Texas Employment Law - Avoiding a Retaliation Claim

Retaliation is a common complaint by an employee – and one which employers frequently lose. It is possible for an employer to be guilty of retaliation, even when there was no underlying discrimination or harassment.

“Retaliation” means that an employer may not fire, demote, harass or otherwise adversely impact or retaliate against an employee for: (1) filing a charge of discrimination, (2) participating in a discrimination proceeding, or (3) otherwise opposing discrimination. Essentially, anything that would tend to have a “chilling effect” on an employee’s decision to file a complaint or participate in an investigation is considered “retaliation.”

An employer can help avoid a claim of retaliation by refraining from taking any adverse action or attempting to discourage an employee from the following types of actions:

• filing an internal or external complaint of discrimination or harassment for himself or anyone else;
• serving as a witness in an investigation or proceeding related to another person’s complaint of discrimination or harassment;
• informing another employee of their right to file a complaint of discrimination, harassment or request for a reasonable accommodation;
• encouraging another employee to file a complaint of discrimination or harassment.

However, retaliation claims do not make an employee “fire proof.” A court must still find that the employer acted in retaliation because of the employee’s protected action. If you find yourself in a situation where an employee has engaged in protected activity, but that employee has also engaged in conduct that merits disciplinary action, or you have a business reason to re-assign or terminate that employee (such as a reduction-in-force), you should thoroughly document the non-retaliatory reasons for your decision. If you must take action within a short period of time after the employee’s protected actions (up to three or six months), you should consult with an HR or employment law specialist to determine the best way to proceed.

By: Cynthia W. Veidt, Attorney

What Do Texas Courts Consider When Determining “Primary Custody”?

As noted in a previous blog, the term “primary custody” is misleading in Texas.  The closest standard in our state is to determine which parent has the exclusive right to designate the child’s primary residence, since parents are presumed to have joint/equal parental rights and the standard possession order gives each parent an almost equal amount of possession/custodial time. 

When determining whether a parent will be appointed as a joint managing conservator (“JMC”), Texas courts look to see if there has been a history of family violence by one parent toward other members of the household.  If the court finds one parent has committed family violence, or has a history or pattern of child abuse/neglect, physical or sexual abuse, or sexual assault, that parent may not be appointed as a JMC, and the court may also limit or restrict that parent’s periods of possession/custodial time.  See Tex. Family Code § 153.004. 

Other factors include:

- The parent’s ability to give first priority to the child’s welfare;

- The parent’s ability to reach shared decisions in the child’s best interest;

- The parent’s ability to encourage and accept a positive relationship between the child and the other parent;

- The parent’s role/participation in the child’s rearing;

 - Whether appointment of the parent as JMC will benefit the child’s physical, psychological and emotional needs and development; and

- Where the parents live in relation to one another.

See Tex. Family Code § 153.134.

If one parent has clearly been uninvolved in caring for the child’s basic needs and upbringing, has not been active in the child’s daily activities and schooling, disparages the other parent or actively discourages the child from a relationship with the other parent, or abuses alcohol or other substances (legal or illegal), has frequent emotional outbursts or a demonstrated lack of self-control, or otherwise shows an inability to exercise good parental judgment, the court is less likely to appoint that parent as a JMC, and will instead consider granting “primary custody” to the other parent.

Article by Cynthia W. Veidt, Attorney

Texas Employment Law Basics for Employers: Hiring – Employees or Independent Contractors?

Many employers would prefer to consider their workers to be “independent contractors” rather than “employees.” Using independent contractors reduces payroll taxes and tax reporting requirements, provides some measure of insulation from potential liability, and eliminates the need to provide employee benefits. However, you should be very careful; simply calling someone an “independent contractor” will not protect you from potential liability. 

With increasing frequency, employers have found themselves on the wrong end of an investigation by state or federal agencies which determined that their workers do not meet the legal test to be considered independent contractors. Those employers must pay back taxes, penalties, and interest related to their newly-designated employees.

There is a test with about twenty (20) factors used by the government and Texas courts when determining whether someone is an independent contractor. It’s a very fact-specific analysis, in other words – it depends on each individual situation. But in general, a true “independent contractor” works independently of the employer’s control, and is usually able to work for more than one employer at any given time. If you dictate when, where and how the work is to be performed, you set the hours of work, you require full-time devotion to your business, and the worker has no ability to work for others in the same field of competition, you probably have an “employee.” 

By: Cynthia W. Veidt, Attorney

What is the Alternative to Joint Managing Conservatorship (JMCs) in Texas?

In Texas, when parents are not appointed as “joint managing conservators” or “JMCs” for their children, one parent is appointed as the “sole managing conservatory” or “SMC” – this is the parent who receives the exclusive rights to make decisions about medical care, mental health care, and educational decisions, as well as the exclusive right to determine the child’s primary residence.  See Tex. Family Code § 153.132.

The other parent is appointed as “possessory conservator” or “PC”.  This parent has a much more limited ability to make decisions about the child’s welfare and upbringing.  See Tex. Family Code § 153.192.

However, even in situations where one parent is an “SMC,” and the other parent is a “PC,” the court will enter a standard possession order under which each parent has very similar periods of possession/custodial time, unless the courts finds a compelling reason to limit the PC’s periods of possession in the child’s best interest.  Texas’ public policy (as enacted in our statutes) encourages frequent contact between a child and each parent in order to permit the child to develop a close and continuing relationship with that parent.  See Tex. Family Code § 153.251(b).

Article by Cynthia W. Veidt, Attorney

ADA and the Online World

Excellent post on our friend Ryan Garcia's Social Media Law Blog (SoMeLaw Thoughts ) about the intersection of the Americans with Disabilities Act and online commercial websites.  In particular, there is a lawsuit by an organization (National Association of the Deaf) wanting the court to order Netflix to offer closed captioning for movies on their streaming site.  Excellent history of the regulations related to closed captioning is provided, and it is worth the read.  It is written by Curtis Edmonds, an attorney and writer from New Jersey well versed on the topic.

Locating Lease Space for your Business in Texas: Things to Consider when searching for Commercial Lease Space

When searching for commercial lease space there many things to take into consideration such as, just to name a few, expenses, the lease term, parking and permitted uses and restrictions.

The total monthly cost of the lease is usually the primary concern for tenants and is determined by the type of lease you agree to.  There are two main types of leases – gross leases and triple net leases. Under a gross lease the tenant pays a set amount specified in the lease agreement while the landlord pays for all of the operating costs.  Under a triple net lease the tenant pays the set amount specified in the lease agreement plus its pro rata share of the operating expenses, which may include repair costs, insurance premiums, taxes, and utilities.  It is important for the tenant to determine up front what the anticipated expenses will be and understand that expenses could increase for various reasons such as maintenance issues or increases in taxes or utility rates.  There are also ‘hybrid’ leases that combine elements of the gross and triple net lease.

Many commercial leases will contain a personal guaranty, which means that the individuals signing the lease are also agreeing to be personally liable for all amounts due under the lease agreement.  Even though your business entity is the tenant, you will be personally responsible for the rent as well.  Some landlords may negotiate with prospective tenants if they can show a good rental history or are willing to put up collateral.

Most commercial lease space will need to be altered in some way to meet your needs, or in other words, the space will need to be “finished-out.”  The cost of finish-out may be paid by the landlord, may be the tenant’s sole responsibility, or the landlord may provide the tenant with a budget, and any extras will be charged to the tenant.  It is also important to determine whether the landlord requires that you use certain contractors for finish-out.

Other concerns will depend on the type of business you intend to operate.  Prospective tenants need to ensure there are no restrictions against operating their type of business, and they may want to ask the landlord for a restriction against other businesses similar to yours in the future to prevent competition from moving in next door.  You may need reserved parking or a sign; prospective tenants should determine in advance what they will need to operate their business and ensure the landlord will address these issues.

While commercial leases can be long and confusing, it is important to read and fully understand the lease agreement to ensure the space will meet your business needs and to prevent problems for years to come.

Prepared by Eric Rupe.  Edited by Sarah Berry, Attorney

Texas Primary Custody: What Does That Really Mean?

In Texas, courts typically appoint both parents as “joint managing conservators” or “JMCs” for their children.  What does this really mean though?

“Conservatorship” simply means the parent’s right to make certain decisions for the child, including decisions about medical care, mental health care, and educational decisions.  The presumption is that both parents should share these rights so that each has a say in important decisions concerning their child, in the absence of an emergency or other factors (which will be a topic of future blog entries here).  See Tex. Family Code § 153.131.

So, if the parents are joint managing conservators, how do we determine which parent has “primary custody?” 

Although that term is used by many parents to describe their status, it is not an actual legal term recognized in Texas.  The closest standard for determining which parent is “primary” relates to the court’s decision (or the parties’ agreement) to grant one parent the exclusive right to designate the child’s “primary residence.”  That parent is also generally the parent who has the exclusive right to receive child support. 

So, in Texas, the term “primary custody” is somewhat misleading.  Parents who are appointed as JMCs are usually under a Standard Possession Order or “SPO” where the child spends only a little more time with one parent than the other, once all the days and hours are added up.  It is even common for parents to agree to a possession order in which the children reside an equal amount of time with each parent.  In these circumstances, neither has “primary custody,” but one parent will still have the exclusive right to determine the child’s primary residence. 

Article by Austin Lawyer Cynthia W. Veidt 

Contract Cases Fare Better Than Torts Claims in Texas Appeals

Given the nature of tort reform laws in Texas, it is not surprising to find that cases on appeal related to contract disputes fared much better than cases based on tort claims.  During the Sept. 2010 to Aug. 2011 time frame, Texas Courts of Appeal reversed almost half of the lower court’s judgments based on tort claims (49%) versus a reversal rate of only one third (32%) in contract disputes.

Although this may seem like a fairly small variance, it is actually more significant than it appears at first blush. Due to enactment of Texas’ tort reform laws, the total number of tort claims has dropped significantly, as plaintiff’s counsel now choose to take more compelling cases to court. The Office of Court Administration in Texas has reported a 12% drop in the number of “injury or damage” cases filed from 2002 to 2010. So even the “better” tort claims have even odds of being reversed on appeal.

In summary, creditors should take extra pains to obtain signed agreements documenting the terms of the deal and should include a contract-based claim whenever possible. 

By: Cynthia W. Veidt

 

Source: Liberato & Rutter, “Reasons for Reversal in the Texas Courts of Appeal,” 48 Hous. L. Rev. 993 (2012).

How Does the Texas Standard Possession Schedule Handle Summer Vacations?

Under the Texas Standard Possession Schedule, distance affects the number of days of each parent’s possession during the child’s summer vacations. 

When the parents reside within 100 miles of each other, the possessory conservator (the one with whom the child does not primarily reside) has up to 30 days of possession during the summer months.  Under the default rule, the possessory conservator will have possession of the child beginning at 6:00 p.m. on July 1st until 6:00 p.m. on July 31st. 

If the parents live more than 100 miles apart, however, the possessory conservator is entitled to have possession for up to 42 days during the summer months.  Unless otherwise provided, the possessory conservator will have possession of the child beginning at 6:00 p.m. on June 14th until 6:00 p.m. on July 27th. 

By:  Cynthia W. Veidt and Erin Zeiss

What is the registered office?

The address listed for the Registered Agent is referred to as the “registered office.”  The registered office need not be a place of business for the entity.  Generally speaking, the registered agent must be capable of being served at the registered office.  For organizations serving as the registered agent, Texas law states explicitly that there must be an employee on hand during normal business hours in order to receive any process, notice or demand that is sent to the organization.  While the statute does not impose the same explicit requirements on a person serving as the registered agent, Texas law nevertheless imposes a general requirement that the registered office be a “street address where process may be personally served on the registered agent” (See Texas Business Organizations Code Section 5.201(c)(1)).

Post by Iain A. Berry, Attorney