January 26, 2012 in Business, Legal, Legal Articles by jferris

Model Severely Injured After Walking Into Plane Propeller

A professional model from Texas recently lost a hand in an accident at an airport when she walked into a moving propeller after deplaning a small airplane at night.

She was up and walking around after only a few days in the hospital with the help of a physical therapist.

The model and fashion blogger, 23-year-old Lauren Scruggs, suffered head, shoulder and brain injuries in addition to losing her left hand. She had gone up in the small, two-seat plane to view holiday light displays around Dallas from the air. Her family speculated that she was trying to return to the plane to thank the pilot when she unknowingly walked into the spinning propeller. Scruggs is the founder of LOLO Magazine and LOLOmag.com.

Small-engine airplane pilots are saying it is rare to let a passenger out of the plane with an open propeller until the engine is cut off and the prop has come to a stop. The plane, an Aviat Husky, has an engine that is far louder than the propeller and it might have been difficult to know in the dark that the loud noise was the engine and not the prop, according to ABC News.

The pilot of the plane is a friend of the Scruggs family and Lauren’s parents have said they have no plans to take legal action against him. But passenger safety is generally regarded to be the responsibility of the pilot – even on the tarmac.

The Federal Aviation Administration is looking into the incident. There is no word whether the engine was running when Scruggs was hit or whether the propeller was powering down. Some pilots have speculated that since it did not kill her, it might have been powering down. It is rare to survive such a catastrophic event.

In many catastrophic injury cases blame can be difficult to place on anyone but the person who was injured. It has been speculated that in this case the pilot may be at fault since the propeller was still running when Scruggs left the plane.

The plane’s propeller struck Scruggs on her left side, fracturing her skull and her collarbone. She was able to open and use her right eye within days of the accident, but her left eye was still bandaged. Doctors said the left eye would be their next focus after they amputated her left hand. Scruggs damaged the globe of her left eye, but doctors were able to repair it in surgery.

Seth Wilburn writes for the Gomez Law Group, a Dallas employment lawyer and Dallas business lawyer. To learn more, visit Gomezlawyers.com.

January 12, 2012 in Business, Legal, Legal Articles by jferris

Texas Court Keeps Franchise Tax on Partnerships

The Texas Supreme Court recently ruled that a business tax does not violate the state constitution and cleared the way for lawmakers as they attempt to change the tax in 2013.

The tax enacted in 2006 was the first in the state to require partnerships to pay a franchise tax, according to Bloomberg. The tax is not meeting expectations, and raising only about $4 billion a year for schools, prisons and other functions. Texas gets most of its revenue from property taxes, but since property values have been down, the state has had a revenue shortfall.

An insurance adjuster claimed that the tax acted like an income tax on some partnerships. In Texas, voters must approve of any new income taxes. The court found that a business tax does not apply to the partners in a partnership and the tax can stand.

This is good news for tax reform groups who think the Texas Supreme Court’s decision broadens the legislature’s ability to change the tax. Lawmakers had been waiting for a decision on the tax’s constitutionality before taking up tax reform in the legislature, according to the Austin American-Statesman.

Texas law has required a popular vote to enact a state income tax since 1993. The franchise tax came about after a 2005 Texas Supreme Court ruling declared the state’s education finance system was unconstitutional.

After the state’s Supreme Court ruling, the legislature slashed property tax rates and closed a loophole that allowed some businesses to avoid the franchise tax by changing how they were formed. The original idea was that the expanded franchise tax would make up for the changed property tax, according to the Fort Worth Star-Telegram.

The new wider-ranging franchise tax hit smaller businesses. An insurance claims adjusting company called Allcat Claims Service sued the state’s comptroller’s office saying the tax amounted to an income tax on individual partners. Some small firms argued the franchise tax is complicated and puts a costly compliance burden on businesses.

The Star-Telegram also reported that school systems are suing the state again because the financing system is creating unconstitutional inequities.

The court disagreed by a vote of 7-2. One of the dissenting opinions stemmed from the state legislature’s insistence that any challenge to the tax go directly to the high court and that the court be required to address it within 120 days. Justice Don Willett ruled that the court would overstep by acquiescing to the mandate.

Seth Wilburn writes for the Gomez Law Group, a Dallas employment lawyer and Dallas business lawyer. To learn more, visit Gomezlawyers.com.

December 28, 2011 in Business, Legal, Legal Articles by jferris

Texas Moves to Number 1 For Business Climate

The Lone Star State passed North Carolina for the No. 1 spot on Site Selection Magazine’s ranking of top business climates.

Texas had been in second place behind the Tar Heel State for almost a decade, but edged to first place in November’s rankings. Texas claimed more than half of the inbound business relocations and about 40 percent of all the new jobs in the United States since 2009.

An annual study of corporate relocations by Atlas Van Lines showed 7,200 companies moved to Texas in 2010.

Part of the publication’s ranking comes from a close look at each state’s new and expanded facilities, total projects in relation to population, the state’s business tax climate and how each state did in the magazine’s “Competitiveness Ranking”, published in the spring.

The rest of Site Selection’s ranking criteria comes from comments from business owners themselves gathered in an executive survey. The publication heard repeatedly that Texas’ available workforce was a key component to choosing the state for a business location. But the magazine also heard that the state’s 2003 tort reform and comparatively low barrier to entry also played a big part. Some of the respondents said the state’s lack of an income tax played a role and others said the government simply makes it easier to do business there.

As Texas businesses climate continue to be attractive, so will Texas’ mergers and acquisitions activity. Across a span of industries from health care and technology to construction and real estate, a more vibrant business community feeds an appetite for acquisitions.

The magazine’s business climate analysis of Texas included a look at the top cities in each size category. Forbes Magazine published a list of Best Cities for Jobs. In that ranking, Texas owned the field.

In the small metro area category, Texas has three of the top five cities in the country. In the mid-sized metro area, Texas has three of the top five cities in the country and in the large metro area category, four Texas cities are in the top five in the nation, including Dallas.

The publication also looked at office space as an indicator of where companies are doing business this year. The analysis showed that Dallas is drawing relocating companies from California and the city expects more activity as the market continues to improve.

Executives at new companies, emerging companies and relocating firms all see Texas as a business-friendly environment where their business can grow and thrive, according to the magazine.

Seth Wilburn writes for the Gomez Law Group, a Dallas employment lawyer and Dallas business lawyer. To learn more, visit Gomezlawyers.com.

December 14, 2011 in Business, Legal, Legal Articles by jferris

Severance Packages Should Be Closely Reviewed

As the country continues to slog through a tough economy, there are still companies choosing to downsize and many of those companies offer severance packages as a matter of policy.

When an employee is let go and the company offers a severance package, there are a few things to remember about the process that could have an effect on that employee’s ability to move on to the next job.

Companies are not required to offer severance packages. About 60 percent of businesses in the United States have a formal severance plan policy.

Those policies are written to provide a soft landing for the exiting employee and legal protection for the company. In many instances, a severance package is the easiest way for a company to let people go quickly and quietly. Many companies require exiting employees to sign legal paperwork promising they will not sue the company for discrimination.

Attorneys suggest having a consultation before signing severance package paperwork. If there are any reasons an exiting employee may have to claim a discrimination suit against the company, the opportunity is lost once the paperwork is signed.

Company severance policies will outline who is eligible – salaried employees, hourly employees, contract workers, and more. The policy also likely explains the circumstances under which a severance is offered – involuntary reductions in staff – and what needs to happen for a severance to be withheld such as termination for cause.

The company policy likely will cover how the severance will be calculated – often a factor of length of service. And the company will have rules about what type of legal paperwork the exiting employee will be required to sign.

Severance package legal paperwork may also include non-compete clauses that could limit an employee’s ability to seek out a similar job in a similar industry.

Most corporate severance packages include some negotiable elements and exiting employees can sometimes get a better deal in the right circumstances. Compensation elements that can be negotiable include pay, unused paid time off and insurance.

All companies’ severance packages differ depending on the type of employee. For some employees, the offer will be two weeks salary. For higher-level employees it could be six months or a year’s salary. Many companies calculate an offer based on the length of service and level of employee.
Paid time off can be negotiable in some cases. If an employee has unused PTO and/or sick days, then a company may be willing to factor that into an offer. Occasionally, state law can require companies to pay for unused PTO.

Lastly, companies sometimes will require an exiting employee to waive the right to collect unemployment compensation benefits. There are many details in a severance package that should be carefully looked at it by an experienced employment attorney before signing.

Seth Wilburn writes for the Gomez Law Group, a Dallas employment lawyer and Dallas business lawyer. To learn more, visit Gomezlawyers.com.

November 29, 2011 in Business, Legal, Legal Articles by jferris

Texas Supreme Court Ruling Narrows Scope of Anti-Retaliation Law

The Supreme Court of Texas this year decided that some state employees cannot file retaliation claims if they were fired after filing for workers’ compensation.

Employees of Texas political subdivisions, or government groups that are confined by a specific geographic area like a water district, are exempt from retaliation laws set up to protect workers from being fired after filing a claim or complaint against the employer.

The court ruled in Travis Central Appraisal District v. Diane Lee Norman that Texas state law clearly leaves these political subdivisions exempt from the anti-retaliation law in the case of workers’ compensation.

In 2005, the Texas Legislature revised the Workers’ Compensation Act and broadly gave sovereign immunity to political subdivisions, according to the Insurance Journal. On this change, the judge in the case, Justice David Medina, reversed the court of appeals ruling. Because the reversal was based only on a law that focused on workers’ compensation cases, political subdivisions still are vulnerable to retaliation claims that stemmed from other filings like whistleblower suits.

The case helped to draw a sharper line between sovereign immunity and governmental immunity. Sovereign immunity protects the state and its boards and agencies, while governmental immunity protects specific political subdivisions like cities, counties and school districts.

The Travis Central Appraisal District originally held that the worker could not file a retaliation lawsuit until she had exhausted her other options administratively under TCAD regulations. The trial court rejected TCAD’s plea in part because Norman was a probationary employee to whom the grievance process may have been unavailable.

The appeals court heard the same argument from TCAD, but also considered the district’s claim that the political subdivision had immunity from her claim despite previous rulings to the contrary (City of LaPorte v. Barfield). The appeals court also rejected TCAD’s claim.

The Texas Supreme Court found that it was legislative changes to the state’s workers’ compensation act that gave immunity to the TCAD. The state’s Political Subdivisions Law requires that such entities pay workers’ compensation benefits to employees. An anti-retaliation rule was eventually adopted as part of the law.

Texas has an Anti-Retaliation Law that would have helped Norman, but Medina points out that the state has “tinkered” with the Political Subdivisions Law several times since the Barfield case, which the trial and appeals court use to decide Norman’s suit.

The Political Subdivisions Law changes include a broad statement that prevents sovereign immunity from being waived.

The Supreme Court dismissed the case and suggested that the state legislature revise the Political Subdivisions Law to be more specific in its wording.

A qualified employment attorney can help a company react to workers’ compensation claims within the law.
Seth Wilburn writes for the Gomez Law Group, a Dallas employment lawyer and Dallas business lawyer. To learn more, visit Gomezlawyers.com.

November 22, 2011 in Business, Legal, Legal Articles by jferris

OSHA Strengthens Whistleblower Investigation Manual

Employees who see violations in their workplace but are scared to bring them up because they fear for their jobs now have more broad access to The Occupational Safety and Health Administration’s whistleblower department.

OSHA made clarifications to its Whistleblower Investigation Manual in September that open up avenues of access. Complainants now can file concerns in any language orally, in writing or on OSHA’s website.

A new requirement in the updated manual instructs investigators to make every effort to interview the whistleblower.

In the past 18 months, at least two organizations contacted government officials in writing – including Assistant Secretary of Labor David Michaels and U.S. Department of Health and Human Services Secretary Kathleen Sebelius – complaining that whistleblowers were not interviewed by OSHA investigators in their own case.

The new requirement could fix that issue. The investigator’s supervisor will now have to approve the attempts made to interview the complainant, according to OSHA’s website.

The new manual clarifies investigation protocol including how to conduct and record interviews with witnesses. It also expands guidance on how to deal with uncooperative witnesses. Increased training of investigators is a big part of the revised manual.

In September, OSHA held a whistleblower investigator conference and investigators now will take a two-week training course including webinars on food safety laws and amendments to the Sarbanes Oxley Act.

Some of the more sweeping changes in OSHA’s whistleblower investigation manual are internal. The Office of the Whistleblower Protection Program now will report directly to the Assistant Secretary of the Department of Labor. Previously, the Directorate of Enforcement Programs oversaw OWPP.

“The prospective of this restructure is to increase consistency, timely investigations, and better customer service,” according to the website.

OSHA recently hired about 25 new investigators. The administration has a new line item in the FY 2012 budget for the whistleblower program with a requested $6 million increase to fund 45 more investigators.

OSHA plans to significantly increase its visibility in the areas where the group gets the most complaints to provide education and compliance help, according to the website. To make sure complaints are handled in a reasonable timeframe, OSHA also modified and strengthened the audit program. The data collection program also was modified. The administration knocked out a backlog of 150 cases, according to its website. A new directive pushes for consistent and quick appeals too.

A qualified business law and employment attorney can help your company draft policies that will comply with OSHA regulations. Should an internal matter arise, a qualified lawyer can advise on how to conduct investigations and how to handle employees so that a company adheres to the laws.

Seth Wilburn writes for the Gomez Law Group, a Dallas employment lawyer and Dallas business lawyer. To learn more, visit Gomezlawyers.com.

January 30, 2011 in Business, Legal Articles by jferris

First Transgender Judge in Texas History Arrives in Court

Phyllis Frye, formerly Philip Randolph Frye, recently became Texas’ first transgender judge. Frye was appointed by Houston Mayor Annise Parker, and unanimously approved by city council, to Associate Municipal Judge on November 17, marking an historical event for the transgender legal community.

Frye has been an active legal advocate and activist for the transgender community, championing transgender, gay and civil rights. For a long time, it was a crime in most cities across the country for anyone to cross-dress in public spaces. There have long been active city ordinances in place, which Frye helped repeal in 1980. Over 30 years ago, Frye risked to be arrested every time she entered City Hall.

As Associate Municipal Judge, Frye will be an Assistant Judge to City of Houston’s Municipal Courthouse, doing night court dockets and probable cause dockets on the weekends, and will also sit on low-level misdemeanor trials as a substitute judge.

Frye will continue to be senior partner at her law firm, Frye and Associates, who are well known for defending and advocating for the gay, lesbian, bisexual and transgendered community. So far, Frye is the third transgender judge in the nation (but the first in Texas). The other two judges are in California.

“Phyllis Frye is a very well-known radical transgender activist. We don’t think it is consistent with the values of the vast majority of the people. We think it is an anti-family lifestyle and agenda,” said Dave Welch, the executive director of Houston Area Pastor Council.

Many right-wing Christian groups were not happy to hear about Frye’s new position because they fear this might be a precursor of something much larger if and when Frye continues up the chain of judgeship, to the higher echelon of the court system.

“As we all know, municipal court judges are the first step in the elevation of different judgeships. They typically go on to civil district court judges or family court judges and beyond, so this is not a benign appointment. It’s a statement. It really is. We’ll be calling on the churches to stand up and be involved,” Welch said.

Seth Wilburn writes for the Gomez Law Group, a Dallas employment lawyer and Dallas business lawyer. To learn more, visit Gomezlawyers.com.

January 15, 2011 in Business, Legal Articles by jferris

Two Dallas Companies Cited for Lead Exposure

OSHA cited two Dallas companies, Fortune Plastic and Metal Texas LLC, for allegedly repeating violations of exposing certain employees to lead. They failed health and safety inspections at their worksites and are facing $125,000 in penalties.

A complaint was made alleging the companies were exposing their workers to lead after the workers were found to be cutting lead cables being readied for recycling. OSHA launched an inspection on May 12 and found them to be repeatedly failing to comply with OSHA requirements, such as monitoring workers’ exposure to lead at various frequencies and for not notifying or supplying workers of the monitoring results.

According to OSHA, a serious hazardous violation is one that could have caused death or serious physical harm. Serious hazardous violations are the employer’s responsibility. In some cases, employers have already known or should have known of the potential risk to which their workers are exposed.

OSHA has many procedures to manage hazardous situations, from controlling hazardous energy, to implementing safer, flexible cords and using open-sided floors and platforms. In the instance of Fortune Plastic and Metal Texas LLC, procedures to prevent exposure to lead concentration higher than 50 micrograms per cubic meter for over an eight-hour stretch were not implemented, neither were work controls to reduce lead exposure to their workers.

OSHA states that lead exposure is one of the most common overexposure elements at worksites all over the nation; therefore, they treat lead exposure as top priority. OSHA puts violating companies on a national priority list, giving them 15 business days to comply with the regulations or request a conference to argue the citations.

Lead exposure affects human bodily systems and can cause various health impairments and diseases after long, acute exposure, or even after as few as several days. Being exposed to lead over several years is referred to chronic exposure. More severe and frequent medical symptoms increase with the concentration of lead in the blood.

Symptoms of lead poisoning include loss of appetite, stomach cramps, vomiting, constipation, nausea, insomnia, general malaise, moodiness, headache, joint or muscle aches, anemia, and low libido.

Severe lead poisoning due to occupational exposures can be as serious enough to cause fatalities. Long-term, chronic overexposure can have adverse effects on many bodily systems, such as the circulatory, urinary, nervous and reproductive systems.

Seth Wilburn writes for the Gomez Law Group, a Dallas employment lawyer and Dallas business lawyer. To learn more, visit Gomezlawyers.com.

December 29, 2010 in Business, Legal Articles by jferris

Texas Wrongful Termination Verdicts are Mostly Retaliation Cases

More than half of retaliation cases consist mostly of Texas wrongful termination verdicts. A total of 63 percent of retaliation cases were filed by employees who alleged they were fired for filing workers compensation claims after being injured on the job. This has forced legislature changes. Therefore, bills are currently pending in both Senate and Assembly that could change Texas laws about wrongful termination.

Concerns of the unpredictable nature of wrongful termination claims and their increasing numbers will affect the state’s economy. The new bills intend to limit the amount of damages. They will also eliminate the cause of action for breach of contract to have it based on written employment policy in hopes of substantially reducing the volume of wrongful termination lawsuits.

However, discrimination cases will be affected if plaintiffs are required to sue under existing statutes when there is an available statutory remedy. It would force plaintiffs to sue under existing civil rights statutes, rather than the common law of wrongful termination.

Of course, termination should not be based on age, race, sex, religion, disability, pregnancy and national origin and should not use these characteristics with regard to promotions, assignments, termination and wages. It is also illegal to fire an employee for refusing to break a law, for filing worker’s compensation or discrimination claims, for following the company’s own stated policy, or in cases where it a contract states that the employer will implicitly not fire without cause.

Employers have been exposed to wrongful termination litigation from employees who have been with their company for some time. The median length of an employee’s employment when filing discrimination or retaliation cases is about seven years. Liability is lower with new employees.

It is important to note that there are things that employees can do to cover themselves in case of retaliation or wrongful termination. Documenting everything and keeping good records will help. Also, employees should take the proper channels and follow their chains of command to report incidents. They should also visit their local U.S. Equal Employment Opportunity Commission office. However, keep in mind that the EEOC and Human Resources is not the end all, be all, so contacting a qualified and experienced attorney would be the best bet to help one get the relief and compensation due for wrongful termination.

Seth Wilburn writes for the Gomez Law Group, a Dallas employment lawyer and Dallas business lawyer. To learn more, visit Gomezlawyers.com.

December 28, 2010 in Business, Legal Articles by jferris

The Texas Veterans Commission Puts Veterans to Work

Created in 1927, the Texas Veterans Commission was formed to assist veterans during the Indian Wars, Spanish American War and World I. They have continued to support and advocate for veterans since then, often by helping them get the benefits they deserve after their service. Through a series of programs they enacted, the Texas Veterans Commission makes sure that veterans are well represented to improve their quality of life and provide dignity for the sacrifices they have made.

Currently, they have employees in 75 cities all over Texas and are nationally recognized for providing veteran services to help them receive their deserved benefits such as educational benefits (GI Bill and Hazelwood Exemption) by having a close, working relationship with over 1,100 schools and employers in Texas.

The programs and services they provide include Claims Representation and Counseling, Veterans Education Program (through various chapters and federal education assistance), Texas Veterans Commission for Veterans Assistance (makes grants available for charitable and veterans organizations as well as local government agencies, etc), and Veterans Employment Services – which provides employment services to veterans. The Commission recognizes women veterans also and has begun outreach programs designed and targeted specifically for them.

The Texas Veterans Commission has now teamed up with the State Bar of Texas to start the Texas Lawyers for Texas Veterans program. The Commission will provide claims counselors to help veterans with their claims at local legal clinics all over the state. The counselors will also help out with Veterans Court, an access to justice, to help combat veterans with brain injuries and post-traumatic stress disorder with legal assistance. A Veteran’s Court branch has already been implemented and approved for Smith County.

To be eligible for representation and support through Veterans Court, a defendant must be a veteran who was honorably discharged on active duty or in the reserves. The veteran must also meet the Veteran’s Administration eligibility criteria and be a legal resident of Texas and a U.S. citizen. Also, the qualified veteran must have a pending misdemeanor or felony offense.

To find out whether you are eligible for any of the veteran programs and benefits go to the Texas Veterans Commission website at http://www.tvc.state.tx.us/.

The Gomez Law Group consist of Dallas based labor and employment attorneys that can also help veterans with their legal needs.

Seth Wilburn writes for the Gomez Law Group, a Dallas employment lawyer and Dallas business lawyer. To learn more, visit Gomezlawyers.com.