Archive for April, 2011

Employment Law Introduction

Posted on: April 21st, 2011 by SharonM No Comments

EMPLOYMENT 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 Mediator

Posted on: April 20th, 2011 by SharonM No Comments

Most 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.