July 2022 DBA Headnotes by Jessica Smith

Dallas Bar Association

HEADNOTES |

Focus | Employee Benefits/Labor & Employment Law

July 2022 Volume 47 Number 7

DBA Recognized by State Bar STAFF REPORT

At the State Bar of Texas Annual Meeting in June, the Dallas Bar Association accepted several awards for its programs and services. The DBA received the prestigious Award of Merit for outstanding services to its more than 11,000 members and to the community, which highlighted new programs such as the DBA COVID-19 Response Taskforce and Community Outreach, the quick transition to webinars during the pandemic, Virtual LegalLines, and the many additional member services offered. The Dallas Volunteer Attorney Program received a Star of Achievement for its Virtual Clinics, which were started during COVID with the help of Hunton Andrews Kurth. The Allied Bars Equality Committee also received a Star of Achievement for its outstanding programing in the past two years which aimed to

Focus

further the ideals the DBA and affiliate bars collectively to espouse and promote liberty, truth, fairness, justice, due process, and equality. In addition, Headnotes received an award for Best Series of Articles – Substantive Law in the January 2020 Intellectual Property/Science & Technology Law issue. The articles were written by Kevin E. Barnett and Ryan D. Marrone, of Ferguson Braswell Fraser Kubasta PC.; Chelsie Spencer, of Ritter Spencer PLLC; and Benjamin Nise, of Slater Matsil, L.L.P. At the annual meeting, Laura Gibson, of Houston, assumed the role as president of the State Bar, and Cindy Tinsdale, of Granbury, was elected SBOT president-elect. Chad Baruch, of Johnston, Tobey, Baruch, was elected Chair of the State Bar Board, and Paul Stafford, of Stafford Moore, PLLC; and Aaron Tobin, of Condon Tobin Sladek Thornton Nerenberg; were elected to the State Bar Board of Directors. HN

State Bar of Texas President Sylvia Borunda Firth, presents awards to (left to right) Past President Peter Vogel, President Krisi Kastl, and First Vice President Bill Mateja.

Employee Benefits/Labor & Employment Law

Employee Policies Are a Key Component of Sound Cybersecurity BY AMY E. DAVIS

“Cybersmearing” is the use of websites and social media to criticize companies and their executives. While cybersmearing may be a relatively new term to many legal practitioners, the U.S. Supreme Court in 1997 foresaw the writing on the message board wall. In Reno v. ACLU, Justice Stevens observed that with the internet “any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox.” Today, cybersmearing is of increasing concern to corporations. Some of the nation’s leading companies have been targets of online criticism ranging from customer service complaints to accusations of fraud. This type of internet disparagement spreads instantaneously and, unchecked, can result in irreparable damage to a company’s reputation and financial health. Cybersmearing is only one form of cyberthreat. Businesses also must be on alert to cyberattacks such as ransomware, phishing, malware, and password hacking. • Ransomware is a malicious software designed to block a company’s access to its own computer system until a sum of money—a ransom—is paid. • Phishing describes a hacker’s attempt to get users to download a malicious link or file or give away sensitive information by pretending to be a trusted source or

contact. This can occur over the phone, by text or, most commonly, by email. The hacker may use an email address and caller ID that suggest the communication is coming from a reputable company or government agency. • Malware includes viruses, worms, or Trojan software surreptitiously downloaded to a computer when a user visits an unsecured website, unknowingly clicks on an infected link, or installs a malicious application. • Password hacking refers to the unauthorized use of a person’s password to gain access to a computer system or other sensitive information. Weak passwords or the reuse of the same password for multiple sites often makes a user vulnerable to this sort of cyberattack. The use of unsecured Wi-Fi networks, such as at airports or restaurants, similarly creates a password vulnerability risk. Both cybersmearing and cybersecurity attacks have serious consequences. Each year, businesses face devastating financial losses, disruption of business operations, and other harm as the result of these actions. Cyberattacks can also result in lost sales. According to a 2019 survey, as much as 81 percent of customers reported they would stop engaging with a brand following a data breach. Employment attorneys are often hired to help companies mitigate risks associated

with cyberthreats. Because employees are often the source of cybersmearing, companies will hire employment attorneys to prepare and implement company policies to deter employee cybersmearing activity. To be effective, the policy should at a minimum prohibit the disclosure of proprietary company information, unprofessional posts, unauthorized statements on the company’s behalf, or malicious criticism of the company and its employees. Careful crafting of such a policy is essential, as the National Labor Relations Board protects an employee’s right to discuss workplace conditions, and overzealous social media prohibitions may infringe this right. A robust social media policy should also require employees to notify management if they encounter rumors or any sort of negative information about their employer online. It is even better when the policy specifically identifies the manner in which employees can report information. Creating an option for anonymous reporting is ideal. Employment attorneys are frequently hired to address cybersecurity issues as well. To quote Pango CEO Hamed Saeed, “Your employees are your first line of defense.” Cybersecurity policies focused on employees is therefore important. A strict email usage policy can stave off cyberattacks. This policy should provide clear guidelines governing employees’ use of business email accounts. Per-

Inside 10 Counsel for a Post-Pandemic Future: Don’t Neglect the Past 16 Management Incentives in LLCs – Equity and Phantom Interests 23 Common Employment Law Mistakes Law Firm Make

sonal use of a business email address may make the account known and, therefore, vulnerable to hackers. Each company’s cybersecurity policy should identify common phishing ploys and ensure the policy addresses them. For example, employees should be required to verify the legitimacy of emails and attachments before accessing them. Explain the steps for verification, such as careful analysis of the sender’s email address. If the email purports to be from a reputable company but comes from a Gmail account or misspells the company name, it is highly suspect. Include instructions for handling suspicious email. Company email usage polices should further require the encryption and regular updating of passwords for any email accounts, other applications, and any device an employee may use for business. Encrypted passwords are burdensome but well worth the effort. Companies can provide password manager software that makes this protection manageable. These policies are only as effective if known and understood by employees. Be sure to hold employee training sessions to explain the policies and the reasons for implementing them. Employment attorneys can be a helpful resource throughout the process. HN Amy E. Davis is a Principal at the Law Center of Amy E. Davis, LLC. She can be reached at adavis@cdfirm.com.

Need Help? You’re Not Alone. Texas Lawyers’ Assistance Program…………...(800) 343-8527 Alcoholics Anonymous…………………………...(214) 887-6699 Narcotics Anonymous…………………………….(972) 699-9306 Al Anon…………………………………………..…..(214) 363-0461 Mental Health Assoc…………………………….…(214) 828-4192 Crisis Hotline………………………………………..1-800-SUICIDE Suicide Crisis Ctr SMU.…………………………...(214) 828-1000 Metrocare Services………………………………...(214) 743-1200 More resources available online at www.dallasbar.org/mentalhealthresources

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Programs and meetings are presented Virtually, Hybrid, or In-Person. Check the DBA Online Calendar (www.dallasbar.org) for the most up-to-date information. Programs in green are Virtual Only programs.

Calendar July Events

Syed. (MCLE 1.00, Ethics 0.25)* Co-sponsored by the Trial Skills Section. In person only

FRIDAY CLINICS

JULY 15 Noon

Visit www.dallasbar.org for updates on Friday Clinics and other CLEs.

“Boldly Go: Why You Should Consent to Trial Before a Magistrate in Your Next Federal Case,” Hon. Barbara M.G. Lynn, Steven Moses, Hon. Rebecca Rutherford, Ross Williams, and moderator Saba Syed. (MCLE 1.00, Ethics 0.25)* Co-sponsored by the Trial Skills Section. In person only

MONDAY, JULY 18 Noon

JULY 22 Noon

“How to Work from Home Over the Internet in a Safe and Secure Fashion,” John DeCraen and Larry Kanter. (MCLE 1.00)*

FRIDAY, JULY 1

and Orders,” Judson Davis and Dan Gividen. (MCLE 1.00)*

No DBA Events Scheduled

DBA Offices closed in observance of Independence Day

Noon

No DBA Events Scheduled

Criminal Justice Committee. Virtual only

Bench Bar Conference Committee. In person only

4:00 p.m. LegalLine E-Clinic. Volunteers needed. Contact mmejia@dallasbar.org.

THURSDAY, JULY 7

4:00 p.m. LegalLine E-Clinic. Volunteers needed. Contact mmejia@dallasbar.org.

THURSDAY, JULY 14

1:00 p.m. Publications Committee. Virtual only

Noon

FRIDAY, JULY 8 No DBA Events Scheduled

Community Involvement Committee. Virtual only Entertainment Committee. Virtual only

WEDNESDAY, JULY 20

9:00 a.m. DAYL Book Fair Choose from a wide selection of gently-used practice books at greatly reduced prices. For more information, visit dayl.com. In person only at the Arts District Mansion. Noon

Morris Harrell Professionalism Committee. Virtual only

TUESDAY, JULY 12

Immigration Law Section “Review of SCOTUS’ 2022 Immigration Decisions

FRIDAY, JULY 15 Noon

Friday Clinic “Boldly Go: Why You Should Consent to Trial Before a Magistrate in Your Next Federal Case,” Hon. Barbara M.G. Lynn, Steven Moses, Hon. Rebecca Rutherford, Ross Williams, and moderator Saba

Welcome 2022 Summer Law Interns!

Noon

Pro Bono Activities Committee. In person only 4:00 p.m. LegalLine E-Clinic. Volunteers needed. Contact mmejia@dallasbar.org.

No DBA Events Scheduled

WEDNESDAY, JULY 27 Noon

Living Legends Program “Beverly B. Godbey, interviewed by Mauri Hinterlong, and Alissa Puckett. (Ethics 1.00)* Sponsored by Quilling, Selander, Lownds, Winslett & Moser, P.C. Virtual Only Collaborative Law Section Topic Not Yet Available Entertainment, Arts & Sports Law Section Topic Not Yet Available

4:00 p.m. LegalLine E-Clinic. Volunteers needed. Contact mmejia@dallasbar.org.

THURSDAY, JULY 28 Noon

THURSDAY, JULY 21

9:00 a.m. DAYL Book Fair Choose from a wide selection of gently-used practice books at greatly reduced prices. For more information, visit dayl.com. In person only at the Arts District Mansion Noon

Science & Technology Law Section Topic Not Yet Available

TUESDAY, JULY 26

Energy Law Section Topic Not Yet Available

Law in the Schools & Community Committee. Virtual only

Friday Clinic “How to Work from Home Over the Internet in a Safe and Secure Fashion,” John DeCraen and Larry Kanter. (MCLE 1.00)*

MONDAY, JULY 25

Health Law Section “Representing Physicians and Pharmacists in DEA Investigations,” Lynette Byrd and Wade Emmert. (MCLE 1.00)* In person only

Business Litigation Section “Avoiding Malpractice in a Post-Pandemic World,” Robert Tobey. (Ethics 1.00)*

DBA/DAYL Moms in Law Lunch at Sixty Vines, Uptown Dallas. RSVP kelly. bryan01@gmail.com.

Real Property Law Section “Changes to the Texas Mechanic’s Lien Statute,” Tracey L. Williams. (MCLE 1.00)* In person only

FRIDAY, JULY 22

Antitrust & Trade Regulation Section Topic Not Yet Available International Law Section “Cross-Border Privilege,” Jordan W. Cowman. (Ethics 1.00)*

Solo & Small Firm Section “10 Ethics Myths That We All Need to Know About,” Jason Friedman. (Ethics 1.00)*

MONDAY, JULY 11

Noon

Family Law Section “Special Needs Trusts for Children in Family Law Cases,” Tresi Weeks. (MCLE 1.00)* In person only Legal History Discussion Group “James Otis Jr., The Lawyer Who Sparked the American Revolution,” David Huntt Baker. (MCLE 1.00)* In person only

WEDNESDAY, JULY 6

Noon

TUESDAY, JULY 19

WEDNESDAY, JULY 13

TUESDAY, JULY 5 Noon

Senior Lawyers Committee. In person only

Legal Ethics Committee. In person only

MONDAY, JULY 4

Labor & Employment Law Section Topic Not Yet Available Virtual only

6:00 p.m. DAYL Dinner & Dialogue “Tokenism: What it is and How it Affects Our Workplace,” Nnamdi Anozie, Hon. Tonya Parker, Natasha Stamper, and Saba Syed. (MCLE 1.50, Ethics 1.00)* Qualifies as 2022 DBA DEI challenge CLE. RSVP to cherieh@dayl.com. In person only at the Arts District Mansion

CLE Committee. Virtual only

4:00 p.m. DBA Board of Directors Meeting

Criminal Law Section Topic Not Yet Available

Environmental Law Section “The Administrative Procedure Act and the Development of Federal Environmental Policy and Regulation,” Anthony Cavender. (MCLE 1.00)* Virtual only Intellectual Property Law Section “A Review of Supreme Court and Federal Circuit Patent Law (2021-22), with Commentary,” Gale R. “Pete” Peterson. (MCLE 1.00, Ethics 0.25)* Minority Participation Committee. Virtual only

DBA/DAYL Moms in Law

Being a working mom can be challenging. Being a working lawyer mom can be a different ballgame with its own unique challenges. Moms in Law is a no pressure, no commitment, informal, fun, support group for lawyer moms. Join Moms in Law for lunch at Sixty Vines in Uptown Dallas on Thursday July 14, Noon. To RSVP for this lunch, email Kelly Bryan at kelly.bryan01@gmail.com. The DBA’s Summer Law Intern Program is in full swing. Thank you to all of the firms and organizations who are supporting this program and hiring a DISD high school intern for July.

DBA 100 Club - Join Today! WHAT IS THE DBA 100 CLUB? The DBA 100 Club is a special membership category that recognizes firms, agencies, law schools, and organizations that give 100% membership support to the DBA!

Give to

WHAT IS THE COST TO JOIN THE DBA 100 CLUB? IT’S FREE! HOW DO YOU JOIN? Firms, government agencies, and law schools with two or more lawyers as well as corporate legal departments can qualify if all of their Dallas office attorneys are DBA members. To join the 2022 DBA 100 Club, please submit a list of all lawyers in your Dallas office to Shawna Bush, sbush@dallasbar.org. Once approved, we will add your organization to the 2022 DBA 100 Club member recognition list!

WHAT ARE THE PERKS?

Our 2022 DBA 100 Club members will be recognized in Headnotes, the 2023 DBA Pictorial Directory, and at our Annual Meeting.

If special arrangements are required for a person with disabilities to attend a particular seminar, please contact Alicia Hernandez at (214) 220-7401 as soon as possible and no later than two business days before the seminar. All Continuing Legal Education Programs Co-Sponsored by the DALLAS BAR FOUNDATION. *For confirmation of State Bar of Texas MCLE approval, please call the DBA office at (214) 220-7447. **For information on the location of this month’s North Dallas Friday Clinic, contact yhinojos@dallasbar.org.

Find your passion. Give with purpose.

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D al l as Bar A ssoci ati on l Headnotes 3

4 He a d n o t e s l D a l l a s B a r A s s o ciation

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President’s Column

Headnotes

Summer: A Time to Gather and Celebrate BY KRISI KASTL

“To serve and support the legal profession in Dallas and to promote good relations among lawyers, the judiciary and the community.” Dallas Bar Association Mission Statement July delivers profound reasons to celebrate. Among the most special is the national observance of July 4th, the day when the Continental Congress formally adopted the Declaration of Independence. Although National division may appear, I love how we come together in celebration of the foundational freedoms that birthed this nation. I relish memorializing with friends and family, but beyond the barbeques, fireworks, and festive gatherings lies the celebration of hope that this nation was founded on. Hope unites the states and fuels progress for generations to come. To align with the fearless pursuit of one’s dream is a national mantra. My parents relayed it to me, and their parents promoted it in them. This is what drew me to the law decades ago, when as a schoolgirl, I recognized that hope could be extinguished with an unjust act. The Dallas Bar Association’s purpose brings hope into the community. It is a mission that is echoed in the Bar’s fifth female and first African-American President the Honorable Rhonda Hunter in 2004.

Judge Rhonda Hunter

Judge Hunter graduated from Skyline High School before heading to UNT, the University of Texas in Austin, and SMU Law School. While her career began in Atlanta working for the then First Assistant City Attorney, she returned to Dallas and worked at Lair, Arnold, Redington and Reed. Under the guidance of Katherine Reed, Judge Hunter found her passion in family law. She became an expert trial lawyer, but her talents did not stop there. Judge Hunter owned a dance studio and has served as Choreographer of Bar None for the past 34 years. Among her many accomplishments, Judge Hunter is Judge Rhonda Hunter the recipient of the Dallas Bar’s Martin Luther King Jr. Justice Award. She is co-founder of the Dallas Bar Association’s Dallas Minority Attorney Program (DMAP), and she led the DBA’s effort to teach the historical significance of the Brown vs. Board of Education to 200,000 school children in seven area school districts in Dallas. Judge Hunter has been a leader in the State Bar of Texas Child Welfare Section, created a child protective service specialty court, and has been active in the American Bar Association, including its juvenile justice efforts. She regularly teaches continuing education courses and has served as a pro bono lawyer for the Dallas Volunteer Attorney program. She is also a friend whose bright light continually inspires hope. Rhonda and I have a lot in common, we both built our businesses from the ground up, we navigated the once maledominated worlds of the law, and know what it is like to persevere. She is the embodiment of the DBA’s mission statement, and I am honored to know her.

Learning with the DBA

We were thrilled to experience the trip of a lifetime with the DBA CLE Abroad Law and Culture in the Netherlands program where we studied Dutch law, politics, culture, and international influence with other members of the Dallas Bar, their family members, and attorneys from across the nation. DBA members included Judge Kimberly Brown, Past President Sally Crawford, Dawnita Grimes, Margaret Keliher, William Klaess, and Thomas Smith. I was overwhelmed with the beauty and delighted in learning about the rich history of the Dutch political systems and constitutional reforms. We experienced private tours of stellar museums that opened our minds to the socio-economic impact of this gorgeous land. We learned about the foundations of international law at The Peace Palace. I was particularly entranced by the philanthropic genius of Andrew Carnegie who generously funded the Peace Palace in The Hague as a “Temple of Peace.” It was intended to house the Permanent Court of Arbitration and house the largest library in the field of international law and peace. Carnegie’s mission echo’s our own at the DBA; to whom much is given, much is expected. In the states we celebrate our freedom on July 4th. Our group witnessed the Dutch celebrating their freedom on May 5. We were on the beautiful Amstel River in Amsterdam experiencing Liberation Day. This public holiday marks the end of the German Occupation of the country during the second

Published by: DALLAS BAR ASSOCIATION

2101 Ross Avenue Dallas, Texas 75201 Phone: (214) 220-7400 Fax: (214) 220-7465 Website: www.dallasbar.org Established 1873 The DBA’s purpose is to serve and support the legal profession in Dallas and to promote good relations among lawyers, the judiciary, and the community. OFFICERS President: Krisi Kastl President-Elect: Cheryl Camin Murray First Vice President: Bill Mateja Second Vice President: Vicki D. Blanton Secretary-Treasurer: Liz Cedillo-Pereira Immediate Past President: Aaron Z. Tobin Directors: Lauren Black, Rob Cañas, Jonathan Childers (Chair), Stephanie G. Culpepper, Rocio Garcia Espinoza, Hon. Dennise Garcia, Ashlei Gradney (President, J.L. Turner Legal Association), Hon. Martin Hoffman, Andrew Jee, Andy Jones (President, Dallas Association of Young Lawyers), Jennifer King, Jonathan Koh (President, Dallas Asian American Bar Association), Elsa Manzanares (President, Dallas Hispanic Bar Association), Hon. Audrey Moorehead, Timothy Newman, Marisa O’Sullivan (President, Dallas Women Lawyers Association), Kelly Rentzel, Sarah Rogers (Vice Chair), Drew Spaniol, and Amy M. Stewart

World War. We connected with history as we stood under the blue imperial crown of Amsterdam’s Westertoren that Anne Frank once saw through a hole in the side of her family’s secret annex. We met a variety of people from different life callings, and each had a distinctly lasting impression that I will cherish. We ate divine food with divine company and my heart glows with the memories we made.

Putting it All Together

In the spirit of Andrew Carnegie and the pursuit of happiness this nation is founded upon, I joined the Dallas Bar Board of Directors and the Judiciary to help members of our community obtain the American dream of home ownership through Habitat for Humanity. I loved seeing the dreams of family recognized in a tangible way. Former DBA President Al Ellis has overseen this project since 1991. In conjunction with Habitat for Humanity, Ellis is dedicated to building a better Dallas. After working with Habitat for Humanity in 1990 Ellis joked that he caught “Habitatius” and continues to find great joy in constructing a home from its inception to the emotional ceremony of handing over the keys to new, first-time homeowners. With his guidance and the tireless efforts of our Home Project Committee leaders over the years, including Mike Bielby, David Fisk, Frank George, and Ted Huffman, the DBA has become the longest running consecutive sponsor for Habitat for Humanity in Dallas. I can attest that each moment of this important enterprise was a valued part of physical and emotional growth. It was lovely to step outside of my comfort zone to help our community thrive. The DBA continues to support the legal community through education. In addition to the many CLEs and in-person workshops, the DBA will provide an excellent opportunity to give back to the community. From July 1-29 we will be accepting backpacks and gifts for the Christmas in July and Backpack Drive to give back to our community. Learn more at www.dallasbar.org. As many of you may know, the DBA hosts a cash bar social at the DAYL Bar the first and second Tuesdays of every month at the Arts District Mansion. Please join me on July 12 from 5:00-6:30 with members of the We Lead Class. Karen D. McCloud will be joining us in spirit as her portrait is hung prominently in the bar area. I wish you and yours a Happy Fourth of July. Krisi Kastl

Advisory Directors: Alison Ashmore (President-Elect, Dallas Women Lawyers Association), Carla Green (President-Elect, Dallas Hispanic Bar Association), Amber Hamilton Gregg (President-Elect, J.L. Turner Legal Association), Nadia Haghighatian (President, Dallas LGBT Bar Association), Nicole Munoz Huschka (President-Elect, Dallas Association of Young Lawyers), and Janet Smith (President-Elect, Dallas Asian American Bar Association) Delegates, American Bar Association: Rhonda Hunter, Mark Sales Directors, State Bar of Texas: Chad Baruch, Rebekah Brooker, Michael K. Hurst, Mary Scott, Robert Tobey HEADNOTES Executive Director/Executive Editor: Alicia Hernandez Communications/Media Director & Headnotes Editor: Jessica D. Smith In the News: Judi Smalling Display Advertising: Annette Planey, Jessica Smith PUBLICATIONS COMMITTEE Co-Chairs: James Deets and Joshua Smeltzer Vice-Chairs: Elisaveta (Leiza) Dolghih and Ted Huffman Members: Logan Adcock, Benjamin Agree, David Brickman, Catherine Bright Haws, Ian Brown, Srinivasan Chakravarthi, Gracen Daniel, Lindsay Drennan, Alexander Farr, Dawn Fowler, Neil Issar, Beth Johnson, Andrew Jones, Alexandra Jones, Krisi Kastl, Jon Kettles, Brian King, Jared Knight, John Koetter, Alan Lightfoot, Margaret Lyle, Derek McKee, Majed Nachawati, D. Mason Parham, Keith Pillers, David Ritter, Carl Roberts, Sarah Rogers, John Shipp, Jared Slade, Sarah Spires, Jay Spring, Sarah-Michelle Stearns, Scott Stolley, Robert Tarleton, Paul Tipton, Anastasia Triantafillis, Pryce Tucker, Kathleen Turton, Peter Vogel, Benton Williams, Jason Winford DBA & DBF STAFF Executive Director: Alicia Hernandez Accounting Assistant: Jessie Smith Legal Education Coordinator: Viridiana Rodriguez Communications/Media Director: Jessica D. Smith Controller: Sherri Evans Events Director: Rhonda Thornton Executive Assistant: Elizabeth Hayden Executive Director, DBF: Elizabeth Philipp LRS Director: Biridiana Avina LRS Interviewer: Giovanna Alvarado LRS Program Assistant: Marcela Mejia Marketing Coordinator: Mary Ellen Johnson Membership Director: Shawna Bush Publications Coordinator: Judi Smalling Receptionist: Araceli Rodriguez Staff Assistant: Yedenia Hinojos Texas High School Mock Trial & Law Related Education Director: Melissa Garcia DALLAS VOLUNTEER ATTORNEY PROGRAM Director: Michelle Alden Managing Attorney: Holly Griffin Mentor Attorneys: Kristen Salas, Katherine Saldana Paralegals: Whitney Breheny, Miriam Caporal, Tina Douglas, Carolyn Johnson, Suzanne Matthews, Andrew Musquiz, Alicia Perkins Community Engagement Coordinator: Marísela Martin Program Assistant: Laci Payton Secretary: Charnese Garrett Copyright Dallas Bar Association 2022. All rights reserved. No reproduction of any portion of this publication is allowed without written permission from publisher. Headnotes serves the membership of the DBA and, as such, editorial submissions from members are welcome. The Executive Editor, Editor, and Publications Committee reserve the right to select editorial content to be published. Please submit article text via e-mail to jsmith@dallasbar.org (Communications Director) at least 45 days in advance of publication. Feature articles should be no longer than 800 words. DISCLAIMER: All legal content appearing in Headnotes is for informational and educational purposes and is not intended as legal advice. Opinions expressed in articles are not necessarily those of the Dallas Bar Association. All advertising shall be placed in Dallas Bar Association Headnotes at the Dallas Bar Association’s sole discretion. Headnotes (ISSN 1057-0144) is published monthly by the Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. Non-member subscription rate is $30 per year. Single copy price is $4.00, including handling. Periodicals postage paid at Dallas, Texas 75260. POSTMASTER: Send address changes to Headnotes, 2101 Ross Ave., Dallas, TX 75201.

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6 H e a d n o t e s l D a l l a s B a r A s s o ciation

Focus

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Employee Benefits/Labor & Employment Law

Resolving Sexual Harassment Matters via Mediation BY GARY FOWLER AND CECILIA MORGAN

The U.S. Congress and the Texas legislature recently enacted new laws to expand remedies to employees alleging sexual harassment. This new legislation will require practitioners to consider new options in resolution of such cases. Mediation offers the opportunity to resolve these sensitive cases in an appropriate environment for early resolution.

Recent Changes in Federal Law

In March 2022, President Biden signed into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, which allows employees alleging sexual harassment or sexual assault to avoid arbitration of their case under an arbitration agreement entered into prior to such time as the claim arose. The statute provides that a court, not an arbitrator, shall determine whether the Act applies to a dispute. While employees and their counsel will elect to go to court in many cases, the Act allows employees to choose arbitration under a pre-dispute arbitration agreement, and some may do so to obtain an earlier resolution in a confidential proceeding.

New Amendments to Texas Law

In 2021, the Texas legislature amended Chapter 21 of the Texas Labor Code, which is the state version of Title VII of the Civil Rights Act of 1964.

These amendments expand the remedies available to employees in sexual harassment cases. The new statute also expands state sexual harassment law to apply to all employers, regardless of the number of employees. (Title VII—and Texas law before September 1, 2021—applied only to employers with 15 or more employees.) The new law also makes individuals acting “directly in the interests of the employer” personally liable; Title VII and previous Texas statutory law applied only to employers, not supervisors or individual owners. The new Texas law mandates that employers who know, or should know, of unlawful conduct take “immediate and appropriate corrective action.” Finally, the new law lengthens the statute of limitations for filing a charge of sexual harassment with the Texas Workforce Commission from 180 to 300 days.

Mediation Merits Greater Consideration

The expansion of remedies under amended sexual harassment laws, along with an ongoing effort to unclog dockets as juries return to courthouses, has led to greater focus on mediation to resolve sexual harassment disputes in a timely manner. Employers and their counsel should give greater consideration to mediation to avoid the uncertainty of the new laws and potential jury verdicts in sexual harassment cases. Small employers, previously not liable under Title VII or Chapter 21, now face liability as well as attorneys’ fees and costs in defending suits. Employees and their counsel will want to start considering mediation if

other attempts at early resolution are unsuccessful.

Bullet points and brief summaries are often more effective.

Non-Monetary Benefits of Mediation

Other Considerations

Non-monetary considerations can be especially important in resolving sexual harassment cases out of court. Mediation allows parties to agree on terms that may not be readily obtained in court. For example, an employee may require confidentiality from the employer and the accused individual. Additional non-monetary considerations may include how to address employee discipline issues, handling postemployment references, mandating a written apology, or requiring that the accused avoid further contact with certain persons.

Preparation for Mediation

Prior to mediation, counsel should consider and discuss with their clients a realistic assessment of the potential damages, costs, and remedies. Counsel may wish to consult a tax expert on issues such as the allocation of a potential settlement payment (e.g., to determine which portions of a settlement may be allocated to wages, compensatory damages, and fees) and the tax deductibility of certain settlement amounts. Counsel can assist their clients and the mediation process by providing the mediator with a brief, well-written mediation statement that professionally describes the facts of the case. In drafting position statements, counsel can control costs by focusing on advocating for settlement rather than writing a lengthy pre-trial brief with unnecessary legal citations and legalese.

An effective mediator will conduct a premediation conference with the parties and their counsel to discuss potential options and issues in advance. Throughout the process, the mediator will facilitate discussions on risk assessment, non-monetary considerations, and the advantages of early resolution. Parties should also consider whether they want a virtual or hybrid mediation. A hybrid mediation is where some participants appear in person and others appear via videoconference. Virtual mediations were a necessity during the pandemic and remain commonplace. Attorneys and mediators, many of whom were initially reluctant to mediate via videoconference before March 2020, are now quite familiar with and comfortable using the technology. Virtual/hybrid mediations are uniquely suited for sexual harassment cases. For example, these mediation formats provide an environment where the victim and accused can participate without having to be in the same physical location. A hybrid mediation may be less tense and easier to facilitate when, for example, the accused appears in person and the victim appears virtually. With the recent changes made to Texas law, accused individuals in sexual harassment cases are now more likely to be sued, and their participation in mediation is essential to obtaining a complete resolution. HN

Gary Fowler, Esq., is a JAMS neutral based in the JAMS Dallas Resolution Center. He can be reached at gfowler@jamsadr. com. Cecilia H. Morgan, Esq., is an attorney and alternative dispute resolution professional with JAMS and may be reached at cmorgan@jamsadr.com.

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Texas values. Global reach.

WWW.DALLASBAR.ORG RISK-TAKING CAN BE FUN...

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D al l as Bar A ssoci ati on l Headnotes 7

IP LITIGATION + COMMERCIAL LITIGATION

8 He a d n o t e s l D a l l a s B a r A s s o ciation

Jul y 2022

2022 DBA 100 CLUB The Dallas Bar Association would like to recognize our DBA 100 Club members. The following firms, government agencies, organizations/schools and corporate legal departments have 100% membership in the DBA—showing their commitment to the advancement of the legal profession and the betterment of the community. Recognition is given to the 2022 DBA 100 Club members in our June, July, and August Headnotes, at our Annual Meeting, and at DallasBar.org. Not a DBA 100 Club member yet? This is the perfect time to encourage your newly hired attorneys to join the DBA and take advantage of our many member benefits—such as 450+ FREE CLE programs, plus 15 hours of on-demand CLE, networking opportunities, community projects and many other member benefits, as well as the opportunity to qualify for the DBA 100 Club. Please note that the DBA 100 Club is open for renewal annually to every firm. We do not automatically renew a firm’s membership due to changes in firm rosters from year to year. To become a 2022 DBA 100 Club member, submit your request via email and include a list of all lawyers in your Dallas area office to Shawna Bush, sbush@dallasbar.org. Your list will be verified with our member records, and if eligible, your firm will be added to the 2022 DBA 100 Club! If we receive your qualifying list by July 8, your firm will be included in the August DBA 100 Club recognition list in Headnotes.

Send in your list TODAY! DBA 100 Club Members as of June 15, 2022 Law Firms with 2 to 5 Attorneys Adair, Morris & Osborn, P.C. Adam L. Seidel, P.C. Addison Law Firm P.C. Adkins Lawyers, PLLC Albert & Stowe, PLLC Aldous \ Walker LLP Alexander Dubose & Jefferson LLP Allmand Law Firm, PLLC Anderson Grossman PLLC Arnold & Freeman Ashcraft Law Firm Atwood Gameros LLP Avant Law Firm Ayres Law Office, P.C. Balekian Hayes, PLLC Barbee & Gehrt, L.L.P. Bisignano Harrison Neuhoff LLP Blackwell & Duncan, PLLC Blankenship, Wiland & O’Connor, P.C. Booth Albanesi Schroeder PLLC Bower PLLC Braziel Dixon, LLP Broden & Mickelsen Brousseau Naftis & Massingill, P.C. Buether Joe & Counselors, LLC Calabrese Budner LLP Campbell & Associates Law Firm, P.C. Capshaw & Associates Chen Dotson, PLLC Chris Lewis & Associates, P.C. Clark Law Firm Crain Brogdon Rogers, LLP Davis Stephenson, PLLC Deans Stepp Law, LLP Duke Seth, PLLC Dyer & Mauro, PLLC Epstein Family Law, P.C. Equal Justice Law Group, PLLC Fisher & Welch, P.C. Flournoy McLain, P.C. Fuller Mediations FurgesonMalouf Law PLLC G.J. Chavez & Associates, P.C. Gauntt Koen Binney & Kidd, LLP Gillespie Sanford LLP Goldfarb PLLC Grau Law Group, PLLC Grinke Stewart Law, PLLC Grogan & Brawner P.C. Guida, Slavich & Flores, P.C. Hahn Law Firm, P.C. Hargrave Family Law Henley & Henley, P.C. Herrera & Herrera Hitchcock Evert LLP Hoge & Gameros, L.L.P. Horton & Archibald, P.C. Hosch & Morris, PLLC

Hunt Huey, PLLC Jackson Spencer Law PLLC Jenkins & Watkins, P.C. Johnston Tobey Baruch, P.C. Kabani & Kabani, PLLC Kastl Law, P.C. Kinser & Bates, L.L.P. Langley LLP Law Office of Andrew & Mark Cohn Law Offices of Lustig and Hyman, P. C. Law Offices of Richard A. Gump, Jr., P.C. Lawrence Law PLLC Lemons & Hallbauer, LLC Lira Bravo Law, PLLC Lyons & Simmons, LLP Madson Castello, PLLC Maduforo & Osimiri, P.L.L.C. Marshall & Kellow, LLP McDowell Hetherington LLP Mincey-Carter, PC Murchison Law Firm, PLLC Musgrove Law Firm, P.C. Norris & Weber, PLLC Orenstein Law Group, PC Otstott & Jamison, P.C. Pace & Pace, L.L.P. Passman & Jones, P.C. Peeples & Kohler, P.C. Prager & Miller, P.C. Pyne & Prather, P.C. Quaid Farish, LLC Raggio & Raggio, P.L.L.C. Ramirez & Associates, P.C. RegitzMauck PLLC Riney Packard PLLC Ritter Spencer PLLC Robinson & Hoskins, L.L.P. Sawicki Law Schubert & Evans, P.C. Scroggins Law Group, PLLC Sessions, Israel & Shartle LLC Sheils Winnubst, PC Sherman & Yaquinto, L.L.P. Silverman Goodwin, LLP Simon | Paschal PLLC Smith, Stern & Friedman, P.C. Spencer, Johnson, & Harvell, PLLC Starr Law Firm, P.C. Stromberg Stock, PLLC The Ashmore Law Firm, P.C. The Bhatti Law Firm, PLLC The DeLoney Law Group, PLLC The Heald Law Firm, PLLC The Law Offices of Frank L. Branson, P.C. The Nacol Law Firm, P.C. The Vermillion Law Firm, LLC Thomas, Cinclair & Beuttenmuller, PC Tremain Artaza PLLC Turley Law Firm Turton & Pinkerton, PLLC Vassallo & Salazar, P.C. Voge Rohe PLLC

Webb Family Law Firm, P.C. Westerburg & Thornton, P.C. Wilson, Peer, Lark & Associates, PLLC Wisener Nunnally Roth & Higgins, L.L.P Wolff Law, PLLC Woolley Wilson, LLP. Yarbrough & Elliott, P.C. Law Firms with 6 or More Attorneys Ackels & Ackels, L.L.P. Bradley Arant Boult Cummings LLP Bragalone Olejko Saad PC Burford & Ryburn, L.L.P. Burke Bogdanowicz PLLC Burns Charest LLP ByrdAdatto Caldwell, Bennett, Thomas, Toraason & Mead, PLLC Calhoun Bhella & Sechrest LLP Canterbury, PC Carrington, Coleman, Sloman & Blumenthal, L.L.P. Carstens & Cahoon, LLP Cavazos Hendricks Poirot, P.C. Cobb Martinez Woodward PLLC Condon Tobin Sladek Thornton Nerenberg Connatser Family Law Cooper & Scully, P.C. Cowles & Thompson, P.C. (Dallas) Cowles & Thompson, P.C. (Plano) Cozen O’Connor Crawford, Wishnew & Lang PLLC David Allen Law Group DeHay & Elliston, L.L.P. Duffee + Eitzen LLP Durham, Pittard & Spalding, LLP Elliott Thomason & Gibson, LLP Estes Thorne & Carr PLLC Farrow-Gillespie Heath Witter, LLP Godwin Bowman PC GoransonBain Ausley PLLC (Dallas) GoransonBain Ausley PLLC (Plano) Griffith Barbee PLLC Griffith Davison, P.C. Hall, Render, Killian, Heath & Lyman, P.C. Harper & Bates LLP Hayward PLLC Hermes Law, P.C. Holmes Firm PC Johnston Clem Gifford PLLC Jones, Allen & Fuquay, L.L.P. Kershaw Anderson, PLLC Kilgore & Kilgore, PLLC Koning Rubarts LLP KoonsFuller Loewinsohn Deary Simon Ray, LLP Lynn Pinker Hurst & Schwegmann Matthews, Shiels, Knott, Eden, Davis & Beanland, LLP Mayer LLP McCathern, Shokouhi, Evans, Grinke, PLLC (Dallas)

McCathern, Shokouhi, Evans, Grinke, PLLC (Frisco) McGuire, Craddock & Strother, P.C. McKool Smith P.C. Meadows, Collier, Reed, Cousins, Crouch & Ungerman, L.L.P. Morgan, Lewis & Bockius LLP Parsons McEntire McCleary PLLC Peckar & Abramson, P.C. Richardson Koudelka, LLP Riddle & Williams, P.C. Russell & Wright, PLLC Sargent Law, P.C. Shackelford, Bowen, McKinley & Norton, LLP Sheppard Mullin Richter & Hampton LLP Sommerman, McCaffity, Quesada & Geisler, L.L.P. Staubus & Randall, L.L.P. Steed Dunnill Reynolds Bailey Stephenson LLP The Hartnett Law Firm Thiebaud Remington Thornton Bailey LLP Thomas, Feldman & Wilshusen, L.L.P. Tollefson Bradley Mitchell & Melendi, LLP Touchstone Bernays Winstead PC Zelle LLP Ziegler Gardner Bell, PLLC Corporate Legal Departments Arcosa, Inc. Borden Dairy Company Brink’s, Incorporated Compatriot Capitol Inc. Dunhill Partners, Inc. Gaedeke Energy HomeVestors of America, Inc. LALA U.S., Inc. North Texas Tollway Authority Rosewood Property Company Rosewood Resources, Inc. Sonida Senior Living, Inc. Government Agencies, Organizations & Law Schools City of Irving City Attorney’s Office CitySquare L.A.W. Center Dallas Baptist University Dallas County Probate Courts DII Industries, LLC Asbestos PI Trust UNT Dallas College of Law Special Recognition Students of the UNT Dallas College of Law

D al l as Bar A ssoci ati on l Headnotes 9

CALABRESEBUDNER.COM

Jul y 2 0 2 2

At Calabrese Budner, we deliver first-class service to our clients, an emphasis on strategic thinking over reactivity, and a level of preparation and professionalism that you do not typically see in family court. -Lee Budner

BETTER STRATEGY. BETTER DIVORCE.

A MODERN APPROACH TO FAMILY MATTERS ®

Strategy-focused and driven, Lee Budner deploys his former big firm commercial litigation experience to excel in high-stakes divorces with millions in controversy. He also possesses the emotional intelligence necessary to effectively handle highly sensitive and contentious custody battles. Lee and his team of litigators handle cases large and small intent on working tenaciously to drive home successful results for their clients. Staying “above the fray”, Lee endeavors to bring integrity and professionalism to the practice of family law.

Lee combines sophistication and big firm

tenacity and a relentless advocate in the courtroom.

214.939.3000| CALABRESEBUDNER.COM

10 H e a d n o t e s l D a l l a s B a r A s s ociation

Focus

Jul y 2022

Employee Benefits/Labor & Employment Law

Counsel for a Post-Pandemic Future: Don’t Neglect the Past BY ANGELLA H. MYERS

Congratulations! Your client survived the worst of the COVID storm after careful navigation, thanks in part to your trusted assistance. But employers had to make many tough decisions over the last two years—so what lies ahead? While business leaders may believe they can now breathe easy if they have thus far avoided any issues relating to COVID-compelled decisions made over the past two years, consider this: (a) federal agencies suffered the same workplace challenges everyone else did, including a reduced workforce, remote work challenges, and an insufficient number of staff to handle the everincreasing workload and (b) termination of employment is not the only trigger of deadlines for claims. There are important considerations Texas citizens (both employers and employees alike) must keep in mind moving forward. First, the Equal Employment Opportunity Commission (EEOC), the federal agency responsible for remedying unlawful discrimination in the workplace, has jurisdiction over some of the most wellknown employment laws, including

Title VII; the Americans with Disabilities Act as Amended (ADAA); and the Age Discrimination in Employment Act (ADEA). An employee generally has 300 days from the date of a discriminatory/ retaliatory act to lodge a complaint with the EEOC. No attorney is needed for citizens to access the EEOC. While an attorney can assist a client in preparing a “perfected charge,” an individual can also personally fill out an “intake form” for the EEOC to assist them in deciding whether or not they have a valid basis for filing a complaint. Some will argue the intake form submission should stop the 300-day clock from running. Indeed, where there are more claims than investigators and more intake forms than persons to handle the interviews, the process is naturally backlogged. Not only are interviews and finalizing the charges taking longer to process, submission of notices to employers are delayed as well. For instance, the EEOC is to provide notice to a business within 10 days of receiving a charge against it, but meeting that deadline has become an impossible task. Employers are receiving notices of charges months after the

NEED TO REFER A CASE? The DBA Lawyer Referral Service Can Help. Log on to www.dallasbar.org/lawyerreferralservice or call (214) 220-7444.

DAMAGES Personal injury Wrongful termination Intellectual property Commercial damages/lost profits Business valuations

When you need a number call our number

214.665.9456

presumed deadlines had safely passed. In sum, just because no charge of discrimination has yet been received does not mean charges are not coming. Also, terminations or layoffs are not the only employment actions that can trigger a claim. Discrimination and retaliation statutes preclude all unlawful employment decisions, including the failure to hire or recall from layoff a person in a protected group when that decision is made on an unlawful basis. Therefore, if your client’s business was calling employees back to work three months ago or making decisions which would be “tangible employment actions,” there is more than sufficient time for claims to be brought with respect to those actions. Second, the U.S. Department of Labor (DOL) has jurisdiction over issues involving the Fair Labor Standards Act (FLSA), Occupational Safety and Health Act (OSHA), and the Family Medical Leave Act (FMLA), all of which have longer statutes of limitations. Under the FLSA, employees who believe they have not been appropriately paid for all hours worked, which may be an issue for employees working from home, can seek to recover unpaid wages and liquidated damages for up to three years prior for employers who acted in bad faith or two years prior for employers who acted in good faith. Perhaps more importantly, unlike the EEOC, no complaint by an employee is required to trigger an investigation. The Wage and Hour Division of the DOL employs federal investigators tasked with conducting investigations to ensure compliance with federal wage and

hour laws. Further, employers who failed to properly comply with the FMLA, interfered with an employee’s right to take FMLA, or unlawfully retaliated against an employee who took FMLA can be subject to claims up to two years after the last action the employee believes violated the act, or three years if the violation was willful. Lodging a complaint for relief to a federal agency prior to filing a lawsuit for FMLA in federal court is allowed, but not required. Finally, the DOL’s OSHA Whistleblower Program was inundated with COVID-related claims. It enforces 23 statutes that prohibit an employer from retaliating against an employee for raising various concerns, including safety and health concerns. While there is a relatively short 30-day window to lodge complaints, the line for processing was a long one. Of note, the Dallas region for example had only seven OSHA investigators in the first quarter of 2020. Let this serve as a warning bell. While the worst of the pandemic that shut down business operations and plagued Texas citizens may have passed, we have not yet dealt with all of the claims it likely created. Preservation of records supporting legitimate, non-discriminatory employment decisions is advisable to enable a thorough response to future claims and investigations. HN Angella Myers is the Managing Partner of Kaufman, Dolowich & Voluck, LLP’s Dallas office and Co-Chair of the Labor & Employment Practice Group. She can be reached at angella. myers@kdvlaw.com.

2022 Dallas County Criminal Practice Seminar Friday, July 8, 8:30 a.m.-4:30 p.m. at the Frank Crowley Jury Room In-Person Only MCLE 6.00, Ethics 1.00 More information at dallasbar.org

Presented by the DBA Criminal Justice Committee

From the Bench TAHIRA KHAN MERRITT

Associate Judge, Dallas County District Courts Why did you decide to become a Judge? As an immigrant to the United States, after 33 years of private practice as a litigator, I felt that public service was the next important step in my legal career. Why do you participate in Bar programs? To learn. It is also important to meet young lawyers to provide mentorship and have fellowship with members of the Bar.

What are you currently reading? The Rubaiyat of Omar Khayyam, and the poems of John Keats and William Blake.

DALLAS • FORT WORTH • HOUSTON • ATLANTA

WWW. TH OMAS R ON EY L L C . C O M

Fun fact about you: I am a bit addicted to TV courtroom dramas and especially British murder mysteries and detective stories. I have a 3-year-old German Shepherd named Sherlock.

Jul y 2 0 2 2

D al l as Bar A ssoci ati on l Headnotes 11

KOONSFULLER DALLAS TEAM Left to Right: Lindsey Vanden Eykel, Kate Pratt, Justin Whiddon, Taylor Joeckel, Fred Adams,* Ike Vanden Eykel,* Liz Porter,* Chris Meuse,* Laura S. Hayes,* and Lauren Shaw

FAMILY LAW IS NOT ONLY WHAT WE DO. IT’S ALL WE DO.

With more than thirty proven attorneys in four offices across North Texas, KoonsFuller is one of the largest family law firms in the Southwest. We offer clients a level of legal representation and range of resources unmatched by any other family law firm. Working together, as a fully integrated team, there is no case too large or complex for us to manage. To learn more about KoonsFuller, visit koonsfuller.com.

As recognized among Tier 1 U.S. News – Best Lawyers® “Best Law Firms” in Dallas/Fort Worth for Family Law by U.S. News & World Report L.P.

KO O N S F U L L E R : D I V O R C E , C H I L D C U S T O D Y, P O S T- D I V O R C E M O D I F I C AT I O N S , C H I L D S U P P O R T, M A R I TA L P R O P E R T Y A G R E E M E N T S , E N F O R C E M E N T S , G R A N D P A R E N T ’ S R I G H T S , P A T E R N I T Y, C O L L A B O R A T I V E L A W , A N D A P P E A L S

12 He a d n o t e s l D a l l a s B a r A s s ociation

Focus

Jul y 2022

Employee Benefits/Labor & Employment Law

How ESG Is Changing the Legal Landscape in L&E Law BY AMANDA E. BROWN AND MARK S. GOLDSTEIN

Environmental, Social and Governance (ESG) programs have taken on a markedly increased importance for businesses. It is paramount for companies to understand not only the hallmarks of a functional ESG program, but also the critical role that labor and employment laws play in identifying and addressing ESG risks and opportunities.

Why is ESG Important?

ESG programs often encompass a variety of factors on which companies are evaluated. Environmental factors include traditional issues such as climate change, but have also evolved to include new issues such as replacing the traditional commute with work-from-home arrangements. Social factors are focused on a company’s workforce and its involvement with society, including with respect to diversity, equity, and inclusion (DEI). Governance factors relate to a company’s external ESG efforts as well as its internal efforts to govern itself and hold itself accountable to its stakeholders. Regulators, investors, and employees are paying closer attention to companies’ ESG efforts. For example, the U.S. Department of Labor is in the process of finalizing a rule that would enable ERISA retirement plans to consider ESG factors as part of investment selection and recently put out a “Request for Information on Possible Agency Actions to Protect Life Savings and Pensions from Threats of Climate-Related Financial

Risk.” Employees, motivated by Black Lives Matter, #MeToo, COVID-19, and other catalysts, are also driving companies to establish ESG policies and practices. Activist investors have played a key role in companies’ development of ESG policies. Certain investment firms have issued proxy voting guidelines that press companies to demonstrate their commitment to mitigating climate risk, increasing diversity among board membership, and addressing other ESG issues. Companies are responding to the multifaceted push for ESG programs. Since the U.S. Securities and Exchange Commission signaled it would be paying increased attention to ESG matters, the number of proxy statements and 10-Ks discussing ESG programs has skyrocketed.

Role of Labor & Employment in ESG

A successful ESG program should address several labor and employment issues. Examples include: • Diversity, equity and inclusion (DEI) • Pay transparency • Whistleblowing • Employee engagement • Worker activism • Health and safety • Human resources policies • Remote work • Mental health and wellbeing Given the numerous labor and employment issues implicated by ESG programs, companies should audit existing policies and practices to determine areas for improvement and to develop solutions to address weaknesses.

MARTIN

MERRITT

Health Law and Healthcare Litigation

“I highly recommend Martin As Co-Counsel in Healthcare Litigation Cases.” --Brad Jackson/ Commercial Litigator, Dallas •

Healthcare Trials/Hearings

•

Analysis of Illegal “kickback” contracts

•

Enforceability of 15.50 Non-Competes

•

Insurance “Clawbacks”

•

FBI, OIG, CMS Investigations

•

Medical License Revocations

Martin Merritt Chair, DBA Health Law (2021) Ex. Dir. Texas Health Lawyers Association Martin@MartinMerritt.com Dir. (214) 952.1279 Martin Merritt is your co-counsel in healthcare litigation cases. If one side has an experienced health lawyer in their firm and you do not, you can level the playing field by associating Martin Merritt as co-counsel. You keep the client. Hourly and flat monthly rates available. Martin can try the case, prepare and argue hearings, or simply serve as health law analyst. You stay in control of the case and keep the client. Experienced. Over 30 years, in Texas and nationally, Martin Merritt litigates cases against the FBI, DEA, OIG, CMS, AUSA, TMB, Tex. OAG, Tex. Med. Bd, Pharm. Bd., TXDSHS, Civil False Claims Act Subpoenas and lawsuits, civil investigative demands, arbitration, criminal and other administrative actions. He has a proven track record applying this knowledge to win victories for business litigators. (D Mag. Best 2018, 2020, 2022)

For example, with respect to DEI, companies should develop policies and practices to increase the hiring and retention of diverse employees at all levels. Companies are increasingly linking executive compensation to achievement of ESG goals, including measurable improvement of DEI. Labor and employment attorneys are often involved in these DEI initiatives. With respect to whistleblowing, companies should ensure they have strong policies that encourage the reporting of misconduct. Companies should also ensure effective training of management-level employees on how to recognize whistleblowing conduct and how to respond appropriately. As to worker activism issues, company leaders need to know how to respond to union organizing campaigns. Many companies may ultimately need to navigate union elections and related contract negotiations. The past year has already seen an increase in the number of organizing campaigns, and the Biden administration has indicated strong support for such efforts. With respect to health and safety, companies should pay close attention to labor and employment issues when navigating the myriad of federal, state, and local health and safety laws. If there were to be any major health events such as a virus outbreak or other accident, companies need be prepared to respond. Labor and employment issues may also arise from wage and hour laws that are triggered by health and safety policies. For example, employees must still be paid

when they are testing or screening for health reasons at work. As companies return to the office, they will need to be prepared to navigate employee accommodation requests that may implicate civil rights laws. Labor and employment issues are also intertwined with remote work policies that balance employees’ desire for flexibility with the need to ensure productivity and employee engagement. Labor and employment issues are also presented by workplace policies related to mental health and wellbeing. Such policies should be both proactive (creating a work environment that is supportive of employee mental health) and reactive (ensuring companies respond appropriately to employees that notify their employer of mental health concerns). During a time when employee retention is a focus for many companies, mental health and wellbeing programs will be vital to companies maintaining successful ESG programs.

Conclusion

ESG programs are intrinsically intertwined with labor and employment issues. As ESG programs take on increased importance and prevalence, companies will be well-served to ensure labor and employment considerations continue to be emphasized. HN

Amanda E. Brown is Counsel at Reed Smith and Mark S. Goldstein is a Partner at the firm. They can be reached at aebrown@ reedsmith.com and mgoldstein@reedsmith.com, respectively.

July Friday Clinics July 15, Noon, In Person Only (Arts District Mansion)

"Boldly Go: Why You Should Consent to Trial Before a Magistrate in Your Next Federal Case," Hon. Barbara M.G. Lynn, Steven Moses, Hon. Rebecca Rutherford, Ross Williams, and moderator Saba Syed Co-sponsored by the Trial Skills Section. MCLE 1.00, Ethics 0.25

July 22, Noon, Hybrid

(Arts District Mansion & Zoom):

"How to Work from Home Over the Internet in a Safe and Secure Fashion," John DeCraen and Larry Kanter. MCLE 1.00

Log on to www.dallasbar.org for details.

Jul y 2 0 2 2

D al l as Bar A ssoci ati on l Headnotes 13

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14 H e a d n o t e s l D a l l a s B a r A s s o ciation

Focus

Jul y 2022

Employee Benefits/Labor & Employment Law

New Variety of Sexual Harassment Cases at Work BY LEIZA DOLGHIH

The ease with which employees can take, store, and transfer data, including intimate photos or videos of coworkers have created a new variety of headache for employers in the recent decade. Prior to technology pervading every aspect of work life, sexual harassment claims were limited to physical or verbal contact between the harassing employee and the one being harassed. Now, that is not necessarily the case. One employee may sexually harass another employee by simply videotaping them at work in compromising environment, e.g., while going to the bathroom or they may stealthily lift intimate photos of videos of another employee from their phone or computer—all without any contact with the employee and without their knowledge. In 2022, the Fifth Circuit Court of

Appeals allowed a Houston firefighter to proceed with her sexual harassment claim against the City of Houston based on two senior firefighters repeated (over nine years) viewing of her private and intimate video. In Abbt v. City of Houston, et al., a female firefighter found out that her supervisor was in possession of a video she made with her husband and that she suspected somebody lifted off of her laptop that she had brought to work at some point. After learning about the viewing of the video, the firefighter was distraught, called in sick for weeks, was diagnosed with post-traumatic stress disorder (PTSD), went out on an extended family and medical act leave, and eventually resigned. The city conducted an investigation and demoted those involved, but did not provide the firefighter any assurances that she would not have to work with the two

Client Development—Speak at a DBA Program Interested in sharing your legal knowledge and expertise with your colleagues? The CLE Committee is looking for speakers and hot topics for the Friday Clinic programs it holds throughout the year. Please submit a short bio, title, and 2-3 sentence description of your presentation to yhinojos@dallasbar.org. Submissions will be discussed at monthly CLE Committee meetings.

individuals whom she knew to have watched the video. She subsequently filed an EEOC charge followed up by a lawsuit. The federal district court granted summary judgment against her, which was reversed in part by the Fifth Circuit. The Fifth Circuit found that the firefighter had raised a genuine issue of fact as to each element of her sexual harassment claim. The court concluded that coworkers’ repeated viewing of a nude video of another coworker without her consent was sufficiently severe to objectively create a hostile work environment. It was also subjectively severe as it caused the firefighter to develop PTSD and leave her work. Most importantly, the Fifth Circuit rejected the district court’s reasoning that it was the fighter’s knowledge of what had happened that led her to quit, not the actual conduct of her coworkers viewing the video. The court of appeals declined to hold that as a matter of law a person must contemporaneously experience harassment for it to be actionable. Instead, how the time lapse between the harassing activity and the discovery of such an activity by an employee impacted him or her, is fact issue for the jury. A defendant in another case involving a surreptitious photographing of an employee’s intimate body parts by a supervisor at work, the defendant raised a similar defense—that an employee was not subjected to a hostile work environment because she did not know she was being photographed. In Rivas v. Estech Sys., Texarkana Court of Appeals, like the Fifth Circuit, rejected this defense. In Rivas, an

employee discovered by accident that her supervisor had installed a camera at the bottom of her desk to photograph her under her skirt. The supervisor later confessed that he had been recording her for a while. The Plaintiff had a similar reaction to the firefighter in Abbt in that she was distraught by what she learned so much that she was unable to return to work. The Rivas court ruled that she had raised a genuine issue of material fact that she had been subjected to the hostile work environment because she learned about the camera while she was still at work. In contrast, in several other cases collected by the Rivas court of appeals, employees’ claims were dismissed because they did not learn about the harassing activity, such as a hidden camera in a changing room, until after they had been terminated. Thus, they could not show that they had been subjected to a hostile work environment during their employment. In another case, a plaintiff learned about a hidden camera about a month after it had been removed, and, thus, was unable to establish that she had subjectively felt harassed during the period when the alleged harassing activity was occurring. In sum, in many of these cases where coworkers are using technology to perpetrate harassment, the timing of when the plaintiff learned of the harassment becomes very important as it helps establish (or disprove) whether plaintiff subjectively perceived a hostile work environment. Leiza Dolghih is the founder of Dolghih Law Group PLLC and can be contacted at leiza@dlg-legal.com.

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BACKPACK DRIVE The DBA Community Involvement Committee is partnering with Community Partners of Dallas to provide backpacks filled with school supplies to abused and neglected children. Bring your donations to the Arts District Mansion July 1 - 29 or scan the QR code make a monetary donation. Questions? Contact George Shake at george@d-elaw.com

TAKE A TOUR! Email us at Brendag@wturley.com or call 214-382-4118

Scan to donate

Jul y 2 0 2 2

D al l as Bar A ssoci ati on l Headnotes 15

16 H e a d n o t e s l D a l l a s B a r A s s o ciation

Focus

Jul y 2022

Employee Benefits/Labor & Employment Law

Management Incentives in LLCs – Equity and Phantom Interests BY LAUREN WHITE AND CHRIS KANG

Limited liability companies routinely seek to incentivize their employees and service providers by granting them equity or equity-like interests in the business. Typically, for LLCs and other entities taxed as partnerships for U.S. federal income tax purposes, these grants take the form of capital interests, profits interests, and phantom interests.

Types of Grants

Capital Interests. A “capital interest” is an ownership interest in an LLC or other entity taxed as a partnership (an “equity interest”) that would entitle a recipient to receive distributions if the entity were liquidated on the grant date. For example, if an executive is granted a 10 percent capital interest in an LLC, which has an overall valuation of $10 million and pro-rata economics, the executive receives a capital interest worth $1 million. Profits Interests. A “profits interest” is

also an equity interest, but instead of having a value upon issuance, it is issued with an initial value of $0 and the right to share in future appreciation of the LLC’s business. To illustrate, if an LLC worth $10 million grants a 10 percent profits interest to an executive, the executive is only entitled to 10 percent of the appreciation in excess of $10 million— if the LLC’s value increases to $11 million, the executive’s profits interest would then be worth $100,000 (i.e., 10 percent of the $1 million post-grant appreciation). Phantom Interests. Unlike capital and profits interests, “phantom interests” are not equity interests, but are bonus awards payable on terms mirroring the performance of the LLC’s equity. Grants are highly customizable, but typically a recipient is eligible to receive a cash payment at a future date in an amount equal to an equivalent equity interest (or the appreciation in value of such equity interest).

Grant Considerations

When it comes to selecting and documenting grants, companies generally con-

Spanish for Lawyers 2022 Fall Session: August 9 - October 11 Held online via Google Meet/Video conference. Learn how to read, write, and speak Spanish at an adult continuing education level, with emphasis on legal terminology at the intermediate and advanced levels.

sider the following: Vesting. All three types of grants can be subject to time and/or performance-based vesting--meaning that if a recipient’s relationship with the company is terminated or if certain financial or other metrics are not met, the unvested grant can be forfeited for no consideration. Tax Consequences. The tax consequences of these incentives vary depending on the type and terms of the underlying grant. Equity interests are taxable upon issuance at their then value if there is no substantial risk of forfeiture or if the recipient makes an election under Internal Revenue Code Section 83(b) to take into income the value of the interest as of the grant date (which for a capital interest would be the fair market value at issuance and for a profits interest would be $0, a significant benefit of using profits interests). However, if an equity interest is subject to vesting (or otherwise subject to a substantial risk of forfeiture) and a Section 83(b) election is not timely filed, tax will be due as the equity interest vests based on the then fair market value. Perhaps the biggest reason for utilizing equity grants is that recipients may qualify for capital gains treatment in the event of a sale or other exit transaction involving the company. Phantom interests are subject to ordinary income and employment taxes when paid and are ineligible for the Section 83(b) election. Further, phantom interests must be structured in compliance with (or to be exempt from) Internal Revenue Code Section 409A or significant additional taxes and penalties can apply. Partner Treatment. Because recipients of equity interests become members of an LLC at grant, they are considered “part-

ners” for federal income tax purposes and receive an annual Schedule K-1 reflecting their share of any allocated profits or losses of the business. These recipients may owe tax to the extent any profits are allocated to them. Further, they should not be treated as W-2 employees post-grant, making them responsible for self-employment taxes on their compensation. An employee-turnedpartner’s eligibility to participate in certain benefit plans can change as well. Because of the potential tax exposure (which is typically minimized by the company making tax distributions) and the potential for a more complicated tax return, grants of equity interests are typically reserved for senior executives. Employees who receive phantom interests do not become owners and remain W-2 employees. Documentation. Grants are typically documented in a grant or award agreement, sometimes with a corresponding plan document. Importantly, equity interest recipients must also become parties to the company’s LLC agreement, subjecting themselves to the agreement’s terms (which often include buyback rights for vested equity) and entitling the recipients to certain benefits (including information rights). Companies can tailor incentive grants based on the company’s goals and the recipients’ needs. The grants do not have to be the same for each recipient. The flexibility and varied characteristics of incentive grants makes them an important resource for many companies. HN Lauren White and Chris Kang are Partners at Haynes and Boone, LLP. They can be reached at lauren.white@haynesboone.com and chris.kang@haynesboone.com, respectively.

Benefiting Vogel Alcove 2022

Join the DBA’s donation drive benefiting Vogel Alcove, July 11 - July 29.

DEI CLE Challenge

Donate online by using Vogel Alcove’s Amazon wish list at www.tinyurl.com/2p8dutbv and ship items to Vogel Alcove, 1738 Gano St, Dallas, TX 75215.

Dallas Bar Association

The DBA encourages its members to aspire to complete 3 hours of CLE training in the areas of diversity, inclusion, and equity each calendar year. The DBA will recognize members who complete and self-report their 3 hours of DEI CLE by December 31, 2022. Programs that qualify will be identified on the DBA’s online calendar.

Questions? Contact Coordinator- Tommy Tsang Tommy.Tsang@mckesson.com

Vogel Alcove is a non-profit organization on a mission to help young children overcome the lasting and traumatic effects of homelessness. Sponsored by the DBA Community Involvement Committee

Join the Challenge

to be recognized in the February 2023 Headnotes, in DBA Online, and receive your electronic DEI CLE Challenge badge.

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When you cannot help a prospective client, remember...

THE DBA LAWYER REFERRAL SERVICE! (214) 220-7444 | www.dallasbar.org/lawyerreferralservice • Qualified panel of lawyers in all areas of practice and most areas of town. • $20 fee to the client for a 30-minute consultation with a lawyer. • All lawyers carry professional malpractice insurance.

Jul y 2 0 2 2

D al l as Bar A ssoci ati on l Headnotes 17

18 H e a d n o t e s l D a l l a s B a r A s s o ciation

Focus

Jul y 2022

Employee Benefits/Labor & Employment Law

New Law Expands Rights and Liability for Sexual Harassment BY STEPHEN FOX AND JONATHAN CLARK

Total planetary alignment. Halley’s Comet. A full solar eclipse. Texas enacting heightened employee protections that go beyond Federal Law. What are “things that rarely happen in your lifetime?” In Texas, the general rule is that workplace legal protections for employees overlap with—and extend no further than—their federal counterparts. But newly-enacted state legislation concerning workplace sexual harassment has bucked that trend. On September 1, 2021, new laws took effect expanding employee rights as well as employer and individual liability for claims of sexual harassment in the workplace. Specifically, S.B. 45 (codified as Section 21.141 of the Texas Labor Code) made three key revisions to preexisting state law concerning sexual harassment. First, the new law expanded the meaning of an “employer” to whom workplace anti-harassment laws apply. Under the old statute, liability for workplace sexual harassment applied only to employers having 15 or more employees for at least 20 weeks in the preceding calendar year. But the updated statute now covers employers having only one or more employees. To that end, virtually all Texas employers are within the statute’s reach. To be clear, these modifications apply only to sexual harassment claims— not other forms of statutorily-prohibited discrimination. Second, S.B. 45 expands liability to individuals who act “directly in the interest of an employer in relation to an employee.” The upshot of this revision is

that individual persons acting as owners, supervisors, managers, agents, contractors, vendors, or (potentially) non-supervisory employees could find themselves personally liable under the new statute. Consequently, for essentially the first time in Texas’s history, individuals may find themselves named as defendants in workplace sexual harassment litigation. Third, the revised statute also increases the duty of employers to investigate and remedy claims of sexual harassment. Previously—and analogous to federal law—Texas employers could bring an affirmative defense to liability (known as the Faragher-Ellerth defense, after two 1998 United States Supreme Court decisions, Faragher v. City of Boca Raton, 524 U.S. 775, and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742) if they took “prompt remedial action” in response to a sexual harassment complaint. But the statute’s revised language appears to heighten that standard. Specifically, S.B. 45 states, in part, that an employer acts unlawfully: [I]f sexual harassment of an employee occurs and the employer or the employer’s agents or supervisor (1) know or should have known that the conduct constituting sexual harassment was occurring; and (2) fail to take immediate and appropriate corrective action. While the new language has not been tested, plaintiffs’ lawyers will no doubt argue that the phrase “immediate and appropriate” creates extra temporal urgency on a defendant employer to act, in order to successfully invoke the defense. Finally, but importantly, related legislation also expanded the limitations period in which employees may file a

claim. Specifically, H.B. 21 lengthened the statutory period for employees to file a sexual harassment claim to 300 days from the date of the alleged harassment. Previously, employees were required to file a harassment/discrimination charge with the Texas Workforce Commission within 180 days from the event(s). Effectively, this change brings the filing period for state claims in line with its federal counterpart of 300 days. Again, this expanded limitations period applies only to charges of sexual harassment. All of the above-referenced changes apply only to claims based on conduct that occurs on or after September 1, 2021. Many commentators predicted that S.B. 45 and H.B. 21 would “lead to an avalanche of litigation” against employers, including small businesses. While it is difficult to know precisely the number of lawsuits that have been filed asserting violations of the new law, the number certainly does not appear to have overwhelmed the state court system.

Three Key Takeaways for Employers

1. Know your exposure. As of September 1, 2021, essentially every busi-

ness or employer in Texas falls within the ambit of the new harassment statute. If you have one employee, you are a potential defendant. 2. Act accordingly. Related to point “1”, employers that previously lacked sufficient size to prepare and implement harassment policies, procedures, and training must act quickly to implement necessary procedures. Outside counsel can play a vital role in this process. Crafting effective employee handbooks, holding trainings, implementing policies, and conducting thorough investigations may allow employers to avoid claims or otherwise assert defenses to liability. 3. Alert supervisory employees. Supervisors, managers, vendors, and employees (whether or not in positions of authority) could face individual liability under the revised statute. To that end, and accompanying point “2”, employers should ensure their personnel understand they may be found personally liable for engaging in workplace sexual harassment—or failing to report the same. HN Stephen Fox is a Partner and Jonathan Clark is an Associate at SheppardMullin. They can be reached at sfox@sheppardmullin. com and jclark@sheppardmullin.com, respectively.

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Jul y 2 0 2 2

D al l as Bar A ssoci ati on l Headnotes 19

Johnston Tobey Baruch congratulates

Chad Baruch 85th Chair of

the State Bar of Texas Board of Directors LEGAL MALPRACTICE • LEGAL AND JUDICIAL ETHICS COMMERCIAL LITIGATION • CIVIL & FAMILY APPEALS

Johnston Tobey Baruch PC | chad@jtlaw.com | 214.741.6260 12377 Merit Drive, Suite 880 | Dallas, Texas 75251

20 H e a d n o t e s l D a l l a s B a r A s s o ciation

Jul y 2022

DOL Warns Against Investing 401k Assets in Crypto BY JIM GRIFFIN

The U.S. Department of Labor (DOL) issued a warning to ERISA fiduciaries about the risks of investing 401k assets in various kinds of cryptocurrency. The DOL’s statement was made in Compliance Assistance Release No. 2022-01 issued on March 10, 2022. The Labor Department’s concern applies to a wide range of digital assets, including tokens, coins, crypto assets, and any of the derivatives of such assets. The DOL urged fiduciaries to exercise extreme care before they consider adding a cryptocurrency option to a 401k plan’s investment menu. DOL also informed fiduciaries that their responsibility extends to allowing crypto investments through selfdirected brokerage windows that are available in many plans. DOL justified its concern due to the “early stage in the history of cryptocurrencies” and the lack of adequate con-

sumer protection and disclosure regulation. DOL’s statement preceded the announcement by Fidelity Investments in the last week of April that it would allow plans on its platform to make bitcoin a permissible investment choice. Employees in 401k plans served by Fidelity may be allowed to invest up to 20 percent of their savings in bitcoin starting later this year. Plans that are Fidelity clients would not be required to add a bitcoin fund and could lower the 20 percent cap. Fidelity’s decision does not mean that Fidelity has determined that bitcoin or any other cryptocurrency is a prudent investment option for ERISA plans or for ERISA participants. Fidelity’s decision should be viewed as a decision made by Fidelity for its own business interests. Employers and their internal committees have the fiduciary responsibility imposed by ERISA to pass or play on adding a bitcoin fund.

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SAVE DATE

DOL wants these employers and committees to understand and appreciate their legal responsibility. Fidelity is the largest 401k provider in the U.S. serving 401k and other retirement plans for 23,000 employers, with 20 million participants and $2.7 trillion in assets. A DOL official told the Wall Street Journal that “we have grave concerns with what Fidelity has done,” as quoted in the April 28, 2022 edition. DOL reminded fiduciaries that the Supreme Court held earlier this year in Northwestern that fiduciaries have a duty to independently determine whether every option on a plan’s investment menu is prudent. This duty is the highest known to the law. Fiduciaries who violate this duty may face personal liability. Participants are responsible for their own investment decisions when they choose from a menu of prudent investment choices. According to DOL, cryptocurrencies are too new and are subject to significant risks and challenges, including fraud, theft and loss. Fiduciaries who want to add a crypto option to their 401k plan should carefully consider the following factors identified by the DOL: • Speculative and volatile nature of crypto investments. The SEC has described cryptocurrency as a highly speculative investment • Lack of investment information and inability of participants to make informed decisions compared to traditional investments • Custodial and recordkeeping concerns, including inability to hold cryptocurrency in trust as required by ERISA • Lack of reliable and accurate valuations and methods

• Evolving and undeveloped regulatory environment Fiduciaries who do not comply with DOL’s warning should be prepared to explain the basis for their decision. Investment selection decisions should address the concerns raised by the Labor Department. Fiduciaries may find support one way or the other in the Plan’s investment policy statement. Fiduciaries should consider the cost and expected return of the proposed crypto fund. Other investment alternatives should be considered. Records should be kept of the entire decisionmaking process. Disclosures to participants should be updated. Once a selection has been made, the crypto fund should be monitored periodically to determine whether the fund is meeting its objectives and how the fund is performing relative to its benchmarks. The DOL’s announcement is a shot across the bow of the rapidly changing crypto industry. For now, DOL wants the emerging crypto funds to steer clear of individual investors in 401k plan funds. Fiduciaries should think twice about the cost and distraction of a Labor Department investigation and even potential litigation. Courts may take the DOL’s statement as a declaration that crypto investments per se do not meet the rigorous prudence standard of ERISA. Fiduciaries could become guarantors of crypto’s elusive and much-hyped investment performance. Time will tell whether investments in crypto have much in common with the Dutch tulip bulb market bubble of the early 1600s. Go ahead—Google it now. HN Jim Griffin is a Partner at Scheef & Stone LLP. He can be reached at jim.griffin@solidcounsel.com.

DVAP’s Finest JAKE TORRES

Jake Torres is an associate at Vinson & Elkins LLP. 1. What types of cases have you accepted? Early on I mostly worked on asylum and guardianship cases. Recently, I’ve spent a lot of time defending tenants in eviction hearings. 2. Which clinics have you assisted with? I have volunteered at DVAP’s Eviction Clinic as well as the West Dallas Clinic. 3. Describe your most compelling pro bono case. At an Eviction Clinic a few months ago, an elderly woman asked me to represent her in her eviction hearing. She had been approved for rental assistance, but the program moved too slowly and her landlord wanted to evict her. We were able to speed along her rental assistance and negotiate with her landlord for her to stay in her apartment. 4. Why do you do pro bono? Dallas is a beautiful city, but there are so many people in need of help. When someone has a lawyer standing next to them, they are in a much better position, no matter what the facts of their case are. 5. What is the most unexpected benefit you have received from doing pro bono? I am a corporate lawyer, but pro bono cases have allowed me to work with some of the brilliant litigators at my firm like: Angie Garcia, Ilana Gomez, Eugene Temchenko, Lindsey Pryor, and several others. They are some of the best young litigators in Dallas and I never would have appreciated their legal skills if I hadn’t been able to work with them on pro bono cases.

Pro Bono: It’s Like Billable Hours for Your Soul.

Registration opens soon • DallasBar.org

To volunteer or make a donation, call 214/748-1234, x2243.

Jul y 2 0 2 2

D al l as Bar A ssoci ati on l Headnotes 21

Are you a great attorney who has been on your own for a while and you just don’t feel like your take home is worth the effort that you’ve been putting in? PALMER LAW GROUP _________________________________________________________________________

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22 H e a d n o t e s l D a l l a s B a r A s s o ciation

Jul y 2022

In The News KUDOS

Michael K. Hurst, of Lynn Pinker Hurst & Schwegmann LLP, received board certification from the National Board of Trial Advocacy. Hon. Nathan L. Hecht, Chief Justice of the Texas Supreme Court in Austin, received the Samuel Pessarra Outstanding Jurist Award from the Texas Bar Foundation. Julia A. Simon, of Mary Kay Inc., received the SMU Dedman Ethics & Law Award for 2022. Richard G. Stewart Jr. received the first ever American Inns of Court 2022 James E. Coleman Jr. Professionalism Award for the Fifth Circuit. William Zac Duffy, Jaclyn Dyer, Winston

Huff, Elvia Munoz, Courtney Sauer Collins, and Julian Vasek, of Munsch Hardt Kopf & Harr, P.C., have been promoted to Shareholders.

ON THE MOVE

Nancy Allred Collins joined Crowe & Dunlevy as a Director.

Lane Morgan joined Baker & McKenzie, LLP as Partner.

Terry Bentley Hill, of The Law Office of Terry Bentley Hill, has been elected Chair of the Texas Lawyers Assistance Program with the State Bar of Texas.

Samuel Joyner joined Frost Brown Todd LLC as a Member.

Megan Hoyt joined HomeVestors of America, Inc. as Senior Corporate Counsel.

Anthony Lowenberg, of HomeVestors of America, Inc. has been promoted to General Counsel. Mary O’Connor, Jennifer N. Lewis, and Christian Kelso, of Farrow-Gillespie Heath Witter LLP, have been promoted to Equity Partners Jerry R. Selinger, of Patterson + Sheridan in Dallas, received the President’s Outstanding Service Award by the American Intellectual Property Law Association.

37th Annual Review of Energy Law August 4-5, 2022, Arts District Mansion Register at www.reviewofoilandgaslaw.com Sponsored by the DBA Energy Law Section

Hostetler as a Partner.

Mavish Bana and Dean Smith joined Spencer Fane LLP as Associates. Kelly A. Carter launched Carter Criminal Defense law firm located at 3333 Lee Pkwy Ste 600, Dallas, TX 75219. Kevin S. Woltjen joined Bradley Arant Boult Cummings LLP as Partner. Jared Hoggan joined Munck Wilson Mandala, LLP as Partner. LeElle Bruerea Slifer joined Winston & Strawn LLP as Partner. Stephanie Wood joined RuyakCherian LLP as Of Counsel. Marina Amendola joined The Toro Company as In House Counsel. Damon Rowe joined Meadows, Collier, Reed, Cousins, Crouch & Ungerman LLP as Partner. Alan Vickey joined Bowman and Brooke LLP as Partner. Sunyi Snow joined McDermott Will & Emery LLP as Partner. Elise Schuller Barajas joined Baker-

Marc Fuller joined Jackson Walker L.L.P. as Partner. Matthew Glenn and Angella Sloan joined Farrow-Gillespie Heath Witter LLP as Of Counsel. Sarah Rogers has joined Thompson Coe as Partner. Amy E. Lott joined Barnes & Thornburg LLP as Partner. George Bienfang joined Scroggins Law Group PLLC Stefan Smith joined BakerHostetler LLP as Partner. Snell & Wilmer moved to Harwood No. 6 – Saint Ann Court, 2501 N. Harwood Street, Suite 1850, Dallas, TX 75201-1607. Stafford Law Firm, P.C. is now Stafford Moore, PLLC, located at 325 N. St. Paul Street, Suite 2210, Dallas, TX 75201. (214) 764-1529. News items regarding current members of the Dallas Bar Association are included in Headnotes as space permits. Please send your announcements to Judi Smalling at jsmalling@dallasbar.org

LegalLine Volunteers Needed LegalLine Volunteers Needed LegalLine is seeking volunteer attorneys for our LegalLine LegalLine seeking volunteer E-Clinicsison Wednesdays. attorneys for our LegalLine E-Clinics Wednesdays. Calls may beon made between 4-8 p.m. from the comfort of their Calls mayown be made between 4-8 homes. p.m. from the comfort of their own attorneys homes. will be Participating emailed contact information for Participating attorneys will be those who have submitted a emailedrequest contactfor information for a call. those who have submitted a request for a call.

Community

Projects

Dallas Bar Association Community Involvement Committee Add these 2022 Projects to your calendar!

JUL

SEPT

OCT

NOV to

DEC

Christmas in July July 11 to 29 - Benefiting Vogel Alcove. Donate online at www.tinyurl.com/2p8dutbv & ship items to Vogel Alcove, 1738 Gano St, Dallas, TX 75215.

Backpack Drive

Partnering with Community Partners of Dallas to collect back-to-school items & backpacks. Drop off items at the Arts District Mansion July 1 - 29. Make a monetary donation at tinyurl.com/2022DBABackpackDrive

www.DallasBar.org/LegalLine www.DallasBar.org/LegalLine

Day of Service September 24 - Service projects will be available at New Friends New Life, NTX Food Bank, Bonton Farms & More!

Blood Drive October 26 at the Arts District Mansion & other sites in Dallas. Donate blood and save lives with Carter BloodCare.

Get noticed!

Update your resume on the DBA Career Center today!

Sand Branch Food Drive November 28 to December 16 - Donate canned & non-perishable food items to benefit the Dallas County Sand Branch Community.

Santa Brings a Suit December 2 - Donate gently used business attire. Benefiting the Dallas Life Foundation.

For up-to-date information, check the online calendar at: DallasBar.org

Thousands of top employers could be looking at your resume right now. The first way to stand out from the other candidates on the DBA Career Center is to update your resume to show the employers why you’re the one they’re looking for.

Here are some simple tips on how to diversify yourself from the others: 1. Add your objective in the title 2. Add your LinkedIn, Twitter and Facebook links so employers can see your personality 3. Add more accomplishments to show your strengths

Questions? Contact Jessie Smith jessies@dallasbar.org

www.dallasbar.org/careercenter

Jul y 2 0 2 2

Focus

D al l as Bar A ssoci ati on l Headnotes 23

Employee Benefits/Labor & Employment Law

Common Employment Law Mistakes Law Firms Make BY TERAH MOXLEY

Lawyers frequently lament the things they never learned in law school. Few law schools teach future lawyers much—if anything—about running a law firm, including how to be employers. Many law firms lack internal human resources, leaving the lawyers leading those firms unaware of employment law best practices and lacking a structure to ensure that such practices are adopted and consistently implemented. This creates a breeding ground for making mistakes related to employment law, especially in areas related to non-attorney employees and employment policies.

Staff. Staff. Staff.

By far, the most common employment law mistakes law firms make involve nonattorney employees and the Fair Labor Standards Act, including properly classifying such employees under the FLSA and properly tracking compensable time. Among other things, the FLSA dictates which employees must be paid overtime. A common mistake regarding misclassification comes from law firms thinking that paying staff on a salary basis (versus hourly) automatically means overtime is not an issue. (This mistake is not unique to law firms.) However, when it comes to eligibility for overtime, the FLSA does not divide employees based on how they are paid (salary versus hourly). Rather, the FLSA classifies employees based primarily on their job duties and provides certain exemptions from its overtime requirements. Thus, rather than salary versus hourly, the right question under the FLSA is whether the employee is exempt from receiving overtime pay or non-exempt. (Though, the FLSA’s white collar exemptions do come with

minimum salary requirements.) While paralegals perform a variety of different duties, most paralegals are properly classified as non-exempt and, thus, are subject to the FLSA’s overtime requirements and eligible for overtime in workweeks in which they work more than 40 hours. If a law firm misclassifies a paralegal or other non-attorney employee as exempt based solely on the fact that the employee is paid on a salary basis, the law firm risks exposure for an unpaid overtime claim. Since most non-attorney staff members are properly classified as non-exempt, another common mistake law firms make involves properly tracking compensable time, an issue that has been exacerbated by the rise in remote work since the start of the pandemic. Every work-related email or text message sent to or received by a nonexempt employee after “regular” working hours should be tracked as compensable time. If not, a law firm could face two issues: (1) failing to pay an employee for all hours worked; and (2) failing to track whether a non-exempt employee exceeds more than 40 hours worked in a workweek, triggering overtime.

No Policies

A lot of law firms lack anything resembling an employee handbook. While most law firms do not need extensive employee manuals, adopting certain employee policies can be beneficial. Topping this list is a non-harassment policy that outlines prohibited behavior and informs employees how they can report workplace harassment. A policy like this gives an employer an affirmative defense to potential harassment claims. A new law enacted in 2021 makes the provisions of the Texas

Labor Code prohibiting harassment applicable to employers employing one or more employees (when a 15-employee threshold was the prior standard) and extends liability to managers and supervisors individually. Thus, even the smallest law firms should adopt non-harassment policies so they can take advantage of this affirmative defense. Other policies law firms should consider adopting include a prohibition against nonexempt employees working unapproved overtime and a clear statement on when (or whether) accrued but unused vacation time will be paid out when an employee separates from employment with a law firm.

Bad Policies

While having no employee policies is not ideal, having bad policies is worse. As an example, many law firms have a policy or practice—written or not—prohibiting employees from sharing details regarding their compensation with their colleagues. A policy or practice like this violates the National Labor Relations Act. It is a common misconception that the NLRA only applies to unionized workforces.

But, Section 7 of the NLRA provides rights to workers who are not in a union and prohibits employment practices that infringe on employee rights to engage in “concerted activity,” which includes the right to discuss terms and conditions of employment—like compensation. Section 7 protects the rights of non-management employees. So, both non-attorney staff employees and lowerlevel attorneys who do not meet the statutory definition of “supervisor” are protected. Law firms that run afoul of this provision of the NLRA could face an unfair labor practice charge lodged with the National Labor Relations Board. While these are common employment law mistakes law firms make, every law firm is going to have its own set of unique employment law-related challenges and issues. But, addressing these common mistakes and seeking guidance from an employment lawyer when other issues arise can make dealing with those challenges and issues easier. HN Terah Moxley is Partner at the woman-owned law firm of Martin Powers & Counsel PLLC. She is Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization and can be reached at terah@martinpowers.com.

Office Space, Position Wanted, Positions Available, Services

Classified Ads Available Online Contact Judi Smalling jsmalling@dallasbar.org 214-220-7452

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24 H e a d n o t e s l D a l l a s B a r A s s o ciation

CMY

Jul y 2022