TRA Retail Briefs - February 2010

Have an employment law question?

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Dear Sheila: We have a crew of non-exempt/hourly cashiers, and sometimes we need to call them on their days off to ask a quick question. We know we have to count their time as paid if they actually are called in to work, but what about those short calls to ask, for example, where they left a report? Do we have to pay for these minutes, and do they count towards overtime?
Signed,
Thrifty and Legal

Dear Thrifty: It depends on how long these "short" calls are, how many are made in a day, and how practical it is to record and track the time. In wage and hour law, there is a concept (get ready for the Latin) called de minimus time. This means that insignificant periods of time outside normal working hours may be ignored if payroll could not practically track the time. An unplanned call here or there to the employee would likely fall under the de minimus exception,but a regularly scheduled conference call or meeting outside of an employee's schedule would not. As a guideline (but not a hard rule) consider time spent under ten minutes as de minimus. But calling too often, so that it would look like the employer is taking advantage of the employee or significantly interfering with her time off, could cause the employer to lose the exception.

Dear Sheila: I have heard that Texas is an "employment at will" state, and also that Texas is a "right to work" state. Are these the same thing?
Signed,
Confused Lone Star

Dear Confused: No, although, I too have heard the terms used interchangeably. The two terms both correctly describe Texas law, but they have very different meanings.

"Employment at will" means that there is no implied contract or duty of fairness between employers and employees - either the employee or employer can end the relationship at any time, without notice or penalty, unless there is a clear contract between them, or there is a violation of law. For example, it is an exception to employment at will to fire an employee based on gender, race, religion, etc., because the termination would violate current law.

"Right to work" means that no employee can be forced to join a union in Texas, even if the union represents most of the other employees at the facility. Another term used in this context is "open shop." Some states are "closed shop" states, meaning that you must join the union in order to work in a particular job. Texas, an "open shop" state, prohibits making employees chose between the job and union membership.

"Ask a Lawyer" is written by Sheila Gladstone, a Principal at Lloyd Gosselink Rochelle & Townsend, P.C. and the head of the Firm's Employment Law Practice Group. If you have an employment law question, please submit it to Lisa Jones at [email protected], with the subject line: "Ask a Lawyer," and your question might appear in a future issue of Retail Briefs. If you have questions or would like additional information regarding Sheila's column, you may contact Sheila at [email protected], or (512) 322-5863.