Don’t Mess with Texas: a Quick Draw on Lone Star State Employment Law

Texas flag made of old wooden boards. Rustic. State outline.

As any Texan will tell you, “Everything is bigger in Texas!” And with an economy that would rank 10th largest in the world if Texas were a country, you are likely to interact at some point with businesses in the Lone Star State. You may even find yourself hiring or managing employees there. If so, below are some interesting and very Texan takes on employment law that may be helpful when you do.

Wild, Wild West

Texas gun laws are less restrictive compared to other states. While the state does not require a license to possess a gun, carrying it is illegal without a valid license. Texas is a Shall Issue state, meaning that officials must issue a handgun license to applicants meeting the state’s qualifications. The state also allows the open carry of weapons. But, even with a valid license, carrying a handgun is prohibited from certain specified locations, including schools, correctional facilities, churches, government offices and amusement parks.

An employer, however, has the right to prohibit individuals with a valid license from carrying a handgun on its premises. To do so, the employer must communicate, orally or in writing, that entering or remaining on the property with a handgun is forbidden. Written notice may be provided in the form of a card or other document, or by posting a sign clearly and conspicuously on the property in both English and Spanish.

In addition to the open carry laws, Texas has a parking lot storage law. While an employer may ban handguns on its premises, it may not implement policies prohibiting licensed gun owners from storing a weapon and ammunition in a locked, privately owned vehicle in an employer-provided parking lot, garage or other parking area.

The law builds in some protections for employers. An employer is not liable in civil actions due to deaths, injuries or damages from firearms or ammunition as a result of following the law’s provisions, except in cases of gross negligence. Additionally, an employer still has the right to patrol, secure and inspect parking lots, as well as to confirm their employees are complying with the law.

Rustlers Not Welcome

As every cowboy movie makes clear, cattle rustling was frowned on in the old west, and Texas has the same disapproving view of modern rustling in today’s employment world. That view is enshrined in its laws on noncompetition and nonsolicitation of customers and the adoption of confidentiality and nondisclosure laws.

Noncompetition agreements between employers and employees are valid in Texas if they strictly comply with statutory requirements and the interpretation of the statutes under Texas case law. To be enforceable, a noncompetition agreement must be ancillary to or part of an otherwise enforceable agreement at the time the agreement is made, and have reasonable limitations as to time, geographical area and the scope of activity restricted. It also cannot impose a greater restraint than necessary to protect the goodwill or other business interest of the employer.

Agreements that prohibit employees from soliciting their former employer’s customers also are enforceable if they comply with statutory requirements. Under Texas law, nonsolicitation agreements are subject to the same analysis as noncompetition agreements.

Texas has adopted the Uniform Trade Secrets Act (UTSA), under which employers are be able to recover damages for misappropriation of trade secrets. The UTSA creates a presumption of granting protective orders to preserve the secrecy of trade secrets, unless there is a reason not to.

An amendment to the Texas Uniform Trade Secrets Act, effective September 1, 2017, clarifies that actual or threatened misappropriation may be enjoined provided the order does not prohibit a person from using general knowledge, skill and experience that person acquired during employment. This amendment allows a former employee to continue to work while protecting an employer’s claim to trade secrets pending the outcome of a trial. The amendment also includes a presumption that a party is generally allowed to participate and assist counsel in the presentation of a trade secret case.

Second Chances

With depictions of the Texas Rangers, sheriffs and marshals, Texas has a reputation for promoting “law and order.” But stories also show a sentiment for allowing second chances. In 2016, Austin joined the ranks of jurisdictions that have passed a ban the box law. The Fair Chance Hiring Ordinance postpones inquiries into a candidate’s criminal record history by private employers with 15 or more employees until after a conditional offer of employment is made. The law also applies to any agency acting on an employer’s behalf. A penalty of up to $500 will be served for each position for which the ordinance is violated.

Additionally, under a state law, applicants with an order of nondisclosure of criminal history are not required to disclose their arrest or court case on an employment application for any sealed criminal proceeding. This means that, for those proceedings, an applicant with such an order can answer “no” if asked whether he or she has been arrested or convicted of a crime.

Cowboys and Children

Nothing is more iconic than the lone, independent Texan cowboy working his way from ranch to ranch. The modern equivalent, of a sort, is today’s Uber drivers. Texas was among the early states to declare rideshare drivers as independent contractors. Effective May 29, 2017, a driver for a “transportation network company” (TNC) is not considered an employee, so long as the company and driver agree in writing that the driver is an independent contractor, and the company does not:

  • Specify hours during which the driver must be logged in to its digital network;
  • Restrict the driver’s ability to use other TNCs’ digital networks;
  • Limit the territory within which the driver offers rides; or
  • Restrict the driver from engaging in another occupation or business.

Lastly, Texas, like all states, tries to protect its children. This year’s legislature amended the state labor code to make it an unlawful employment practice to discriminate against an employee who needs to use personal leave to care for a foster child. Beginning September 1, 2017, when an employer has a leave policy allowing employees to take personal leave to care for a sick child, that policy must treat an employee’s foster child in the same manner as an employee’s biological or adopted minor child. The foster child must live in the same household as the employee and be under the conservatorship of the Department of Family and Protective Services.

Non-Texans may doubt whether a Texan’s claims about the state’s greatness are entirely factual. However, there is no question that the state has a large influence in employment practices, making it very important not to “mess with Texas” and understand the laws. As for those Texas boasts? Just ask, and any Texan will grin and tell you — no brag, just fact.

Texas

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