The Gomez Law Group

Model Severely Injured After Walking Into Plane Propeller

jferris — Mon, 30 Jan 2012 18:15:37 +0000

A professional model from Texas recently lost a hand in an accident at an airport when she walked into a moving propeller after deplaning a small airplane at night.

She was up and walking around after only a few days in the hospital with the help of a physical therapist.

The model and fashion blogger, 23-year-old Lauren Scruggs, suffered head, shoulder and brain injuries in addition to losing her left hand. She had gone up in the small, two-seat plane to view holiday light displays around Dallas from the air. Her family speculated that she was trying to return to the plane to thank the pilot when she unknowingly walked into the spinning propeller. Scruggs is the founder of LOLO Magazine and LOLOmag.com.

Small-engine airplane pilots are saying it is rare to let a passenger out of the plane with an open propeller until the engine is cut off and the prop has come to a stop. The plane, an Aviat Husky, has an engine that is far louder than the propeller and it might have been difficult to know in the dark that the loud noise was the engine and not the prop, according to ABC News.

The pilot of the plane is a friend of the Scruggs family and Lauren’s parents have said they have no plans to take legal action against him. But passenger safety is generally regarded to be the responsibility of the pilot – even on the tarmac.

The Federal Aviation Administration is looking into the incident. There is no word whether the engine was running when Scruggs was hit or whether the propeller was powering down. Some pilots have speculated that since it did not kill her, it might have been powering down. It is rare to survive such a catastrophic event.

In many catastrophic injury cases blame can be difficult to place on anyone but the person who was injured. It has been speculated that in this case the pilot may be at fault since the propeller was still running when Scruggs left the plane.

The plane’s propeller struck Scruggs on her left side, fracturing her skull and her collarbone. She was able to open and use her right eye within days of the accident, but her left eye was still bandaged. Doctors said the left eye would be their next focus after they amputated her left hand. Scruggs damaged the globe of her left eye, but doctors were able to repair it in surgery.

Seth Wilburn writes for the Gomez Law Group, a Dallas employment lawyer and Dallas business lawyer. To learn more, visit http://www.gomezlawyers.com.

Texas Court Keeps Franchise Tax on Partnerships

jferris — Tue, 17 Jan 2012 18:12:01 +0000

The Texas Supreme Court recently ruled that a business tax does not violate the state constitution and cleared the way for lawmakers as they attempt to change the tax in 2013.

The tax enacted in 2006 was the first in the state to require partnerships to pay a franchise tax, according to Bloomberg. The tax is not meeting expectations, and raising only about $4 billion a year for schools, prisons and other functions. Texas gets most of its revenue from property taxes, but since property values have been down, the state has had a revenue shortfall.

An insurance adjuster claimed that the tax acted like an income tax on some partnerships. In Texas, voters must approve of any new income taxes. The court found that a business tax does not apply to the partners in a partnership and the tax can stand.

This is good news for tax reform groups who think the Texas Supreme Court’s decision broadens the legislature’s ability to change the tax. Lawmakers had been waiting for a decision on the tax’s constitutionality before taking up tax reform in the legislature, according to the Austin American-Statesman.

Texas law has required a popular vote to enact a state income tax since 1993. The franchise tax came about after a 2005 Texas Supreme Court ruling declared the state’s education finance system was unconstitutional.

After the state’s Supreme Court ruling, the legislature slashed property tax rates and closed a loophole that allowed some businesses to avoid the franchise tax by changing how they were formed. The original idea was that the expanded franchise tax would make up for the changed property tax, according to the Fort Worth Star-Telegram.

The new wider-ranging franchise tax hit smaller businesses. An insurance claims adjusting company called Allcat Claims Service sued the state’s comptroller’s office saying the tax amounted to an income tax on individual partners. Some small firms argued the franchise tax is complicated and puts a costly compliance burden on businesses.

The Star-Telegram also reported that school systems are suing the state again because the financing system is creating unconstitutional inequities.

The court disagreed by a vote of 7-2. One of the dissenting opinions stemmed from the state legislature’s insistence that any challenge to the tax go directly to the high court and that the court be required to address it within 120 days. Justice Don Willett ruled that the court would overstep by acquiescing to the mandate.

Seth Wilburn writes for the Gomez Law Group, a Dallas employment lawyer and Dallas business lawyer. To learn more, visit http://www.gomezlawyers.com.

Severance Packages Should Be Closely Reviewed

jferris — Tue, 13 Dec 2011 13:37:03 +0000

As the country continues to slog
through a tough economy, there are still companies choosing to
downsize and many of those companies offer severance packages as a
matter of policy.

When an employee is let go and the
company offers a severance package, there are a few things to
remember about the process that could have an effect on that
employee’s ability to move on to the next job.

Companies are not required to offer
severance packages. About 60 percent of businesses in the United
States have a formal severance plan policy.

Those policies are written to provide a
soft landing for the exiting employee and legal protection for the
company. In many instances, a severance package is the easiest way
for a company to let people go quickly and quietly. Many companies
require exiting employees to sign legal paperwork promising they will
not sue the company for discrimination.

Attorneys suggest having a consultation
before signing severance package paperwork. If there are any reasons
an exiting employee may have to claim a discrimination suit against
the company, the opportunity is lost once the paperwork is signed.

Company severance policies will outline
who is eligible – salaried employees, hourly employees, contract
workers, and more. The policy also likely explains the circumstances
under which a severance is offered – involuntary reductions in
staff – and what needs to happen for a severance to be withheld
such as termination for cause.

The company policy likely will cover
how the severance will be calculated – often a factor of length of
service. And the company will have rules about what type of legal
paperwork the exiting employee will be required to sign.

Severance package legal paperwork may
also include non-compete clauses that could limit an employee’s
ability to seek out a similar job in a similar industry.

Most corporate severance packages
include some negotiable elements and exiting employees can sometimes
get a better deal in the right circumstances. Compensation elements
that can be negotiable include pay, unused paid time off and
insurance.

All companies’ severance packages
differ depending on the type of employee. For some employees, the
offer will be two weeks salary. For higher-level employees it could
be six months or a year’s salary. Many companies calculate an offer
based on the length of service and level of employee.

Paid time off can be negotiable in some
cases. If an employee has unused PTO and/or sick days, then a company
may be willing to factor that into an offer. Occasionally, state law
can require companies to pay for unused PTO.

Lastly, companies sometimes will
require an exiting employee to waive the right to collect
unemployment compensation benefits. There are many details in a
severance package that should be carefully looked at it by an
experienced employment attorney before signing.

Seth Wilburn writes for the Gomez Law
Group, a Dallas employment lawyer and Dallas business lawyer. Dallas
business attorney Ty Gomez has experience reviewing severance
packages for employees and severance policies for companies.

To learn more, visit
http://www.gomezlawyers.com.

Seth Wilburn writes for the Gomez Law
Group, a Dallas
employment lawyer and href=”http://www.gomezlawyers.com”>Dallas business
lawyer. To learn more, visit Gomezlawyers.com.

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Texas Supreme Court Ruling Narrows Scope of Anti-Retaliation Law

jferris — Mon, 21 Nov 2011 16:31:42 +0000

The Supreme Court of Texas this year decided that some state employees cannot file retaliation claims if they were fired after filing for workers’ compensation.

Employees of Texas political subdivisions, or government groups that are confined by a specific geographic area like a water district, are exempt from retaliation laws set up to protect workers from being fired after filing a claim or complaint against the employer.

The court ruled in Travis Central Appraisal District v. Diane Lee Norman that Texas state law clearly leaves these political subdivisions exempt from the anti-retaliation law in the case of workers’ compensation.

In 2005, the Texas Legislature revised the Workers’ Compensation Act and broadly gave sovereign immunity to political subdivisions, according to the Insurance Journal. On this change, the judge in the case, Justice David Medina, reversed the court of appeals ruling. Because the reversal was based only on a law that focused on workers’ compensation cases, political subdivisions still are vulnerable to retaliation claims that stemmed from other filings like whistleblower suits.

The case helped to draw a sharper line between sovereign immunity and governmental immunity. Sovereign immunity protects the state and its boards and agencies, while governmental immunity protects specific political subdivisions like cities, counties and school districts.

The Travis Central Appraisal District originally held that the worker could not file a retaliation lawsuit until she had exhausted her other options administratively under TCAD regulations. The trial court rejected TCAD’s plea in part because Norman was a probationary employee to whom the grievance process may have been unavailable.

The appeals court heard the same argument from TCAD, but also considered the district’s claim that the political subdivision had immunity from her claim despite previous rulings to the contrary (City of LaPorte v. Barfield). The appeals court also rejected TCAD’s claim.

The Texas Supreme Court found that it was legislative changes to the state’s workers’ compensation act that gave immunity to the TCAD. The state’s Political Subdivisions Law requires that such entities pay workers’ compensation benefits to employees. An anti-retaliation rule was eventually adopted as part of the law.

Texas has an Anti-Retaliation Law that would have helped Norman, but Medina points out that the state has “tinkered” with the Political Subdivisions Law several times since the Barfield case, which the trial and appeals court use to decide Norman’s suit.

The Political Subdivisions Law changes include a broad statement that prevents sovereign immunity from being waived.

The Supreme Court dismissed the case and suggested that the state legislature revise the Political Subdivisions Law to be more specific in its wording.

A qualified employment attorney can help a company react to workers’ compensation claims within the law.

Seth Wilburn writes for the Gomez Law Group, a Dallas employment lawyer and Dallas business lawyer. To learn more, visit Gomezlawyers.com.

OSHA Strengthens Whistleblower Investigation Manual

jferris — Tue, 15 Nov 2011 16:28:43 +0000

Employees who see violations in their workplace but are scared to bring them up because they fear for their jobs now have more broad access to The Occupational Safety and Health Administration’s whistleblower department.

OSHA made clarifications to its Whistleblower Investigation Manual in September that open up avenues of access. Complainants now can file concerns in any language orally, in writing or on OSHA’s website.

A new requirement in the updated manual instructs investigators to make every effort to interview the whistleblower.

In the past 18 months, at least two organizations contacted government officials in writing – including Assistant Secretary of Labor David Michaels and U.S. Department of Health and Human Services Secretary Kathleen Sebelius – complaining that whistleblowers were not interviewed by OSHA investigators in their own case.

The new requirement could fix that issue. The investigator’s supervisor will now have to approve the attempts made to interview the complainant, according to OSHA’s website.

The new manual clarifies investigation protocol including how to conduct and record interviews with witnesses. It also expands guidance on how to deal with uncooperative witnesses. Increased training of investigators is a big part of the revised manual.

In September, OSHA held a whistleblower investigator conference and investigators now will take a two-week training course including webinars on food safety laws and amendments to the Sarbanes Oxley Act.

Some of the more sweeping changes in OSHA’s whistleblower investigation manual are internal. The Office of the Whistleblower Protection Program now will report directly to the Assistant Secretary of the Department of Labor. Previously, the Directorate of Enforcement Programs oversaw OWPP.

“The prospective of this restructure is to increase consistency, timely investigations, and better customer service,” according to the website.

OSHA recently hired about 25 new investigators. The administration has a new line item in the FY 2012 budget for the whistleblower program with a requested $6 million increase to fund 45 more investigators.

OSHA plans to significantly increase its visibility in the areas where the group gets the most complaints to provide education and compliance help, according to the website. To make sure complaints are handled in a reasonable timeframe, OSHA also modified and strengthened the audit program. The data collection program also was modified. The administration knocked out a backlog of 150 cases, according to its website. A new directive pushes for consistent and quick appeals too.

A qualified business law and employment attorney can help your company draft policies that will comply with OSHA regulations. Should an internal matter arise, a qualified lawyer can advise on how to conduct investigations and how to handle employees so that a company adheres to the laws.

Seth Wilburn writes for the Gomez Law Group, a Dallas employment lawyer and Dallas business lawyer. To learn more, visit Gomezlawyers.com.

Fraud Alert Issued for Texas For Profit Proprietary Schools

jferris — Tue, 25 Jan 2011 20:36:38 +0000

An investigation recently found that for-profit colleges, also called proprietary colleges, are devising scrupulous recruiting practices that target single parents and low-income wage earners. These colleges then rake in federal funding by inflating their tuition costs to receive Federal Student Aid and Pell Grants.

For-profit colleges’ are growing rapidly because two-year community colleges are becoming more and more over-crowded. The National Association of College Admission College issued a Higher Education Act Fraud Alert through reports that were made by Government Accountability Office.

GAO’s investigation found that at 15 of the schools they investigated, for-profit college recruiters inflated the numbers that potential students could be earning after graduation, what ere found to be exaggerated, unrealistic potential salaries. They also found that a typical for-profit massage therapy certificate tuition was $14,000, as opposed to a mere $520 at a community college, according to their investigation.

“If you think that you have been defrauded by a for-profit school by misrepresented facts and accreditation status, seek legal counsel,” said Ty Gomez of Gomez Law Group of Dallas. “

Undercover agents found not only defrauding and other unscrupulous practices, but also aggressive marketing tactics. Recruiters were found to pressure student to sign enrollment contracts even before speaking to a financial aid advisor and often confusing them about the true cost of their programs. As soon as some of the GAO officers registered an online application, no later than five minutes after did they begin to receive phone calls that bombarded them all into the day and night by the for-profit colleges.

GAO presented their findings to a Senate Education Committee in August and heard from witnesses that said they were harassed from relentless phone solicitation from these for-profit colleges.

It is believed that the federal funds that the for-profit colleges receive are used for aggressive marketing strategies. It has also been revealed that sometimes the college credits earned from these for-profit schools are not transferable and not even recognized under the national Accrediting Council for Independent Colleges and Schools because many schools disregard this rating and will not recognize the credits received from these for-profit schools.

Gomez Law Group is a Dallas employment lawyer and Dallas business lawyer. To learn more, visit http://www.gomezlawyers.com.

First Transgender Judge in Texas History Arrives in Court

jferris — Sat, 15 Jan 2011 20:32:02 +0000

Phyllis Frye, formerly Philip Randolph Frye, recently became Texas’ first transgender judge. Frye was appointed by Houston Mayor Annise Parker, and unanimously approved by city council, to Associate Municipal Judge on November 17, marking an historical event for the transgender legal community.

Frye has been an active legal advocate and activist for the transgender community, championing transgender, gay and civil rights. For a long time, it was a crime in most cities across the country for anyone to cross-dress in public spaces. There have long been active city ordinances in place, which Frye helped repeal in 1980. Over 30 years ago, Frye risked to be arrested every time she entered City Hall.

As Associate Municipal Judge, Frye will be an Assistant Judge to City of Houston’s Municipal Courthouse, doing night court dockets and probable cause dockets on the weekends, and will also sit on low-level misdemeanor trials as a substitute judge.

Frye will continue to be senior partner at her law firm, Frye and Associates, who are well known for defending and advocating for the gay, lesbian, bisexual and transgendered community. So far, Frye is the third transgender judge in the nation (but the first in Texas). The other two judges are in California.

“Phyllis Frye is a very well-known radical transgender activist. We don’t think it is consistent with the values of the vast majority of the people. We think it is an anti-family lifestyle and agenda,” said Dave Welch, the executive director of Houston Area Pastor Council.

Many right-wing Christian groups were not happy to hear about Frye’s new position because they fear this might be a precursor of something much larger if and when Frye continues up the chain of judgeship, to the higher echelon of the court system.

“As we all know, municipal court judges are the first step in the elevation of different judgeships. They typically go on to civil district court judges or family court judges and beyond, so this is not a benign appointment. It’s a statement. It really is. We’ll be calling on the churches to stand up and be involved,” Welch said.

Seth Wilburn writes for the Gomez Law Group, a Dallas employment lawyer and Dallas business lawyer. To learn more, visit Gomezlawyers.com.

Do Not Be Surprised If Employers Fire Over Facebook Statuses Warns Dallas Attorney

jferris — Wed, 05 Jan 2011 20:32:35 +0000

With all the news covered about family law cases and employment law cases where social networking sites are used as evidence, federal authorities have deemed it illegal, in a first case of its kind, to fire someone over posts they made on their Facebook account concerning their employer or workplace.

In one employment case, a woman who worked for the American Medical Response of Connecticut was fired for making disapproving comments about her supervisor on her Facebook page. Dawnmarie Souza, an emergency medical tech, was allegedly fired for criticizing her employer on Facebook. In response, the National Labor Relations Board stated that it was illegal to fire her over her comments on her personal Facebook page because she was communicating with her co-workers on her own time and off-site.

However, American Medical Response of Connecticut had a written employee policy that says that no employee can talk about the company or its supervisors on the Internet in any way. NLRB claims that this policy is therefore unlawful.

“Don’t be surprised to find more of these types of cases because of more and more people using Facebook and other social media as their daily interaction with friends and families,” said Ty Gomez of Gomez Law Group of Dallas.

The complaint was filed Oct. 27 by the NLRB’s Hartford, Conn., regional office. It is thought that this case can set a precedent for employers to think twice for firing or retaliating against their employees who use their social networking sites on their own time to share incidences or opinions about their working conditions.

The incident started when Souza had to prepare a response to a customer’s complaint about her work. NLRB said Souza was unhappy because her supervisor would not let a representative from the Teamsters help her prepare her response. Souza therefore logged onto her Facebook account from her home computer and commented about her experience, to which her colleagues responded in support of Souza.

Federal labor law has long protected employees from retaliation or reprisals from employers against their employees who talk among themselves about work and work conditions (even when employees aren’t protected by their union) on their own time, and NLRB’s stand is that Souza’s comment on Facebook is protected speech under federal labor law. A hearing is scheduled on Jan. 25 and to be heard by an administrative law judge.

Gomez Law Group is a Dallas employment lawyer and Dallas business lawyer. To learn more, visit http://www.gomezlawyers.com.

Two Dallas Companies Cited for Lead Exposure

jferris — Sat, 01 Jan 2011 20:27:20 +0000

OSHA cited two Dallas companies, Fortune Plastic and Metal Texas LLC, for allegedly repeating violations of exposing certain employees to lead. They failed health and safety inspections at their worksites and are facing $125,000 in penalties.

A complaint was made alleging the companies were exposing their workers to lead after the workers were found to be cutting lead cables being readied for recycling. OSHA launched an inspection on May 12 and found them to be repeatedly failing to comply with OSHA requirements, such as monitoring workers’ exposure to lead at various frequencies and for not notifying or supplying workers of the monitoring results.

According to OSHA, a serious hazardous violation is one that could have caused death or serious physical harm. Serious hazardous violations are the employer’s responsibility. In some cases, employers have already known or should have known of the potential risk to which their workers are exposed.

OSHA has many procedures to manage hazardous situations, from controlling hazardous energy, to implementing safer, flexible cords and using open-sided floors and platforms. In the instance of Fortune Plastic and Metal Texas LLC, procedures to prevent exposure to lead concentration higher than 50 micrograms per cubic meter for over an eight-hour stretch were not implemented, neither were work controls to reduce lead exposure to their workers.

OSHA states that lead exposure is one of the most common overexposure elements at worksites all over the nation; therefore, they treat lead exposure as top priority. OSHA puts violating companies on a national priority list, giving them 15 business days to comply with the regulations or request a conference to argue the citations.

Lead exposure affects human bodily systems and can cause various health impairments and diseases after long, acute exposure, or even after as few as several days. Being exposed to lead over several years is referred to chronic exposure. More severe and frequent medical symptoms increase with the concentration of lead in the blood.

Symptoms of lead poisoning include loss of appetite, stomach cramps, vomiting, constipation, nausea, insomnia, general malaise, moodiness, headache, joint or muscle aches, anemia, and low libido.

Severe lead poisoning due to occupational exposures can be as serious enough to cause fatalities. Long-term, chronic overexposure can have adverse effects on many bodily systems, such as the circulatory, urinary, nervous and reproductive systems.

Seth Wilburn writes for the Gomez Law Group, a Dallas employment lawyer and Dallas business lawyer. To learn more, visit Gomezlawyers.com.

A Texas Mother Sues Bayshore Hospital for ER Care Resulting in Brain Injury in Daughter

jferris — Thu, 30 Dec 2010 00:18:23 +0000

Two doctors, two registered nurses, C/HCA Inc., and Bayshore Hospital are being sued by Taneisha Woods on behalf of her daughter for their alleged part in the daughter’s brain injury.

Woods claims that they were responsible for mistakes made that deprived her daughter – who was a toddler at the time on Nov. 9, 2008 – of hours of much needed oxygen. The doctors, nurses and hospital have been charged for negligence because Woods’s daughter now suffers from a seizure disorder and hypoxic ischemic brain injury from prolonged lack of oxygen to the brain.

The was case filed on Nov. 10 in Harris County District Court, Case No. 2010-74796. It is reported that the child was left alone with the mother for hours after the medical staff had treated her inability to breathe with a breathing treatment. Three hours after the Woods’ daughter was brought to the hospital, she was finally stabilized, but only after a nurse who came to check the child’s progress found that the treatment they administered hours earlier did not work.

According to reports, the 18-month-old’s oxygen level had dropped tremendously, noting respiratory distress. Dr. Miller was called to the room but did not get involved until 30 minutes later. Dr. Muncy, an anesthesiologist, was finally able to open the child’s airway three hours after she was originally admitted. Fortunately, the child survived the medical ordeal, but not without permanent damages.

“We often trust the doctors and nurses to look after our loved ones when they are in medical distress, but medical negligence is inexcusable and displays a lack of professionalism,” said Ty Gomez from Gomez Lawyers Law Firm in Dallas. “People shouldn’t have to suffer unnecessarily as a result of negligence, especially when it all could have been prevented.”

Woods will be asking for compensation for her daughter’s condition from physical disfigurement and impairment to medical expenses and other compensatory combinations as a result alleged medical negligence. Woods will also be asking for punitive damages. Her Attorneys Monica C. Vaughan and Julie Mayes Hamrick, of Houston, are requesting a jury trial.

If you think you or a family member has suffered injuries due to medical negligence, contact a qualified and experienced lawyer immediately.

Gomez Law Group is a Dallas employment lawyer and Dallas business lawyer. To learn more, visit http://www.gomezlawyers.com.