Texas employers have a few things to worry about as we hit our 2024 stride. A lucky few got a better grasp of it all at our annual HR Employment Law Update on January 31, 2023. Amy Beckstead, employment attorney at Beckstead Terry Ditto PLLC, once again brought the most pressing issues to luncheon attendees.
We’ll be covering a few of the topics in the coming weeks, but here’s a roundup of some of the top changes for Texas employers:
Workplace violence reporting: Texas employers must now post a notice to employees that includes the contact information for reporting instances of workplace violence or suspicious activity to the Department of Public Safety. The poster is available here.
Vaccine mandates: Private Texas employers can no longer mandate COVID-19 vaccinations among employees, contractors or applicants (with few exceptions regarding health-industry employers and PPE requirements). “For most employers, if, for whatever reason, you still have a vaccine policy, get rid of it, because it is a $50,000 penalty per violation,” Beckstead points out.
CROWN Act: The Creating a Respectful and Open World for Natural Hair (CROWN) Act went into effect for Texas employers in September 2023. The law makes clear that race-based hair discrimination will be prohibited by Texas’ anti-discrimination laws.
Data breach notification: Also in effect since September, Texas businesses must notify the Attorney General of any data breach affecting 250 or more state residents “as soon as practicable and not later than the 30th day after” the date on which the breach is discovered. Prior law provided businesses with up to 60 days to notify the AG.
Family leave insurance: There’s great news for employers wishing to provide paid family leave benefits through Family and Medical Leave Act (FMLA) group insurance. HB 1996 created the ability for insurance companies to now offer group family leave insurance to cover employees’ time away from work for reasons covered by the FMLA.
Local regulatory control in limbo: The state is trying to do away with local employment and labor laws like paid sick leave and ban-the-box laws, which it claims is a “patchwork of regulations that apply inconsistently across the state.” However, its Texas Regulatory Consistency Act was shot down by Travis County and is currently in appeals, so stay tuned.
DEI daze: This one warrants its own article, but just be aware that Texas employers should keep abreast of how Texas legislators are proceeding with their Diversity, Equity, and Inclusion (DEI)-themed restrictions. It’s confusing how the state defines DEI, Beckstead admits, and that confusion can be downright dangerous in areas where newly banned “DEI” initiatives and protected equal employment opportunity and Title IX activities overlap.
Commissions after termination: Due to a recent Texas Supreme Court ruling, it is more important than ever in Texas to include explicit language dealing with post-termination commissions in employment contracts. Otherwise, Texas courts are going to assume/apply the “procuring cause” doctrine, which may award commissions to employees sometimes long after they’ve been terminated.
DOL Independent contractor update: Beginning March 11, 2024, Texas employers will be held to the new independent contractor rule promulgated by the U.S. Department of Labor that includes a six-factor economic reality test to analyze if a worker is an independent contractor or an employee.
NLRB changes: Don’t overlook National Labor Relations Board (NLRB) changes that may affect your employee engagements. They include:
- Decisions and guidance on non-disparagement and confidentiality provisions in separation agreements.
- Policies that employees might reasonably interpret to be coercive with the intent to chill employees from exercising their NLRA rights.
- A new standard for determining if an employer can discipline an employee who is both abusive and engaging in protected activity.
Revised 1-9s now required: Texas employers should now be using revised I-9s along with returning to the standard (pre-COVID) verification process of physically examining documents. Employers are still allowed to use a designated agent to complete section 2 of the I-9 Form.
Accommodations for pregnant workers: Texas employers should be sure to be complying with the federal Pregnant Workers Fairness Act, which is now in effect. Proposed regulations implementing the new law total 275 pages, and a final rule is expected to be issued any day. The proposal includes several big accommodation changes, so be sure to stay on top of these regulations when they are finalized.
Of course, this isn’t a complete list of changes. Texas employers should regularly review new regulations and court precedents with their employment attorneys to ensure that they’re covering their bases. Thank you, Amy, for an insightful (And dare we say fun?) employment law update!
