; and

Alexandria, Virginia. D

UNION ACTIVITY

continued on page 8

Texas Employment Law Letter

June 2018 7

Austin’s paid sick leave ordinance challenged

by John Duke

Constangy, Brooks, Smith & Prophete, LLP

Austin’s much-ballyhooed sick leave ordinance is

under attack. The ordinance mandates that private-

sector employers with more than 15 employees allow

their workers to accrue one hour of paid sick leave for

every 30 hours they work in Austin, amassing up to

64 hours per year. Employees at small businesses with

15 or fewer workers can accrue up to 48 hours each

year. The ordinance is scheduled to go into effect on

October 1, 2018, for employers with six or more em-

ployees and on October 1, 2020, for employers with

five or fewer employees. Although the Texas Legis-

lature seems poised to overturn the ordinance when

it reconvenes in January 2019, many employers have

questioned what to do in the meantime.

On April 24, 2018, several business groups and

staffing organizations jumped into the fray and sued

Austin to prevent the ordinance from taking effect.

According to the lawsuit:

The Texas Minimum Wage Act prohibits mu-

nicipalities . . . from regulating the wages of

employees of private businesses, incorporat-

ing the standards of the federal Fair Labor

Standards Act [FLSA] into state law, but fur-

ther [preempts] any municipal ordinances

from going beyond those standards. Through

the Texas Minimum Wage Act and FLSA,

Texas state law caps the minimum wage at

the federal rate. In direct conflict, the Paid

Sick Leave Ordinance requires that employ-

ers must pay [minimum wage] to employees

for hours not actually worked. The effect is to

push their hourly wage above the minimum-

wage ceiling set by Texas law.

The business groups also argue that the ordi-

nance violates their “due course of law” rights under

the Texas Constitution because “its actual, real-world

effect . . . is so burdensome as to be oppressive in

light of the alleged governmental interest” since it

requires employers whose employees work both

inside and outside of Austin to keep track of how

many hours their employees work in Austin to de-

termine their paid sick leave entitlement. Not to be

left out, the Texas Attorney General’s Office (AG) has

intervened in the case, arguing that since Austin is

a “home rule” city, it cannot enact ordinances that

conflict with state statutes. The AG notes that Aus-

tin’s ordinance requires employers to pay employees

for hours not worked and therefore increases wages

beyond those required by state law.

As far as I am aware, only two other municipali-

ties’ paid sick leave ordinances have been challenged

to date, and they haven’t fared well. Minneapolis

enacted an ordinance requiring employers with six

or more employees to allow workers to accrue one

hour of paid sick leave for every 30 hours they work

in Minneapolis, up to a maximum of 48 hours per

year. A trial court struck down the ordinance on

May 8, 2018, but not on preemption grounds. In fact,

the court held that the ordinance wasn’t preempted

but instead was invalid because of the burdens it

would impose on employers that have employees

who work in Minneapolis sporadically. Similarly, on

May 17, 2017, a Pennsylvania appellate court held that

Pittsburgh lacked the authority to mandate paid sick

leave under Pennsylvania’s home rule statute. That

case is currently pending before the Supreme Court

of Pennsylvania.

What could this mean for Austin’s ordinance?

The Minneapolis and Pittsburgh decisions suggest it

may have a problem. After all, the Austin ordinance

is similar to the Minneapolis ordinance in that it ap-

plies to employers that have employees who work

sporadically in Austin, and as a result, it may impose

significant burdens on those employers. Likewise, the

argument that the ordinance is preempted is similar

to the argument accepted by the Pennsylvania court:

Austin is a home rule city and therefore cannot enact

ordinances that conflict with state statutes. To be sure,

Texas home rule cities have greater autonomy than

Pennsylvania home rule cities, but the concept re-

mains the same.

The upshot of the legal challenge to Austin’s or-

dinance is that employers that might be affected by

it may not have to wait for the legislature to act be-

cause the ordinance could be prevented from taking

effect before the legislature reconvenes. A hearing on

the business groups’ application for a

temporary injunction is set for June 25.

John Duke is senior counsel in both the

Boston and Austin offices of Constangy,

Brooks, Smith & Prophete, LLP. He can be

reached at jduke@constangy.com. D

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Editorial inquiries should be directed to Michael P.

Maslanka at FisherBroyles, LLP, 100 Highland Park

Village, Suite 200, Dallas, TX 75205, 214-559-7210,

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TEXAS EMPLOYMENT LAW LETTER does not at-

tempt to offer solutions to individual problems but

rather to provide information about current develop-

ments in Texas employment law. Questions about

individual problems should be addressed to the em-

ployment law attorney of your choice. The State Bar

of Texas does designate attorneys as board certified

in labor law.

For questions concerning your subscription or Cor-

porate Multi-User Accounts, contact your customer

service rep re sentative at 800-274-6774 or custserv@

blr.com.

proportionate amount of paid leave (based on their expected

work hours).

At this time, the credit is available only for wages paid in

2018 and 2019, which may make it unlikely that employers will

adopt new paid leave policies just to claim the credit. If you’ve

been considering paid leave, however, the availability of the

credit (and a conversation with your attorney and/or accoun-

tant) may help you in your decision. D

Call customer service at 800-274-6774

or visit us at the websites listed below.

WEBINARS & AUDIO SEMINARS

Visit http://store.HRHero.com/events/audio-

conferences-webinars for upcoming seminars

and registration.

7-5 Onboarding: How to Effectively Integrate

New Employees Beyond a One-Day

Orientation for Better Engagement and

Retention

7-10 Canadian Employment Laws 2018: Best

Practices and Key Rules for Operating

North of the Border

7-11 Market-Based Pricing: How to Use Market

Data to Set Salary Ranges and Retain Top

Talent

7-12 Resolving Employee Interpersonal

Conflict: How to Train Co-Workers to

Manage Issues, Diffuse Drama and Get

Back to Work

7-12 California’s Independent Contractor

Classification ‘ABC’ Test Overhaul: How

to Re-Classify Workers to Minimize Legal

Risks in Light of New State Supreme Court

Ruling

7-17 Dealing with Opioids and Marijuana

in the Workplace: A Dozen Strategies

for Drug Testing, Managing Leaves and

Accommodations, and Limiting Liability

7-17 Commission Agreements and Bonus Plans

in California: How to Avoid Legal Traps

Found in the Intricate Laws Governing

These Types of Compensation

7-17 New Data Privacy Regulations (GDPR):

What Companies with Employees in

Europe Need to Know Now

7-18 Scent-sational Legal Risks: How to Master

Odor and Allergy ADA Accommodations

7-19 Association Health Plans: Legal Risks

under New DOL Rule and Benefits of

AHPs

7-20 Unconscious and Systemic Bias: The

Hidden Toll on Workplace Culture, Hiring,

Productivity, and Retention

TRAINING CALENDAR

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