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More Work, and No Sick Leave? Where is This All Going?

by Gaines West, Attorney-at-Law, West, Webb, Allbritton & Gentry

COVID has caused such anxiety on so many levels - and there seems to be no answers to the questions that keep coming up! Let me help sort out a few for you.

If your college or university seems to be piling on new responsibilities to an already overly crowded schedule for you - guess what? You aren’t alone feeling stressed out about this. Why? Because right now it is happening everywhere. Let’s see, scholarship, research and service are already at the top of your list - right? How about adding to your in-person teaching load, having to manage video conferencing class members, at the same time you are teaching in class! And oh yes, making sure that all who are in class are socially distancing! What’s next: are you going to be required to take everyone’s temperature?! When vaccines become available {ok I am an optimist}, are you going to be expected to be one of the first to be vaccinated? The questions can go on and on.

But the pivotal question is: can my employer make me do all these things - and possibly more? After all, getting and keeping tenure {ahhh yes, I am convinced that post tenure review was meant to give Deans a perverse pleasure} IS a full time job. And even if you are not on tenure track, and you are simply trying to hold on to what you’ve got, and your job responsibilities keep growing each semester - unlike your salary - there have to be some limits - right? Ok, there is the proverbial good news and bad news about all this.

First, what’s the good news? You do have a job and plenty don’t - especially right now when a job is the commodity we all need the most. Granted, your employer is likely requiring more of you today than ever before. But remember, if you don’t want the job you are in - there are plenty waiting who will gladly tackle all your responsibilities in exchange for a paycheck. So before you get “too far over your skis” with concerns about the “pile on” syndrome you may be suffering from, take a deep breath and be thankful for that job you have worked so hard to obtain. It may not be the best one out there - but it is a paycheck.

Ok, so maybe that’s not the best news you have heard lately - but wait - let me tell you the bad news: employers in Texas are KING {legally speaking}. There are some things they can’t do, like discriminate against you, or retaliate against you - but they can be mean, unfair, bullying, and whole host of other transgressions, and not get drilled at the courthouse. For public {state} employees, the state of Texas relies heavily on Sovereign Immunity to do some fancy footwork to escape liability. For private employees, your contract {if you have one} should be KING {legally speaking}. BUT, our courts in Texas generally now favor employers over employees when it comes to contract interpretation.

Here is an example: if your contract has an arbitration provision in it, the way the law is currently applied actually gives the employer the say in whether your dispute with them gets litigated at the courthouse, or arbitrated in private before an arbitrator {think Judge Judy - just in private}. This can be an important decision and potentially outcome determinative. And then there is the issue about you being an “at will” employee. Remember, state employees - even if you think you have a contract - you really don’t because there are plenty of cases that say the only body who can bind the state of Texas is the legislature - not your university. This even applies to Jimbo Fisher (head coach for Texas A&M).

I am not concluding that your employer can get away with just adding anything to your responsibilities and get away with it, but what I am saying is that they just about can. Get some legal help to interpret your situation, if you have a problem. Different jobs and different facts add up differently, so don’t be discouraged. Just know that it is ok to ask for help to figure out if you do have a legitimate complaint. One more piece of advice before I move on to sick leave - don’t wait too long to complain. Your college or university will have deadlines built into their rules that require you to complain within a certain time frame. They also will have rules on when they {your employer} must respond - BUT, courts usually find that the rules apply to you, and usually don’t apply to your employer. What I mean is a court can decide you have waived your right to complain if you don’t comply with your employer’s internal rules, but courts seldom apply that same requirement to your employer. If you have been a reader of my column for long - you know my next advice: if you are going to complain, do it early and often.

Ok, what about sick leave? There was a new federal law passed in March of this year, and signed into law by the President. What does that mean - what does it do? Does it affect pooling my sick leave? Or can my employer restrict my ability to give my sick leave to our pool for those who really need it? Let me unpack this. First, the new federal law has nothing to do with your sick leave pool.

It does however require that public and private employers alike {spoiler alert – it doesn’t apply to your private college if you have more than 500 employees} give 10 days of paid sick leave when the outage {generally} is related to COVID. There are specific qualifiers, but those are too extensive to get in to here - suffice it to say if you have COVID, or you are required to shelter in place because of COVID, or have to care for a close family member with COVID - you probably are eligible for this paid sick leave - which is in addition to your other paid leave options through your employer.

This new federal law has nothing to do with your sick leave pool - if you have one. For pooling your sick leave for state employees, I will refer you to a really good Sick Leave Donation Guide found at The State Auditor’s office put out this 12 question guide which covers the basics very well. BUT, also realize that your college or university may have its own pooling rules - the state guide is just a guide since the state law puts implementation of pool sick leave use on the state college or university, and other state agencies. So the answer is that this is all largely rule driven and it varies from school to school. The same is true for private colleges and universities. Sick leave pools are mainly a creation of what we refer to as a privilege, rather than a right. A right is something that usually can be enforced by a court, whereas a privilege is hardly ever enforceable in court. There are other laws dealing with sick leave like the Family Medical Leave Act (FMLA). It guarantees that you get to take unpaid time off without being terminated. Additionally, the Department of Labor, both state and federal, monitor (usually on a complaint basis) paid time off (PTO) Issues for both public and private employees. This is all a vastly complex area of intertwined laws, policies and guidelines. You will definitely need help navigating how a law, policy or rule may impact you. Generally, courts have few abilities to mandate anything in this area or punish an employer for failing to follow the law. While the legislation, policy and rule-making are quite extensive, there are few, if any, sanctions that an employer needs to fear for their failure to act - not only with their own rules, but also their failure to simply comply with the law.

These are challenging times for sure. Knowing and enforcing your rights can be complex and confusing. I have written before that the Human Resources Department MAY provide helpful information for you, but do not entrust confidential information to them. Remember, HR works for your boss and reports to her or him. Don’t share anything with HR that you wouldn’t want everyone to know, especially including your boss!

More work? Be glad! Stay Safe and well - and be more concerned about giving away all that sick leave you have earned - than using it!”

“The information in this column is intended to provide a general understanding of the law, not as legal advice. Readers with legal problems, including those whose questions may be addressed here, should consult attorneys for advice on their particular circumstances.”

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