Ways to Avoid Defamation When Disciplining Employees

Every employer has the right to create a pleasant and productive workplace. Yet this goal can be elusive when a worker acts unethically or behaves poorly toward others. If the behavior was grossly unethical or offensive and the person was an “at-will” employee, you can usually fire him on the spot. However, some misconduct claims must be thoroughly investigated.

General principles to bear in mind when disciplining employees

If immediate firing isn’t appropriate, you must handle all investigatory matters in a private manner. You should also only inform those with a formal “need to know” regarding specific information you are learning. Always make sure to act in a non-discriminatory manner. You can never let anyone go in a way that violates their civil rights or unjustly defames them.

Here are some suggested steps your business should take while resolving problems with difficult employees.

Responsible ways to discipline workers

  1. Create a written policy that states how your office will interact with employees who are accused of wrongful behavior. While you should be consistent in taking certain steps, you must clearly state that your office always reserves the right to immediately fire at-will employees when circumstances justify such actions. When an exempt employee is involved, try to provide warnings and always listen to their side of the story. It’s a good idea to place this policy in an employee handbook and to reference it upon first hiring all employees – and during all periodic work evaluations;
  2. Investigate all accusations, especially when immediate firing isn’t necessary. Be sure to handle all interviews in a private setting, stressing the confidential nature of the process. If there is written or documented proof of wrongdoing, obtain copies of the materials;
  3. Create a separate investigation file for the accused employee. You should also create notes in the person’s regular personnel file – making sure only a small number of employees can review either folder. In very rare circumstances, it may be necessary to hire an outside group to handle the investigation for you. Your Houston employment law attorney can fully explain when hiring outside investigators may be necessary;
  4. Create a clear plan for each employee’s disciplinary investigation. Avoid making accusations or labeling someone as a “thief.” Let the person know that you are investigating the claims. When meeting with the individual, always take notes and have at least one other staff member present as a witness. You may want to ask the employee to sign a statement, indicating awareness of the investigation.  In order to get an employee to sign a form, you may need to note in it that his/her signature does not constitute any admission regarding wrongful behavior – only that the person knows certain claims are being investigated. Be sure to listen carefully to any defense claims the employee may offer – but do not let any meeting become confrontational. If tempers flare, note that you will reschedule the appointment for a later time;
  5. Do not publicize the investigation. Only share limited information about it with those who have a “need to know” regarding it;
  6. Once a decision is reached regarding discipline, advise the employee. Make sure your decision is based on fully objective and reasonable grounds – and note them in your files. Document what you’ve decided to do in the regular personnel file – and reference the separate investigative file where all detailed notes are kept. Do not allow anyone access to the main investigative file who doesn’t have a right to see it. Be sure to keep all investigative files for a lengthy time period in case future lawsuits are brought against your company;
  7. If you decide to terminate an employee, do so in an orderly fashion. Allow the person to gather together all personal possessions before leaving the building in a private fashion. If the fired employee was fired due to dishonesty – or any violent or inappropriate behavior – you may want security to escort the person off the premises. To protect the fired employee’s privacy concerns (and to avoid defamatory actions), you may want the exit to occur when few other employees are present;
  8. Do not share details about any firing with other employees. Unless there was documented criminal activity that all personnel may need to know about, you have a duty to maintain privacy regarding the exact reasons why you chose to fire an employee.

Always remember that you cannot discipline an employee for taking lawful advantage of any state or federal right. This can include taking time off under the Family Medical Leave Act after you’ve approved the temporary departure – or taking a military or pregnancy disability leave.

Additional behaviors to avoid when disciplining employees

  • Never jump to conclusions about any claim. Don’t allow yourself to be greatly swayed by reports made by one or two individuals. Be sure to speak with all key witnesses and interview the employee concerned – to hear his/her perspective on what happened;
  • Always be/remain reasonable and flexible. Don’t ever over-penalize an employee for a minor infraction. Also, if you’re having to fire a more senior, exempt employee, make sure you have fully documented all proven reasons (or “just cause”) as to why the employee must leave;
  • Seriously consider documenting verbal warnings. While this may not be necessary, it’s usually a wise move. One way you can document them is to send yourself an email, noting in general terms (using a computer at work) why you had to verbally discipline an employee on a specific date;
  • During regular employee evaluations, be sure to note any disciplinary actions taken and how they’ve been resolved. Always have the employee sign the evaluation, noting that the person recalls all that’s happened and how all situations have been resolved;
  • Avoid telling an employee after being disciplined that you’re sure the person is likely to have a bright, long future with the company. A court might later view this type of language as reasonable proof that you were creating a new employment contract, one providing some type of guaranteed or continuing employment – as opposed to the at-will status the employee once had; and
  • Don’t punish workers for trying to improve working conditions or wages during breaks or at other times when “off the clock.” Rights like these are normally protected under the federal National Labor Relations Act.

If you’re concerned about how to handle any employee discipline or firing issue, please feel free to contact one of our Murray Lobb attorneys. We can provide legal advice based on the specific circumstances that you relate to us — and help you decide when you may need to hire outside investigators to handle a specific claim. We can also draft professional language for describing your employee discipline policy in your employment handbook.

Obtaining A Mechanic’s Lien in Texas

Once your company has been hired as a contractor or subcontractor to build, repair or renovate a structure for others, it may become necessary to file a mechanic’s lien on the property to ensure that you’ll be promptly paid for all your labor and materials. This type of lien must be filed with the County Recorder or Clerk in the county where the property is located. When a company fails to file this type of lien before the property worked on is sold – it can become more difficult to enforce your rights against the party who contracted with you.

As the State Bar of Texas explains in one of its publications addressing mechanic lien rights, shortly after you begin your work – and long before you ever need to send out any invoices  — you should also consider sending out two notices to the other parties to your contract. These are known as a Notice of Contractual Retainage Agreement and a Notice of Specially Fabricated Materials. 

Since mechanic’s liens can be rather detailed and are drafted a bit differently in most states, it’s always wise to obtain legal advice on how this document should be appropriately worded. However, it’s usually not best to begin trying to collect all funds owed to you by filing this type of lien. Your first step in the process of seeking payment should be to simply mail your final invoice and other pertinent statements to the party that hired your company.

Additional Steps That Should Precede the Filing of a Mechanic’s Lien

It’s a good idea to send your initial invoice and statements via certified mail so you can later document the amount of time the other party has had to pay all that’s owed. If you receive no response, you should directly call the party who initially agreed to pay your company for its work. If you still cannot obtain the money owed, you should ask your Texas business attorney to send a formal yet polite demand letter using the law firm letterhead, seeking immediate payment of all sums owed.

Once a late-paying client is aware that you have a law firm acting on your behalf, they will often submit prompt payment. If you still cannot recover all sums owed to you, be sure to ask your attorney how quickly you must file a mechanic’s lien – so that a sale of the property on which you worked cannot occur so quickly that it might compromise your rights.

Consider Filing a Lawsuit after Filing a Lien

As your lawyer will tell you, Texas is a bit different than many other states because our state’s laws providing the right to file a contractor’s lien are set forth in our state constitution. In fact, Article XVI, Section 37 of the Texas Constitution protects the rights of all mechanics, artisans and others who handle materials while building, repairing or renovating another party’s property. These rights are further set forth in Chapter 53 of the Texas Property Code.

Unfortunately, Chapter 53 is rather long and its description of your mechanic’s lien rights can be difficult to interpret at times. Nevertheless, an experienced attorney can provide you with answers to your questions that cannot be readily answered by reading that material. Common questions regarding liens often revolve around the types of contractors and subcontractors who can file a valid mechanic’s lien.

Texas law clearly indicates that most companies – even those who only briefly work on the property while planting a few trees or providing their landscaping skills — are entitled to file a lien.

Should You Also File a Lawsuit?

This is always a matter that you must discuss with your attorney. When it’s recommended, it’s normally done in addition to filing a mechanic’s lien against each of the appropriate parties to your contract. If you pursue this remedy, your lawyer will present several arguments. Chief among them will be the assertion that the party who directly hired you has breached your contract by failing to timely pay all reasonable amounts owed.

Our firm recognizes that it’s often difficult to understand all Texas mechanic’s lien rights, even if you’ve been working as a contractor or subcontractor for many years. Therefore, we welcome the chance to meet with you, so we can provide all the guidance you may need to obtain full and timely payment for all the services you have rendered to others.

Q & A: Job Accomodations Often Requested by Disabled Workers

Like most Americans, people living with chronic disabilities know that their best physical and mental health is often easiest to maintain when they’re doing meaningful work. Yet despite their strong work ethic – many of the disabled must still combat negative stereotypes that often don’t match the excellent work they do.

Fortunately, the Americans with Disabilities Act of 1990 (ADA) made it illegal for employers to discriminate against job applicants with known disabilities. The ADA applies to all employers with 15 or more employees and to all state and local government employers. The Equal Employment Opportunity Commission (EEOC) enforces all the provisions of the ADA.

Once employers become aware of the untapped talents and skills of the disabled, they still hesitate to hire people because they’re concerned about the “reasonable accommodations” they may need to make to help disabled workers function at their full capacity. However, most of the time, the special requests made by the disabled are relatively simple to handle.

Here’s a brief look at some of the questions employers often ask about properly honoring all the ADA’s provisions in the workplace.

Frequently asked questions concerning the Americans with Disabilities Act

Q:  What exactly constitutes a “disability” under this law?

A:  A job applicant’s disability is normally covered by the ADA if it involves a mental or physical impairment that substantially interferes with (or limits) an individual’s ability to handle a major activity like work.

Q:  Can my company require a job applicant to undergo a medical exam before extending a job offer?

A:  Generally, no. However, you can make a job offer that’s conditional, based on a satisfactory result of a post-offer medical exam (or inquiry) that’s required of all new employees entering in the same job category. Under certain circumstances, always best discussed in advance with your Houston employment law attorney, you can ask an applicant who has disclosed that s/he has a disability to either demonstrate the ability to perform the job’s required tasks – or at least describe how s/he will handle them due to the disability.

Q:  What constitutes a “reasonable accommodation?”

A:   Employers sometimes need to adjust or modify certain aspects of the job application process and how a job is performed so that a disabled person can readily enjoy the same rights and privileges extended to others without disabilities.

Q:  Do we have to grant preference to a disabled applicant over someone who is not disabled?

A:  No. One of the clearest examples provided by one source refers to a job where the employees may need to type rather fast. If the disabled job applicant’s best typing score (after being provided with appropriate testing accommodations) is only 50 wpm and a non-disabled applicant can type 75 wpm, the employer is completely free to hire the faster typist. Again, this holds true if fast typing skills are crucial to the job;

Q:  Can you provide concrete examples of reasonable accommodations that employers might need to provide?

A:  Yes. A sample list follows.

  1. You may need to modify how someone takes a qualifying exam, completes a training program or handles limited aspects of the job once hired. For example, a person with limited use of his hands may require special software that lets him dictate most of his work instead of typing it;
  2. You may have to honor certain lifting limitations or a requirement that someone remain seated in a regular chair most of the day. Depending on the disabled person’s special needs, particularly if she’s suffering from a spinal cord injury, you may need to provide an ergonomically correct chair. Of course, employers can object to some requests, if they can prove that purchasing the required equipment would likely impose an undue hardship on them;
  3. It may be necessary to allow a disabled person to work from home. Some disabled people need to work in either extremely high- or low-light environments. Others may need to telecommute so they can readily take certain medications — or periodically change, adjust or empty various medical devices they must wear. Still other employees may need to lie down and periodically rest their bodies due to various spinal cord or traumatic brain injuries that make sitting upright for lengthy periods of time too compromising or painful.

Please note that regardless of whether the disabled employee works at home or in a company’s office, no employer is required to lower their standards for the quality of work being done – nor lower their overall production standards;

  1. It may help to change an employee’s work schedule. This can help the disabled person perform the required tasks at a time of day or night that may be much more conducive for doing his/her best work;
  2. You may need to make special scheduling adjustments to help an employee with a known psychiatric or mental health impairment. This might include excusing the person from working rotating shifts; allowing the individual to take extra time to rest during the lunch hour — and making sure the employee has a work schedule that allows for regular therapy appointments during the day;
  3. It may be necessary to provide a TTY (text telephone) system to a worker who has suffered a significant hearing loss that’s been formally recognized as a disability;
  4. You may need to authorize a short-term leave from the job. This type of disability request will always revolve around special circumstances. For example, if a worker and his/her doctor both believe that such a leave is necessary to help improve the person’s health and ability to work, this might be useful. However, employers are not required to bear undue hardships and disrupt overall workflow by leaving critical positions unfilled for lengthy periods of time.

As all this material indicates, meeting ADA standards is usually a straightforward process. Odds are, you’ll soon discover that hiring disabled employees is a smart move since they’re normally highly qualified and eager to succeed.

Please feel free to contact one of our Murray Lobb attorneys so we can assist you as you try to conform with all the ADA’s provisions – while also creating a pleasant job atmosphere for all your employees.

7 Good Reasons for Starting a New Business in Houston

Although Hurricane Harvey took far too many lives and delivered devastating blows to Houston’s economy and infrastructure back in 2017, the city has since rebuilt much of what was lost and is once again helping many entrepreneurs start new companies.

Some outsiders unfamiliar with the Lone Star State’s “can-do” attitude are a bit surprised to hear this good news. After all, Hurricane Harvey flooded 165,000 homes in Harris County — and dumped more rain in the Houston area than any other storm in recorded U.S. history.

Yet despite the $80 billion or more in damages, Houston is busy thriving again. In fact, the city’s growing economy surely played a role in CNBC’s decision to name Texas the best state for business in 2018. The following list sets forth seven key advantages that are enticing various entrepreneurs to start their companies here.

Strong reasons why Houston is fully ready to help “grow” your new business

  1. The city is home to excellent business incubators and accelerators. They include the Houston Technology Center (HTC), once referred to by Forbes as one of “Ten Technology Incubators Changing the World.” In fact, Texas has ranked HTC as its largest technology business incubator and accelerator. Other incubators in the city include Station Houston and Fruition Technology Labs.

Back in 2015, our Texas Governor’s Office created a statewide list of business incubators that may also still prove helpful. Regardless of the type of product or service you’re trying to develop, you should be able to find an incubator in Houston that can help you creatively launch your business. Most of them offer unique resources – and can help you locate venture capitalists and others interested in investing in new companies.

  1. Based upon foreign tonnage, Houston remains the biggest port in the country. Back in 2016, the port handled 68% of all the Gulf Coast’s container traffic. You can ship your goods just about anywhere in the world from this port;
  1. Forbes’ 2018 list of best employers included eight (8) based in Houston. If you start a company here and regularly network with other corporate leaders, you may easily get the chance to learn how these other highly successful businesses are managing to provide the best working environments for their employees;
  1. There’s plenty of highly desirable office space available for businesses of every size. Furthermore, it’s often easy to find “co-working spaces” that can readily meet the needs of smaller companies with limited budgets;
  1. Houston remains a business-friendly city with leading companies representing a wide swath of industries. Depending on which business incubator or accelerator you choose to join, there’s a strong chance you’ll have the chance to network with leaders in the fields of energy, healthcare, aerospace, nanotechnology and information technology – just to name a few;
  1. The cost of living is reasonable – and there are no state taxes in Texas. Many Houston entrepreneurs choose to live in affordable suburbs such as Webster, Stafford, Katy, Deer Park and Brenham. Statistics indicate that many thriving new businesses are also run in those same areas;
  1. Houston has a well-developed and diverse transportation system. METRORail, busses, freeway systems and other options provide reasonable means for everyone to live and work in this large metropolitan city. With careful planning, you should be able to get to meetings across town without delay on most days;

If you have any questions about a business that you’d like to start, please contact one of our Murray Lobb attorneys. It’s been our privilege to provide general business and legal advice to entrepreneurs creating new companies for many years. When you get in touch, we can also help you decide which type of business structure will best serve your needs.

Think Twice Before Hiring Close Family Members & Friends

Creating a positive work environment always requires careful planning. Everyone must feel equally valued to do their best work. While it can be tempting to hire a close family member or friend who’s highly qualified, you must carefully consider how well the new person might fit in with your current employees.

Fortunately, there are some steps you can take to minimize potential problems. However, before making this type of choice, you should always confer with your business partners and hiring manager about the types of risks set forth below.

Unexpected employee jealousies & tensions can lower workplace morale

  • Current employees may fear they’ll never be given a fair chance again to compete for choice assignments and promotions once the new person comes on board;
  • Many or most of your conversations with this new individual may cause others to fear that their competing opinions will cease to matter or be respected;
  • Employee morale may suffer if your family member or friend is granted any special privileges regarding work hours, early promotions or salary;
  • Your new hire must be prepared to receive the “cold shoulder” from others. He or she must be prepared to avoid reacting in an angry or defensive manner;
  • Regular chains of command should be honored so that even your friend or family member must remain open to job performance feedback from other employees.

Ways you can try to minimize problems and help your family member or friend succeed

  • Openly discuss this hiring possibility with any equal partners in the business, as well as your hiring manager. If any of these people have serious misgivings, always consider hiring a well-qualified newcomer instead. If you’re the company’s only higher-level boss, talk about this hiring idea with another close family member or friend who will confidentially let you know if you’re being reasonably objective;
  • Plan on introducing the new person in a staff meeting, clearly noting who he or she will work with on a regular basis. Also, note that the new person is eager to obtain helpful advice from all those already onboard;
  • Have a private meeting before hiring the person, explaining the fact that the two of you must exercise strong boundaries at work each day. Topics only important to the two of you concerning family members or other friends should only be discussed during non-work hours to minimize conflicts;
  • Require your family member or close friend to sign a binding work contract if all others had to sign one when hired. If no written contracts are being used, make sure this person knows that they’ve been hired for a set trial period, especially if this holds true for all other employees. Clearly explain how you’ll need to end the work relationship if too many special privileges are requested — or sub-standard work is turned in;
  • Provide early and regular feedback to your family member or regarding their work. Let this person know that you’ll probably need to let the regular supervisor also offer constructive criticism;
  • Do not tolerate any special requests that go beyond what you grant to other employees. This type of activity will undermine your good relationships with other staff members.
  • Be realistically prepared to fire this person– sooner rather than later – if others are having to do extra work since your family member or friend isn’t working hard enough.

Fortunately, carefully chosen family members and friends will try hard to succeed if you insist they treat everyone else with respect.  Just remember to remain open to what other employees may tell you about the quality of the new person’s work – and do all you can to help your friend or family member stay open to suggestions for improvement.

Please feel free to contact one of our Murray Lobb attorneys regarding any questions you may have about both routine and complicated employee management issues. We’ve had the opportunity to provide useful legal guidance to businesses of all sizes for many years now.

Why Most Adults Under Age 35 Needs an Estate Plan

Many young adults assume they won’t need a simple or comprehensive estate plan until they’ve created or inherited a sizeable amount of wealth. However, all adults, especially those who are married or have children, need estate plans to protect their legal interests.

After all, none of us know when we may suddenly become the victim of a severe pedestrian or auto accident – or receive a devastating medical diagnosis. When you have a basic Will, it can greatly simplify matters for your loved ones if you become too incapacitated to manage your own finances or even pass away.

The following information helps explain why no one should want to continue being one of the approximately 60% of American adults who are without a Will or estate plan.

While it may be a bit uncomfortable requesting documents that directly address your own possible incapacitation or death – the peace of mind you and your loved ones will gain always makes the effort worth it.

Key reasons why all younger adults can benefit from a Will or comprehensive estate plan

  • They each allow you to specifically name the beneficiaries you want to receive your real property and investment accounts. When you fail to create a Will, the state of Texas will apply its laws of intestacy to decide who will inherit everything you own. Even if you’ve only had time to pay into a 401k or other investment account for a few years, chances are you also own a car and a few other valuable possessions. Creating an estate plan lets you decide who will receive your assets – although community property and other laws will also come into play if you’re married;
  • You can designate a guardian for any minor children. There may be good reasons why your child shouldn’t go live with certain relatives if you become critically ill (or too disabled) to care for the child. A Will lets you designate one or more people to shoulder this responsibility, along with one or two back-up guardians.
  • You can designate someone else to speak for you in a medical Advanced Directive. This type of estate planning document lets a person you trust choose the specific medical care you wish to receive if you become seriously ill and can’t make decisions for yourself;
  • Your Houston estate planning attorney can provide you with valuable legal advice on how to protect your wealth against excessive taxes as your estate begins to grow. Even if you hold a degree in asset or wealth management, you’ll always need to make sure you’re using tax-efficient wealth transfers to others that fully comply with all recent changes in IRS laws and regulations. You may also want to have a trust account created to help you annually transfer wealth to specific individuals or charitable organizations;
  • Creating an estate plan helps you develop meaningful savings goals as you begin to plan for your eventual retirement. If you begin funding your retirement in your early 20s and 30s, you’ll increase the chances of being able to choose the date when you’ll retire or reduce your workload. Should you marry, having an estate plan can help you and your spouse make more informed choices about assuming a new mortgage, having children, setting aside funds to help pay for your children’s education — and possibly even one day funding a charitable trust or family foundation.

Perhaps the best part of creating an estate plan when you’re very young is that you’ll be able to reflect on how your legal documents are helping you “grow your income.” And you’ll always be able to change and update your financial goals when new life circumstances develop.

While many younger people request an entire set of estate planning documents, others are more comfortable just requesting a Will that will cover all their current, limited possessions.

Please feel free to contact one of our Murray Lobb attorneys so we can provide you with the estate planning advice you currently need. We’ll always be available to answer any questions you have and update your legal paperwork as your life changes and moves forward.

Obtaining an SBA Loan for Your Company

Although the SBA (Small Business Administration) doesn’t directly lend money to owners of small companies, it does create loan guidelines for general lenders, community development organizations and micro-lending institutions that partner with it. The SBA helps reduce the risks for these lenders as they select the most qualified small businesses seeking help.

SBA-guaranteed loans are designed to offer competitive fees and rates and applicants are usually offered helpful counseling during the application process.

You’ll know when you’ve found the best loan offer since it will provide you with one or more of the following benefits.

  • The need for little or no collateral
  • Flexible overhead requirements
  • Lower down payments

Although the stated reasons for securing a loan can vary, many companies seek loans to help them secure long-term fixed assets and basic funds to run their businesses. However, under certain circumstances, the amount you can borrow may be restricted based on how your company intends to use the money.

SBA loan funds are often sought for the following types of working capital and fixed assets

  • Revolving credit
  • Seasonal financing
  • Export loans
  • The refinancing of current business debt
  • Machinery
  • Real estate
  • Construction
  • Equipment
  • Remodeling

What types of eligibility requirements must be met to obtain a loan?

Lenders often first inquire about the parties holding ownership interests in the company, how it generates income and where it conducts business. They also inquire about the basic size of your business – based on the company’s number of employees, average annual receipts and other factors.

Of course, your ability to repay the loan is of keen interest to lenders, along with having a very secure business purpose. While a strong credit rating is highly desirable for obtaining loans, if you’re running a new company, certain start-up funds may still be made available to you.

Keep in mind that all lenders are entitled to establish their own, supplemental eligibility requirements for making an SBA-guaranteed loan – and they’re also entitled to ask about the following information.

  • If your company is properly registered and currently eligible to do business;
  • Whether your business is currently operating in the United States or one or more of its territories;
  • If you can easily document the time and money each business partner has already invested in the company;
  • If you can provide evidence of any recent, unsuccessful efforts to secure a non-SBA loan.

Can small companies operating as exporters of goods obtain loans from the SBA?

The SBA does try to help such companies. However, you’ll need to usually start your search for a possible lender by first contacting an SBA International Trade Specialist or the group’s Office of International Trade. Exporters often need help securing additional funds to cover their daily operating expenses, placing advance orders with suppliers and debt refinancing.

How should my company go about looking for a specific SBA-affiliated lender?

You’ll first need to spend five to ten minutes answering questions on the SBA website concerning your company’s present needs. You should then receive an email matching you to one or more interested lenders. It is then up to you to contact each potential lender to discuss possible rates, fees and other factors involved with structuring a loan. You’ll then need to submit applications and wait to receive responses.

If you do not receive any offers that you believe are favorable or viable, you can ask to speak to an SBA counselor again to see if there’s a better way for your company to try and secure the type of loan you need.

Please feel free to contact one of our Murray Lobb attorneys so we can provide you with further advice about obtaining business loans through SBA programs, private banks — or other reputable sources.

Many People Start New Businesses After Age 50

A large percentage of Americans launch new companies and careers after turning fifty. In fact, the term “encore entrepreneurs” has been coined to describe this steady trend. In her book, “Your Life Calling: Reimagining the Rest of Your Life,” Jane Pauley profiles some rather amazing people who’ve transformed their “retirement years.” Many of them are now realizing personal dreams that are helping others both locally and in distant parts of the world.

In a recent New York Times article addressing this topic, one man in his early sixties said that he’s so happy with his new company (which creates educational and training videos) that he may never retire. Fortunately, many larger cities often have “incubators” designed to help people get new companies off the ground — and venture capitalists who are eager to consider funding start-ups with a strong likelihood of success.

Texas remains a great state for new businesses

Every year, many media outlets rank multiple Texas cities as great places to design and build new companies. Be sure to review our Texas governor’s office publication entitled “Texas Business Incubators.”

Once you’ve got a great idea for starting a business, consider scheduling an appointment with your experienced Houston business law attorney to obtain the valuable legal advice you’ll need.

Here are some additional facts and figures that can provide useful insights into some of the best fields to enter (and others to avoid) as you move forward with getting your new company up and running.

Facts and statistics about older Americans starting new companies & becoming self-employed

  • Fifty-one percent (51%) of new start-up business owners are between the ages of 50 and 88. In fact, those aged 35-49 only start about 33% of new companies — and those age 35 or younger only form about 16% of them. Fortunately, you don’t often need a lot of money to get a new company off the ground. Many older entrepreneurs start their companies with $2,000 or less.
  • The Dallas Morning News reports that during each month in 2017, roughly 400 out of every 100,000 Texans became entrepreneurs. A large percentage of those individuals were seniors. Many of their businesses were formed in Austin, Dallas and Houston.
  • About 80% of new Texas business entrepreneurs start their businesses based upon immediately available opportunities – rather than the simple need to find work.
  • Between the year 2000 and 2016, the number of self-employed New Yorkers rose by 63.7 percent. While the country’s economic downturn back around 2008 certainly influenced that trend, it clearly isn’t the sole or main force behind it.
  • About 69% of Americans start their businesses at home.
  • Roughly 42% of all new businesses are formed as S-corporations and 23% are LLCs. Of course, a very large number of small businesses are simply run by solo entrepreneurs.

Which types of new businesses tend to succeed the most often?

  • Those offering insurance, real estate or financial services. After four years, about 58% of these are usually still viable.  Businesses in the financial realm often offer tax preparation, bookkeeping or payroll services.
  • Companies renting or leasing automotive equipment.
  • Legal service businesses.
  • Medical, dental and other healthcare services.
  • Religious organizations.
  • Specific types of administrative or company management services.

Types of new businesses that frequently fail sooner than others

  • Stores selling beer, wine and liquor
  • Auto dealerships
  • Oil and gas extraction service companies
  • Grocery stores
  • Beverage manufacturers
  • Furniture stores
  • Companies selling lawn and garden equipment

After going over your business plans with trusted family members or friends, consider reading more about the different types of business structures you can choose from and what’s normally involved with starting a new Texas company.

Hopefully, you’ll decide to join the many other Texans who’ve discovered that running a business when you’re older can be a very gratifying experience – one that can add even greater purpose to your life.

Our law firm invites adults of every age to contact one of our Murray Lobb attorneys for legal advice when either starting a new business – or simply needed help with one that’s already thriving.

Why It’s Often Wise to Moniter Employee Computer Usage

While all employees benefit from believing that their companies trust them, they must still accept the modern workplace reality that certain privacy interests must be carefully weighed against protecting valid business interests. Furthermore, employers have a need and a duty to make sure that all employees are putting in their fair share of time while completing assignments. No one should be allowed to waste valuable work time surfing the Internet or responding to personal emails while others are shouldering their proper tasks.

Do many employers regularly monitor computer and Internet usage?

At present, about 80% of large companies carefully monitor how their employees use workplace computers. They also routinely review all company website and social media postings and randomly review email exchanges and software downloads. Internet usage is also closely monitored. These practices can often help businesses avoid future lawsuits and financial losses.

Once your company decides to begin monitoring practices, you really should talk with your Houston business law attorney about all the legal concerns that can develop.

Before addressing other key issues involved with monitoring your employees, it will be helpful to note how many companies provide notice to their workers that their computer usage and Internet activities will soon be regularly reviewed.

When and how do employers bring up computer and Internet monitoring to employees?

  • At the time of hiring. You can make this a condition of accepting employment;
  • When all periodic performance evaluations are conducted. At the end of these sessions, you can produce a carefully worded document, asking for the employee’s written consent for monitoring their computer usage and business communications. It may be helpful to note how this can help protect some of their own interests — and limit the harassment that some employees might otherwise engage in if no such monitoring existed;
  • Include several paragraphs on the topic in your employee handbook. Always be sure that you later ask each new employee if they have any questions about this policy;
  • Place a warning above the company’s computer network sign-in page. This warning might reference the employee handbook – or the written consent form you should have already obtained from each employee;
  • Include a very clear and obvious “Notice” paragraph at the bottom of each outgoing email. This is an attempt to provide notice to third parties (such as non-business contacts who may include workers’ friends and family members who write to them at work – that any or all such emails are subject to monitoring and review).

Your signed consent forms should remind employees (along with the company employee handbook) that certain types of improper communications and usage of the Internet can result in disciplinary actions – and even firing.

As the following information indicates, your careful review of how employees are using their computers can prevent many serious workplace conflicts.

Harmful activities pursued by some using company computers, email and the Internet

  • Harassing behaviors. Making illegal and damaging statements in emails may constitute sexual, racial – or other forms of harassment;
  • Likewise, some types of email (or typed letters) may contain defamatory comments or illegal threats against others. No employee has the right to make serious threats against other employees or outside email recipients. These negative communications may simply imply that a specific person may lose his or her job if certain improper demands aren’t met;
  • Critical company information (like trade secrets and intellectual property) may be stolen and then shared with others;
  • Employees may download and then share copyrighted material or software, allowing others to make additional copies. This can also include the illegal download of porn materials — that are then sent off to others – or stored on your business databases;
  • Workers may accidentally share harmful email and general computer viruses while using their computers in unauthorized ways;
  • Employees may spend lengthy time periods surfing the net — unrelated to legitimate work assignments. Many companies wind up paying significant amounts of money each year for time that employees spent playing online games or enjoying other unauthorized Internet activities;
  • Some workers may maliciously sabotage company files and data for no apparent purpose;
  • Other employees may use their work computers and printers to complete tasks for their separate, private business needs.

Do employers have broad rights to monitor all employee activities at work?

Federal, state and even global laws can limit these rights. Also, most employers do not have the right to invade employee privacy by placing intrusive cameras or audio devices in restrooms or lunchrooms. However, they do have some specific rights to monitor how employees use equipment provided to them. And under certain circumstances, companies can even monitor how employees use their own personal computers while logged on to company networks and databases.

In general, any efforts you make to monitor employee communications must agree with the provisions of the federal Electronic Communications Privacy Act (ECPA). Fortunately, it does allow certain types of monitoring that fall within an acceptable “business purpose exception.” In other words, your monitoring efforts must have a direct tie to protecting a “legitimate business purpose.”

As already noted above, it’s crucial to discuss all these matters with your attorney to be sure your approach to computer monitoring will not subject your company to any employee or third-party privacy lawsuits.

What global, federal and Texas laws address all these various legal topics?

Keep in mind that companies regularly interacting with international clients or companies must be prepared to observe all the following types of governing laws.

  • The European Union General Data Protection Regulation (GDPR) – and the laws passed by many of its members’ individual states;
  • The Electronic Communications Privacy Act (ECPA)
  • The Stored Communications Act
  • Various federal wiretapping laws
  • Texas statutes and case law that your lawyer can review with you

Some general guidance is also available on the Texas Workforce Commission website.

Conclusion

Companies of every size must give all these issues considerable thought before buying any types of computer monitoring software. You’ll also need to decide which DLP (data loss prevention) solutions or strategies are most likely to meet your company’s unique needs. For example, do you want to prioritize software that helps with network traffic monitoring, keystroke logging, natural language processing – or other methods? You’ll also need to consider what types of data encryption practices may be useful to you.

Fortunately, there are many outside consultants who can help you carefully evaluate all the current computer monitoring software that’s available – so you can find the best products that fall within an affordable price range for your company.

Please feel free to contact one of our Murray Lobb attorneys so we can address your current questions about monitoring your employees’ business communications and usage of the Internet. We can also help you draft the types of privacy consent forms and other paperwork that can help you more proactively safeguard your company’s business interests.

Protecting Seniors & Disabled Loved Ones Against Financial Abuse

At present, there are 3.2 million Texans (12% of the total population) who are age 65 and older. By the year 2050, that percentage is expected to rise to twenty percent (20%). Our state also has an unusually large number of disabled citizens – close to 11.7 percent of our population fits into this category.

All these individuals are at a higher risk of being financially abused than others. Furthermore, a highly regarded MetLife Study found that the annual cost of elder financial abuse equals about $2.9 billion – and that number would be far higher if we added in the losses incurred by the disabled population

For this reason, all honest adults should do whatever they can to help their older family members and friends protect themselves against being defrauded of their money and possessions.

Defining financial abuse – and noting who most often commits this type of crime

Before reviewing how the elderly and disabled can protect themselves against financial abuse and scams, it’s important to define “financial abuse” more precisely. According to the Centers for Disease Control and Prevention, this type of abuse involves the improper or unauthorized use of an older person’s resources for the wrongdoer’s personal profit, benefit or gain

Sadly, ninety percent (90%) of those who commit fraud against the elderly (and disabled) are already people known to them. A February 2018 article published by AARP entitled, “Fraud in the Family,” provides highly useful information on this topic.

Financial safety tips to share with the elderly and disabled regarding financial fraud

  • Each person should put together a small “team” of professionals who will help them manage their funds – and meet with them every few months for this purpose. This team should include two or more of the following individuals.
  1. A reputable Houston estate planning attorney
  2. A highly trusted family member – or friend
  3. A geriatric (or disability) case manager, social worker or therapist
  4. A bonded accountant or bookkeeper

           Advise your elderly or disabled friends to meet quarterly with their small group – and

           make sure their Durable Power of Attorney, Advanced Directive for Healthcare and other

           legal documents clearly indicate that no major life decisions should be made without the

           added input of the individuals named within those documents;

  • Always confer with others before making any major purchases, sales or life decisions. Never rush into to making any new financial investments or decisions about moving into a new home or senior care facility;
  • Keep important items either in a desk or safe at home. Put copies of the person’s Will and all other estate planning documents in their desk at home – making sure that at least one family member or close friend knows where they can be found in case the person becomes suddenly ill. It’s also wise to place all blank checks and major credit cards in a locked safe at home – and only take them out on days when they will be needed to make purchases. These actions can help the senior or disabled person greatly minimize chances of fraud and identity theft. All older bills and bank statements should always be shredded;
  • Never accept any phone calls from strangers. If the person accidentally takes a call from someone they don’t know and is asked to make some type of donation, tell the caller donations or only made by check – and only in response to a written request received by mail. Never, ever give out any bank or credit card information over the phone to such callers;
  • Seniors and the disabled should always ask a family member or friend to help them run a comprehensive background check on anyone them would like to hire as a caregiver in their home or current residence;
  • All routine bank and investment statements should be reviewed with a family member, a bonded bookkeeper or a trusted close friend. Any suspicious withdrawals from such accounts should be reported right away;
  • Consider having all credit reports frozen if any unauthorized credit card accounts are opened in the person’s name. Also, find out which type of fraud alert or security watch program is best suited to daily monitoring all larger financial accounts;
  • Never readily make gifts or loans to family members or friends – especially if they are currently battling drug or alcohol addictions. Ask other people to help address this problem;
  • Finally, advise the senior or disabled person to create a workable monthly budget, allowing for unexpected medical fees and limited travel and entertainment expenses.

If you or a senior friend or disabled person need additional advice and help with these issues, please contact one of our Murray Lobb attorneys. We would be happy to answer any questions you may have concerning this topic.