Dallas Bar Association
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February 2019 Volume 44 Number 2
Partners in Philanthropy Campaign Exceeds $1.1 Million
BY MICHELLE ALDEN
Lisa Blue, of Baron & Blue, and Jeff Tillotson, of Tillotson Law, have joined forces to support this year’s Equal Access to Justice Campaign in the amount of $25,000. Lisa and Jeff are both long-time supporters of the Campaign and the Dallas Volunteer Attorney Program (DVAP). “DVAP is an organization that the Dallas community is so proud of,” said Lisa Blue. “I am especially glad to see DVAP working with various partners in the community to combine resources in order to achieve greater positive impact in the lives of our low-income neighbors. For example, DVAP and the UNT Dallas College of Law are working together to leverage the expertise and training of law students to assist DVAP appli- Lisa Blue cants at local legal intake clinics. There is a desperate need to provide legal aid for those who have no voice, and such partnerships work towards filling that need.” John VanBuskirk, who graduated last year from the inaugural class of UNT Dallas College of Law, got started early volunteering with DVAP. “Our first day of classes was August 11, 2014, and 10 days later I assisted at my first DVAP clinic. I was hooked. I helped with 31 DVAP clinics that first year. During law school, I performed 800 pro bono hours, and the one place I kept Jeff Tillotson returning to was DVAP,” John said. What benefits did he receive from working at the DVAP clinics? “It helped me to understand the law as I was seeing the law applied in real-life situations. The attorneys I encountered at the clinics became mentors in place of the alumni that the law school did not yet have. And although I expected to be treated like a law student, I was treated as a professional. Although I did not realize it at the time, I was also networking. Another great benefit for a busy law student is that the DVAP clinics helped me put life into perspective. Somewhere, someone else is happy with less than you have, and I saw this at each DVAP clinic. These folks did not ask for much, they just wanted to
be treated fairly. It also feels good to stick up for people who are treated unfairly just because they are poor and cannot afford an attorney.” John encountered landlords illegally retaining security deposits, a spouse refusing to honor a court order for visitation, a spouse needing to get out of an abusive relationship, a person who needed an expunction in order to get a job and housing, and a homeless quadriplegic whose benefits were being stolen. “I am now part of the first wave of alumni of the UNT Dallas College of Law. My advice to entering law students is to work with DVAP to get the most out of the law student experience.” John also shared an inspirational quote related to his pro bono work: “There is no greater calling than to serve your fellow men. There is no greater contribution than to help the weak. There is no greater satisfaction than to have done it well.” – Walter Reuther “The importance of pro bono work cannot be overstated,” added Jeff Tillotson. “In order for access to justice to have meaning in our society, the courthouse doors must be open to everyone. It is also an opportunity to give back and help those less fortunate. All of us at Tillotson Law are proud to support DVAP.” Because of contributions from donors like Lisa and Jeff, the Equal Access to Justice Campaign has surpassed $1.1 million this year. These contributions are what allow DVAP to continue to assist thousands of clients every year, working towards justice every day. DVAP is a joint pro bono program of the DBA and Legal Aid of NorthWest Texas. The program is the only one of its kind in Texas and brings together the volunteer resources of a major metropolitan bar association with the legal aid expertise of the largest and oldest civil legal aid program in North Texas. For more information, or to donate, visit www.dallasvolunteerattorneyprogram.org. HN Michelle Alden is the Director of the Dallas Volunteer Attorney Program. She can be reached at aldenm@lanwt.org.
Focus | Employee Benefits/Labor & Employment Law
Top Five Employment Law Cases from 2018 BY ELISAVETA DOLGHIH
Last year brought us some important employment cases both nationally and locally, which affect the drafting of employment agreements, employment policies, and litigation of employment disputes. This article provides a brief overview of the top five employment cases, in the author’s opinion, that will have significant effect on how Texas employers conduct business and address employment disputes in 2019 and beyond. 1. Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612 (2018). In this much anticipated decision, the U.S. Supreme Court ruled that the arbitration agreements in which employees agree to arbitrate any claims against their employers on an individual, rather than on a class action basis, are enforceable and do not violate the National Labor Relations Act. The Court explained that the Federal Arbitration Act (FAA) requires the courts to enforce arbitration agreements the way they are written, including waivers of class or collective actions by employees. This decision resolves a circuit split and once-and-for-all forecloses NLRB’s argument that the class action waivers in arbitration agreements violate employees’ rights to participate in concerted activities. The decision will almost certainly lead to more employers adding class-action waivers to their arbitration agreements. 2. Mount Lemmon Fire Dist. v. Guido, 202 L.Ed.2d 262, 264 (U.S. 2018). The U.S. Supreme Court held that state and local governments are covered employers under the Age Discrimination in Employment Act of 1967 regardless of the number of employees they have. In contrast, the ADEA, which prohibits age discrimination against anyone who is 40 years old or older, applies to private employers only if they have 20 or more employees. In reaching its conclusion, the Court unanimously adopted the Ninth Circuit’s reading of the statute resolving a circuit split. 3. In-N-Out Burger, Inc. v. NLRB, 894 F.3d 707 (5th Cir. 2018). The Fifth Circuit Court of Appeals held that employees of an Austin location of In-N-Out Burger had a right to wear “Fight for $15” buttons advocating a higher national minimum wage, at work. The employer asked employees to remove the buttons because they violated its uniform policy, leading to one employee filing an unfair labor practice charge with NLRB and complaining that the ban violated the National
Labor Relations Act (NLRA)’s Section 7, which gives employees the right to engage in “concerted activities” for the purpose of collective bargaining or mutual aid or protection. Both NLRB and the Fifth Circuit Court of Appeals rejected the restaurant’s argument that its unique public image and concern with food safety constituted “special circumstances” that justified the ban on buttons. Texas employers who ban their employees from wearing buttons at work should consider whether they can establish “special circumstances” before implementing such a ban. 4. Gardner v. CLC of Pascagoula, L.L.C., 894 F.3d 654, 657 (5th Cir. 2018). This case involved a Title VII claim from a nurse in an assisted living facility who alleged that she was sexually harassed by a patient with dementia and that she was retaliated against when she, as a self-protective measure, refused to attend the harasser. The Fifth Circuit Court of Appeals held that the record presented a genuine dispute of material fact of whether an assisted living facility took reasonable measure to prevent a resident from sexually harassing the nurse. This case highlights that Texas employers may be responsible for sexual harassment of their employees by third parties, such as company clients, vendors, or suppliers, and, therefore, must address such claims or risk potential liability. 5. Wittmer v. Phillips 66 Co., 304 F. Supp. 3d 627 (S.D. Tex. 2018). In this case, the Southern District of Texas was the first Texas court to recognize LGBT protections under Title VII. Although the court ultimately granted a summary judgment against the transgender employee who alleged that her offer of employment was rescinded due to her status, the court held that her “status as a transgender woman place[d] her under the protections of Title VII.” The court explained that transgender employees are protected from discrimination under Title VII under the sex stereotyping theory, which prohibits discrimination against those who do not conform to sex or gender stereotypes. While the Fifth Circuit has not yet opined on this issue, and Texas state law continued to allow employment discrimination based on sexual orientation or gender identity, this case signals a larger trend and will allow employees to make an argument for expanding the current protections for LGBT individuals in Texas. HN Elisaveta Dolghih is a partner at Lewis Brisbois Bisgaard & Smith LLP. She can be reached at leiza.dolghih@lewisbrisbois.com.
Inside 8 DBA Board Elects Chair and Vice Chair 12 Inaugural of Laura Benitez Geisler 17 Arbitrating Claims Under ERISA After EPIC 21 The Importance of Training to Avoid Employee Claims
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2 He a d n o t e s l D a l l a s B a r A s s o ciation
February 2019
Calendar February Events FEBRUARY 1-BELO Noon
FRIDAY CLINICS
“Where There Is Help There Is Hope: Understanding TLAP and Other Available Resources,” Trey Dowdy and Chris Ritter. (Ethics 1.00)* RSVP to yhinojos@dallasbar.org. Co-sponsored by the CLE and Peer Assistance Committees.
FEBRUARY 8 – NO FRIDAY CLINIC SCHEDULED FEBRUARY 15-NORTH DALLAS** Noon
“Helping Clients with Privacy in the Cloud and Related Ethical Responsibilities of Lawyers,” Peter Vogel. (Ethics 1.00)* Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor Fox Rothschild LLP. RSVP to yhinojos@dallasbar.org. Directory photographer available 11:00 a.m.-1:30 p.m.
FEBRUARY 15-BELO
Noon
“GDPR General Data Protection Regulation,” Suzy Fulton, Clement Osimetha and Kelce Wilson. (MCLE 1.00, Ethics 0.50)* RSVP to yhinojos@dallasbar.org.
FEBRUARY 22-OAK CLIFF Noon
Topic Not Yet Available. Oak Cliff Chamber of Commerce, 1001 N Bishop Ave, Dallas. RSVP to yhinojos@ dallasbar.org.
FRIDAY, FEBRUARY 1 Noon
Friday Clinic-Belo “Where There Is Help There Is Hope: Understanding TLAP and Other Available Resources,” Trey Dowdy and Chris Ritter. (Ethics 1.00)* RSVP to yhinojos@dallasbar.org. Co-sponsored by the CLE and Peer Assistance Committees. DAYL Assisting Lawyers in Transition Program
MONDAY, FEBRUARY 4
9:00 a.m. Environmental Law Section Symposium “2nd Annual North Texas Climate Change Symposium.” To register, or for more information, email erin.tanimura@gmail.com. (MCLE 5.25)* Noon
Tax Law Section “Overview of the New Foreign Tax Credit Provisions,” Ben Vesely. (MCLE 1.00)*
TUESDAY, FEBRUARY 5 Noon
Tort & Insurance Practice Section “Legal, Ethical & Privacy Risks to Lawyers Who Have Their Data in the Cloud,” Peter Vogel. (Ethics 1.00)*
6:00 p.m. Labor & Employment Law Section “Judicial Forum,” Hon. Ken Molberg, Hon. Maricela Moore, Hon. Irma Ramirez, and moderated by John Crouch. (MCLE 1.50, Ethics 0.50)* 6:00 p.m. DAYL Board of Directors Meeting
WEDNESDAY, FEBRUARY 6 Noon
Employee Benefits & Executive Compensation Law Section “Annual Round-Up on Notable 2018 Employee Benefits Related Litigation,” Michael Bennett and James Raborn. (MCLE 1.00)*
Solo & Small Firm Section “Blogging for Business Development,” Amy Boardman. (MCLE 1.00)*
Juvenile Justice Committee
Public Forum/Media Relations Committee
DAYL Judiciary Committee
DAYL Lunch & Learn CLE
THURSDAY, FEBRUARY 7 Noon
Construction Law Section “2019 Legislative Update,” Jack Bacley. (MCLE 1.00)*
Judiciary Committee
Lawyer Referral Service Committee
DBA/DAYL Moms in Law. Marc Jacobs Master Class at Neiman Marcus downtown. RSVP www. dayl.com/moms-in-law-master-class. DAYL Solo & Small Firm Committee
7:45 a.m. Dallas Area Real Estate Lawyers Discussion Group
Trial Skills Section “Deposition Perjury: Must You Disclose It?” Quentin Brogdon, Aimee Fagan, Prof. Fred Moss, and Hon. Irma Ramirez. (Ethics 1.00)*
MONDAY, FEBRUARY 11 9:00 a.m. Directory Photographer at Belo Noon
Alternative Dispute Resolution Section “New Judges’ Panel Discussion,” Hon. Melissa Bellan, Hon. Aiesha Redmond, moderated by Hon. Bonnie Goldstein. (MCLE 1.00)*
Real Property Law Section “School Finance, the 86th Legislative Session, and the Impact to Our Region and State,” Garrett Landry. (MCLE 1.00)*
Peer Assistance Committee
DAYL Membership Committee
TUESDAY, FEBRUARY 12 Noon
Immigration Law Section “H-1B Policy Changes and Preparing for this Year’s Cap-Subject H-1B’s,” Angela Lopez and Charla Truett. (MCLE 1.00)* Mergers & Acquisitions/Antitrust & Trade Regulation Sections “Ethics in Antitrust and M&A, Jeopardy Style,” Gorav Jindal and Tom Yang. (Ethics 1.00)*
Home Project Committee
Legal Ethics Committee
Dallas Women Lawyers Association Board Meeting
5:30 p.m. Transition to Law Practice Program “Transition to Law Practice Program Kickoff,” Justice Eva Guzman. (Ethics 1.00)* 5:30 p.m. DBA New Member Reception. Honoring our New DBA Members and Newly Licensed Attorneys. For more information, contact Kim Watson at kwatson@dallasbar.org. or (214) 220-7414. 6:00 p.m. J.L. Turner Legal Association
WEDNESDAY, FEBRUARY 13 Noon
Bankruptcy & Commercial Law Section “Consumer Mortgage Issues: Transfers and Rule 3002.1,” Thad Bartholow and Megan Clontz. (MCLE 1.00)*
Legal History Discussion Group “Law and Literature for the Practicing Lawyer: from Aeschylus to Wallace Stevens (including Anton Chekhov),” Jack Kinzie. (MCLE 1.00)* Co-sponsored by the CLE and Senior Lawyers Committees.
Summer Law Intern Program Committee
DAYL Get Involved Luncheon
Dallas Asian American Bar Association
Bench Bar Conference Committee
History, Challenges and Threats to the Independent Judiciary Thursday, February 28, Noon at Belo | MCLE 1.00 (pending) Speaker: Joel Collins, co-founder of Collins & Lacy, P.C. Interviewed by Hon. Martin Hoffman RSVP bavina@dallasbar.org
THURSDAY, FEBRUARY 21 Noon
Appellate Law Section “Practice Before the Fifth Circuit,” Hon. Catharina Haynes and Hon. James Ho. (MCLE 1.00)*
3:30 p.m. Judicial Investiture for Civil Court Judges Hon. Melissa Bellan, Hon. Aiesha Redmond, Hon. Paula M. Rosales, and Hon. Bridgett Whitmore.
Intellectual Property Law Section “Advanced Topics in IP Licensing,” Paul Herman. (MCLE 1.00)*
5:15 p.m. LegalLine. Volunteers needed. Contact sbush@ dallasbar.org.
Minority Participation Committee
Christian Legal Society
DAYL Animal Welfare Committee
Dallas LGBT Bar Association
THURSDAY, FEBRUARY 14
9:00 a.m. Jeff Coen Family Law Nuts & Bolts Video Contact vallejod@lanwt.org to register. (MCLE 6.00, Ethics 2.00)* Sponsored by DVAP and DBA Family Law Section. Noon
St. Thomas More Society
FRIDAY, FEBRUARY 8 Noon
Visit www.dallasbar.org for updates on Friday Clinics and other CLEs.
Government Law Section “Investigating and Evaluating Sexual Harassment Claims in the Age of #MeToo,” Christopher Klement and Darrell G-M Noga. (MCLE 1.00)*
CLE Committee
Criminal Justice Committee
Publications Committee
Christian Lawyers Fellowship
FRIDAY, FEBRUARY 15 Noon
North Dallas Friday Clinic “Helping Clients with Privacy in the Cloud and Related Ethical Responsibilities of Lawyers,” Peter Vogel. (Ethics 1.00)* Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor Fox Rothschild LLP. RSVP to yhinojos@dallasbar. org. Directory photographer available 11:00 a.m.1:30 p.m.
Friday Clinic-Belo “GDPR General Data Protection Regulation,” Suzy Fulton, Clement Osimetha and Kelce Wilson. (MCLE 1.00, Ethics 0.50)* RSVP to yhinojos@dallasbar.org.
Dallas Black Legal History Program “Why Dallas is Different: How Legislation and Case Law Shaped Dallas’ Legal Landscape,” Hon. Carolyn Wright Sanders, Cheryl Wattley, Randy Bacon, and moderated by Rhonda Hunter. (MCLE 1.00)* Co-sponsored by the Dallas Minority Attorney Program and Public Forum/Media Relations Committee.
MONDAY, FEBRUARY 18 Noon
Labor & Employment Law Section “It is All About the Benjamins: The Fight for Equal Pay,” Karen Fitzgerald. (MCLE 1.00)*
TUESDAY, FEBRUARY 19 Noon
Life Skills for Lawyers “Get Unstuck: 10 Questions to Transform a Conversation,” Nancy Wonders. (MCLE 1.00)*
Blockchain Law Study Group Topic Not Yet Available
Franchise & Distribution Law Section “Franchise Registration and Renewal Season 2019,” Elizabeth Griffin. (MCLE 1.00)*
International Law Section “International Criminal Law Beyond the Hague: Local Prosecutions of International Crimes,” Jenia Turner. (MCLE 1.00)*
Community Involvement Committee
6:00 p.m. Dallas Hispanic Bar Association
WEDNESDAY, FEBRUARY 20 Noon
Energy Law Section “Walking the Land: Easily Identifiable Environmental Issues In Oil and Gas Production,” Michael Reer. (MCLE 1.00)*
Health Law Section “Opioid Crisis and the Impact on Health Care Providers and Risk Management,” Susan Briones. (MCLE 1.00)*
Law in the Schools & Community Committee
Pro Bono Activities Committee
DAYL/DWLA Women’s Mentoring Circles
Non-Profit Law Study Group
5:15 p.m. LegalLine. Volunteers needed. Contact sbush@ dallasbar.org.
3:30 p.m. Judicial Investitures for Criminal Court Judges Hon. Chika Anyiam, Hon. Remeko Edwards, Hon. Rocky Jones, Hon. Judge Pamela Luther, Hon. Lela Mays, and Hon. Carmen White
FRIDAY, FEBRUARY 22 Noon
Oak Cliff Friday Clinic Topic Not Yet Available. Oak Cliff Chamber of Commerce, 1001 N Bishop Ave, Dallas. RSVP to yhinojos@dallasbar.org.
DBA/DAYL Moms in Law. At Ziziki’s (11661 Preston Rd. #309). RSVP christine@ connatserfamilylaw.com.
DAYL Deal Boot Camp Committee
MONDAY, FEBRUARY 25 Noon
Business Litigation Section “GC Roundtable: Keeping Business Litigators In The Know,” David McAtee, Randy Ebner, Stephanie Garcia, and Ama Romaine. (MCLE 1.00)*
Securities Section “2019 Enforcement Priorities for the Ft. Worth Regional Office of the U.S. Securities & Exchange Commission,” Marshall Gandy, Shamoil Shipchandler, and Eric Werner. (MCLE 1.00)*
Science & Technology Law Section “Effective Employee Monitoring–Technologies and Legal Implications,” Andy Jones. (MCLE 1.00)*
DVAP CLE “Landlord/Tenant Law: A Primer for the Volunteer Attorney,” Maryann D’Aniello. (MCLE 1.00)*
Golf Tournament Committee
TUESDAY, FEBRUARY 26 Noon
Probate, Trust & Estate Law Section Topic Not Yet Available
American Immigration Lawyers Association
Dallas Bar Foundation Board of Directors Meeting
DAYL Lawyers Promoting Diversity Committee
3:00 p.m. Tax Law Section “Blockchain - Understanding its Impact on the Professions,” Ed Kless, Lacey Shrum, and Doug Sleeter. (MCLE 2.00)* At the Prestonwood Country Club.
WEDNESDAY, FEBRUARY 27 Noon
Collaborative Law Section “Couples and Money – Financial Insights for Collaborative Divorce Professionals,” Lilsanne Glew. (MCLE 1.00)*
Entertainment, Art & Sports Law Section “The Regulation of Sports Agents in Texas,” Blake Barlow and Mike Powell. (MCLE 1.00)*
DAYL Equal Access to Justice Committee
DAYL Foundation Board of Directors
DVAP New Lawyer Luncheon. For more information, contact griffinh@lanwt.org.
Municipal Justice Bar Association
THURSDAY, FEBRUARY 28 Noon
Independence of the Judiciary “History, Challenges, and Threats to the Independent Judiciary,” Joel Collins and Hon. Martin Hoffman. (MCLE 1.00)*
Criminal Law Section “The First Step Act: What It Changes and Where It Can Help,” Tiffany Talamantez. (MCLE 1.00)*
Environmental Law Section “Blockchain: Environmental and Climate Change Applications,” Scott Deatherage. (MCLE 1.00)*
DAYL CLE Committee
If special arrangements are required for a person with disabilities to attend a particular seminar, please contact Alicia Hernandez at (214) 220-7401 as soon as possible and no later than two business days before the seminar. All Continuing Legal Education Programs Co-Sponsored by the DALLAS BAR FOUNDATION. *For confirmation of State Bar of Texas MCLE approval, please call Grecia Alfaro at the DBA office at (214) 220-7447. **For information on the location of this month’s North Dallas Friday Clinic, contact yhinojos@dallasbar.org.
Fe b ru a ry 2 0 19 â€
D al l as Bar A ssoci ati on l Headnotes 3
4 He a d n o t e s l D a l l a s B a r A s s o ciation
February 2019
President’s Column
Headnotes
Inaugural Address BY LAURA BENITEZ GEISLER
Taken from Inaugural Address given on January 12, 2019 Tonight I am reminded of how I felt the first time I walked into the Belo Mansion. It was during my first year of law school at SMU. And while I cannot remember what I was there to attend, I remember the nervous excitement I felt as I entered that historic mansion on Ross Avenue that the Dallas lawyers called home. To be fair, I was still in shock that I was in law school, memorizing the rules of civil procedure instead of the dinner specials at Macaroni Grill where I worked waiting tables all through college. I didn’t know any lawyers growing up in South Texas, and I had never been inside a mansion. It was both intimidating and humbling to be there, surrounded by members of a profession I longed to join, but with few who looked like me. Yet there I was. As I took in my surroundings, steeped in the history and tradition of this association of lawyers founded in 1873, those feelings started to fade and slowly give way to an overwhelming sense of pride and honor. Because it was then I started to realize that I was going to be a member of this honored profession and one day belong to the community of lawyers who call Belo home. Tonight feels much the same. I am filled with nervous excitement. I am humbled, standing up here surrounded by the people I love, many of my mentors, and colleagues I have admired and respected throughout my career. But more than anything, I am overwhelmed with pride and honor to be connected to the Dallas Bar in such a very special way. When I started to think about what I would say here tonight, I found myself drawn to the wall behind my desk. It’s because there, hanging among the various framed documents that tell you who I am as a lawyer on paper, is the one that guided my path along the way. It is a letter my Uncle Arnold wrote to me shortly after I passed the bar exam. At the time, Uncle Arnold was the editorial page editor at the Austin American Statesman, so he chose to deliver this letter to me in the newspaper with the caption “The Choice of Leadership: An uncle’s fond advice to a young lawyer starting out.” In his letter, Uncle Arnold, left me with 3 key reminders I believe are worth sharing here tonight. He said, don’t forget who you are and where you come from. Don’t forget the responsibility that comes with the privilege of your education and profession. Most importantly, don’t forget that while leadership is a choice, it is something you owe to those coming up behind you. Uncle Arnold, that was great advice. I took it to heart, and now I stand here before you and our family as the first Hispanic president of the Dallas Bar Association. There is nothing I value more than my family. And when I talk about my family, I include my family of friends. Most of whom are here tonight. Many of whom I met at the Belo when I was a young lawyer. You all know who you are. And since many of you were sure to remind me that I needed to keep the speech short, you can’t take offense I am not calling you out individually. But please know how much I love you and how much it means to have you here tonight. But if I am to never forget who I am and where I came from, there are 3 women in my family that I must recognize individually. Starting with my Grandma Bertha. Having recently celebrated her 89th birthday, it is fair to say that my grandma Bertha is one tough lady. She was seven when she went to work picking cotton in the fields of West Texas to help her family put food on the table. She worked hard her entire life. She has survived tremendous personal loss, having outlived her siblings, lifelong friends, my Grandpa Arnold, and my mom. But more remarkable than my Grandma Bertha’s inner strength and resilience is her capacity to make anyone in her presence feel love. When my daughter Erika was young, she described her great-grandma Bertha as the “Goddess of Loving.” No description could be more fitting. Because when you know her you can’t help but love her and to want to claim her as your own grandma. Or if you are like my friends Cherie and Karen, want to claim to be her favorite granddaughter. Next, I must recognize my literal reason for being, my biggest role model, and my guardian angel, my mom, Cindy. My parents divorced when I was young, so growing up it was just the two of us. It was not easy for my mom. She struggled to make ends meet. She struggled with the guilt of a working mom, and that I did not have two parents at home when she had to work long hours in order to provide for me. But my mom was a strong and determined woman. She was determined to make a better life for us and to send me a college, because she believed that having a college education would allow me to escape the same struggles she endured raising me. The choices she made were always measured and determined by whether it would set a good example for me. She was a woman of tremendous character, integrity, beauty
and grace who sacrificed and persevered in the face of adversity, all for her little girl. I was in my late 20s when she was diagnosed with cancer. Undeterred by the adverse circumstances that threatened to cut her life short, she was determined to live long enough to make special memories with her then unborn granddaughter that Erika would be old enough to remember once my mom was gone. She fought cancer with a level of courage, dignity and grace that served as an example not just to me, but to everyone around her. Although cancer took my mom from me physically the day before Erika’s 10th birthday, it could not take away her inner strength, integrity, dignity and grace. She left that behind with me, to give me courage when I am scared, to provide encouragement when I am ready to give up, to serve as my conscious when I am tempted to act inconsistent with the values she instilled in me, and to remind me of the obligation I owe to set a good example for her granddaughter, Erika. Which brings me to my last introduction, my daughter, Erika Geisler. Because when I look at her and see my mom, I am reminded where I come from. When I look at her, I also see who I am, and the person I want to be for her. Erika, My Love, if you remember nothing else I say tonight, I want you to remember these three things. To never forget who you are and where you came from, or the responsibility that comes from your education and privilege. To never forget that leadership is a choice. Leadership is not a title, it is who you are and the way you conduct yourself and it requires that you set a good example for yourself, those around you, and those who will come behind you. Most importantly, don’t forget how much I love you. I would like everyone to take a moment and think about what you value most in life. I ask that question to remind you of the importance of our personal connections to one another, because I am pretty sure that when you thought about what you value most in life you thought of those closest to you, not your possessions or status in the community. And it is the personal connections we have to the Dallas Bar community I would like to honor and celebrate tonight. We are all here because of a connection we have to the Dallas Bar community. Even if you are not a lawyer or a Dallas Bar member you are here tonight because in some way you are connected to the Dallas Bar, and THAT is the inherent value of this organization. The connections that underlie its existence and unite us together. With over 11,400 members, 30 sections, and 30 committees all with different areas of focus, there are many different reasons people choose to connect with the Dallas Bar community. For some, it is to connect to others who might bring them business. For others, it is to connect with like-minded lawyers who seek to give back to the community and profession in a way they could not alone. For many of us, it is a combination of these things and others. And the great thing about the Dallas Bar is that it offers so many ways for us to connect to one another so that collectively we can effectuate a greater good together than we could individually. Because as Uncle Arnold reminded me over 21 years ago we cannot forget the special responsibilities we have as lawyers beyond our own self-interests. As lawyers we have a responsibility to protect and defend the Constitution, rule of law and the independence of our judiciary. We have a responsibility to ensure access to justice for all, not just those who can afford legal representation. Because our profession suffers from a disproportionately high rate of depression, suicide and addiction-related issues, we have a responsibility to support and care for one another. As Dallas lawyers, we have a special responsibility to our local community to be leaders here at home. We have a special responsibility to mentor and support the professional development of the next generation of lawyers and to remind them of their responsibilities going forward. The Dallas Bar offers many ways for us to fulfill our special responsibilities to our community and profession, and in 2019 there will be more. But tonight, I just want everyone to focus on and celebrate the connections surrounding you right here, right now. Before I close, I have one more thank you. My new firm family at Sommerman, McCaffity, Quesada and Geisler for welcoming me and my beloved paralegal Deanna Inman, to the firm. I am very excited to start my year as DBA President with the support of my new partners, Andy Sommerman, Sean McCaffity, and Tex Quesada, along with DBA past president Al Ellis, and our three up and coming superstar lawyers, Jody Rodenberg, Alex Risinger, and Rebecca Neumann. I could not be more honored to represent the Dallas Bar in 2019 as its 110th President. Thank you for trusting me with this very special responsibility. I will do my best to make you proud of your connection to the Dallas Bar and to set a good example for the next generation of leaders. HN
Published by: DALLAS BAR ASSOCIATION
2101 Ross Avenue Dallas, Texas 75201 Phone: (214) 220-7400 Fax: (214) 220-7465 Website: www.dallasbar.org Established 1873 The DBA’s purpose is to serve and support the legal profession in Dallas and to promote good relations among lawyers, the judiciary, and the community. OFFICERS President: Laura Benitez Geisler President-Elect: Robert L. Tobey First Vice President: Aaron Z. Tobin Second Vice President: Karen D. McCloud Secretary-Treasurer: Ashlei Gradney Immediate Past President: Michael K. Hurst Directors: Vicki D. Blanton, Jonathan Childers, Chalon Clark, Sakina Rasheed Foster, Charles Gearing (President, Dallas Association of Young Lawyers), Rocio García Espinoza, Hon. Martin Hoffman, Krisi Kastl, Bill Mateja, Hon. Maricela Moore, Audrey Moorehead, Kathryne Morris, Cheryl Camin Murray (Vice Chair), Erin Nowell (President, J.L. Turner Legal Association), Javier Perez (President, Dallas Hispanic Bar Association), Sarah Rogers (President, Dallas Women Lawyers Association), Mary Scott, Jason Shyung (President, Dallas Asian American Bar Associations), Amy M. Stewart and Victor D. Vital Advisory Directors: Stephanie Gause Culpepper (PresidentElect, Dallas Women Lawyers Association), Isaac Faz (President-Elect, Dallas Hispanic Bar Association), Justin Gobert (President-Elect, Dallas Association of Young Lawyers), Andrew Spaniol (President-Elect, Dallas Asian American Bar Association), and Koieles Spurlock (President-Elect, J.L. Turner Legal Association) Delegates, American Bar Association: Rhonda Hunter, Mark Sales Directors, State Bar of Texas: Jerry Alexander, Rob Crain, David Kent, Gregory Sampson, and Brad Weber HEADNOTES Executive Director/Executive Editor: Alicia Hernandez Communications/Media Director & Headnotes Editor: Jessica D. Smith In the News: Judi Smalling Display Advertising: Tobin Morgan, Annette Planey, Jessica Smith Classified Advertising: Judi Smalling PUBLICATIONS COMMITTEE Co-Chairs: Andy Jones and Carl Roberts Vice-Chairs: James Deets and Beth Johnson Members: Timothy Ackermann, Logan Adcock, Wesley Alost, Stephen Angelette, Michael Barbee, David Black, Jason Bloom, Grant Boston, Andrew Botts, Emily Brannen, Jonathan Bridges, Amanda Brown, Angela Brown, Eric Buether, Casey Burgess, Cory Carlyle, Paul Chappell, Charles Coleman, Wyatt Colony, Shannon Conway, Natalie Cooley, Daniel Correa, G. Edel Cuadra, Jerald Davis, James Dockery, Elisaveta (Leiza) Dolghih, Angela Downes, Sheena Duke, Charles Dunklin, Alex Farr, Dawn Fowler, Juan Garcia, Britaney Garrett, Michael Gonzales, Andrew Gould, Jennifer Green, Kristina Haist, Susan Halpern, Bridget Hamway, Edward Harpole, Meghan Hausler, Jeremy Hawpe, Lindsay Hedrick, Marc Hubbard, Brad Jackson, Kristi Kautz, Thomas Keen, Daniel Klein, Michelle Koledi, Kevin Koronka, Susan Kravik, Jess Krochtengel, Dwayne Lewis, Margaret Lyle, Lawrence Maxwell, Jordan McCarroll, R. Sean McDonald, Kathryn (Kadie) Michaelis, Elise Mitchell, Terah Moxley, Daniel Murray, Jessica Nathan, Madhvi Patel, Keith Pillers, Kirk Pittard, Laura Anne Pohli, Luke Radney, Mark Rasmussen, Pamela Ratliff, David Ritter, F. Colby Roberts, Bryon Romine, Kathy Roux, Stacey Salters, Joshua Sandler, Matthew Sapp, Justin Sauls, Mazin Sbaiti, Mary Scott , Jared Slade, Thad Spalding, Jacob Sparks, John Stevenson, Scott Stolley, Elijah Stone, Amy Stowe, Adam Swartz, Ashley Swenson, Robert Tarleton, Paul Tipton, Michael Tristan, Tri Truong, Pryce Tucker, Adam Tunnell, Kathleen Turton, Peter Vogel, Suzanne Westerheim, Yuki Whitmire, Jason Wietjes, Sarah Wilson, Pei Yu DBA & DBF STAFF Executive Director: Alicia Hernandez Accounting Assistant: Shawna Bush Communications/Media Director: Jessica D. Smith Controller: Sherri Evans Events Director: Rhonda Thornton Executive Assistant: Liz Hayden Executive Director, DBF: Elizabeth Philipp LRS Program Assistant: Biridiana Avina LRS Interviewers: Viridiana Mejia, Marcela Mejia Law-Related Education & Programs Coordinator: Melissa Garcia Marketing Coordinator: Mary Ellen Johnson Membership Director: Kimberly Watson Projects Director: Kathryn Zack Publications Coordinator: Judi Smalling Receptionist: Grecia Alfaro Staff Assistant: Yedenia Hinojos DALLAS VOLUNTEER ATTORNEY PROGRAM Director: Michelle Alden Managing Attorney: Holly Griffin Mentor Attorneys: Kristen Salas, Katherine Saldana Paralegals: Whitney Breheny, Miriam Caporal, Tina Douglas, Andrew Musquiz, Joel Paniagua, Carmen Perales, Alicia Perkins, Star Rodriguez, Dominick Vallejo Program Assistant: Patsy Quinn Secretary: Debbie Starling Copyright Dallas Bar Association 2019. All rights reserved. No reproduction of any portion of this publication is allowed without written permission from publisher. Headnotes serves the membership of the DBA and, as such, editorial submissions from members are welcome. The Executive Editor, Editor, and Publications Committee reserve the right to select editorial content to be published. Please submit article text via e-mail to jsmith@dallasbar.org (Communications Director) at least 45 days in advance of publication. Feature articles should be no longer than 750 words. DISCLAIMER: All legal content appearing in Headnotes is for informational and educational purposes and is not intended as legal advice. Opinions expressed in articles are not necessarily those of the Dallas Bar Association. All advertising shall be placed in Dallas Bar Association Headnotes at the Dallas Bar Association’s sole discretion. Headnotes (ISSN 1057-0144) is published monthly by the Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. Non-member subscription rate is $30 per year. Single copy price is $2.50, including handling. Periodicals postage paid at Dallas, Texas 75260. POSTMASTER: Send address changes to Headnotes, 2101 Ross Ave., Dallas, TX 75201.
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6 H e a d n o t e s l D a l l a s B a r A s s o ciation
Focus
February 2019
Employee Benefits/Labor & Employment Law
Workplace Violence: What Employers Need to Know BY TERAH MOXLEY
With tragic mass shootings in the headlines at an alarming frequency, employers should be aware of legal obligations to provide a safe working environment for their employees. The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) states that nearly two-million American workers report being victims of workplace violence each year. While no specific OSHA standards address workplace violence, the Occupational Safety and Health Act (OSH Act) contains a general duty clause obligating employers to provide employees with a working environment “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” Though no specific enforcement standard currently exists, OSHA continues to develop its guidelines and enforcement pro-
cedures regarding workplace violence. The National Institute for Occupational Safety and Health classifies workplace violence into the following four types based on the relationship between the perpetrator and the victim: (1) criminal intent (where the perpetrator has no legitimate relationship to the workplace); (2) customer/client/patient; (3) worker-on-worker; and (4) personal/domestic (which overwhelmingly targets women). OSHA focuses primarily on the second type—workplace violence committed by customers or patients against workers. For example, in 2015, OSHA issued specific guidelines for preventing workplace violence for healthcare and social service workers. And, in 2017, OSHA assessed almost $200,000 in penalties against a Massachusetts psychiatric treatment center, alleging the facility violated the OSH Act’s general duty clause by failing to adequately protect employees from workplace violence.
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Thursday, February 21, 3:30 p.m. at the Belo Mansion Judges of the Criminal Court Judges Chika Anyiam, Remeko Edwards, Raquel Jones, Pamela Luther, Lela Lawrence Mays, and Carmen White
Additionally, OSHA has identified other industries at high risk of workplace violence, including correctional facilities, late-night retail establishments, and taxi services. Thus, employers in these industries are likely to face higher scrutiny from OSHA regarding workplace violence issues and should train supervisors and managers on what to expect during an OSHA inspection. Despite an emphasis placed on the second type of workplace violence, in 2017, OSHA informed its compliance officers that inspections may be initiated following workplace violence stemming from criminal intent. These same 2017 procedures state that OSHA should generally not initiate inspections in cases of worker-on-worker or personal violence. However, OSHA may determine on a case-by-case basis that an inspection is appropriate based on factors including whether the co-worker violence incident was foreseeable and its severity. In assessing whether an employer violated the OSH Act’s general duty clause after workplace violence has occurred, OSHA considers several factors, including whether the employer could have taken steps to eliminate or materially reduce the likelihood of the violent incident occurring. OSHA’s 2017 enforcement procedures contain several recommendations on this factor, such as the existence of an effective system for notifying employees when violence is occurring in the workplace, requiring employees to report all assaults or threats to a supervisor, and setting up a trained response team to respond to emergencies. Additionally, Employers should keep in mind that the OSH Act is not the only law implicated by violence in the workplace. Employees injured as a result of workplace violence may be eligible for workers’ compensation benefits. Further, when an employee is the perpetrator, injured third
parties could pursue negligence actions against the employer (e.g., negligent hiring, negligent retention). As a fundamental first step to avoiding or preventing workplace violence, employers should adopt a zero-tolerance policy toward workplace violence and train employees on this policy. For example, employers can prohibit firearms in the workplace. Though Texas law now permits “open carry” for handgun license holders, employers can still adopt a “no guns” policy. While including a written policy in an employee handbook is a good first step, employers seeking to effectively establish the workplace as gun-free should also post signs stating that firearms are prohibited. The Texas Penal Code contains specific requirements for such signs, separately addressing open carry and concealed handguns. (However, keep in mind that while employers can prohibit firearms in the workplace itself, employers cannot prohibit employees who lawfully possess a firearm or ammunition from transporting or storing such items in a locked, privately-owned vehicle in a parking area the employer provides for employees.) Additionally, employers should also develop emergency action plans, advising employees on steps to take should workplace violence occur. The statistics related to workplace violence are sobering. For example, homicides accounted for 10% of all fatal occupational injuries in the United States in 2016, according to the U.S. Bureau of Labor Statistics. By having robust policies, an effective emergency action plan, and regular trainings on both, employers set themselves on the right track to not only avoid potential liability but—more importantly—keep their employees safe. HN Terah Moxley is a partner at Estes Thorne & Carr PLLC. Board of Legal Specialization and can be reached at tmoxley@estesthornecarr.com.
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MCLE 6.00 | 2.00 Ethics Sponsored by the DBA Family Law Section and DVAP
For more information and an order form contact Judi Smalling at jsmalling@dallasbar.org or (214) 220-7452.
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8 He a d n o t e s l D a l l a s B a r A s s o ciation
February 2019
DBA Board Elects Chair and Vice Chair STAFF REPORT
At its January Organizational Meeting, the Dallas Bar Association Board of Directors elected Cheryl Camin Murray Chair of the Board and Kristina “Krisi” Kastl Vice-Chair of the Board for 2019. Ms. Camin Murray, a Partner at Katten Muchin Rosenman LLP, is a graduate of the University of Houston Law Center. Ms. Camin Murray was a CoChair of the 2017-2018 Equal Access to Justice Campaign, which raised over $1 million for legal services to the poor in Dallas County. She is currently the Board Advisor to the Public Forum/ Media Relations Committee and the Health and Intellectual Property Law Sections. She joined the DBA Board of Directors in 2015. Ms. Kastl, founder of Kastl Law, P.C., is a graduate of Texas Tech School of Law. She served as Co-Chair of the 2018-2019 Equal Access to Justice Campaign, and helped raise a record-breaking $1.1 million. Ms. Kastl is currently Board Advisor to the Entertainment Committee and the Entertainment, Art & Sports Law and Environmental Law
Cheryl Camin Murray
Sections. She joined the DBA Board of Directors in 2014. The Board also appointed Hon. Maricela Moore, 162nd District Court, to serve a one-year judicial at-large position. Judge Moore is a graduate of The George Washington University Law School. She is Board Advisor to the Judiciary/Judicial Investiture Commit-
Let’s Keep it Social. Follow Us! Find out what’s going on at the #DallasBarAssoc www.dallasbar.org
Kristina “Krisi” Kastl tee and the Immigration Law Section. Filling a one-year at-large director position is Amy M. Stewart. Ms. Stewart, a 2006 graduate of University of Missouri School of Law, is a Partner at Stewart Bradbury PLLC, where her practice focuses on personal injury matters and labor and employment law. She is currently Board Advisor to the Morris Harrell Professionalism Committee, and the Alternative Dispute Resolution and Construction Law Sections. The 2019 board also includes: President Laura Benitez Geisler; PresidentElect Robert Tobey; First Vice President Aaron Tobin; Second Vice President Karen McCloud; Secretary-Treasurer Ashlei Gradney; Immediate Past President Michael K. Hurst; Directors Vicki D. Blanton, Jonathan Childers, Chalon Clark, Sakina Rasheed Foster, Charles Gearing, Rocio García Espinoza, Hon. Martin Hoffman, Krisi Kastl, Bill Mateja, Hon. Audrey Moorehead, Kathryne “Kate” Morris, Erin Nowell, Javier Perez, Sarah Rogers, Mary Scott,
Hon. Maricela Moore
Amy M. Stewart
Jason Shyung, Victor Vital; ABA Delegates Rhonda Hunter and Mark Sales; and State Bar Directors: Jerry Alexander, Rob Crain, David Kent, Greg Sampson, and Brad Weber. HN
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Texas Trial & Appellate Lawyers
10 H e a d n o t e s l D a l l a s B a r A s s ociation
Column
February 2019
Black History Month
African-American Attorneys in Dallas: A Brief History of Time BY PAUL K. STAFFORD
It has been 10 years since the publication of SMU Professor Emeritus Darwin Payne’s outstanding work Quest for Justice: Louis A. Bedford, Jr. and the Struggle for Equal Rights in Texas—the unofficial biography of L.A. Bedford, Jr., and a chronicle of the history of African-American attorneys in Dallas and in Texas. Quest informs the reader as to the first African American to practice law in Texas (Allen W. Wilder), as well as the first two African-Americans to practice law in Dallas (Sam H. Scott and Joseph E. Wiley), and several of the legal trailblazers and pioneers of the Dallas legal community, such as D.M. Mason, William J. Durham, and Crawford B. Bunkley. One such legal trailblazer, J.L. Turner, Sr., was one of the first African-Americans to practice in Dallas until his passing in 1951. That same year, a young L.A. Bedford became a licensed attorney in Texas, and soon opened a law office in his State Thomas home. Turner’s trailblazing legacy continued through his son, attorney J.L. Turner, Jr., who was among a group of committed and courageous African-American attorneys (including newly licensed Bedford) who met on May 4, 1952 as the “Barristers Club,” to address some of the hardships of practicing law in segregated Dallas. The gathering was compelled by the innumerable injustices against AfricanAmericans preceding, and during, that time, specifically relating to the justice system and committed against litigants, attorneys, and even citizens reporting for jury service. Numerous incidents—including the 1910 lynching of wrongfully accused Allen Brooks at the Criminal Courts Building and his hanging from the Elk’s Arch at Main & Akard, and the brutal attack upon educator and potential venire
C.B. Bunkley
Hon. L.A. Bedford
man George F. Porter (resulting in his eventual blindness)—are but two painful, yet timeless examples of these injustices. W.J. Durham had his law office in Sherman burned down in May of 1930 (which prompted his move to Dallas), and African American lawyers of the time had their cases placed at the end of the docket and were met with disrespectful name-calling in the courts. The Barrister’s Club continued its mission of addressing (through legal means) issues impacting the African American community in Dallas, and in 1955, the organization changed its name to the J.L. Turner Legal Association (JLTLA) in honor of J.L. Turner, Sr. In the 65-plus years since the Barrister’s Club initial meeting, names have changed, but have the times? A lot has transpired in our City, our State, and our Nation, but is the imperative of the Barristers Club any less imperative presently? We have witnessed the rise of the baby-
boomers, the dismantling of overt segregation through federal and state promulgations, the migrations from the north back to the south and southwest, the unprecedented economic expansion of Sunbelt cities such as Dallas, and the opportunities for advancement that have become available to African-Americans and all within the region. We have also witnessed the continuing aftermath of the “Great Recession of 2008,” the persistent vestiges of prejudice and intolerance, and the continuing challenges of seeking justice and social equality within our society. We have seen the population of Dallas and of African Americans in Dallas increase dramatically, as well as the number of African-Americans entering the legal profession and the number of AfricanAmerican attorneys in Dallas—with some of the best and most prominent members of the Dallas legal community among them. We have also seen the glacial increase in the number of African-American partners at majority firms in Dallas from none to a handful, the number of African-American generals counsel from none to a few, and the number of African-American judges from none to several. Much has also transpired during the intervening 10 years since the publication of Quest, including eight years of the
Judicial Investitures at Belo
nation’s first African-American President, and the civil rights retrenchment and public discourse that has occurred during the last two years. Through the JLTLA, the Dallas Bar Association, and other organizations, the work of social justice and addressing inequality continues today, but there continues today much work to be done. L.A. Bedford, Jr. dedicated a lifetime to service, was a long-standing member of the DBA, was a founder and life-long member of what is presently JLTLA, but his attendance at the initial gathering of the Barrister’s Club was undoubtedly compelled by his early insight recited in Quest: “[A]s he grew older and learned more about the community around him, Bedford became aware of the discrimination awaiting him as an adult.” Are we aware, and are we prepared to address such discrimination in all forms— past, present, and future? Only by answering in the affirmative can we articulate and inform a vision for Dallas that is more indicative of our future than reflective of our past. HN Paul K. Stafford is Counsel at Thompson & Knight LLP and served as the 2002 President of JLTLA and the 2012 President of the DBA.
Dallas Black Legal History Program “Why Dallas is Different: How Legislation and Case Law Shaped Dallas’ Legal Landscape” Friday, February 15, Noon at Belo | MCLE 1.00 Speakers: Hon. Carolyn Wright Sanders, Cheryl Wattley, Randy Bacon, and Rhonda Hunter, moderator The DBA hosted the Judicial Investitures of Judge Sandra Jackson, of the 302nd District Court, shown with DBA President Laura Benitez Geisler (above), and Judge Audrey Moorehead, of County Criminal Court Number 3 (below), shown with Lindsey Rames, Judiciary Committee Chair; Ms. Geisler, Judge Sam Lindsay, Rhonda Hunter, and Chief Justice Carolyn Wright Sanders, Ret.
This is a one hour presentation featuring federal case law and state statutes affecting Dallas’ historical and ethnic communities. Co-Sponsored by the Dallas Minority Attorney Program and Public Forum/Media Relations Committee.
Fiesta For more information, or for sponsorship opportunities, contact kwatson@dallasbar.org.
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D al l as Bar A ssoci ati on l Headnotes 11
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12 He a d n o t e s l D a l l a s B a r A s s ociation
February 2019
The Inaugural of Laura Benitez Geisler The Inaugural of Laura Benitez Geisler, DBA’s 110th President, was held January 12, 2019, at the Omni Dallas. It was an elegant evening, with fashionably dressed guests, a silent and live auction, a casino party, and dancing. Each year, the Inaugural is the culmination of the Campaign for Equal Access to Justice. This year, an amount of $1,135,381 was raised for the Dallas Volunteer Attorney Program. Congratulations to this year’s Ticket to Drive Raffle winner: Mary Steichen, who will take home a 2019 Mercedes Benz and runner up Janie James, winner of the Getaway Trip Package.
THANK YOU Sommerman, McCaffity, Quesada & Geisler, L.L.P. for underwriting the Inaugural Casino Party!
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D al l as Bar A ssoci ati on l Headnotes 13
110th President of the DBA
Tuesday, February 19 | Noon | Belo MCLE: 1.00 Pending Get Unstuck: 10 Questions to Transform a Conversation
with
The Dallas Bar Association and the Dallas Hispanic Bar Association are excited to announce an up coming CLE Abroad™ experience in Mexico City this coming May 2-5, 2019. We invite you and your guest(s) to join our private delegation for a journey through Mexico’s ancient history and present-day realities by exploring Mexico’s rich cultural scenes, from its vivacious art to savory culinary spectaculars. Our program will immerse us in the real Mexico by engaging with local scholars, attorneys, and artists who will offer insightful commentary on the Mexican legal and political system, USMexico relations, art, history, architecture, and religion. For those who wish to arrive early, we are also extending an opportunity to provide service and assistance to vulnerable migrants who are settling and beginning their process of local integration into Mexico City. You do not want to miss this weekend getaway and opportunity to experience the best of Mexico’s vibrant Capital City while receiving CLE credit!
Nancy Wonders The Wonders Consultancy, LLC Life Skills for Lawyers is a new program series for 2019 offering education and training on various life skills that will aid in cultivating and maintaining meaningful connections.
* To request a brochure and registration information, please contact Judi Smalling at jsmalling@dallasbar.org.
MEXICO CITY
MAY 2-5, 2019
14 H e a d n o t e s l D a l l a s B a r A s s o ciation
Focus
February 2019
Employee Benefits/Labor & Employment Law
Supreme Court Strikes Down Compelled Public-Sector Union Fees BY JASON E. WINFORD
In Janus v. AFSCME, the U.S. Supreme Court held that the First Amendment prohibits states and public-sector unions from requiring public employees to pay union fees without their consent. The Court’s June 2018 decision, a 5-4 opinion by Justice Alito, expressly overruled a longstanding precedent as “wrongly decided.”
Background
Many states, including Texas, have right-to-work laws that prohibit workers from being forced to join a union or pay union fees. However, some 22 states, plus the District of Columbia, require government employees to pay union fees as a condition of employment. Forty-one years ago, the Supreme Court in Abood v. Detroit Bd. Of Ed. said this type of “agency shop” arrangement did not violate the First Amendment. In Abood, the Court held that public employees who did not want to join their union could still be forced to pay an “agency fee” to cover the union’s costs for collective bargaining, contract administration, and grievance adjustment. But the union could not, under the First Amendment, require
non-union members to pay for political and ideological activities, as long as they made their opposition known. Beginning in 2012, the Court began expressing misgivings about Abood, but did not directly overrule it. Later, in 2016, the Court in Friedrichs v. California Teachers seemed poised to overrule Abood, but Justice Scalia’s untimely death resulted in an equally divided Court, leaving Abood intact for the moment. Abood finally met its predicted demise in Janus.
Facts
Mark Janus was employed by the State of Illinois. Consistent with Abood, Illinois law allowed public sector unions to charge nonmembers an agency fee—i.e., a percentage of full union dues—for collective bargaining-related activities. The agency fee for these so-called “chargeable” expenditures was automatically deducted from employees’ wages; employee consent was not required. As a public employee, Janus was represented by a public-sector union. Although he refused to join the union because he opposed many of its policy positions, he was still required to pay an agency fee of $44.58 per month, which amounted to 78
NEED TO REFER A CASE? The DBA Lawyer Referral Service Can Help. Log on to www.dallasbar.org/lawyerreferralservice or call (214) 220-7499.
percent of full union dues. Janus filed suit claiming the agency fee deduction violated his First Amendment rights. Relying on Abood, the lower courts dismissed his claim.
Abood Overruled
The Janus majority held that agency fees cannot survive First Amendment scrutiny. First, the Court reasoned that Abood’s two justifications for upholding agency fees—the state’s interest in labor peace and the avoidance of “free riders”— do not meet the exacting scrutiny standard required by the First Amendment. Labor peace, while a compelling state interest, can be achieved by less compelling means than requiring agency fees. And avoiding free riders—i.e., nonmembers who benefit from the union but do not bear the costs— is not a compelling state interest. The Court also rejected the union’s efforts to justify Abood based on the First Amendment’s original meaning and on a line of cases allowing the government to limit individual public employee’s free speech rights in some circumstances. Finally, stare decisis could not save Abood. The Court explained that Abood was poorly reasoned; it lacked workability in trying to draw a line between chargeable and nonchargeable union expenditures; its underpinnings have been eroded by subsequent developments; and any union reliance on Abood in light of its questionable status does not outweigh the abridgement of employee free speech rights. Thus, public-sector unions may no longer deduct agency fees from a nonmember’s wages unless the employee affirmatively consents. Such consent cannot be
presumed, and must be freely given and shown by clear and compelling evidence. After Janus, public sector unions may see fewer members and revenues from fees, although predictions vary. More significantly, Janus opens the door for new lawsuits seeking to enforce or expand its key holdings, including: Individual and class actions by government workers to recover years’ worth of union fees collected without the affirmative consent Janus requires. Legal challenges to new union-friendly state laws that are being passed to counter the effects of Janus. Lawsuits seeking to invalidate privatesector union security clauses in the airline and railroad industries under the Railway Labor Act (RLA), where there is arguably sufficient state action to invoke Janus. Indeed, in Rizzo-Rupin v. International Association of Machinists and Aerospace Workers, which was just filed in New Jersey federal district court on January 8, 2019, several United Airlines employees are relying on Janus in seeking to have agency fees declared unconstitutional in the RLA context. Efforts to extend Janus to strike down mandatory state bar membership requirements, which have similarities to public sector agency shop arrangements. In fact, in Fleck v. Wetch, the 8th Circuit recently upheld North Dakota’s integrated bar association, but in December, 2018 the Supreme Court remanded the case for further consideration in light of Janus. HN Jason E. Winford is an attorney with Jenkins & Watkins, P.C. and is board-certified in Labor & Employment Law by the Texas Board of Legal Specialization. He can be reached at jason_winford@yahoo.com.
Play Golf & Support Access to Justice Save the date for the 27th Annual DBA Golf Tournament
Thursday, April 18, 2019 at Cowboys Golf Club
TREAT YOUR CLIENTS TO A GAME OF GOLF! Registration includes lunch, dinner, on-course drinks, goody bag and more. To keep things moving, we have secured exclusive use of the course and we will limit play to the first 128 golfers. The tournament is a 4-person scramble format. Check-in and practice range open at 10 a.m. and shotgun start is at 1:00 p.m. A reception and awards dinner will follow the tournament.
For more information on sponsorships, contact Rhonda Thornton at rthornton@dallasbar.org.
HELP PRESERVE BELO—BECOME A SUSTAINING MEMBER RECEIVE PROMINENT RECOGNITION IN HEADNOTES AND AT OUR ANNUAL MEETING.
Your 2019 dues statements will arrive soon and we ask that you consider renewing as a Sustaining Member ($500). 200,000+ members and guests use the building each year and your contribu�on at the Sustaining Member level will help us con�nue the essen�al upkeep needed to preserve our beau�ful building—as the premiere bar headquarters in the na�on. Thank you for your support. All Sustaining Members will be prominently recognized in Headnotes and at our Annual Mee�ng.
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Focus
D al l as Bar A ssoci ati on l Headnotes 15
Employee Benefits/Labor & Employment Law
Biometrics in the Workplace BY AMANDA E. BROWN
Texas and other states restrict employers’ use of employee biometric data. Unfortunately for employers, the laws vary in scope and requirements, but they all have the potential for significant penalties. While employers may be aware of obvious biometric activities—e.g., hand scanning for timekeeping purposes, they may not be aware of less obvious activities—e.g., fitness trackers that are part of an employers’ wellness programs. It is important for employers to be aware of current biometric privacy laws, as well as numerous proposed biometric privacy laws, to ensure that their policies comply with the legal requirements in all of the states where they operate.
What Is Biometric Data?
To begin, it is helpful to get a sense of what constitutes biometric data. However, like the restrictions surrounding the use of biometric data, the definition of biometric data will vary depending on the jurisdiction. At its most basic level, biometric data consists of personal data that cannot be re-created, such as an individual’s retina. Unlike a social security number, if a template of an individual’s retina is misappropriated by a third-party, the individual cannot go out and get a new retina like he or she can with a new social security number. Because of the immutable nature of biometric data, states have determined it merits greater protection and enacted biometric privacy laws.
Texas’ Biometric Law
In 2009, Texas passed the Capture or Use of Biometric Information Act (CUBI). CUBI prohibits a person from capturing an
individual’s biometric data for a “commercial purpose” unless the person informs the individual in advance and receives consent. CUBI does not specify whether consent must be written and it does not define “commercial purpose.” Given the lack of case law interpreting CUBI, employers cannot be sure if using an employee’s handprint for timekeeping purpose would qualify as a commercial purpose or not. CUBI also prohibits a person from selling an individual’s biometric data unless a few narrow exceptions apply. In addition, the person capturing biometric data must store, transmit, and protect the data using reasonable care that is either as protective, or more protective, than the care used for other confidential information. Finally, biometric data must be destroyed within a reasonable time, but no later than the one year after the purpose for which the data was collected expires. For an employer, it would likely be required to dispose of an employee’s biometric data no later than a year after the employment relationship ends. CUBI imposes penalties of up to $25,000 per violation. It is possible that every time an employee scans his or her hand to clock-in/out constitutes a single violation. If an employer is non-compliant with CUBI for even a couple of months, the penalties could be enormous. However, there is no private cause of action under CUBI, which is enforced only by the Texas Attorney General.
Other Biometric Laws
attractive to the plaintiffs’ bar because it allows the recovery of attorneys’ fees, and up to $1,000 for each negligent violation or $5,000 if the violation was willful. BIPA imposes greater requirements on employers than CUBI. Under BIPA, an employer must provide written notice to employees, obtain written consent from employees, and develop a specific BIPAcompliant policy that is publicly posted. Like CUBI, employers subject to BIPA must use a reasonable standard of care when handling biometric data. BIPA also prohibits employers from profiting from biometric data, and restricts employers’ disclosure of biometric data unless there is disclosure-specific consent. Washington: Washington passed its biometric privacy law in 2017. Like CUBI, Washington requires notice and consent, imposes a reasonable care standard, does not have a private cause of action, and is limited to “commercial purpose.” How-
ever, Washington imposes penalties of up to $500,000 per violation, and defines “commercial purpose” as any “purpose in furtherance of the sale or disclosure to a third party of a biometric identifier for the purpose of marketing of goods or services when such goods or services are unrelated to the initial transaction in which a person first gains possession of an individual’s biometric identifier.” In Washington, collecting biometric data for timekeeping purposes would likely not be within the scope of the statute. Other States: Several other states have considered or are currently considering biometric privacy laws, including Alaska, California, Connecticut, Idaho, Massachusetts, Montana, New Hampshire, and New York. Employers should follow developments and be prepared to comply as changes warrant. HN Amanda E. Brown is an associate with Morgan, Lewis & Bockius LLP. She can be reached at amanda.brown@morganlewis.com.
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Illinois: In Illinois, there is the Biometric Information Privacy Act (BIPA) that has recently become a popular class action vehicle. Unlike CUBI, BIPA has a private cause of action. BIPA is particularly
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16 H e a d n o t e s l D a l l a s B a r A s s o ciation
February 2019
Post-Trial Motions in Texas State Court BY JASON N. JORDAN
An appeal is not the only means to obtain relief from an unfavorable outcome at trial. Post-trial motions can also enable a party to resurrect victory from the ashes of defeat, and they provide important error preservation opportunities. The following are some useful motions to consider in Texas state court. A party seeking to overcome unfavorable jury findings should consider filing a motion under Texas Rule of Civil Procedure 301 to disregard jury findings (which challenges only some of the findings) or for JNOV (which challenges all findings). These motions are ordinarily filed before the court renders judgment. To prevail, the movant needs to show that a directed verdict would have been proper or that a finding has no support in the evidence, meaning the evidence is either missing entirely or so weak that it does no more than create a surmise or suspicion. The movant may also show that the evidence conclusively establishes the opposite of a vital fact, or that a legal rule or principle negates the evidence offered to prove a fact. Notably, unlike under
Federal Rule of Civil Procedure 50, a party can assert a “no evidence” argument under Rule 301 regardless of whether the party moved for a directed verdict earlier in the case. Another important tool in the post-trial arsenal is the motion for new trial. This motion can be used to eliminate or reduce an adverse judgment, and at the very least, it extends the timetable for appealing a judgment from 30 days after the judgment was signed to 90 days thereafter. Unlike motions under Rule 301, which are governed by strict legal standards, a motion for new trial under Texas Rule of Civil Procedure 320 affords the court considerable discretion. The motion should specifically identify each point of alleged error because a court may not consider generalized grounds for a new trial. The motion must also be filed within thirty days after the date the judgment is signed, and a motion for new trial is a prerequisite to raising certain issues on appeal, which are listed in Texas Rule of Civil Procedure 324(b). As a matter of strategy, at least three factors weigh in favor of filing a motion for new trial. First, it gives
the trial court one last chance to correct an error that will be raised on appeal. Second, it preserves error for appeal and is the exclusive means of doing so with respect to certain errors. Finally, it extends the appellate timetable and provides an opportunity for counsel to continue organizing and preserving points for appeal. Related to the final point, a party should consider raising “no evidence” issues in at least one vehicle besides a motion for new trial; otherwise, a successful party’s relief on appeal could be limited to remand for a new trial rather than rendition in its favor. An additional post-trial motion to keep in mind is a motion under Texas Rule of Civil Procedure 329b(g) to modify, correct, or reform the judgment. This motion is appropriate when the judgment does not award a party all of the relief it is entitled to, awards the other party more relief than it is entitled to, or contains any other error. This motion can be filed by either the successful or unsuccessful party, and it is often combined with or filed concurrently with a motion for new trial because it is subject to the same deadlines. Like a motion for new trial, a
motion to substantively modify, correct, or reform a judgment delays the date the judgment becomes final. And like a motion for new trial, a timely motion to substantively modify the judgment extends the deadline for filing a notice of appeal to 90 days after the judgment is signed. If the trial court modifies the judgment, whether materially or not, then the appellate timetable restarts. But it is important to remember that even though any change should restart the appellate timetable, only a motion that seeks a substantive change to the judgment will extend the court’s plenary power under Texas Rule of Civil Procedure 329b(g). To correct mere clerical errors in a judgment, a party should file a motion for judgment nunc pro tunc under Texas Rule of Civil Procedure 316. Post-trial motions are a powerful tool that should not be overlooked. This article has covered the basic attributes of certain motions, but, as always, counsel should frequently consult the relevant state and local rules. HN Jason N. Jordan is an associate at Haynes and Boone, LLP. He can be reached at jason.jordan@haynesboone.com.
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Fe b ru a ry 2 0 1 9
Focus
D al l as Bar A ssoci ati on l Headnotes 17
Employee Benefits/Labor & Employment Law
Arbitrating Claims Under ERISA After EPIC BY ELI BURRIS
In 2018, the U.S. Supreme Court issued its opinion in the consolidated cases of Epic Systems Corp. v. Lewis, Ernst & Young LLP v. Morris, and National Labor Relations Board v. Murphy Oil USA, Inc., holding that arbitration agreements requiring employees to arbitrate claims against an employer on an individual—rather than on a class or collective basis—are enforceable and do not violate the National Labor Relations Act (NLRA). While Epic Systems seemed to close the door on whether employees may be required to arbitrate claims on an individual basis, the Ninth Circuit Court of Appeals, in Munro v. University of Southern California, identified a limitation on the scope of arbitration clauses of particular importance for employee-benefits counsel. Before turning to the Munro opinion, a closer look at the Supreme Court’s opinion in the Epic Systems opinion is helpful. In that opinion, the Court reviewed decisions of lower intermediate courts’ differing conclusions on the enforceability of employee arbitration clauses that required arbitration under the Fair Labor Standards Act (FLSA) on an individual basis. The Seventh and Ninth Circuits held that agreements requiring bilateral arbitrations were not enforceable, while the Fifth Circuit enforced a bilateral arbitration agreement. Before the Supreme Court, the employees—backed by an amicus brief from the Department of Labor—advanced three primary arguments in support of unenforceability: (1) the arbitration provisions violated the NLRA, making them unenforceable under the Federal Arbitration Act’s (FAA) saving clause; (2) the arbitration agreements violated Section 7 of the
NLRA, which protects concerted activities; and (3) the Court’s previous interpretation of the NLRA holding that class action waivers were invalid under the FAA. The Court rejected each of these arguments and determined that under the FAA savings clause, courts can only refuse to enforce arbitration agreements on grounds generally applicable to all contracts, such as fraud or duress, and not on defenses that target arbitrations under the FAA. Additionally, the Court held that the arbitration agreements did not violate Section 7 of the NLRA, noting that Section 7 focuses on employees’ right to engage in concerted activities, including collective bargaining and engaging in concerted activities for the purpose of collective bargaining or other practices. Because Section 7 does not mention class or collective action procedures, and no other evidence implies a legislative intent to displace the FAA, the Court held that Section 7 did not render the employees’ agreements to arbitrate unenforceable. Finally, the Supreme Court rejected the argument that it should defer to the Department of Labor’s 2012 pronouncement that arbitration agreements containing class or collective action waivers violate the NLRA because the waivers inhibit employees from engaging in protected concerted activity. Despite the apparent conclusiveness of Epic, the Ninth Circuit, in Munro, declined to enforce employees’ agreements to arbitrate claims that arose out of their employment with the University of Southern California (USC). The plaintiff employees signed mandatory arbitration agreements upon beginning their employment with USC. Subsequently, the employees instituted a putative class action on behalf of
participants of the school’s retirement plans, asserting claims against USC for breach of fiduciary duty under the Employment Retirement Income Security Act (ERISA). Because the employees’ agreements included arbitration provisions, USC moved to compel arbitration on an individual basis, arguing that the agreements did not expressly permit class arbitrations. The district court denied the motion, reasoning that the claims were asserted on behalf of the retirement plan, which was not a party to the arbitration agreements. Thus, the parties’ claims asserted under ERISA for the benefit of the plan were not subject to arbitration. In affirming the district court, the Ninth Circuit, noted that the agreements only applied to the employees and USC and did not apply to claims belonging to “other entities” with potential claims against USC.
In sum, because the claims were brought in the representative capacity for the benefits of the plan, and the plan was not bound by the arbitration agreements, the plaintiffs’ claims for breach of fiduciary duty were not subject to arbitration. Notably, other federal courts have reached a similar conclusion. The District Court for the Southern District of Ohio, in Brown v. Wilmington Trust, N.A., determined that when employees bring claims for breach of fiduciary duty under ERISA in a representative capacity and not for individualized harm, such claims will not be subject to arbitration where the agreement to arbitrate only binds the employees and do not expressly bar class proceedings. HN Eli Burris is a Partner at McDermott Will & Emery LLP. He can be reached at eburriss@mwe.com.
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18 H e a d n o t e s l D a l l a s B a r A s s o ciation
Focus
February 2019
Employee Benefits/Labor & Employment Law
Risks and Rewards of No-Poach Agreements BY STEPHEN FOX AND THEANNA SEDLOCK
No -poach agreements—wherein companies, usually competitors, agree not to recruit or hire each other’s employees— have become the subject of increased scrutiny from both federal and state enforcement agencies. A recent flurry of government enforcement actions and private class actions provide a warning to employers about the potential civil and criminal liability they face for entering into agreements that have the effect of limiting employee mobility or suppressing wages. Governmental scrutiny in this area has historically focused on restaurant chain franchise agreements, many of which contained provisions that prevented employees of one franchise location from being hired by another location for a certain period of time. However, enforcement actions have recently expanded to target employers in many other industries. The Washington State Attorney General, for example, negotiated agreements to eliminate the nationwide use of no-poach clauses with 30 chain corporations, including Anytime Fitness, Planet Fitness, Baskin Robbins, Circle K, and Domino’s. When sandwich chain Jersey Mike’s refused to remove no-poach clauses from its franchise contracts, the State of Washington promptly filed suit against it in October 2018. The Department of Justice (DOJ) interprets naked no-poach agreements (i.e., those that are not reasonably necessary to any separate, legitimate business collaboration between the employers) to impermissibly constrain competition in the same irredeemable way as agreements to fix product prices or allocate customers. In its October 2016
“Antitrust Guidance for Human Resource Professionals,” the DOJ warned companies that not only would they be subject to civil antitrust liability for entering into naked no-poach agreements, but culpable companies and individuals will also be the target of criminal felony charges. Recently, two of the world’s largest rail equipment suppliers entered into a settlement with the DOJ to resolve a lawsuit alleging that the companies unlawfully maintained agreements not to compete for each other’s employees. The DOJ’s press release noted that the alleged conduct was discovered and terminated before the October 2016 Guidance, and thus, the DOJ addressed the conduct through a civil action—a message that reinforced the DOJ’s stated intention to pursue criminal charges for violations that occur after October 2016. Prosecution by governmental entities is not the only litigation risk posed by the use of no-poach agreements. Employers also face expensive class action litigation. For example, in December a former Papa John’s worker brought a proposed class action against the chain in New York federal court, targeting allegedly anti-competitive deals prohibiting franchise members from poaching workers, with the new complaint contending Papa John’s’ deals are even worse than other no-poach agreements already dubbed “per se” illegal by the DOJ and the Federal Trade Commission. Despite the significant increase of enforcement activity in this area, there are certain types of non-solicitation or no-hire agreements that remain permissible. Nonsolicitation agreements, for example, are commonly used in connection with the sale of a business to protect the value of the
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selling business. These agreements are still permissible so long as they are ancillary to a legitimate business transaction and contain reasonable limitations as to scope and duration. Additionally, where companies have begun exchanging information in the due diligence process, no-poach agreements are permissible so long as they are employed in connection with a legitimate proposal for a merger, acquisition, joint venture, or other collaborative activity. Aside from entering into no-poach agreements, employers can implement various measures to protect their workforce from competitor solicitation. Texas employers should use non-compete and/or nonsolicitation agreements for employees who have access to the company’s confidential business information or who work in a sales capacity. For some employees, employers might consider paying a signing bonus to new hires and making repayment of the bonus conditioned upon a certain period of employment to protect against employee attrition. For both options, employers should ensure that the restrictions are reasonable in duration and scope in order for the agreements to be enforceable. Additionally, when exchanging infor-
mation about employees in connection with a proposed corporate transaction, companies should anonymize the information to the greatest extent possible, either by aggregating the information or by presenting it by job title and not by employee name; the employer should also restrict access to such employee information from anyone in the other party’s HR department or recruiters, and might consider using a neutral third party to manage the information exchange. Employers who use no-poach agreements or who are considering using them in the future should determine whether there are pro-competitive justifications that outweigh any anti-competitive effects of the agreement. Even where justifications do exist, employers should still consider whether the potential benefits of restricting employee poaching are worth the risk of potential civil claims and criminal charges by government agencies, as well as the risk of facing private class action lawsuits. HN Stephen Fox is the Co-Managing Partner of the Dallas office of Sheppard Mullin Richter & Hampton, and is Board Certified in Labor & Employment law by the Texas Board of Legal Specialization. Theanna Sedlock is an Associate at the firm. They can be reached at sfox@ sheppardmullin.com and tsedlock@sheppardmullin.com, respectively.
Moms in Law Events FEBRUARY
Being a working mom can be challenging. Being a working lawyer mom can be a different ballgame with its own unique challenges. Moms in Law is going on its third year of being a no pressure, no commitment, informal, fun, support group for lawyer moms. The February events are: Thursday, February 7: Noon-1:30 p.m., Marc Jacobs “Master Class” with boxed lunches at Neiman Marcus downtown. We only have 20 spots for this event. RSVP: www.dayl.com/moms-in-law-master-class/ Friday, February 22: Noon, Ziziki’s (11661 Preston Rd., #309) RSVP: christine@connatserfamilylaw.com Email christine@connatserfamilylaw.com to join the Moms in Law email listserv.
Fe b ru a ry 2 0 1 9
Focus
D al l as Bar A ssoci ati on l Headnotes 19
Employee Benefits/Labor & Employment Law
Unwrapping Unlimited Vacation BY JASON WEBER
Over the past several years, the concept of unlimited vacation has become increasingly popular amongst some employers, who view it as an out-ofthe-box benefit that rewards employees’ desire to have more autonomy in the hours they work. In theory, employees who are eligible for this benefit have the freedom to take off as much time as they wish, provided they are still able to complete their work. Some of the benefits associated with this concept are the belief that it boosts employee morale, creates a better worklife balance, reduces the employer’s balance sheet liabilities and clerical benefit tracking requirements, and attracts/retains talent. While such policies, on their face appear to be simplistic, there are a myriad of issues—both legal and practical—that an employer should consider before adopting such a policy.
Legal Considerations
There are no federal laws that require employers to provide paid leave. Issues involving paid leave (e.g., sick pay, “use-itor lose it” policies, entitlement to accrued vacation upon termination) are state-specific and a multistate employer must be careful to avoid a one-size-fits-all approach. In Texas, paid leave is left to the discretion of the employer and generally must only be paid if provided for by a written policy or agreement promulgated by the employer (see Tex. Lab. Code § 61.001). This gives rise to two policy-related considerations for Texas employers who are contemplating implementing unlimited vacation. First, do the employer’s
existing policies provide for accrued paid time off? If so, this will need to be reconciled before an employer transitions to unlimited non-accrued vacation. Second, how will the new policy be worded? It is imperative that any such policy (1) makes clear that employees do not accrue paid leave nor have any right to unused paid leave following termination; and (2) distinguishes between unlimited paid vacation and paid time off. Distinguishing between unlimited paid vacation and paid time off is important in order to ensure that protected leave under the FMLA and ADA (and their respective state counterparts) is handled separately. For example, employers that are subject to the FMLA are required to provide 12 weeks of unpaid leave to eligible employees for qualifying reasons (which is generally offset by the employee’s accrued paid leave). This creates the possibility that an employer that has adopted an unlimited leave policy (that is not limited to vacation) would have to provide 12 weeks of paid FMLA leave because employees may use available PTO concurrently with FMLA leave (or ADA or pregnancy leave). Accordingly, distinguishing unlimited vacation from unlimited paid time off is important for avoiding this unintended consequence. While such a carve-out is prudent, distinguishing between unlimited paid vacation and paid time off is not fool-proof. This concept is relatively new and courts have not yet weighed in on how such a policy would comport with FMLA and/or ADA leave. For example, giving John Doe three weeks of paid vacation, but not providing Jane Doe three-weeks of paid leave for a medical/disability-related reason
could potentially be construed as discriminatory. For this reason, covered employers would be wise to still consider offering— capped—paid FMLA/ADA leave, which would be kept separate from unlimited vacation.
Practical Considerations
As noted above, existing accrued leave will need to be reconciled before an employer transitions to unlimited vacation. In instances where employees have vested accrued paid leave (or in states where accrued paid leave cannot be waived), an employer will need to consider paying out accrued paid leave before implementing unlimited paid vacation. As an alternative, employers can also consider phasing out existing benefits by requiring employees to first exhaust their accrued paid leave before they become eligible for unlimited vacation. While the latter option is more economical, it
carries the downside that employees may perceive it as requiring them to forfeit accrued paid leave they were otherwise planning to save for a lump-sum payout. Ultimately, this is a judgment call for each employer. Lastly, while unlimited vacation policies are largely rooted in giving employees more autonomy, they do not have to give employees unchecked freedom to work at their own leisure. An effective policy will still condition paid leave upon (1) being scheduled in advance with a supervisor’s permission; and (2) not being abused or negatively impacting an employee’s work performance. Through taking such steps, an employer can craft an effective unlimited vacation policy, which will possibly give it an advantage in the ever-increasingly competitive niche of employee benefits. HN Jason Weber is a partner at Crawford, Wishnew & Lang PLLC. He can be reached at jweber@cwl.law.
Join us to salute Kathy Muldoon, CFP
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2019 Vester Hughes Award Ceremony Tuesday, March 26th Cocktails 6pm - 7pm | Dinner/Program 7pm - 8:30pm | Business attire | Tickets $75 Communities Foundation of Texas: 5500 Caruth Haven Lane, Dallas, TX 75225
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20 H e a d n o t e s l D a l l a s B a r A s s o ciation
February 2019
MLK Day Celebrated at the Belo Mansion On January 21, DBA President Laura Benitez Geisler presented the MLK, Jr. Justice Award to Bill Holston, of Human Rights Initiative, for inspiring others and reflecting the values and service portrayed by Dr. King. The Dallas Bar Association has celebrated Martin Luther King Jr.’s birthday annually since 1993.
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Fe b ru a ry 2 0 1 9
Focus
D al l as Bar A ssoci ati on l Headnotes 21
Employee Benefits/Labor & Employment Law
The Importance of Training to Avoid Employee Claims BY MICHELLE MORGAN
Employers with 15 or more employees are covered by Title VII, which means that they are subject to claims of discrimination or harassment based on age, race, religion, ethnicity, national origin, and sex. Sexual harassment claims garnered significant publicity in 2017 and 2018, with most media attention focused on what happened after a complaint was made. But what happened before the complaint was made? More importantly, what should have happened? Employers need to have a written policy prohibiting unlawful discrimination, harassment, and retaliation. Generally, the policy should cover what behavior is prohibited, include a commitment that complaints will be investigated promptly and appropriate action taken following investigations, and provide assurances that those who report complaints or participate in an investigation will not suffer any retaliation. Employers should have employees sign an acknowledgement of the written policy confirming they have received and reviewed it. However, a well-written policy and signed acknowledgement are not in themselves sufficient. It is critical that employees also be made aware of the harassment, discrimination, and retaliation policies, and be trained on how to apply them. A good way of ensuring every employee knows about the policies and reporting procedure is to provide upfront training at the time of hire. Trained managers or human resources personnel should take 15-20 minutes to review these critical policies and emphasize the employer’s
commitment to a quality working environment. For existing employees, one of the easiest forms of training is to require periodic online training (e.g., quarterly or semi-annually). Employees log in, take an online course, and must pass a test covering key aspects of the policies, including reporting mechanisms. For those who do not pass the test the first or second time, the employer should consider providing a one-on-one supplemental training session. Another training method is annual live training, such as a “Lunch and Learn” presentation. These live presentations highlight the employer’s commitment to the training process and a quality workplace; they can be particularly effective when they allow a question-and-answer component and give those with personal questions or concerns an opportunity to discuss them with the presenter at the end of the session. In addition to making sure all employees are trained, it is very important to provide supplemental training to directors, managers, and supervisors—the very people who are likely to be the first employer representative to hear a complaint or witness possible unlawful harassment, discrimination, or retaliation. Many situations that could be resolved instead devolve into EEOC charges or lawsuits because someone in management did not know how to recognize a potential issue or mishandled their first opportunity to address a concern. Everyone in management does not need to know how to handle all aspects of a complaint—but all need to know how to handle the initial disclosure or observation of an issue. Management should
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receive the same training as all employees so they know what employees have been taught, but they should also receive additional training to recognize and address issues that arise. From there, HR and/or legal counsel can formulate the next steps (e.g., whether the investigation will be handled internally or conducted by someone outside of the company, whether to suspend the alleged harasser pending the investigation, etc.). Employees promoted to management positions should receive this training upon promotion. Part of management training is coaching on how to initially respond to an issue – and in this realm, words matter—a lot.
Suggesting to a distraught employee that “He’s just like that, [your concern] isn’t worth getting upset over” is far more likely to inspire legal action against the employer than is: “Thank you for telling me this. I’m going to talk with [HR/my boss] and we will follow up with you. Is there anything I can do for you right now in this moment?” By providing proper training, employers can increase their chances of avoiding expensive and distractive disputes, complaints and litigation. HN Michelle Morgan, a partner at Shackelford, Bowen, McKinley & Norton, LLP, is Board Certified in Labor and Employment Law. She can be reached at mmorgan@shackelford.law.
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22 H e a d n o t e s l D a l l a s B a r A s s o ciation
February 2019
Reverse Mortgages and Protections for Non-Borrowing Spouses BY LAUREN OLSON
With seniors living longer and trying to remain independent while coping with higher health care costs, reverse mortgages are an increasingly popular retirement tool. For many seniors, their home is their primary asset, so leveraging it seems like a good idea. Unfortunately, however, some reverse mortgages add to a surviving spouse’s difficulties, often resulting in unexpected foreclosure and involuntary displacement. Thanks to a series of recent regulatory changes enacted by the U.S. Department of Housing and Urban Development (HUD), non-borrowing spouses are now enjoying additional protections. A Home Equity Conversion Mortgage (HECM) is a reverse mortgage insured by the Federal Housing Administration that allows a mortgagor over age 62 to withdraw part of their home equity in monthly pay-
ments or a lump sum, without requiring regular mortgage payments. The loan must be repaid after the borrower dies or moves out. In certain situations, both spouses do not qualify for the HECM. If only one spouse is 62 or older, the older spouse must be the sole HECM borrower. If both spouses are over 62, but title is only in one spouse’s name, the titleholder must be the sole borrower. In the past, when the sole borrower died, the nonborrowing spouse was forced to refinance the HECM transaction, sell the home, or face foreclosure. If an HECM originates on or after August 4, 2014 and qualifying conditions are met, a non-borrowing surviving spouse can now postpone the HECM repayment and potential displacement until he or she no longer resides in the home. To qualify, the following requirements must be met: Non-borrowing spouse completes reverse mortgage counseling prior to the
COMMUNITY VOLUNTEER OPPORTUNITIES FOR LAWYERS Volunteer to coach a High School Mock Trial team, contact mgarcia@dallasbar.org.
Tutor a Child Confined to the Henry Wade Juvenile Justice Center, contact kzack@dallasbar.org. Volunteer to help at a Dallas Volunteer Attorney Program free legal clinic, contact peralesc@lanwt.org. Mentor a Child Impacted by Incarceration, log on to www.dallasbar.org/amachi-texas. Speak to a Community or Civic Group on a Law-Related Topic, contact mgarcia@dallasbar.org.
HECM closing; Non-borrowing spouse is married to the borrowing spouse at the time the HECM closes and they remain married throughout the duration of the borrowing spouse’s lifetime; Non-borrowing spouse is properly identified in the HECM application and closing paperwork as an “eligible non-borrowing spouse” and signs mandatory disclosures; and The property is the non-borrowing spouse’s principal residence at the time of the HECM closing and until death of the borrowing spouse. (A temporary stay in a health care facility for less than 12 consecutive months will not invalidate the principal residence determination.) If any of these four requirements are not initially met or lapse over time, the nonborrowing spouse is ineligible for the relief and the HECM becomes due and payable immediately upon the borrowing spouse’s death. Competent legal advice prior to the entry of a HECM is therefore vital. In addition to these new eligibility requirements, the non-borrowing spouse must adhere to the HECM’s original terms and conditions, and is still responsible for paying property taxes, homeowner’s insurance, homeowner’s association fees, utilities, maintenance, and repairs. Even if the HECM originated prior to August 4, 2014, a surviving non-borrowing spouse may still have an option. In this situation, upon the borrowing spouse’s death the non-borrowing spouse may benefit from a Mortgagee Optional Election Assignment (MOEA). A MOEA grants the mortgagee
discretion to defer the due and payable status of the loan for an eligible non-borrowing spouse. Non-borrowing spousal MOEA eligibility must meet three requirements: Non-borrowing spouse must be married to the HECM borrower at loan origination and remain married until the borrowing spouse’s death. (If the marriage was previously prohibited based on gender, the couple must have been in a committed relationship at the time of the HECM closing and then legally married prior to the borrowing spouse’s death.); The property subject to HECM must be the non-borrowing spouse’s principal residence at HECM origination and for the duration of the borrowing spouse’s life; and Within 90 days of the death of the borrowing spouse, the non-borrowing spouse must obtain marketable title to the property or secure a legal right to remain in the property for life (such as through a lease or court order). After the borrowing spouse’s death, the mortgagee has the sole discretion to utilize a MOEA for the non-borrowing spouse or initiate foreclosure within six months. If the mortgagee elects the MOEA, the non-borrowing spouse must adhere to the HECM’s original terms and conditions. Thanks to HUD’s new protections, nonborrowing HECM spouses have a better chance of avoiding foreclosure or displacement, thus easing their transition after the loss of a loved one. HN Lauren Olson is an attorney at Leu & Peirce, PLLC. She can be reached at lolson@leulawfirm.com.
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Belo Reminder
Please remember that food and beverage services shall be provided exclusively by Culinaire International. Group/patrons are prohibited from bringing their own food and/or beverages onto the premises. Thank you for your assistance!
DOES ADVERTISING WORK? It Just Did! Don’t miss your opportunity to advertise (print & online) in the #1 “Legal Resource & Expert Witness Guide” in Dallas County. Contact PJ Hines at (214) 597-5920 or pjhines@legaldirectories.com
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Classifieds
D al l as Bar A ssoci ati on l Headnotes 23
February
EXPERT WITNESS
Economic Damages Experts - Thomas Roney has more than thirty years’ experience providing economic consulting services, expert reports and expert testimony in court, deposition and arbitration. His firm specializes in the calculation of economic damages in personal injury, wrongful death, employment, commercial litigation, IP, and business valuation matters. Mr. Roney and his experienced team of economic, accounting and finance experts can help you with a variety of litigation services. Thomas Roney LLC serves attorneys across Texas with offices in Dallas, Fort Worth and Houston. Contact Thomas Roney in Dallas/Fort Worth (214) 665-9458 or Houston (713) 5137113. troney@thomasroneyllc.com. “We Count.” Economic Damages Experts-GMCO Litigation Damages Firm. Economic Damages Valuation Experts. GMCO a CPA firm with significant testifying experience. George Mendez CPA CVA has more than twenty years’ experience providing economic damages, lost profits, damage calculation testimony in court, deposition and arbitration. The firm provides services regarding commercial damages, lost profits, intellectual properties, employment, personal injury/lost earnings wrongful death, and insurance litigation. George Mendez has experience in most industries including energy/oil & gas, manufacturing, transportation, hospitality, service, distribution, and construction. GMCO serves attorneys in Dallas/Ft. Worth, Houston, Austin/San Antonio. Contact George Mendez CPA CVA .Dallas/Ft Worth (469) 248-4477 or Houston (713) 8925037 experts@ georgemendez.com.
OFFICE SPACE
Uptown Dallas – 3 window offices for lease in a professional legal environment. Offices come with receptionist, use of our telephone system (if desired), use of 2 conference rooms, kitchen area, notary, Wi-Fi, fax and copier. Short term sublease is okay. Available 01/15/2019. Email Victoria at victoria@bh-pllc.com for more information. Don’t Just Get An Office, Get Engaged. Virtual and private offices available at 75 & NW Hwy in Class A High Rise. ENGAGE is an innovative attorneyonly workspace. Plug in to a secure & professional environment with mail/ parcel handling, guest reception, conference rooms, included garage parking, coffee bar/lounge, office amenities, and networking opportunities. Please contact Chelsea at (214) 367-6000 or chelsea@ engagelawspace.com. Office space available at 4303 N. Central Expressway for lease in a professional legal environment, in uptown. Share office space with experienced and established lawyers. Case referrals and other case arrangements are possible. Amenities include: Bi-lingual receptionist, fax copy machines, notary, Internet, two conference rooms, two kitchen areas and
plenty of free parking. Location is convenient to all Dallas Courts and traffic arteries. Please call Rosa at (214) 696-9253. Prime 7th floor Downtown Office Space: Founders Square, 900 Jackson Street @ Griffin. 476 SF office available in office sharing arrangement with 5 established solo practitioners: $1,200/ month. Office furniture also available – price negotiable. Contact Ted Steinke at ts@tedsteinke.com or (214) -747-7148. Belt Line Road & Dallas Parkway. Addison law firm has one large, unique office and adjacent assistant’s bay for lease. Located at Belt Line and Dallas Parkway in Class A building. Reserved indoor parking and receptionist services included. Call Kelly at (972) 364-9700. Virtual Office – Available Now! Ultracontemporary office space, 12222 Merit Drive, Suite 1200, offers 11 conference rooms, greeter, Internet service, mail service, parking, fully equipped breakroom. $500 – competitive rates! Computer work space included as well. Email Amy at arobinson@englishpllc.com or (214) 528-4300. Ready to Own/Reposition Your Practice? Palmer & Manuel, PLLC provides a platform in iconic Campbell Centre where you (and we) get to do what we love – practice law without the administrative hassles. Run your own practice and be part of our well-established midsize group of respected and collegial attorneys with varied practice areas. Keep 95% of your fees plus earn on your referrals, and contribute a reasonable fixed overhead covering rent, legal assistant support (or bring your own), office administrator, PCLaw/ProDoc, Lexis, phone, Internet, website, parking, malpractice insurance, etc.). See www.pamlaw.com or contact Larry, Jeff or Rebecca at (214) 242-6444. Office space available at 4054 McKinney Avenue. Second floor suite with three offices and file room. This space is 1127 sq/ft and rents for $1,878.00 per month fixed rate. Two single offices available starting at $400.00. Call (214) 520-0600. Office space available 2323 Ross Ave. Class A building with amazing views of the city. Amenities include 24/7 access, secure Internet, kitchen including coffee, tea and fruit infused water. Conference rooms, reception and parking available. Flexible terms. Contact Tracey 347.860.5614 theyboer@ serendipitylabs.com. Professional office suites for lease in Uptown State Thomas area. Restored Victorian home circa 1890 w/ hardwood floors throughout. Shared conference room. 2619 Hibernia Street and 2608 Hibernia Street, 1 block from McKinney Avenue Whole Foods. Lawyers preferred. $750-$850/month. Includes phone & Internet. Phone (214) 987-8240. Office space in the N. Central Expressway and Forest Ln. area. 12222 Merit
Drive. Two window offices are available. One office is 15 x 15 with Admin. space and the other is 10 x 15. Amenities include 2 conference rooms, kitchen, copier, scanner, fax, Internet and VOIP phone. Building offers free covered parking, workout facilities, and a deli. Please call (214) 696-3200 ext. 410 for Carl Roberts or ext. 406 for Katie.
POSITIONS AVAILABLE
Dallas business/construction litigation firm seeks an experienced trial attorney with bankruptcy experience. Candidate must have excellent writing skills and a minimum of 10 years of experience. Compensation is negotiable. Clientele a plus. Submit resume in confidence to: oaklawnfirm@aol.com. Litigation Attorney. Established small AV rated firm in downtown Dallas seeks a full-time litigation attorney with four to eight years of litigation experience (insurance defense preferable) and partnership aspirations to assist in the handling of a diverse litigation practice. Personal injury and first party bad faith experience required. Excellent opportunity to work closely with senior partners. Principal duties include drafting motions, attending hearings and depositions, meeting with clients and witnesses, expert development and depositions of experts, and assisting with and participating in trial. Applicant should be highly motivated, a team player, and possess excellent research and writing skills as well as ability to work well without close supervision. Congenial work environment offers substantial responsibility at a competitive compensation level. Additional benefits include bonus program, 401K, health insurance, life / long term disability insurance and parking. Reply in confidence with resume and salary requirements to: DBA, Box #19-11A, 2101 Ross Ave., Dallas, TX 75201. Trial Lawyer. Tired of insurance adjusters being “smarter” than you? Tired of hourly billing? Want to choose your clients and wear a “white hat?” Email resume in confidence to lawyers@ noteboom.com.
full time office administrator. This person should have good interpersonal and accounting skills and be able to multitask in a fast paced sophisticated professional environment. Job duties include managing human resources (including benefits), payables, payroll, technology, financial reporting, vendor relationships as well as other administrative duties. The position requires a critical thinker who is detail oriented, highly organized and self-motivated. A college degree and previous law firm experience are a plus. Compensation is competitive and includes an attractive benefits package. Please direct all inquiries and resumes to dstrittmatter@ctstlaw.com.
SERVICES
Estate Jewelry and Appraisal Services. Does your client have a collection of a few or many high-end jewelry pieces? As one of the leading fine jewelry re-sellers and consigners of antique, vintage and unique jewelry, we constantly work with individuals and estates, providing Trust and Transparency all in a timely manner. Each appraisal certificate outlines the intrinsic and specific attributes of your item to include type of metal, quality, cut, age and appraised insurance value. Talk to us today about our estate jewelry appraisal services. We can also come to your client’s home or office for evaluation. Call Skibell Fine Jewelry at 214691-5123 to set up your appointment, or visit us at 8411 Preston Rd Suite 110, Dallas, TX 75225. Visit our website at www.skibellfinejewelry.com for additional information. A+Rating with the BBB of North Texas. To place an affordable classified ad here, contact Judi Smalling at (214) 2207452 or email jsmalling@dallasbar.org.
JEFF ABRAMS Mediator & Arbitrator
Paralegal. We are seeking experienced Family Law Paralegals with 2+ years of experience to join our team. Candidates must have experience including, but not limited to: Drafting pleadings and correspondence, Summarizing discovery documents, Drafting and preparing legal documents, Assisting in legal research, Interacting with clients. The ideal candidates will be extremely organized, detailed-oriented, and possess excellent written and oral communication skills. Salary is negotiable based on experience. For immediate consideration, please submit your resume to Robin Gavitt at robin@ondafamilylaw.com. Please Note that resumes without Family Law experience will Not Be Considered. Full Service Law Firm Seeks Office Administrator – Condon Tobin Sladek Thornton PLLC, a full service Dallas law firm with 25 attorneys seeks a
Experienced Creative Dog Friendly Online scheduling calendar www.abramsmediation.com
The DBA Family Law Section Bench Bar Conference 2019 Family Law: Rough. Tough. Real Stuff.
February 8, 2019 Gilley’s Dallas (1135 South Lamar Street) | MCLE 7.75, Ethics 2.25, pending To register, or for more information, contact Hunter Lewis at 2019benchbar@gmail.com.
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Office 972-702-9066 Cell 214-289-4427 jeff@abramsmediation.com Case coordinator: kelli@abramsmediation.com
24 H e a d n o t e s l D a l l a s B a r A s s o ciationâ€
February 2019