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Employment Law IntroductionEMPLOYMENT LAW IN TEXAS 1.) Wrongful termination under the common law of Texas. Unless otherwise protected by contract, government employment, or labor union membership, Texas views the relationship between an employer and an employee as arising under old English law of master and servant. Under that law, the master is free to discharge the servant at any time for any reason, including no reason at all. The law seeks to balance this doctrine by stating that employees are free to quit at any time without notice. Upon termination in Texas, the usual remedy for the terminated worker is to file a claim for unemployment benefits with the Texas Workforce Commission. The employer is allowed an opportunity to respond. If it does not, benefits are granted. If the employer protests payment of benefits to the employee; then, the Workforce Commission schedules a telephonic evidentiary hearing. THE VALUE OF ATTORNEY ASSISTANCE. Whether in a contract dispute, a Civil service Commission hearing, a grievance hearing, or a Texas Workforce Commission benefits hearings, a record is made. A record is the recorded testimony of witnesses and documents that are found to be relevant and are admitted into evidence in the case. Workers, employees and citizens are usually completely unskilled in matters of sifting relevant facts from irrelevant facts, identifying relevant documents and getting them accepted into evidence, objecting to bad evidence offered by the employer, and cross examining hostile witnesses. It is therefore CRITICAL that the worker seek attorney assistance before the record is made. All appeals and further proceedings will be based on the record. 2.) Texas statutes that protect employment Texas has numerous statutes that are designed to protect the employment of workers. For instance, it is illegal to terminate an employee because he is called to jury duty or he must report for National Guard training. The statutory protection of employment that generates the most litigation is the anti-retaliatory discharge provisions of the Texas Worker’s Compensation Act. 3.) Civil rights statutes Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Texas Human Rights Act, prohibit companies that are engaged in interstate commerce from making employment decisions based upon race, religion, national origin, gender or age (over 40). Contributed by Stephen Menn Selecting a Family Law MediatorMost of the Harris County Family law courts now require mediation be completed before a final trial on the merits. The general exceptions to this are if there has been domestic abuse, or if an attorney files a motion and schedules a hearing to convince the judge that this particular case is not appropriate for mediation. Therefore, it becomes quite important as to the selection of the mediator for a given case. Just as attorneys vary in personal styles, degree of experience, hourly rates, facility in dealing with highly contested custody cases, etc., so do mediators. Some mediators do not maintain any type of private law practice but only concentrate on their area of alternative dispute resolution. Others strive to fit mediations into an otherwise hectic law practice. It is important for the attorney in a contested case to consider whether the particular facts center upon the testimony of fact witnesses or more upon business and accounting records. One mediator may be quite gifted in analyzing the personalities of the parties and what appears to be their motivations, goals, likely shortcomings and strengths at trial. Another mediator may be more oriented to reviewing the documentary evidence and putting assets and liabilities upon an Excel spreadsheet to facilitate a proposed division of property. Some mediators are quite willing to be proactive and assess a given client’s likelihood of success or failure with respect to certain issues at trial and communicate that quite openly to the client. Other mediators may view their role more akin to that of a Henry Kissinger and shuttle diplomacy whereby they just carry offers and counter-offers back and forth between the two sides. Some clients may find an aggressive mediator quite distasteful, whereas other clients may view a more passive mediator as a waste of time because that mediator is only functioning as a messenger. The likelihood of achieving an equitable settlement at mediation depends upon many factors but the selection of the mediator may well be a deciding factor. Five Important Issues on Hiring a LawyerFive important factors to consider in hiring a lawyer are the following. First, do you need a board-certified specialist or do you need an attorney experienced in the general area of law concerning your issues? Unless your case involves a highly technical area of law such as tax or patent law, you may be well served with an experienced attorney who has dealt with substantially similar cases either on a transactional or litigation basis. Discuss this concern as far as credentials and experience with the attorney at your first meeting. Secondly, ask the attorney whether it is likely that your case will have to be resolved through litigation. If so, you need to know whether the attorney has actually been the first chair or lead attorney in a trial, how many trials, and whether any of the trials were to a jury. Thirdly, you need to inquire whether there are any potential conflicts of interest between your representation and this prospective attorney. This could involve a prior representation by the attorney or his firm of a former business partner of yours, former spouse, former employer, your opposing party in this lawsuit, etc. Fourthly, you need to ask what will be the scope of representation or the planned work to be undertaken by the lawyer if you hire him or her. Will there be documents drafted, negotiations undertaken, discovery conducted, etc.? Is litigation contemplated and if so, what will be the nature of the claims and against what party or parties? Finally, you need to ask for a formal writing called a retainer agreement that will clearly set forth how the attorney will be compensated. Will it be an hourly fee, a fixed fee, a contingent fee based upon only a successful outcome, or some combination? How will costs be billed? Will a monthly billing statement be sent? Answers to all of the foregoing will establish a clear understanding between you and the prospective lawyer as to the nature of the representation being taken. For more information, call the Harris County Bar Association at 713-236-8000 or email: contact@harriscountybar.com New rules proposed for bankruptcyThe United States Bankruptcy Court for the Southern District of Texas has proposed new local rules to be effective Jan. 1, 2011. The first major category of change concerns a simplified mechanism of approval of a debtor’s plan of repayments for a Chapter 13 plan. Once the creditor’s meeting with the debtor and trustee is concluded, the trustee will file a recommendation concerning the plan proposed by the debtor. If the trustee recommends it and there is no objection timely from anyone, the judge may even confirm the plan without a further hearing or at least not require the debtor’s presence. This is a time-saver for the debtor and avoids the client having to miss work unnecessarily. The second major change concerns plan modifications necessary after a plan has already been approved. If the debtor wants to change the plan, the debtor’s attorney must either file a new amended wage order for withholding or make new electronic pay arrangements. Further, the Court plans to issued a new uniform motion to amended confirmed plans to deal with situations where mortgage amounts are changed or reset, thus changing the amount of the debtor’s plan payments. Again, the goal is to achieve consistency and benefit the debtor in having the correct amount withheld from pay to satisfy a variable mortgage and avoid being in default. Too often, various or different courts will require entirely different data to allow the approval of a plan modification and resulting different wage order. The problem with such delay is that the debtor can begin inadvertently falling behind on required mortgage payments if the debtor is in a variable rate plan and the mortgage amount has increased. A creditor’s right to object to the debtor using a plan amendment rather than a full plan modification is preserved under the proposed new rules. Court or Arbitration – Which One?When you have a choice of forums in which to litigate a dispute you can’t otherwise resolve, which is cheaper, litigation or arbitration? Which is quicker? Which is more efficient? The only completely accurate answer to all three of these questions is the lawyer’s favorite answer: it depends. Generally, litigation in any court is going to be more expensive than litigation in any arbitral forum. This is because, unlike courts, which allow liberal pre-trial discovery, most arbitrators are disinclined to allow discovery beyond exchange of documents and perhaps some responses to written questions. Depositions, usually the most expensive form of discovery, are discouraged in arbitration. However, depending upon which arbitral forum you choose and who the arbitrators are you may find that much of the discovery and motion practice that inhere in court cases will also be present, albeit to a lesser degree, in the arbitral forum. When the question changes to speed and efficiency, however, the answer is less clear. Again, usually an arbitration forum will get you to the resolution stage more promptly than most courts… |
