Millions of Workers May Soon Become Eligible for Overtime Pay – Know Your Employee Rights

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The federal Fair Labor Standards Act (FLSA) requires that employers provide time-and-a-half overtime pay to all qualified workers. The number of qualified workers is about to increase dramatically next year as a result of new rules proposed by the U.S. Department of Labor. Are you among the five million workers who will soon become eligible for overtime pay? Will your rights as an employee be recognized?

Who has been defined in the past as qualified for overtime pay? Hourly workers who are not subject to an exemption are qualified. Salaried workers who are not subject to an exemption and make less than a threshold amount in salary (currently $455 per week) OR whose primary duties are not executive, administrative or professional, each as defined by the FLSA, are qualified. For the past several decades, the percentage of salaried employees who earn above the threshold amount, and therefore are not guaranteed overtime pay, has been rising dramatically. The number grew from 35 percent of salaried workers in 1975 to 88 percent in 2015. This is because the threshold salary, below which they are guaranteed overtime pay, has not kept up with inflation.

At the direction of President Obama, the U.S. Department of Labor has proposed new rules that would raise that threshold to $970 per week. Those new rules are expected to go into effect in 2016. Once they are in operation, approximately five million workers who are currently not guaranteed overtime pay will suddenly become guaranteed those employee rights.

For example, if you are a clerk in a construction company who currently makes a salary of $800 a week and is expected to work 50 hours a week, right now you are not guaranteed overtime pay under the FLSA. Whether you are entitled to receive overtime pay depends on whether your primary duties are considered to be executive, administrative or professional under the FLSA. It will be in your employer’s interest to fit you within an exempt category—likely administrative—so they don’t have to pay you overtime. However, once the new overtime rules go into effect, you will be guaranteed to receive 10 hours a week in overtime pay because your salary falls below the $970 per week threshold. The amount you will be eligible to receive is calculated by dividing your weekly salary of $800 by 40 hours per week to obtain an hourly wage of $20 per hour. This amount is multiplied by 1.5 to determine the overtime rate of $30 per hour. Multiply this by 10 hours, and you will receive an additional $300 per week in take-home pay.

If you are working more than 40 hours a week and not receiving overtime pay, it is worth your while to take the time and effort to find out if your employer should recognize your employee rights and pay you overtime. Unfortunately, as with many government regulations, what appears on its face to be fairly straightforward is not necessarily so. The threshold salary amount is clear. Once the new rules go into effect, if you earn a salary that is less than $970 per week, you will be guaranteed overtime pay. But there are many aspects of the FSLA overtime rules that are not easy to understand and require legal knowledge and interpretation to determine whether or not your employee rights are being recognized.

First of all, to figure out whether you are qualified, you must first determine whether you are on the FLSA’s list of exempt employees, which is not always a clear-cut proposition. Then there is the matter of whether you should be considered an executive, administrative or professional employee. This is where much confusion and many disagreements arise. And finally, just because your employer says you are a salaried employee, it may not be the case under the FLSA. Even if it is the case, what amount constitutes your salary may be the subject of debate.

The bottom line is if you are working overtime and not receiving time-and-a-half overtime pay, or if you believe that your position has been misclassified, get legal advice regarding your employee rights. The employee rights lawyers at Kilgore & Kilgore are experienced in all aspects of employment law. If you are not receiving overtime pay you think you may be entitled to, or if you have any other questions regarding employment law, contact Kilgore & Kilgore. Our attorneys for employee rights are ready to evaluate your situation. Email us at de*@ki********.com or call us at (214) 969-9099 for a free review of the facts of your case with a Dallas attorney for employee rights.

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Deflategate Judge Teaches NFL Commissioner Another Lesson in Labor Law

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By all outward appearances, the commissioner of the National Football League has unlimited and unfettered authority to discipline players under the collective bargaining agreement between the league and its players (NFL-CBA). Despite that, a federal district court judge recently vacated the four-game suspension handed down by Commissioner Roger Goodell to New England Patriots quarterback Tom Brady in the controversial “Deflategate” matter. This comes on the heels of the Commissioner’s initial punishments being overturned or reduced in other recent high profile cases. Remember the domestic violence matter involving former Baltimore Ravens running back Ray Rice?

There is a moral to this story for all employees subject to collective bargaining agreements. Regardless of the severity of the allegations against you, the words contained in your agreement are not the be-all-and-end-all in determining whether you have been treated appropriately by your employer and whether a punishment you have received will stand. In most cases, regardless of the nature of the alleged offense, there are implied fairness and due process principles that must be followed by your employer and by the arbitrator on appeal.

Regardless of their wealth and fame, NFL players are union employees just like most teachers, steelworkers and truck drivers. As such, through their union representatives, the NFL players association (NFL-PA),they have negotiated and entered into the NFL-CBA and are subject to the same labor laws regarding disciplinary actions as most other unionized employees. Over the last year, the disciplinary provisions contained in the NFL-CBA, and the relevant case law regarding disciplinary punishments and proceedings under collective bargaining agreements, have been in the public spotlight, culminating with the September 3 ruling in “Deflategate.” Despite having a clear contract advantage with the NFL-PA, the NFL is on a losing streak when it comes to its disciplinary decisions getting reviewed by arbitrators and judges.

Article 46 of the NFL-CBA covers player discipline, including “action taken against a player by the [NFL] Commissioner for conduct detrimental to the integrity of, or public confidence in, the game of professional football.” Under the NFL-CBA, the commissioner has the exclusive and broad authority to decide what constitutes “conduct detrimental” and impose punishment. There are no stated limits on the amount of fines or length of suspensions he can impose. There are no explicit “just cause” or due process provisions. Although appeal of a punishment decision by the Commissioner is allowed, all disputes go first to arbitration rather than to court, and the Commissioner himself gets to select who will hear the appeal. The person appointed as arbitrator is not required to be independent, and the Commissioner can select himself to hear an appeal of his own initial disciplinary decision.

The odds, it seems, are stacked against any player subject to a disciplinary proceeding. By looking at the NFL-CBA alone, it would appear that the Commissioner has absolute authority and power to impose discipline in any way he sees fit. Any punished player would be up a creek without a paddle in attempting to challenge their punishment. And in fact, the commissioner has often acted as if that were the case.

In the last couple of years, nearly every high profile punishment the commissioner has handed down has been vacated or significantly reduced on appeal, either by the arbitrator reviewing the initial punishment, or by a federal judge reviewing an arbitrator’s decision. This happened despite the fact that the arbitrator or judge is required by law to give a high level of deference to the earlier decision.

These reversals by arbitrators and judges began with the “Bountygate” punishments meted out against players for the New Orleans Saints. It included the domestic violence punishments handed down to star players Ray Rice of the Baltimore Ravens, Adrian Peterson of the Minnesota Vikings, and Greg Hardy now of the Dallas Cowboys. Of late, it culminated with the suspension given to Tom Brady in connection with “Deflategate.”

Why are so many of the Commissioner’s decisions, that on the face of the decisions seem justified, being overturned on appeal? It seems that Commissioner Goodell is ambivalent to legal requirements to the extent that, in the words of Judge Berman in a “Deflategate” hearing, “there has to be some basic process of fairness that needs to be followed.”

The governing law, which is partially based on case law and partially based on statutes such as the Federal Arbitration Act (FAA), is not easy to synthesize. In general, if a collective bargaining agreement is silent on the subject, an “implied industrial due process” requirement will be applied to disciplinary proceedings under the agreement. This means that private sector employees who are unionized have inherent due process rights requiring fairness in investigation and discipline. There are at least five elements of this industrial due process: (1) notice to the accused of the specific accusations and prior notice that the infraction could lead to the discipline imposed; (2) an opportunity for the accused to respond to the accusations before determination of discipline; (3) a fair investigation free from bias and prejudgment; (4) timely employer action; and (5) no double jeopardy.

It is well established that labor arbitrators must give decisions by the commissioner, and courts must give decisions by labor arbitrators, “substantial deference.” But disciplinary decisions and subsequent arbitration decisions are not inviolate. The arbitrator or court is not required to rubber stamp the previous decision maker’s interpretations and decisions.

The arbitrator or judge can throw out an award if he or she finds that an employee’s rights were prejudiced by corruption, fraud or misconduct. They also have the authority to vacate the award if it is found that the decision-maker acted in an arbitrary and capricious manner, i.e., was not fair and consistent. The FAA allows vacation of an award when there is evidence of partiality or if the decision-maker refuses to hear evidence pertinent and material to the controversy.

In addition, an arbitrator or judge has the authority to vacate the award if it fails to “draw its essence” from the collective bargaining agreement, such that the arbitrator imposed “his own brand of industrial justice,” which is not allowed. The essence of the collective bargaining agreement is derived not only from its express provisions. The past practices of the industry and the shop regarding the meting out of punishment (the law of the shop) is equally a part of the collective bargaining agreement, although not expressed in it.

In “Deflategate,” Judge Berman found that it is the “law of the shop” in the NFL to provide professional football players with advance notice of prohibited conduct and potential discipline. He then found that Brady was not given notice that he could be punished for his alleged misconduct (being “generally aware” of team equipment personnel deflating footballs) or of his potential discipline for such misconduct (a four-game suspension). The judge also found that on appeal the commissioner, by not allowing Brady the right to cross-examine a key witness and examine key documents, refused to hear evidence pertinent and material to the controversy. Therefore, the judge vacated Brady’s entire suspension.

Ray Rice punched his wife in an elevator and knocked her unconscious. The commissioner initially gave Rice a two-game suspension. Then he increased it to an indefinite suspension after video of the incident surfaced. Despite the severity of the offense, a former federal district court judge, who was appointed as arbitrator, determined that the imposition of an indefinite suspension following an initial two-game suspension based on the same incident and the same known facts about the incident was “arbitrary and capricious.” This was because the indefinite suspension went beyond past punishments for similar offenses and was not based on any new evidence.

Adrian Peterson entered a no contest plea on what the NFL called “an incident of abusive discipline” toward his 4-year-old son. He then was suspended for “at least the rest of the 2014 season.” A federal district judge, however, ruled that the commissioner had retroactively applied a new domestic violence policy to Peterson’s actions preceding this policy. This violated both Peterson’s implied due process rights, because it punished him for something he had no notice of, and it punished him in a way not consistent with other punishments up to that time.

Greg Hardy allegedly abused his girlfriend on four different occasions, including choking her and throwing her onto a couch covered in assault rifles. But after reading the district court judge’s opinion in the Peterson case, the NFL appointed arbitrator reduced the punishment from ten games to four games to make it more consistent with punishments at the time of the offense rather than with the new domestic violence policy, which was introduced after the offense.

In “Bountygate,” the players involved were accused of participating in a program awarding bounties for knocking opposing players out of a game and given various lengths of suspensions. A former NFL commissioner was appointed as arbitrator. He ruled that each player’s suspension should be overturned either for lack of notice, inconsistency with past practice (law of the shop), or a combination of both.

The bottom line of all this applies to any employee operating under a collective bargaining agreement. Regardless of how egregious your alleged offense is that leads to disciplinary action, regardless of whether there is any direct language in your collective bargaining agreement covering due process or fairness, and regardless of what your employer claims, there are standards of procedural fairness that apply to your case. Sorting out what those standards are and enforcing them against your employer is a complicated legal business that requires the assistance of an employment law attorney.

Kilgore & Kilgore is highly experienced in these matters and all aspects of employment law. If you believe that you have been unfairly punished in your workplace, or if you have other questions regarding employment law matters, contact Kilgore & Kilgore. Our employment law attorneys are ready to evaluate your situation. Email us today at de*@ki********.com or call us at 214-969-9099 to set up a free review of the facts of your case with a Dallas employment law attorney.

Employee Rights: Cancer Discrimination in Workplace By Bess Masterson, Attorney

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Unfortunately, some employers discriminate against employees with cancer, often out of misperceptions about a cancer patient’s ability to work. In many such cases, both the employer and employee may not be aware that such discrimination may be illegal under both federal and Texas state law. These laws are not widely known and are difficult to interpret. Anyone who has cancer and feels s/he is being discriminated against by her/his employer as a result of this disease should contact a qualified employment lawyer—such as those at Kilgore & Kilgore, who is well-versed in employment law. Hundreds of thousands of working-age adults are diagnosed with cancer every year. With advances in modern cancer treatment, survival rates have increased dramatically. A large number of people are able to continue to work while they battle this disease. In fact, for many cancer patients, their job is a critical lifeline.

The Americans with Disabilities Act (ADA), as amended by the Americans with Disabilities Act Amendments Act (ADAAA), and the Texas Labor Code Chapter 21 (TLC Chapter 21) prohibit employers with more than 15 employees and state and local government employers from discrimination against qualified individuals with disabilities. The Rehabilitation Act of 1973 provides similar protections for federal government employees.

A qualified individual under the ADA, ADAAA and TLC Chapter 21 is a person who:

  • Has a physical or mental impairment that substantially limits one or more
    major life activities,
  • Has a history of having a substantially limiting impairment, or
  • Is regarded as having a disability.

Under the ADAAA, physical or mental impairments include psychological disorders, cosmetic disfigurement, anatomical loss effecting the neurological, musculoskeletal, special sense organs, respiratory and speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin and endocrine systems. Also covered are mental or psychological disorders, mental retardation, organic brain syndrome, emotional or mental illness and specific learning disabilities. Under this definition, persons with cancer will often be considered to have a disability and be protected by the ADA, ADAAA and TLC Chapter 21. An employer cannot discriminate against an employee or job applicant with a disability if such person is able to perform the essential functions of the job with or without a reasonable accommodation. A reasonable accommodation is a requested action that enables an employee to perform the required functions of his/her job. An employer is required to make a reasonable accommodation for a person with cancer unless the request causes undue hardship to the employer.

In addition, the ADA and ADAAA prohibit harassment of an employee with cancer. Also prohibited is discrimination against a person based on his /her association with a person with cancer. This means, for example, that an employer could not discriminate against a person whose spouse has cancer. The reasonable accommodation provisions do not apply in this case.

The Equal Employment Opportunity Commission (EEOC) is responsible for enforcing the ADA and ADAAA. It is aggressive in bringing actions against employers who discriminate against employees or job applicants with cancer. Recently, the EEOC brought a claim against a Texas mixed concrete company that fired a newly hired employee who told them he needed a few days off for cancer treatment.

“An employee should feel comfortable disclosing his or her disability to a supervisor without fear of being fired as a result,” said EEOC trial attorney Meaghan Shepard.

It’s important to note that the ADA and ADAAA apply to management as well as staff-level employees. In fact, the EEOC recently brought a claim against the operator of a Dunkin’ Donuts stores at Baltimore-Washington International Airport. Dunkin’ Donuts refused to provide medical leave to a regional manager with cancer and allegedly fired her because of her disability. In Texas, the CEO of the company called Tuesday Morning filed an ADA cancer discrimination lawsuit in Dallas that was later settled.

The ADA and ADAAA are very complex statutes. This legal work requires an understanding of how their provisions have been interpreted by the courts and relevant government agencies such as the EEOC. For example, to determine whether an employer has engaged in prohibited discrimination, it is necessary to determine whether a major life activity has been substantially limited. Or if a person could substantially perform a job with a reasonable accommodation, what would and would not be considered a reasonable accommodation under the circumstances. In addition, there is a specific procedure which must be followed to bring a claim under the ADA and ADAAA, and a specific time limit for doing so. As a result, for a person wishing to bring a claim against his/her employer under the ADA, ADAAA and/or the TLC Chapter 21, it is essential that they contact a good employment lawyer, such as Kilgore & Kilgore.

Kilgore & Kilgore is experienced in employment discrimination matters and employment law. If you have cancer and believe that you have suffered discrimination by your employer, or a potential employer with whom you have interviewed, contact us. Our employment law attorneys are ready to evaluate your situation. Email us today at de*@ki********.com or call at (214) 060-9099 for a free review of the facts of your case with a Dallas employment lawyer.

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Pregnancy Leave – Don’t Let Your Company Impose Its Own Interpretation of Pregnancy Discrimination Laws on You

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A recent U.S. Supreme Court decision, Young v. UPS, gave millions of working women a significant victory in their fight for pregnancy leave. It is important a pregnant employee doesn’t accept the company line on its obligations regarding pregnancy benefits. If you are pregnant and working, it is a good idea to consult an employment attorney to make sure your employee rights are respected according to the letter of the law, not company rules.

Despite laws prohibiting pregnancy discrimination, companies look out for their own best interests. Managers often fall back on vague language, interpreting the law in their favor. Many companies believe workers will not challenge their rights at work. This was the case with UPS, who told Peggy Young it would not accommodate the restrictions her pregnancy placed on her ability to perform her job. Instead of finding some way for her to continue to work during her pregnancy, UPS put her on unpaid leave of absence. She bravely fought back.

Peggy Young worked as a driver at UPS. When she got pregnant, her doctor advised her not to lift more than 20 pounds until after she had her baby. UPS requires its drivers to be able to lift at least 70 pounds. UPS refused to make any accommodation for her despite the fact that it made accommodation for other workers. It made accommodation under the Americans with Disabilities Act. It made accommodation for employees who lost their Department of Transportation certification. It made accommodation for employees with lifting restrictions from their doctors due to an on-the-job injury.

The federal Pregnancy Discrimination Act specifies that Title VII of the Civil Rights Act’s prohibition against sex discrimination applies to discrimination because of or on the basis of pregnancy, childbirth or related medical conditions. It requires employers to treat women affected by pregnancy . . . the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work. In Young v. UPS, the Court was asked to determine how these provisions apply in the context of an employer’s policy that accommodates many, but not all, workers with non-pregnancy-related disabilities.

Based on other U.S. Supreme Court rulings, an individual pregnant employee who seeks to show disparate treatment may make out a prima facie case by showing that she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others similar in their ability or inability to work. The employer may then seek to justify its refusal to accommodate the plaintiff by relying on legitimate, nondiscriminatory reasons for denying accommodation.

In a pregnancy discrimination matter, that reason normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those whom the employer accommodates. If the employer offers a legitimate, nondiscriminatory reason, the plaintiff may show that it is in fact pre-textual, i.e., that the real motive was discrimination. The plaintiff may reach a jury on this issue by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s legitimate, nondiscriminatory reasons are not sufficiently strong to justify the burden, but rather—when considered along with the burden imposed—give rise to an inference of intentional discrimination.

UPS argued it did not violate the Pregnancy Discrimination Act because there were other groups of non-pregnant workers they did not accommodate. The Court rejected that argument. The Court ruled that a plaintiff can create a genuine issue of material fact as to whether a significant burden exists on pregnant workers—thus allowing the case to go to a jury—by providing evidence that the employer accommodates a large percentage of non-pregnant workers while failing to accommodate a large percentage of pregnant workers.

This is an important victory for pregnant workers, because it means that businesses cannot just point to other groups it accommodates in defense of not accommodating pregnant workers. However, it leaves a lot or questions unanswered, such as what constitutes a large percentage of workers? And does the employer already need to be accommodating a large percentage of non-pregnant workers with physical limitations?

There remains vagueness in the Pregnancy Discrimination Act that some companies will surely take advantage of. It will require other courageous persons like Peggy Young to challenge discriminatory practices on behalf of all pregnant workers.

Kilgore & Kilgore works on employee discrimination cases, including pregnancy discrimination, sex discrimination, gender discrimination, age discrimination, any type of unlawful discrimination in the workplace. If you believe you have been denied your employee rights, contact us. Our employment law attorneys are ready to evaluate your situation and tell you from a legal perspective is you have a matter to pursue. Email us at de*@ki********.com or call (214) 969-9099 for a free review of the facts of your case with a Dallas employment law attorney.

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Defamation Lawsuits – Anti-SLAPP Dismissals Just Became a Bit More Difficult

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Last month we gave you an overview of the Texas anti-SLAPP law, called the Texas Citizens Participation Act (TCPA) regarding defamation lawsuits. In that post we told you how useful the TCPA was to persons hit with abusive defamation lawsuits and the like, and that the Texas courts to date had given a fairly broad interpretation of the law in favor of persons bringing a TCPA motion to dismiss. At the end of April, however, the Texas Supreme Court made it a bit more difficult to obtain the dismissal of a SLAPP defamation lawsuit under the TCPA. The court did so by clarifying that circumstantial evidence may be introduced by the party defending a TCPA motion to dismiss in order to show by clear and specific evidence a prima facie case for each element of the claim.

The matter before the Texas Supreme Court was In re Steven Lipsky, a relatively well-known case involving alleged well-water contamination by Range Resources Corporation and Range Production Company (Range), which engaged in hydraulic fracturing adjacent to Mr. Lipsky’s property. Lipsky conducted a public battle against Range, at one point purporting to show that he could light his well-water on fire. Range ultimately filed claims of business disparagement and defamation against Lipsky and his wife, and this is the case that ended up in front of the Texas Supreme Court.

Lipsky was easily able to meet his first TCPA hurdle and show by a preponderance of the evidence that the case involved his first amendment rights and involved a matter of public concern. So the motion to dismiss turned on whether Range could establish by clear and specific evidence a prima facie case for each essential element of its business disparagement and defamation claims. In order to do so, Range introduced evidence that was circumstantial, i.e., required inferences to be made to reach a conclusion, as opposed to direct evidence, which would require no such inferences.

Lipsky argued that only direct and not circumstantial evidence should be considered by the court in rendering judgment on whether Range had met its TCPA burden of proof. Range, on the other hand, argued that circumstantial evidence and rational inferences may be considered by the court in determining whether clear and specific evidence exists. Prior to this case, the Texas appellate courts had been split on this issue, which to a non-lawyer may seem technical, but is actually very important. The Texas Supreme Court accepted the case of In Re Lipsky to resolve this dispute among the lower courts.

In a unanimous decision, the Texas Supreme Court ruled that circumstantial evidence could be considered by the court if it met the standard of clear and specific evidence. In this particular case, Range’s ability to introduce circumstantial evidence was the difference between Lipsky’s motion to dismiss regarding the defamation claim being granted, which it was not, or denied, which it was. And this will likely be the turning point in many future anti-SLAPP motions to dismiss as well.

In fact, there is one other such case in front of the Texas Supreme Court right now, and no doubt this particular issue in that case has already been decided. However, KBMT Operating Company LLC et al v. Minda Lao Toledo involved another important issue affecting certain anti-SLAPP motions to dismiss; and that issue remains to be decided. In that case, Toledo filed a defamation claim against KBMT, the owner of a local television station which reported, based on public government statements and documents, that she was a pediatrician who had sexual relations with one of her patients. While this technically may have been true, the full reality was that she had sexual relations with her adult boyfriend who she also provided with medication in an unprofessional manner.

In addition to the circumstantial evidence issue, KBMT v. Toledo involves the fair report privilege, which under the Texas Civil Practice and Remedies Code, provides that publications are privileged (e.g., cannot be subject to defamation claims) as long as they constitute a fair, true, and impartial account of a judicial proceeding or other official proceedings to administer the law. This case turns on whether such a fair, true and impartial account was given by the television station, and possibly on whether a publisher of fair report material has to do any additional research to ensure their account is such.

Finally, at the same time the Texas Supreme Court handed down its In re Steven Lipsky decision, it also delivered an opinion on another anti-SLAPP defamation lawsuit regarding yet another issue. In Lippincott v. Wishenhut, the court ruled that first amendment communications covered by the TCPA do not have to take place in a public forum. They only need to involve a matter of public concern. So communications made in private that involve a public concern can give rise to a TCPA motion to dismiss.

The Texas Supreme Court seems clearly intent on clarifying the TCPA, and realizes its growing importance with respect to defamation, libel, business disparagement and other such claims in Texas. If you are involved in a case like this, it’s important that your attorney realizes this importance and is up-to-speed on the latest developments as well. Kilgore & Kilgore has experienced commercial litigation attorneys ready to evaluate your situation. Call us today at (214) 969-9099 or email de*@ki********.com to set up a free review of the facts of your case with a Dallas attorney.

Defamation Lawsuits – Hit Back When You Get SLAPPed

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Defamation lawsuits were wielded like a club up until a couple of years ago. Companies and individuals with money and legal resources could bring suit against anyone. If you publicly criticized the company polluting your local river, the doctor that took your appendix out and then slipped questionable items into the bill, or the restaurant that gave you food poisoning, you did so at your own risk— because you may have exposed yourself to an expensive court fight with little recourse other than to go through the entire time-consuming process. Even if you won the courtroom battle, you would still lose the war due to the time and cost involved. These lawsuits—some of which rose to the level of pure harassment of people’s rights to free speech—took on the acronym SLAPP, which stands for strategic lawsuits against public participation. The goal was often not to win, but rather to intimidate.

In June 2011, the Texas legislature joined what is now 27 states in giving persons hit with a SLAPP defamation lawsuits their own legal defensive weapon when it passed the Texas Citizens Participation Act (TCPA). Under the TCPA, if a lawsuit claim is based ona person exercising his/her right to free speech, right to petition or right of association regarding a matter of public concern (as defined in the statute), that person may file a motion to dismiss the claim.In addition, if the motion to dismiss is successful, the court must award to the defendant his/her attorneys’ fees and court costs, as well as some degree of sanctions to deter future actions of a similar nature.

This means that frivolous defamation lawsuits intended to intimidate and cost a defendant time, money and embarrassment could actually boomerang back to the individual and/or company, costing the one filing the suit money and embarrassment.

When enacting the statute, the Texas Legislature expressly stated, “The purpose of this chapter is to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.”

The TCPA process is designed to work quickly and set a high hurdle for the plaintiff to clear. For example, if a person exercises his/her right to free speech by starting a website for the purpose of criticizing the dumping of toxic waste into a local river, and as a result, the company dumping the waste files a defamation lawsuit against the website owner, the owner may file a TCPA motion to dismiss.

In most cases, the court must hold a hearing on the motion to dismiss within 60 days of the motion being served. The burden of proof would initially be on the website owner to establish by a preponderance of the evidence that the defamation lawsuit was filed in response to his/her exercise of first amendment rights. Assuming s/he is able to do so, then the burden shifts to the company that filed the claim to establish by clear and specific evidence a prima facie (accepted as correct until proven otherwise) case for each essential element of the claim. If the individual or company is able to do this, the motion can still be won by the website owner if s/he can establish by a preponderance of the evidence each essential element of a valid defense to the plaintiff’s claim.

Very importantly, while all of this is happening there will be a stay of discovery in the original lawsuit. This means that the website owner would not be subject to expensive and time-consuming document production, depositions, etc. while the TCPA motion to dismiss is being argued and decided.

All in all, the TCPA has proved to be an effective shield against frivolous SLAPP lawsuits, as Texas courts have in large part interpreted the act as a difficult hurdle for plaintiffs to clear.Recently, however, plaintiffs have begun to push back harder, and the Texas Supreme Court has taken up two cases that may clarify what a plaintiff has to show to meet the clear and specific evidence standard for the defamation lawsuit to go forward.

This will be the subject of Part 2 of this post. This illustrates how important it is for you to have good legal representation if you are subject to a defamation lawsuit. Remember, if you win a TCPA motion to dismiss, the other party will have to pay your attorneys’ fees and then some, and the claim will go away. But if you lose, you will have to pay both the attorneys’ fees for the motion and the case going forward.

If you are subject to a SLAPP lawsuit, Kilgore & Kilgore has experienced commercial litigation attorneys ready to evaluate your situation. Call us today at (214) 969-9099 or email de*@ki********.com to set up a free review of the facts of your case with a Dallas litigator.

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Personal Injury-Wrongful Death Lawsuit Filed Against General Motors Continues to Reverberate

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In 2010, the family of a Georgia woman filed a wrongful death action against General Motors (GM) after she was killed in a car accident on her 29th birthday due to a defective ignition switch in her 2005 Chevrolet Cobalt. This personal injury lawsuit eventually led to the revelation that GM had known for years about the faulty ignition switch and allowed it to remain uncorrected by what GM’s own CEO called “a pattern of incompetence and neglect.” The publicity following the personal injury lawsuit and the discovery that the defective cars had been left on the roads led to thousands of claims being filed against GM, the creation of a $400 million fund for personal injury claims, and the 2014 recall of 2.6 million small cars with defective ignition switches. One family’s personal injury claim for justice resulted in justice for other victims and protection for millions of people traveling our nation’s roads.

The Georgia family’s wrongful death action and the following flurry of similar personal injury claims had a ripple effect on the entire auto industry. With the spotlight turned on the car manufacturers, they began recalling automobiles in record numbers. In fact, in 2014 alone the automakers sent out more than 64 million recall notices in the United States, more than double the amount sent out in the previous record year.

One of the most highly publicized recalls over the last several years has been of cars containing Takata airbags, of which 24 million have been recalled globally since 2008. This faulty airbag recently claimed a victim in Texas. In January, a man who had bought a used vehicle from a dealership was killed by the airbag defect during a minor traffic accident. The victim of this unnecessary tragedy was the father of a 14-year-old boy and a 13-year-old girl.

Members of the U.S. Congress have proposed a bill that would put more pressure on automakers to correct rather than conceal defects. A U.S. Senate Committee recently approved the bill, labeled the Motor Vehicle Safety Whistleblower Act, which grants incentives to auto industry whistleblowers to come forward with their knowledge of defective parts in cars on the market. If the bill is approved, whistleblowers would be eligible to receive up to 30 percent of penalties that exceed $1 million tied to any motor vehicle defect, noncompliance or violation of reporting requirements likely to cause risk of death or serious personal injury.

Senator Bill Nelson of Florida, who co-sponsored the legislation, said that the “auto industry needs to be held accountable” and “one way to do that is to encourage insiders to come forward and tell the truth.”

The bill now heads to the full Senate for consideration. If it passes there, it would be taken up by the House Energy and Commerce Committee. If passed by Congress and signed into law by the president, which is far from certain, the bill would certainly increase accountability. It would also increase the probability that if a personal injury or wrongful death case was filed in court, if there was a hidden defect, then somebody would come forward and disclose it.

In reality, however, the filing of a personal injury lawsuit or awrongful death lawsuit is what primarily holds the automakers and other manufacturers who are at fault for defective products accountable. If the Georgia family had not filed the case against GM, the faulty ignition switch may never have been discovered. If the defect had remained undetected, the recall may never have occurred and many more people would have died or been seriously injured. In addition, those who had already been injured, and the families of those who were killed, would not have received compensation or justice. So the original personal injury lawsuit and those that followed served several purposes: they held GM accountable for its horrendous failure to protect its customers and the public, they attained just compensation for the victims, and they provided a public service by forcing the recall of defective products.

If you or a loved one are the victim of an accident that caused personal injury or death as a result of a defective part or design in an automobile or any other product, you may be entitled to compensation by the manufacturer, and could also be providing a public service by bringing this defect out into the light of day. Kilgore & Kilgore’s personal injury lawyers are ready to evaluate your situation. Call us today at (214) 969-9099 or email de*@ki********.com to set up a free review of the facts of your case with a Dallas personal injury lawyer.

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Springtime Musings: Getting Married This Year? Go in With Your Eyes Wide Open by Nicholas O’Kelly, Attorney

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Despite their fervent intentions at the time of the marriage proposal, many engaged couples say “I don’t” before signing the marriage certificate. As the first children-of-divorce generation to reach marrying age, today’s twenty-and thirty somethings would much prefer a broken betrothal to a broken home. Breaking an engagement is difficult, but rather than face it with shame, many almost-unhappily-marrieds see it as a wise, even courageous act. Such “disengaged” individuals have become increasingly visible and vocal. Nobody tracks how many engagements are broken each year, and people in the always-upbeat wedding industry are reluctant to even discuss the issue. However, in an online national poll of 565 single adults conducted in August 2003 by Match.com/Zoomerang for Time, 20% said they had broken off an engagement in the past three years, and 39% said they knew someone else who had done so,” writes Pamela Paul, from Time Magazine.1

After the pain and disappointment on one side, and the corresponding sigh of relief on the other, there remains the practical question: Who gets to keep the engagement ring now that there’s no wedding? It depends on the facts, according to Nicholas O’Kelly, attorney with Kilgore & Kilgore and Kilgore & Kilgore PLLC in Dallas, Texas. Texas applies the “conditional gift rule.” In other words, the engagement ring is viewed as a conditional gift given in contemplation of marriage and on condition that the marriage takes place. The future permanent home of the ring is dictated by the answer to the question: Who broke off the engagement and why? If a woman accepts the ring, but later breaks off the engagement for no justifiable reason, such as infidelity or her fiancé’s pre-existing marital status, Texas law requires her to return the ring.

In a recent case, the Court of Appeals in Austin held that this rule applies equally to the man. In that case, the fiancé called off the wedding because of his fiancée’s “sexual hang-ups” and “issues with men.” There was no evidence of infidelity or any other justifiable reason. The court held that the man was at fault and allowed the woman to keep the engagement ring.

This is not the rule in all jurisdictions, many of which have perhaps wisely concluded that it is impossible to determine whether any particular breakup was justified, regardless of the circumstances. However, the law in Texas is clear.

With springtime upon us yet again, our advice to all courting couples, when you say “Yes,” make sure you mean it and don’t give your fiancé(e) a reason to break it off.

Says Christine Steinorth, MA, MFT, a Psychotherapist, and the Author of “Cue Cards for Life: Thoughtful Tips for Better Relationships,” you would be surprised how many women going through divorces tell me they knew they were making a mistake when they walked down the aisle…” Here are her five warning signs you may want to consider before saying “I do.”

1. You don’t get along with his family. Many couples go through with weddings hoping all the family stuff will “just work out.” Don’t fall into this trap because it seldom does.

2. You’ve dated for less than a year. Most people are on their best behavior for the first twelve months of a relationship. After that, people tend to let their guard down a little bit and you get to see what a person is really like.

3. You haven’t come to an agreement about kids, careers, finances and other fundamental issues. So many couples get caught up in wedding planning, that they forget to talk about the basic matters of sharing a life together.

4. You lack conflict resolution skills. A lot of couples write off arguments before a wedding as “wedding day jitters,” but the truth of the matter is that if you have horrendous arguments and fights with your partner and nothing ever seems to get resolved, you may want to consider calling off your wedding until the two of you work on your conflict resolution skills. Long-term relationships require good communication skills. The good news is that this can be learned if both people are committed to doing so.

5. Your gut feeling is telling you to call it off. We have gut feelings for a reason, and where most of us get into trouble is when we don’t listen to them. If your gut feeling is telling you to call off your wedding, it’s probably a good idea to listen to that feeling and postpone your wedding until the feeling goes away. If you are meant to be together, that current gut feeling that is telling you “don’t do it,” will eventually pass.2

If you are contemplating a marriage, you would be wise to consult a therapist or marriage counselor before proceeding. Bringing the thorny issues of a relationship out into the light of day and working through them together will strengthen the bond that binds you. If you are thinking of calling it off, Kilgore & Kilgore has experienced attorneys ready to advise the best course of action for your situation. Email de*@ki********.com to set up a free review of the facts of your case with a Kilgore & Kilgore lawyer.

1 Calling it Off, by Pamela Paul, October 1, 2003, Time Magazine, http://content.time.com/time/magazine/article/0,9171,490683,00.html

2 Calling Off a Wedding – 5 Signs You Should Do It, by Christine Steinorth, MA, MFT, March 16, 2015, Huff Post. http://www.huffingtonpost.com/2012/09/14/calling-off-a-wedding_n_1881407.html

No-Poaching Agreements Between Companies are Illegal and Take Money Out of the Pockets of Employees – by Ted Anderson

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Apple, Google, Intel and Adobe recently agreed to a $400 million settlement to be distributed among more than 64,000 employees who worked at those companies between 2005 and 2009. During that time, each of these companies agreed not to make cold calls to the employees of other companies, as well as other recruiting restrictions. The U.S. Department of Justice (DOJ) found that these agreements literally took money out of the pockets of the affected employees by suppressing employment opportunities and compensation values.

A class action lawsuit was also filed against the companies, which initially demanded approximately $3 billion in lost compensation and treble damages. As a result of the DOJ action, the ensuing civil lawsuit and pending settlement, employers around the country are on notice that restrictive no-poaching practices will most likely violate federal and state anti-trust laws and may lead to harsh consequences that include awards to employees of the amounts they would have made if not for the collusion, not to mention potential treble damages.

Some of the most well-known and powerful companies in the world are learning the hard way that businesses cannot collude to restrict the free market for skilled employees. The trouble for these companies began back in 2010, when the DOJ’s Antitrust Division filed a complaint in U.S. District Court alleging anti-trust violations of the Sherman Act, saying that the companies had reached “facially anticompetitive agreements” that “eliminated a significant form of competition … to the detriment of the affected employees who were likely deprived of competitively important information and access to better job opportunities.” The DOJ found that the companies had in fact agreed not to cold call each others’ employees and had kept “do-not-call lists” to avoid such recruiting.

There is no doubt that these collusive agreements and practices harmed employees. One of the principal means by which many companies with skilled workers competitively recruit employees is to solicit them directly from other companies in the process referred to as cold calling, which is very effective at reaching the best and most satisfied employees regarding alternate career opportunities. Competition in the labor market results in better salaries, enhanced career opportunities and increased mobility for employees. On the flip side, collusive agreements not to solicit or hire certain employees reduce competition and lower salaries. In fact, these restrictive practices have much the same effect as price-fixing or agreements between companies not to compete for certain buyers, both of which are “per se” violations of the anti-trust laws.

After the DOJ investigation, the companies involved agreed to end their anticompetitive practices. However, the DOJ did not extract any compensation for the Apple, Google, Intel and Adobe employees, and so the civil lawsuit was filed to get them their just due. In the end, it appears that that lawsuit will cost the four companies hundreds of millions of dollars that will be distributed among the employees who were harmed by the aforementioned restrictive practices.

Unfortunately, this type of collusion that Apple, Google, et al, thought they could get away with is all too common and occurs in Texas as well as the Silicon Valley. And, if any companies in Texas engage in the same or similar practices in restraint of a free labor market, their employees would be equally harmed and equally entitled to compensation. For example, if large companies in the oil and gas industry agreed not to poach or solicit each other’s engineers and workers without a justifiable reason for doing so, then those workers may have a claim against the companies involved.

Kilgore & Kilgore is highly experienced in these matters and all aspects of employment law. If you have information that leads you to believe that your employment opportunities and compensation packages are being restricted due to collaboration among potential employers, or if you have any other questions regarding employment matters such as non-compete or non-solicitation agreements you may have signed, contact Kilgore & Kilgore today. Our Dallas employment attorneys are ready to evaluate your situation. Call us today at (214) 969-9099 or email de*@ki********.com“>de*@ki********.comto set up a free review of the facts of your case with a Dallas employment lawyer.

Guardianship Grabs by Nursing Homes and Others Cheat Heirs of Inheritances

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Nursing homes are regularly using guardianship petitions as a means of bill collection. Other parties may also abuse the guardianship process to serve their own needs. A recent study of guardianship cases filed over a ten-year period indicated that 12 percent of such cases were brought by nursing homes. Interviews with veterans of the system and a review of guardianship court data conducted by researchers at Hunter College, at the request of the New York Times, show the practice has become routine, underscoring the growing power nursing homes wield over residents and families amid changes in the financing of long-term care. 1

A 2007 study funded by a grant from the Retirement Research Foundation states: “As of 2007, a total of 44 states have specific statutory provisions on public guardianship, whereas seven states include no such reference in their code.”

Seniors can have in place a power of attorney, a health care directive and a will, but all of that planning can be overturned by a guardianship established by a nursing home or other parties. Seniors should be aware of guardianship laws in their state, discuss with an attorney their plans for long-term care, and manage the transition from private pay to Medicaid.2

Guardianship can be a necessary and useful legal means of protecting the rights and assets of a loved one who has lost the ability to make important decisions. Unfortunately, guardianship laws are sometimes abused by persons wanting to protect and enrich their own interests rather than the person in a vulnerable position. This abuse can come from nursing homes, unscrupulous family members, friends, business partners, caregivers, and even persons connected with the court system. In virtually every case, the only way to fight such abuse is to have an experienced and effective attorney on your side who understands the laws relating to elder care and the legal system. Kilgore & Kilgore has attorneys with experience in protecting the elderly and the heirs when the inheritances were compromised by the actions of others.

Guardianship gives a person the legal right and duty to manage the personal and/or financial affairs of someone who is unable to do so for him or herself. In Texas, guardians are appointed by the court for persons who are proven to be “incapacitated.” Because any guardian appointed by a judge will have full control over all or some of the affairs of the incapacitated person (called a “ward”), the appointment process is not easy by design. It almost always requires an experienced attorney to act on behalf of the family member or other person who is requesting that a guardian be appointed.

In the vast majority of cases, guardianships do what they are designed to do: protect vulnerable persons from abuse, neglect and exploitation. Unfortunately, however, in some cases, persons with their own agendas try to use the guardianship laws for their own benefit. A recent report in the New York Times put the spotlight on nursing homes which abuse the guardianship process as a method of bill collecting. The nursing home may petition the court for a guardian to be appointed on behalf of someone in their care who has not paid what the nursing home claims to be the outstanding balance. By doing so, the nursing home initiates an expensive and stressful process that puts pressure on the person in its care to either pay the demanded amount or risk losing control of his or her personal finances.

Persons in Texas have been shown to abuse the guardianship process as well. In 2012, the San Antonio Current published its own exposé on guardianship abuse. The focus of this report was on a process in Texas called “court-initiated guardianships.” Under the laws governing this process, if a judge becomes aware of any person on whose behalf a guardian may need to be appointed, the judge is obligated to commence an investigation to determine whether doing so would be appropriate. If the investigation shows to the court’s satisfaction that a guardian should be named, then the judge may do so regardless of whether any family member has expressed a desire for a guardian to be appointed—and sometimes even over the objections of the person becoming the ward.

In theory, when choosing a guardian, the judge is required to follow a priority list provided by Texas law, but there are ways around this. For example, if the ward is an adult, then the law directs the judge to first look to whether the ward has already designated a guardian in the event of incapacity, and if not the judge looks to the spouse, the next of kin, and so on. However, there are many legal methods for a judge to disqualify a person from becoming a guardian. These include a determination that a person has a claim adverse to the ward’s assets, has engaged in notoriously bad conduct, lacks the ability or education to handle the ward’s affairs, or is otherwise found unsuitable by the court. So in reality, the judge can often overlook the stated wishes of the ward and the family in order to appoint an independent guardian.

Such an independent guardian sometimes acts in a manner detrimental to the ward and the family. Guardian fees, which can be extremely high, are paid directly out of the ward’s assets. Some independent guardians have even limited or excluded contact by family members with the ward. And the ward and his or her family have no control over the independent guardian’s use of the ward’s assets to pay disputed bills such as in the nursing home cases.

As you can see, whether you are in the unfortunate situation of needing to petition for guardianship of a loved one to protect the loved one’s interests, or need to contest a guardianship initiated by another person or the court, you will absolutely need an experienced attorney on your side. If you are in either of these situations, or have other issues relating to elder care abuse, contact Kilgore & Kilgore today. Our commercial litigation attorneys are ready to evaluate your situation. Call us today at (214) 969-9099 or email de*@ki********.com to set up a free review of the facts of your case with a Dallas commercial litigation lawyer.

1 New York Times, January 25, 1025, To Collect Debts, Nursing Homes Are Seizing Control Over Patients,http://www.nytimes.com/2015/01/26/nyregion/to-collect-debts-nursing-home-seizing-control-over-patients.html?_r=0

2 Senior Living Blog, January 27, 2015, by Don Taylor, Nursing Homes: Guardians of the Elderly,

http://www.bankrate.com/financing/senior-living/nursing-homes-guardians-of-elderly/