Sheehy, Serpe, and Ware, P.C.

INCREASED RISKS FOR IMMIGRATION WORKSITE ENFORCEMENT ACTIONS

noemail@sswpc.com — Fri, 25 Apr 2008 21:00:00 GMT

Immigration has been a well-publicized political issue dominating the media for some time, and it is continues to be a heated topic during the ongoing election process. Many businesses have lobbied for provisions that would permit thousands of immigrants to work as guest workers on a seasonal basis. Other groups have expressed their objections to the potential legalization of many illegal aliens already in the United States. While competing interests have delayed comprehensive immigration legislation, bipartisan support for some provisions will likely lead to revisions of the nation’s immigration laws that will have a direct and substantial impact on some industries. The Bush administration recently announced new programs intended to discourage the employment of illegal immigrants. These changes include stricter verification provisions and increased fines and penalties for businesses that knowingly hire illegal immigrants. These initiatives along with the inconclusive nature of...

25-Apr-08 4:00 PM

TADC EMPLOYMENT LAW NEWSLETTER -- SPRING 2002

noemail@sswpc.com — Thu, 20 Dec 2007 20:00:00 GMT

TADC EMPLOYMENT LAW NEWSLETTER -- Spring 2002 R. Edward Perkins, Editor Sheehy, Serpe & Ware, P.C. -- Houston, Texas 1. UNITED STATES SUPREME COURT OPINIONS Court holds that penalty provision providing for an additional 12 weeks of FMLA leave is invalid. In Ragsdale v. Wolverine World Wide, Inc., ____ U.S. ____, 122 S. Ct. 1155, 1159, ____ L. Ed. 2d ____ (2002), Tracy Ragsdale (Ragsdale) began working at a Wolverine factory in 1995, but was diagnosed with Hodgkins disease the next year. Id. Ragsdale was unable to work during her surgery and treatment and took advantage of Wolverines seven months of unpaid sick leave provided by Wolverines leave plan. Id. Ragsdale missed thirty weeks of work, and Wolverine held her position with the company throughout this period and maintained her health benefits and paid her premiums during the first six months of her absence. Id. Wolverine did not, however, notify Ragsdale that twelve weeks of her absence would count as her FMLA...

20-Dec-07 2:00 PM

TADC EMPLOYMENT LAW NEWSLETTER -- FALL 2007

noemail@sswpc.com — Thu, 01 Nov 2007 16:00:00 GMT

TADC EMPLOYMENT LAW NEWSLETTER -- FALL 2007 R. Edward Perkins, Editor William Whitaker, Assistant Editor Sheehy Serpe & Ware, P.C. -- Houston, Texas I. TEXAS SUPREME COURT DECISIONS. A. FORUM SELECTION CLAUSES – Generally Honored in Employment Contracts. In the case of In re AutoNation, Inc., 228 S.W.3d 663 (Tex. 2007), Garrick Hatfield signed a Confidentiality, No-Solicitation/No-Hire and Non-Compete Agreement with his employer, AutoNation, Inc. (AutoNation) in 2003. Included in the agreement were choice-of-law and forum selection clauses, which provided that the agreement would be construed under Florida law and that all suits arising out of the agreement were to be filed in Florida. In January of 2005, Hatfield left AutoNation to accept a position with A-Rod OC, L.P. (A-Rod), a competing Mercedes-Benz dealership. AutoNation sought to enforce its non-compete agreement with Hatfield and filed suit for injunctive relief and damages in a Florida...

1-Nov-07 10:00 AM

TADC EMPLOYMENT LAW NEWSLETTER -- FALL 2002

noemail@sswpc.com — Mon, 08 Oct 2007 14:00:00 GMT

TADC EMPLOYMENT LAW NEWSLETTER -- FALL 2002 R. Edward Perkins, Editor Patrick D. Sanders, Assistant Editor Sheehy Serpe & Ware, P.C. -- Houston, Texas A. UNITED STATES SUPREME COURT OPINIONS 1. Court holds that the ADA permits defense that a workers disability on the job would pose a direct threat to his health. In Chevron U.S.A., Inc. v. Echazabal, ____ U.S. ____, 122 S. Ct. 2045, 153 L. Ed. 2d 82, (2002), Mario Echazabal worked as an independent contractor at an oil refinery owned by Chevron U.S.A., Inc. Id. at 2047. Chevron offered to hire Echazabal provided he could pass the companys physical examination. Id. However, the examination discovered a liver abnormality or damage that the doctors determined could be exacerbated by continued exposure to toxins at Chevrons refinery. Id. at 2048. Thereafter, Chevron withdrew its offer to Echazabal and requested the independent contractor to either reassign him to a job with less exposure to harmful chemicals or remove him...

8-Oct-07 9:00 AM

TADC EMPLOYMENT LAW NEWSLETTER -- SPRING 2005

noemail@sswpc.com — Fri, 24 Aug 2007 13:00:00 GMT

TADC EMPLOYMENT LAW NEWSLETTER -- SPRING 2005 R. Edward Perkins, Editor Benjamin C. Connally, Assistant Editor Adam Robison, Assistant Editor Chris M. Knudsen, Assistant Editor Sheehy Serpe & Ware, P.C. -- Houston, Texas I. United States Supreme Court A. The United States Supreme Court holds that disparate impact cases are available under the Age Discrimination in Employment Act Of 1967, with exceptions. In Smith v. City of Jackson, the United States Supreme Court recently decided that the Age Discrimination in Employment Act (ADEA) of 1967 authorizes recovery in disparate-impact cases. See 161 L. Ed. 2d 410, 416 (2005). In Smith, the City of Jackson, Mississippi adopted a pay plan granting raises to all police officers and police dispatchers. Id. at 416. The plan was motivated, at least in part, by the City’s desire to bring the starting salaries of police officers up to the regional average. Id. Under the plan, officers who had less than...

24-Aug-07 8:00 AM

New Minimum Wage and Overtime Laws Go Into Effect

noemail@sswpc.com — Thu, 12 Jul 2007 13:00:00 GMT

Effective July 25, 2007, employers must post a new minimum wage poster in their workplaces, and begin compensating employees at the higher rate.

President Bush signed a new law on May 25 increasing the federal minimum wage. The minimum wage increase will take effect incrementally over the next three years. Effective July 24, 2007, the minimum wages becomes $5.85 per hour. On July 24, 2008, the rate increases again to $6.55 per hour. On July 24, 2009, it increases further to $7.25 per hour.

Because of the new law, every employer subject to the Fair Labor Standard Act’s minimum wage provisions must post, and keep posted, a revised federal minimum wage poster. The poster must be displayed in a conspicuous place in all work establishments so employees can read it readily.

The Fair Labor Standards Act establishes minimum wage, overtime pay, recordkeeping, and child labor standards for full-time and part-time workers for privately owned businesses and federal, state and local governments.

For a copy of the new federal minimum wage poster, please go to the Department of Labor website: http://www.dol.gov/esa/regs/compliance/posters/flsa.htm

For more information on how to comply with the minimum wage laws at your business, please contact Sheehy, Serpe & Ware, P.C. attorney Steven O. Grubbs at 713-951-1014 for more information.

12-Jul-07 8:00 AM

Coverage Issues in Construction Defect Cases

noemail@sswpc.com — Wed, 06 Jun 2007 19:00:00 GMT

Most general liability insurance policies issued in Texas, including those issued to builders, contractors and others in the construction trade, are written on or borrow heavily from the copyrighted insurance forms promulgated by the Insurance Services Office, Inc. (“ISO”). The policy language quoted below is taken from recent ISO general liability forms (July 1998 and later editions) in use at this time...

Click here to view the entire article in PDF format.

6-Jun-07 2:00 PM

TADC EMPLOYMENT LAW NEWSLETTER -- FALL 2005

noemail@sswpc.com — Mon, 07 May 2007 14:00:00 GMT

tadc employment law newsletter -- fall 2005 R. Edward Perkins, Editor Benjamin C. Connally, Assistant Editor Adam Robison, Assistant Editor Chris M. Knudsen, Assistant Editor Sheehy Serpe & Ware, P.C. – Houston, Texas I. TEXAS SUPREME COURT DECISIONS A. Retaliatory Discharge - Sufficiency Of The Evidence In Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386 (Tex. 2005), Altagracia Hernandez was injured on the job while working for Haggar Clothing Company in February of 1991. Shortly thereafter, Hernandez took workers’ compensation leave and remained on leave until she received a letter from Haggar in February of 1992 terminating her employment pursuant to Haggar’s one year leave-of-absence policy. In response, Hernandez filed suit alleging that her termination constituted retaliation in violation of Section 451.001 of the Texas Labor Code. At trial, the jury awarded Hernandez both punitive and compensatory damages. The Court of Appeals...

7-May-07 9:00 AM

TADC EMPLOYMENT LAW NEWSLETTER - Spring 2007

noemail@sswpc.com — Mon, 07 May 2007 12:00:00 GMT

TADC EMPLOYMENT LAW NEWSLETTER -- Spring 2007 R. Edward Perkins, Editor Chris M. Knudsen, Assistant Editor Benjamin C. Connally, Assistant Editor William H. Whitaker, Assistant Editor Sheehy, Serpe & Ware, P.C. -- Houston, Texas I. TEXAS SUPREME COURT DECISIONS. A. Covenants Not To Compete – An At-Will Employee’s Covenant Not To Compete Becomes Enforceable When The Employer Performs The Promises It Made In Exchange For The Covenant. In Alex Sheshunoff Management Services, L.P. v. Johnson, 209 S.W.3d 644 (Tex. 2006), the Texas Supreme Court departed from a portion of its decision in Light v. Centel Cellular Co., 883 S.W.2d 642 (Tex. 1994), wherein the Court determined that, if a covenant not to compete is based on the employer’s promise of future performance (i.e., unilateral contract), such a covenant is not enforceable under the Covenants Not to Compete Act. In Johnson, Kenneth Johnson began working for Alex Sheshunoff Management Services in...

7-May-07 7:00 AM

TADC Employment Law Newsletter -- Spring 2006

noemail@sswpc.com — Wed, 21 Mar 2007 14:00:00 GMT

TADC EMPLOYMENT LAW NEWSLETTER -- Spring 2006 R. Edward Perkins, Editor Adam Robison, Assistant Editor Tamara Ruen, Assistant Editor Sheehy, Serpe & Ware, P.C. -- Houston, Texas I. TEXAS SUPREME COURT DECISIONS A. At-Will Employment In Matagorda County Hospital District v. Burwell, 49 Tex. Sup. Ct. J. 370 (February 24, 2006), Christine Burwell sued Matagorda County Hospital District for breach of contract and age discrimination after it terminated her employment. She claimed that the District’s policy manual limited the at-will nature of her employment such that the employer could only terminate her for cause. The manual provided that “employees may be dismissed for cause” and Burwell asserted that this statement was an agreement that employees would be dismissed only for cause. The trial court initially granted summary judgment to the District on the contract claim. Burwell appealed. The court of appeals reversed and remanded. The jury then...

21-Mar-07 9:00 AM

TADC Employment Law Newsletter -- Fall 2006

noemail@sswpc.com — Fri, 23 Feb 2007 15:00:00 GMT

TADC EMPLOYMENT LAW NEWSLETTER Fall 2006 R. Edward Perkins, Editor Ben Connally, Assistant Editor Tamara Ruen, Assistant Editor Sheehy Serpe & Ware, P.C. -- Houston, TX INTRODUCTION This newsletter summarizes and analyzes the most significant cases impacting the employment law practice since the Spring of 2006. While it is not a comprehensive digest of every case involving employment law during this period or of every holding in the cases discussed, we hope that you find the update both interesting and useful. The TADC Employment Law Newsletter is published twice a year and is written and edited by Sheehy, Serpe & Ware, P.C. shareholder Ed Perkins. Mr. Perkins specializes in the trial of employment law cases. (This newsletter was originally published by the Texas Association for Defense Counsel in October 2006). I. Texas Supreme Court Decisions A. At-Will Doctrine – Sabine Pilot clarification In Ed Rachal Foundation v. D’Unger, 49 Tex. Sup. Ct. J. 537...

23-Feb-07 9:00 AM

Are Texas Licensed Funeral Directors and Embalmers Exempt from Overtime Pay under the FLSA?

noemail@sswpc.com — Mon, 15 Jan 2007 22:00:00 GMT

Licensed Funeral Directors and Embalmers in Texas may no longer be exempt from receiving overtime wages under recent amendments to and interpretations of the Fair Labor Standards Act. Funeral directing firms in Texas that classify funeral directors and embalmers as exempt professionals may subject themselves to claims for back pay, fines, and attorneys fees as a result. For more detailed information, please review the following article, written by Sheehy Serpe & Ware, P.C. shareholder Steve Grubbs. Mr. Grubbs is an attorney who regularly practices funeral home and cemetery law in Texas. (This article originally appeared in Texas Director Magazine, January 2007)(Vol.55 Issue 1.)

Click to view full article: Are Texas Licensed Funeral Directors and Embalmers Exempt from Overtime Pay?

15-Jan-07 4:00 PM

Employer Alert: OSHA Announces Their 2006 Site-Specific Inspection Plan

noemail@sswpc.com — Fri, 07 Jul 2006 15:00:00 GMT

Do you know if OSHA has targeted your business for an inspection? If not, you may find the answer in OSHAs 2006 Site-Specific Targeting plan (SST)1. The SST lays out what categories of companies OSHA considers high priority targets for safety and health inspections this year. It amounts to a veritable Most Wanted list for OSHA Compliance Officers. the following analysis should help businesses assess the likelihood of an SST inspection at their establishment. It is important to note that the SST program is not the exclusive method OSHA utilizes to select employers for an inspection2. Rather, OSHA uses this methodology to determine one category of high priority targeted inspections. The chance of a SST OSHA inspection for most businesses will depend on the frequency with which their employees miss work, suffer work restrictions, or receive transfer assignments due to work injuries or illness. The source of this information comes primarily from OSHAs survey of employers incidents of...

7-Jul-06 10:00 AM

American Heart Association and American Academy of Pediatrics Publish New Ethical Guidelines for Resuscitation of Premature Newborns

noemail@sswpc.com — Fri, 30 Jun 2006 20:00:00 GMT

The ethical dilemma of when and when not to resuscitate a severely premature infant at birth has plagued the health care profession for decades. The dual phenomena of increased medical litigation and advances in the care of sick babies have, unfortunately, blurred rather than clarified this problem for the provider faced with a critically ill neonate. On May 15, 2006 the American Heart Association/American Academy of Pediatrics Neonatal Resuscitation Program Steering Committee provided some guidance in this area with its 5th Edition of the Textbook of Neonatal Resuscitation. The textbooks guidelines have been used since the 1980s by practitioners dealing with the tragic situation of an infant who needs resuscitation at birth. The latest edition of the guidelines provides several critical updates derived from evidence based medicine. Among these updates are suggestions as to when it may be considered reasonable to withhold resuscitative efforts. It is possible to identify...

30-Jun-06 3:00 PM

Significant Case Alert

noemail@sswpc.com — Wed, 17 May 2006 20:00:00 GMT

SIGNIFICANT CASE ALERT Amarillo Court of Appeals reverses $1,576,000 award in an Employers Liability for Gross Negligence case, holding there was legally insufficient evidence to support the jurys determination that the employer possessed actual subjective awareness of the risk that caused the death of its employee.1 In the latest sign that courts are cognizant of the high standard of proof required in such cases, the Amarillo Court of Appeals recently overturned a verdict in excess of one million dollars in an employers liability for gross negligence case. In an employers liability case, the heirs of a deceased worker may sue the employer for exemplary damages only if the death was the result of gross negligence.2 To succeed, however, the plaintiff must prove by clear and convincing evidence that the company was subjectively aware (the subjective element) of an extreme risk of death or serious bodily injury (the objective element), but the company nevertheless proceeded with...

17-May-06 3:00 PM

Electronic Data and Litigation

noemail@sswpc.com — Wed, 17 May 2006 15:00:00 GMT

Electronic Data and Litigation: Resolving A Companys Obligation To Preserve Electronic Data for Production in Litigation By Mario Menendez1 What obligation does a company have to preserve electronic data for possible production in litigation? This question is at the center of an ever-growing debate over the discovery of electronic data.2 Companies without a clear standard for the preservation of such data cannot adequately prepare for litigation and are at a significant disadvantage when litigation arises. As electronic data becomes an increasingly pervasive tool for communicating and exchanging information, federal courts are becoming less tolerant when a litigant fails to produce discoverable data. In turn, opportunistic litigants increasingly level spoliation charges based upon their adversaries failure to adequately preserve electronic evidence, and they are succeeding.3 A recent study of U.S. cases concerning sanctions for spoliation of electronic evidence reveals that the...

17-May-06 10:00 AM

Employer Alert

noemail@sswpc.com — Tue, 16 May 2006 21:00:00 GMT

Reminder to Employers: Post New Injury/Illness Summaries Today

Beginning February 1, 2006, employers must post a summary of the total number of job-related injuries and illnesses that occurred in the prior year. Employers are only required to post the OSHA Summary Form 300A -- not the OSHA 300 Log -- from February 1, 2006 to April 30, 2006. Copies of the OSHA forms 300, 300A and 301 are available for downloading on the OSHA Recordkeeping Web page¹. Employers who fail to post these summaries may subject themselves to fines for noncompliance.

For more information on OSHA compliance or OSHA litigation, please contact Steve Grubbs at Sheehy, Serpe & Ware, P.C. at (713) 951-1014. You may also visit the Firm's website at www.sswpc.com for more information.

Mr. Grubbs is Board Certified in Labor and Employment law by the Texas Board of Legal Specialization and regularly assists employers with OSHA law matters.

¹ http://www.osha.gov/recordkeeping/index.html

16-May-06 4:00 PM

Interlocutory Appeals in Texas

Fri, 18 Nov 2005 15:00:00 GMT

INTERLOCUTORY APPEALS IN TEXAS I. Overview A. In general, a party may only take an appeal from a final judgment. Northeast Independent School District v. Aldridge, 400 S.W.2d 893, 895 (Tex. 1966); see generally Tex. Civ. Prac. & Rem. Code Section 51.012 (jurisdiction of court of appeals). A few years ago, the courts were faced with a persistent problem of determining when a judgment rendered without a conventional trial on the merits is final for purposes of appeal. Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001). The use of a Mother Hubbard clause in a judgment caused some confusion about whether a judgment was final, because the trial court often did not intend to dispose of all parties and all issues in the order even though the court stated that all relief not specifically granted is denied. Mafrige v. Ross, 866 S.W.2d 590 (Tex. 1993). As a result of this confusion, the Court issued its opinion in Lehmann v. Har-Con Corp., supra which set forth the general...

18-Nov-05 9:00 AM

OSHA in Healthcare - What to do if OSHA Knocks at Your Door

noemail@sswpc.com — Wed, 09 Nov 2005 23:00:00 GMT

OSHA has recently named the healthcare industry as one of a handful targeted for intensified safety and health inspections in 2005.1 According to this directive, their inspections will focus primarily on ergonomic hazards relating to patient handling, exposure to blood and other potentially infectious materials, exposure to tuberculosis and slips, trips, and falls. In fact, nursing and personal care facilities make up the highest concentration of worksites on the targeted list for 2005. In addition, the Justice Department has recently joined forces with OSHA to identify and single out companies and their officers for criminal prosecution in addition to monetary fines for the nations most flagrant workplace safety violators.2 In light of this directive and the increasingly harsh nature of the penalties sought, the healthcare industry must prepare itself to handle the dramatic increase in the frequency of OSHA inspections. The purpose of this article is to provide healthcare...

9-Nov-05 5:00 PM

FLSA Compliance for Small to Medium Sized Employers

Wed, 09 Nov 2005 22:00:00 GMT

The Fair Labor Standards Act (FLSA) establishes minimum wage, overtime pay, recordkeeping, and child labor standards affecting full-time and part-time workers in the private sector and in Federal, State, and local governments. Overtime pay at a rate of not less than one and one-half times their regular rates of pay is required after 40 hours of work in a workweek. Although certain classes of employees are exempt from the FLSA requirements, most employees are entitled to be paid overtime. A recent poll of managing partners of law firms in Houston,Texas, revealed that employment law claims were rated as one of the fastest growing fields of law today.1 Why? Because employment law claims, and in particular FLSA claims, are increasing in terms of the number of cases filed, verdicts awarded and penalties assessed. In fact, the Department of Labor/Employment Standards Administrations Wage and Hour Division (WHD) recovered more than $212 million in back wages in fiscal year 2003 - a 21...

9-Nov-05 4:00 PM

OSHA’s New Multi Employer Citation Policy Directive: What is on the Horizon for Texas General Contractors and Subcontractors?

Wed, 09 Nov 2005 22:00:00 GMT

INTRODUCTION Shortly after the Occupational Safety and Health Act (the Act) was adopted in 1970, the Occupational Safety and Health Review Commission (the Commission) began having difficulty apportioning responsibility in situations where there was no direct connection between the employer controlling the site, and the employer creating the hazard. Moreover, employers who simply had employees exposed to the hazard, but neither had control over the employees or created the violation were likewise perplexing to the Commission. After struggling for years to reach a consensus as to when a certain employer should be cited for alleged acts of a third party, the Commission began to invoke a decisional policy they dubbed the multi employer workplace policy.1 On December 10, 1999, the Occupational Safety and Health Administration (OSHA or the Administration) released a clarification of its Multi Employer Citation Policy (MECP).2 This paper will begin by introducing the concept of the...

9-Nov-05 4:00 PM