Pizza the Action is a major distributor of pizza dough and toppings and provides these products to many large national pizza chains.  Pizza the Action’s top sales person, Eaton Wright, just announced that he was resigning and that he had accepted a position with The Pie’s the Limit, an upstart competitor in the very same industry.  Wright did not have an employment or non-competition agreement with Pizza the Action.  While Wright has ostensibly done nothing yet, Pizza the Action is concerned about Wright providing his new employer with Pizza the Actions’ customer lists, customer data and financial pricing information.  Is there anything that can be done to stop him?

Yes.  During this past legislative session, Texas became the 48th state to enact (its version of) the Uniform Trade Secrets Act (“TUTSA”). TUTSA, which goes into effect September 1, 2013, will provide companies with greater protection of their trade secret information across Texas.  Previously, Pizza the Action may have found it difficult to obtain a temporary restraining order or injunctive relief against Wright without some proof of actual misappropriation of trade secrets.  TUTSA, however, now authorizes injunctive relief for actual and threatened misappropriation.  Pizza the Action could now arguably seek injunctive relief based on the “inevitable disclosure doctrine” where circumstances suggest that Wright would inevitably make use of their trade secret information as part of his new position.  Other significant changes include:

  1. an expanded definition of trade secret (includes lists of actual and potential customers or suppliers as well as financial information);
  2. safeguards to protect allegedly trade secret information during the pendency of the litigation (e.g. through protective and sealing orders);
  3. provisions for the award of attorneys’ fees to both the plaintiff and defendant; and
  4. the availability of exemplary damages (act to exceed twice the economic damages) where the plaintiff establishes willful or malicious misappropriation by clear and convincing evidence.

 Tilting the Scales in Your Favor

The TUTSA seeks to put Texas in step with other states and provide increased predictability for those seeking to assert claims in Texas courts for trade secret misappropriation.  Companies will now have a statute in their arsenal as opposed to merely relying upon employment agreements and case precedent.  Given the increased certainty in the law, businesses should consider choosing Texas as the governing law for their agreements as well as modifying their agreements to reflect the recent changes.  As the ultimate determination of whether information constitutes a trade secret will be case specific, businesses should be able to demonstrate measures taken to safeguard trade secret information and should clearly identify such information as “confidential.”

Winn Blohn knew the storm was coming before it lifted the roof and parts of the second floor from his home. Hiding behind the kitchen counters during the fifteen seconds of swirling glass and falling debris, Winn knew the roof was gone. Now, it’s too early to tell if the next call should be for a builder or a bulldozer. When Hugh Peigh, Winn’s landlord, stopped by to express his sympathy and to offer his pickup truck for cleanup, Hugh asked if Winn’s monthly rent payment was in the mail. Who is responsible, Winn Blohn or Hugh Peigh? Who pays, how much and by when?

Assuming that Hugh insured his rent house, he is responsible for damage to the house and should get his insurance company to adjust the claim. Asfor repairs, Hugh’s obligations do not begin until he receives the insurance proceeds. Either Hugh or Winn Blohn may terminate the lease by giving written notice to the other any time before repairs are completed. With the roof gone, it is likely that the premises are at least partially, if not wholly, unusable. Winn is entitled to reduce the rent he pays to Hugh to in an amount proportionate to the extent the premises are unusable because of the tornado.

Suitable Premises

At common law (before the Texas Property Code), a landlord could demand rent even if the premises became unsuitable because of a sudden act of God, such as a tornado. Even without a roof, Winn would have to pay rent for the duration of the lease. Most states like Texas statutorily abolished rent payment obligations if a non-man-made force renders the premises unsuitable. However, the landlord is likewise, not accountable for natural disasters such as a flood, fire, or tornado. Nor is the landlord responsible for providing alternate shelter and housing. The landlord is only responsible to fix the property and make it habitable as soon as possible.

Personal Property Losses

Renters sometimes assume that the landlord’s property insurance protects them in the case of a theft or fire. However, most landlord and owner’s policies cover only the structure of the building and grounds — not the tenants’ possessions. Renters can purchase rental insurance that provides temporary housing and provisions in a natural disaster. Unless the catastrophe was something other than a natural disaster and caused by the landlord’s negligence, the landlord cannot be held accountable for the loss of an occupant’s personal items.

Tilting the Scales in Your Favor

If you are the tenant and the landlord won’t make repairs to protect your health, safety, or security, and you follow the procedures required by law, you may be entitled to:

  • end the lease;
  • have the problem repaired and deduct the cost of the repair from the rent; or
  • file suit to force the landlord to make the repairs.

To do so, you MUST:

  • send the landlord a dated letter by certified mail, return receipt requested, or by registered mail, outlining the needed repairs, or deliver the letter in person;
  • keep a copy of the letter; and
  • be sure your rent is current when the notice is received. If the landlord does not make diligent efforts to repair, you may be entitled to terminate the lease, repair the problem and deduct the cost from your rent, or get a court to order that the repairs be made. You should consult with an attorney before taking any of these actions. In Texas, a landlord cannot retaliate for complaining about necessary repairs for six months after the complaint is made.

Disaster Relief Resources

The Hood County Bar Association is offering Hood County tornado victims free information and consultation on legal issues related to the recent disaster on May 23 from 9:00 a.m. to 11:00 a.m. at the Hood County Annex (1 – 1410 W. Pearl St.) The State Bar of Texas provides a toll-free disaster legal hotline at (800) 504-7030 for those impacted by the tornadoes in North Texas, as does Legal Aid of NorthWest Texas at (855) 548-8457.

Royal Pane, owner of A Pane in the Glass, fabricates high performance windows for commercial buildings. The good news? Business is going through the roof. The bad news? Royal’s delinquent receivables are climbing daily. A Pane in the Glass’s lenders demand that collections improve – now. Even if he could overcome his dislike for the courthouse and for lawyers, Royal cannot wait the three years his lawyer tells him it will take to get to justice. For Royal, time is money. What can he do?

File an Expedited Trial request. If the account receivable, court costs and attorney’s fees altogether do not exceed $100,000 for any one Pane in the Glass customer, the new Texas procedural rules promise a trial in less than a year. Effective March 2013, every Texas lawsuit seeking monetary relief must state a range of relief demanded. If the range is right, an expedited trial within a year is a possibility. The court’s rocket docket is aided by reducing the amount of written discovery, limiting the time for depositions, shortening the trial time and permitting an expedited trial setting within 90 days after the end of discovery. While there are still opportunities for delay, the total time to trial should be much shorter than three years.

The Downside? Because the new rule does not require mediation, some believe that will increase the number of trials and further burden the courts’ docket. Only the plaintiff can determine whether the case will be a compulsory expedited trial. The calculated $100,000 limit does not include counterclaims. Some lawyers believe a case cannot properly be prepared within a year or tried with only twelve hours of testimony per side. Nevertheless, collection claims like that of A Pane in the Glass, are rarely complicated, and these requirements should not be insurmountable.

The Upside? Promoting greater accessibility, efficiency, and accountability in the civil justice system has been studied for years. Texas Supreme Court Judge Nathan Hecht says about expedited actions: “I hope it will be an enormous boost for the civil trial system. . . . It’s just a way — as lawyers talk about all the time — what they used to do in the old days, you work up a file, you go to the courthouse, you pick a jury, you put your evidence on a couple of days, you get your decision, and go on.” California considered and implemented a very similar statute a couple of years ago, as did South Carolina.

Tilting the Scales in Your Favor

Try it. For matters that are relatively simple, like collection of Royal Pane’s accounts receivable, the expedited trial rules are very appealing and promise to be more timely and cost effective.

For owners of companies like A Pane in the Glass, time does mean money – both in collecting their delinquent receivables and in limiting the time (and expense) for their lawyers to work through their claim. Getting to the courthouse faster with an expedited trial offers the very realistic prospect of both.

Billy Bob Cooter is spending a Sunday doing what he loves most – attending a NASCAR race to watch his favorite driver Ricky Bobby pilot the #26 Wonder Bread car.  It’s a close and exciting race as the drivers begin the final lap towards the checkered flag.  With Ricky Bobby in contention, Cooter decides to video the race’s final seconds.  As the car rounds the final turn, Ricky Bobby and another driver “trade paint.”  The collision sends the #26 car violently into the wall which showers the crowd in debris and seriously injures several spectators.  Cooter catches the entire incident on his iPhone and then proceeds to post the graphic video on YouTube, which immediately receives thousands of views.  NASCAR executives see the video on YouTube and have it removed on copyright grounds.  They argue that posting the video violates the limited license granted to Cooter (and all attendees) on the back of his ticket because NASCAR owns the intellectual property of the race and all of its associated images.  Is Cooter within his right to post the video?

Yes.  While NASCAR owns the portion of the video dealing with the race, “facts” and “news” are not subject to copyright protection. This issue was addressed in 1997 when the Second Circuit Court of Appeals ruled that the NBA could not prevent Motorola from broadcasting scores and stats from a game, because while the broadcast was protected, facts and news were not.  While NASCAR could argue that the broadcast of the race was their property, at some point the race changed from a copyrighted event to a non-copyrighted “news” event when the accident occurred.

Earlier this year, Tyler Anderson, a high school student, posted his 1 minute, 16 second video of a horrific NASCAR crash on YouTube.  It was initially reported that NASCAR believed the video infringed on its copyrights and YouTube removed the video stating “This video contains content from NASCAR, who has blocked it on copyright grounds.”  However, NASCAR later maintained that the request was made out of respect to the dozens of injured spectators.  Subsequently, YouTube reposted the video stating “Our partners and users do not have the right to take down videos from YouTube unless they contain content which is copyright infringing, which is why we have reinstated the video.”

As observed by John McQuaid in his blog for Forbes Magazine:

There are inescapable contradictions between asserting a legal claim over recording everything that happens in a certain place, and then filling that place with tens of thousands of people with the capacity to shoot video and instantly upload it to the Internet, especially when something newsworthy happens, and when your organization is already managing a strong social media effort that depends on interaction with fans.  This is where the privatization and monetization of everything meets with the democratization of the digital age.

If they’re smart, the NASCARs of the world will make just enough allowances for news events, while doing what they can to keep a tight lid on video sharing and other forms of fan reporting, from photos to tweets, when nothing out of the ordinary is going on.

But even this safety valve approach is probably untenable as devices get smaller and sharing becomes more a seamless part of life.  You cannot contain that urge.  You cannot shut down thousands of devices, or paralyze thousands of tweeting thumbs.  The notion that no information except the official kind can escape the legal-gravitational black hole of the Daytona Speedway is absurd.  It’s not like everyone doesn’t already know that.

Anderson’s video raises all sorts of interesting legal issues and highlights the difficulty of preventing the dissemination of images and video in this age of ubiquitous iPhones and social media.  The issue is particularly interesting given the way NASCAR and other sports have embraced the internet and the posting of fan videos on social media.

Three years ago, Tilting told tales of oil spill legal problems suffered by Forrest Gump, Bubba Gump Shrimp Company, Wok Ann chu-gumm Seafood Restaurants, Chef Red Fishy and Bishop Carp. Tilting predicted class action lawsuits against British Petroleum and big settlements. Bubba, Chef Red and Bishop Carp ignored Tilting’s advice and never joined a lawsuit. Is it too late to recover? If not, what does it take? Must they hire a lawyer?

Not Too Late

For many claims, it’s not too late. The qualification criteria can be a little complicated and tricky; yet, there is a lot of explanatory information online. A lawyer is not required, certainly for the obvious and relatively simple claims. However, the more complicated and sizeable the claim, the more confusing the 1,000 plus page settlement agreement seems to read, and the greater the risk that a claim may be challenged and require additional supporting documentation.

Class Action Lawsuits

On April 18, 2012 BP and Plaintiffs’ Steering Committee of the class action lawsuits entered into the Economic and Property Damage Class Action Settlement Agreement. The BP settlement approved last December was designed to rehabilitate businesses all over the Gulf Coast after the economic devastation of the BP Deepwater Horizon oil spill. As of March 31, 2013, BP paid almost Nine Billion Dollars on individual and business claims made both before and after the United States District Court for the Eastern District of Louisiana approved the settlement agreement in December 2012. Even though BP attempted to block oil spill claim payments which it argued were more expansive than what was intended, the federal judge rejected BP’s claims. Large financial payments are waiting for many businesses, and lots of them don’t even know about it.

FAQs

Deadline: There are a number of deadlines to file claims; the last is April 22, 2014.
Location Qualifications: Individuals and businesses living in, owning, leasing or operating a facility between April 20, 2010 and April 16, 2012, in: states – Alabama, Louisiana and Mississippi; Texas counties – Chambers, Galveston, Jefferson and Orange; and Florida counties – Bay, Calhoun, Charlotte, Citrus, Collier, Dixie, Escambia, Franklin, Gadsden, Gulf, Hernando, Hillsborough, Holmes, Jackson, Jefferson, Lee, Leon, Levy, Liberty, Manatee, Monroe, Okaloosa, Pasco, Pinellas, Santa Rosa, Sarasota, Taylor, Wakulla, Walton and Washington.
Claims Qualifications: The categories include: (1) Seafood compensation program; (2) Economic damages; (3) Loss of subsistence; (4) Vessels of Opportunity charter payment; (5) Vessel physical damage; (6) Coastal real property damage; (7) Wetlands real property damage; and (8) Real property sales damage.
Business Qualifications: To be eligible, business entities must sell products directly to end user or consumers, or must sell products to another entity that then sells them to end users or consumers.  Additionally, service businesses that performed their full-time services while physically present in the states and counties listed above at any time between April 20, 2010, and April 16, 2012.  Excluded businesses include those related to insurance, gaming, real estate development, financial institutions, defense and oil & gas.  Depending upon where a claimant’s business is located and the type of business, different documentation will be required to substantiate a claim.  However, if businesses meet certain criteria, they do not need to produce documents evidencing their losses were directly attributed to the BP spill.
Lawyer?: Not necessarily. There is an online form.Some are electing to allow their accountants to handle their claims.

Tilting the Scales in Your Favor

This is one of the most complicated settlements in history. The larger and the more complicated your claim, the more important it is to confirm the claims process with an expert. Equally as importantly, we encourage potential claimants to file their claim well prior to the April 2014 claims deadline.  There has been much conversation about the size of the available settlement pool, the contractual limitations imposed by the settlement agreement and the implications if funds run short. Filing accurately and early may prove critical.

If you have any questions, please feel free to contact us at Looper Reed.  We are experienced in mass tort litigation and have teamed up with attorneys on the BP class action Plaintiffs’ Steering Committee. Our team worked closely with the accountants processing the settlement and responsible for creating the templates and criteria to evaluate the claims.

Rose Pettle is the owner of Florist Gump, a chain of flower shops throughout Texas.  Ever the entrepreneur, Rose launched Bloomarama.com, an internet business selling many floral items in her brick and mortar stores.  Bloomarama.com is a separate Florida corporation with no physical location or offices in Texas.  However, for the convenience of its customers,  Bloomarama.com  has a special relationship with Florist Gump that permits merchandise returns, warranty issues or other complaints to be handled at any Florist Gump store.  Rose is excited to receive her first order through KaBloom.com for a customer in Austin.  Since Bloomarama.com is a separate Florida entity with no physical presence in the State of Texas, Rose does not intend to collect Texas state sales tax from her Austin customer.  Is Rose right?

No.  Online retailers have long been able to offer their customers tax free shopping because they do not maintain a physical presence (e.g. employees, warehouses, offices) within the state where the order was placed.  The State of Texas will look to whether some “nexus” or relationship exists between the business and the state.  Because KaBloom.com’s Texas customers may return or exchange purchases at Florist Gump in Texas or have other claims issues handled there, KaBloom is treated as having corporate representatives or affiliates within Texas (a “physical presence”) and must collect Texas sales tax.

Tilting the Scales in Your Favor

Make sure to consult a tax attorney or CPA if you have a “sales” relationship with any entity outside of Texas to make sure that the proper procedures are followed for collecting, reporting and paying state and county sales taxes. Rose’s penalties and interest for not collecting sales tax will be at least 9.25% if paid in 30 days and at least 14.25% if not paid within 30 days.

The Future of the Taxing of Internet Based Stores

Susan Combs, the Texas Comptroller of Public Accounts says Texas loses roughly $600 million a year from untaxed online sales.  Taxation of internet sales is certain to gain increasing scrutiny from taxing authorities.  Brick and mortar stores have long complained that online retailers have an unfair competitive advantage because of their ability to offer tax free purchases.  States initially turned a blind eye to taxing of online sales and yielded to the complaints of online retailers about the complexity of collecting sales tax in 9,600 jurisdictions. Increasingly, states have become interested in this revenue source to augment shrinking state coffers with some of the hundreds of billions of dollars that Americans spend each year on on-line purchases.  Recently, Amazon.com agreed to start charging sales tax in a number of states including Texas.  The online giant, that had long opposed the requirement that online retailers collect sales tax, believes the issue should be decided at the federal level and has thrown its support behind the Marketplace Fairness Act which seeks to allow states to collect taxes from out-of-state businesses.  While other online retailers, such as ebay and Overstock, oppose the legislation, it appears as though the age of tax free clicks is coming to an end.

Stressed out from her job as the manager of Brewed Awakening, a Houston-area coffee shop, Mary Jane Blunt heads to Colorado with her family for a well-deserved Spring Break ski vacation.  Blunt is excited to learn that Colorado recently legalized marijuana.  While on vacation, Blunt fully enjoys Colorado’s beautiful slopes and relaxed drug laws.  Responding to a random drug test on her return, Blunt provides urine and hair samples. Five days later her boss advises her that she tested positive for THC (the active ingredient in pot) and that her employment is immediately terminated for violating the company’s policy against illegal drug use.  Blunt argues that legally smoking pot one week ago did not compromise her job performance and because marijuana is legal in Colorado she didn’t violate the company’s policy.  Can Brewed Awakening terminate Blunt for her off-duty conduct in Colorado?

Yes.  As an at-will employee in Texas, Brewed Awakening can fire Blunt for any non-discriminatory reason including violation of the company’s stated policies prohibiting the use of marijuana.  Although some states prohibit termination based upon an employee’s lawful off-duty activities, Texas is not one of them.  Even if Blunt were to claim that she smoked pot for “medical reasons,” any use of marijuana is illegal under federal law and smoking marijuana is not recognized as a reasonable accommodation under the Americans with Disabilities Act.  While some states have made discrimination against medical marijuana users illegal, Texas, again, is not one of them.

Tilting the Scales In Your Favor

With Colorado and Washington both legalizing marijuana, “pot tourism” will become more popular.  Inevitably, “pot tourism” will create problems for employees returning to work after enjoying everything that these progressive states have to offer.  Companies intending to drug test their employees must implement clear policies and procedures.  Any drug testing policy should define what is considered to be a violation, which employees are subject to testing and the disciplinary actions which may result from violation.  Courts consistently uphold pre-employment drug tests as a condition of employment.  Post-employment drug testing can include random testing, post-accident testing, reasonable suspicion testing, and mandatory testing (e.g. the Department of Transportation requires testing for long-haul truck drivers).  While there are almost no restrictions on drug testing which may be required by private companies, government employers are more restricted as courts have held that government employees should be safe from unreasonable search and seizures.  HR departments should be aware that the results of drug tests are considered medical records and therefore must be kept confidential and separate from other personnel records.

Days after closing on their dream home – a brick colonial near the historic Texas Capitol – Hino and Mino Schute learned of their property’s ghastly past. Eleven months earlier, an intruder entered the house, shot and killed a 9-year-old girl and her father. Horrified, the Schutes unsuccessfully demanded their money back. When that failed, Hino and Mino tried to paint over the grim history, refinishing the woodwork and refurbishing the kitchen. After a couple of months Mino gets transferred by his company to another state and they have to sell the house.  Since the murders were not disclosed when Hino and Mino bought the house, do they have the obligation to disclose the house as a “stigmatized property” to the future buyers?

Probably, yes. The Texas Property Code expressly provides that a realtor is not required to disclose or release information related to whether a death by natural causes, suicide or accident unrelated to the condition of the property occurred on the property. Murder is not covered by this “no duty” rule. Since a murder on the property might be considered a material fact that a buyer would want to know in deciding whether to purchase, it’s probably prudent for sellers to disclose this fact.

What Not To Disclose?

It is a discriminatory practice in violation of the Texas Real Estate Commission’s Canons of Professional Ethics and Conduct for a real estate licensee to inquire about, respond to or facilitate inquiries about race, color religion, sex, national origin, ancestry, familial status or handicap. You can’t talk about AIDS, HIV-related illnesses or HIV infection related to the property, any occupant or owner, either.

What MUST Be Disclosed?

Physical stigmas arise when some negative or detrimental physical or environmental condition exists that may affect the health or safety of the occupants or the value of the property, whether direct or indirect. An obvious property condition would be houses in an area subject to sinkholes, like central Florida where an occupant was killed when his house collapsed. More indirectly, health-related problems whether real or imagined, can impact property marketability or value, like the asbestos scare or perhaps if the house is Haunted! The Seller’s knowledge of active termites and damage, flooding, toxic wastes, previous fires, landfill, settling, soil movement, fault lines and manufacture or sale of methamphetamine, must all be revealed in a Seller’s Disclosure of Property Condition. If the seller fails to provide the notice required by the statute, the purchaser may terminate the contract for any reason within seven days after receiving the notice.

Tilting the Scales in Your Favor.

If you own or intend to purchase real property, consider the following:

  • GOOGLE the property address and ask questions about prior usages and property circumstances, and know that your buyer or seller is likely to do the same;
  • In Texas carefully review and complete the Seller’s Disclosure of Property Condition for residential sales, knowing that if you are the buyer there may be more to the disclosure list than meets the eye, and if a commercial transaction, consider the same questions and responses;
  • Even if there are no disclosed property conditions or physical stigmas, separately investigate if there may be and, if so, try to determine whether the stigma is based on rumor or fact;
  • If it’s a fact, consider how material it is to the transaction—how sensational was the event, how long ago did the event occur, would it likely impact the purchase price or resale value;
  • Discuss the physical stigma, its accuracy, perceived impact and likely consequences with your broker to evaluate the impact upon the value of the property and / or the risk of legal liability and responsibility;
  • Generally speaking, more informative disclosures are better. Doing so, in writing, reduces the likelihood that a subsequent lawsuit will be successful and, therefore reduces the risk that a contingency fee lawyer will be interested in taking the case.

Lawsuits stemming from nondisclosure of a property’s problems were ranked by real estate brokers in the National Association of Realtors 2011 Legal Scan as among their “top three current and future issues.” It is almost certain that neighbors will later inform buyers about deaths and other physical stigmas related to the property. Whether the physical stigma may be a death involving or any other stigma not specifically covered by a duty to disclose, sellers may choose to voluntarily disclose information about all stigmas to avoid contract termination or worse yet, subsequent litigation.

SEE ALSO:

How will this Legislative Session impact business owners? With the assistance of our own LRM Freshman State Rep. Jeff Leach, R-Plano, Tilting the Scales periodically posts updates on bills affecting businesses, along with an occasional oddity.

LIGHTER SIDE

Texas Independence Day Ammo & Gun Sales Tax Waiver
HB 1533 (Leach)
This bill establishes Texas Independence Day (March 2) as a tax-free holiday, exempting individuals’ purchase of firearms and hunting supplies in the State of Texas from sales taxes. Exempt eligible items include the following:

  • Shotguns, rifles, pistols, revolvers, and other handguns
  • Gun cleaning supplies, gun cases, gun safes and optics
  • Ammunition
  • Archery equipment
  • Hunting stands, blinds and decoys.

Status: Bill Filed

Exemption from US Law for Firearms, Accessories and Ammunition Made in Texas
HB 872 (Laubenberg)
This bill exempts the intrastate manufacture of a firearm, a firearm accessory, or ammunition from federal regulation if manufactured in Texas. The Legislature of the State of Texas declares that a firearm, a firearm accessory, or ammunition manufactured in Texas, as described by Chapter 2003, Business & Commerce Code, as added by this Act, that remains within the borders of Texas: (1) has not traveled in interstate commerce; and (2) is not subject to federal law or federal regulation, including registration, under the authority of the United States Congress to regulate interstate commerce.
Status: Referred to Committee / Awating Hearing

Mandated A&M – Texas nonconference football game
HB 778 (Guillen)
This legislation would require UT and Texas A&M to play a nonconference, regular-season football game against one another every year. If either school refuses to play in the football game, the school will be prohibited from awarding to any student an athletic scholarship for the following year.
Status: Referred to Committee / Awating Hearing

Limited Full Contact Football Practice
HB 887 (Lucio)
This bill would prohibit a high school or middle school football team from holding more than one full-contact practice per week.
Status: Referred to Committee / Awating Hearing

Expanded Liquor Sale Hours
HB 421 & SB 236 (Thompson, S.)
Would expand the hours of liquor sales to include Sundays 12:00 pm-10:00 pm, and expanding hours on Monday through Saturday to 9:00 am-10:00 pm. Current law only allows for sale Monday through Saturday 10:00 am – 9:00 pm. The effect is one would be able to buy liquor on any day except for New Year’s Day, Thanksgiving, and Christmas. The bill would also allow wholesalers to sell to retailers on any day except for Christmas day.
Status: Referred to Committee / Awating Hearing

Smoking Banned in Public Places
SB 86 (Ellis)
Smoking would be banned from any public place, place of employment, or in a seating area of an outdoor event. The exceptions would be a private residence, hotels or motels (no more than 20% of rooms may be designated as smoking, and all on the same floor must be contiguous, and smoke may not enter a non-smoking area),nursing homes or long-term care facilities, tobacco shops, tobacco bar in operation by May 15th, 2013, private clubs not employing any employees, outdoor area of a restaurant or bar, outdoor porch not accessible to the public, tobacco product manufacturing site. A business owner may completely ban smoking on their premises.
Status: Referred to Committee / Awating Hearing

 

HEAVIER SIDE

Too Much Social Media Information!?
HB 318 (Giddings)
An employer would commit an offense if it requires or requests that an employee or job applicant disclose a user name or password for accessing their personal account, including a personal e-mail or a social networking website or profile. Right now, the employee, if asked, can merely deny the request.
Status: Referred to Committee / Awating Hearing

DNT TXT N DRIVE
HB 63 (Craddick)
The “Texting While Driving” legislation proposes that a person may not read, compose or send any “text based” communication from a “handheld wireless device” while operating a motor vehicle. Defenses to prosecution include, among others, using a cell phone to read, select or enter a telephone number to make a call, using a cell phone in conjunction with hands free talking technology and using a cell phone to navigate using GPS.
Status: Favorable Vote from Transportation Committee / Awaring House Floor Debate

Goodbye Franchise Tax?
HB 607(Turner, E.S.) and its Senate companion SB 179 (Paxton)
Would phase out the franchise tax by reducing it by 25% each year between 2014 and 2017. The legislation maintains the $1 million exemption throughout the phase out to protect small business owners and removes the $50 penalty for failure to file a franchise tax report by entities that do not owe a tax.
Status: Referred to Committee / Awating Hearing

Suing the Lone Star
HB 586 (Workman)
Proposes that a state agency that enters into a contract waives sovereign immunity for breach of an express or implied provision. In other words, the state can be sued and money damages can be awarded.  This topic has gained recent attention when former Texas Tech football coach Mike Leach discovered that he could not recover on a suit against the state for the alleged wrongful termination of his employment contract.
Status: Referred to Committee / Awating Hearing

Land Grab
HB 476 (Kolkhorst)
Proposes significant revisions to the eminent domain authority of governmental entities, providing increased protections and options for the property owners including ensuring that condemned land is used for public purposes and that landowners are fairly compensated.
Status: Referred to Committee / Awating Hearing

Assult RifleLast month Tilting pondered an owner’s liability to customers from violence at the midnight showing of “Paladin – the Gentleman Black Knight” – the remake. Patrons and employees alike were ambushed at the Orpheum Theater. According to news reports the Paladin look-alike bought a ticket. After the movie started he slipped out through an emergency exit propping open the door. After donning riot gear he re-entered, tossing gas canisters and shooting into the crowd.  Subsequently filed lawsuits alleged insufficient security for anticipated crowds and failed alarm system controls on the emergency exit. Is the business owner Pall Adium liable to his injured EMPLOYEES?

Last month we concluded that Pall Adium is probably not liable to his customers. If a business owner’s employees are injured, however, what then?

Employees Assaulted by Third Party?

Like visiting patrons, Pall’s employees have an unlikely claim against a business owner for violent acts in the workplace committed by a non-employee unless there is a “special relationship” between the employer and either the perpetrator or those who are injured. In short, should Pall have reasonably known of the danger? If Pall knew of a threat to the safety of his workers and patrons and knows either of a particular assailant or victim (employee), rather than just a mere general threat, he may be responsible for failing to warn the victim or otherwise to take reasonable protective measures.

Employees Assaulted by Another Employee?

More often than not, the workplace assailant is an employee or former employee who believes he/she was wronged by the employer. More than just having a responsibility to protect employees when he knows of a “problem employee,” Pall also has a duty in the hiring and retention of his employees. For example, Pall could be liable for failing to investigate an employee’s background before hiring or if he fails to fire after having reason to suspect that the employee might commit a violent act. In addition to OSHA/MOSHA federal standards to maintain a safe workplace, Pall has a similar duty at common law to provide a safe workplace for his employees, to warn his employees about any lurking dangers and to impose and enforce reasonable rules to govern his employees’ conduct.

Tilting the Scales in Your Favor

Warning Signs. Even without specific knowledge of a disgruntled employee or the threat of an assailant, Pall Adium should be aware of suspicious, tell-tale behavior like:

  • unexplained increases in absenteeism
  • repeated violations of company policies
  • behavior bordering on paranoia
  • depression and withdrawal
  • overreaction to changes in procedure
  • verbal abuse or threats to co-workers
  • frequent, vague physical complaints
  • explosive outbursts of rage without provocation

Reasonable Precautions

If not already a part of his HR policies, Pall should consider establishing (and including in an employee handbook) policies and procedures to address pre-employment screening, performance evaluations and a progressive disciplinary process. As a result of a Texas law that became effective September 2011, Texas employers should amend their workplace violence policies to permit employees to store legally owned guns in their vehicles while they are at work.

Good News! Workers Compensation Insurance.

Generally speaking, employees injured on a jobsite covered by workers compensation insurance may only recover from that insurance (and not from their employer) injuries and lost wages, even when the injury is caused by criminal assault.

SEE ALSO: