Punitive Damage Award Held Nondischargeable
Posted 04/30/2012 by Roger Cox May you beat your ex-spouse, file bankruptcy, and discharge the punitive damage judgment resulting from the personal injury claim? Short answer: No. In In re Larsen, 2012 U. S. App. LEXIS 7793 (7th Cir. 2012), … Read More
Genetic Information Nondiscrimination Act (GINA) in Pre-Employment Screenings
Posted 04/27/2012 by Matt Sherwood Generally Passed in 2008, GINA was passed by Congress to prohibit the use of genetic information in health insurance and employment. It is codified at 42 U.S.C.A. § 2000ff. The statute provides that it shall … Read More
No More Need For A Notary?
Posted 04/26/2012 by John Atkins A little-known move was made by the Texas legislature effective September 1, 2011, that may have done away with the need for a Notary Public in most circumstances. Other than for taking an oath of … Read More
EEOC Release New Age Discrimination in Employment Act Rule
The Equal Employment Opportunity Commission (“EEOC”) has issued a final rule to amend its Age Discrimination in Employment Act (“ADEA”) regulations concerning disparate-impact claims and the reasonable factors other than age defense (‘‘RFOA’’). On March 31, 2008, the EEOC published … Read More
Fair Labor Standards Act Retaliation
A lab technician for Bostwick Labs was among a group of employees who met with the Chief Operating Officer to complain about a supervisor removing overtime from their timesheets. Less than a week later the lab technician was fired. She … Read More
Not Every “Scheme” is a Ponzi Scheme
In American Cancer Society v. Cook, 2012 U.S. App. LEXIS 5769 (5th Cir. 2012), the United States Court of Appeals for the Fifth Circuit reversed a fraudulent transfer judgment because a court appointed receiver had failed to prove the actual … Read More
Return to Probationary Contract Status A Viable Alternative to Term Contract Termination or Nonrenewal
As an administrator, you may be dissatisfied with the mediocre performance of a particular teacher who is employed under a Chapter 21, Education Code, term contract. Nonrenewing that teacher means scrutiny by lawyers of the amount and quality of the … Read More
Attorney’s Fees Awarded in Modification Suit Characterized as Child Support
On December 20, 2011, the 14th Court of Appeals, Houston, sitting en banc, filed its opinion in Tucker v. Thomas, 2011 Tex. App. LEXIS 9991. The court of appeals held that a trial court in a non-enforcement modification suit has … Read More
Navigating School District Environmental Hazards
Hidden in plain site are three environmental hazards that should get the attention of all Texas school districts. They are asbestos, lead paint, and underground storage tanks. There are a variety of state and federal laws that regulate environmental hazards.[1] … Read More
Fifth Circuit Holds Inherited IRA Exempt in Bankruptcy
The United States Court of Appeals for the Fifth Circuit has held that an inherited IRA is exempt from a Chapter 7 bankruptcy estate. 1. In re Chilton In In re Chilton, ____, Fd.3d _____, 2012 U.S. App. LEXIS 5140 … Read More
Statutory Relief from an Abstracted Judgment on Homestead Property
Although Texas law is clear that a judgment lien does not attach to, and does not constitute a lien on a judgment debtor’s exempt real property, including the debtor’s homestead, most Texas title companies generally require that all liens, including … Read More
Limitation on Retaliation Claims
The 4th Circuit in Dellinger v. Science Applications International Corp., 649 F.3d 226, (4th Circuit 2012) held that an applicant for employment who was rejected after her prospective employer learned that she had sued her former employer alleging violations of … Read More
EEOC Extends Recordkeeping Rule
The Equal Employment Opportunity Commission extended its existing recordkeeping requirements under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act to entities covered by title II of the Genetic Information Nondiscrimination Act of 2008. … Read More
Tax Return Filing Deadline
If your business entity is taxed as an S corporation or a C corporation and is required to file IRS Form 1120-S or IRS Form 1120, respectively, and the entity is a calendar year taxpayer, the tax return must be … Read More
Extension of Payroll Tax Cut
On February 22, 2012, President Obama signed into law a bill that extends the payroll tax cut for the rest of the year. The roughly $143 billion payroll tax cut has reduced how much American workers pay into Social Security … Read More
Unemployment Claims In Cases Where You Have Given a Severance Package
The question goes something like this – “But we gave them a severance package, why do we have to pay unemployment?” The answer to this question is one that employers hate – because there is no such thing as waiving … Read More
What About My Dog’s Immigration Paperwork?
During Underwood’s recent visit to Denmark, we had the had the pleasure of sitting in the kitchen of several families and engaging in discussions about prospective plans to immigrate to the United States to start up new dairy farms. For … Read More
Guidance for Taking Advantage of 15 Percent Deferral Rule on EOCs
On February 17, 2012, Commissioner of Education Robert Scott announced that he is modifying the House Bill 3 Transition Plan so that school districts can defer implementation of the requirement that performance on an end-of-course (EOC) assessment must count as … Read More
Texas Legislature Addresses Restrictions on Solar Panels
The 82nd Texas Legislature addressed the interrelations of property owners’ associations (POAs) and homeowners vis-à-vis solar power equipment. House Bill 362 modified the Texas Property Code to prohibit POAs from restricting solar devices. While this sounds appealing to some homeowners … Read More
Wind, Solar and Storage Institute – Part 2
Information presented during the second day of the Wind, Solar and Storage Institute in Austin confirmed in my mind that ERCOT will be adding additional electricity generating capacity in the next few years. I believe that the requirement of additional … Read More
E-Verify Self-Check is Now Available Nationwide
Last week, U.S. Citizenship and Immigration Services announced that E-Verify Self-Check, a program that allows job hunters to confirm their employment eligibility status, is now available in every state of the Nation. Many employers use E-Verify to confirm their new … Read More
Fifth Circuit Finds Attorneys’ Fee Award Potentially Non-Dischargeable
The United States Court of Appeals for the Fifth Circuit has issued its first 2012 opinion addressing dischargeability under Section 523 of the Bankruptcy Code. In In re Shcolnik, the Fifth Circuit reversed a lower court’s summary judgment, finding that … Read More
Covered Disabilities That Might Surprise You
Sweeping amendments to the Americans with Disabilities Act (ADA) took effect on January 1, 2009, and regulations implementing the amendments were promulgated on May 24, 2011. Employers who have not studied the amendments and implementing regulations may be surprised at … Read More
Wind, Solar and Storage Institute
The UTCLE sponsored Wind, Solar and Storage Institute is currently taking place in Austin, Texas. The Institute began on February 14 and runs through February 16. The first day of the Institute had a number of interesting presentations. A common … Read More
Superintendent Reassignment of Spouse Does Not Invoke Nepotism Statute
On February 7, 2012, the Texas Attorney General released an opinion regarding whether a superintendent who reassigns his/her spouse (also a district employee) is subject to anti-nepotism laws (Chapter 573, Tex. Gov’t Code). In this particular situation, a board of … Read More
Two Recent FMLA Decisions
To be eligible for FMLA leave an employee must have been employed for a total of at least 12 months and must have worked at least 1,250 hours in the past 12 months. How should an employer respond if an … Read More
New Special Education Procedural Safeguards, Guide to ARD Process Released
New versions of the “Notice of Procedural Safeguards” and “A Guide to the Admission, Review and Dismissal Process” were released in January 2012. The Procedural Safeguards are available at: http://framework.esc18.net/PDF/Procedural_Safeguards_Jan%202012.pdf “A Guide to the Admission, Review and Dismissal Process” is … Read More
VALUATION TESTIMONY FROM PROPERTY OWNER’S CORPORATE REP
Traditionally, property owners have been allowed to testify in Texas Courts about the value of their own property, even if they do not otherwise qualify as an expert. 2011 saw significant developments in the application of this so-called Property Owner … Read More
Office of Civil Rights Releases Section 504 and ADA Amendment Act Guidance for Schools
On January 19, 2012, the Office for Civil Rights (“OCR”) released new guidance discussing the Americans with Disabilities Act Amendments Act of 2008 (Amendments Act), Title II of the Americans with Disabilities Act, and Section 504 of the Rehabilitation Act … Read More
Aging Population Results in Greater Need for Legal Guardianships
Everyone knows that medical advances over the past fifty years or so have resulted in a significant increase in life expectancy in the United States. According to the World Bank, World Development Indicators, the life expectancy for Americans has risen … Read More
USCIS Seeks to Minimize the Separation of Americans from Their Families
On January 6, 2012, a Notice of Intent was posted in the Federal Register by U.S. Citizenship and Immigration Services (“USCIS”) Director, Alejandro Mayorkas, regarding a proposed regulatory change in the processing of Waivers of Inadmissibility. In a USCIS press … Read More
MET TOWERS 101
Landowners in the Texas Panhandle interested in developing the wind resources on their property often ask how they can make their property more attractive to developers. One way to do so is by gathering wind data on their property. This … Read More
Wind is Spinning Spurs in Oldham County
Underwood congratulates Cielo Wind Power and enXco on the recent closing of the 161 megawatt Spinning Spur Wind RanchTM . In addition to working with various landowners in Oldham County, Underwood worked with Cielo in the securing of the transmission … Read More
Expenses Chargeable to an Unleased Mineral Owner
A basic and well-settled principle of Texas oil and gas law holds that an unleased mineral owner is entitled to their proportionate share of production less the necessary and reasonable costs of production and marketing. An issue that sometimes arises … Read More
Department of Education Releases FERPA Regulations
On Friday, December 2, 2011, the Department of Education released final regulations amending the Family Educational Rights and Privacy Act (FERPA) regulations. According to the Department, the changes to the FERPA regulations will have the important effect of improving access … Read More
One Legislative Session Ends; Work Starts for 2013
On November 18, 2011, Chris Wrampelmeier attended a meeting of the Legislative Committee of the Family Law Section of Texas State Bar. The Legislative Committee drafts proposed legislation commensurate with the needs and changing times of family law. The committee … Read More
What to Think About Before Handing Out the Pink Slip: Considerations Before Employee Termination
Certainly most employers have been faced with the difficult task of having to terminate an employee. Obviously this can happen for a number of reasons. Every employer should be armed with the knowledge of the proper procedures to take in … Read More
Is the Mineral Interest Pooling Act Coming to the Granite Wash?
The Granite Wash Field in the Texas Panhandle is a red hot area for drilling horizontal gas wells. A horizontal well can generate four to ten times more revenue than a vertical well. An operator cannot put a horizontal well … Read More
Developers Work to Prepare the Great Plains Wind Energy Habitat Conservation Plan
It should not be surprising that the Endangered Species Act,1 which works to protect threatened and endangered plants and animals and the habitats in which they are found, prohibits the “take” (i.e., the harassing, wounding, or killing) of listed species … Read More
United States Supreme Court, Students & Social Media
The United States Supreme Court recently denied certiorari in the student rights and discipline case of Donniger v. Niehoff (2nd Circuit). At issue in Donniger was whether a school district violated a student’s First Amendment rights when it prohibited the … Read More
CHAPTER 11 CRAM UP – Back to the Future by Way of Reinstatement Under 1124(2) of the Bankruptcy Code
Underwood’s Roger Cox recently moderated a panel at the State Bar of Texas Advanced Business Bankruptcy Course in Houston. The panel, which also featured former American Bankruptcy Institute President, Deborah Williamson of Cox Smith Matthews, San Antonio, addressed the use … Read More
Getting Down to Business and Pleasure – Thursday, September 29
Two dozen Texans separated into four groups with our Danish hosts on Thursday morning. Our plan was to meet again as a group for dinner on Friday night. Each of the groups believed their respective visit was an outstanding opportunity. … Read More
Wednesday, September 28
A primary purpose of our trip was our continued focus on component part manufacturers for the wind industry. Joined by KPMG Denmark, Wagenvoort Advisors and several economic development groups, we enjoyed talking with three dozen seminar attendees. Speakers included Eric … Read More
Our Danish Friends
I enjoyed the great fortune of joining two dozen, from Texas, as we traveled to Denmark to visit our Danish friends. My group included two economic development directors and my Aggie senior daughter, Jena. We arrived in Copenhagen on Tuesday … Read More
CREZ and the PTC
The most recent indications are that the transmission lines for the Competitive Renewable Energy Zones (CREZ) in the Texas Panhandle and the South Plains will be energized in the fourth quarter of 2013. It seems reasonable to expect that wind … Read More
Sally Emerson Presents to the Panhandle Family Law Association
Sally Emerson gave a presentation to the Panhandle Family Law Association at the bi-monthly luncheon on September 21, 2011. She gave the group a Legislative Update on all of the new law that amended the Texas Family Code from the … Read More
Sally Emerson – Ranked One of the Top 50 Women Attorneys in Texas
On behalf of the attorneys and staff of the Underwood Law Firm, I am so pleased, but not surprised, by Texas Monthly’s naming Sally Holt Emerson to its list of the Top 50 Women Attorneys In Texas. The award is … Read More
Horizontally Challenged a Disability Too?
Just weeks after it was reported that Starbucks settled an Americans with Disabilities Act claim with a “vertically challenged” former employee, now a fast food chain is faced with a lawsuit by someone who is horizontally challenged. Martin Kessman, a … Read More
Underwood Attorney Published in Texas School Administrators’ – Legal Digest
Texas Public Schools partner with parents in the education of their children. For a variety of reasons, that partnership sometimes breaks down. What is a campus administrator to do when the breakdown in the relationship with a parent manifests itself … Read More
The Final Months of the Section 1603 Tax Grant Program for Renewable Energy Projects
Last December, the Section 1603 Grant program was extended through 2011. That program, implemented as an incentive to renewable energy developers, may award grants generally equal to 10% or 30% of the basis of development property, depending on the type … Read More
Vertically Challenged Now a Disability
According to a press release, the Starbucks Coffee Company has paid $75,000 to the U.S. Equal Employment Opportunity Commission to settle a lawsuit for unlawfully denying a reasonable accommodation to a woman with dwarfism. The woman, Elsa Sallard, claims she … Read More
Underwood Helps Bring Ralls Wind Farm to Fruition
Sany Electric commissioned the Ralls Wind Farm near the city of Ralls in Crosby County, Texas on Friday, July 29, 2011. The ten-megawatt Ralls Wind Farm consists of five two-megawatt turbines and is the first instance of Chinese turbines being … Read More
Plaintiff’s Medical Damages Limited
On July 1, 2011, the Texas Supreme Court finally settled the oft-debated issue of whether a jury should consider the amount of medical damages incurred by a plaintiff who has health insurance that reduces the amounts charged for the medical … Read More
Assignment of Rents – New Statutory Framework in Texas
The Texas Legislature has recently passed what should be codified as a new Chapter 64 of the Texas Property Code, which will govern assignment of rents. The new statute apparently took effect June 17, 2011. Background It is quite common … Read More
Underwood Representative, Jodi Maner, to present at upcoming International Association of Forensic Nurses Assembly
Jodi Maner, RN, is a Certified Legal Nurse Consultant at the Underwood Law Firm. The 17th Annual Scientific Assembly of the International Association of Forensic Nurses will meet in Atlanta, Georgia on October 21-25, 2009. On Wednesday, October 21, 2009, Ms. … Read More
Texas Senate Approves Three Major Changes in Texas Litigation Law
The Texas Senate has approved a new version of House Bill 274, known as the “Loser Pays” bill. The new version of the bill will now go before a joint House and Senate Committee for final approval. Despite its moniker, … Read More
USCIS Proposes Significant Improvements to EB-5 Visa Processing
Last week, U.S. Citizenship and Immigration Services (USCIS) proposed significant improvements to the processing of the USCIS Immigrant Investor Program, commonly referred to as the EB-5 Program. The EB-5 Program was begun in 1990 with the intent to attract investors … Read More
USCIS Introduces New “I-9 Central” Website
U.S. Citizenship Immigrations Services (USCIS) announced the launch of a new online resource webpage, I-9 Central, which is dedicated to the Form I-9, Employee Eligibility Verification. This free and easy to use website provides employers and employees access to resources, … Read More
DREAM Act Reintroduced into U.S. Senate
On Wednesday, May 11, 2011, the Development, Relief, and Education for Alien Minors (DREAM) Act was reintroduced into the U.S. Senate by Senators Richard Durbin, Harry Reid, and Robert Menendez. During the fall of 2010, the DREAM Act passed the … Read More
Social Media in the Workplace—Pre-Employment Screening
One of the more common questions we get from employers is whether they can search the internet to discover information about job applicants prior to that applicant’s interview. The easy answer is yes. However, as with most legal issues, there … Read More
Same Song, Same Dance: Waterkeeper Revisited
The U.S. Court of Appeals for the 5th Circuit extended a judicial stiff-arm to the U.S. Environmental Protection Agency (the “EPA”) on March 15, 2011 by ruling that concentrated animal feeding operations (“CAFOs”) cannot be required to obtain Clean Water … Read More
Social Media in the Workplace – An Introduction
In today’s technology-driven society, individuals are finding more and more ways to use technology in their everyday lives. One of the largest and fastest growing phenomena in the technology realm is that of social media. Facebook, MySpace, Twitter, LinkedIn, YouTube, … Read More
One Year “Bank Statement Rule” Under UCC § 4.406 Applies from the Time of Administrator’s Appointment
The basic premise of the bank statement rule under 4.406 is to provide a one year window for bank customers to read and review bank statements and to report unauthorized activity on their accounts. Should a customer notify the bank … Read More
The Texas Economic Development Act and the 82nd Texas Legislature
The Texas Economic Development Act, or Chapter 313 of the Texas Tax Code, was enacted in 2001 to encourage renewable energy, manufacturing, and other large-scale investment projects in Texas1 . By way of simplification, participating school districts agree to limit … Read More
HB 233: Down with Testing, Up with Saving
Late last week, Representative Scott Hochberg introduced a bill that proposes to decrease standardized testing while increasing savings to public school districts. Under HB 233, a fourth-grade student would be exempt from TAKS testing in reading, math, or both if … Read More
Fiancées, Parents, Siblings, Oh My! The Supreme Court Extends Retaliation Claims
In Thompson v. North American Stainless, 562 U.S. _____ (2011), the Supreme Court extended anti-retaliation protections by permitting third party retaliation claims. In this case, Eric Thompson, and his fiancée (now wife) Miriam Regalado, worked for North American Stainless. In … Read More
A Reminder that Revised ADA Regulations Implementing Title II and Title III will Take Effect Soon
In July of 2010, Attorney General Eric Holder signed final regulations revising the United States Department of Justice (the “Department”) ADA regulations. The official text was published in the Federal Register on September 15, 2010. However, these revisions take effect … Read More
Say What You Need To Say: Pleading Requirements in Federal Court after Iqbal and Twombly
The standard for pleadings in federal courts have taken an interesting turn since the Supreme Court issued its ruling in a pair of cases called Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 129 S. … Read More
USCIS to Issue New Cards
On February 11, 2011, U.S. Citizenship and Immigration Services (USCIS) announced that it is issuing employment and travel authorization on a single card for certain applicants filing an Application to Register Permanent Residence or Adjust Status, Form I-485. According to USCIS, … Read More
USCIS to Issue New Cards
On February 11, 2011, U.S. Citizenship and Immigration Services (USCIS) announced that it is issuing employment and travel authorization on a single card for certain applicants filing an Application to Register Permanent Residence or Adjust Status, Form I-485. According to USCIS, … Read More
Multiple-Party Accounts Basics: Payable on Death Accounts
Multiple-party accounts, such as savings accounts, checking accounts, and certificates of deposit, are valuable non-probate transfer tools. Multiple-party accounts are inexpensive to maintain, widely used, and relatively easy to understand. At the death of one of the depositors, the funds … Read More
Nonprofit Organizations 101…a/k/a 990
Nonprofit organizations that are exempt from taxation under the United States Internal Revenue Code are required to file an annual Form 990 with the United States Internal Revenue Service (IRS). In 2008, the IRS substantially amended Form 990 to seek … Read More
Should I Fight the Unemployment Claim
I am often asked by employers: should I contest my former employee’s unemployment claim? After we discuss the facts of the case, the next question is always: just how much in benefits can be charged back to me? The answer … Read More
Yes, Denmark and U.S. Have E-2 Treaty
The Department of State (“DOS”) recently announced there is an E-2 Treaty between Denmark and the United States. Confusion was caused as the recently released DOS Reciprocity Schedule stated there was “no treaty” in the E-2 category for Denmark. The … Read More
FLSA Wage and Hour Lawsuits Are On the Rise
There has been a 77% rise in Fair Labor Standards Act (FLSA) lawsuits tied to wage and hour disputes since 2004, according to the National Employment Lawyers’ Association.[1] Also, during this same time period, there has been an 11% increase … Read More
D’oh: Krispy Kreme Fined $40,000 Following I-9 Audit
On July 7, 2009, United States Immigration and Customs Enforcement (“ICE”) announced it had reached a $40,000 fine-settlement with the Krispy Kreme Doughnut Corporation for violations of immigration laws. ICE conducted an I-9 inspection of Krispy Kreme after receiving information … Read More
Texas Supreme Court Addresses Two Questions Concerning Chapter 74 Expert Reports
George Brandal brought a medical malpractice action against Dr. Leland and served a Chapter 74 expert report on Dr. Leland within 120 days of filing suit. Dr. Leland filed a motion to dismiss on the basis that Brandal’s expert report … Read More
Curing a Deficient Chapter 74 Expert Report
Section 74.351(a) of the Civil Practice and Remedies Code provides that a claimant must, within 120 days, serve one or more expert reports regarding every defendant against whom a health care liability care is asserted. A defendant physician or health … Read More
Why Should You Do An I-9 Audit?
Many employers fail to understand the potential significance of an I-9 Audit by the government. In 1994, Disneyland was fined $394,840 for 1,156 alleged paperwork violations on their I-9′s. Ok, but that won’t happen to me, you say. That may … Read More
Nursing Home Lawyers Are Not Nazis
As a guy who spends most of his days representing nursing homes and their employees who work every day addressing very difficult end of life issues, I was saddened last year when I read the San Antonio Court of Appeals’ … Read More
Nonsubscriber – Duty to Warn
Although an employer has a duty to use ordinary care in providing a safe workplace, it is not an insurer of it employees’ safety. An employer is under no obligation to provide training or equipment that is unnecessary to the … Read More