The Key Terms That Should Be Included in Every Job Offer

When making job offers to new employees, it’s important to provide clear terms so you can easily onboard the new workers and give them a strong chance to succeed. While many of the terms you need to cover are quite basic, it’s necessary to include them since leaving any of them out can complicate your relationship with the new employees.

As the terms set forth below should indicate, most of them should be easy to understand. However, if you think the prospective employee may have any questions, be sure to provide the name and phone number of someone who can provide timely answers.

The following information is presented in the form of two lists. The first one provides the types of information often needed during the first week on the job – and the second list addresses more detailed employment concerns.

Always choose the most accurate words possible for these basic job offer terms

  • Job title or name of the position. Chances for promotions in your company and future starting salaries elsewhere in the future will often hinge on assigned job titles. Try to choose one that emphasizes the new worker’s level of experience or key skills.
  • Full- or part-time job. After noting this status, be sure to state whether the new person will just be working morning, afternoon or evening shifts. If the new employee must work a flexible schedule, always note that fact.
  • Exempt or non-exempt job status. This classification is very important since it determines how employees must be treated regarding overtime pay and other issues. An exempt employee does not get paid for overtime hours.
  • Supervisor’s name and job title. Often, this employee will handle or oversee all initial training that’s required and periodic job evaluations.
  • Basic duties assigned to the new hire. Although it’s best to name some of the key daily tasks the new employee must handle on a regular basis, any list of duties should always end with a statement that the list is not comprehensive – and is subject to change, based on the employer’s needs.
  • At-will employment status. This is commonly assigned to most hourly workers. Be sure to note that this means the worker can be dismissed without any advance notice or any stated reason. Employees can also leave at any time, without giving notice.
  • Base salary. This should be clearly stated, along with information about whether the person is being paid bi-weekly or monthly. You may also want to note that by accepting the position, the new hire has agreed to direct deposit – or whatever other form of payment you have told the employee is standard for the position.
  • Start date. After providing this information, you may also want to note if there will be a training or orientation session on the first day. If the job is a temporary one, you may or may not want to state when you believe it may end.
  • Current contingencies related to job offer. Whenever possible, try to complete all background criminal and reference checks before an employee’s first day. The same holds true for determining the person’s immigration status. However, since there may still be some work left to do, include a paragraph in the job offer noting that it’s contingent on all these checks producing satisfactory results. You also should make sure that they understand the offer is contingent upon signing a confidentiality agreement and/or non-compete agreement or intellectual property rights agreement if applicable.
  • Uniforms or special equipment that may be required and provided by the employer. It’s important to note if uniforms will be provided and if there’s any special equipment that the employee will be given during the first week – that must be returned upon his/her departure from the company.

Job terms related to employee benefits, company stock and other matters

  • General employee benefits. Clearly indicate how soon the new hire will be entitled to receive paid sick leave (if any) and vacation time during the first six months or year. Also, indicate when any company medical insurance coverage may begin – and how much money will be subtracted from each employee paycheck to cover it.
  • Stock shares. State the number of company stock shares, if any, that may be awarded, after a certain probationary period has been successfully completed. You can then indicate how and when additional shares can be earned.
  • Employee handbook and company standards. You should note that all disciplinary matters are based on the contents of the provided employee handbook. Any general or specific company policies or procedures unrelated to discipline should also be set forth in the handbook. It’s often wise to have new employees sign a form indicating that they have received copies of the handbook – or have been informed where to find it online.
  • State your company policy about the unauthorized use of confidential information. Be sure to tell your employees that they are not allowed to use confidential information they’ve been given by any third parties or prior employers while working for you.
  • Bonuses and commissions. It may be wise to have your attorney draw up a separate plan governing these terms – or to at least review the one you wish to give to your employees. Care must be taken to be sure all workers are treated the same regarding their chances of receiving these types of important work incentives.
  • Specific terms related to non-disclosure of any of your company’s proprietary information. It’s always wise to have your Houston employment law attorney draft all such agreements to be sure all new employees know when they start that they cannot later provide this type of information to others.
  • Non-compete terms. These usually state how long an employee must wait after leaving your company before doing any work that directly competes with your business. Check

with your Houston employment law attorney to see how you should summarize this information. It will normally be contained in a separate non-compete agreement that the employee must sign on his/her first day of work.

The two lists above (which are normally combined) will usually meet the needs of most businesses. However, depending on your company’s unique situation, you may want to add terms related to the following topics.

  • Specific work location. If you employ people in multiple cities – or in different locations within the same city — you might want to note this information to avoid confusion.
  • Proper terms of acceptance. You can indicate how the prospective new hire should respond to the offer and by what date.
  • Pre-employment medical tests or exams. Be sure to provide all necessary details and note when these must be completed.

Please feel free to call one of our Murray Lobb attorneys about any of your employment law, general business or estate planning needs. We are also available to draft the various contracts and other documents you need to use on a regular basis.

Employees Deserve a Workplace Free of Politics, Discrimination & Harassment

Most Americans are aware that many people now publicly share strong political opinions that can hurt or insult others. While we each can decide how to handle this problem in our private lives, employers face far greater challenges. Their need and right to create a highly productive and politically neutral workplace must be carefully balanced against legitimate free speech concerns, applicable state laws and the governing provisions of the NLRA (National Labor Relations Act).

Carefully developing a company policy that protects the legal rights of all concerned takes considerable planning and input from experts. Should errors be made and employees sue their employers claiming a hostile work environment has developed, the courts will have to weigh the presented evidence and decide if any damages are owed.

Balancing the right to control worker productivity with First Amendment rights

Since employee free speech rights in most workplace settings are not absolute, political neutrality must be maintained and enforced in a highly consistent manner. Simple complaint procedures must be created and employees at all levels properly disciplined when actionable abuse has occurred. Courts may have to decide whether an office atmosphere became so severe that aggrieved employees not only had the right to sue – but should be awarded financial damages.

Here’s an overview of the key topics you must address in an office policy that seeks to maintain a workplace free of harassment and discrimination based on political views. Company owners should speak with their Houston employment law attorneys about how they can create this type of policy — while still paying proper legal respect to the rights of all parties concerned.

Key points to cover in an office policy designed to limit conflicts over political speech

  • Public and private employers. Your policy must clearly reflect whether your employees are working for a private employer or some type of public or government entity;
  • Abide by the NLRA. You must make it clear that any limitations you place on “political discussions” in the workplace are in full keeping with the language and intentions of the National Labor Relations Act (NLRA). After all, there are instances both during and after work hours when some employees may have a legally protected right to discuss certain aspects of their jobs with their co-workers;
  • All employees must be covered by the policy. Indicate that all supervisory personnel will also be required to greatly limit their own discussions or expression of questionable free speech topics related to politics;
  • Provide time for discussion of the policy. This might occur during all future new employee orientation programs – or when privately meeting with each new worker in your human resource manager’s office. It would be wise to consider having each current or new employee sign a form indicating they’ve been given a chance to read over the policy and ask questions about it. Be prepared to explain that the wearing of certain types of political buttons and T-shirts at work will not be allowed;
  • Make it clear that you will respect employee needs for time to vote. You can encourage workers who won’t have time to stand in lines before or after their work hours to tell you in advance of their needs (if certain positions must be covered in their absence). However, you should try and remain as flexible as possible regarding this type of request;
  • Indicate your awareness that some employees may choose to run for public office. Should this occur, privately ask any such employee to avoid discussing a run for any non-union office during work time. However, you should acknowledge your full awareness of the person’s right to pursue this type of activity on their own time;
  • Consider revamping your overall policy against workplace harassment and discrimination. You might want to ask your lawyer to either redraft this type of policy or carefully add new provisions to it that clearly forbid workplace harassment, discrimination or retaliation based on any worker’s real (or imagined) political affiliations. This approach might help you avoid the false impression that you are attempting to place a “chill” on employee free speech rights – when you’re simply trying to extend new protections you believe are owed to all workers.

While this list is not intended to be comprehensive, it should provide you with a better idea of how important it is for you and your entire workforce to have a policy in place that addresses these crucial topics. We all deserve to work in an office that’s as politically neutral as possible so we can do our best work.

Our Murray Lobb attorneys are available to help you draft policies like this one — or any of the many contracts and other documents you need to daily run your business. We’re also available to provide legal advice on many general business, employment law or estate planning topics.

What Employers Should Cover in Their Sexual Harassment Policies

Providing employees with a carefully drafted sexual harassment policy communicates respect and helps everyone stay focused while doing their best work. To make sure you include the most critical legal passages, it’s always best to meet with your lawyer — who can also help you address any special needs of your workforce.

Here’s a brief overview of the most crucial components of this type of policy. As you read over the list, jot down any questions that come to mind since they may help you have a more productive meeting with your Houston employment law attorney.

Key information that should be included in most sexual harassment policies

  • A general statement about why you’ve created the policy. It’s important to note that your company recognizes that every employee has the right to work in a safe environment. No employee should ever be coerced into developing a sexual relationship in order to keep a job. Likewise, sexually suggestive or offensive behavior should never be inflicted on anyone;
  • A detailed definition of sexual harassment – preferably one that also provides specific examples of the different types of verbal and non-verbal behaviors that are covered. Clearly indicate that sexual harassment always involves unwelcome behavior that tends to offend, intimidate or upset others. It can even include something as simple as posting sexually suggestive cartoons and other materials in the workplace. Also note that your company will not tolerate any sexually harassing behavior between parties of the same sex;
  • A statement that your policy also provides protection against third-party harassment. Your company’s customers, clients, contractors and others will never be allowed to sexually harass your employees;
  • There must be a detailed description of your complaint procedures. Employees must be told that you’ll respond to all complaints in a private, confidential manner – and will conduct all necessary investigations in as professional manner as possible. It’s also important to note that you’ll try to have at least two senior staff members trained (and available) to handle these complaints – one woman and one man. Workers should be extended the courtesy of being able report their complaints to someone of their own gender.

Offer your employees both an informal way of processing complaints – and a more formal approach. After all, some employees aren’t interested in filing a legal claim against the alleged abuser – they’re mainly interested in stopping the abuse and returning to work (perhaps in a new department). However, you must provide clear information to each complaining party that s/he has the right to file a more formal complaint with the EEOC. Finally, you must also state that your company will not tolerate any type of retaliation against the alleged victim – regardless of the position held by the party who has been accused of the sexually inappropriate behavior;

  • Provide a commitment that your company will try to expedite the complaint process as much as possible, recognizing the needs of all involved. However, you should also explain the different types of interviews that may need to be conducted so that all parties have the chance to be fully heard. Employees must also be told that if the complaint involves unusually aggressive behavior – or if multiple complaints have been recently received regarding the same alleged offender, it may be necessary to turn over part or all of the investigation to an outside, objective party hired for that specific purpose;
  • Name some of the specific disciplinary steps that will be taken if the company’s investigation finds that harassment has occurred.
  1. The offending party will receive a written or verbal reprimand
  2. A negative performance evaluation will be placed in the wrongdoer’s personnel file
  3. There may be a reduction in wages
  4. A demotion or transfer may be imposed on the wrongdoer. In some instances, the victim may be allowed to obtain a transfer;
  5. The offending party may be forced to accept an immediate suspension — or just be fired. (Make sure all these possible forms of discipline are noted in your company’s employee handbook).

Be sure your company has a policy of requiring every new employee – regardless of rank – to undergo sexual harassment training as part of their initial company orientation. Furthermore, all employees should be required to take an annual refresher course on this topic. (You may want to include a statement about this training requirement in your sexual harassment policy).

When designing or choosing a sexual harassment training program for your employees, always make sure it includes a “question and answer” segment since employees often need to ask questions to be sure they fully understand the different behaviors that co-workers may consider offensive.

Our lawyers always welcome inquiries from both new and established clients seeking advice on employment law matters. We’re also fully prepared to draft the many contracts you may need to run your business as your clients obtain the many goods and services you currently offer. Feel free to contact us so we can schedule an appointment at your convenience.

Important Legal Tips for Communicating with Disabled Employees

Since everyone deserves to be treated with respect, employers must make sure that they’re communicating professionally and politely with all their disabled workers. Careless employers who speak callously with their disabled workers not only set a poor example for everyone else in the workplace – they also increase their chances of being sued for unlawful discrimination under the Americans with Disabilities Act (ADA).

Here are some other important tips that can help you create a more pleasant work environment for everyone – that’s also fully compliant with the ADA.

Examples of workplace situations that may require special communication skills

  • When someone present in a meeting has a hearing disability. Should there be an employee present with a known hearing impairment, always remind everyone to speak one at a time – and never “over” one another. That will help everyone more easily follow the conversation and possibly take notes. Of course, never refer to the person by name who may need this simple accommodation.
  • Always speak directly to the disabled person. Even when someone has a sign language interpreter, always turn and speak to the disabled person – and not their helper or other companion – whenever possible.
  • Be honest with the disabled during regular workplace evaluations. This is important so they’ll have the chance to improve their performance – and request any new accommodations they may need. They deserve an honest appraisal like everyone else. This will also limit the chances of painful misunderstandings in the future. Be willing to give them concrete ideas for how they can improve the quality of their work.
  • Be prepared to shake the hand of a disabled person – even if this means shaking their left hand and not their right one. This is a simple gesture that communicates respect and equality. You don’t need to shake the person’s hand for an extended time period.
  • Always introduce yourself when speaking with someone who is sight impaired. Be sure to also identify everyone else who is present during the conversation.
  • Never pat anyone who is very short (or in a wheelchair) on the head or shoulder. This makes all adults – and even older teens – feel a bit demeaned. We all have a right to have our “personal body space” fully respected by others.
  • Should you decide to offer a disabled person your assistance – wait briefly to find out if they would like to accept it. For example, it’s possible you may want to help someone transfer from a wheelchair or walker to a nearby chair. However, be aware that many disabled people want to move about on their own as much as possible, to maintain their sense of independence.
  • Be sure you’re addressing the disabled person in the same manner as everyone else present. Far too often, well-meaning bosses or employers may refer to the new department head who’s disabled as “Johnny” – while calling everyone else in the room by his or her last name. Be consistent with how you refer to all who are present.
  • Don’t lean on, move, or play with a disabled person’s crutches, wheelchair or walker. You may think you’re just being lighthearted – but when you do this, you’re calling attention to the person’s disability when that person may simply want to blend in with everyone else. However, if you believe it’s a safety hazard to leave a wheelchair or other assistive device where the disabled person left it, always politely ask that person if you can move it to a different location to make it easier for everyone to walk in that area. Also, be sure to tell the disabled person that you’ll personally retrieve the device when the meeting or seminar is about to end. Finally, never lean on someone’s wheelchair for support – that often makes disabled people feel like you’re violating their personal body space – and that can make them feel very uncomfortable.
  • Be very respectful when listening to a disabled person talk who has a speech impediment. Never assume you’re helping them by suddenly announcing a “translation” or “clarification” of what was just said. Instead, if you think you and others were left a bit confused by what was stated, calmly wait until the person finishes talking and say something like, “So, if I understood you correctly, you’re asking or suggesting that we start handling this account differently in this manner” – repeating what you think you heard. If you misunderstood what was said, then give the person a chance to repeat what they said earlier – or allow them to present it to you in a different way.
  • If someone you need to speak with is in a wheelchair, respectfully pull up a chair so you can speak with that individual at eye level. This conveys both respect and equality.
  • Never assume that all hearing-impaired people can read lips. Should you need to gain the attention of a hearing-impaired person who is looking off in a different direction, very lightly tap the person on his/her shoulder to gain their attention (assuming you’re not interrupting another conversation). If you’re certain someone can lip read – stop eating, drinking or smoking – so it will be easier for that person to follow what you’re saying.
  • Try to interact naturally with the disabled. Should you accidentally say something like “Did you hear that there’s an extra meeting next week?” – only to realize you said that to someone who is hearing impaired, forgive yourself. You can then point to a flyer about the meeting or write the information down on a piece of paper and hand it to the disabled person.

Always remember to stay calm and polite, even if you’re finding it hard to communicate with the disabled worker – and realize that the situation may be far more frustrating for that individual. If you’ll be speaking with one or more disabled people during a meeting, try to let them know, in advance (through a medium they can easily access like email), that you’ll be supplying everyone with a complete summary of the meeting’s highlights in a follow-up email.

If one or more workers are sight-impaired and read Braille, let them know that you’ll get a copy of the meeting notes to them in that format (if you have that capability) within one to two business days. Also, tell them that you’ll be happy to answer any questions they may have prior to their receiving their copy of that summary. Finally, whenever possible, use such terms as “hearing impaired” instead of deaf – and “sight impaired” in the place of blind.

Please feel free to get in touch with one of our Murray Lobb attorneys so we can provide you with any guidance you may need when relating to your disabled employees. We’re also available to provide you with legal advice concerning many other general business, estate planning or employment law topics. And we can draft a wide variety of legal documents on your behalf or help you revise an outdated employee handbook.

Unintentional Partnership in Texas

Question: Can two or more persons create a partnership even though they did not intend to do so?

Answer: Yes, under certain circumstances.

   Generally, under Texas law an association of two or more persons to carry on a business for profit as owners creates a partnership, regardless of whether (1) the persons intend to create a partnership, or (2) the association is called a “partnership”, “joint venture”, or other name.  Partnerships are governed by Chapter 152 of the Texas Business Organizations Code.

   What this means is that two or more people could in fact cause the creation of a partnership even though they did not intend on doing so.  The consequences of being partners is the fiduciary duty which arises between partners. The Texas Business Organizations Code also sets forth factors indicating that persons have created a partnership. These factors include:

(1) Receipt or right to receive a share of profits of the business;

(2) Expression of an intent to be partners in the business;

(3) Participation or right to participate in control of the business;

(4) Agreement to share or sharing:

       (A) losses of the business; or

       (B) liability for claims by third parties against the business; and

(5) Agreement to contribute or contributing money or property to the business.

Interestingly, an agreement by the owners of a business to share losses is not necessary to create a partnership.

   On January 31, 2020, the Texas Supreme Court held that parties can conclusively negate the formation of a partnership under Chapter 152 of the Texas Business Organizations Code through contractual conditions precedent. The condition precedent was that the “venture” would not come into effect until the respective parties’ board of directors approved the deal.  The boards of the companies never approved the venture and thus that one provision saved one of the parties almost half a billion dollars:

Texas Supreme Court upholds Court of Appeals reversal of FIVE-HUNDRED-MILLION-DOLLAR trial court verdict. In Energy Transfer v. Enterprise, the high court dealt with a clause that contained conditions precedent to forming a partnership. Enterprise and Energy Transfer, two of the top ten largest energy companies in the United States, sought to re-purpose an existing pipeline or build a new one to transfer crude oil south as opposed to north. The two companies expressly rejected creating a partnership until two conditions precedent were met: 1) execution of definitive agreements memorializing the terms and conditions of the pipeline transaction that 2) received approval from each party’s board of directors. Subsequently, when the companies failed to get shipping commitments to cover the potential costs of the pipeline, Enterprise ended talks with Energy Transfer. Enterprise would eventually go into business with ConocoPhillips. Energy Transfer, believing Enterprise and Energy Transfer entered into a partnership agreement, sued Enterprise claiming breach of fiduciary duty. (Fiduciary duty is putting the wellbeing and interest of the person for whom they are responsible above their individual interests; the duty commands exceptional loyalty of the party owing a fiduciary duty.) The trial court awarded Energy Transfer damages totaling $535,794,777.40. Enterprise appealed, and the Court of Appeals reversed the trial court’s ruling and found for Enterprise. As a result, Energy Transfer filed for review with the Texas Supreme Court. Enterprise continued to argue no fiduciary duty existed because no partnership was entered into between the parties. The Texas Supreme Court agreed. The Court, applying long-standing freedom to contract law, held that parties could require conditions precedent to the formation of a partnership notwithstanding the Texas Business Organizations Code’s five factor partnership test.

   It is the general rule that when an agreement provides a condition precedent to the formation of a partnership, it will not come into existence until the condition has been met. However, such condition precedent may be waived and, if the parties actually proceed with the business, they may be held as partners even though the condition precedent has not been satisfied.

   Chapter 152 is not the sole source of rules for determining partnership formation. The determination of formation of a partnership should “include” the five factors listed in the section. Those factors are not exclusive. Principles of law and equity supplement the statutory partnership provisions unless otherwise provided by this chapter or the other partnership provisions.

What should persons do when looking into a business venture?

   First, the parties should enter into a written agreement, which can be informal, clearly stating that the parties are contemplating a business venture, or exploring the feasibility of a business venture; and that despite negotiations with third parties, expenditures of funds towards investigating the venture, reimbursement or sharing of expenses between the parties, no partnership shall be created “unless …….” (clearly and specifically stated).

   That “unless” is the condition precedent.  The condition can be approval of a formal agreement by the board of directors of corporations, by the manager or managers of an LLC, or the signed agreement for the formation of a partnership.  The condition could be the enactment of a trade agreement with another country, or even a minimum price making up the subject matter of the venture, such as the price per bushel of corn must be “$$$” before any business venture shall be formed, or as simple as requiring the respective wives of the parties to approve the venture in writing.

   Make sure oral agreements are disclaimed and a provision that the parties disclaim any reliance upon any representation made by, or information supplied by, the other party, and waives any claims for fraudulent inducement.

Should you need help understanding the laws surrounding General Partnerships, please contact one of our Murray-Lobb Attorneys.

Workplace Evaluations: Skills, Aptitude, Psychological and Lie Detector Tests

Ideally, every job applicant should be fully tested and evaluated before being hired for any position. However, state and federal laws impose certain restraints on the specific types of tests that can be given to job seekers. While skills tests are usually the most critical and widely accepted exams, care must be taken to administer them fairly and accurately.

Here’s a general overview of the types of job applicant rights you must respect while using any of the types of tests referenced above. As will be referenced below, all tests must be given in full compliance with the Americans with Disabilities Act (ADA).

Skills and aptitude tests – evaluating clerical, computer software and other job skills

A general rule of thumb that can guide you about many tests is that they must be specific to the types of skills that a job requires on a regular basis. Therefore, it’s usually fine to find out how fast a potential clerical employee can type or how much someone knows about repairing and maintaining computer systems if you’re hiring a computer help desk employee.

While you can usually test most the job skills of the disabled, you may need to make some accommodations in how you administer such tests. Cornell University’s publication entitled, Pre-Employment Testing and the ADAis well worth reviewing to gain a better understanding of job testing requirements. Just keep in mind that certain timed tests may need to provide slightly longer completion times and accommodations may need to be extended to applicants who’ve made their special testing needs known to you, in advance.

Although general aptitude tests can still be given using multiple choice tests, great care must be taken to avoid formats that may mainly reward test-taking skills over a job candidate’s ability to properly handle future job tasks. Short-answer questions based on factual job topics may provide greater insights into a person’s capabilities.

Psychological testing of job applicants

Although some employers still place great value on these types of tests, they are no longer highly favored. Two of the chief reasons that employers are thinking twice about administering these types of tests is that they can sometimes illegally discriminate against certain job applicants or invade their privacy regarding their moral and religious beliefs.

Employers should only administer psychological profile tests that have been scientifically validated, indicating direct correlations with a worker’s job performance. Another potential problem with psychological testing is that the ADA does not allow medically oriented tests to be administered to applicants who are disabled — if it might help discern their disabilities.

In certain situations, the ADA may also require you to revise a psychological or other test if an applicant claims it tests skills related to his/her disability (such as hearing capacity) – that are not regularly required for the job.

Lie detector or “honesty” tests for job applicants and employees

In general, the federal Employee Polygraph Protection Act – with only limited exceptions – prevents employers from requiring job applicants or employees to undergo lie detector tests. While certain types of unique applicants or employees may have to take such tests – including those wanting to provide armored security services (or dispense pharmaceuticals) – restrictions must still be honored as to how such tests are administered and evaluated.

Most of the time, in the few instances when a larger employer might want to administer this type of test, it’s normally only used when there’s reasonable suspicion that an employee may have embezzled from the company or committed other workplace theft.

At present, experts on this topic indicate that it’s nearly always best to restrict the use of any type of “honesty” test to situations where an employee may need to handle cash.

Always remember that in order to protect your company or business from any possible future claims of discrimination, you must make sure that all job applicants take the required tests at the same basic time in the hiring process.

Every employer may want to create a copy of this EEOC document designed to help determine the best job candidates — while fully complying with all federal laws.

Please feel free to contact one of our Murray Lobb lawyers if you need legal advice about administering specific tests to any of your job applicants or employees. We also remain available to discuss any other legal concerns you may have – and can readily draft a wide range of contracts and other documents you may need while conducting daily transactions with your business customers and other parties.

Key Issues Targeted by EEOC in Recent Lawsuits Filed Against Employers

Periodically reviewing the most recent cases filed by the EEOC (Equal Employment Opportunity Commission) against various companies can help remind your office of the federal employment rights that must be regularly extended to all job applicants and current employees.

Far too often, employers fail to protect workers against hostile work environments and many different forms of harassment and discrimination.  Employees being sexually or racially harassed can never do their best work. This also holds true for people mistreated due to physical disabilities, religious beliefs – or their national origin. These types of illegal activities are constantly monitored by the EEOC so that equal employment rights can be guaranteed to everyone trying to get hired or hold down a job.

What follows is a brief review of some recent cases filed by the EEOC against companies they believe have violated federal employment laws. While some of these actions have been resolved, others are still awaiting a final ruling.

New EEOC cases reveal the broad spectrum of employment rights regularly enforced

  • A Dallas pregnancy discrimination case was decided against the employer. A receptionist working for Smiley Dental Walnut spoke to human resources to inform them that she was pregnant. After being ordered to tell her supervisor this news, the young woman complied. During the conversation with her supervisor – who noted that she did not wish to keep training the young woman since she might leave relatively soon — the pregnant employee was fired.

The U.S. District Court for the Northern District of Texas, Dallas Division, ruled against the employer. Attempts to settle prior to litigation failed. Injunctive relief (sought to make sure the company never repeated this same type of illegal behavior in the future) was sought and awarded – along with back pay and other damages. The company was ordered to pay $20,000 to the wronged employee;

  • Walmart was ordered to pay $5.2 million for intentional discrimination against a disabled employee. The mistreated worker had dutifully worked around his developmental disability, deafness, and visual difficulties for 16 years. However, a new store manager came in and demanded that new medical paperwork be submitted to document all the employee’s disabilities. The disabled employee was then suspended temporarily from his job.     

However, once the requested paperwork was produced, Walmart cut off further communications with the disabled man — basically resulting in his termination. The EEOC prevailed in this case in which $5 million of the award was for punitive damages;

  • Two female nurses filed an EEOC complaint about unequal pay. The women had job experience equal to that of a male nurse – yet the women were paid less. All three nurses complained about this issue. The EEOC won the case on behalf of the female nurses, noting the importance of closing the pay gap that often works against women in this country;
  • A case was filed involving discrimination based on national origin and religion. Three Pennsylvania employees from Puerto Rico were working for a caster and wheel company when they were subjected to workplace harassment based on their national origin and their religious (Pentecostal) beliefs. Oddly enough, it was the plant manager who was making the derogatory remarks when the harassed employees decided to report his illegal and upsetting behavior. The three employees were then subjected to retaliation (in the form of lesser work assignments) for complaining about the way they were being treated.

The EEOC stated in its pleadings that company managers should always act respectfully as role models—and never be the ones who harass their own employees;                                          

  • A sexual harassment lawsuit was filed on behalf of two female employees. The EEOC alleged in its lawsuit that the defendant hospitality companies created an abusive and hostile working environment for two of its female employees. The women complained about sexually rude comments and behavior directed toward them by their manager.

When the employees complained to their supervisors and others, nothing was done to improve their situation. In this case, a request was made for both compensatory and punitive damages – along with back pay for the two women. This suit is still pending;

  • A disability discrimination case was filed based on the way a hearing impaired job applicant was treated. When a problem arose during the hiring process related to the applicant’s hearing disability, the employer failed to accommodate her reasonable request to simply be interviewed in person and not over the phone. The company never responded to the job applicant’s email proposing this simple alternative.

Instead, four other applicants (who didn’t require any type of accommodation) were then interviewed and one of them was chosen for the job opening. The EEOC lawsuit requests lost wages, punitive and compensatory damages – and injunctive relief to prevent the employer from repeating this type of discrimination against other job applicants (or employees) who have disabilities in the future;

  • A racial slurs and harassment case. A man hired as a deckhand by a New Orleans transportation company was subjected to offensive racial epithets and conduct. When the man asked for help in stopping this behavior, the situation did not improve. Soon thereafter, a rope tied in the form of a noose was dropped near this harassed man on the deck where he was working.

The EEOC described these wrongful acts as “deeply offensive.” The government is seeking injunctive relief against the transportation company – along with compensatory and punitive damages — and any other relief the court decides is necessary.

Each of these new cases and decisions document how common intentional acts of workplace discrimination still are in this country. All employers should consider requiring annual training for every employee in hopes of seriously discouraging all forms of workplace discrimination and harassment.

Should you need help interpreting any of the federal (state or local) laws that are designed to protect employee rights, please contact one of our Murray Lobb attorneys. We’ll be glad to help you analyze any problems that you may have — or help you draft any new workplace contracts or employee handbook sections related to this (or any other employment law) topic.

The SBA Suggests 10 Key Steps for Starting a New Business

Once you’ve decided to start a new business, it can be tempting to simply moved forward with various tasks as they come to mind. While this may work for a few entrepreneurs, it’s always best to create an organized plan of action so you won’t waste time and cause problems for yourself that could easily have been avoided.

Fortunately, the SBA (Small Business Administration) provides excellent online materials that can help you plan the most useful way to start a new company – or expand the current reach of an existing one. Here’s a brief review of the ten important tasks that should normally be addressed first as you launch a new business.

The key steps for creating a solid foundation for your new business

  1. Decide where to locate your company. Prior to starting any market research, you’ll need to look at several cities to decide upon the best location for your business. This decision must be partly based on if you’ll be selling goods and services to your customers from a brick-and-mortar storefront or office – or if you’ll just be contacting potential customers on the phone or over the Internet. Be sure to select a location where many well-qualified job applicants live – as well as a city and state with reasonable business taxes;
  1. Develop a reliable market research plan. Once you’re certain about the goods or services your new business will sell, you must conduct market research to verify that there’s a definite need for what you’ll be selling in a specific location. This activity also involves identifying your potential customers and all known competitors; 
  2. Create a viable business plan. Most people starting a new business choose between a traditional business plan or a lean one for a basic start-up company. If you need to borrow money to finance your company, you’ll almost certainly have to provide a lender with a traditional business plan.

The traditional plan is normally very comprehensive – it describes your specific goods and services, provides a mission statement about what you seek to accomplish in the long run and names the initial team of professionals who will be running the company. It also states where the business will be located and how many employees you’ll need to hire. A traditional business plan should also describe the business structure you’ll be using, who will be handling specific tasks – and it should review your market analysis. Initial financial projections or earnings for the company should also be included.

In contrast, a lean start-up business plan may simply describe your goods and services, provide a statement about who will be running the company and state who you believe will be your most likely customers. It should also contain information about how you’ll initially finance the company and where it will be located;

  1. Make sure you have enough initial funding for the company. You and your business partners or advisors must determine how much money you’ll need to start your business. If you cannot raise this money among your business partners, then may have to try and obtain funds from venture capitalists or request a small business loan from a bank or through SBA resources. Other options include raising capital through crowdfunding or other online resources;
  2. Select the best business structure for your company. While many people run sole proprietorships if they’ll be handling all of the major company tasks themselves, others choose between forming such structures as partnerships, limited liability companies (LLCs) — or some type of corporation or cooperative;
  3. Decide upon the best name for your company. It’s a good idea to brainstorm with your partners or investors since you want to try and choose a name that clearly reflects the nature or “brand” of your business – as well as its spirit. Be aware that one of your first tasks will be to make sure the name you select is original and that it’s not already being used by anyone else;
  1. Be sure to register and protect your business name. After you’ve chosen the best name for your company, you’ll need to take steps to protect that name by properly registering it. Keep in mind that you may also need to register any trademark you’ll be using. Since additional ways of protecting your company name may also be required, you should always discuss this topic with your Houston business law attorney;
  2. You must request state and federal tax IDs. You will need to obtain an EIN (employer identification number) for many reasons. For example, you must have an EIN to open a bank account for your company and to pay taxes (among other tasks). Depending on the different states where your company will be operating, you may also need to obtain one or more state tax IDs;
  3. Obtain all required licenses and permits. Your specific type of business activity and where you’ll be working will determine the types of permits and licenses you must obtain, if any;
  4. Be sure to open one or more business accounts for your company. These most often include checking and savings accounts, credit card accounts and a merchant services account. Depending on the nature of your business and its initial size, you may be able to simply start with a checking account and then open other accounts as the need arises.

Please feel free to contact one of our Murray Lobb attorneys for legal advice as you address any or all of the various steps named above while starting a new business. We’ve had the opportunity to help many clients establish a wide variety of successful businesses in the past and are prepared to provide you will all the guidance you may need.

What Types of Deceptive Trade Practices Are Forbidden in Texas?

Too many Texas consumers regularly lose money on purchases due to misleading advertising and fraudulent business practices. When those events occur – especially when large sums of money are involved – it’s often necessary to contact the Consumer Protection Division of the Texas Attorney General’s Office. That division is charged with enforcing the Texas Deceptive Trade Practices Act (DTPA) that’s set forth in the Texas Business and Commerce Code.

A Consumer Protective Division lawyer must then investigate the consumer complaint and decide if any legal remedy like an injunction must be pursued. The wronged consumer should also consider hiring a Houston business law attorney to file a lawsuit seeking Texas DTPA damages from the merchant or company that allegedly violated the DTPA.

Here’s a brief look at those who may want to file these types of complaints and lawsuits, followed by a review of some of the commonly alleged DTPA violations — and the basic types of civil damages available to plaintiffs who win these kinds of cases.

The general categories of plaintiffs under the Texas Deceptive Trade Practices Act

  • The average, individual consumer buying property or goods. When buying a home, a car, indoor furnishings or other personal property, a consumer has the right to complete such transactions without being fraudulently manipulated by false advertising or other schemes that cause the loss of hard-earned money;
  • Those seeking repairs (or other types of service) work. Consumers must be quoted fair and accurate rates. They must also be provided with correct information about the training and experience of those who will be performing the requested services;
  • Individuals or companies seeking to close expensive business transactions, within certain established financial limitations. For example, a person or company seeking to buy a business franchise worth three hundred thousand dollars will usually be covered. However, the Texas DTPA is not intended to cover any business consumer with assets worth more than $25 million or more – or a business entity with $25 million (or more) in assets that’s controlled or owned by another business or corporation that has assets valued at or above $25 million.

Types of complaints and claims often brought under the Texas DTPA

Since highly diverse claims are covered by this statute, the following list only provides a general sampling of the complaints often alleged by consumers.

  • Being sold goods or services that were not actually made by the company that claimed to have created or provided them. In other words, the seller tried to mislead the buyer as to the true maker or provider of what was being sold;
  • Buyers were intentionally misled as to where certain goods or services originated. It’s against the law to sell goods claiming they were grown or made in a specific country when the seller knew that wasn’t true. Likewise, you cannot advertise that certain services will be provided by employees or contractors from one city or region who will be coming from another location;
  • Advertising goods or services as having the approval or sponsorship of specific individuals or groups when that’s a fraudulent claim. For example, you cannot sell certain medical devices and claim they’re backed by the American Medical Association (or a local medical group) when that’s untrue. Likewise, there can be no attempt to claim that the seller had direct ties to another specific company or government entity when that’s a fraudulent misrepresentation;
  • Selling goods or services and saying that they meet certain objective standards (or are made of specific types of materials) when that’s an intentional misrepresentation. For example, a company cannot claim that a couch was made of leather when it knew it was made of Naugahyde. Likewise, a company cannot claim all service personnel have earned specific licensing credentials – or are bonded – when it knows that’s false information;
  • Making purposeful “bait-and switch” sales. It’s a deceptive trade practice to run a print ad (or an online or televised commercial) that states that a store is selling a specific brand of products – or providing a certain grade of service by specially trained personnel – when the seller knows those facts to be false. Likewise, a company cannot claim that highly experienced contractors with over 10 years of experience are being sent to someone’s home to repair a major roof leak – when the actual workers have very little experience handling such tasks;
  • Misleading the buying public as to why certain goods are being sold at a major discount. For example, a merchant cannot claim that an accidental, large shipment of goods came in and they must now be sold at a greatly reduced price – when that merchant is really trying to unload damaged goods on unsuspecting buyers;
  • Selling a car, truck or other vehicle after rolling back the odometer. When a seller has any reason to believe that someone has reset or rolled back an odometer – or has personally done so because that part stopped recording mileage – all such facts must be fully disclosed to each potential buyer;
  • Taking advantage of the buying public after a natural disaster has been formally declared by the state’s governor. The DTPA does not allow anyone to sell goods at excessive or unfair prices, especially after a natural disaster like a flood. Therefore, no store can charge inflated prices for necessities like water, food, fuel, flashlights, batteries or medicine.

While this list isn’t comprehensive, it should provide a clear idea of the types of fraud and misrepresentation that can cause lawyers with the Texas Attorney General’s Consumer Protection Division – and individual consumers — to pursue through DTPA litigation.

Penalties or damages that can be sought for Texas DTPA violations 

As your personal lawyer will tell you, the Texas Attorney General’s public remedies may include different types of injunctions, restraining orders and penalties. Should you file a private lawsuit, the penalties awarded to you can be influenced by whether the wrongful conduct was knowingly committed. When a violation of the DTPA was “knowingly” committed, penalties are sometimes awarded at the level of three times the sum awarded for the economic damages.

If you believe your consumer rights under the Texas DTPA have been violated, you should contact one of our Murray Lobb attorneys. We can provide you with the timely advice you’ll need while we help you decide whether to file a DTPA lawsuit on your behalf.

EEOC Guidelines: Training Employees About Workplace Discrimination

To create and maintain a professional work environment, employers must make sure everyone interacts in a respectful manner. The best way to promote respect is to provide proper employee training that carefully defines discriminatory behavior and clearly states what won’t be tolerated.

Newly hired employees should always be trained, even if this must be done individually. They must learn how to recognize forbidden forms of discrimination. Periodic retraining on sexual harassment and other common forms of discrimination should also be mandatory. If you don’t already have a hard copy or online employee handbook that clearly sets forth your workplace standards on discrimination, you can ask your Houston employment law attorney to help you draft one.

Here’s a review of the types of workplace discrimination and harassment that should be clearly forbidden in writing and during oral training sessions. After presenting information on these topics to all your employees, it’s best to also provide a bit more in-depth training to your supervisors and managers who will need to handle the discipline, complaints and investigations usually involved with reported acts of alleged discrimination.

What types of workplace discrimination are most common today?

  • Treating others differently due to their race, skin color, ethnic background or country of natural origin. No job applicant or employee should ever be treated unfairly due to any of these facts or traits. When investigating this type of claim, you may need to privately admonish and inform the wrongdoer that such behavior is legally forbidden and can lead to dismissal. (In egregious cases, immediate firing may be required.) Employers should keep detailed notes about all such complaints and formal reprimands. It’s wise to always have disciplined employees sign and date forms indicating that they’ve been warned that additional acts of discrimination may lead to dismissal. All employee files and complaints must be kept safely locked up and only accessed by a few managers;
  • Discrimination based upon a person’s sex including sexual harassment or current pregnancy status. All workers must learn to respect their coworkers, regardless of another employee’s sex. Stay open to questions and provide answers that are clearly supported by your company’s anti-discrimination policies;
  • Disability status. Regardless of whether someone was born with a physical disability or acquired one later in life, every effort must be made to help that person handle his/her job, unless doing so would place an undue burden on the employer. (Requests may often involve making facilities more accessible or changing an employee’s work schedule so it will interfere less with a medical disability);
  • Age. When workers are young, it’s hard for them to believe that age discrimination is real. However, as they grow older, they’ll start noticing how the most desirable promotions are often given to younger staff members – and not to older workers. And older workers often find themselves in the groups being laid off when a company claims it’s going through hard times. This type of discrimination is often self-defeating since older workers often: (1) have excellent problem-solving skills due to all their experience, (2) usually enjoy learning new skills and helping to train newcomers – and (3) often have the lowest rates of absenteeism due to their dedication to their employers;
  • Religion. Sadly, although most American adults know that one main reason this country was founded was to extend religious freedom to all citizens, too many people today treat coworkers with disrespect when they appear to follow faith practices different than their own;
  • Discrimination related to an employee’s genetic information (or family medical history). Both state and federal laws forbid this type of discrimination. One of the federal laws is named the Genetic Information Non-Discrimination Act (GINA). Title II of GINA specifically prohibits workplace discrimination based upon an employee’s genetic information. Employers must exercise great care when hiring the employees who must handle all company medical insurance and claim forms. These workers must understand that any knowledge they accidentally gain about an employee’s medical condition(s) or family history must be held in the strictest confidence.

Special training for company managers and supervisors

An additional, separate training should be periodically presented to these employees to be sure they fully understand how to handle every discrimination complaint they receive. After all, they will be playing a key role in investigating these complaints and making sure they handle their responsibilities in strict compliance with all state and federal laws.

Be sure that these higher-level employees have made the complaint process both easy and transparent for workers. It’s their job to remind employees that they will not be punished for coming forward with claims – or acting as witnesses for those who are filing claims.

In your special training program for these workers, be sure to also address the following topics.

  • Managers must understand that detailed, investigative notes must be kept. When an employee files a complaint based on alleged acts of discrimination or harassment, you need to obtain information about each time such acts were committed and get the names of all possible witnesses. Dates and times are crucial bits of information. If more than one person was involved in the illegal behavior, be sure to write down all names – and speak with each of these individuals separately;
  • All managers and supervisors need clear definitions of what can constitute a “reasonable accommodation” for a disabled employee. It’s a good idea to review the content of your training with your attorney prior to making this type of presentation;
  • Retaliation. Inform higher-level employees that all forms of retaliation for reporting alleged acts of discrimination or harassment are strictly forbidden – and can result in liability for those involved;
  • Acceptable religious attire, hairstyles and practices. Explain to your managers what type of religious clothing is fully acceptable in the workplace. You should also tell them which hair or beard styles should be allowed, based upon an employee’s stated religious beliefs. When possible, managers should try to accommodate time off from work to attend special worship services – if doing so won’t cause an undue burden on co-workers or the company;
  • Sexual harassment. Supervisors and managers must be fully acquainted with all the types of language and behavior that can constitute sexual harassment. Remind them that offensive cartoons or signs related to sex should never be posted or circulated at work;
  • Privacy is crucial to all investigations. Remind all of those involved with investigating any claims of discrimination or harassment that they must never share any information they gain with non-investigative employees – or anyone outside of the company – since confidentiality is critical for everyone.

Please feel free to contact one of our Murray Lobb attorneys if you have any questions about how you’ve drafted portions of your employee handbook, especially sections addressing discrimination and sexual harassment. We can provide you with useful advice and are always available to help should an employee file a claim with you or the EEOC alleging any form of workplace discrimination.