Sealing the Deal: Contracts – A Smart Investment

June 25th, 2009

The Importance of Employment Contracts

 
An employment contract is a legal agreement between an employer and employee in which the terms and conditions of employment are spelled out.  Though there is a body of statute law which governs specific aspects of the employer/employee relationship, such laws only form part of the basis upon which the employment relationship is based.  Other areas of the employment relationship are based on the written terms and conditions given by employers to their employees, which function to work in conjunction with existing statute law to specify and define an employee’s rights and obligations.

 

An employer must within two months of the start of employment provide the employee with written terms and conditions of employment.  There are different formats in which these terms and conditions may be presented, which include the following:

 

1.             A formal legal contract which is signed by both parties.  The terms are often negotiable and can be tailored to include terms very specific to the individual position and the employee concerned.

2.             A “letter agreement” which may be detailed, or which simply sets out the minimum information required under the Terms of Employment Act of 1994.  This letter is normally signed by the employee as an acceptance of the position offered.  This letter might not contain sufficient detail to inform the employee fully of their terms and conditions and may not be adequate to protect the employer.

3.             A handbook may be presented which will comprise of the terms and conditions of employment.  The employee is normally asked to sign an acknowledgment of receipt and acceptance of the terms and conditions of employment contained in the handbook.  The negative consequence of the handbook is that it applies for all employees and specific terms are not negotiable as they would be in a formal contract in the form of a traditional legal document.

The Term of Employment Act of 1994 requires some employers within two months of an employee beginning employment to set out in writing the terms and conditions of the job and to specifically include, but are not limited to, the following:

Name of employer

Name of employee

Place of employment

Job title

Location of work (and if location may also be elsewhere or outside the state than further details must be given by the employer)

Start date

End date (if a temporary contract)

Work hours and details of overtime pay

Pay and frequency of payment

Benefits, such as bonus scheme, health insurance, 401(k), retirement, use of company car, payment of tuition fees, etc.

Holiday entitlements

Details of any sick pay scheme

Details of pension scheme

Minimum notice to end the employment relationship must be given by both employer and employee.

 

Employees can ask for written terms and conditions at any time and the employer must provide same within two months.  If a person has been in employment since before the Terms of Employment Act of 1994 and has never been issued written terms and conditions or a contract of any type, the employee is still entitled to receive a written copy of these terms.  If, however, an employee has been in employment without a contract, an employer cannot force an employee to sign a contract of employment and employment will continue under the “custom and practice” created between the employer and employee.

 

The employment contract is equally as important to the employer as the employee.  Employers can use contracts to their advantage, especially in times when jobs are scarce.  Employment contracts often set out such things as probationary periods, sick pay scheme, additional leave which might be taken, pension scheme and any further benefits to be provided by the employer.

 

The great advantage to the employer is there, in some cases, are many items which can be included to protect the employer such as a restrictive covenant restricting a former employee from taking employment within a specified geographical area, a clause which would prohibit a former employee from doing business with the employer’s clients for a specified period of time or a confidentiality clause wherein the employee must keep all trade secrets of the employer confidential.  Employers can set out the minimum notice an employee must give to terminate employment.

 

Employment contracts should be well drafted and should include proper protection for both the employee and employer.  A well drafted contract may save a company thousands of dollars in legal fees.

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Litigation in Texas

June 2nd, 2009

The first step to begin a lawsuit in Texas is to finding a lawyer who is knowledgeable and experienced in the area of your legal concern. 

 

In Texas, the filing of an original petition or a complaint officially starts a lawsuit.  The complaint will state the facts of the case, spell out the legal issues as they relate to the facts and request the Court grant relief.  The complaint is then filed with the court and served on the Defendant who will have a set period of time to respond. 

 

After the complaint has been filed and the Defendant has entered his answer, the discovery phase of the lawsuit begins.  During the discovery process, the counsel for each side will gather as much evidence as is reasonable to present their case to the judge or jury.  Such discovery includes but is not limited to depositions (sworn testimony taken out of court); disclosure of witnesses, experts and other necessary information; interrogatories (written questions); requests for production of documents; requests for admissions; requests for business records, and electronically stored information (ESI), etc.   Discovery may last from a few months to a year, and in some cases several years.  Discovery rules can be very liberal, allowing a great deal of evidence to be revealed. 

 

In Texas most courts require the parties to mediate a case before allowing it to go to trial.  Mediation can be a useful process as it allows both sides to state their case to a neutral party who has experience in the issues being mediated and who will attempt to assist in the resolution of the case before the parties are forced to incur the expense of a trial.  In many cases, the mediation process is a good gauge for a possible trial outcome.  At a minimum, it allows each side to measure the strengths and weaknesses of the case.

 

The pre-trial conference takes place approximately one week prior to the case going to trial and presents yet another opportunity for counsel to settle the case or review the issues.  During the pre-trial conference the counsel speak informally with the judge and agree to the undisputed issues.  They share the evidence they intend to present during trial and the witnesses they plan to call to testify.  The parties, along with the judge, are then able to plan the course of the trial. 

 

After completion of the discovery, mediation and the pre-trial conference, should the parties be unable to settle the case, it will then be placed on the Court’s trial docket and proceeds to trial. 

 

The trial most commonly proceeds in the following manner:  Plaintiff’s attorney makes an opening statement detailing the facts of the case followed by the Defendant’s attorney detailing the defenses; Plaintiff’s witnesses and evidence are introduced, examined and cross-examined; Defendant’s witnesses and evidence are introduced, examined and cross-examined; Plaintiff and Defendant are allowed to introduce rebuttal evidence; and, finally, Plaintiff presents their closing argument, followed by the Defendant’s closing argument.

 

When a jury is hearing the case, a judge will instruct the jury as to the law that is to be applied to the issues.  The jury will then retire to the jury room until a verdict is reached.  Should the jury end in a deadlock, the judge will normally send the jury back to deliberate until a verdict is reached.  If a verdict cannot be reached, the judge must declare a mistrial.  If a verdict is returned, the judge will generally enter a judgment on the verdict.

 

 

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What Will Happen to My Pet When I Die?: Providing a Future for your Pet

June 2nd, 2009

As a responsible pet owner, it is important to ensure their quality of care continues should something unexpected happen to you. 

 

Is a will the best option?

 

A will takes effect only upon your death.  It may not be probated and formally recognized until weeks or possibly months later.  If legal disputes arise, the final settlement of property may be prolonged.  Even the determination the rightful new owner of a pet may be delayed.  This does not mean that you should not include a provision in your will to provide for your pet, it simply means that you should explore additional documents that compensate for a will’s limitations.

 

Setting up a Trust

 

A trust can provide for pets immediately because you determine when your trust becomes effective.  When you create a trust for your pet, money is set side to be used for the pet’s care and trustees are specified to control the funds. 

 

A trust can be written to exclude certain assets from the probate process so that funds are more readily available to care for your pet and can be structured to provide for a pet during a lengthy disability.  Furthermore, trusts are legal entities that are relatively expensive to administer and maintain

 

An attorney can make sure that the trust is specific as to the animal, valid and enforceable.  However, tying up a substantial amount of money or property in trust for an animal’s benefit may prove to be controversial. 

 

Power of Attorney

 

A power of attorney, which authorized someone else to conduct your affairs for you while you are incapacitated have become a standard practice.  The power of attorney can be written to become effective upon your physical or mental incapacitation and continue in effect upon your death.  They are much simpler than trusts and do not create a legal entity that needs to be maintained by formal means.  Provisions can be inserted authorizing your attorney-in-fact to take care of your pets, expend money to do so, and even place why our pets with permanent caregivers if appropriate. 

 

Like other legal devices, the power of attorney is a document that by itself cannot ensure your pet is fed, walked, medicated, or otherwise cared for.  It is simply a tool to assist your efforts in thinking ahead and finding temporary or permanent caregivers who can take over the care of your pet should the immediate need arise.

 

What is a reasonable sum to leave?

 

Documents should stipulate the amount and frequency of payments and whether they should be adjusted for inflation.

 

To answer this question you must take into account the age, health, estimated lifespan and number of pets involved.  It also depends on how much care you wish the animal to receive.  If the animal gets cancer or some other ailment, what kind of treatment do you want to provide?  You may also want to consider burial or cremation and ceremonial expenses. 

 

Leaving too little money may compromise the future care of your pet.  Leaving too much money may cause problems with potential heirs. 

 

Finally, you will want to make sure you include the cost involved in paying the caretaker and/or trustees for their time and effort.

 

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