Common Employment Law Myths

Posted on May 24, 2011 by Tom Crane

Employment and Labor Insider discusses several law myths at her blog.  Iowa employment law blog has his take.  The myths I hear frequently here in San Antonio, Texas include:

"At will" employment means an employee can be fired for anything."  Texas is an at-will state.  An employee can indeed be fired for a lot of things, but not for sex, religion, race, national origin, disability, violation of laws, etc.  So, yes, an employer can fire you for wearing a blue tie to work, but not because you are too old.  The anti-discrimination statutes provide several exceptions to the at-will doctrine. 

"Probation periods means an employee can be fired for anything."  Not quite.  A probation period means an employe can be fired for anything except sex, religion, race, national origin, disability, violation of laws, etc.  See above paragraph. 

"Employees have a right to a copy of his/her personnel file."   That depends on whether the employee is public sector or private.   I have found no authority in Texas law saying that employees of private businesses can claim a copy of their personnel file.  As a public sector employee, an employe's rights are governed by the Freedom of Information Act for federal employees and the Open Records Act in for state employees.  I have looked but have found no authority for a private sector employee to obtain a copy of his/her personnel file.  See my prior post on this topic. 

"Employees get periodic breaks during the work day."  I was told as a young warehouseman that we had a right to a 10:00 o'clock break and another at 3:00 pm.  The times could vary slightly.  Ever since, I have looked for the authority for those breaks.  There is no such authority.  Most likely, that is or was part of the influence of collective bargaining agreements.  CBA's do often provide for such breaks.  But, for non-union employees, there is no authority for a mid morning break and a mid-afternoon break.  The Texas Employment Commission says there is no authority for such breaks.  The federal regulations do not even require a meal break.  Regulations do encourage work places to provide rest breaks, but they are not required.  See regulation. 

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Employer Must Pay for Meal Breaks if they Interrupt the Employee

Posted on July 29, 2009 by Tom Crane

 "You get a rest break every four hours," the seasoned warehouseman told me back in the 1970's.  He knew everything.  I just assumed he was right about this, too.  But, since then, I have never seen anything in law or regulation stating that workers were entitled to a 15 minute break every 4 hours.  But, there is a regulation encouraging employers to provide a rest break every so often.  "Encouraging" is not the same as requiring.  Now, I tend to believe the rest break tradition was simply a vestige of the days when collective bargaining agreements were much more common. 

I also heard there was a requirement for a meal break every so many hours.  That is also not necessarily true.  But, if your employer provides a meal break, they must not interrupt you unless they are paying you for that break.  As the regulation says, if the meal break is bona fide, then it cannot be worktime.  These regulations are all enforced under the Fair Labor Standards Act. 

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