Estate Planning: Becoming a Texas Organ and Tissue Donor

If you’ve ever known someone waiting to receive an organ, you know how stressful the process can be. Most of those requesting help are either fighting to save their lives or to greatly improve their health. Fortunately, there’s a national transplant waiting list that’s been set up to match donors and recipients in Texas and all other states.

Since many people want to help with this critical need, they often ask their lawyers how they can become donors. This article will describe what you should do — besides simply indicating this desire on your Texas driver’s license.

A few statistics are set forth below to help those trying to decide if they’re ready to help others in this way, followed a description of the other steps you should take to be sure your decision to become a donor is faithfully honored in the future.

How many people’s lives are at stake annually due to the need for organ donation?

  • About 20 Americans die each day due to the lack of available organs
  • Since 1988, about 700,000 transplants have been performed in this country
  • Nearly every 10 minutes, a new name is added to the donor recipient list
  • It only takes one donor to save as many as eight lives. In fact, one donor can improve the quality of life for over 100 individuals – just by making extensive tissue donations
  • The most commonly transplanted tissue is the cornea of the eye
  • Roughly 6,000 living donations are made each year. And one-fourth of the donors are not family members or biologically related to the person in need.
  • About 1 in every 26 Americans has a kidney disease without knowing it – that equals about twenty-six million people who might one day require a transplant.

Living donors are also needed. Healthy people can donate part (or all) of a kidney, liver, intestine or lung. Sick patients are also in need of bone marrow and blood from healthy donors.

How do most Texans handle this decision to donate tissue or organs?

States like Texas have tried to simplify this process by allowing those wishing to donate their organs or tissues (in the future) to indicate that on their Texas driver licenses. Residents of the state can also have their Houston estate planning attorney directly state this commitment in their Medical Power of Attorney or Advance Directive. This latter approach can help remove the anxiety from the shoulders of family members once this information has been legally documented in this manner.

The third way people can indicate their desire to be organ donors is to directly sign up with DonateLifeTexas.org . You can learn more about this process by watching the following video created by DonateLifeTexas.org .

Please feel free to contact any of our Murray Lobb attorneys so we can meet all your business and estate planning needs. We look forward to sharing our legal skills and advice with you.

How to Carefully Address Alcoholism in the Workplace

Whenever a new employee starts a job, personnel managers privately hope they’ve adequately screened the person. Hiring workers has become a much more complex task now that so many qualified professionals move freely between long-term positions, the “gig economy” and periods of self-employment.

Finding productive employees is also hard because many people who suffer from alcoholism or “alcohol use disorders” have learned various ways to try and hide their problems.

What exactly is alcoholism or “alcohol use disorder?”

The Mayo Clinic website states that people who experience “repeated significant stress and problems functioning” in their daily life due to drinking, usually suffer from alcohol use disorder.

Those attempting to cope with this daily disorder also struggle with increased drinking in hopes of obtaining the same “high” that helps them escape their emotional pain. Over time, many alcoholics find it hard to even quit thinking about alcohol. Still others stay busy with “binge drinking” spells — or the physical and psychological problems that occur during withdrawal.

Some larger companies have employee assistance programs that can readily offer counseling and other services to workers struggling with addictions and other psychological problems. However, there will always be many workers who remain in denial about their critical drinking problems — and small businesses who simply cannot afford to provide a wide array of special services to their workers.

What follows is a brief review of American alcohol abuse statistics, a list of signs that workers may have drinking problems – and a look at how employers can try to reach out and help employees with apparent alcohol use disorders.

What statistics tell us about alcohol abuse in America

  • Well over 12 million adults struggle with alcoholism. In fact, one 2018 study revealed that 14.4 million adults (at least 18 years of age or older) were battling alcohol use disorder (AUD). Approximately 9.2 million of these individuals were men and 4.1 percent were women.
  • Heavy use and binge drinking are also common. This same 2018 study noted that when adults age 18 or older were asked about their drinking during the prior month, 6.6 percent of them said they were heavy drinkers. And 26.45 percent of them admitted to binge drinking during the past 30 days.
  • Every year, about 88,000 people die of alcohol-related causes.

As these statistics indicate, every business surely has more than a few problem drinkers. And experts estimate that lost productively due to alcoholism can cost American employers between $33 billion and $68 billion each year.

Common signs that employees may have drinking problems affecting their work

  • Repeated, unexplained absences from work
  • Ongoing tardiness
  • Frequent use of sick leave
  • Too many absences occurring the day after payday – or a pattern of taking too many three-day weekends
  • Falling asleep on the job
  • Moody behavior and difficulty getting along with other employees
  • Bloodshot eyes, an unsteady gait – and the faint smell of alcohol
  • Claims of too many sudden “emergencies” during relatively short timeframes
  • A steady stream of assignments finished late
  • Incomplete assignments or clear signs of inadequate effort
  • Ongoing problems with meeting assigned sales or other quotas

How should employers address one or more of these problem behaviors?

  1. You will need to schedule a private meeting with the employee. Prior to this meeting, you should review all recent employee work evaluations and privately talk with the person’s supervisor (who may also want to attend the meeting). Be sure to take notes. Also, make it clear that you’ll be checking back with the employee at a later (specific) date to see if their work and/or attendance record is improving.
  2. If your company has an EAP (employee assistance program), meet with your personal representative of that program prior to the meeting referenced above. It may be necessary to schedule some type of intervention with the employee, after that person is given ample notice of the meeting. This event (which should probably be managed by your EAP contact) can include the person’s workplace supervisor, spouse, clergy or other family members. All who attend must indicate that they’re simply trying to help the person improve their health and keep their job.
  3. In some cases, you are likely to meet up with an employee’s denial. If so, you must still make a referral to your EAP — or remind the person to obtain this type of outside help on his or her own if your company doesn’t provide EAP resources. You must also clearly state that if one or two more unexplained absences (or poor work performance reports) are received, the employee will be terminated. Be sure to have at least one other company official present during such meetings and keep detailed, confidential notes.
  4. You must be prepared to tell an employee who appears to be intoxicated at work to stop working immediately. This is especially true if the person is driving a work vehicle or handling potentially dangerous equipment. You may also have want them to take an evidentiary breath testing (EBT) device.

Employers should avoid taking the following steps when alcoholism may be present

  • Covering up for an employee with a drinking problem
  • Loaning money to the person with alcoholism
  • Helping the tardy employee make up assignments later, instead of disciplining him/her
  • Requiring co-workers to complete the apparent alcoholic’s assigned work
  • Allow a spouse to call in absences for the employee

Hopefully, the problem drinker will respond to your outreach efforts, agree to a temporary term of leave and then follow-up care. If all goes well, this person will then be able to carry a normal workload again. While this is always a very difficult problem to handle, it’s important to remember that those who do recover from an alcohol abuse disorder may one day become your most loyal employees, grateful that you gave them a chance to fully address their problems.

Please feel free to contact one of our Murray Lobb attorneys when you need help deciding how to respond to this type of employment law issue. Our office also remains available to help you draft any contracts or other documents you may need while running your business.

Drafting Valid Texas Non-Compete Agreements

Although Texas courts will uphold valid non-compete agreements, they expect these documents to contain clear and reasonable terms. In addition, Texas employers can only execute these types of ancillary agreements when they’re directly related to a main document like a valid employment contract.

Companies that ask workers to sign these agreements must also make sure they’re offering proper “consideration” to each employee. Simply providing someone with continued employment will not be considered adequate. The employer must be offering such valid “consideration” as a definite plan to share highly valuable “trade secrets” or unique, proprietary information with each employee required to sign a non-compete agreement.

Basic terminology regarding these agreements

Covenants not to compete are also sometimes referred to as non-compete agreements or “non-solicit” agreements. That latter term refers to the departing employee’s promise not to solicit any of the former employer’s customers until after a set time period noted in the agreement has ended.

In some cases, the shared information might just be limited to the the names and addresses of the employer’s current customers. Of course, the validity of all terms set forth in a non-compete agreement may one day be subject to a court’s interpretation.

What follows is a closer look at the terms and definitions governing Texas non-compete agreements. They’re set forth in Section 15.50 (and following) of the Texas Business and Commerce Code. Stated succinctly, non-compete agreements must set forth reasonable time limitations, detail the scope of activities to be restrained – and describe the geographical area to be covered. This article concludes with a discussion of how you and your Houston employment law attorney should respond if you learn that a former employee has violated his/her covenant not to compete.

A reasonable limitation on the geographical area you seek to control

Stated simply, your agreement will probably be viewed as valid by a court if it only restricts the former employee from competing against you (or working for a competitor of yours) within the same basic geographical area where s/he worked while still employed by you. While a broader area might be considered legitimate, you might have to justify that to a court one day, based on unique aspects of your business industry or other similar issues.

Courts often frown upon these types of covenants when they’re overly broad. The law favors free trade and competition unless a greater employer right (or threat to employer interests) can be clearly established.

A reasonable time period is referenced for restricting the former employee’s activities

Although there don’t seem to be any legal experts willing to name a specific time period you should choose, the consensus appears to be that you shouldn’t make this part of the covenant unduly burdensome.

Speaking in very general terms, if you name a time period much longer than one or two years, (directly dependent on the nature of your company’s work), your lawyer may have to justify that longer time period in court. After all, people are entitled to move on with their lives, regardless of whether you fired them — or they simply wanted to do something new in their work lives.

The scope of the activities being restricted must be fair and reasonable

You normally cannot completely restrict a departing employee’s best options for finding new work. For example, assume an employee has worked exclusively in the computer field for all his or her life, up until leaving your firm. A court would probably consider it overly burdensome if your non-compete agreement forbids that person from accepting or soliciting all types of work in that very broad field.

However, if that employee provided you with highly specific work in a unique sub-field of computer science, you might be able place a restriction on that type of work for a relatively short period of time. Reasonableness is crucial.

What can you do if you discover a former employee is violating a non-compete agreement?

      A. When the questionable behavior does not raise an urgent concern

If that former employee signed what you believe is an enforceable covenant not to compete, you can ask your Houston employment law attorney to take one or more actions on your behalf. However, if the need to stop the past employee from further infringing your rights is not immediate, your lawyer can start by sending the former employee a letter, reminding him/her of the agreement and of your belief that s/he is likely violating it and must stop doing so.

Should you again learn that the former employee is still violating your agreement, you can also contact that individual’s employer and state your concerns, noting the earlier letter sent by your attorney.  If the infringing activity continues, you can file a lawsuit. (Employers are often tipped off about such questionable behavior by current, loyal customers who’ve been recently contacted by the former employee.)

     B. When the wrongful behavior could cause immediate damage to your company

If you believe that you’re about to suffer irreparable harm due to the former employee’s current use of your company’s “trade secrets” or contact with your customers, your lawyer can ask a court to issue an injunction. If granted, this should put an immediate stop to the alleged, illegal activities.

Should the judge decide that the current threat posed to your company is highly significant, s/he can even grant a temporary restraining order (TRO) that prohibits the former employee from doing anything further that could violate the agreement until a first hearing can be held. Anyone who ignores a TRO (or violates one) can be treated as being in contempt of court. That person can then be punished with a fine, some form of imprisonment – or even possibly both.

Conclusion

Always remember that Texas courts demand that all terms in your non-compete agreement be reasonable. Former employees do have a right to move on with their lives and find new opportunities to support themselves that do not directly interfere with your business or its current viability.

Our Murray Lobb attorneys welcome requests for legal advice about covenants not to compete and other employment law issues. We’re also fully equipped to address most corporate and business law matters, as well as your estate planning needs. Please feel free to contact us if you ever need us to draft any contracts or other documents required by your business.

Key Estate Planning Advice for the Terminally Ill

Nearly everyone expects to live to their full life expectancy. However, as we grow older, we begin to see many friends and loved ones die early due to cancer, heart disease or various tragic, unexpected events. For this reason, every adult should create an estate plan and remain ready to modify it once a terminal illness or tragedy suddenly unfolds.

After all, our family members, friends and favorite charities depend on us to maximize the gifts we make through our Wills, trusts and other testamentary devices.

To get ready for this process, you should first make a list of all your current assets (and their values) and then schedule an appointment with your Houston estate planning attorney. When you meet, your lawyer can explain the choices you’ll need to make that can simplify the process, while also decreasing the tax burdens on your heirs and other beneficiaries.

Here’s a look at some of the ways that terminally ill people – or those aware that the end of life is fast approaching – can adjust their estate plans to maximize the final gifts they can give to all those they wish to help.

Specific steps for the terminally ill to consider while updating or creating an estate plan

  • Decide if you should set up a revocable trust. This can help greatly reduce all the tasks the appointed executor must handle — and can lessen the chances that any of your estate will have to pass through the probate process.
  • If you’re a parent or grandparent, consider creating a private annuity. This will allow you to transfer substantial assets to your loved ones while retaining a lifetime annuity. If you do not live to your expected lifetime expectancy, as set forth in actuarial tables maintained by the IRS, most (or all) of your assets may not be taxed.
  • Make sure you’ve fully used up all your current annual exclusions. As many taxpayers know, every American has the right to give $12,000 a year to multiple donees. And if your spouse agrees to all the gifts you’d like to make during the current tax year, you could give away a total of $288,000 — tax free. It’s also possible that other “leveraging” techniques involving family partnerships could greatly increase that amount.
  • Check to see if all your assets are titled properly (so your beneficiaries will reap the best tax benefits). Your lawyer can explain how this can help you obtain the full lifetime exemption from estate taxes. In some cases, it may be best if many assets (including the highly appreciated ones) are held in the name of the terminally ill spouse. When this is allowed, it can help minimize all the capital gain taxes that might otherwise accrue when various assets are sold after the terminally ill person passes away.
  • Review all the assets held in your 401k and other retirement accounts. This can also help you recall what you’ve already bequeathed to various beneficiaries. Be sure to bring all the updated information about these accounts to the meeting.
  • Create an update list of all named beneficiaries and their current addresses. Everyone will appreciate being able to receive your gifts as quickly as possible.
  • Consider placing a certain amount of cash in your checking or savings account so that your executor can easily pay your final expenses using that money.

If you’re the terminally ill patient, seriously consider asking your spouse, executor, other trusted family member or close friend to take part in this meeting with your attorney. This can help you avoid forgetting important assets and beneficiaries. It can also remind you to tell this trusted person where you currently keep all your real estate deeds, the passbooks for all your investment and saving accounts — and all your online account usernames and passwords.

While the information above isn’t intended to be fully comprehensive, it should provide you with an accurate idea of the types of matters you and your lawyer can handle during your upcoming appointment.

Finally, please be aware that your attorney may be able to arrange an initial, teleconferencing appointment if that will work best due to your serious illness. Finalized paperwork can then be signed within a short timeframe.

*****

Please feel free to contact your Murray Lobb attorneys for help with any of your estate planning or general business needs. We try to remain available to provide you with prompt legal advice and the various contracts and other documents that help keep your business running.

CARES Act – Government Economic Relief Package for Businesses

Last week the United States Government passed what is known as the CARES Act to provide economic relief to businesses (including sole proprietorships!) impacted by COVID-19.  There are a few different avenues and programs to receive help under the CARES Act, one of which is the Paycheck Protection Program (PPP).  The Paycheck Protection Program is specifically designed to help small businesses keep their workforce employed. Visit SBA.gov/Coronavirus for more information on the Paycheck Protection Program and the other available avenues and programs for assistance.

The new PPP loan program will be available retroactive from Feb. 15, 2020, so employers can rehire their recently laid-off employees through June 30, 2020. 

 Loan Terms & Conditions

  • Eligible businesses: All businesses, including non-profits, Veterans organizations, Tribal concerns, sole proprietorships, self-employed individuals, and independent contractors, with 500 or fewer employees, or no greater than the number of employees set by the SBA as the size standard for certain industries.
  • Eligible Purposes: payroll, rent, mortgage interest or utilities.
  • Maximum loan amount up to $10 million
  • Loan forgiveness if proceeds used for payroll costs and other designated business operating expenses eligible purposes in the 8 weeks following the date of loan origination (due to likely high subscription, it is anticipated that not more than 25% of the forgiven amount may be for non-payroll costs)
  • All loans under this program will have the following identical features:
    • Interest rate of 0.5%
    • Maturity of 2 years
    • First payment deferred for six months
    • 100% guarantee by SBA
    • No collateral
    • No personal guarantees
    • No borrower or lender fees payable to SBA

Murray | Lobb has contacts with multiple lending institutions who are already approved SBA lending processors and can help you navigate the process.  Give us a call at 281-488-0630 or email sgriffin@murray-lobb.com and we will be happy to provide you with these contacts.

Liquidated Damages in Texas Contracts

When a party to a contract breaches, the fundamental goal of the law is to place the non-breaching party in the same position it would have been had there been no breach.  This does not always mean the non-breaching party gets what he sought under the contract. More often, the non-breaching party is awarded money (damages) for adequate compensation.

Penalty or Damage Provisions?

In some instances, the parties to a contract might wish to insert a provision in the contract which specifies the damages the non-breaching party may be entitled to recover.  These provisions are called liquidated damage provisions.  However, liquidated damage provisions can be found to be unenforceable, when the breaching party seeks to avoid the provision on the ground that it is a penalty.  Typically, a penalty is one which greatly exceeds amount of damages actually sustained by the non-breaching party.  Court will examine whether the actual damages incurred were much less than the liquidated damages imposed, measured at the time of the breach.

A liquidated damage provision is not a penalty when it reasonably estimates the harm that would result from a breach.  But a provision not designed to be a penalty can nevertheless operate as one.  The universal rule that damages for breach of contract are limited to just compensation for the loss or damage actually sustained. Accordingly, courts carefully review liquidated damages provisions to ensure that they adhere to the principle of just compensation.  A damages provision that violates the rule of just compensation, however, and functions as a penalty, is unenforceable. Liquidated damages must not be punitive, neither in design nor operation.

Courts will enforce liquidated damage provisions when:

  1. “the harm caused by the breach is incapable or difficult of estimation,” and;
  1. “the amount of liquidated damages called for is a reasonable forecast of just compensation.”   In applying the first prong, courts examine the circumstances at the time the agreement is made. The party seeking liquidated damages bears the burden of showing that the provision, as drafted, accounts for these two considerations.

A properly designed liquidated damages provision, however, may still operate as a penalty due to unanticipated events arising during the life of a contract. Courts must also examine whether “the actual damages incurred were much less” than the liquidated damages imposed, measured at the time of the breach.  When a contract’s damages estimate proves inaccurate, and a significant difference exists between actual and liquidated damages, a court must not enforce the provision. When an “unbridgeable discrepancy” exists between “liquidated damages provisions as written and the unfortunate reality in application,” the provisions are not enforceable.

Enforcing Liquidated Damage Provisions

To be enforceable the liquidated damage provision, at the time the agreement was made, must meet a two-part test:

  1. The harm that would result from a breach must be difficult to estimate, and;
  2. The liquidated damages provision must reasonably forecast just compensation. Parties to a contract containing a liquidated damage provision are expected to negotiate a reasonable, not perfect, forecast of just compensation in the event of breach.  A forecast that is inordinate when compared with actual damages will not prevail to a challenge when there is proof of a large variance between the actual damages and those sought under the liquidated damage provision.

A recital in the contract proclaiming that a liquidated damage provision is not a penalty will not save a provision that operates as one. Careful thought must be applied in determining a reasonable forecast of damages that would be sustained in the event of a breach.  If damages, at the time of contracting are capable of calculation or can be fairly estimated, the provision cannot meet the first prong of the test.

Please feel welcome to reach out to our Murray-Lobb Attorneys if you have any further concerns or questions regarding a contract breach or liquidated damage provisions.

What Employers Should Cover in Their Sexual Harassment Policies

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

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

Key information that should be included in most sexual harassment policies

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

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

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

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

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

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

Important Legal Tips for Communicating with Disabled Employees

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

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

Examples of workplace situations that may require special communication skills

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

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

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

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

Minimizing Chances of Violence When Terminating Difficult Employees

Although some angry former employees who’ve been fired have tried to physically harm or kill their former employers and co-workers, there are constructive steps you can take to greatly lower the chances of any workplace violence. After all, most workers don’t suddenly begin doing poor work or behaving rudely to others. There is usually an extended time period when a person’s work starts to deteriorate.

If you’ll conscientiously conduct regular employee job evaluations that put each worker on notice of any deficits in their productivity or demeanor, being let go should rarely come as a surprise (unless there’s been a sudden, violent outburst or you’ve recently discovered illegal activity).

Here’s some specific advice about how your company or office manager should interact with employees once you’ve decided to fire them.

Workplace practices that may help a dismissed employee cope better when terminated

  • Privately inform the employee that you need to meet with him/her in your office.

No one likes to be embarrassed in front of others, so be discreet. Plan to have at least one other management employee present to witness the event. Once you start this meeting, be sure to briefly reference the other person present and then immediately tell the worker being fired that this is a permanent decision that’s been made after great consideration of all the relevant facts. (These words can help prevent an anguished exchange during which the employee may beg to stay on the job – or even unwisely threaten those s/he blames for the firing.)

Give serious thought to creating a folder with all the materials the employee will need inside of it. Then, tell the employee you’d like to go over the different forms, possibly including any severance agreement that your company may need signed and dated in your presence. If you employ 20 or more employees, be sure to include adequate information about how the employee can apply for (and most likely) receive health insurance through the COBRA program. (COBRA stands for Consolidated Omnibus Budget Reconciliation law.) And be sure to check with your Houston employment law attorney to see if Texas requires that you provide the person with any other health insurance information.

Remember to always speak in a calm and pleasant tone, even if the employee becomes a bit agitated or excited. Consider always having a company (or building) security guard on hand in the outer office, just in case an upset employee becomes unruly.

Be willing to stop and answer questions. After all, most people have many questions they need to ask at such an upsetting time in their life — even if they “should have known” this event was likely. Carefully explain exactly when a final check will be cut and explain how you will deliver the funds to the person being dismissed.

  • Obtain all remaining property that must be returned. When providing the employee with notice of the meeting, you should always give the individual a clear list of all proprietary equipment, keys and other materials that you expect to have returned to you in good condition. If the person has been entrusted with extremely important security codes, you might want to note that those are always changed when any employee leaves the company.

If any major piece of equipment is not returned, be prepared to discuss a reduction in the final sum of money owed to the person – unless you failed to state that policy in your employee handbook. If no prior notice was provided, you should speak to your attorney about the wisdom of deducting any amount of money from that final paycheck or payment of benefits owed.

In addition to all company vehicles, be sure to collect all ID badges, security parking tags not currently affixed to vehicles, beepers, cell phones and confidential company publications.

Finally, you should calmly allow the employee to express some moderate anger about the decision. Sit quietly – and at most, simply restate that the decision is final. By listening to the person, you’re affirming them to some extent, and that’s important to having the individual leave in a calmer state of mind.

Unless the employee becomes verbally abusive (not just angry or a little flippant), ask them to be prepared to leave with all their belongings right after the meeting. (Of course, you should have already conducted a thorough investigation of any reported wrongdoings by the employee – and given that person a chance to explain his/her side of any alleged wrongdoing.)

Note: Always be sure that the person has time to collect his/her belongings and remind them to check the employee lunchroom or any locker that may have been assigned. It’s also wise to state that you will not be discussing the dismissal further with any of the departing employee’s co-workers. As for references, try to state (if true), that your company normally only provides confirmation of employment dates, without further comments or explanations. (Be sure that’s already set forth in your employee handbook). If the person has remained calm, brief goodbyes to co-workers should also be allowed.

  • One other key point: always be specific during the dismissal process. Employees being let go really want to know why their work wasn’t satisfactory. Since people often feel completely out of control of their lives when they’re being fired – specific feedback helps them feel empowered and like they can bounce back with a new job. It can help to have copies of all recent job performance evaluations handy when meeting with any employee who is leaving.

If you liked the person but found their work unacceptable, you’re always free to tell them that you wish them well and hope they can find another position more in keeping with their most highly developed talents;

  • Decide in advance whether your company believes it should ever allow someone being fired to “resign” their position instead. This helps some people feel less angry and like they have retained some degree of self-respect. Of course, if you do choose to allow this approach, you should remind the departing employee (in writing) that s/he might still be legally viewed as having been fired.

However, be sure you avoid making any promises about the receipt of unemployment benefits when someone chooses to resign. To protect yourself, it’s probably best to tell the person (in writing) that they will need to check with the Texas Workforce Commission about such benefits, noting that all dismissals are usually handled on a case-by-case basis.

  • Formal outplacement services. While these are most frequently used by large corporations when laying off groups of employees, it’s wise to check on all the services that they provide. However, if you’re a smaller company or a solo office with a relatively small group of employees this probably won’t be practical. If nothing else, try to include a form in the “separation” or dismissal packet that provides the address of the nearest Texas Workforce Commission office, its website address, and the phone number for that office. People will usually be calmer if they have an idea about how they can immediately begin looking for a new job;
  • Provide clear information about what you’ll be including in the employee’s final paycheck. In Texas, an employer normally has six days to provide the departing employee with his/her final paycheck. However, if someone insists that they’re quitting the job, you can wait to issue their final paycheck at the time of the next scheduled payday.  See Texas Code Annotated, Labor, Section 61.014.

If you fail to pay a fired employee on time, you might be required to pay that person damages – and possibly even a penalty to the employee and the state.

And remember that in most states, you’re usually required to pay the employee for any accrued vacation time.

Gray areas can easily occur during dismissals

A bit too often, people get very angry when being fired. In some cases, they will storm off during your meeting, claiming that you can’t fire them – because they’re quitting. While you do not have to put up with rude or antagonistic behavior, you might want to calmly note that being fired might be the better option, if they prefer to sit and think about it for a few minutes.

However, you have no duty to try and counsel the person on this issue. Just be aware that when any employee says s/he is walking off the job, the law may not treat that person as fired – causing the individual to lose access to unemployment benefits.

If the departing employee really tried hard to do good work for many years and may just no longer be able to keep up with new job technologies, your company always has the option of covering the fee so that individual can go to a local personnel agency and receive one formal placement in a new position.

Final tips for carefully handling employee dismissals

  • As the Texas Workforce Commission notes, try to avoid dismissing or firing any employee “during the heat of the moment.” All future interactions will go much more smoothly if there are clear reasons for firing a person that have been documented over time – even though Texas doesn’t require warnings for at-will employees. Just try whenever possible, to treat anyone you wish to fire with dignity.
  • Make sure all your actions are backed by clearly stated company policies and procedures. The last thing any company needs is to be sued by an angry former employee who can reference an employee handbook that clearly indicates that you failed to properly handle his/her dismissal.
  • Be sure you always responded to all legitimate complaints made by the person you’re about to fire. The Texas Workforce Commission is often sympathetic to people seeking unemployment benefits who can document that certain workplace problems – that were formally reported and negatively impacted the person’s performance – were never properly addressed.
  • Try to only fire people early in the morning or late in the day – when few other workers are still present. And be sensitive enough to not provoke someone by firing them on their birthday or the day before a major holiday.
  • Check ahead of time with your accountant to be sure the employee doesn’t owe the company for any loan made against future paychecks.
  • While it was suggested above that you may rarely want to try and help a worker meet with a personnel agency, keep in mind many workers may try to abuse that privilege.
  • Never allow any employee who was just dismissed to log back into the company computer system. Irate people with moderate skills can easily wreak havoc on your database or other sensitive files.
  • Always have each staff person present during the termination meeting prepare a memo documenting what took place. This information can prove very useful later if your company is sued for wrongful termination.

Please feel free to contact one of our Murray Lobb attorneys if you need to ask any questions about specific issues involved with terminating an employee. We can also help you (re)draft your employee handbooks so that all procedures involved with firing employees are set forth clearly.

Unintentional Partnership in Texas

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

Answer: Yes, under certain circumstances.

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

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

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

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

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

(4) Agreement to share or sharing:

       (A) losses of the business; or

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

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

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

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

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

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

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

What should persons do when looking into a business venture?

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

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

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

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