USA – TEXAS Law and Practice Contributed by: Alana Ackels and Katie Beaird, Bell Nunnally & Martin
discrimination, harassment and retaliation, which employers should heed. The best defence against such a claim is to ensure that the employer documents important events during the entire employment relationship, such as discipline given, performance issues, absences/tardies and ver - bal counselling provided. In Texas, there is no require - ment that businesses use progressive discipline to coach an employee, but it can serve as a valuable legal defence against any claim of unlawful action. Additionally, having clear and concise policies and guidelines (often found in an employee handbook) – in addition to appropriate non-disclosure and con - fidentiality agreements for private information – will help establish the rules and framework that will gov - ern the employment relationship. Pay and position adjustments during the employee’s tenure, as well as performance reviews, should likewise be document - ed. Perhaps the most significant defence to employ - ment claims concerns the real-time documentation of performance or conduct issues of employees. Many employers opt to implement progressive discipline polices, which typically (albeit not in all cases) require levels of warning or addressing the performance or conduct issue before an ultimate termination. 7.2 Notice Periods In the absence of an employment contract, notice is not required for either an employee or employer to terminate the relationship. For employers who wish to get the “professionally courteous” two-week notice from their employees, the employer could pay out accrued and unused paid time off if the notice is given and worked or provide some other type of incentive. However, an employer cannot withhold any pay for hours or days already worked if an employee does not provide any notice of the decision to leave their employment. 7.3 Dismissal for (Serious) Cause As discussed in 7.1 Grounds for Termination , Texas does not require an employer to follow a progressive discipline policy. Accordingly, an employer can termi - nate the employment relationship for any reason or no reason at all, so long as the reason or no reason
is not “illegal” – something that is typically tied to a protected classification. However, an immediate termination can be viewed as a violation of anti-discrimination or anti-retaliation laws if the employer is not consistent in treating the pre - ceding offence as grounds for immediate termination. By way of example, if one employee is terminated on the spot for workplace violence but another employee engaged in substantially similar violence and was not terminated a few months prior, the terminated employ - ee may have grounds to claim discrimination. Accord - ingly, it is imperative that an employer is consistent in how it applies its discipline and termination policies, especially in the case of an immediate termination. 7.4 Termination Agreements Severance agreements are frequently used by Tex - as employers to obtain a release of any claims the employee may have against the employer. Sever - ance agreements must follow the typical contract rules, such as having consideration (the severance payment), being in writing and being agreed to (the signature). Limitations to Severance Agreement There are certain claims that cannot be released in a severance agreement, such as the employee’s right to: • be paid for hours worked or business expenses
incurred prior to the termination; • bring an administrative charge; • file for unemployment benefits; or • file for workers’ compensation benefits.
Additionally, the NLRB has instructed that any confi - dentiality and non-disparagement clause in a sever - ance agreement must be narrowly tailored and provide appropriate language to carve out conduct protected
by Section 7 of the NLRA. Employees Over Age 40
If the severance agreement is for an employee who is over the age of 40 by the time they are presented with the severance agreement, the employer must ensure that the severance complies with the Older Workers Benefit Protection Act. This includes:
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