Key Facts About Obtaining Texas Guardianship Rights

People of all ages can benefit from creating a legal guardianship relationship, especially young children and disabled adults. When someone suffers major injuries in a car accident or becomes seriously ill, they often need a trusted individual to step in and manage critical matters for them. Your lawyer can draft this type of document as part of your overall estate plan.

It is important to keep in mind that guardianship status may be either temporary or permanent, depending on the circumstances. Both young children and seriously ill adults may sometimes need a long-term guardian.

Exactly how is a legal guardianship created in Texas?
This legal relationship develops after court documents are filed indicating that someone referred to as a “ward” (who is “incapacitated” by age or physical disability) needs a person appointed by the court to properly manage his/her healthcare needs or financial affairs. The person appointed to care for the ward is referred to as the “guardian.”

What follows is a closer look at the four types of guardianships available in Texas and the categories of people often designated as guardians of children or adults. The key responsibilities these court-appointed parties must often handle are also detailed – along with alternatives to naming a guardian.

A closer look at the four guardianships currently available in Texas:

  • Temporary/Emergency Guardianship. This type of appointment is made while the court

reviews all available facts to decide who should hold this position on a more permanent or ongoing basis in the future.

  • Guardian of the person and the estate. The person assigned this role must be prepared to manage all the physical care needs and property of the designated ward.
  • Guardian of the person, limited or full – this person will be responsible for handling all the daily needs their ward might have involving food, clothing, medical care, housing, and other basic requirements.
  • Guardian of the estate, limited or full. This guardian only needs to be concerned with managing a ward’s financial affairs and property.

Who is most likely to be appointed as the guardian of a child or adult ward in Texas?

When the ward is a child, the adults most likely to be granted guardianship are named below, in the order they are likely to be considered.

  • The parents
  • An adult designated as the guardian by the last surviving parent
  • Grandparents or aunts/uncles
  • A non-relative who the court believes can competently serve as the child’s guardian

When the ward is an adult, the people named below may be granted guardianship — in the order they are likely to be considered.

  • The person selected by the ward — who made the designation prior to becoming incapacitated.
  • The spouse of the ward.
  • A non-relative adult who the court decides can serve as a competent guardian.

What duties and tasks must a guardian be prepared to handle in Texas?

  • A guardian may need to post a bond with the court to guarantee that s/he will properly handle all appropriate responsibilities and duties. This bond will be treated like an insurance policy to protect the ward’s property and assets — should the guardian act inappropriately and cause financial losses to the ward’s estate.
  • A Texas guardian must be prepared to make all decisions regarding assets in the best interest of the ward. In other words, there must be no self-dealing or improper gain or profit for the guardian.
  • An appointed guardian should try to provide the best quality of goods appropriate to meet all the ward’s daily needs for food, shelter, clothing, medical care, education, and other requirements.
  • Every guardian must be prepared to file an annual account with the court.  In this document, the guardian must specifically list all the purchases and disbursements made during the prior year — using specified funds on behalf of the ward.
  • An annual inventory must be provided to the court, listing all the ward’s current assets.
  • When a ward has special or unique needs come up, it is always wise for a guardian to obtain the court’s permission to purchase the necessary goods or services – unless they pertain to immediate medical needs.

How can these same kinds of needs be met in Texas without obtaining a guardianship?

It may be necessary for your Houston estate planning attorney to create one or more of the following documents to take the place of designating an appointed guardian in this state.

  • You may need to have a Medical Power of Attorney document drafted for you, in keeping with Chapter 166 of the Texas Health & Safety Code.
  • You may want your lawyer to prepare a management trust, in keeping with the terms found in Chapter 1301 of the Texas Estates Code.
  • It may be necessary for your lawyer to create a special needs trust for you.
  • You may want your lawyer to draft a Durable Power of Attorney document that will name or appoint an attorney-in-fact or agent for you.
  • It may help to create a joint bank account for you and a trusted family member.

While the list above is not intended to be comprehensive, it should indicate that there are many other ways to meet the many needs covered by the appointment of a Texas guardian

Please feel free to contact one of our Murray Lobb attorneys so we can answer all of your questions about your estate planning needs. Our firm is also available to provide you with legal advice regarding many other general business topics — and to draft a wide variety of contracts and other documents you need to transact business daily

Why Construction Businesses Should Protect Lien Rights

With the current COVD-19 situation and the fact most businesses are shut down, despite construction being considered an essential business, we are noticing a frequency of situations where the owner has suspended payments on their construction projects. While understandable, it will only compound the financial problem. When this occurs the most important step to take as a contractor, subcontractor and/or vendor is to preserve your lien rights. 

  Protecting your lien rights may not get you paid any faster but having a valid lien will ensure eventual payment. Below are several necessitous steps to take to ensure your Lien Rights are protected.

The First Step in Protecting Your Lien Rights

  The first step in protecting your lien rights is a pre-lien notice. Specifics on the pre-lien notices depend on if the claimant is a “first-tier” subcontractor or a “second-tier” subcontractor or below.

  •   A “first-tier” subcontractor is one that has a contract with the general contractor. A “first-tier” subcontractor only has to give one pre-lien notice.  The notice must be sent to the Owner and general contractor informing them of the unpaid balance not later than the 15th day of the third calendar month following each month the labor and/or material was delivered.
  •   A “second-tier” subcontractor is one that has a contract with a subcontractor of the general contractor.  A “second-tier” subcontractor must give two pre-lien notices.  The first notice must be sent to the general contractor informing him of the unpaid balance not later than the 15th day of the second calendar month following each month the labor and/or material was delivered.  The second notice must be sent to the Owner and general contractor informing them of the unpaid balance not later than the 15th day of the third calendar month following each month the labor and/or material was delivered.

If you have a contract with the owner, you are considered an original contractor (general contractor) and no notice is required.

What to Include in the Pre-lien Notice

The notice to the owner should include the following “funds trapping” language:

“If this claim remains unpaid you may be personally liable and your property may be subject to a lien unless:

              1. you withhold payments from the contractor for payment of the claim, or

              2. the claim is otherwise paid or settled.”

The Second Step in Protecting Your Lien Rights

The next step is to file your lien affidavit in the county in which the project is located.  The lien affidavit must be filed not later than the 15th day of the fourth calendar month after the last day of the month in which you performed labor or supplied material. The statutory notices are deadlines. There is no penalty for sending the notices or filing the lien affidavit early.

What If the Claim is For Retainage?

If the claim is for retainage, a claimant must send the requisite notices and file the lien affidavit for retainage no later than the 30th day after the work was completed.

  The lawyers at Murray|Lobb Attorneys, PLLC are ready to help you with your lien perfection needs. Contact us for consideration of your specific needs. This notice is designed to be informative and no attorney/client relationship is created unless we enter into a formal agreement, hiring us as your attorney. This notice is intended to aid in guidance and is not necessarily authoritative in relation to your specific situation. Because special statutory rules apply to residential construction, this notice does not apply to residential contracts.

Steps to Take Before Searching an Employee’s Work Area or Property

When expensive company property goes missing or an employee reports that a new wallet was stolen from his desk while he briefly left his office, you will want to immediately search for the missing item. However, you can quickly encounter legal problems if your employees have not already consented to such workplace searches.

The best way to remedy this situation is to update your current employee handbook, adding a policy addressing this topic. If you do not have a handbook, it would be wise to draft one now, carefully including a provision about searches, including a statement that they will only be conducted when valid reasons make them necessary. (You should always conduct searches with at least one other supervisor with you – to help document that it was handled properly).

What follows is a brief review of search standards that may apply to different types of employees, the most common items employers often look for during searches – and the importance of never inappropriately touching any employee during a workplace search. You must also avoid detaining an employee in a manner that could be considered “false imprisonment.”

Search standards can vary, based on the employment status of the workers involved

The Texas Work Commission addresses this topic on its website, in an article titled: “Searches at Work – Legal Issues to Consider.”

           1. Legal standards that apply to state and federal government employees. Federal and state constitutional provisions prohibit subjecting these workers to any “unreasonable searches and seizures.” This prohibition is set forth in the Fourth Amendment to the U. S. Constitution, made applicable to the states through the due process clause of the Fourteenth Amendment (under the incorporation doctrine). The nature of this type of violation is discussed further below.

            2.  Standards that apply to private company employees. While the strict standards, statutes and governing case law may sound less strict for these workers, private businesses must still conduct their searches cautiously – or become vulnerable to lawsuits based on one or more of the following claims.

  • Assault and battery. This would likely involve the searched employee claiming that you wrongfully – without obtaining prior consent (or in keeping with known company policy – touched him/her wrongfully.
  • False imprisonment. You detained the worker in a manner that exceeded your rights under the circumstances.
  • Wrongful termination. You cannot fire someone when you do not find the contraband or stolen items you thought you might find. Be sure to have a clear policy in your employment handbook that outlines how many warnings an employee must be given prior to being let go. (However, if the worker is an “at-will” employee, you can terminate that person at any time, without having to state a reason or explain your actions).
  • Negligent or intentional infliction of emotional distress. Always handle search matters in a private setting – where you are not putting the employee’s reputation on the line or subjecting the person to embarrassment in front of others.  When conducting an actual search, always ask all workers in the area to take a work break and wait 15 minutes before returning to their cubicles, offices or nearby work areas.

It is also wise when conducting a search (or disciplining an employee), to have another management official present who can vouch for how everything was handled – prior to writing up a report documenting the events. You may also want to ask the employee to voluntarily sign and date the statement you write up, indicating what took place. Be sure to note that either you acted under the authority of a known workplace search policy – or that you obtained the employee’s advance permission before conducting the search.

What items are employers often looking for during a locker or work area search?

  1. Stolen property. This may belong to the company or to another employee.
  2. Drugs or alcohol
  3. Any type of dangerous weapon, including certain knives. Be sure to address all the types of weapons that employees can never bring to work in your employee handbook.

What might constitute an unreasonable search and seizure?

  1. Searching an employee’s work area or locker without attempting to provide advance notice. However, if this is a right you reserved for the company in the employee handbook, advance notice may not be required. Be sure to note that even if an employee secures his/her locker with a personal lock, you must still be given access to the contents.
  2. Conducting the search in front of the employee’s co-workers. This should always be avoided, even if the other employees must be asked to take a work break or go gather in a nearby conference room until you invite them to return.
  3. Physically touching an employee or yelling while interacting with the person. Be polite and treat the person as you would want to be treated. After all, it may be up to a court to later determine if your company owes the employee any monetary damages.

Can you ever, in any permissible way – physically search a worker’s body/clothing?

This should always be avoided at all costs. However, you can – with another management employee present in a private office – ask the employee to voluntarily empty his or her pockets. You can also ask the worker to empty out the contents of a briefcase, purse or wallet. If the person refuses to do as you ask – and you have no stated company policy in place about searches, you cannot insist that the employee do as you ask.

If you fear some serious theft has occurred, you should inform the employee of your concerns and contact the police. Should the police visit your office, you can allow them to conduct the physical search – if they determine that one is immediately necessary.

While this overview is not intended to be comprehensive, it should provide you with a basic understanding of why all workplace searches must be handled with great care.

Please feel free to contact one of our Murray Lobb attorneys to discuss this specific employment law problem – or any other — at your convenience. We are also available to help you with your general business and estate planning needs. And we can readily draft the contracts and documents that you regularly need.

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.

Creating Final, End-of-Life Instructions to Help Your Spouse

Regardless of whether you’re doing this for your spouse or another family member, it’s important to leave clear instructions on how you want your funeral and final financial matters handled. Since some of these issues can directly impact your heirs and beneficiaries, it’s best to meet with your lawyer so that every important topic is carefully addressed.

Prior to meeting with your Houston estate planning attorney, please gather together and review all the documents related to the topics referenced below. Once you arrive at your legal appointment, you and your lawyer can then discuss each of these topics in greater detail. The suggestions shared below are mainly based on ABA (American Bar Association) materials and a few online resources.

Addressing these financial matters can lessen your spouse’s (or executor’s) burdens

  • Pre-pay the costs of your burial/cremation – if you can afford to do so. Whenever possible, choose the simplest arrangements. You might want to note, in writing, that your surviving family members don’t need to prove their love by spending lavishly on either a funeral or memorial service. If you cannot pre-pay for everything, you should also address the topics noted in the next paragraph.

As your lawyer will remind you, funeral directors are normally required to provide you with a printed copy of all their costs. These lists can be useful for price-shopping. Also, warn your survivors to avoid letting funeral parlor employees who use guilt-inducing tactics. And if you’ve selected cremation, be sure that all costs involved are provided to your spouse ahead of time. Far too often, “hidden” costs are added later.

  • Create some type of emergency fund. Survivors often need extra money to cover unexpected last expenses If you haven’t converted a bank account to a POD (payable on death) status, do so now. Your lawyer can explain how this works in greater detail. Explain where such funds are being held in your letter of final instructions. While insurance policies usually pay off quickly to most beneficiaries, odd events can delay this process.
  • Make a list of all outstanding debts you know about, including all credit card accounts. Be sure to attach a list of all your assets and their present value. Also, state where all your banking and investment accounts are located, along with any IRAs.
  • Indicate where all important personal and family documents are kept, including your Will. Be sure to include all family birth certificates, your marriage license, any divorce decrees, adoption papers – or any prenuptial agreement. Likewise, note where you’ve put all insurance policies, business, bank and financial records – and 401k documents. Copies of all current pension and/or other benefit agreements should also be noted and their locations described.

And don’t forget to note where any house deeds, car titles or paperwork regarding vehicles still being paid off are located.

  • Ask your lawyer to help you create a “precatory” list of personal items. Stated simply, this is a list of personal possessions that you name and set aside for specific family members or others. These usually only have sentimental (and not financial) value.

While a precatory list isn’t often legally binding, it can help prevent dishonest family members from keeping all special keepsakes for themselves. As a recent AARP article noted, many families include individuals who are intent on defrauding everyone out of their fair share of cherished belongings – or any inheritance.

  • Be sure this final letter of instructions states how all your business interests and artistic property are to be handled. If you’re still a co-owner in a business, this may already be dictated by a contractual agreement. Take the time to review this document with your lawyer, so you can accurately state in your letter what business or control options might survive you. It’s always best to resolve such matters in writing, well before your death.

If you’re a celebrated artist of any kind, you should make proper arrangements for specific people – or perhaps an institution like an academic library or museum — to take formal possession, ownership and control of your artwork. This must be done in full keeping with all applicable copyright laws. (Try to fully explain these rights to your intended beneficiaries, long before you pass away).

Additional instructions (recommended by the American Bar Association)

The ABA suggests keeping a copy of your letter of final instructions with your Will and giving a copy of it to your lawyer. Be sure to ask your attorney to provide a copy of this letter to your surviving spouse (or other family members) immediately upon your death – in case they have lost their copy.

  • Note any specific information you want included in your obituary. This can include the naming of a charity you would like to have people give money to on your behalf. You can also ask that this money be given directly to your church or other house of worship.
  • Note where your safe deposit box is and place the key to it in the envelope with the letter, noting that it’s in there. You should also list your lawyer’s name and phone number, as well as the name and phone number of your executor.
  • Your current social security card and copies of all insurance policies. State where these are currently kept. Also, let your spouse or executor know if there may be a need for your family to renegotiate any aspect of their medical insurance coverage with your most recent employer after your death.
  • Contact information for key individuals. Create and attach a complete list setting forth the names, current addresses and phone numbers of all beneficiaries named in your estate documents, 401k plan and insurance policies.
  • Note the location of the last seven years of your tax returns.
  • Grief counseling advice. You might want to leave the specific name of a clinic or its therapists who might be able to offer counseling to your spouse. You can also suggest that your spouse check with the AARP to see whether that group currently sponsors any local support groups for recent widows/widowers.

Please feel free to schedule an appointment with one of our Murray Lobb attorneys so we can help you draft a final letter of instructions for your spouse, another relative — or your executor.

Crafting Effective Job Descriptions and Ads

Creating the type of job ads that attract large pools of highly qualified candidates takes careful thought and planning, like every other important business task. Besides providing an accurate job title and listing the main duties of a position, you need to let job applicants know if a specific job will fit in with their current lifestyle and priorities.

Of course, you must also describe the minimum job qualifications and what you require in the way of prior experience and training. And all of this must be done in a manner that carefully avoids discriminating against anyone.

While drafting a proper job description may sound a bit intimidating, it can be done with relative ease if you’ll start by making a list of the key facts you need to communicate – while still making the job sound highly desirable. The job ad itself should be considerably shorter, in keeping with the online or print forum where you’ll be placing it.

Here’s a closer look at some of the broad topics and details you should always try to include.

After picking an appropriate job title — add a clear list of essential job duties

Since all jobs tend to change a bit over time, it’s a good idea to visit briefly with the person who recently supervised the worker in the vacant position. This will let you know if your old job description needs to be updated or expanded. Next, make a list of the most common tasks the person hired will need to handle on a regular basis. Always start by listing the most time-consuming job assignments.

Also, be sure to indicate if the open job is an entry-level, mid-level or senior-level job. And you’ll need to note whether the position involves training or supervising other employees —

and what percentage of the employee’s time may be devoted to such tasks.

What type of academic background – and prior job experience – are you seeking?

To avoid potentially discriminatory language, it’s wise to indicate that you’re looking for someone with either a college degree “or equivalent experience.” Be sure to also specifically list any professional licenses or certificates that the person must have already earned. Likewise, you should clearly state whether it’s a job that may frequently require over-time, weekend shifts or travel.

When you fail to mention such factors, you’ll likely end up interviewing people who would never have applied had you provided that crucial information.

Make one list of all the required skills – and a separate list of all desired skills

If the work requires clerical skills, you might indicate a minimum typing speed and then list the specific types of software program skills required. If you need someone who is bilingual, make it very clear if you’ll expect complete fluency.

Should you believe the job requires the ability to work well under pressure while meeting strict deadlines, it’s always wise to include that information, too.

Provide a brief description of the job culture, if possible

If your company is in start-up mode, be sure to share that since there are people who know that they usually do their best work in more stable or established work environments. Likewise, if you’ll be expecting this person to always work in-house – or remotely on one or more days – try to indicate that as well since some workers either strongly prefer that lifestyle or know that they do their best work in an office setting where they can readily consult with others on a regular basis.

Consider indicating the desired new hire’s personality type and work traits

If the person you want to hire needs highly developed interpersonal skills – perhaps because it’s a receptionist or job training position — you may want to mention that as a desirable strength. Likewise, if the new employee will be conducting considerable research for your firm, it’s fine to say that you’re looking for someone with strong analytical skills and keen attention to detail.

Unique job demands or requirements

In order to avoid creating problems for yourself with the Americans with Disabilities Act and other legislation designed to protect specific job applicant and employee rights, it’s best to note unique requirements in your job ad so applicants will clearly know what’s required in advance.

Here are some job demands that should always be noted in your full job description provided to all selected applicants prior to job interviews.

  • Night shifts. Let applicants know if the new person may have to regularly tackle night shifts, in keeping with your company’s changing needs;
  • Ability to lift and/or carry small or large objects of a certain weight. People deserve to know in advance if they’ll need to lift heavy boxes or other objects on a regular basis. When possible, try to provide an accurate range of weights involved;
  • Use of personal vehicle. Be sure to note this and indicate that any job offer will be conditional, based on an applicant providing a recent copy of an acceptable driving record;
  • On-call work shifts. If this employee must be available on an on-call basis during certain days or weeks – on a regular schedule — be sure to note this since it lets those with unique family obligations (or physical limitations) know whether the job is still a desirable one for them.

If your company does federal contracting work – keep EEOC requirements in mind

When a business does this type of work, it must always note in any job ad that all applicants will receive full consideration, regardless of their color, race, sex, national origin or religion. Many companies simply note this at the end of their ads by indicating that they’re an EEO (Equal Employment Opportunity) Employer. 

Even some companies who aren’t required to include an EEOC statement include one so that their applicants will be fully aware that they’re encountered an employer dedicated to fair hiring from a fully diverse group of applicants.

Additional comments about legally risky, outdated jargon & online “keywords”

Remember to use gender-neutral labels like “salesperson” as opposed to salesman and “server” in place of waiter. Likewise, “general repair person” is better than “handyman.” It’s also preferable to indicate you’re seeking to fill a “part-time position” than to indicate that you’re looking for a college student.

Finally, give thought to obtaining direct advice – or even job-writing templates – from one of the major online job boards like Monster.com, Indeed.com or Careerbuilder.com. They can also help you with selecting the most useful “keywords” that you’ll want to include in your ad.

Please feel free to contact one of our Murray Lobb attorneys whenever you need any advice about how to properly attract and interact with job applicants – or if you need help with any employee management issues that may arise. Our firm can also supply you with any employee contracts and other general business documents.

Determining Fault After an Employee’s Accident in a Company Car

One of the most awkward moments for any worker is getting into a vehicle accident while driving a company car. Since every employee wants to be viewed as highly responsible, this type of event requires sincere humility while explaining the circumstances of the accident.

If the employee was clearly at fault and using the company car for personal reasons at the time the collision occurred – liability issues can quickly multiply – especially if a third party was injured.

Before noting some of the key factors that must be evaluated when this type of event occurs, here’s a quick review of some insurance policy definitions.

Insurance policies that may be involved when an employee has a vehicle accident

  • Commercial auto policy. The coverage or protection this type of policy offers to a company can be crucial following an accident. It’s designed to protect the business from having to cover all the personal injury expenses and property damage. Brokers often speak of this as a business auto or commercial auto policy;
  • A general liability policy. Most employers carry one of these because it offers protection against all kinds of third-party legal claims, including those that might be filed after a third party falls down and is injured on company property – or hurt during an auto accident caused by an employee driving a company car;
  • Worker’s compensation insurance. All employers of a certain size should carry this type of insurance that normally provides benefits to workers injured on the job – including those who were handling official business in a company car when a vehicle accident occurred;
  • A policy rider. An amendment to an insurance policy. Some employees who choose to use their personal cars for business add a special rider to their personal auto insurance policies to provide coverage if they get into an accident while handling company business. Depending on the employee’s relationship with the company, some employers will reimburse the employee for the added expense this type of rider adds to the employee’s basic auto insurance policy.

Once liability for the accident is determined, one or more of the policies referenced above will have to be used to cover all the injury expenses and property damage repairs.

The legal doctrine of respondeat superior and employer liability

When an employee is driving a company car at the time of an accident (while actively handling assigned business tasks) – that s/he did not personally cause – the employer will normally be responsible for paying for all the damages.  However, since various jurisdictions apply aspects of the respondeat superior doctrine differently, it’s important to check with your Houston business lawyer to find out exactly how this doctrine is applied in Texas.

Stated in general terms, respondeat superior usually indicates that the principal (employer) is normally responsible for most activities handled by the employee (agent).

One or more of the employer’s insurance policies (in addition to worker’s compensation), will normally cover medical expenses and the costs incurred due to property damage. However, insurance companies often quarrel over whether the employee was clearly handling business tasks at the time of the accident — and if s/he had current authorization to use the company vehicle.

Liability can shift when an employee was totally or partially responsible for the accident

The circumstances surrounding each accident will normally determine the exact percentage of damages that an employee must pay under his/her own policy. Whether any type of indemnity is offered to the employee usually depends on whether the third party involved caused the accident.

In most cases, an employee who caused a collision will be held fully responsible for all damages under his/her own personal auto accident policy.

However, when a third party caused the accident, there are still specific circumstances that will allow an employer to deny all liability. Several of these exceptions are set forth below.

  • The “frolic or detour” exception. If the employee was running a personal errand at the time the accident in the company car occurred, she must normally cover all the damages under her own personal auto accident policy;
  • The employee was under the influence of alcohol or drugs at the time of the accident. Once this has been conclusively established, the employer may be able to deny all liability;
  • The accident did not take place during normal business hours. However, there can be exceptions – like when a salesperson is traveling to his/her next sales destination on behalf of the company;
  • The employee was an independent contractor using his/her own vehicle. Potential liability for all types of vehicle accidents should be clearly spelled out in each employee’s company paperwork – before that individual can handle company business in any vehicle.

It’s always wise for an employee who was just in a company vehicle accident to request a timely meeting with company officials as soon as that person’s health allows. Everyone may benefit if a

compromise regarding liability can be reached – unless the employee’s behavior was clearly unacceptable.

If you have any questions about how your business or insurance provider should handle a specific type of accident involving a company car, please feel free to call one of our Murray Lobb attorneys. We can provide you with our legal opinion and possibly suggest legal paperwork you might want to have every employee sign before ever issuing any of them a company car for their use.

Always Interact Carefully with Workers on FMLA Leave

For over 20 years, the Family Medical Leave Act has helped millions of qualified employees take time off from their jobs to address serious family or personal medical issues. While it’s important to provide critical job security at such times, employers still retain the right to make important business decisions – even when FMLA rights are being lawfully exercised.

Some of the most challenging administrative issues that come up with the FMLA involve disabled employees who are covered by ADA provisions — and those who have filed worker’s compensation claims. Yet any employee’s situation can prove problematic – especially when the person has used all the FMLA time allowed – and is now requesting even more time off due to continuing medical problems.

What follows is a brief overview of an employer’s responsibility to rehire employees on FMLA leave and events that might justify firing or laying off an employee on this type of leave. The article concludes with a look at how you should respond when an employee requests additional time off after using the full 12 weeks allowed under the FMLA in a calendar year.

Must you always allow employees on FMLA leave to return to their previous positions?

The FMLA requires employers to allow workers to return to their former positions (or jobs similar in duties and pay) upon exhausting all available leave time. If a business or office covered by the FMLA fails to do this, the employee asking to return can sue for sizeable damages. However, this employee right isn’t absolute — for reasons referenced below.

What if your office had already planned to lay off everyone in the absent employee’s unit?

Employees seeking to return from FMLA leave do not have any rights that are greater than what they would have had if they had not taken leave time. In other words, if your company had already been planning to lay off everyone in the same unit as the employee who is now on leave and asking to come back – that person doesn’t have an absolute right to return.

However, you should still move forward cautiously with laying off this individual, especially if your office had not already fully documented the impending layoff. It’s always best to first consult with your Houston employment law attorney before terminating any employee away on FMLA leave — or who has been absent due to any other medically-related issue.

What if you became aware of misconduct when an employee is away on FMLA leave?

If you have learned since the absent employee’s leave started that s/he committed some type of prior fraud or malfeasance against your company, you can terminate the employee for cause. Of course, you must have very clear proof of the fraud (or gross misconduct) before terminating the employee. In many instances, you’ll probably need to meet with the employee before letting them go so they can respond to the evidence you’ve uncovered.

It’s also possible that an employee might commit some type of fraud against your company while on FMLA leave. For example, the employee might fraudulently use company-issued credit cards for personal gain without permission — or share proprietary business information with a competitor. It’s always wise to ask your attorney to evaluate the grounds for termination before terminating any employee.

What should you do when an employee asks for more than 12 weeks of FMLA leave?

While the Family Medical Leave Act does not guarantee any qualified worker more than 12 weeks of time off during any 12-month period, you should never try to immediately fire someone who claims to be too ill to return. For example, when a disabled employee has taken the full amount of time off to address medical problems under the FMLA, you may have an obligation to provide that person with additional time off – if doing so might lawfully be considered a “reasonable accommodation” under the ADA. However, no employee is entitled to unlimited leave.

Likewise, an employee who has already filed a worker’s compensation claim may still be too injured to return. Always consult with your lawyer before trying to fire these employees – since state worker’s compensation laws and ADA provisions may dictate your next steps. Should any employee simply take additional leave beyond 12 weeks without discussing their needs with you, such behavior could subject them to termination. Employers are always entitled to ask how long a leave is being requested.

While the potential problems tied to administering the FMLA are almost limitless, the discussion provided above should provide you with some useful guidance.

If you need advice on properly administering the FMLA or interacting with employees who have requested any type of leave, please feel free to contact one of our Murray Lobb attorneys. We’ve been providing this type of legal advice for many years and can help you respond fairly to all employee management issues.

Is Your Business Honoring All Federally Protected Employee Rights?

Most personnel managers must work hard to keep up with all the federally guaranteed rights owed to employees and job applicants. And when small companies aren’t required to do the same, they should still try to offer all the legal rights referenced below since every office runs more smoothly when employees are treated with respect and granted as many rights as possible. Employers must also be sure they’re upholding all state employment laws that are often more favorable to employees.

Although many federal laws govern various employee rights, there are five specific ones that set the core standards involving discrimination — and provide fairness when addressing worker hours, wages and time off to handle urgent medical needs. All business supervisors and managers can benefit from reviewing the following brief summaries of Title VII, The Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA).

Basic employment standards established by Title VII

Businesses with 15 or more employees must abide by the full provisions of this law. While some might assume that employers with fewer than 15 employees can openly discriminate, lawyers frequently point out that other federal statutes (42 USC Sections 1981 and 1983) still protect ethnic and racial minorities against discrimination. These statutes govern the formation of contracts — and hiring employees always involves some type of oral or written contract.

Title VII strictly forbids all employers from discriminating against anyone regarding all

possible terms and conditions of employment. Therefore, employers cannot discriminate when handling any of the following activities.

  • Recruiting and hiring
  • Training and assigning work
  • Evaluating or measuring work performance
  • Disciplining
  • Promoting and transferring
  • Providing all promised benefits – including those owed after employment ends
  • Discharging

If your office has any questions about these standards, it’s best to contact your Houston employment law attorney to discuss your specific concerns in greater detail.

Employee rights guaranteed by the ADEA

While it may seem like a non-existent problem to younger workers, discrimination against older employees often incurs in many workplaces, especially when workers are nearing retirement when added benefits will likely vest. The Age Discrimination in Employment Act is designed to protect all employees age 40 and older when they work for an employer with at least 20 total employees.

All the basic employer activities listed above (regarding Title VII) must be applied fairly to older workers. Stated differently, the federal government forbids treating younger workers in a preferred manner over older workers who often have both strong skills and highly valuable years of experience.

Rights guaranteed under the ADA to the disabled

When a job applicant or hired employee can demonstrate his or her ability to handle all required job functions – without or without reasonable accommodations – discrimination is strictly forbidden. The ADA defines a disability as a physical or mental impairment that substantially limits any of a person’s major life functions or activities.

Reasonable accommodations should be offered to help the disabled person fully perform all required tasks, unless such adjustments would result in a fundamental alteration or change in meeting the employer’s program needs.

While the ADA has helped many workers, there’s still a need for greater societal change since many employers who can see a job applicant’s disabilities will privately opt to only hire those who don’t appear to have any cognitive or mobility issues.

Rights provided by the FLSA to all employees

The federal government has used the Fair Labor Standards Act to establish basic standards governing worker hours, minimum rates of pay and the handling of overtime hours. However, state law can offer more favorable rights, including a higher minimum wage.

Individual employers often choose to designate workers as either at-will employees who can be dismissed without cause or contract employees who must be provided with just reasons for their dismissal. The U. S. Department of Labor (DOL) states that if a company is a covered “enterprise,” and its workers are not exempt (or contract employees), the company must comply with all the FLSA provisions. Since determining what constitutes an “enterprise” isn’t always straightforward, you may need the help of your employment law attorney to interpret this for you. However, the DOL states that even if a company doesn’t qualify as a covered enterprise, all of its employees may still be protected by the FLSA provisions if their assigned tasks meet “interstate commerce” requirements.

Worker privileges available under the Family Medical Leave Act

This legislation applies to private employers with 50 or more employees working within 75 miles of the employer’s main worksite. To qualify for the extended leave provided under the FMLA, workers must have been employed by the company for at least twelve (12) months prior to making a request — and meet other specific criteria set forth under the law. Employees are supposed to be reinstated to their past jobs (or very similar ones) upon returning.

The FMLA is often used by a worker to care for a very ill, immediate family member or when the covered employee is personally battling a serious medical condition. Great care must be exercised when any worker states that s/he is not yet physically able to return once the full amount of leave allowed has been used (to avoid running afoul of provisions of state disability laws and the ADA.)

If you have any questions regarding how your office should apply any state or federal laws to employee issues, please don’t hesitate to call one of our Murray Lobb attorneys. We can also provide you with legal advice as to how some of these laws may have been recently modified by new Texas statutes.

Handling Employee Requests for Religious Accomodations

Whether you’re running a large corporation or a small business, it can be challenging to properly reply to employee requests for religious accommodations. However, if you’ll listen carefully to what’s being asked and thoughtfully weigh all your options, you should be able to respond appropriately. As the employer, it’s your duty to strike the proper balance between honoring a legitimate request and prioritizing the most crucial needs of your business.

Here’s a brief overview of the key topics involved with honoring religion rights in the workplace after receiving employee accommodation requests.

Employment discrimination based on religion is forbidden by law

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees based solely on religion. Upon first learning about this statute, most employers ask how the term “religion” is defined — and exactly when they must fully abide by this law. Stated succinctly, employers should try to make reasonable accommodations based on religious beliefs (and practices) whenever doing so will not place an “undue burden” on their businesses.

How does the EEOC define “religion?”

The Equal Employment Opportunity Commission provides a very broad definition of “religion” that is not limited to just well-known faith groups such as Christians, Jews, Buddhists, Muslims and Hindus. The EEOC states that the employee’s beliefs can be new or uncommon – and separate from those espoused by any formal group or sect. The practice the employee wants to honor must be sincerely held and of a clear, religious nature – as opposed to a mere political, social or economic philosophy.

What are some of the most common types of requested religious accommodations?

  • Permission to attend special worship services during normal work hours;
  • A request by a female employee to wear a headscarf or “hijab” at work;
  • Permission for a male employee to wear his hair long – in keeping with religious beliefs. Some Jewish men also ask to wear “skull caps” or yarmulkes on special religious days;
  • Time off on specific “holy days” – or a day like Saturday or Sunday, in keeping with faith practices;
  • A flexible work schedule that allows for “breaks” during which specific types of prayers may be said;
  • A request to be exempted from specific job tasks, such as dispensing birth control pills or handling specific duties that help advance war efforts. (Members of the Jehovah’s Witnesses and other faith communities might make these types of requests);

While this list is not intended to be exhaustive, it should provide you with a better understanding of the types of accommodations employees may request.

How can employers determine if a request will cause an “undue hardship”?

After making sure you understand the specific nature of each request, you’ll have to decide if your business can still function smoothly if you grant the accommodation. Here are some questions you should be sure to ask yourself.

  • Will making the accommodation prove unduly expensive? For example, what should you do if an employee asks to take off work to attend a Good Friday church service? Will saying “Yes” leave a key job or position uncovered in the person’s absence? Do you have any other employees willing to cover for the individual needing to leave? If no one volunteers to help, can you afford to pay any overtime to a qualified employee (or an outside temp) to cover the position?
  • Is the request one that might violate your company’s legitimate health or safety rules? If so, can you find another way to work out the situation? For example, if a young man wants to wear his hair long in keeping with his stated religious beliefs – can you simply let him wear his hair tied in a ponytail during work hours — or keep it hidden under a work hat that you provide or consider acceptable?
  • Will it prove to be too disruptive to your regular office routine? Should you allow an atheist (or employees of different faiths) to wait and enter meetings normally started with Christian prayers after those prayers have concluded? It might be simpler to just pray with those of like mind at a different time on certain days. That way, you can probably avoid ostracizing those who have said that they don’t wish to take part in your specific prayer practices.
  • Is there a danger that granting one employee’s request to honor faith practices will lead to too many other, similar requests? The EEOC urges employers to consider all requests made very seriously — and to try and accommodate them whenever it’s reasonable. Few employees are likely to abuse this type of request. However, you might consider placing a statement in your employee handbook that all such requests must be made on a sincere basis — and that they’ll probably be granted if they don’t cause any great disruption in the company’s normal workflow – or provision of critical customer services.

All employers, managers and supervisors must avoid all forms of workplace retaliation

Unfortunately, there will always be a few biased supervisors or managers who may resent having to make any religious accommodations. Therefore, you must make sure that once any requests have been granted – the employees are not “punished” in any way.

For example, you cannot force all employees requesting permission to wear special religious clothing, hats or scarves to sit in a back office together where they’ll be less visible. That could be viewed as “retaliation” and make your company vulnerable to a lawsuit based on discrimination.

Conclusion

Be sure to treat every employee’s request for a religious accommodation with sincere respect. And always keep detailed notes in each employee’s file as to why you did or did not grant a request in case there are any later lawsuits. (For example, if you decide a request will prove to be too costly or place an “undue burden” on your business – make sure you can prove that with adequate facts and figures.)

Please feel free to contact one of our Murray Lobb attorneys with any questions you may have about making workplace accommodations based on religion (or disability). We can provide you with the legal guidance you’ll need to keep your business running smoothly.