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13 Jun 2021 | by devteam

Just Ask Jacob: Employees don’t dictate what’s in their personnel files

Q One of our employees keeps giving me documents to place in his personnel folder, mostly positive e-mails sent by someone to say that he has done a good job. Are we required to add the e-mails to his file?

A In short, no. Personnel files are company property. Moreover, although some states require that employers allow employees to access their personnel files, Texas is not one of them.

It’s a good policy to keep only factual information in a personnel file, and an e-mail opining on an employee’s performance isn’t factual. If you must investigate an employee’s conduct, it’s a good idea to allow him an opportunity to respond to any allegations of misconduct, but documents related to workplace investigations should be kept separate from personnel files.

Q A salesperson was involved in a car accident on her way to get gas before heading out to see customers. Does this fall under workers’ compensation? At what point would she be considered on the clock?

A The Workers’ Compensation Act (WCA) states that an employee who is injured in the “course and scope of employment” is eligible for workers’ comp benefits. The analysis is very fact-specific, but in your case, it might depend on which door the employee was headed out at the time she was injured! That’s because Texas courts apply the “origination rule” in analyzing the compensability of injuries.

Was the employee leaving the office to get gas and then meet customers? If so, her travel likely “originated” in your place of business and would therefore be within the scope of her employment. If she was leaving home on her way to meet clients, the analysis might be more complicated because the WCA excludes injuries sustained while an employee is commuting to or from work. Salespeople, home health nurses, and other employees who are on the road a lot are often exempt from the exclusion because travel is integral to their employment and they don’t work from a fixed office.

So the specifics of your employee’s job are relevant. Does she spend the majority of her time in the office and take off-site client meetings only occasionally? Or does she lack a fixed office at all, generally moving from one client site to another? The more mobile she is, the more likely it is that her injury would qualify for workers’ comp benefits.

Q Our company plans to move to a different city in the fall. Are we legally required to inform our employees and let them decide if they want to move with us? How far ahead should we inform them?

A It depends on the distance of the move and whether your employees will go with you. The federal Worker Adjustment and Retraining Notification Act (WARN Act) governs how employees must be notified when a mass layoff or worksite closing is planned. In some cases, a relocating employer with 100 or more employees may be required to give 60 days’ notice to its employees if the move will result in layoffs of 50 or more workers. It doesn’t matter whether you actively lay people off or the layoffs simply result from employees electing not to follow you to your new location.

If you think that scenario may apply to your company’s move, it’s best to contact an employment lawyer for guidance because the specifics of WARN Act notice can be complicated. The best practice would always be to provide as much notice as practical and make your announcement an interactive process. Employees are likely to have mixed reactions, but advance notice and details about the new location will help with any issues that come up during the transition.

Q If an employee is hired to work part-time but consistently works full-time hours, are we obligated to change his status to full-time, which would change his benefits eligibility?

A Although federal wage and hour law requires that nonexempt workers be paid for any overtime they work (any hours worked in excess of 40 in a seven-day period, with limited exceptions), federal and Texas law leaves it up to employers to determine what “full-time” and “part-time” status means. Further, whether to offer benefits and to whom are generally decisions that are within your discretion as an employer. There are some legal constraints, however.

For example, federal law mandates that if a company offers a pension or retirement benefit, it must offer the benefit to any employee who works 1,000 or more hours in a 12-month period. And under Texas law, if you offer your employees health insurance, an “eligible employee” is anyone who usually works at least 30 hours per week.

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@­ or 281-493-5529.


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