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Features and FAQs about human resources |
Personnel specialists at the Texas Association of Counties
are asked a range of questions on a wide variety of employment related issues.
Typical questions are below, with answers tailored for the specific questions.
For additional information, call the Association Personnel Assistance Department
at 1-800-456-5974.
Q: If an employee has a normal work schedule of 35
hours and he works 40 hours during one week, do I have to pay overtime for the
additional 5 hours?
A: No premium overtime payment would be due for the additional
5 hours. Overtime is not determined by the employee’s normal work schedule,
but by the total hours the employee works in a work week. Overtime payment would
not be due until the employee actually worked over 40 hours in the workweek.
However, the employee would be due pay at straight time for the additional five
hours if the employee is paid on an hourly basis or on a salary intended to
compensate for all hours worked up the employee’s normally scheduled
hours. If the employee is on a set salary for a fluctuating workweek, no additional
pay would be due provided the additional hours did not bring the employee’s
regular rate below the minimum wage of $5.15 per hour.
Q: Can a county employee do volunteer work in the same
county in which he is employed?
A: A county employee can do volunteer work in the county
in which employed provided the following conditions are met:
• The decision to do the volunteer work is solely
the decision of the employee without coercion from the county;
• The volunteer work is in a totally different capacity
than that of the employees regular job; and
• The employee expects no remuneration for his volunteer
services.
Of course, individuals who are not employees of the county
can do volunteer work in any capacity.
Q: Am I required to pay the salary of an employee who
is on leave under the Family and Medical Leave Act (FMLA)?
A: There is no requirement in the FMLA to pay an employee
who is out on leave under the Act. However, an employee can request to use any
accrued paid leave that is appropriate for the type of absence or the employer
can, through a policy, require an employee to use any appropriate paid leave
before going on leave without pay. In either situation, both the paid and unpaid
time counts toward the employee’s 12 week leave eligibility within the
county’s established 12 month period. The one exception to the "paid
leave" rule is compensatory time earned under the Fair Labor Standards
Act. If earned comp time is used, it cannot be counted against the employees
12 week entitlement under the FMLA.
Q: Our county uses prisoners from the county jail to
maintain the courthouse grounds. Do we have to pay minimum wage to the prisoners
for this work?
A: Prisoners are not considered employees under the Fair
Labor Standards Act and do not have to be paid minimum wage or overtime for
any services they perform for the county.
Q: How many hours must an employee work to be considered
full time?
A: Neither federal nor Texas law defines what constitutes
full time employment. Many employers use the 40 hour work schedule as a basis
for determining if an employee is full time but some employers use a shorter
work schedule. This determination is up to the individual employer. Generally,
the purpose of determining full time versus part time employment has to do with
eligibility for certain benefits. Except in situations where benefit eligibility
is dictated by law (as in the Family and Medical Leave Act), an employer has
the right to determine which positions receive a benefit. Often, this determination
is based on whether the position meets the employer’s criteria as a full
time position.
Q: Am I required to interview everyone who applies
for a job?
A: There is no legal requirement for an employer to interview
everyone who applies for an open position. Interviewing applicants who do not
meet the minimum requirements for a job would be a waste of both the interviewer’s
and applicant’s time. If there is a small number of qualified applicants,
normally an employer will interview all of them. Where the number of qualified
applicants is large, most employers select those who have the strongest qualifications,
as indicated on the resume or application, to interview.
Q: Since we require our road and bridge applicants
to take a physical examination after a conditional job offer is made, as allowed
by the Americans With Disabilities Act (ADA), are we required to have prospective
employees in other departments take a post offer physical?
A: There is no requirement to have all employees take a
post offer physical just because it is required in one department. However,
where post offer physicals are required in a department, all applicants within
a job category to whom a job offer is made must be required to take a physical.
The employer cannot require one individual to have a physical and not another
if they are in the same job category.
Q: Does the county have to pay an employee for unused
vacation and sick leave when the employee terminates
A: Both paid vacation and sick leave are granted benefits
and are not required by law. Therefore, the employer is free to establish any
policy regarding granting of these benefits, or not grant them at all. As a
result, the employer can pay either all, part, or none of an employee’s
unused vacation or sick leave upon termination in accordance with whatever policy
the employer has developed. Generally, some or all of an employee’s unused
vacation is paid when the employee terminates but very few employers pay for
unused sick leave.
Q: How long must I keep applications after the job
is filled?
A: According to 29 CFR; Section 1602.31 (Preservation of
Records Made or Kept), employment related records, including applications, must
be kept by a political jurisdiction for a minimum of 2 years from the date of
the making of the record or the date on which the personnel action occurred,
whichever is later. This only means that the applications have to be retained
for that period, not that they have to be considered for new jobs that open.
The county can require a new application each time an individual applies for
a different job.
Q: What information am I required to give on a reference
about a former employee and what information am I not allowed to provide?
A: While the law doesn’t dictate what "must, may, and mustn’t" be given on a reference, employers became cautious about what information they would provide for fear of lawsuits for libel or slander. All that most employers will give is dates of employment, job title, and will verify salary. As a basic rule, however, there is no liability if the employer provides factual information that is documented. A problem arises when an employer makes negative statements about a former employer that are based on speculation or personal feelings about that individual. The last legislature passed a statute that further defines the protection given to employers who provide references based on factual information (HB 341). According to Texas Business Today, a publication of the Texas Workforce Commission, "In essence, this bill authorizes employers to disclose information about a current or former employee’s performance, etc., to a prospective employer on the request of the prospective employer or employee. Employers who disclose information are immune from civil liability for that disclosure or any damages unless it is proven by clear and convincing evidence that the information disclosed is known to be false, or was made with malice or in reckless disregard for the truth or falsity of the information disclosed. The law does not require the employer to give a reference. The law does not prevent employees from suing to claim that defamation of character has occurred."