Aug 31, 2021 | 12:00 PM CT

In this presentation, we will discuss legal risks and best practices to mitigate the same associated with returning to in-office work amidst the ongoing COVID-19 pandemic. More specifically, we will analyze potential pitfalls, requirements, and considerations for employers under the Occupational Safety and Health Administration regulations, Americans with Disabilities Act, paid leave laws, and other government guidance. In addition, we will cover how employers can plan properly prior to making the decision to return to work and communicate with employees regarding the same, as well as discuss hot topics relevant to this important issue, such as mandatory vaccination policies, corporate events, discrimination by association, and indemnification.

Speaker: Taylor White, Shareholder 

Register Here. 

Houston’s Fourteenth Court of Appeals recently held that a claim for attorney’s fees under the Uniform Declaratory Judgments Act (“UDJA”) is not preempted by the Texas Covenants Not to Compete Act where the action brought under the UDJA seeks to declare a covenant not to compete unenforceable.

In Traina v. Hargrove & Associates Inc. a former employee filed suit against his former employer seeking a declaratory judgment that a covenant not to compete he entered into with his employer is unenforceable.  The trial court granted summary judgment in favor of the employer that the employment agreement was enforceable, reformed the covenant to limit the scope of restrictions, and declined to award attorney’s fees under the UDJA.  The trial court’s ruling stated that fees under the UDJA were preempted by the Covenants Not to Compete Act.

After affirming the trial court’s determination of the enforceability of the covenant, the court of appeals determined that since the employee’s UDJA claim sought to declare the covenant unenforceable, his claim for attorney’s fees was not preempted.  The court noted: “The only claim brought in this case is Traina’s claim for a declaration that the covenant is unenforceable.  Under such circumstances, this case does not qualify as “an action to enforce a covenant not to compete” under the plain meaning of the statute.” (emphasis own).  The court concludes that since there was no claim to enforce the covenant not to compete, UDJA attorney’s fees are not preempted by section 15.52 of the Business and Commerce Code.  The court remanded the proceedings to determine the issue of whether the former employee is entitled to attorney’s fees.

Continue Reading Houston Appeals Court Reminds Employers Why They Should Review the Enforceability of Their Non-Compete Agreements with Employees

Join Labor & Employment Shareholder Taylor White for a live 90-minute CLE webinar titled ‘Construction Employers and OSHA Violations: Willful Violations, Civil and Criminal Penalties.’ This CLE webinar will provide construction counsel with advice based on recent decisions by the Occupational Safety and Health Review Commission that found contractors were liable for hazardous working conditions and subject to civil and criminal penalties for these worker safety violations. The panel will address best practices and advise on steps construction clients should take to mitigate future risk and establish procedures and oversight.

Date: Wednesday, August 11
Time:
1:00pm-2:30pm EDT / 12:00 – 1:30pm CT

Description

The consequences to the construction industry stemming from worker safety violations are not limited to civil monetary penalties and specific hazard abatement requirements levied by the Occupational Safety and Health Administration (OSHA). Violations can lead to criminal liability under the Occupational Safety and Health Act (OSH Act).

Construction counsel must advise clients on what constitutes a criminal penalty when any employer willfully violates an OSHA standard and an employee dies as a result. OSHA’s issuance of a “willful” citation following an employee fatality is not sufficient to establish criminal liability because willfulness must be proven “beyond a reasonable doubt” in the criminal proceedings, along with other necessary elements. If proven, the employer may be fined and/or face imprisonment.

Counsel should guide clients in reviewing and revising operations and safety manuals to ensure they are up-to-date with current protocols and advise clients to address known or obvious workplace hazards and employee safety complaints and concerns. Counsel must train company management on handling OSHA inspections and investigations before an OSHA investigation and involving counsel if OSHA arrives for an inspection or investigation.

Listen as our expert construction panel discusses the state of current OSHA inspections and investigations and how the contractual relationships between the various project members, including prime contractors, subcontractors, construction managers, and professional consultants, can allocate or even shift primary responsibility from one party to another.

Outline

  • Standards established by OSHA
  • OSH Act
    • Willful violations and criminal penalties
  • COVID-19 safety and health procedures
  • Consequences of increased onsite inspections
  • Allocation of risk in contracts

Benefits

The panel will review these and other key issues:

  • How can construction counsel limit liability for clients facing OSHA investigations and/or OSH Act violations?
  • How can employers ensure worksites are complying with all of OSHA’s COVID-19 safety and health procedures?
  • As OSHA increases onsite inspections, what should construction industry employers expect?
  • How can counsel shift liability for safety violations via construction contracts?

 

Register Here: Construction Employers and OSHA Violations | CLE Webinar | Strafford (straffordpub.com)

 

Winstead PC Shareholder Taylor White published his column in Texas Lawyer about labor and employment issues and trending topics. The article is titled ‘Employers Get Clarity on Mandatory COVID-19 Vaccination Policies in the Workplace.’ The article is below:

For months, employers and employment attorneys have navigated a number of considerations and governmental guidance documents regarding COVID-19 vaccinations in the workplace. A key question has been whether employers can implement policies requiring employees entering the workplace to be vaccinated against COVID-19. Notwithstanding the business consideration of whether such policies should be implemented, the consensus among practitioners has been that mandatory COVID-19 vaccinations in the workplace are legally permissible. Two recent developments have generally confirmed that consensus: the Equal Employment Opportunity Commission’s May 28, 2021, updates to its technical assistance guidance, and a recent federal court order dismissing claims brought by employees against their employer based on the employer’s mandatory vaccination policy.

Continue Reading Taylor White in Texas Lawyer: Employers Get Clarity on Mandatory COVID-19 Vaccination Policies in the Workplace

Winstead PC Shareholder Taylor White published his column in Texas Lawyer about labor and employment issues and trending topics. The article is titled “Misclassification Whiplash: US Department of Labor Withdraws Independent Contractor Rule.” The article is below:

As of May 6, the United States Department of Labor withdrew the Trump Administration’s “Independent Contractor Rule” (Rule). The Rule, had it gone into effect, would have arguably been more employer-friendly in that it would have potentially broadened the factual circumstances in which an independent contractor relationship could be found. It did so by focusing a 5-factor analysis on two “core factors,” which were “(1) [t]he nature and degree of the worker’s control over the work; and (2) the worker’s opportunity for profit or loss.”

The Department of Labor believed the rule was at odds with the FLSA’s statutory text and existing judicial precedent regarding the same. Specifically, the Department of Labor stated that the Rule’s focus on “two ‘core factors’ for determining employee status under the FLSA would have undermined the longstanding balancing approach of the economic realities test and court decisions requiring a review of the totality of the circumstances related to the employment relationship.” The Department of Labor’s goal with the withdrawal is to preserve protections for workers under the FLSA, as well as to ensure their access to benefits normally attendant in an employment relationship. Continue Reading Taylor White in Texas Lawyer: Misclassification Whiplash: US Department of Labor Withdraws Independent Contractor Rule

Winstead PC Shareholder Taylor White published the second article for his column in Texas Lawyer about labor and employment issues and trending topics. The article is titled “OSHA Emphasizes Enforcement Effort for COVID-19 Hazards in Certain Industries.” The article is below:

Throughout the pandemic, the Occupational Safety and Health Administration (OSHA) has faced criticism that it was not doing enough to protect America’s workers from COVID-19 hazards. Then, on Feb. 25, the U.S. Office of the Inspector General, the watchdog for the U.S. Department of Labor, issued a report, observing that “there is an increased risk that OSHA is not providing the level of protection that workers need at various job sites.” OSHA is focused on changing that perception in the coming months.

Continue Reading Taylor White in Texas Lawyer: OSHA Emphasizes Enforcement Effort for COVID-19 Hazards in Certain Industries

Winstead PC Shareholder Taylor White published the first article for his column in Texas Lawyer about labor and employment issues and trending topics. The article is titled “Best Practices and Considerations for Employers Regarding the COVID-19 Vaccine in the Workplace.” The article is below:

“With states individually rolling out the COVID-19 vaccine to residents, employers are, and should be, beginning to consider their options with respect to employee vaccinations. The Centers for Disease Control and Prevention (CDC) has previously recommended giving the COVID-19 vaccine in phases initially, as it relates to employees: (1) health care employees; then, (2) frontline essential employees, such as education workers, manufacturing workers, first responders, and food and agricultural workers; and then, (3) other essential workers, such as construction workers, finance workers, and transportation and logistics workers. Of course, ‘the goal is for everyone to be able to easily get a COVID-19 vaccine as soon as large quantities are available.’

Continue Reading Taylor White in Texas Lawyer: Best Practices and Considerations for Employers Regarding the COVID-19 Vaccine in the Workplace

Taylor White recently presented for Winstead’s  ‘Healthcare Employer Roundtable – Best Practices and Considerations for Employers Regarding the COVID-19 Vaccine in the Workplace’ virtual event. During the presentation, Taylor discussed how employers in the healthcare space are faced with a unique set of challenges Continue Reading Presentation: Best Practices and Considerations for Employers Regarding the COVID-19 Vaccine in the Workplace

On Friday, February 26, 2021, the Department of Labor (“DOL”) issued EBSA Disaster Relief Notice 2021-01 (the “2021 Notice”) to address expiring relief provisions previously provided in the DOL’s Disaster Relief Notice 2020-01 (“Notice 2020-01”) and the Notice of Extension of Certain Timeframes for Employee Benefit Plans, Participants, and Beneficiaries Affected by the COVID–19 Outbreak (“Joint Notice”) (along with Notice 2020-01, the “2020 Notices”) issued by the DOL, the Department of the Treasury, and the Internal Revenue Service (IRS) (collectively “Agencies”).  This highly anticipated guidance provides a somewhat more expansive interpretation of the relief period prescribed under the 2020 Notices.

Continue Reading Oh, What a Relief it Is! DOL Provides Guidance on COVID-19 Relief Periods

No one denies that employers confronted a plethora of challenges in 2020, and many had to make difficult decisions to reduce their workforces due to the pandemic.  Such reductions in force can implicate a number of business considerations and labor laws, but for employers that sponsor qualified retirement plans, these employment decisions can inadvertently implicate the partial plan termination rules under the Internal Revenue Code.  In the event of a partial plan termination, affected participants (which under current guidance includes those who have voluntarily terminated employment) must become immediately 100% vested in their benefits under the retirement plan.

The determination of whether a partial plan termination has occurred is based on the surrounding facts and circumstances.  However, under guidance previously issued by the Internal Revenue Service, there is a rebuttable presumption that a partial plan termination has occurred if the percentage of participants decreased by at least 20%.  When determining whether that threshold percentage has been met, only employer-initiated severances, such as reductions in force and plant closures, are taken into account.

This determination is generally made with respect to each plan year (i.e. as of December 31st for a plan on a calendar year).  However, the applicable measurement period may be extended beyond the initial plan year where the same event that resulted in the decrease in participation in the initial plan year continues to exist in the subsequent period.

Continue Reading Relief for Partial Plan Terminations May Be “Too Little, Too Early”