Dallas Bar Association
HEADNOTES December 2012 Volume 37 Number 12
Focus Labor & Employment
Granting Access to Justice: Lisa Blue Baron and Mike Kaeske Donate $25,000 to DVAP Campaign by Alicia Hernandez
Lisa Blue Baron and Mike Kaeske do it again! The Dallas Bar Association and Legal Aid of NorthWest Texas thank Lisa Blue Baron and Mike Kaeske for their $25,000 gift to the 20122013 Equal Access to Justice Campaign benefitting the Dallas Volunteer Attorney Program. Despite being a busy mother of three, trial attorney and much sought after philanthropist, Ms. Blue Baron never forgets to lend her support to equal access to justice. Since 1994, she has donated $318,000 to the campaign, helping to provide legal assistance to scores of needy clients. Mr. Kaeske, a first-time donor to last year’s Equal Access to Justice Campaign, is a nationally recognized trial attorney whose clients are victims suffering from radiation exposure and cancers. He has stepped up to help DVAP assist working moms, the elderly and veterans with his donation to the campaign. Donors like Lisa Blue Baron and Mike Kaeske make it possible for DVAP’s outstanding group of volunteer attorneys to assist thousands of clients every year. These are volunteer attorneys who assist knowing from the get-go that they will not be paid for their time and legal talents. Instead, they will receive the satisfaction of knowing that they helped someone who otherwise would have been shut out of the legal system. Just a few weeks ago, DVAP helped one of these people. DVAP’s client, “Natalie,” is a young mother who had been turned away and denied every step of the way. Natalie’s young child had been effectively kidnapped by a relative who intentionally took the child from the only mother
Mike Kaeske and Lisa Blue Baron
she had ever known, moved and decidedly did not let anyone know where to find her. For months, Natalie suffered. One can only imagine how the child felt. Did she feel abandoned? Did she wonder if she would ever see her mommy again? Did she cry for her when she was sick or tired? Natalie sought help from the police, but unfortunately, there was no assistance there. She sought help from the courts, but there was not much the courts could do at this point and time.
Inside 6 Dallas Bar Elects 2013 Officers 9 What Is the NLRA, and How Does It Apply To Me? 11 The Computer Fraud and Abuse Act and the Disloyal Employee
The courts needed paperwork, advocates and people who knew the rules. Natalie was told to file pro se documents. So she did. But, once she got an order, the constables would not enforce it, and they sent her back to the courthouse. Somehow, she ended up at the doors of the Belo Mansion. Tears of despair accompanied her. And this is where the next chapter in Natalie and her daughter’s life began. Some phone calls, emails and paperwork ensued. DVAP placed Natalie’s case with a lawyer who stepped up to help. Just like any other legal case, Natalie’s case may have twists and turns, and the outcome is not clear right now. But the one thing Natalie has today that she did not have last week is that she is armed with a person who has a law degree, a law license and courtroom experience—her pro bono warrior. Her bright, caring lawyer will not be paid fees; those are waived. But, I promise you, her lawyer will be paid in full. It may be Natalie’s brilliant smile, a bear hug or a simple greeting card that will make it all worth it. It may be Natalie’s quiet tears of joy. It could be the gratefulness Natalie shows, or it could be the gratitude that her lawyer feels for the opportunity to do what only she can do—unlock those courthouse doors for Natalie. Thank you to our wonderful pro bono lawyers. Thank you to our clients who remind us every day of why we should fight for justice for all. And, thank you Lisa Blue Baron and Mike Kaeske for HN making so much of this possible. Alicia Hernandez is the director of the Dallas Volunteer Attorney Program and the DBA director of community services. She can be reached at ahernandez@dallasbar.org.
December Focus: Labor & Employment Law
This month’s Headnotes articles focus on the topic of Labor & Employment Law. The DBA’s Labor & Employment Law Section provides a forum for employment law practitioners to study employment law issues and to meet and mingle with other employment law attorneys. Join this Section for $30, by contacting kwatson@dallasbar.org.
2 He a d n o t e s l D a l l a s B a r A s s o ciation
Calendar
December Events FRIDAY CLINICS
Noon
DAYL Animal Welfare Committee
11:30 a.m. DAYL Foundation Fellows Luncheon
DAYL Elder Law Committee
Impacts Your Law Practice and How to Manage It,” John McShane. (Ethics 1.00)*
Noon
DAYL 2011 Leadership Class Project Lunch
Environmental Law Section “Post-Election Permitting and Regulatory Update,” Bryan Shaw, Ph.D. (MCLE 1.00)* CLE Committee
WEDNESDAY, DECEMBER 19
CLE Committee
Judiciary Committee
Peer Assistance Committee
Family Law Section Board Meeting
St. Thomas More Society
DAYL Foundation Board of Trustees Meeting
Noon
Corporate Counsel Section “Tips from the Trenches: Delaware 2012,” Mark Morton. (MCLE 1.00)*
Government Law Section “Implementing Conviction Integrity,” Russell Wilson, II. (MCLE 1.00)*
Tort & Insurance Practice Section “Current Tort and Insurance Issues Facing the Oil and Gas Industry,” Michael Cooper, Chris Heckman, Jeff Rees and Micah Skidmore. (MCLE 1.00)*
Senior Lawyers Committee
5:30 p.m. Wills & Power of Attorney Seminar. (MCLE 2.00)* Speakers: Barbara Clark, Jay Hartnett, Audrey Morehead, Hon. Brenda Hull Thompson and Ingrid Warren. A DVAP mentor attorney will be available at the CLE to facilitate and assist lawyers who want to take a Will/POA case. Sponsored by DVAP and J.L. Turner Legal Association. RSVP to perkinsa@ lanwt.org.
FRIDAY, DECEMBER 7 No DBA Events Scheduled
MONDAY, DECEMBER 10 Noon
Noon
Employee Benefits & Executive Compensation Law Section “Executive Compensation: 2012 Year in Review,” Eric Winwood. (MCLE 1.00)* Solo & Small Firm Section “Overcoming Lying Witnesses and Argumentative Lawyers at Deposition,” D. Shane Read. (MCLE 1.00)*
5:30 p.m. Bankruptcy & Commercial Law Section “Current Events in Bankruptcy,” Hon. Barbara J. Houser, Hon. Harlin D. Hale and Hon. Stacey Jernigan. (MCLE 1.00)*
THURSDAY, DECEMBER 6 Noon
Peer Assistance Committee “How Stress, Depression and Addiction
Energy Law Section “An Overview of Failure-to-Develop Litigation, Including Protection of Geophysical Data and Lessons Learned in Trial,” Douglas R. Hafer. (MCLE 1.00)*
Pro Bono Activities Committee
3:30 p.m. DBA Board of Directors Meeting
Non-Profit Law Study Group
6:00 p.m. J.L. Turner Legal Association
5:15 p.m. Legalline. Volunteers welcome. Second floor Belo.
Publications Committee
Christian Lawyers Fellowship
DVAP New Lawyers Luncheon. For more information, contact reed-brownc@lanwt. org.
FRIDAY, DECEMBER 14 Noon
Real Property Law Section “Restrictive Covenants and Lending Issues,” Professor Julie Forrester. (MCLE 1.00)*
11:00 a.m. Dallas Women Lawyers Association Noon
Franchise & Distribution Law Section “Protecting Trademarks in Foreign Countries and the Best Methods for Expansion,” Elizabeth Stanley. (MCLE 1.00)* Mergers & Acquisitions Section “No-Shops & Fiduciary Outs: A Survey of 2012 Public Merger Agreements,” Rob Little. (MCLE 1.00)*
6:00 p.m. Home Project Committee
WEDNESDAY, DECEMBER 12 7:45 a.m. Dallas Area Real Estate Discussion Group 11:30 a.m. House Committee Walk Through Noon
Admissions & Membership Committee
DAYL Lunch & Learn CLE. For more information, contact cherieh@dayl.com.
5:15 p.m. Legalline. Volunteers welcome. Second floor Belo.
6:00 p.m. Dallas Hispanic Bar Association
Noon
TUESDAY, DECEMBER 11
6:00 p.m. DAYL Board of Director’s Meeting
WEDNESDAY, DECEMBER 5
Alternative Dispute Resolution/ Collaborative Law Sections “Selected Legislative and Legal Developments Affecting Collaborative Law & Mediation,” Lawrence R. Maxwell, Jr. (MCLE 1.00, Ethics 0.50)*
8:30 a.m. Alternative Dispute Resolution Section “Advanced Mediator Training,” Jay Berman. (MCLE 6.50)*. Cost: $249. For more information and to register, visit dbamediationtraining.eventbrite.com.
TUESDAY, DECEMBER 18
Tax Law Section “Understanding Target Allocations: How to Spot Them and [How] Do They Work?” Daniel Baucum. (MCLE 1.00)*
TUESDAY, DECEMBER 4
THURSDAY, DECEMBER 13
Business Litigation Section “Constitutional Law Update,” Prof. Erwin Chemerinsky. (MCLE 1.00)*
“Social Media Policies,” Stephanie Russ (MCLE 1.00)*. At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor Griffith Nixon Davison P.C. RSVP to kzack@dallasbar.org.
MONDAY, DECEMBER 3
Visit www.dallasbar.org for updates on Friday Clinics and other CLEs.
Noon
DECEMBER 14-NORTH DALLAS** Noon
D ecem ber 2012
Friday Clinic-North Dallas** “Social Media Policies,” Stephanie Russ (MCLE 1.00)*. At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor Griffith Nixon Davison P.C. RSVP to kzack@ dallasbar.org.
Intellectual Property Law Section Topic Not Yet Available
Trial Skills Section “The Ethical Lawyer: Avoiding Malpractice and Honoring the Practice of Law,” Robert Tobey. (Ethics 1.00)*
Judiciary Committee
MONDAY, DECEMBER 17 Noon
DAYL Solo & Small Firm Committee
DBA Community Service Fund Board Meeting
6:00 p.m. DBA Family Holiday Party Enjoy pictures with Santa, toy trains, clowns, magicians, face-painting, balloon animals, sing-alongs and more! Please bring an unwrapped toy to be donated to charity. For more information, contact rthornton@dallasbar.org.
THURSDAY, DECEMBER 20 Noon
Appellate Law Section “Civility: Ethics, Professionalism, or Both?” Justice Douglas Lang. (Ethics 1.00)*
Criminal Law Section “An Open forum for Section Members to Discuss Issues of Importance.”
Christian Legal Society
FRIDAY, DECEMBER 21 No DBA Events Scheduled
MONDAY, DECEMBER 24 DBA Offices closed in observance of Christmas
TUESDAY, DECEMBER 25 DBA Offices closed in observance of Christmas
WEDNESDAY, DECEMBER 26 No DBA Events Scheduled
THURSDAY, DECEMBER 27 No DBA Events Scheduled
FRIDAY, DECEMBER 28 No DBA Events Scheduled
MONDAY, DECEMBER 31 DBA offices close at 1:00 p.m.
Dallas Bar Foundation Hosts Doris Kearns-Goodwin
DBA DUES REMINDER:
Your 2013 DBA DUES STATEMENT was mailed to your preferred mailing address in October! 2013 DBA DUES must be paid by December 31, 2012 to continue receiving ALL your member benefits. Thank you for your support of the Dallas Bar Association!
In October, the Dallas Bar Foundation hosted “An Evening With Doris Kearns Goodwin.” The Pulitzer Prize-winning author was the keynote speaker for the event, which raises funds for the Sarah T. Hughes Diversity Scholarship program. Pictured are (left to right): DBA President Paul K. Stafford, Mrs. Kearns Goodwin and DBF Chair Russell Coleman.
If special arrangements are required for a person with disabilities to attend a particular seminar, please contact Cathy Maher 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 Teddi Rivas at the DBA office at 214/220-7447. **For information on the location of this month’s North Dallas Friday Clinic, contact KZack@dallasbar.org.
De c e mb e r 2 0 1 2
D al l as Bar A ssoci ati on l Headnotes 3
Boardroom
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4 He a d n o t e s l D a l l a s B a r A s s o ciation
D ecem ber 2012
Headnotes
President's Column
Published by: DALLAS BAR ASSOCIATION
Holiday Wrap By Paul K. Stafford
As the Holiday Season arrives and the end of 2012 draws near, we reflect upon our Dallas Bar Association and the year that was. In retrospect, what did the year 2012 look like? What did we as members give to the DBA in 2012? What did we do in 2012 to improve and enhance our Bar? Did we accomplish that organizational success to which we aspired? Did we transform our organizational intentions, goals and objectives from aspirational to actual? Upon reflection, I realize that the Dallas Bar has once again shown that it is more than just the numerical sum of its members. I am reminded of a January affirmation that our members are a group of individuals with hopes, dreams and aspirations all unique in their own way, yet united by commonality, defined by commitment and imbued with collective conscience to achieve common causes. Through its efforts and programming in 2012, the DBA has once again exhibited its collective conscience and commitment to utilize the gifts of its members’ time, talent and treasure for the betterment of the profession and the community. Accordingly, the Dallas Bar Association remains one of the premier bar associations in the country. Let’s review what makes this so Through its vibrant Committee and Sections, and often in collaboration with other legal and non-legal professional groups, the DBA presented quality CLE presentations in 2012 and continues to provide excellent CLE’s at no cost or low cost to its members. The DBA also provided service to the community through countless projects and initiatives. It built a house for Habitat for Humanity, matched mentors to mentees, and provided, and continues to promote, pro-bono legal services to those less fortunate in our community. In 2012, the Dallas Volunteer Attorney Program celebrated its 30th anniversary of providing pro bono services and vital assistance to those in need, and the DBA is currently conducting its annual Campaign for Equal Access to Justice to ensure that these pro bono legal services continue into the near future. The DBA also provided excellent professional development and networking through its Committees and Sections. In March of this year, the DBA commissioned the Trial Academy and provided helpful practice modules to practitioners throughout the year. In addition, the Dallas Bar continues to provide “Real Help In Hard Times” through the DBA’s Career Center and various networking opportunities throughout the DBA. Ours is a dynamic profession—with prevalent opportunities to rebuild, improve and enhance our profession and impact the lives of many. Through its efforts to improve the legal profession by helping others to grow within it, the Dallas Bar has made a “quiet bargain” — a promise to encourage an individual’s freedom to develop and pursue aspirations, while permitting that individual to utilize the support and resources of a professional legal network to effectuate those aspirations. In 2012, the DBA continued its tradition of collaboration, within the legal community and outside of it. In March, the DBA (along with high schools, the local judiciary, and countless volunteer judges) hosted the annual Texas High School Mock Trial Competition State Championship. In April, the DBA introduced “Arts Month” as an opportunity for the Dallas Bar Association to focus on, and become better acquainted with, its neighbors in the Dallas Arts District, and for the arts community to become more familiar with the DBA as
well. Also in April, through its collaboration with the German Marshall Fund (GMF) of the U.S., the World Affairs Council of Dallas Fort Worth, and the Dallas Committee on Foreign Relations, the DBA co-hosted the GMF Marshall Forum, which was a gathering of international thought- leaders to discuss the transatlantic relationship and the implications of the law and the economy upon that relationship. Through the DBA Diversity Summit and other programming, the DBA promoted inclusion and diversity through cooperation within the profession and collaboration with other organizations and stakeholders. In the process of opening our Belo home to these events and numerous others, the DBA showcased the preeminence of our city and our bar to local, state, national and international audiences. In 2012, as in years past, the DBA honored the profession while upholding the integrity of the legal system. At the annual MLK Day Luncheon in January, we recognized Dr. Walter Sutton, Jr. for his work in the cause of justice and his service to the community and the profession. At the Law Day Luncheon in May, the Honorable Judge Sam A. Lindsay reminded the audience of the value of upholding the Constitution daily, and the vital role that courts play as the cornerstone of society. In September, the DBA hosted its annual Bench Bar Conference, with numerous members of the bar and the judiciary in attendance, and where Mike McKool, Jr. was honored as Trial Attorney of the Year. In October, the DBA recognized excellence in legal reporting at the Philbin Awards, with insightful remarks by author and speaker Jeffrey Toobin of CNN. At the DBA’s Annual Meeting in November, we paid homage in memoriam to our departed colleagues, recognized our extraordinary members, commended our exemplary Committees and Sections, and honored the exceptional Harriet Miers with the Morris Harrell Professionalism Award. It has been an extraordinary 2012 for the Dallas Bar Association, and one that has been immensely rewarding to me professionally and personally. Thank you for allowing me to serve as your President and to lead this prestigious organization. The DBA can rest assured that 2012 President-Elect Sally Crawford will do an excellent job as 2013 President. Thank you to DBA Executive Director Cathy Maher and her excellent staff for their invaluable assistance during my presidency and for making 2012 another successful year for the DBA. Thank you to all of the 2012 Section and Committee Chairs and Vice-Chairs, and to the in-coming 2013 Section and Committee Chairs and Vice-Chairs for helping to ensure the continuity and consistency of excellence. Thanks also to all of those members who offered tireless service and efforts to help the DBA continue to fulfill its mission of excellence and service. I am reminded that excellence is built on consistency, and I am cognizant of the value of consistency — a value often exceeding extraordinary achievement, exceptional accomplishment, or unpredictable brilliance. Among other things, consistency requires respect, focus, commitment, performance, and repetition. Your service is emblematic of these requisites. It takes time and commitment to create and maintain an institution, and it is the members of the DBA that have transformed it from merely an organization to the prominent institution that it is today. Thank you for helping the DBA progress along the continuing path of becoming what it could become, and striving to make the local legal market become the best in the State and Nation. Thank you for paying heed to the “fierce urgency of now,” devoting those 12 or more hours to the Dallas Bar in 2012, adhering to the indelible belief that “Our Time Is Now”… a notion that transcends time and endures to ensure a lasting legacy for the future. As I proceed from 2012 President to 2013 predecessor, certain inquiries may remain. What type of DBA do we have today? Is the DBA different now than it was one year ago? Will the DBA be different a year from now? I will leave the responses to these inquiries to others. But within what Reverend Dr. Martin Luther King, Jr. characterized as “…the unfolding conundrum of life and history…,” and among the daily duties and devotions which drive us, I sense that the work continues… as lives lived, but unfulfilled… dreams dreamt, but unrealized…promises made, but unkept… novels written, but unpublished…arias composed, but unsung… mysteries solved, but undiscovered…journeys to places unseen,… excitement un-experienced…..and gifts intended, but not yet HN bestowed. Onward…
Congratulations
to the Dallas Volunteer Attorney Program’s Outstanding Pro Bono Veterans Clinic Attorney Chris Attig, Attig Law Firm, PLLC
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: Paul K. Stafford President-Elect: Sally Crawford First Vice President: Scott McElhaney Second Vice President: Brad C. Weber Secretary-Treasurer: Shonn Brown Immediate Past President: Barry Sorrels Directors: Jerry Alexander (Chair), Kim Askew (At-Large), Chip Brooker (President, Dallas Association of Young Lawyers), Wm. Frank Carroll, Victor Corpuz (President, Dallas Asian American Bar Association), Rob Crain, Laura Benitez Geisler, Lori Hayward (President, J.L. Turner Legal Association), Hon. Martin Hoffman, Michael K. Hurst, Michele Wong Krause, Karen McCloud, Christina McCracken (At-Large), Hon. Kenneth Molberg ( Judicial At-Large), Carlos Morales (President, Dallas His-panic Bar Association), Mary L. Scott, Diane M. Sumoski, Robert L. Tobey and Aaron Tobin (At-Large). Advisory Directors: Angelina LaPenotiere (PresidentElect, Dallas Hispanic Bar Association), Mandy Price (President-Elect, J.L. Turner Legal Association), Sarah Rogers (President-Elect, Dallas Association of Young Lawyers) and Jennifer Wang (President-Elect, Dallas Asian American Bar Association). Delegates, American Bar Association: Rhonda Hunter, Hon. Douglas S. Lang Directors, State Bar of Texas: Lawrence Boyd, Christina Melton Crain, Ike Vanden Eykel, Andy Payne, Frank E. Stevenson, II HEADNOTES Executive Director/Executive Editor: Catharine M. Maher Communications/Media Director & Headnotes Editor: Jessica D. Smith In the News: Judi Smalling Art Director: Thomas Phillips Display Advertising: Karla Howes, Jessica Smith Classified Advertising: Judi Smalling PUBLICATIONS COMMITTEE Co-Chairs: Vincent J. Allen and Lea Dearing Vice-Chairs: Natalie L. Arbaugh and Dawn Fowler Members: Timothy G. Ackermann, Kevin Afghani, Favad Bajaria, Matthew Baker, Jody Bishop, Lisa Blackburn, Jason Bloom, Kandice Bridges, William Brown, Lance Caughfield, Sally Crawford, James Crewse, Joel Crouch, G. Edel Cuadra, David Dodds, Adam Dougherty, Sabeen Faheem, Enrique Flores, Megan George, Susan Halpern, Zachary Hoard, James Holbrook, Ezra Hood, Mary Louise Hopson, Dyan House, Michael Hurst, Michelle Jacobs, Jessica Janicek, Taylor Jerri, Soji John, Douglas Johnson, Adam Kielich, Michelle Koledi, Susan Kravik, Scott McElhaney, Nick Nelson, Jenna Page, Kirk Pittard, Laura Anne Pohli, Robert Ramage, Jared Slade, Thad Spalding, Paul K. Stafford, Jeanette Stecker, John C. Stevenson, Scott Stolley, Michael Sukenik, Robert Tobey, Peter S. Vogel, Suzanne R. Westerheim and B. Joyce Yeager DBA & DBF STAFF Executive Director: Catharine M. Maher Accounting Assistant: Shawna Bush Communications/Media Director: Jessica D. Smith Controller: Sherri Evans Director of Community Services: Alicia Hernandez Events Coordinator: Rhonda Thornton Executive Assistant: Mary Ellen Johnson Executive Director, DBF: Elizabeth Philipp LRS Program Assistant: Biridiana Avina LRS Interviewer: Marcela Mejia Law-Related Education & Programs Coordinator: Amy E. Smith Membership Coordinator: Kimberly Watson Projects Coordinator: Kathryn Zack Publications Coordinator: Judi Smalling Receptionist/Staff Assistant: Teddi Rivas DALLAS VOLUNTEER ATTORNEY PROGRAM Director: Alicia Hernandez Managing Attorney: Michelle Alden Volunteer Recruiter: Chris Reed-Brown Paralegals: Whitney Breheny, Miriam Caporal, Lakeshia McMillan, Andrew Musquiz, Tina Douglas Program Assistant: Patsy Quinn Copyright Dallas Bar Association 2012. 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 Execu-tive 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. Fea-ture articles should be no longer than 750 words. DISCLAIMER: All legal content appearing in Headnotes is for informa-tional 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 $2.50, including handling. Periodicals postage paid at Dallas, Texas 75260. POSTMASTER: Send address changes to Headnotes, 2101 Ross Ave., Dallas, TX 75201.
De c e mb e r 2 0 1 2
Focus
D al l as Bar A ssoci ati on l Headnotes 5
Labor & Employment Law
Evaluating Disabilities and Accommodation under ADAAA by Kristin Bauer and Victor Corpuz
The pendulum has swung. After more than 15 years of a narrow interpretation of what it means to be disabled under the Americans with Disabilities Act of 1990, the Americans with Disabilities Amendments Act (effective January 1, 2009), and its implementing regulations (effective May 24, 2011), have ushered in the opposite result. There is now an abundance of information about what conditions may be a disability, and a dearth of information about what is not. Unless an employer is willing to accept a fair amount of risk, a conservative approach and focus on accommodation is the best practice, particularly as disability discrimination charges and litigation are on the rise.
Individualized Inquiry Still Required
Case law interpreting the ADAAA is still underdeveloped. But despite a lack of guidance in the ADAAA and its regulations regarding what is not a disability; courts continue to take an individualized approach. See, e.g., Allen v. SouthCrest Hosp. (migraines not a disability); Culotta v. Sodexo Remote Sites P’ship, (fear of traveling over water not disability); Azzam v. Baptist Healthcare Affiliates, Inc. (stroke or a cerebrovascular accident not a disability). This individualized inquiry is required. See 29 C.F.R. § 1630.2(j)(iv).
Accommodating Employees
Because more conditions are considered covered disabilities under the ADAAA, we can anticipate the case law
on accommodations will become more developed with time. But until then, a few things are settled. First, the interactive dialogue the ADA contemplates requires the cooperation of both the employer and employee. Employers should be prepared to show they explored and exhausted all options for accommodations as part of their conservative compliance efforts. Second, certain job modifications are not reasonable, including eliminating essential job functions, diluting uniformly enforced productivity standards, monitoring medications, changing a supervisor, providing personal use items or creating positions. Third, employers do not have to provide accommodations that will result in undue hardship, which is measured by several factors, including cost of the accommodation, employer resources and operational hardships. In practice, operational hardship is the most persuasive and compelling way for employers to demonstrate undue hardship.
Effectively Using Medical Information
A key—and underused—aspect of compliance and risk management for employers is understanding how and when to obtain medical information from employees. When an employee requests an accommodation for a condition that is not obvious, employers can obtain information to evaluate whether the condition is a disability and what accommodation(s) will enable the employee to perform essential job functions. In addition to restrictions under the ADA, other state and federal laws may touch this process. The employer properly
educated on how to lawfully obtain and use medical information from employees who request accommodations will be more likely to make better informed decisions (and not simply rely on an employee’s statement of ability). This strategy serves several purposes. It helps identify potential accommodations; improves communication in the tri-partite relationship of employee, employer and medical provider; helps combat fraud and abuse; and creates a record of the employer’s accommodation efforts. An added benefit for employers is that in the event of litigation, the employer will have useful information about the employee’s condition during the period in question, which can be used to show the employee was not disabled or that the accommodation requested would not have been effective or was only one of several effective options (employers can choose among effective accommodations and, therefore, do not have to provide the accommodation the employee wants).
An employer who invests in the process of setting up its operations in a way that will allow it to gather and use this type of information in a lawful manner can lower the risk of liability.
Conclusion
For those odd birds such as the authors who consider this stuff interesting, decisions interpreting the ADAAA will provide a good read over the next few years. Unless an employer is willing to be the test case, a conservative compliance approach is the best practice. That means ensuring that your organization is set up to handle the issues that arise with ill and injured workers adeptly, proactively and lawfully. A modest, proactive investment of time and resources can reduce the risk HN of agony later.
Kristin Bauer and Victor Corpuz are partners at Jackson Lewis LLP. They are regional practice coordinators for the firm’s Disability, Leave and Health Management practice group and can be reached at BauerK@ jacksonlewis.com and corpuzv@jacksonlewis.com, respectively.
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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
D ecem ber 2012
Dallas Bar Elects 2013 Officers Scott McElhaney Elected President-Elect by Jessica D. Smith
Members of the Dallas Bar Association proudly elected its 2013 officers during the Annual Meeting on November 2. Scott McElhaney, of Jackson Walker LLP, was elected president-elect and will serve as the Association’s 105th president in 2014. Mr. McElhaney was elected to the DBA Board in 2006 and was elected Chair of the Board of Directors in 2010. He was then elected Second Vice-President and First Vice-President. Mr. McElhaney has served as Chair of a number of DBA Committees, including the Bench Bar Conference Committee and Judiciary Committee. He has also served as Chair of the Business Litigation Section and was a Co-Chair of the Campaign for Equal Access to Justice. Mr. McElhaney has also served on the State Bar’s District 6 Grievance Committee as Vice Chair of the Committee for a Qualified Judiciary and as a Barrister in the Patrick E. Higginbotham Inn of Court. He has been a Lecturer at SMU’s Dedman School of Law, where he has taught Employment Law and Legal Research and Writing. He remains a frequent speaker on a variety of legal topics. Mr. McElhaney has been included in The Best Lawyers in America, named a “Texas Super Lawyer” and been listed as one of D Magazine’s “Best Lawyers in Dallas.”
2013 Officers at the November 2 Annual Meeting include (left to right): Jerry Alexander, second vice-president; Sally Crawford, president; Scott McElhaney, president-elect; Bradley Weber, first vice-president; and Paul K. Stafford, immediate past president.
He received his A.B. summa cum laude from Dartmouth College and his J.D. cum laude from Harvard Law School, where he was the managing Editor of Harvard Civil Rights—Civil Liberties Law Review. After graduating law school, he was a law clerk to Judge Irving Goldberg and Judge Barefoot Sanders. Mr. McElhaney practices in the areas of litigation, appellate and employment law. Other officers who were elected at the Annual Meeting are: Bradley C. Weber, of Locke Lord LLP, elected first vice-president; and Jerry C. Alexander, of Passman &
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Jones. P.C., elected second vice-president. Paul K. Stafford, of Carter Stafford PLLC, will serve as immediate past president and Sally L. Crawford, of Jones Day will serve as president in 2013. Additionally, on November 8th ballots for Secretary-Treasurer and director positions were sent to members and one of the following will assume the SecretaryTreasurer position in 2013: John Goren or Christopher Kratovil; and six of the following nominees will assume director positions in 2013: Shonn Brown, John Browning, Frank Carroll, Victor Corpuz, Hon. Martin Hoffman, Karen McCloud, Audrey Moorehead, Scott Stolley, Diane Sumoski and Aaron Z. Tobin. Ballots were due back November 19 and results were not available at press time. The 2013 presidents and president-elects of the minority bar associations will also serve on the board. Each year, the Texas Center for Legal Ethics & Professionalism co-sponsors the presentation of the Morris Harrell Profes-
sionalism Award with the DBA. The award was created in 1999 in honor of DBA Past President Morris Harrell to recognize an attorney who best exemplifies, by conduct and character, truly professional traits who others in the bar seek to emulate. This year’s Morris Harrell Professionalism Award recipient was Harriet Miers, of Locke Lord LLP. Maricela Moore, of Farrow-Gillespie & Heath LLP, and Courtney Perez, of Carter Stafford PLLC, co-chairs of the Minority Participation Committee received the Jo Anna Moreland Outstanding Committee Chair Award. The Alternative Dispute Resolution Section, chaired by Gene Roberts, of the Roberts Law Firm, received the Special Section Award. And, the Minority Bar Leader Award was presented to Karen McCloud, of Karen D. McCloud, P.C. Presidential Citations were also presented to behind-the-scenes members who have faithfully performed often time-consuming tasks for the association. Recipients were: Michael Hurst, of Gruber Hurst Johansen Hail Shank LLP, for his outstanding commitment to the Campaign for Equal Access to Justice as its 2012 Chair; Rhonda Hunter, of Farrow-Gillespie & Heath LLP, for her outstanding work in overseeing and organizing the 2012 DBA Diversity Summit; Rob Roby, of Curran Tomko Tarski LLP, for his outstanding commitment to the preservation of the Belo Mansion; Vicki Blanton, of American Airlines, Inc., for her outstanding efforts in coordinating the 2012 German Marshall Forum in Dallas; Mary Scott, of Farrow-Gillespie & Heath LLP, for her outstanding work as Chair of the 2012 Dallas Bar Association Trial Academy; and Wes Alost, of Jones Carr McGoldrick L.L.P., for his outstanding efforts as Chair of the Public Forum Committee in bringing issues of interest to the members and to the public. HN Jessica D. Smith serves as the DBA’s Communications/Media Director. She can be reached at jsmith@dallasbar.org.
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D al l as Bar A ssoci ati on l Headnotes 7
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8 He a d n o t e s l D a l l a s B a r A s s o ciation
D ecem ber 2012
Judge Lynn Helps Provide Opportunities for Young Lawyers by Anthony P. Miller
It is a well-known and oft-lamented fact that each year, fewer and fewer cases go to trial. Those few that do are often high-stakes matters that clients will entrust only to the most experienced trial lawyers. This is a problem—for young lawyers, for the firms that employ them, and down the line, for their clients. In the Northern District of Texas, Judge Barbara M. G. Lynn is involved with two efforts to combat this issue.
Hearings for Young Lawyers
Judges across the country are adapting their standard orders to encourage parties and firms to give young lawyers speaking roles at trial and in hearings. Judge William Alsup of the Northern District of California has led the charge, writing that he “strongly encourage[s] lead counsel to permit young lawyers to examine witnesses at trial and to have an important role,” He has even gone so far as to state that he will grant hear-
ings on motions “[i]f a written request for oral argument is filed … stating that a lawyer of four or fewer years out of law school will conduct the oral argument or at least the lion’s share.” Here in Texas, Judge Lynn is heading up a similar effort. Over a period of months, she solicited the input of a group of young lawyers drawn from a variety of firms, both large and small, across Northern Texas to create the following guidelines for practice in her courtroom: The Court is aware of a trend today in which fewer cases go to trial, and in which there are generally fewer speaking or “stand-up” opportunities in court, particularly for young lawyers (i.e., lawyers practicing for less than seven years). The Court strongly encourages litigants to be mindful of opportunities for young lawyers to conduct hearings before the Court, particularly for motions where the young lawyer drafted or contributed significantly to the underlying motion or response. In those instances where the Court is inclined to rule on the papers, a representation that the argu-
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ment would be handled by a young lawyer will weigh in favor of holding a hearing. The Court understands that there may be circumstances where having a young lawyer handle a hearing might not be appropriate—such as where no young lawyers were involved in drafting the motion, or where the motion might be dispositive in a “betthe-company” type case. Even so, the Court believes it is crucial to provide substantive speaking opportunities to young lawyers, and that the benefits of doing so will accrue to young lawyers, to clients, and to the profession generally. Thus, the Court encourages all lawyers practicing before it to keep this goal in mind. Judge Lynn is making this a part of her standard scheduling order, and Judges Boyle, Fitzwater, Furgeson, Ramirez, Stickney and Toliver have expressed interest in taking a similar approach.
The Pro Bono Civil Panel
The Northern District has also created the Pro Bono Civil Panel (PBCP)—a list of solo, small-firm and large-firm attorneys from across the Northern District who are willing and able to provide legal assistance in civil matters to pro se litigants who cannot afford counsel. PBCP participants receive opportunities to appear in federal court for hearings and trials in a wide range of cases, including employment discrimination, civil rights and various diversity-jurisdiction matters. The PBCP’s goals are to provide qual-
ity pro bono legal representation for indigent, pro se litigants and to expand opportunities for young lawyers to gain valuable experience, including litigation experience. The PBCP currently includes 22 firms and numerous individual attorneys. No federal litigation experience is necessary, and the registration form is available on the court’s website at www.txnd.uscourts.gov/attorneyinfo/ probono.html. PBCP volunteers can decline appointments for various reasons, including a conflict of interest, another recent appointment or a busy work schedule. Some expenses and fees—up to $3,500 in expenses and $1,000 in fees—may be reimbursable under the court’s Plan for the Reimbursement of Attorney Expenses in Civil Cases. PCBP cases will usually be referred to Magistrate Judges, and case appointments will be made only after a judge has determined—generally after summary judgment motions—that the case has some merit. A number of resources are available to panel members, including attorney mentors, mediators, court reporters and training. With the cooperation of the bar, these efforts should go a long way toward helping young lawyers obtain the training and experience necessary to maintain a high standard of professionalism and excellence in the North HN ern District of Texas. Anthony Miller is an associate at Thompson & Knight. He helped put together Judge Lynn’s young-lawyers guidelines. He can be reached at Anthony.Miller@tklaw.com.
DBA Member Receives Sandra Day O’Connor Award
Omar J. Alaniz (left), of Baker Botts L.L.P., received the 2012 American Inns of Court’s Sandra Day O’Connor Award at the annual Celebration of Excellence, which was held at the Supreme Court of the United States on October 20. Michael A. McConnell (right) introduced Omar and presented him the award.
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D al l as Bar A ssoci ati on l Headnotes 9
Labor & Employment Law
What Is The Nlra, And How Does It Apply To Me? by Christopher L. Maberry
Labor law, which governs the relationship between employers and labor organizations, has recently played a prominent role in the news. One notable dispute involved an attempt by the National Labor Relations Board (NLRB) to prevent Boeing from building airplanes on a new assembly line in South Carolina. Another high-profile dispute arose from Wisconsin Governor Scott Walker’s reform of public employee unions, and the subsequent recall election it generated. Enacted in 1935, the National Labor Relations Act (NLRA) is the primary federal statute in the field of labor law. The NLRA applies to virtually all private sector employers, and most of their employees—the major exceptions being agricultural laborers, domestic servants, independent contractors, managers and supervisors. If you are currently employed and do not work for a government, chances are, the NLRA applies to you. Broadly speaking, the NLRA has two purposes. First, it gives employees certain rights, such as the right to join a union. Second, the NLRA prohibits certain practices by employers and unions. Section 7 of the NLRA grants employees the rights to: (1) self-organize; (2) form, join, or assist unions; (3) bargain collectively through representatives they choose; (4) engage in concerted activities; and (5) not do any of the above. A common misconception is that these rights only apply to employees in unionized workplaces. To the contrary, these rights apply to non-unionized employees as well, which can have a significant impact on an unknowing
employer. For example, if a non-unionized employee complains about working conditions on a social media site such as Facebook or Twitter, and other employees join in the discussion, this activity is most likely protected under the NLRA. In addition to granting rights to employees, the NLRA prohibits certain unfair labor practices (ULPs). Section 8(a) of the NLRA prohibits employers from: (1) interfering with employees’ exercise of their Section 7 rights; (2) interfering with or assisting unions; (3) discriminating against an applicant or employee for the purpose of encouraging or discouraging membership in a union; (4) discriminating against an employee because they filed a ULP charge or gave testimony in an NLRB proceeding; and (5) refusing to bargain in good faith with employees’ chosen representatives. The NLRA also prohibits unions from engaging in specified activities deemed to be ULPs. Section 8(b) prohibits unions from: (1) interfering with employees’ exercise of their Section 7 rights; (2) attempting to cause an employer to discriminate on the basis of union membership; (3) refusing to bargain collectively with the employer; (4) engaging in secondary boycotts, in which the union attempts to coerce other neutral employers; (5) charging excessive or discriminatory initiation fees; (6) causing or attempting to cause an employer to pay for services that are not performed; and (7) picketing an employer for more than 30 days for the purpose of gaining recognition as the employees’ representative. Moreover, Section 8(e) of the NLRA prohibits what are known as “hot cargo” clauses in collective bargaining agreements entered into between an employer
and a union. Pursuant to a “hot cargo” clause, the employer agrees to stop doing business with another employer the union designates as “unfair,” usually because it is not unionized. Union representation at a particular employer may be established in three different ways. First, an employer may voluntarily recognize a union where the union has support among the majority of employees in the “bargaining unit,” the unit being determined under a “community of interest” test. Second, in situations where an employer engaged in serious ULPs, the NLRB may order an employer to bargain with the union. The third and most common way for unions to become the exclusive representative of employees is via an election petition filed with the NLRB, which is responsible for enforcing the NLRA. Most often, this petition is filed by a union seeking to represent employees
at a particular employer, and requires a showing of interest of at least thirty percent of employees in the proposed bargaining unit. After the filing of an election petition, the NLRB determines whether there is enough interest to justify an election. If there is sufficient interest, an election will occur. If the union receives a majority of votes, it will become the exclusive representative of the employees in the bargaining unit for a certain period of time. In sum, the NLRA has an extremely broad application to most private sector employers and employees. It is therefore vital that all employers are cognizant of the rights and prohibitions contained in HN the NLRA. Christopher L. Maberry, an associate at Bracewell & Giuliani LLP, represents employers in Labor & Employment Law. He can be reached at Christopher.Maberry@bgllp.com.
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10 H e a d n o t e s l D a l l a s B a r A s s o ciation
D ecem ber 2012
Judicial Profile: Honorable Chris Wilmoth by Jared M. Slade
A Houston native, Judge Chris Wilmoth, Judge of Dallas County Probate Court No. 2, first moved to Dallas 25 years ago when he enrolled at Southern Methodist University for college. After graduating Phi Beta Kappa and entering the work force, he returned to SMU’s Dedman School of Law and again graduated with high honors. Judge Wilmoth secured a coveted clerkship with the Honorable Jorge A. Solis, an experience that has proven instrumental in his professional trajectory. He joined Baker Botts as a litigator in 2003 and handled a variety of complex litigation and major bankruptcy matters. Those bankruptcy matters afforded him extensive estate-related experience. He also performed over 600 hours of pro bono work on top of his busy docket of cases and extensive community involvement during his tenure there. His former colleagues speak highly of both his work and his corporate citizenship. Integrity and intellect were the two traits that immediately came to the mind of Tim Durst, a litigation partner at Baker Botts, who mentored Judge Wilmoth during the latter’s seven years in private practice. “I have great confidence that he will call the balls and strikes as he sees them with impartiality,” Mr. Durst said, “and he has the intel-
Hon. Chris Wilmoth lectual horsepower to be able to understand even the most complicated legal wrinkle that could come before him.” Those who have practiced before Judge Wilmoth agree. Jim Hartnett Jr., of The Hartnett Law Firm, believes Judge Wilmoth is “doing a fantastic job.” Recently, Mr. Hartnett litigated two hotly disputed, highly complicated cases before Judge Wilmoth. “I’ve been impressed by the calls he’s made,
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even the ones against me,” Mr. Hartnett said. “He tries to get it right, listens carefully, and is willing to make hard decisions and rule quickly.” Edward Smith, of Smith & Stephens, noted that Judge Wilmoth is “putting out the effort to be a good judge” and that his Honor has “grown into the job since elected.” “I think he has surpassed everyone’s expectations,” said Michael Duran, of The Duran Firm, PLLC, noting that Judge Wilmoth had not focused his practice on probate before being elected. “He has jumped into it. He is able to take a very high level of argument and get right to the heart of the matter.” Judge Solis has been a role model to Judge Wilmoth. Particularly, Judge Wilmoth seeks to emulate Judge Solis’ temperament and approach to cases—avoid prejudging any matter and, if appropriate, deciding cases on the merits, not technicalities. Inspired by Judge Solis and his longtime friend, Judge Dennise Garcia of the 303rd Family District Court, he ran in 2010 for judge of Dallas County Probate Court No. 2. He was sworn in on January 1, 2011. Judge Wilmoth acknowledges that his background has afforded him the necessary legal foundation and organizational skills to succeed. That said, he considers the true source of his success on the bench to be his accomplished, experienced staff. “What’s important is to have a really good staff that you can trust,” said Judge Wilmoth. When asked what he wishes more attorneys knew before coming to Probate Court 2, he said that his team’s goal is to make the attorneys look good to their clients. To that end, he and his staff seek to communicate early and often with the lawyers in uncontested matters to ensure that the necessary formalities have been met to allow those lawyers to “look like geniuses” in front of satisfied clients. Serving the community from the bench speaks to what Judge Wilmoth wants to do in the law: help people. Mr. Duran com-
plimented Judge Wilmoth’s demeanor and noted that he has a great “bedside manner,” given the personal strife that often brings the public before him. The Judge recognizes that those who come before him are typically in mourning or struggling through challenging personal situations, such as caring for adult children with intellectual disabilities or parents who have lost the capacity to care for themselves. The fresh eyes he brings to the challenges and issues before the bench allows him to serve others by seeking the right outcome for the matters before him. Of particular importance to Judge Wilmoth are the guardianship cases before him. “Each of these cases is unique and deserves individual attention,” he said. To that end, when selecting attorneys ad litem, Judge Wilmoth focuses on the circumstances and condition of the proposed ward and tries to match the ward with an attorney who will work to maximize the ward’s independence. Judge Wilmoth also takes the time at the end of each hearing to encourage the guardians in the responsibilities they bear. Judge Wilmoth considers the legal process to be a means to an end and not an end in itself. He understands that the hard questions need a judge’s input, and believes that the solution can often be found by looking at the Probate Code, the Trust Code and the case law with fresh eyes. He is not afraid to take his time to get things right. Off the bench, Judge Wilmoth’s six- and nine-year-old daughters keep him busy. They frequently enjoy campouts with the YMCA. They have recently adopted his stamp collection hobby, which the judge began as a Cub Scout. He has also maintained his community involvement through his church and volunteer efforts with local groups like the WesleyRankin Community Center, where he serves HN on the board of directors. Jared M. Slade is a senior associate at Alston & Bird LLP and a member of the DBA Publications Committee. He can be reached at Jared. Slade@alston.com.
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Dal l as Bar A ssoci ati on l Headnotes 11
Labor & Employment Law
The Computer Fraud and Abuse Act and the Disloyal Employee by Stacey H. Cho
Employers are increasingly using the Computer Fraud and Abuse Act (CFAA) against employees who access the employer’s computer system and confidential information without permission, often to use for a competing business. Although originally meant to apply to computer hackers, amendments and recent court decisions have expanded the use of the CFAA in the civil context to include a disloyal employee. The law appeals to employers because it provides direct access to federal courts along with federal criminal and civil remedies, including compensatory damages and injunctive relief. The CFAA punishes anyone who “intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains . . . information from any protected computer.” 18 U.S.C. § 1030(a)(2) (c). Though the Act defines “exceeds authorized access,” it does not define “authorized” or “authorization.” While the CFAA obviously applies
Focus
to an employee who does not have permission to access the employer’s computer or proprietary information, a dynamic debate and split has emerged as to whether the CFAA applies where an employee is given access to, and accesses, the employer’s computer, computer system and information, but does so for an improper purpose. The principal interpretations come from the U.S. Courts of Appeal for the Seventh and Ninth Circuits. The Seventh Circuit, in International Airport Centers, LLC v. Citrin, relied on agency theory to base “without authorization” on the employee’s duty of loyalty. Thus, even if the employee had permission to access the computer and data, once the employee acts against the employer’s interest, i.e., misappropriates confidential information, his “authorization” is terminated. The Ninth Circuit reached an entirely different and much more limiting decision in LRVC Holdings LLC v. Brekka. Because the employee was given unfettered access to the employer’s computer, the court found he did not access the computer “without
authorization” when he emailed documents to himself and to his wife before leaving the employer and starting a competing business. In other words, “access” means access and it does not prohibit misuse. Thus, “without authorization” only applies to outsiders, those who never had authorization or whose authorization was rescinded by the employer. The Second, Third, Sixth, Eighth, Tenth and most recently the Fourth Circuit in WEC Carolina Energy Solutions LLC v. Miller, have agreed with this interpretation and ruled against the employer. Under the majority view, it appears that an employee may access an employer’s confidential and proprietary information without facing any penalty under the CFAA so long as the employee: (1) was given permission to access such information and (2) accesses the information, even if it be for an improper or illegal purpose, while employed. The Fifth Circuit has rendered its own view, highlighting instead, the importance of the employee’s knowledge. In U.S. v. John, the Court held
that the employee violated the CFAA when she accessed the employer’s information and bank account records to defraud customers. The Fifth Circuit distinguished Brekka because the employee in John had reason to know she violated the employer’s policies. The employer demonstrated the employee had knowledge of its official policy prohibiting misuse of the company’s internal computer systems and confidential information through training programs attended by the employee. Although it was a criminal case, John allows an employer to implement policies that define the scope of authorized access and broaden the CFAA’s application to employees who know they are accessing information in violation of the employer’s policies and as part of an illegal act. Employers should not only limit employees’ computer access, but also convey their policies to those who are given access to clearly outline HN authorized use and access. Stacey H. Cho is an associate attorney at Carter Stafford Arnett Hamada & Mockler, PLLC. She can be reached at scho@carterstafford.com.
Labor & Employment Law
Temp Agencies: Are Their Employees Your Employees? by Robin Foret
Employers often use staffing agencies to obtain employees with the intention that those employees will remain the responsibility of the agency for both payroll and employment liability purposes. Companies that attempt to avoid such liability may ultimately find themselves in an employment relationship with the employees obtained through those staffing agencies. Staffing agencies that fill staffing needs for client companies are often temporary help firms (Temporary Agencies), rather than actual staff leasing agencies (Leasing Agencies). The difference is that Leasing Agencies are required to be licensed by the State of Texas and to comply with the regulations of the Texas Staff Leasing Act (Act). The Act defines “staff leasing services” as those offered by a Leasing Agency, which hires and then assigns employees to a client company on a long-term basis. Employment responsibilities are shared by the Leasing Agency and the client company under terms reflected in a written agreement. Many unlicensed staffing agencies
take the position that they provide only temporary help and are not regulated under that Act, even if workers remain at the client’s company for several years. Under the Act, “staff leasing services” does not include temporary help firms that hire their own employees and assign those employees to clients on a temporary basis. For unemployment benefit claims, Leasing Agencies and Temporary Agencies are considered the employer of employees hired and assigned to client companies, as long as those agencies file quarterly reports with the Texas Workforce Commission (TWC) and pay taxes to the State of Texas. Under the Texas Worker’s Compensation Act (TWCA), a client company who directs the dayto-day activities of an employee will be considered an employer along with the Temporary Agency, but may defend common law negligence claims under the “exclusive remedy” provision of the TWCA if the client company purchased its own worker’s compensation insurance. Nonsubscribers to the TWCA may be liable for negligence claims filed by an employee obtained from a Tempo-
rary Agency if the employee was injured while working at the direction of the client company. Under Title VII, the Age Discrimination in Employment Act (ADEA) and Chapter 21 of the Texas Labor Code, the identity of the employer is determined by using a “hybrid economic realities/ common law control test.” Among the numerous factors considered, the most important is whether the company to whom the workers are assigned has day-to-day control over the individual’s duties and any financial control over the worker. The Department of Labor regulations governing the Family Medical Leave Act (FMLA) provide that where two or more businesses exercise some control over an individual’s working
conditions, both businesses may be considered joint employers. This may occur when a Temporary Agency supplies workers to a client company who directs the day-to-day activities of the worker. Absent an agreement that identifies the staffing agency’s obligations under the myriad of employment laws, a client company that exerts day-today control over an employee obtained from a staffing agency may be left with a false sense of security that liability rests solely with the Temporary Agency. Thus, companies should evaluate these risks before using staffing agencies to HN obtain workers. Robin Foret is managing partner of the Foret Law Firm in Dallas, Texas. He can be reached at rforet@texaslaborlaw.com.
DVAP’s Finest Amy Bosway
Amy Bosway is an attorney with Bosway Reed, a Texas PLLC. She specializes in estate planning and family law. Along with assisting at the DVAP Wills Clinics, she has completed multiple estate planning, family law, probate and consumer cases. Of these DVAP cases, the most interesting included a recent consumer tax law case, which she states was “truly an eye-opening experience.” Amy describes the cases she has taken through DVAP as among the most rewarding of her legal career. Amy states, “I feel privileged to have had the opportunity to work on these pro bono cases and to serve the interests of such deserving clients.” As a 2009 graduate of Ave Maria School of Law, Amy took her legal education to heart. She feels that the school’s emphasis on ethical issues, human dignity, society’s responsibility to the poor, and most importantly, faith and reason will continue to resonate during her entire legal career. Thank you for all you do, Amy!
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12 H e a d n o t e s l D a l l a s B a r A s s o ciation
D ecem ber 2012
Tech Toys for Lawyers – 2012 Edition by Tom Mighell
It is that time of year again—time to start thinking about the holidays, and the toys that all good little girls and boys will no doubt be clamoring for this season. While you are doing that, there is no harm in thinking about a tech toy for yourself, right? In this 2012 Edition of Tech Toys for Lawyers, we will take a look at the hottest tablets, some great entertainment centers and other fun gadgets worth checking out as holiday gifts for you or others. If tablet computers were a hot technology last year, this year there is a positive frenzy over them, and the manufacturers do not disappoint. If you still have not sprung for a tablet device yet, there are some great options this year, but choosing one will depend on what you hope to get out of it. Let us start with the tablets that are suitable for work and play; Apple just unveiled its new iPad with Retina Display (4th Generation, $499-$829), and it is a tremendous productivity device. Its new processor makes it significantly faster than its predecessor, and the retina display is really fantastic. In my opinion, the iPad is still the best tablet for lawyers, because 1) the available legal apps are superior to other options and 2) it just works. However, the Samsung Nexus 10 ($399 and up) is poised to give Apple a run for its money—the product had not been released as of this writing, but the reviews are all very good so far. If you prefer an Android-based device that you can tinker with and customize, this may be the tablet for you. Not to be outdone, Microsoft has finally entered the tablet market with its Microsoft Surface ($499-$699), a device that promises to be a tablet when you need a tablet and a laptop when you need that, too. Perhaps the best thing about the Surface is that it
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provides you with direct access to Microsoft Office on a tablet, which none of the others can do at this point. For those of you looking for more of a content consumption experience, try a 7-inch tablet. The iPad Mini ($329$659) and Nexus 7 ($199) both offer the same power of their 10-inch siblings, but with a smaller screen. These tablets are especially good for reading books, magazines, or documents and watching television or movies, but they will both run the same apps as the larger tablets. If you are an Amazon fan, the Kindle Fire ($199$499) offers a great experience, although Amazon primarily intends these tablets to serve as platforms to sell their book and video products to you. Finally, although it is not a tablet, the new Kindle Paperwhite ($119-$179) is an absolutely stunning e-reader, if all you need is something to read books and magazines. If you’re looking for something the whole family can enjoy at once, consider buying a streaming media device. These gadgets have been available for a couple of years, but this past year their popularity really took off. The Roku HD ($60)
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JOB
is a small wi-fi device (think the size of a square hockey puck) that offers dozens of streaming video and audio services, including Netflix, Hulu Plus, HBO Go, Amazon Instant Video, Pandora, MLB. tv and more. Just plug it into your television, connect the Roku to a wireless connection, and you can enjoy all of these media sources on your television. If you have even one Apple i-device, then think about Apple TV ($99), which offers most, but not all of the services listed above. But with an iPhone or iPad, you can use the Airplay feature on your phone or tablet to stream pictures or video directly to your television. These are both great toys for watching or listening to movies, television or audio
recordings. If you are looking for a stocking stuffer, consider the Fitbit ($99), a pocket-sized device that clips on your pants as you go about your day. It is a tech-savvy pedometer, measuring the number of steps you take, calories you burn, stairs you climb and even hours you sleep at night. If you want to track your weight as well, buy the companion Aria Wi-Fi Smart Scale ($129), which will transmit your weight to Fitbit to include with the site’s other analytical tools. If losing weight or staying in shape are among your New Year’s resolutions come January, these are two tools that can help you keep on track. Finally, a fun but pricey toy for creative photographers—the Lytro Light Field Camera ($450) looks like no camera you have ever seen—it is just a 4-inch metal box that uses “light-field photography” to allow the camera to shoot instantly without the need to focus. Further, you can refocus an image over and over using the Lytro’s software—just click on any area of the photo and that portion will come into focus. It is very cool, but not for everyday photographers. Happy Holidays to all of you, and may you and yours get the tech toys you HN crave this season! Tom Mighell is a Senior Consultant with Contoural, Inc., and is the author of “iPad in One Hour for Lawyers,” “iPad Apps in One Hour for Lawyers,” and the soon-to-be-released “iPad in One Hour for Litigators,” all available at ababooks.org or in the iBookStore. He can be contacted at tmighell@gmail.com.
FAIR
Need a Law Clerk? Need an Associate? Why not let them come to you!
METROPLEX LEGAL JOB FAIR 9 a.m. – 5 p.m. Friday, February 15, 2013 Candidates from St. Mary’s University School of Law, Texas Tech University School of Law and the University of Houston Law Center will be available for interviews through the Metroplex Legal Job Fair. Employers will have the opportunity to pre-screen the materials of law students and recent graduates, and pre-select 100% of their candidates for interviews. Candidates will interview at employers’ offices. To register, contact:
Suzanne Patrick • spatrick@stmarytx.edu • (210) 431-2265 Ashley Withers • ashley.withers@ttu.edu • (806) 742-3990 ext. 232 Kourtney James Perry • kljames3@central.uh.edu • (713) 743-5622
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Focus
Dal l as Bar A ssoci ati on l Headnotes 13
Labor & Employment Law
Employees’ Emails Highlight the Importance of Effective Policies by Greg McAllister and Dave Wishnew
Employees who use email at work often incur (or narrowly avoid) liability for themselves and employers. Recent cases highlight the effects of employees’ illadvised email usage and demonstrate the need for policies that anticipate employee misuse of email and future litigation.
Recent Close Calls for Employers
Employers face challenges when more than one employee views an employee’s email. In many businesses, assistants review their boss’s email. One assistant complained because her boss’s email repeatedly included pornography. The employer escaped liability when the assistant’s Texas Workforce Commission charge was
untimely. The employer was fortunate that this embarrassing situation did not also result in lengthy and costly litigation. In a New Jersey case, an employee viewed, opened, printed and distributed his co-worker’s email that was left open on a shared work computer. The co-worker and the owners of the other addressees on the distributed emails sued. The defendant avoided liability under New Jersey law after the plaintiffs were unable to meet a statutory requirement that the defendant acted “without authorization” or exceeded his authorization. This outcome may have turned out differently under slightly different circumstances, a different jury, or another states’ laws.
Using Former Employees’ Emails
Employers often utilize former employees’ improper emails in litigation. In an Illinois
DBA Officers Donate Blood at Belo
case, an employee sued her employer based in part on PowerPoint pictures of a supervisor wearing overalls with no shirt underneath, a hard hat, tool belt and shoes. The court dismissed in part because the plaintiff emailed images that were more sexual in nature. The former employee could not “make a claim that [the PowerPoint] photographs were subjectively sexually offensive in that her own work email account contained pictures of males wearing far less clothing, one of which contained a photograph showing the full buttocks of a male, which she found humorous and even forwarded to her own daughter.” Jacober v. U.S. Dep’t of Agric. Agency. Employees often email themselves client lists and other confidential information before going to work for a competitor. For example, an Ohio employee—during the two weeks before her resignation—uncharacteristically sent work emails to her personal email. Shortly thereafter, she went to work for a competitor. Not surprisingly, the former employer discovered the truth. The emails were key evidence that enabled the employer to obtain injunctive relief.
Public Employees’ Emails Face Scrutiny
After an open records request and investigation, a New Hampshire county prosecutor was confronted with emails discussing his fantasy football league. He resigned. New Hampshire’s attorney general decided not to press charges after an investigation into allegations of illegal gambling.
Lessons for Employers and Employees
These examples provide lessons for
DBA President-Elect Sally Crawford and DBA First Vice President Brad Weber participate in the annual Halloween blood drive at The Belo.
Under attack?
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employers. First, policies should clearly communicate that employees should not expect privacy on their work email because the email addresses are company property. Employers should also instruct employees through manuals and training that personal use of work email is discouraged and limited by a code of conduct. Additionally, employers should articulate a clear policy of how the company preserves and destroys email data. Policies and practices should be tailored to each business. If secretaries view managers’ emails, the managers should be especially cognizant of personal content and confidential information. Additional policies and training may be required when employers allow shared computers in the workplace. More unique concerns arise for public employees subject to potential open records requests, including requests by political opponents. Finally, employers should require new employees to verify that they are not bringing confidential information from previous employers. Confidential information and contact lists from previous employers could subject individuals and their new employers to liability. Likewise, employers in highly competitive industries should be prepared to review departing employees’ email to anticipate employees taking client lists and confidential information. Employers and employees alike should always remember that today’s improper or offensive email may be HN tomorrow’s evidence. Greg McAllister and Dave Wishnew are attorneys at Gruber Hurst Johansen Hail Shank, LLP. They can be reached at gmcallister@ghjhlaw.com and dwishnew@ghjhlaw.com, respectively.
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
In the News
D ecem ber 2012
December
DAIS
Jeff Abrams, of Abrams Mediation, spoke at the Public Investors Arbitration Bar Association Annual Meeting, on “Effective Advocacy in Mediation & Baseball Arbitration”. Bill Mateja, of Fish & Richardson P.C., spoke at the SBOT Advanced Business Law Course in Houston on the “Foreign Corrupt Practices Act – Is the Cover-up Worse than the Crime?”
KUDOS
Al Ellis, with Sommerman & Quesada LLP, has been selected for induction into the University of Texas at Arlington Military Science Department Hall of Honor in 2013. Michael M. Boone with Haynes and Boone, LLP has received the 2012 Robert S. Folsom Leadership Award from the Methodist Health System Foundation. Jim Burnham, of the Law Offices of Jim Burnham, has been appointed to the Southern Methodist University’s sex crimes task force. Don Glendenning with Locke Lord LLP has received the 2012 Hope for Humanity Award from the Dallas Holocaust Museum/Center for Education and Tolerance.
MOVE
Penny P. Reid has joined Weil, Gotshal & Manges LLP as partner. William T. Morton has joined Kane Russell Coleman & Logan PC as an Associate.
Karen Blakely Turner opened a solo practice: Karen B. Turner, PLLC, 3710 Rawlins Street, Suite 1230, Dallas, TX 75219. phone: (214) 780-0646. Marty L. Brimmage Jr., Garrett A. DeVries, Arnold Spencer, Sarah Teachout, A. Michael Warnecke, Thomas H. Yang, and P. Matt Zmigrosky have joined Akin Gump Strauss Hauer & Feld LLP as Partners in the firm. Nichol L. Bunn has joined Lewis Brisbois Bisgaard & Smith LLP as partner. David G. Mayer has joined Shackelford, Melton & McKinley, LLP as partner. Sarah G. Paxson has joined Gardere Wynne Sewell LLP as partner. Laurie N. Arnoldy has joined Hiersche, Hayward, Drakeley and Urbach, PC as an associate. Melinda Balli joined JC Penney Corporation, Inc. as Senior Counsel. Patricia Nobles has joined CHRISTUS Health as system director and corporate secretary. Donna J. Yarborough has moved her office to Campbell Centre II, 8150 N. Central Expressway, Suite 100, Dallas, TX 75206. Phone (214) 346-0100. 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.
. . . . . . DBA In the News . . . . . . During the past few months, your DBA has been highlighted in the following media:
OpenPR.com: Scott Elected President-Elect
ABC12.com: Mike McKool Named DBA Trial Lawyer of the Year
Park Cities People: DBF An Evening With Doris Kearns Goodwin
Citybizlist.com: Mike McKool Named DBA Trial Lawyer of the Year
Post Tribune: Legalline
Dallas Business Journal: Philbin Awards winners, DBA President Paul Stafford and Jeffrey Toobin; Sports Forum; Scott McElhaney Elected President-Elect Dallas Morning News: DVAP Legal Clinics, Philbin Awards winners, DBF “An Evening With Doris Kearns Goodwin”, Sports Forum, Education Symposium Dallas Regional Chamber website and Facebook page: Education Symposium Dallas Observer: Halloween Blood Drive Denton Record-Chronicle: Philbin Awards Focus Daily News: DVAP Legal Clinics, Legalline Heraldonline.com: Mike McKool Named DBA Trial Lawyer of the Year North Dallas Gazette: Sports Forum
McElhaney
Preston Hollow People: Philbin Awards winners, DBA President Paul Stafford, Mike McKool Named DBA Trial Lawyer of the Year PRlog.com: Scott McElhaney Elected President-Elect PR Newswire: Mike McKool Named DBA Trial Lawyer of the Year SBOTnewsclips.com: Philbin Awards winners; Mike McKool Named DBA Trial Lawyer of the Year, DBF “An Evening With…”, Pro Bono Award winners, Scott McElhaney Elected President-Elect Texas Lawyer Blog: Mike McKool Named DBA Trial Lawyer of the Year Texas Lawyer: Mike McKool Named DBA Trial Lawyer of the Year The Texas Lawbook: DVAP Campaign, Scott McElhaney Elected President-Elect Texas Tech Alumni Magazine: DBA President Paul Stafford
“With this latest publication, Amy Stewart has established herself as the authority in Texas on insurance issues. This publication is the bible and go-to authority on insurance coverage. This book should be on the shelf of every lawyer who confronts insurance issues in their practice.” — Brian P. Lauten, Sawicki & Lauten, LLP
Our mediation office in Dallas, Texas serves clients in an atmosphere of fairness and excellence. Focused on Resolution
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9400 N. Central Expwy., Suite 1305
serve with balance and respect.
Dallas, TX 75231
(214) 365-9000
Texas Insurance Coverage — The Litigator’s Practice Guide, by Amy Elizabeth Stewart, is the definitive resource for any litigator handling an insurance coverage dispute. In Part I of this wellresearched handbook, Amy offers practical guidance for reviewing and analyzing insurance policies and understanding the various types of business and management liability coverages that may be available to commercial insureds. Part II of the book contains an indispensable overview of Texas law governing insurance coverage disputes. Building on this essential foundation, Part III proposes practical strategies for litigating an insurance coverage case, from dispute resolution and pre-litigation considerations to discovery tips and case management ideas. Texas Insurance Coverage is an invaluable resource for litigators on either side of an insurance coverage dispute. Order by Nov. 30 and receive 20% OFF the $109.00 list price! Call 800.456.5484, ext. 7740 to order. www.TexasLawyerBooks.com
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Classifieds
Dal l as Bar A ssoci ati on l Headnotes 15
December
OFFICE SPACE
North Dallas Tollway (Galleria area) office space. Hardwood floors and ornate mahogany paneled walls in common areas. Several offices available in different sizes, all with accompanying mahogany secretarial carrel. All have access to three conference rooms, copier, postage meter, high speed Internet, phones and two kitchens. Receptionist services also available. Please call Brittanie at (972) 934-4100.
DSL & phone equipment are available if needed. There is a possibility of overflow real estate work. No long term commitment and a monthly rate of $650.00. Call (214) 520-0600. Medium size Tax Law Firm, AV Preeminent rated, has Class A space available for lease and space sharing. Small and large offices with midtown views of downtown. Prefer real estate experience. Opportunity for referral business. (214) 691-7781 - ask for Kelly.
3 Months’ Rent Free. Offices in Preston Tower. Shared amenities (kitchen, conference room, reception area, bathrooms). Near Preston Center, 10 minutes from courthouse. Will consider lease with option to purchase. Call (214) 3691171 or email herbhooks @aol.com.
North Dallas. Law firm located at Lincoln Centre has two partner size offices, one small office and cubicles available. easy access to Tollway and LBJ; two conference rooms; break room/kitchen; copiers; postage machine. Email: dallasipfirm@gmail.com for more information.
15’x18’ Office available in converted historic house in Uptown. Includes hardwood floors, fireplace, and built-in bookcase. Base rate is $1,000 per month. Call (214) 563-3157 for inquiries.
POSITION AVAILABLE
Furnished office space for rent within small law firm. Great location at 9400 N. Central Expressway (Central and Park Lane). Window office plus space for an assistant. Rent includes covered parking and access to kitchen and conference rooms. Postage meter, scanner, copier, fax, phone and high speed internet. Call (214) 365-9000 ext. 307 or email mike@ mcculloughmediation.com.
Health Law Attorney Needed. Experience in healthcare regulatory and payment matters - Medicare, Medicaid, licensing, transactional or criminal law services to healthcare providers. We prefer a problem solver with a disciplined work ethic, excellent writing skills, good attitude who is self-motivated and will participate in marketing & seminar presentations. Please email resume to markskennedylaw@msn.com.
Office, small conference room and secretarial area facing Cole Park for $1,050.00 P/M full service. Also, large furnished office space available within small real estate law firm located at 4054 McKinney Avenue. Shared conference and break room, copier, fax,
Senior Level Litigation Attorney wanted for an expanding national insurance defense firm for a Dallas office. Candidate should have a minimum of 15 years’ experience in litigation and must demonstrate strong client relations skills. Construction defect, professional liability, employment, bad faith and personal injury defense work helpful. Compensation package will reward skills, experience and existing relation-
YOU CAN’T HACK IT!
DAYL Foundation Annual Fellows Luncheon Keynote Speaker: Texas Supreme Court Justice Eva Guzman Thursday, December 13, 2012 11:30 a.m. at Belo For ticket and table information, contact cherieh@dayl.com.
You can’t hack into a cardboard box. With cyber theft on the rise, it’s just too easy to steal electronic information. Tindall Record Storage is the solution. Storing your paper documents in a secure environment might sound old-fashioned, but it’s the safest and most affordable way to protect your sensitive records. Serving the Metroplex Since1981.
Give us a call to learn more. www.
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Toll Free 866.429.2210
Free Ethics CLE
“How Stress, Depression and Addiction Impacts Your Law Practice and How to Manage It” Speaker: John McShane December 6, Noon, at Belo Ethics 1.00 Sponsored by the Peer Assistance Committee
ships. Additional information may be found at www.helmsgreene.com. We would also consider a small litigation team. Please direct inquiries to Steve Greene at sgreene@helmsgreene.com or (770) 206-3371. To check out additional online classified ads visit the DBA website at www.dallasbar.org/classified.
SERVICES
Killingsworth Aircraft Valuation Service LLC. Specializing in General Aviation. Fixed wing and Rotorcraft. Accredited by: American Society of Appraisers. Member of Forensic Expert Witness Association. www.kairvals.com, www.appraisers.org (281) 796-4812. Diamond and Gold Buyer. Buying all types of Diamonds, Immediate Cash Paid. Consignment terms available @ 10 -20% over Cash. For consultation and offers please call (214) 739-0089. Mexican Law Expert - Attorney, law professor testifying since 1997 in U.S. lawsuits involving Mexican law issues: FNC motions, Mexican claims/ defenses, personal injury, moral damages, contract law, corporations. Coauthor, leading treatise in field. J.D., Harvard Law. David Lopez, (210) 222-
9494. dlopez@pulmanlaw.com. Economic Damages Experts - Thomas Roney has more than twenty five years’ experience providing economic consulting services, expert reports and expert testimony in court, deposition and arbitration. His firm specializes in the calculation of economic damages in personal injury, wrongful death, employment, commercial litigation, IP, valuation and divorce matters. Mr. Roney and his experienced team of economic and finance experts can help you with a variety of litigation services. Thomas Roney LLC serves attorneys across Texas with offices in Dallas, Fort Worth and Houston. Contact Thomas Roney in Dallas/Fort Worth (214) 665-9458 or Houston (713) 5137113. troney@thomasroneyllc.com. “We Count.” Want to advertise here? Contact Judi Smalling at (214) 220-7452 or jsmalling@dallasbar.org.
Connect jobseekers with employers in the legal field. Run your ad in the DBA’s online Career Center. www.dallasbar.org/career-center.
16 H e a d n o t e s l D a l l a s B a r A s s o ciationâ€
D ecem ber 2012
Dallas
Plano
Southlake
Denton
Reputation. Resources. Results. www.koonsfuller.com
Four Offices.
One Focus.
Our Clients.
(Pictured above from left) Southlake Managing Attorney Heather King, Kevin Fuller, Denton Managing Attorney Charla H. Bradshaw, Dallas Managing Attorney Ike Vanden Eykel, Julie Crawford, Mike DeBruin, Plano Managing Attorney Rick Robertson, Aubrey Connatster
As we grow, the focus remains the same... OUR CLIENTS.
Divorce
Child Custody Complex Property Arrangement Visitation Issues Asset Tracing Paternity Issues
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Mediation
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