<img height="1" width="1" src="https://www.facebook.com/tr?id=984110721638191&amp;ev=PageView &amp;noscript=1">

Blog

Why The Holidays Are The Best Time To Talk To Family About Legal Arrangements

Now that we’re past Halloween, we are head-long into the holidays. Thanksgiving and Christmas are just around the corner, and soon, you’ll be surrounded by friends and family. Believe it or not, those are perfect times to talk to your loved ones about estate planning. After all, it beats talking about politics or the pandemic, doesn’t it? 


                                                               

Read More  

What’s The Difference Between A Statutory Transfer On Death Deed And A “Lady Bird Deed”

Two terms are used in the state of Texas to describe a deed that automatically transfers title to real estate you own on your death—transfer on death deed and a “Lady Bird Deed” (LBD). The distinction between these two deeds is subtle, but very important.



 

Read More  

Should I Consult An Attorney Before Signing A Lease?

Entering into a legal contract to lease property can be overwhelming and confusing, and you may be uncertain what you are committing yourself to. Whether you are looking to sign a residential or commercial lease, having an attorney assist you can be helpful and will ease your concerns.

Read More  

What Is The Simplest Probate In Texas When There Is No Will?

 

If your loved one died without a Will, transferring his or her assets to beneficiaries can be quite difficult. If no action is taken, assets will not be properly transferred and the beneficiaries will have to take some legal action down the road to straighten out the situation. In some cases, a costly determination of heirship proceeding and dependent administration of the estate may be required. 

 

 

There is one probate procedure, however, that is quite simple—if it can be used. The key is meeting Texas statutory requirements for what is called a “Small Estate Affidavit.”

Read More  

How Much Does It Cost To Set Up A Guardianship?

I frequently get calls about setting up a guardianship for a person who cannot manage their own affairs. Unfortunately, the people calling have no idea the expense involved in setting up a guardianship. Guardianships are complicated and time consuming. To put it simply, guardianships are very expensive. There are many steps involved in establishing a guardianship and a great deal of court involvement.

There are two types of guardianship:

  • For the person - actual physical and medical care for the person                                                                                  
  • For the estate - taking care of all the business affairs of the person
Read More  

The Difference Between Statutory Transfer On Death Deed & Lady Bird Deed

Two terms are used in the state of Texas to describe a deed that automatically transfers title to real estate you own on your death—a transfer on death deed and a “Lady Bird Deed” (LBD). The distinction between these two deeds is subtle, but very important.


 
Read More  

Advance Planning Tools To Help Avoid Probate

Sometimes, even when a person has drawn up a Will, probate of the Will may not be necessary. Advance planning with probate-alternative documents can avoid the need for probate in many cases.

Some Pre-Death Planning Examples Are:

  1. A Transfer on Death Deed or “Lady Bird Deed"
  2. Beneficiary Designations on Retirement Accounts, Life Insurance, Brokerage Accounts and The Like
  3. A Trust Arrangement
Read More  

Do I Need A Trust?

I frequently am asked by prospective estate planning clients, "Do I need a trust?" The answer is the classic one: It depends.
 
For some people a revocable living trust is a very smart estate planning tool, and for others it is a waste of money.
 
Trusts are promoted in a lot of random general literature that the public receives. They are not a one-size-fits-all solution. Whether setting up a living trust is a good idea for you should be discussed with an estate planning attorney who has full knowledge of your assets, family circumstances, and desires.
 
Read More  

3 Reasons You May Need A Guardianship

Guardianships are a complicated legal proceeding. Most people have no clue exactly how complicated and expensive they are. In some situations, however, a guardianship is required to manage the affairs of a loved one.

Read More  

Do I Have To Probate If There Was A Will?

I have addressed in another blog several steps that can be taken as part of the estate planning process that help avoid the need for probate. If those steps were not taken, a full probate still may not be needed.

I am frequently contacted after the passing of a loved one about whether a probate of the loved one's Will is necessary or not. The answer is the standard attorney's reply, "It depends." Sometimes, if your loved one has no assets that are not already disposed of by beneficiary designation or payable on death provisions, there is no need to probate a Will.

This frequently happens if the loved one had already sold the home and was residing in a nursing home, and the only assets he or she still owned were liquid assets. However, if there is real estate still owned by the deceased or oil and gas interests that are not in a trust, some form of probate may be required to transfer the assets. 

Read More  

The Average Cost Of A Determination Of Heirship Proceeding In Texas

In this series of blogs, I am outlining various different types of probates or probate alternatives to settle an estate and their likely costs. As I mentioned in the introduction to this series, the cost is predominantly determined by the type of procedure followed. 

  • In Part One, I discussed probate as a muniment of title, which is usually one of the least expensive procedures.
  • In Part Two, I discussed the cost of an independent administration of the estate. Both of those procedures require the decedent to have had a Will.
  • In Part Three I discussed how if there is no will, the least expensive way to settle the estate through a court proceeding is a small estate affidavit.
Read More  

When Is A Living Trust A Waste Of Money

One of my biggest pet peeves over the years has been the over-selling of living trust packages to folks doing their estate planning. There are definitely times when a living trust is a good estate planning tool. However, for many individuals a living trust is an unnecessary expense.    

Read More  

What Is A Small Estate Affidavit Proceeding And What Does It Cost?

In this series of blogs, I am outlining various different types of probates or probate alternatives to settle an estate and their likely costs. As I mentioned in the introduction to this series, the cost is predominantly determined by the type of procedure followed. 

In Part One, I discussed probate as a muniment of title, which usually is one of the least expensive procedures. In Part Two, I discussed the cost of an independent administration of the estate. Both of those procedures require the decedent to have had a will. If there is no will, the least expensive way to settle the estate through a court proceeding is a small estate affidavit.  

Read More  

Probate As A Muniment Of Title: What Is It & What Does It Cost?

In this series of blogs, I am outlining various different types of probates or probate alternatives to settle an estate and their likely costs. As I mentioned in the introduction to this series, the cost is predominantly determined by the type of procedure followed. This type of probate is the least expensive formal, court-administered proceeding. 

Read More  

When Can You Do A Small Estate Affidavit Procedure In Texas?

 

Frequently, people whose loved one dies without a Will fail to take any action to transfer property because they don’t think the estate is large enough to mess with. This leaves loose ends that must be dealt with years later, when finding the people necessary to legally make the transfer is much harder. To avoid this result, the State of Texas allows the heirs to legally transfer assets at very little expense through a procedure called a Small Estate Affidavit.

Read More  

COVID-19 Pandemic Reminds People They Are Mortal: Estate Planning Is Really Important Now

 

If you’ve listened to the news over the last two months, you’ve learned that the COVID-19 virus can strike just about anyone just about any time, regardless of how careful you are or how healthy you are. The initial presumption that COVID-19 was only a serious concern for elderly, otherwise health-compromised people has proven untrue. Because of that, I have received lots of calls from clients of all ages who suddenly realized it might be time for them to look at doing their estate planning.

Read More  

Why Parents Of Young Children Need Wills

Most young parents don’t want to even think about the possibility of death and see no need for estate planning. However, if a tragedy struck and both parents of minor children were killed, the situation left for their loved ones to deal with is extremely complicated, expensive, and emotional.

 

Read More  

When Is A Living Trust A Good Estate Planning Tool?

The term “Living Trust” has become a buzz word for people looking at estate planning information online or in other resources. Some of those sources of information simply may be a marketing tool to drum up business, without analyzing whether the expense involved in setting up a living trust is really justified for the individual.   

Years ago, traveling seminars would roll into town, serving steak dinners, and selling estate planning packages with living trusts for everyone, at a cost of several thousand dollars. Many of those people had absolutely no reason to have a living trust to deal with their simple estates.


My advice is that if you are thinking about a living trust for your estate planning, set up an appointment with a qualified estate planning attorney to fully discuss why you may or may not need one. 

Below are some of the reasons a living trust might be a good tool for your estate planning:

Read More  

What Do I Have To Do To Foreclose On A Deadbeat Borrower?

You are carrying the note on the sale of a property, and the borrower has missed several payments, has failed to provide proof of insurance, or has not paid the property taxes. If your efforts to get them to comply have been unsuccessful, it may be time to foreclose on the property.

Read More  

What Is A Muniment Of Title Probate, And When Is It Appropriate?

Texas law provides for a shortened, less complicated, less expensive form of probate in specific circumstances called probate as a muniment of title. This funny-sounding procedure really means that your loved one’s will is officially recognized as valid by the probate court and placed of public record as notice to third parties to honor the terms of the will for transfer of property. This is a very simple process compared to a full, regular probate.

Read More  

What Is The Cost Of A Simple Estate Planning Package

People frequently delay drawing up a will or other pieces of an estate plan because of concern for the cost. However, the cost of preparing a simple estate plan package is very reasonable. Compared to the expense to handle your estate without a will or other estate planning documents, it is a bargain.

Read More  

Important Breaking Information On How The Coronavirus Is Affecting The Workplace

This is a very uncertain time for employers in Texas. One of the key issues employers are facing is how to pay employees who cannot work because they have the coronavirus, have to self-quarantine, have been ordered to shelter in place, or have children at home because school and daycare have been suspended. Guidance on these issues is coming forth daily. 

Read More  

Why You Need A Living Will And Medical Power Of Attorney

If you have ever gone through a hospital admissions process, you’ve likely been asked if you have a living will (also known as a directive to physicians) and a medical power of attorney.

Read More  

Starting A Business? Find Out Which Entity Type Is Best For You

If you are considering starting a small business, you're most likely trying to sort out the different types of businesses and trying to decide which type is best for you. Each type might be better for a specific purpose or situation, relating to taxes, liability, and your ability to control the profits and losses of the business. Sorting out the terminology can be tricky. This run-down will help navigate the choices you have.
Read More  

Slick Trick In Texas To Transfer Real Estate Without Probate

Texas law allows a slick trick to transfer title to real estate you own on your death without probate. For many people, their residence or other real estate comprises the biggest part of an estate that normally would require probate to pass title. Texas law has recognized an estate planning trick that is extremely effective and low cost, called a deed with an enhanced retained life estate or “Lady Bird” deed. This tool can be used for all types of real estate interests. If you have drawn up this deed to real property prior to your death, you might be able to avoid probate entirely, if the rest of your assets have been designated with beneficiary or payable on death arrangements.

Read More  

How Much Does It Cost To Set Up A Trust?

 

People will frequently hear about setting up a trust as part of an estate plan. Typically, this is a revocable living trust, although some situations call for an irrevocable living trust. A revocable trust is one that can be completely or partially revoked either during the lifetime of the person creating the trust or afterward. An irrevocable trust means just that: it cannot be revoked.

Another form of trust is a testamentary trust. This is one that is set up as part of a will and does not become effective until your death. The trust I will be discussing here is a living trust. If a trust is set up under a will, that fee is included under the will preparation fee. 

Not every person needs a trust. Unfortunately, some "trust salesmen" have held big seminars as they travel through town to try to convince everyone that they need a living trust. 

Generally, unless you have a complex estate, you do not need a living trust to dispose of your estate. A living trust is a good idea if you own real property or mineral interests in another state. Sometimes, also, people prefer to use a living trust rather than a will to keep the terms of their bequests private. A will, if probated, becomes a public record, whereas a trust does not. There are other instances when a living trust is a good idea and instances when it is not.

If you have determined that setting up a trust is a good idea for you, you are most likely wondering how much it will cost you. Unfortunately, the standard lawyer answer is “it depends.”

Read More  

Probate Process In Texas Is Not That Scary

The thought of having to do a probate for a deceased loved one is often scary. Although the legal process can appear complicated to a layman, an experienced probate attorney can comfortably guide you through the process. The actual court appearances and steps required of you as a client are very low-key and relaxed unless there is a Will contest. 

Read More  

You’re Not Too Young To Start The Estate Planning Process

Tragedies like the recent death of Kobe Bryant, his 13-year-old daughter, the other young parents, and some of their children bring home the tragedy of thinking you are too young to do estate planning. Hopefully, these parents had done estate planning to protect the settlement of their estates for the loved ones left behind. So many times, however, that has not happened because the parents didn’t believe they were old enough to think about this. Or, commonly, younger people believe estate planning is too expensive for them to take on at this stage in their lives. Neither of these things are true!

Read More  

Should You Consult An Attorney Before Signing A Real Estate Contract

Many people trust that the seller of the property they are buying is being fair, or that their real estate agent is covering all of the bases. Maybe they just don’t want to spend the money to have an attorney review real estate purchase agreements.     


I have seen situations, though, where large escrow deposits are subject to being lost, costs of the sale are not being fairly split, or big issues exist over restrictions on use of the property or what interests are being conveyed in the sale.

Even if you trust the seller or real estate agent, it’s a good idea to meet with an attorney before you sign or draft a contract. Doing so could save you money, stress, and headaches.


The Benefits Of Consulting An Attorney Prior To Signing A Contract

Purchasing a home, farm and ranch, or other real estate can be a scary undertaking for many people. Fortunately, real estate agents these days are very well-trained in guiding purchasers through the steps to drawing up a good, legal contract to purchase a home. 

In most instances, it is not essential to consult an attorney for a routine, simple purchase of a residence. However, even then, the assurance from an attorney that the terms are standard and fair to you may be worth the price you pay for an attorney to review the contract. 

If the terms of purchase of a home are not a typical situation with financing by a standard lending institution, such as purchasing a home with standard mortgage lending, you probably will want to consult an attorney to either help you draft the contract or review one drafted by someone else. The terms for key elements of the purchase, such as what all is included in the sale, and who pays for what costs connected with the purchase, can vary widely. You need someone protecting your interests in the deal.

For the purchase of a farm and ranch or other real estate, again, the terms can vary so widely that most buyers will want to have expert legal advice. There are questions such as whether mineral interests pass with the purchase of the property or not, restrictions on the use of commercial property, and endless other details that you might not even think of without the assistance of an attorney.

The Cost Now Versus Later

The price you pay for this advice before signing a contract can easily save you many thousands of dollars and lots of headaches and trouble in the future. A review of a standard residential purchase contract generally would not be more than a few hundred dollars. More complicated contracts, of course, would cost more to review or draft, but the cost would still be far less than any negotiation or litigation later to address problems that arise. 

It is easier to find an attorney who will review a contract or help you draft one before you purchase real estate than after the purchase when potential litigation arises. 

Better safe than sorry! 

If you have a contract you are considering signing or you need a contract drawn up, please schedule an appointment with Adair M. Buckner. Adair has helped thousands of clients through the years with the review and drafting of real estate contracts.

Proceeding, where what property belongs to each spouse is clearly set out, so that elaborate tracing of assets can be avoided. 

Read More  

Tips To Foreclose On A Real Estate Lien

You are the lender on an owner-financed sale of real estate, carrying the note secured by a lien on the property. The borrower is not complying with the terms of the note. You are now faced with the daunting prospect of foreclosure on your lien. 

The good news is that the lien foreclosure gives you a process to recover some or all of the money still owed you. The bad news is that you are going to have to deal with very complicated, tricky legal foreclosure steps to get there.

Read More  

Cost Of A Prenuptial Or Postnuptial Agreement

I have written about how a prenuptial or postnuptial agreement can be an element in an effective financial plan or an estate plan. Many people believe that it is very expensive to have a prenup or postnup drawn up. The expense will depend totally on the situation, and may not be nearly as large as you might think. 

Read More  

6 Key Questions To Help You Choose The Right Attorney

With so many lawyers out there, it’s difficult to know which is the right one for you. But you don’t have to settle for an attorney who isn’t a good fit for you or your legal matter.



When researching lawyers, there are 6 key questions to ask to help ensure a good fit. It’s especially important to work with a lawyer you are comfortable with and can trust.  

Read More  

Don't Wait Until The Holidays To Do Your Estate Planning (That Might Be Too Late)

The time of year is coming up for holiday travel and family gatherings. Holiday travel frequently causes clients to make a desperate last minute call to my office to make estate plans. If the call comes very close to the holiday travel date, it may not be possible to get the documents drafted in time. Attorneys like to take time off to enjoy the holidays too.    
                                            

Read More  

What Is Involved In Setting Up A Living Trust

Setting up a living trust is the best way to ensure your assets are passed onto the right people if you pass away. So how do you start the process?          

The first advice I would give you is to consult an estate planning attorney. This is in the area where self-help and online resources like LegalZoom can get you into trouble. If the trust and follow-up steps are not done correctly, you can have totally wasted the time and money you may have invested in the program. 

After you have found a qualified attorney, follow these steps...


Read More  

Part 6: The Cost Of Probate Alternatives

In this series of blogs, I am outlining various types of probates or probate alternatives to settle an estate and their likely costs. As I mentioned in the introduction to this series, the cost is predominantly determined by the type of procedure followed. 

Read More  

Part 5: The Cost Of A Full Dependent Administration

In this series of blogs, I have outlined various different types of probates and probate alternatives to help you settle an estate and understand the potential costs. As I mentioned in the introduction to this series, the cost is predominantly determined by the type of procedure followed. 

  • In Part One, I discussed probate as a muniment of title, which is usually one of the least expensive procedures. 
  • In Part Two, I discussed the cost of an independent administration of the estate. Both of those procedures require the decedent to have had a will. 
  • In Part Three, I discussed how if there is no will, the least expensive way to settle the estate through a court proceeding is a small estate affidavit. 
  • In Part Four, I discussed the high cost of a proceeding to determine heirship and for administration of the estate.

Today, I’ll walk you through dependent administration, a type of proceeding that can potentially be more expensive.


Read More  

It’s Not Too Late For A “Postnup” Agreement

Your wedding day has come and gone, and you never got around to drawing up that prenup agreement. 

There is good news. If you and your spouse can agree on the parameters, it’s not too late to outline how your property will be classified, as community or separate, how your joint finances will be handled, and support for children from prior marriages —even if you’re already married. You can still accomplish this through a postnup agreement. 

The sooner you create a postnup after the marriage, the easier it is. However, a postnup agreement can be done at any time, regardless of how long you have been married. 

A postnup agreement even can be a tool in an estate plan to clearly delineate each spouse’s separate property if the plan for distribution of that separate property is different from the rest of the estate plan. 

Read More  

Why You Should Have A Statutory Durable Power Of Attorney

Purpose Of A Power Of Attorney 

An important component of an estate plan is a statutory durable power of attorney, otherwise called a general power of attorney. This power of attorney allows you to name an agent or agents to carry on business type activities on your behalf if for any reason you are not able to do so yourself. 

Read More  

Part 2: The Cost Of Probate As An Independent Administration

In this series of blogs, I am outlining various different types of probates or probate alternatives to settle an estate and their likely costs. As I mentioned in the introduction to this series, the cost is predominantly determined by the type of procedure followed. In Part One, I discussed probate as a muniment of title, which usually is the least expensive procedure. Many times that type of probate is not appropriate, though, and an independent administration is required.

Read More  

What Is The Cost Of Probate Or Administration Of An Estate?

One of the first questions the family of a loved one that has passed will ask is, “What will it cost to settle the estate?”

Read More  

Cost Of Incorporation

If an attorney handles incorporation for you, he or she should take all of the steps necessary to set you up to go forward conducting business according to sound legal requirements to preserve the protection that is a primary goal of incorporation. This would include filing a certificate of formation with the secretary of state, drawing up initial bylaws or operating agreement (for a LLC), drawing up minutes of the organizational meeting, issuing stock or membership interests (for a LLC), and providing forms for minutes on an ongoing basis.
     


Also, the attorney usually will provide a set of instructions to you on formalities that need to be followed after incorporation to maintain protected legal status of the corporation.

Read More  

Cost Of Drawing Up A Will VS. Probate Without A Will

Many people are afraid of drawing up a will and doing other estate planning because of the perceived high cost. The truth is, drawing up a will is a small cost compared to the cost of probate of an estate if you die without a will and own almost any property.
             


For a simple “Mom and Pop” will, where spouses leave everything to each other, if surviving, or on the death of the survivor to their adult  children, the cost is not likely to be more than $500 per person. Even if trust provisions are added to the will for possible minor beneficiaries, the cost is still likely around $750 per person.

Read More  

How Prenups Dovetail With Estate Planning

How prenups dovetail with estate planning

Read More  

Prenups Aren't Just For The Rich And Famous. 6 Reasons To Have A Prenuptial Agreement

Prenups Aren't Just For The Rich And Famous. 6 Reasons To Have A Prenuptial Agreement

Read More  

What Is The Legal Process To Divide An Estate If There Is No Will?

Families frequently come to me needing to know how to figure out who gets what when a loved one dies without a will. Unfortunately, the answer is that they may be in for a lot of expense and time in a very complicated legal proceeding.

Read More  

Should I Incorporate?

Is incorporation right for my business?

 

If you ask me whether you should incorporate or not, I will give you the typical lawyer response, “it depends”. Each situation is different and depends on many factors.

Three key factors that go into making the decision of whether to incorporate or not are:

  1. Liability Protection For Personal Assets

  2. Income Tax Pro’s & Con’s

  3. Business Management Pro’s & Con’s


Learn more about these three factors below.  

Read More  

Why You Should Start Estate Planning In Your 20's

Estate planning isn't just for rich or older individuals. Even young, asset-poor 20-somethings should start thinking about how their property will be distributed in the event of a tragedy. Drawing up an estate plan is not as much an action you need to take for yourself, but one you should take for your loved ones. 

Just like an older individual, a young, single person has as much need for a will to designate who would receive anything in the event of his or her death. Whether you have a little or a lot, without a will, the State of Texas will assume your parents should receive your estate. This may not be your preference. Therefore, creating an estate plan will help ensure your wishes are met.

In addition, in the event of your passing, a loved one would also have to spend a great deal of money to go through an estate administration process. If you draw up a will, you could prevent your parents from enduring this stressful, expensive situation.

Read More  

Worried About A Loved One's Ability To Take Care Of Their Own Affairs?

Hopefully, you recognize the issue before it’s too late to pre-plan. The time to seriously review all of a loved one's financial and estate planning affairs is in the early stages of Dementia or Alzheimer's. Progression of the degree of incapacity varies from person to person. Obviously, a visit to a physician for a diagnosis and treatment plan should be your first priority. Then a visit to an attorney should be next.

Read More  

How Do I Avoid Needing a Guardianship?

Pre-Planning is Key

Pre-planning is necessary to avoid needing a guardianship. People live much longer these days, and Dementia and Alzheimers are a common issue families face with loved ones or themselves. Pre-planning to deal with incapacity is very smart.

Failing to pre-plan means that it may be necessary to open a court-administered guardianship. This proceeding is very complicated, time consuming, and expensive. The time to avoid all this is before you or your loved one becomes incapacitated. If you are your loved one are already incompetent, it is too late! Guardianship is the only option then.

Read More  

What Do I Do If A Loved One Dies Without A Will? (Part Two)

This blog is part two of What Do I Do If A Loved One Dies Without A Will. Part One discussed an Application To Determine Heirship  proceeding, the more formal court proceeding to determine heirs and order transfer of property.

Sometimes, we determine after a review of the assets of the deceased loved one that a more informal, less expensive “Affidavit Of Heirship” would be sufficient.

It is not always certain that third parties will accept the informal “Affidavit,” but because it is so much less expensive than the formal court proceeding, it may be worth trying this first.

Read More  

What Do I Do If A Loved One Dies Without A Will? (Part One)

Unfortunately, I get this call many times every day. If the property in the estate does not exceed the value of $75,000, not including the value of a homestead, a court proceeding called a “small estate affidavit” can sometimes be used. However, in most situations, this very simplified proceeding cannot be used. In those situations, there are generally are two options.

  • Application for Determination of Heirship (a court proceeding)
  • Non-court Involved Affidavit of Heirship

Which of these two options will be best varies with each situation, depending on the types of assets owned and the third parties who will be required to transfer the assets. Some third parties only will accept the court proceeding. Commonly, this could be brokerages and insurance companies. However, many third parties will accept the less expensive Affidavit of Heirship. Even title companies routinely accept an Affidavit of Heirship to transfer title to real estate unless there is a very large amount of money involved.

This is part one of What Do I Do If A Loved One Dies Without A Will? Here I will discuss the more formal application for determination of heirship.

Read More  

Avoid Probate: 3 Easy Estate Planning Tools

Here are three simple tools that help you pass on assets at death without the necessity of probate, saving all parties money, time, and stress.

Read More  

What Are Pre-Nuptial and Post-Nuptial Agreements And Why Would I Need One?

A common misconception about prenuptial and postnuptial agreements is that they are only desired by wealthy, greedy individuals. Truthfully, many couples benefit from having such an agreement in place.

Read More  

Should I Agree To Carry The Note On The Sale Of Property?

When should a property owner carry the note on the sale of a property? There are four key factors you should consider before deciding to finance the sale of your property.

Read More  

5 Times You May Need An Attorney To Help You Buy Or Sell A Home

5 Times You May Need An Attorney To Help You Buy Or Sell A Home

Read More  

What Is A Limited Partnership?

What Is A Limited Partnership?

A limited partnership is just another type of partnership. It is different from a general partnership because it has both general partners and limited partners. A limited partnership is also considered a distinct entity from its partners.

Read More  

What Is The Difference Between An LLP And An LLC?

What Is The Difference Between An LLP And An LLC?

Read More  

What Is A Subchapter-S Corporation (S-Corp) And Do I Need It?

What Is An Subchapter-S Corporation (S-Corp) And Do I Need It?

Oftentimes, I have clients come to me asking for an S-Corp, not knowing what this really means.


An S-Corp is not a different form of corporation, but rather a special tax treatment of one or more standard Texas corporations. The incorporation with the Texas Secretary of State actually has nothing to do with the S-Corp status.

 

Read More  

Are Your Personal Assets Really Protected If You Incorporate?

A primary reason for incorporation is to protect your personal assets from claims of creditors of the business. You want to be able to keep your personal assets if you can’t pay the bills of the business, or have some other large liability claim against the business not covered by insurance.

Read More  

What Is A Sole Proprietorship?

A sole proprietorship is a business operated by one individual (or a couple). The business is considered an extension of the individual (or couple), not a separate entity. The business profits and losses are included on the individual's personal tax return, and the individual retains personal liability for the business debts and lawsuits.

Read More  

What Is A Corporation And What Are The Benefits?

What Is A Corporation?

A corporation is a separate legal entity from its owners. A corporation can be owned by one person or many people. The corporation is formed under the laws of the state in which it is operating, with Articles of Incorporation or Certificate of Formation.

Read More  

Is There More Than One Type Of Probate? [Probate Q&A Video Series]

Is there more than one type of probate? In Texas, there are two broad types of probate.

Learn more about the two types of probate in Texas by watching the video.

 

 

 

Read More  

How Long Does The Probate Process Take? [Probate Q&A Video Series]

How long does the probate process take? Well, it depends on a number of factors.

Learn more about what affects the probate process by watching the video.

 

 

Read More  

How Soon Must A Will Be Probated After A Death? [Probate Q&A Video Series]

How soon must a will be probated after death? In Texas, generally a will must be filed within four years after the date of the death, but we encourage you to do it sooner rather than later.

Learn more about the probate process and how soon you should probate a will by watching the video.

 

Read More  

What Is Probate? [Probate Q&A Video Series]

What is probate? Probate, while usually referred to as any legal action to handle an estate, is actually the administration of a will upon the death of an individual. 

Learn more about probate by watching the video.

Read More  

Do I Need A Living Trust? [Estate Planning Q&A Video Series]

Many people have heard the term “living trust” and think it is a magical estate planning tool for everyone. For some people, a living trust truly is a smart way to handle their estate, but for others, it is an unnecessary expense.

 

Read More  

How Do I Get A Will? [Estate Planning Q&A Video Series]

Today, there are many ways you can go about getting a will. To ensure your will accomplishes your wishes, while also avoiding the greatest expense and complication, you should consult with an experienced estate planning attorney.

Read More  

Do I Need A Will? [Estate Planning Q&A Video Series]

While not everyone needs a will, it’s wise to explore whether it would be a smart investment for you and your family’s future. I can explore with you whether the assets you own can be passed down without a will or whether having a will is really key to simple passage of title to assets on your death.

Read More  

How Much Does A Will Cost? [Estate Planning Q&A Video Series]

People frequently delay having a will drawn up because of concern for the cost. The cost of preparing an estate plan package is very reasonable. Compared to the expense you would be out to handle your estate without a will or other estate planning documents, it is a bargain.

Read More  

What Is A Will? [Estate Planning Q&A Video Series]

A lot of people come to me with questions regarding what a will is, because it is so important for passing your legacy on to the next generation.

Read More  

What Is Estate Planning And Why Do I Need It?


This may sound surprising but almost everyone needs estate planning done in their lifetime.

Whether you are a young couple with children, an older individual nearing retirement or a same-sex couple, having an estate plan in place can protect your assets and legacy.

Read More  

What Types Of Trusts Can You Use For Special Needs?

Trusts are an excellent tool to provide for the future needs for yourself or your loved ones.

A trust can be especially beneficial if you have children with special needs, including minor children and adult children with disabilities. You can also create a trust for yourself if you need to apply for Medicaid and your assets exceed the limits to qualify.

Read More  

Welcome to Our New Website

Welcome to Adair M. Buckner’s new website. We are excited to unveil our new look to you!

Read More  

4 Consequences of Choosing the Wrong Attorney

When researching potential attorneys for your case, always do your homework.

Choosing an unqualified or dishonest attorney could not only result in a negative outcome for your legal situation, but it could also cost you more money in the long run.

New Call-to-action

Here are four consequences of choosing the wrong attorney to represent you.

Read More  

So What’s Going to Happen to New Overtime Rules Come December 1?

If you are like many of my clients, this is a very important question for you.  We have been planning for how to address the new DOL rules on the increased salary threshold for classifying an employee as exempt to become effective on December 1, 2016.  

Read More  

Get Ready for EEOC Activity on Sexual Orientation and Transgender Sexual Discrimination Charges

The Equal Employment Opportunity Commission (“EEOC) has begun pursuing in earnest charges and lawsuits based on “sex discrimination” under Title VII for sexual orientation and transgender discrimination.
Read More  

5 Essential Estate Planning Basics for Same-Sex Couples & LGBT Individuals

Last week, hundreds of Pride events took place across our nation to celebrate and support the LGBT community. In reflection of Pride Week, let’s discuss the necessity of estate planning for LGBT individuals and couples. 

Read More  

DOL Tightens Definition Of Independent Contractor Again!

The assault on independent contractor classification of workers by employers just heightened another step. On July 15, 2015, the US Department Of Labor (DOL) issued a new guidance that narrows the definition even more. Many workers who have been classified as independent contractors will have to be recognized as employees

Read More  

Requiring a Health Questionnaire in Hiring Can Cost You Big Bucks

Most employers should know this by now, but apparently, all don’t.  The EEOC recently won a judgment from a Missouri federal district court that a farm in Missouri violated the Americans with Disabilities Act (ADA) and Genetic Information Nondiscrimination Act (GINA) by requiring all job applicants to fill out a health history form before they were considered for a job. 

Read More  

New Overtime Rules & the Non-Profit Sector

Do you know how the new FLSA overtime pay rules affect non-profit organizations?

If you are a non-profit organization and are concerned about how the new FLSA overtime pay rule will affect your organization, please view the Dept. of Labor’s Guidance for Non-Profit Organizations on Paying Overtime under the Fair Labor Standards Act and Overtime Final Rule and the Non-Profit Sector. These documents explain individual coverage, enterprise coverage, as well as white collar exemptions under the FLSA.


Download documents by clicking the links below.

Read More  

Employers: The Basics and the Nitty Gritty of Dealing with New Overtime Rules

Employers have read for over a year about the proposed new overtime exemption rules from the Department of Labor (“DOL”).  Finally, on May 18, 2016, the changes to federal overtime exemption law were published by DOL. 
Read More  

Clock for New DOL Overtime Exemption Regulations Springs Ahead

The clock has been pushed ahead on a possible compliance date for the new Department of Labor (DOL) rule revising the minimum salary level for white collar overtime exemptions. 

Read More  

Top 10 Reasons You Need A Will

Top 10 Reasons You Need a Will

No matter your age or financial situation, it is extremely important to have a will in place. Here are the top 10 reasons you need a will. 

Read More  

Is Your Employee Handbook a Ticking Time Bomb?

Reviewing your handbook periodically is always a good idea to be sure it has kept pace with changing laws. 
Read More  

HR Managers Can Help Stem the Tide of Huge Damages

According to a January report from the large national employment law firm, Seyfarth-Shaw*, the value of class-based employment-related litigation and enforcement actions reached an all-time high in 2015.
Read More  

Clean House for the New Year on Employee Pay Practices

The New Year is a good time to review employee pay practices. Wage and hour lawsuits continue to be the most fertile area for employee claims against employers. 

Read More  

Independent Contractor Classification Review: Avoid DOL/IRS/TWC Trouble

The fight continues between employers and the U.S. Department of Labor (DOL),  the Internal Revenue Service (IRS), and state employment agencies over who can truly be classified as “independent contractors”. Misclassification can be tragic for employers. Don't let your business be one of the targets.

Read More  

New Overtime Rules' Implementation Substantially Delayed

Earlier this year, I predicted we would have to deal with the new Department Of Labor (DOL) regulations defining who can be classified as exempt on January 1, 2016.
Read More  

Texas Employers—How Will You Deal with New Texas Open Carry Law?

Big Decisions Have To Be Made


Do you allow guns in the workplace, or do you not?  
Employers and HR professionals are caught in the debate and legal consequences between maintaining a safe workplace and allowing employees to possess firearms in the workplace. 

Read More  

Do You Have a Blended Family? Estate Planning is Critical for You

Many people have no idea what state law says about distribution of their property if they die without a will (intestate). With blended families, the issues can become complicated.

Read More  

Too Young To Do Estate Planning? Parents With Young Children Need It The Most

The Fallacy Of Thinking "I'm Too Young To Need A Will"

Most young people cannot conceive that they might die in the near future. Younger people, particularly those with minor children, have as great or greater need to have a will as older folks do. Failure to take care of estate planning can cost 10's of thousands of dollars in expenses which could have been avoided.

Read More  

DOL Puts Out New Proposed Overtime Exemption Rules For Comment

First Proposed Revision - Salary Basis Test: One issue raised is that the $455/wk. salary is too low to justify exempting many workers from receiving overtime for many so­‐called “white collar” workers. This wage  amounts to $23,600.00 per year. This baseline figure  has not been updated since 2004. This failure to update the overtime regulations leads to an exception to overtime eligibility originally meant for highly-compensated executive, administrative, and professional employees, who earn little more than the wages for a poverty-level family of four wages.

Read More  

Employers Gear Up For Changes In Treatment Of Same-Sex Spouses After Supreme Court Ruling

The United States Supreme Court issued its landmark ruling Friday, June 26, 2015, in Obergefell v. Hodges, holding that the U.S. Constitution guarantees a right to same-sex marriage. Read the Court's full opinion here

Read More  

Top 10 Things Employers Do Wrong

Learn what the top 10 mistakes are and how to avoid them.

Read More  

6 Compelling Reasons to Have a Living Trust

There are at least six really good reasons for you to have a living trust in your estate planning package.  

Read More  

Employers - How To Stay Out Of Trouble On Employee Pay



Scary wage and hours cases continue to fill the news headlines with big settlements or potential damages against employers who do not pay correctly under the Fair Labor Standards Act (“FLSA”). 

Huge Settlements or Awards Reached

Multi-million dollar settlements of claims for unpaid wages under the FLSA have recently been reported. 

View this SlideShare to learn key rules for paying employees properly.

Read More  

Mission Critical—Review Your Employee Handbook Now Before You Are Charged With An Unfair Labor Practice!

NLRB General Counsel Issues “Guidance on Employer Policies”

The General Counsel of the NLRB recently issued a lengthy memo, which you can access at www.nlrb.gov/reports-guidance/general-counsel-memos, spelling out employee handbook policies it considers both lawful and unlawful under the NLRA.  Employers should carefully review this Memo and review their employee handbooks or policies against it for compliance.  

Read More  

Are You Calling Your Workers Independent Contractors?—Beware DOL Has a Bullseye on You

Employers constantly try to avoid paying employment taxes, overtime, and benefits to workers by calling them independent contractors. 

Read More  

Texas Employers — FMLA Same-Sex Rule Put on Temporary Hold

Just the day before the new DOL rule was to go into effect extending FMLA coverage to same-sex couples in Texas (and everywhere else) if the marriage was legally recognized in the state of celebration, a Texas federal court enjoined enforcement of the rule until further hearing.  The federal case is Texas v. United States of America, No. 7:15-cv-00056 (N.D. Texas 2015).

Four States Challenged New Definition of “Spouse” By DOL

Texas, Arkansas, Louisiana and Nebraska attorneys general sought an injunction, challenging the DOL rule’s revised definition under FMLA of “spouse”, which would look to the law where the marriage was performed for the definition of a legal “spouse”, not the state of the employee’s residence. 

Injunction Not In Effect Everywhere 

Because only the four named states were plaintiffs in the Texas lawsuit, the preliminary injunction only applies in those states for now.  Because same-sex marriage is not legally recognized in those states, employees in those states cannot claim the same-sex spouse FMLA leave benefits.

Employers Can Turn the Clock Back Again in Texas For Now

So, until resolution of this case, or action by the U.S. Supreme Court regarding whether the 14th Amendment requires states to allow marriage between two people of the same sex, the new FMLA rule granting FMLA rights to same-sex spouses of employees is put on hold.  Many believe the Supreme Court will find that states must allow same-sex marriage in the pending challenge when it rules later this summer.  That would render this issue moot under FMLA and the new rule would be effective again.
Read More  

Rules Are Going To Change For Texas Employers On FMLA Treatment Of Same-Sex Spouses

A soon to be effective U.S. Department of Labor (DOL) revision to the Family and Medical Leave Act (FMLA) regulations’ definition of “spouse” will change how Texas employers have to respond to same-sex-spouse-related leaves.  

Read More  

Debunking The Top 5 Reasons People Don't Have A Will

 

Preparing a will is a smart, compassionate, financially-wise, and easy thing to do. So, stop making excuses, and do it! Anyone who has been through settling an estate for a loved one who failed to make a will can attest to how much they would have preferred the alternative.

Read More  

Good News for Third-Party Employers of Home Care Workers, for Seniors, and the Disabled

Many home health care agencies were getting ready for a drastic change in their pay practices as a result of a new Department of Labor (DOL) regulation that was to take effect on January 1, 2015.  The new regulation would have kept third-party employers, who constitute more than 90% of the home care industry, from claiming companionship and live-in exemptions from minimum wage and overtime pay rules.  They got a big Christmas present!  

Read More  

Recent Ruling  U. S. Supreme Court Says Time Spent In Security Checks Is Not Compensable

The U. S. Supreme Court just issued a unanimous decision in Integrity Staffing Solutions Inc v Busk, et al, (Dec. 9, 2014), which was widely called “the security check case”.  Warehouse workers had sued Integrity Staffing for uncompensated time they were required to spend in security screenings lasting up to 25 minutes at the end of their shifts while assigned to work in Amazon warehouses. The Supreme Court ruled employees do not have to be paid for time spent waiting for and actually undergoing security checks. 

Read More  

EEOC Challenges Severence Agreements

Employers frequently will use a “Severance Agreement and Release” when terminating an employee as a means to head off possible post-termination legal claims. Such agreements always have been subject to stringent requirements to be valid and enforceable. In a number of different cases recently, the EEOC has challenged what have been standard release of claims provisions and other terms in such agreements, saying they violate the Age Discrimination in Employment Act (ADEA) and Title VII.

Read More  

Can Employer Fire Employee Who Calls the Boss an Asshole on Facebook? NLRB Says No!

Several employees joined each other in a Facebook exchange in commenting about their boss messing up the withholding on their paychecks. One employee went so far as to say, “What an asshole!”, referring to her boss. Another employee “liked” her remark but said nothing more. The boss didn’t take kindly to either activity and fired them both.

Read More  

Be Proactive - Do FMLA Audit Before DOL On-Site Investigation

DOL To Begin Increased On-Site FMLA Compliance Investigations

The head of the U.S. Department of Labor FMLA Branch has announced DOL will focus on conducting more on-site compliance investigations to: (1) increase investigators’ access to information; and (2) save time by reviewing the employer’s documents and interviewing employees on-site.

Read More  

Employers Need to Review Their “Confidentiality” Policies

Most employers have policies to protect what they define as their company’s “confidential information”. Many of those policies now violate National Labor Relations Board (NLRB) pronouncements and cases that say they unlawfully restrict or punish employees for engaging in protected “concerted activity”. If you have such policies, you need to review them now for compliance with the latest legal developments in this area of employment law. 

Read More  

To Incorporate or Not to Incorporate - That is The Question

There are a number of possible benefits to incorporating a business or forming a Limited Liability Company (LLC), including personal asset protection, business credibility, and possible tax advantages.  Incorporation also offers greater confidentiality as to who the investors, officers, and all but the initial directors are than other business formations. However, you must follow corporate formalities after incorporation to maintain the “corporate veil” of protection and benefits of incorporation or LLC formation or they can be lost.  There are possible downsides to incorporating also, which should be considered.

Read More  

Restaurants and Bars: Beware of Tipped Employee Pay Issues

A recent news release in Amarillo, Texas, illustrates what can happen if employers do not carefully monitor and observe DOL regulations on how they are paying tipped employees.

The Big Texan Finds Itself In A Wage And Hour Investigation

The Big Texan Steak Ranch in Amarillo, which has a national reputation, has agreed to pay $650,000 in minimum wage back wages and $150,000 in liquidated damages to 279 current and former wait staff following an investigation by the U.S. Department of Labor's Wage and Hour Division. The DOL found violations of the Fair Labor Standards Act's minimum wage and record-keeping provisions arising from a tip pooling arrangement by the restaurant.

Read More  

Can I Seriously Not Fire an Employee Who Cussed Me Out and Trashed Me?

NLRB Says Conduct Was Protected Activity

The Background of the Case

This is how the story goes: An employee complained about pay practices at the business where he worked. The employer, owner of the business, took the employee into his office and told him that he had to follow the employer’s policies and procedures, and that he should not be complaining about his pay. The employer told the employee, “that if he did not trust the him, he need not work there.” The employee then became irate and started yelling at the employer, called him a “fucking mother fucking,” a “fucking crook,” and an “asshole,”, that he was stupid, nobody liked him, and everyone talked about him behind his back. During this tirade, the employee also pushed his chair aside and told the owner that if he fired him he’d regret it. The owner obliged & fired him. 

Read More  

Is Allowing Employee to Telecommute a Reasonable Accommodation Under the ADA?

A recent federal appeals court decision seems to say “Yes” under the facts in that case.  This was found to be true even though the employer claimed working as part of a team was an important part of the job.  The 6th Circuit U. S. Court of Appeals in EEOC v. Ford Motor Co., No. 12-2484 (April 22, 2014), found an employee suffering from irritable bowel syndrome (IBS), who was deemed disabled under the ADA, was entitled to consideration of whether a “reasonable accommodation” to allow her to perform her job was telecommuting.  She had been terminated after poor performance ratings, which arose from excessive absences due to her disability.  The trial court had granted the employer, Ford Motor Co., a summary judgment that she was rightfully terminated and that telecommuting was not a reasonable accommodation.

Read More  

What Happens if I Die and Own Out-Of-State Property?

What Is Ancillary Probate or Administration And When Is It Necessary?

Probate or administration is the legal procedure for settling and transferring a person’s estate, including assets and debts.  If a person owns property in a different state from that in which he or she lied at death, an ancillary probate or administration in the other state might be necessary.  If there was a will, generally, a probate will be proper, and if there was no will, an administration, which is more costly and involved, may be necessary.  For ease of reference, I will use the term “ probate” to cover either procedure.
Read More  

Scary Big Dollar Wage and Hour Cases Continue to Fill the News

Scary wage and hours cases continue to fill the news headlines with big settlements or potential damages against employers who do not pay correctly under the Fair Labor Standards Act (“FLSA”).

Read More  

Supreme Court Greatly Broadens Employee Whistleblower Protections

The United States Supreme Court (“USSC”) in Lawson v. FMR LLC, 572 U.S. No. 12-3 (Mar 4, 2014), held that the Sarbanes-Oxley Act (SOX's) whistleblower protection extends not just to employees of publicly-traded companies. The Court held SOX also protects employees of “private” (non-public) company contractors and subcontractors that do work for publicly-traded companies.  This was the USSC’s first time to decide a case under the anti-relation section (806) of SOX and it broadly expanded the protection.
Read More  

“Employment At-Will” Clause Can Get You in Trouble

What Could Be Wrong With Confirming "Employment At-Will" Status? 

Most employers are advised by counsel to include language in employee manuals and agreements confirming that employment status is “employment at-will”. Some go on to provide that this status cannot be changed except under very specific conditions.  Could these provisions violate the National Labor Relations Act (“NLRA”)?

Read More  

What can I do to Protect My Business Against Wage and Hour Audits?

How To Stay Ahead Of Potential Department Of Labor Wage And Hour Audit
The U. S. Department of Labor (“DOL”) continues to step up its audits and investigations, both DOL-initiated and employee-complaint-triggered. This coming year may see records numbers of audits. 

Read More  

Houston Appeals Court Finds That Failure to Include Buy-Out Clause in a Physician Non-Compete Makes It Unenforceable

A  physician non-compete covenant is not enforceable if?
Physician non-compete agreements are a whole different animal. A medical or physician non-compete adds many additional requirements over those for general employee non-competes in Texas. The requirements are very specific. Employers must include a buy-out provision in a physician non-compete, even if negotiating the terms is contentious. 
Read More  

Overtime Pay to be New Normal for Home Health Care Workers

Are The Pay Rules For Home Health Care Workers Changing?

Overtime pay and minimum wage rules will become the rule rather than the exception for home health care workers in the future. The Department of Labor (DOL) recently published its “final rule”, which would do away with the exemption from minimum wage and overtime pay for home health care employees in all but a very narrow range of pure “companionship” services.  The changes will be significant for home health care employers.  Fortunately, the new rule does not go into effect until January 1, 2015, so home health care employers will have time to adjust their staffing and pay practices. 

Read More  

Wage And Hour Law:  How Do You Calculate Overtime Pay?

Payroll Issues (Overtime, Compensatory Time Off, Wage Offsets, Bonus Rules)

General Rule: Nonexempt employees (all those who do not qualify as exempt) must be paid overtime for each hour worked in excess of 40 in a seven-day work week at the rate of 1.5 times their regular rate of pay.
Read More  

Avoiding An Overtime Pay Lawsuit: What Counts As "Hours Worked"?

What Is Included In “Hours Worked” For Non-Exempt Employees?  

Hours Worked Are Calculated on a Seven-Day Workweek

Whether an hourly, non-exempt employee works over 40 hours a week is calculated on a seven-day period, regardless of how payroll is paid.  If the pay period is every two weeks or twice a month, this does not change the rule.  If an employee works 50 hours one seven-day period and 30 the next seven-day period during a two-week payroll span, he or she is still entitled to 10 hours of overtime for the first period.  It cannot be averaged out over two weeks or more, unless special rules are followed for a “flexible workweek” (which is a whole new can or worms, but sometimes worth the effort).  An employer cannot keep changing the seven-day period to carve out days with long hours either.  
Read More  

Why Wage And Hour Lawsuits Are So Dangerous For Employers

Employers across the country face a huge proliferation of wage and hour lawsuits based on the Fair Labor Standards Act (FLSA).  They are very dangerous because of the potential number of claimants involved and multipliers of damages under the Act.  The worst scourge under the Act is the dangerous pseudo-class action, which is discussed below.  Large numbers of employers in a variety of industries have paid out millions or tens of millions of dollars for claims that:  (1) “management” employees who worked long hours have been misclassified as exempt and should have been paid overtime premium pay; (2) non-exempt employees did not receive pay for all hours worked (including lunch hours that were not free from work); (3)  overtime premiums had been computed incorrectly, including by failing to include commission or bonus earnings in the regular rate; and (4) a variety of other wage and hour law violations.  Rules governing how to properly classify exempt employees from overtime pay, dangers of improperly docking salaried employees, how to determine what is “time worked” for non-exempt employees, and how to calculate the base hourly wage for purposes of figuring overtime payment at time and one-half are covered in other blogs. 
Read More  

Supervisor Illegally Harasses Iron Worker Based on Gender Stereotypes

The Fifth Circuit Court of Appeals, which governs courts in Texas, Louisiana and Mississippi, joined many other federal courts recently in holding discrimination or harassment can be based on whether an employee conforms to a gender or sex stereotype.  Title VII of the Civil Rights Act prohibits such conduct.  The Court upheld a jury verdict in favor of a male iron worker whose supervisor thought he acted “kind of gay” and “feminine.” The supervisor used very foul language toward the employee, called him derogatory names with graphic descriptions daily, and simulated sex acts from behind the employee on a regular basis. When the employee was laid off, the EEOC took on his case against the employer for discrimination/harassment/retaliation.
Read More  

Time to Update Employee Handbook

Why Have An Employee Handbook?

I have covered in an earlier blog why an employer of any size should have an employee handbook.  First, it helps employees know what is expected of them and provides the rules on which disciplinary action can be based. Second, the handbook can provide useful protection and defenses against employee actions.  Please refer to this earlier blog for more discussion.

Read More  

Are Same-Sex Marriages Treated Equally for Federal Tax Purposes?

Employers must treat same-sex marriages like other marriages for Federal Tax purposes.

IRS Ruling Affecting Employers

The IRS has issued a ruling ( IRS Revenue Ruling 2013-17 ) that employees who were legally married in places that recognize same-sex marriage are entitled to the same federal tax treatment as traditional married employees, regardless of whether the state in which they live or are employed recognizes the marriage as legal.  This means any tax issue that is related to marital status, such as exemptions claimed (personal and dependents), filing status, claiming standard deduction, treatment and provision of employee benefits, and IRA contributions.  
Read More  

Will Obesity be Considered a Disability Under the ADA?

There’s a new issue for employers to struggle with now. Early this summer the American Medical Association (AMA) officially determined that obesity is a disease. That leads to the inevitable next question for employers subject to the Americans with Disabilities Act (ADA) (those with 15 or more employees): Is obesity a disability, considering all of the ramifications that flow from that possibility? Then all shades of other questions pop up, such as “how overweight must a person be to qualify  as ‘obese’”; “how does an employer determine whether an employee is obese enough to require accommodations in job performance”; and “what accommodations might be required to allow him or her to perform the essential functions of the job?”     

Read More  

New Requirements and Considerations in Applying FMLA to Same Sex Couples

The U. S. Supreme Court ruled recently that the portion of the Defense of Marriage Act (DOMA) which denied recognition of marital status to couples of the same sex under federal law was unconstitutional. This ruling expands potential FMLA coverage as a result to same sex spouses. Employers will have to fine tune administration of FMLA leave to determine whether leave related to a same sex spouse issue should be granted. The employer will have to grant FMLA leave to an employee for legitimate, covered requests for a same sex spouse, if the affected employee resides in a state that recognizes same sex marriage.

Read More  

EEOC Flexes Muscles on Use of Criminal History —Two Lawsuits Filed

The Equal Employment Opportunity Commission (EEOC) continues to emphasize its distaste for employer criminal background checks in the employment process, especially when they are not very carefully used. The EEOC filed suits against Dollar General and a contractor running a BMW plant in South Carolina for use of information obtained through criminal background checks to reject an applicant for a job or to fire employees, claiming the practice results in discrimination against blacks because of their higher arrest and conviction rates than Caucasians.

Read More  

What Should be in Employee Handbooks?

Employee Handbooks can protect employers in a number of ways.  Each handbook should be tailored to the specific employer’s practices, size, and special business considerations, though.  A total boiler-plate handbook does not fit all employers.  A pro-forma handbook an employer gets off the Internet may commit it to requirements it legally might not otherwise have to meet.

Read More  

ADA Case—Is Arriving at Work on Time an Essential Job Function?

Look out employers.  Be careful how you apply tardiness policies or you may run afoul of the Americans with Disabilities Act (ADA).  In a case from the Second Circuit Court of Appeals,  McMillan v. City of New York (2nd Cir. March 4, 2013), the court said arriving at work on time might not be an essential function if the employee could still complete his work in a timely manner.
Read More  

Two Whammies in Undocumented Worker Case--Worker May Recover Overtime Under FLSA and Individual Directors May Be Liable

A recent Eleventh U.S. Circuit Court of Appeals case,  Lamonica v. Safe Hurricane Shutters Inc., 11th Cir., No. 11-15743, (March 6, 2013) , held that undocumented workers are still entitled to recover unpaid overtime under the Fair Labor Standards Act (FLSA).  Nine workers, including an undocumented worker, sued their former employer, Safe Hurricane Shutters Inc., its president and CEO, and two directors to recover unpaid overtime compensation. After trial, a jury found in favor of all the workers, and the trial court ordered the company and the individual defendants to pay the damages of two times the lost overtime wages.  All the defendants appealed.
Read More  

Overtime Pay Mistakes Make DOL News Releases for Two Texas Panhandle Employers

Not paying overtime correctly continues to be one of employers’ most frequent and costly traps.  The U.S. Department of Labor (DOL) has issued two press releases in recent months requiring back overtime pay by area employers for overtime violations following a DOL investigation and issued warnings to all employers to pay correctly.  The first was issued on January 22, 2013, against Diversified Interiors of Amarillo, Ltd. (“DI”), an Amarillo construction-related firm, for $76,417 back overtime wages to 63 employees, and the second was issued on February 6, 2013, against Austin Industrial Services LP, a construction company providing maintenance and construction work for the Phillips 66 oil and gas refinery in Borger, for $214,398 in overtime back wages to 13 employees.  Both situations include lessons on correctly paying overtime that employers already should know, but if they don’t, they need to learn fast.

Read More  

Finally a Win for Employer on Independent Contractor Classification!

Texas Court Finds A Real Independent Contractor

Finally, a victory for an employer on an independent contractor worker classification!  This usually is a losing battle for employers who try to classify workers as independent contractors instead of employees, thus avoiding payment of overtime, minimum wage, withholding and social security taxes, and the like. Many employers have been subjected to Department of Labor audits and private collective action lawsuits (or Texas Workforce Commission or IRS audits) over this issue and have lost.

Recently, however, the Federal District Court for the Southern District of Texas held that gate attendants who worked with a prominent provider of oilfield gate attendant services correctly were classified as independent contractors under the FLSA. Gate Guard Servs., L.P. v. Solis, 2013 U.S. Dist. LEXIS 20156 (S.D. Tex. Feb. 13, 2013).  This case is a primer for employers on what it takes to meet the heavy burden of supporting such classification of a worker.

Read More  

Arbitration Agreement Protects Against Fair Labor Standards Act Collective Action

If you’ve been keeping up with news, even on a local basis, you know that Fair Labor Standards Act (“FLSA”) claims (wage & hour overtime especially) continue to be a Number One source of headaches and big payments for employers.  The dreaded “collective” FLSA action, brought by one or more employees on behalf of all employees similarly situated, can bankrupt an employer.

Read More  

Facebook Pics Prove FMLA Fraud

 Finally, an employer's use of employee's Facebook postings helped the employer, instead of triggering a claim against it!
Read More