Smooth Transitions Law Blog
Addressing the legal issues arising from the departure of employees & business breakups

Dallas

Proof that Employment Laws are Still Necessary in Texas
July 20, 2017

 

Caught this story here in Dallas where a now defunct medical lab had “gropening day” every other Friday.  Here is a link to the story.  Basically employees were free to grope one another every other Friday – no joke.  It’s hard to believe something like this occurs in 2017.  Unfortunately it does.  A former female employee sued the lab after she was subjected to ongoing harassment at the lab and quit after six month.  Here is a link to her interview.  Apparently her story has been substantiated by a former supervisor at the lab who says the story is not embellished.

Unfortunately, or fortunately depending on your perspective, the lab is out of business so a civil suit recovery may be difficult.  Stories like these are a reminder that we still have a long way to go when it comes to workplace harassment.

Read More
No Comment

HR Issues  / Uncategorized

Employees Posing for Playboy – The Firing
October 18, 2013

Though the sources are a little sketchy, it appears the Dallas Independent School District Spanish teacher that appeared in some Playboy pictures has been fired.  Details of the basis of the firing are not available but some have taken to social media in support of the teacher.  It remains to be seen whether the teacher will file suit but I’m sure some lawyer out there will take the case.  I don’t think this story is over.   

Read More
No Comment

HR Issues

Employees Posing For Playboy – What to do?
October 7, 2013

My friend Jon Hyman has a great discussion over on his Ohio Employer’s Law Blog about the firing of an employee over appearing in Playboy.  The employee claimed the employer gave her permission to do so, but she was fired anyway.

Here in Dallas, we have a situation where a newly hired school teacher appeared in a Playboy website prior to being hired.  Shockingly, word made it around the school and school district about her appearance.  Now the school district is  left in a quandary about what to do.

Nothing illegal happened, but some have raised the issue of whether her appearance violates the Educators’ Code of Ethics which states: "The educator shall be of good moral character and be worthy to instruct or supervise the youth of this state."  Apparently the school district is considering the issue now and the story is going viral.

Now the pictures were taken two and half years ago, well before she was hired.  She teaches in a high school and apparently the internet savvy youth of the school have found the pictures.  So the pictures are going to follow her around forever and the media attention will simply exacerbate the situation.

If this wasn’t a school it might not be as dicey an issue, but it remains to be seen whether the district has the right to fire her.  My guess (without seeing her contract) is that it probably can find some basis somewhere.  If this were a private employer in Texas there could be a free speech claim but because we are an "at will" state, the employer could probably fire her.  

Employers generally don’t want to get into regulating their employees’ lives with good reason.  Here you wonder what the teacher’s thought process was with respect to the pictures and being a teacher? My guess, there wasn’t one.  Nevertheless it wasn’t the best judgment.  We’ll see what the school district does.

 

(more…)

Read More
No Comment

HR Issues

Texas Courts Like Arbitration – Nationsbuilders Part II
July 26, 2013

Last week we profiled the Nationsbuilders case, an opinion from the Dallas Court of Appeals that touched on a number of post-employment covenant issues. The underlying case was an attempt by a group of defendants to undo an arbitration award entered against them.  They were successful with the trial court but reversed by the court of appeals.

Last week we discussed the anti-planning provision that was in the agreement between the parties. The arbitrator made the following finding with respect to that provision:

[it] not only prohibits the [defendants’] from the active conduct of competition, during the restricted period, but also restricts them to a dormant period, which includes no planning to conduct a business that is in competition. Obviously, passive contemplation would not rise to a material level; however, the provision does clearly contemplate and prohibit planning and conduct which would give the [defendants] any business “head start" prior to the conclusion of the restricted period.

The arbitrator found that the defendants violated this provision and entered an equitable extension of the non-compete for 12 months.

The court spent a significant amount of time discussing Texas courts deference to arbitration awards and the difficulty of reversing an arbitration award under the Federal Arbitration Act. Essentially, the party challenging an arbitration award has to show that the other side or arbitrator lied, stole, or cheated to reverse a finding. The court also recognized the broad discretion the arbitrator has in fashioning award.

To determine whether an award is beyond the scope of the arbitrator’s powers, the court noted it would look only at the result and whether the award is rationally inferable from the contract. The court concluded that the equitable extension of the non-compete was rationally inferable from the contract because the remedy gave the plaintiffs the benefit of its bargain of a one-year period without competition. The court upheld the extension noting that this concept is recognized under both Delaware and Texas law.

(more…)

Read More
No Comment

Arbitration

Does your lawyer have to disclose your non-compete?
April 2, 2013

                                         

There is an interesting case that recently came out of the Dallas Court of Appeals regarding an attorney’s obligation to disclose the existence of a non-compete when he was preparing an independent contract agreement. If you would like to read the full opinion take a look here.

Timothy Brown was a former golf professional who specialized in managing charity golf tournaments. Brown left an employer for Miracle Golf and engaged an attorney to help him with his independent contractor agreement. Brown never disclosed to Miracle Golf  the existence of his non-compete. As soon as Miracle Golf found out about the non-compete it terminated its agreement with Brown and sued Brown and his lawyer.  The facts didn’t support a claim against the lawyer, because Miracle Golf was already working with Brown well before the formal agreement was signed.  There was no reliance, which you have to have for a fraud claim.

The case raises the issue of whether a lawyer has to disclose the existence of a non-compete to the other side when negotiating an agreement? There are all sorts of ethical issues that this raises including the attorney-client privilege and the duties that a lawyer owes to his or her client.  There is no one size fits all answer to this question.

As a matter of course, it makes sense for an employee to disclose the existence of such an agreement for a number of reasons including:

  1. Potential employees should be honest with their potential employer;
  2. An employer who finds out that an employee has a non-compete and lied about it could very well fire the employee;
  3. The new employer may have their own legal counsel evaluate the agreement; and
  4. The new employer may still be willing to hire the employee and defend them if a dispute arises.

Bottom line – be up front with your new employer about the agreement.  Only bad things can happen if you don’t.  Employers – make sure your new hire checklist includes a question about post-employment covenants.  You do not want to hire a lawsuit.

 

Read More
No Comment

Non-Compete Agreements

Marathons and non-competes – really.
February 1, 2013

                                     Photo from the 1900 Paris Olympic Marathon 

I have lived in Dallas for quite some time, and had the opportunity to run the Dallas White Rock Marathon now known as the Dallas Marathon. The Dallas Marathon usually takes place in early December and is sufficiently spaced out from the other Texas marathons to prevent any conflicts or a situation where one marathon would draw runners from another. Generally the other "big city" marathons in Texas are Houston, San Antonio, and Austin. (No offense to the Cowtown Marathon in Fort Worth which I will be doing later in the month.)

This past week, the San Antonio Rock ‘n’ Roll Marathon announced that it was going to take place on December 8, the same date as the Dallas Marathon. A few folks in Dallas got upset over this and it turned out that there was actually a contract provision between the 2 marathons that prevented such a conflict. The provision provides that the San Antonio marathon:

shall refrain from sponsoring, producing, organizing, promoting, managing or conducting any marathons, half marathons, relays or other running events or events with a running component in the State of Texas from December 1 through May 31 each year for the life of our agreement…

Even though Dallas and San Antonio are 275 miles apart, marathon organizers were concerned runners would go to San Antonio instead of Dallas. One report estimated Dallas would lose 700 runners.

Things were ironed out and later last week it was announced the San Antonio marathon has moved its date from December 8 to November 17, 2013.

Read More
No Comment

Sports

The Problem Employee – Delonte West
November 26, 2012

                                            By Keith Allison from Owings Mills, USA

The world of sports always seems to have good examples of unfortunate employer/employee situations.  Maybe this is because of the combination of significant amounts of money and the media spotlight.  Two seasons ago the Dallas Mavericks signed shooting guard Delonte West.  To say that West has some baggage is an understatement.  It seemed unlikely that the Mavericks relationship with West would end well – this turned out to be true.

West’s previous stop was with the Cleveland Cavaliers.  While there it was rumored that West had an affair with Lebron James’ mother. West was also arrested for gun possession when he was pulled over while on his motorcycle.  At that point he had a handgun in his pocket, another in his pant leg, and a shotgun in his guitar case that was strapped to his back.

Probably my favorite story was during the NBA strike last year.  West needed a job and filled out an application for a furniture store.  On the application, which went viral, he described the gun arrest as a misunderstanding.  Unfortunately, it is also reported that West has bipolar disorder and takes medication for his condition.   

Finally, West had one last ingredient for his employment cocktail – he is an active social media user.  Yes, West liked to use Twitter and also maintains a personal website. 

Season one with the Mavericks seemed to go well. Except for the incident where West gave a Utah Jazz player a wet willy and fined $25,000.00.  Season two spun out of control. Apparently there were two locker room outbursts that led to his release. 

What is the takeaway for employers?  Yes, everyone deserves a second chance but the odds are they are going to repeat their previous behaviors.  Sports are a bad example in that employers are willing to take huge gambles on athletes with serious issues because they can run fast or throw a tight spiral.  Typical employers should not take such risks.  Employment histories that include red flags should be extensively addressed by the employer before hiring.  Some times it pays for the employer to pay attention to their gut instinct about potential hires.  

 

Read More
No Comment

HR Issues

Don’t Ignore a TRO
August 12, 2011

 

 

                         

 

In Texas a party seeking a temporary restraining order can do so ex parte – without the presence of the other side. In Dallas, most cases require that Plaintiff seeking the TRO provide the other side with the actual pleadings and a proposed Temporary Restraining Order two hours before any hearing.

 

When the notice for a TRO appears, do not ignore it. Call the company’s lawyer immediately, because once a TRO is entered, it sets the tone for the lawsuit and is difficult to undo. 

 

TROs are frequently used in non-compete cases. If the party ignores the notice of the TRO, it is essentially allowing the party seeking the TRO to have an unencumbered conversation with the Court where there is no defensive argument. Depending up on the Judge, there is a high likelihood by simply meeting the elements of the TRO, they will get the relief they are requesting. This could result in the shutdown of the business and end up costing the Defendant a substantial amount of money. The problem is, if the TRO is entered, the Defendant will either have to move to dissolve the TRO (which is costly) or appear for an injunction hearing in two weeks and have a mini-trial, also costly. 

 

More importantly, the Plaintiff has been permitted to set the tone for the lawsuit and can tell the Judge all the bad things the Defendant has done whether or not they are actually true. An application for a TRO must be treated seriously and addressed. It is very difficult to rewind the clock on the TRO process.

Read More
No Comment

Injunction

How much time are your employees on Facebook?
July 28, 2011

                                           

Dallas City Hall revealed that a number of city employees were on Facebook a few too many hours during the workday:

  • A City analyst had his Facebook account open for 68 hours during a three month period beginning in January. 
  • One racked up 198 hours in the same three month period. 
  • Others, including a code Inspector, office assistants, convention centers, a convention center group leader, a water utilities engineer, and a cultural affairs coordinator all had in excess of 100 hours. 
  • Employees together clocked in more than 3,000 hours on the site.

Now these numbers may be a little misleading because tracking the amount of time the actual user was logged in is not necessarily indicative of how long they were actually using the site. Needless to say, these results are not surprising. Take a walk around your office –  odds are someone is on some social networking site.

The question for the employer becomes how to govern this use?  In some cases, social networking may be encouraged for business reasons.  Ultimately, the employer must have a clear social media policy in place that addresses what appropriate use is or is not – policy – policy – policy.  This will vary from employer to employer.

Read More
No Comment

HR Issues

Seriously: A Dallas Court Gets Invovled in the Sale of Liverpool FC
October 19, 2010

                        

 

It’s not every day that a Dallas district court spars with the High Court in London over the sale of the Liverpool Football Club.  But, that is exactly what happened last week.  For those who are not familiar with Tom Hicks, he is presently the owner of the NHL’s Dallas Stars, formerly the owner of the Texas Rangers, and now former Liverpool co-owner.   

 

Last week, Hicks’ business entities instituted a law suit here in Dallas to essentially stop the sale of Liverpool FC.  (The petition and temporary restraining order are below for review.)   Liverpool was founded in 1892 and is worth approximately $822 million according to Forbes.  With significant debt owed to the Royal Bank of Scotland, Hicks made the decision to sell Liverpool.  The details and goings on of the proposed sale are set forth within the petition. 

 

Utimately, the board of directors of the company that owns Liverpool was set to approve the sale of the club to strangely enough, John Henry and the New England Sports Group – the owners of the Boston Red Sox.  

 

In response to the impending sale, Hicks filed the aforementioned lawsuit stating that “Plaintiffs bring this suit to save them from an epic swindle at the hands of rogue corporate directors and their co-conspirators.”  Hicks didn’t think Henry was going to pay enough for the team.

 

On Wednesday of last week, Judge Jim Jordan of the 160th Court here in Dallas entered a temporary restraining order that prevented the sale from going through.  In response, the following day, the British High Court entered an anti-suit injunction giving Hicks a deadline to end the Texas suit.  (Take a look at the Guardian newspaper’s blog on the events for more detail.)   Ultimately, Hicks gave up on the TRO but has vowed to fight another day.  The sale to Henry went through.

 

 It is amazing that a Texas court would intervene in such a dispute.  It would be akin to a British court meddling with the sale of the Cowboys.  But, it highlights the nature of a temporary restraining order proceeding in Texas.  With verified affidavits, a Plaintiff can apply for a TRO without the other side being there – even when it comes to the sale of a British football club.  

Liverpool Petition & TRO

http://d1.scribdassets.com/ScribdViewer.swf?document_id=39562090&access_key=key-1ui0dcinptxlnyt3em14&page=1&viewMode=list

Read More
No Comment

Injunction



Weinstein Radcliff Pipkin is a litigation serving Texas, Oklahoma, Arkansas, and Louisiana. We are experience in matters of construction law, surety, contracts, commercial litigation and labor & employment. We’re passionate about providing clients with trusted service and solutions to their legal needs.

Learn More

Contact Us

  • 8350 N. Central Expressway, Suite 1550
    Dallas, TX 75206
  • 214.865.6130 (phone)
  • 469.629.5300 (fax)
  • Email