Smooth Transitions : Rob Radcliff : Texas Non-Compete Lawyer & Attorney : Langley Weinstein LLP Law Firm : Dallas Employment & Employee Departures : Smooth Transitions Law Blog

Last week, Baylor Healthcare System made employment waves in Texas when it announced it would no longer be hiring individuals that smoked.  There is no prohibition that, as of yet, would prevent an employer from hiring or even firing an employee because of their use of tobacco products – they are not a protected class.

There have been a number of commentaries and articles about the policy, the links of which are below. The reasons for instituting such a policy vary. There is no doubt that smokers can affect workplace productivity. They take breaks during the day to smoke and those breaks affect workflow and continuity of the office. Additionally, there are the health issues to consider that come along with smoking ranging from respiratory issues to cancer.  Smokers can also drive up health insurance premiums.

It makes sense for a healthcare provider to implement such a policy, though I imagine there will be more to follow. There are not pros or benefits from smoking in the workplace. More and more employers, regardless of the industry are sure to implement such policies.

Links

The Baylor Policy

Lawyer Russell Cawyer's Thoughts

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Employers should always be careful and cognizant of venue provisions in their employment agreements. Many employers will simply include a venue provision making venue mandatory where the home office or headquarters is located, but this doesn’t always make sense in the context of an employment dispute. 

Recently, I reviewed a contract which required mandatory venue in the federal court where the company headquarters was located. Employees who would actually sign the agreement were located in a state a thousand miles away. While it’s nice to have venue in your own backyard, that doesn’t always work for enforcement of the agreement. 

In the context of most post-employment covenants, like non-competes or non-solicitation agreements, it is much easier to enforce these agreements in a venue where the actual defendant/former employee resides. In many of these cases, the employer will want to obtain equitable relief in the form of a temporary restraining order or injunction preventing the former employee from working or soliciting. 

It is much easier to institute and enforce these types of claims in the state or federal court where the actual employee lives, as opposed to one that is many thousands of miles away. In preparing employment agreements, employers should be cognizant of what makes sense in terms of enforcement, if enforcement is a key consideration. 

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The Case

The Fifth Circuit affirmed the opinion of a magistrate judge in the Southern District of Texas that found a law firm owed a search firm for the introduction of a group of lawyers the firm hired. Essentially, the search firm made the initial introduction, but a deal was not reached until some time later.     

The search firm argued that it was entitled to a fee because it made the initial introduction. The Court agreed. The opinion is interesting because it discusses whether or not the search firm was a “procuring cause” of the hiring. The Court's definition of procuring cause:

cause that in the natural and continuing sequence, unbroken by any independent intervening cause, produces the [hiring], without which the [hiring] would not have occurred

 

The Court noted that though there was testimony that the hiring was independent of the search firm’s work, there was also sufficient evidence to show that the search firm was a procuring cause and was entitled to a fee.

Lessons Learned 

The takeaway for search firms and recruiters on this opinion is to continue to monitor and follow their clients after negotiations.  A deal may be looming in the near future.  

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To Jury or Not to Jury

It is always interesting to hear people talk about the runaway jury and risks of letting a jury determine the fate of a business/employer.  Most jury members, like most people, are not employers but are employees.  It's a fair statement that they are likely to have some bias against the employer whether they admit it during jury questioning or not.  That natural bias can be overcome, but it is not easy.  For all intents and purposes, employers are the "Man".

In the context of employment agreements two popular alternatives to juries have developed - the arbitration and the jury trial waiver.  Though arbitrations are a good alternative, they can be expensive and impractical for the typical employment agreement.  Opting for a judge as opposed to a jury can be a good alternative.

The Typical Waiver

Waiver of Trial by Jury. Seller and buyer knowingly and conclusively waive all rights to trial by jury, in any action or proceeding relating to this Contract.

The Texas Supreme Court ruled that the provision above was enforceable.  Though this provision was in a business transaction, it can be amended for use in the employment context. 

Yes or No.

First, the waiver eliminates any potential jury bias (of course Judges have their own biases).  Second, in most cases a trial date for a non-jury trial will be earlier than a jury trial setting because the cases take less time.  Finally, a non-jury trial is typically shorter and as a result less costly.

Waivers make sense.  They are  easy to use, enforceable, and probably a better alternative to arbitration these days. 

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We are  pleased to announce that Lexis/Nexis has awarded this blog the distinction of being a Top 25 Labor and Employment Blog.  Thank you all for voting for the blog and following it over the years.  We will continue to work on bringing relevant content to the blog. If you have any suggestions please let us know. 

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A recent non-solicit case out of the Fifth District Court of Appeals in Dallas addressed the trial court’s denial of an injunction. 

The Facts

The Defendants were both employed by Jon Scott Salon as hairstylists. They signed Employment Agreements that contained several covenants addressing confidential information and the non-solicitation of clients after termination.

After resigning from Jon Scott, the Defendants opened a new salon ten miles down the road and there was evidence that they were soliciting  Jon Scott customers.

The Lawsuit

Jon Scott filed a lawsuit and obtained a temporary restraining order. The trial court denied the request for the injunction because the “non-solicitation clause in [appellant’s] employment agreement with [Defendants] was unenforceable as a matter of law because [the] employment agreement with [Defendants] were ‘at will.’  Jon Scott took the issue up on appeal.

The Appeal

The Fifth District Court of Appeals reversed and remanded, holding that the trial court was in error when it ruled that Jon Scott was not entitled to an injunction solely because the employment agreements at issue were “at will.” 

The basis for the trial court's ruling is unclear.  Texas courts have found non-solicitation agreements enforceable in the context of “at will” employment for many years. Unfortunately it doesn’t help Jon Scott Salon because they are still going to have to put on evidence and attempt to secure a temporary injunction from the trial court. The take away for the Defendants is not to specify in the Order denying the injunction why it is being denied. 

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Many Texas employer have policies that prevent their employees from keeping their guns in  employee parking areas.  As of yesterday, employees who have conceal carry licenses in the state of Texas can keep their guns in their cars as long as they are locked.  Of course there are exceptions in the law that went into effect September 1, and there is even an immunity provision for the employer.

Also, you can apparently hunt feral pigs from the air now for a fee. 

Don't Mess With Texas.

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