Palter Law founding partner Kimberly Sims will be the featured presenting attorney at the Apartment Association of Tarrant County (AATC) Legal Summit, to be held on August 26-27, 2021. Please click this link for more information and to register: https://www.aatcnet.org/events/aatc-legal-summit

Attendees will learn more about:

– General principles of real estate contract validity

– Terms and conditions of the TAA Apartment Lease Contract

– Importance of rental applications and proper screening

– Tools for use in the resident selection process

– Major differences between apartment, single-family dwelling, condominium, and student housing lease contracts

– Important aspects of a written rental agreement

– Federal Fair Credit Reporting Act (FCRA)

– Situations when lease addenda are legally necessary

– Commonly used forms for residential real property managers

– The importance of using up-to-date forms

Kimberly Sims’ practice focuses on the prevention and resolution of landlord/tenant, real estate, construction, contract and employee disputes. Kimberly is experienced in guiding businesses through government investigations and actions, including the resolution of fair housing and discrimination complaints.

Effective September 1, 2021, in actions commenced on or after that date, Texas litigants may seek to recover attorneys’ fees from their Limited Liability Company opponents under Section 38.001 of the Texas Civil Practice and Remedies Code. Previously, because the statute permitted recovery of attorneys’ fees from “an individual” or “corporation,” Section 38.001 had been interpreted to exempt Limited Liability Companies, partnerships and other entities from attorneys’ fees claims under its provisions. By deleting the word “corporation” and replacing it with:

“individual or organization [as defined in Section 1.002 of the Tex. Bus. Org. Code] other than a quasi-governmental entity authorized to perform a function by state law, a religious organization, a charitable organization, or a charitable trust,”

the Texas Legislature appears to have closed the “loophole” that has previously blocked attorneys’ fees claims against certain business organizations. Read the full text of the new Section 38.001 here.

On February 10, 2021, PalterLaw partner Nathanial Martinez and associate Joshua “Jay” Minton secured a favorable verdict on behalf of their client Four Corners Development, LLC against Alsal Construction, Inc. Four Corners is a subcontractor that worked on an assisted living facility in Mansfield, Texas under a $1.4M subcontract with the general contractor Alsal. Four Corners filed its lawsuit in 2019 against Alsal alleging that Alsal had failed to make full payment under a subcontract agreement between the parties. After a two-day bench trial conducted via Zoom before Judge Martin Hoffman, the Court found that Alsal had breached its contract with Four Corners. Judge Hoffman entered a Final Judgment on February 22, 2021, awarding Four Corners damages in the amount of $445,159.60 plus attorneys’ fees in the amount of $40,000.

“This was my first Zoom trial in Dallas County which made the victory all the more exciting,” said Martinez. “The client is very happy with this result.”

The case, styled Four Corners Development, LLC v. Parwaiz Alam and Alsal Construction, Inc., was tried in the 68th Judicial District of Dallas County, Texas, Honorable Martin Hoffman, presiding.

On November 1st, the firm welcomed Jerry L. Carlton to our expanding Multifamily Property Management practice area. With over 40 years of experience in the field, Jerry advocates for and advises clients on a multitude of topics, including evictions,  landlord-tenant disputes, fair housing and employment discrimination claims, COVID-19 compliance, employment, construction, vendor/customer, bankruptcy and mold claims.

Growing up on a dairy farm in West Texas and co-founding a business with his daughter that grew to 40 employees in only four years, Jerry applies deeply personal business insight to every case he handles, and truly understands his clients’ challenges. He speaks regularly to North Texas professional apartment associations and serves as one of only five members of the Legal Counsel Advisory Council of the Texas Apartment Association.

Jerry and his wife, Sally, who is an attorney and insurance company executive, enjoy entertaining friends with creative cooking and cocktails, love to travel, and treasure their children and grandchildren. 

Palter Sims Martinez PLLC is proud to announce that members John Palter, Kimberly Sims and Nathanial Martinez have once again been designated “Super Lawyers,”  as announced in the new edition of Super Lawyers magazine. Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations and peer evaluations obtained and tabulated by research firm Thomson Reuters. Mr. Martinez received the special designation “Rising Star.” While up to 5 percent of the lawyers in Texas are named to Super Lawyers, no more than 2.5 percent are named to Rising Stars. To be eligible for Rising Stars, a lawyer must be 40 years old or younger, or in practice for 10 years or less.

All employers should be aware of a new fraudulent unemployment benefit scheme. The Texas Workforce Commission (“TWC”) is actively working to address a scam involving fraudulent applications for unemployment benefits. Generally, the “claimants” who appear to be seeking benefits are innocent victims of identity theft. A typical attack involves a third party improperly obtaining a password or routing number through a hacking or phishing attack.

You can read more about the TWC’s action to prevent this scam here.

To avoid this scam and protect yourself or your company from being at risk, we suggest taking the following actions:

1. Create a centralized system for reviewing all unemployment claims and screening for potential fraud, and assign it to an individual or a department for monitoring.
2. Train, or otherwise inform, all employees on the necessity for informational security to safeguard personal information which may be subject to a breach by a third party leading to identity theft. Such information includes, e.g., social security numbers, passwords, and routing numbers.
3. Submit any known or suspected cases of unemployment fraud to the TWC via the fraud reporting portal on their homepage. A link to the portal can be found here. 

We agree with the TWC’s executive director that “all fraud is a betrayal of the taxpayers and a shameless exploitation of the suffering of others for the fraudster’s personal gain.” Make sure you and your company are protected against these attacks by taking these preventive measures.

If you have any questions, or desire assistance in these and other employment matters, please contact John Palter at jpalter@palterlaw.com or Greg Eyster at geyster@palterlaw.com.

This article is posted for informational purposes only, is not intended as legal advice, and does not create an attorney-client relationship. Links to external resources are provided as a convenience only; external information may change, become outdated or be removed.

As we near the half-way mark of 2020 – an election year – it is clear that politics, and, more specifically, political speech, is going to dominate water cooler discussions in many businesses across Texas. With those discussions come the chance (or risk) for impassioned and potentially fiery discussions about the direction of the country. Indeed, in March, a Pew research study discovered that the share of adults who see “strong” partisan conflicts – particularly the share who perceive “very strong” conflicts between Democrats and Republicans – is much higher today than in 2016 or 2012, when the last two presidential elections took place.

In this politically-charged environment, private employees[1] across the state may wonder what they can and cannot say in the workplace, or what they can and cannot do when “off the clock.” While no one should ever feel the need to censor themselves, employees should, at a minimum, be aware of the consequences of some of their political speech and conduct when it comes to their employment.

First Amendment Protections Severely Limited in Texas Workplaces

Texas is an “at-will” state. This basically means that, absent a statute or an express agreement to the contrary (such as an employment contract), a Texas employer may modify any of the terms or conditions of employment, or terminate the relationship altogether, for any reason, or no particular reason at all, with or without advance notice. The general exceptions to this rule are that a discharge or adverse employment decision cannot be based upon a person’s race, color, religion, gender, sex, age, national origin, disability, or citizenship.[2]  In addition, no person may be discharged because the person is engaging in some statutorily protected activity (e.g., filing a wage claim, etc.).

In “at-will” states such as Texas, because you can be fired for any reason at all, an employer may fire you for political speech and/or conduct, whether done at work or off-the-clock. Texas and federal courts have not construed such speech as a purely protected activity in the context of private employment. Therefore, an employee’s participation in such speech or conduct does come with risks.

Some Speech is Protected under the National Labor Relations Act

Some speech that might be described as at least partly “political” is specifically protected and may not form the basis for termination, such as what may be referred to as “union speech.” Specifically, Section 7 of the National Labor Relations Act (NLRA) grants the following protected right to all private-sector, non-supervisory employees: “…to engage in… concerted activities for the purpose of collective bargaining or other mutual aid and protection.” Accordingly, under the NRLA, employers may not “interfere with, restrain or coerce employees in the exercise of” the employee’s section 7 protected rights. Section 7 has been given a wide berth by courts, as “mutual aid and protection” is generally read to include any employee-interested motivation, such as concerns on compensation, hours, working conditions, supervisors, and workplace policies.

Is Speech the Only Basis?

Even where an employer discharges an employee for certain unprotected speech or conduct, an employee may still have grounds to challenge the discharge if there were additional unlawful reasons for termination and the speech at issue was merely a pretext. For example, if a black employee attends a political rally and is fired because the employer finds out, but a similarly-situated white employee is not fired for attending a counter-rally, the termination may be determined to be discriminatory. Any challenge to an employer’s decision will depend on the facts surrounding the termination, and an employee who questions the motivations of their employer’s adverse action should consult with a labor attorney as soon as possible to ascertain their rights.

Do Not Be Silent, But Be Wise

St. Catherine of Siena once said, “[p]roclaim the truth and do not be silent through fear.”  While speech protections for Texas employees are indeed limited in the private workplace, employees need not let that fact silence them entirely. Instead, employees should be smart and cautious about their political participation. Employees may even seek to start a dialogue with their employers to see what may and may not be tolerated. In this political climate, which is filled with harsh words and criticism, an olive branch from an employee to an employer, or vice versa, seeking to arrive at an understanding, would be a refreshing change of pace.

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[1] A public employee is an employee or appointed officer other than an independent contractor who is paid to perform services for a state or local governmental entity.

[2] In addition, on June 15, 2020, the Supreme Court ruled that Title VII of the Civil Rights Act, which prohibits sex discrimination, protects gay and transgender workers from discrimination in the workplace, including termination. Read the opinion here.