Veronica Rossitto, Author at Stibbs & Co., P.C.

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Service in Texas: New Rules Permit Service Via Social Media and Email

Written by Adam R. Fracht

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Everyone recognizes the infamous “you’ve been served” phrase from the movies, where a random individual hands a person—the defendant—a sealed envelope and proceeds to run away before the defendant gets angry. But what many people do not realize is that, in today’s age, service may take on many new forms. In fact, you may want to check your email inbox, Facebook wall and Instagram DMs (direct messages) for one of those classic “you’ve been served” messages. Welcome to lawsuits in the 21^st century.

Traditionally, service of a lawsuit requires a constable, sheriff, or private process server to personally deliver the lawsuit to the defendant. But sometimes physically finding the defendant is easier said than done. While service via mail or even publication in the newspaper is sometimes considered, such options have their own problems.

When a defendant is really hard to find, courts frequently grant the plaintiff permission to serve the defendant in other reasonably effective ways, such as posting the lawsuit to the front door of the defendant’s house. Such service is called “substitute service.” Substitute service works great on occasion, but what if the person’s front door is behind a six-foot fence, or in a gated community? Not so easy.

Meanwhile, tucked behind that six-foot fence or nestled within that gated community, the defendant frequently remains active and easy to contact on social media sites like Facebook and Instagram, and via their email address.

In apparent recognition of this dilemma and our modern-day digital presence, the Texas Supreme Court recently sought to “digitalize” the law on serving lawsuits. Effective January 1, 2021, the Texas Supreme Court now permits lower courts to substitute serve defendants by social media, email, or other technology. That means plaintiffs will have much greater means for serving defendants who remain physically elusive but digitally accessible.

Some care must be taken in this new approach. The Texas Supreme Court orders that a lower court—in determining whether to permit such electronic service of a lawsuit—should consider whether the “technology” (likely meaning the electronic account or email address at issue) actually belongs to the defendant and whether the defendant regularly uses or recently used the “technology.”

So be sure to keep up to date with your Facebook wall and to check your Twitter DMs; there may just be a lawsuit waiting for you in there!

If you have questions regarding the above, or think someone may have attempted to serve you through social media or email, please contact Stibbs & Co.

These materials are made available by Stibbs & Co., P.C. for informational purposes only, do not constitute legal or tax advice, and are not a substitute for legal advice from qualified counsel. The laws of other states and nations may be entirely different from what is described. Your use of these materials does not create an attorney-client relationship between you and Stibbs & Co., P.C. The facts and results of each case will vary, and no particular result can be guaranteed. The facts and results of each case will vary, and no particular result can be guaranteed.

Topic: Commercial Litigation

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May Employers Mandate COVID-19 Vaccinations?

Written by Morgan N. Muñoz

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This year has been a year to forget for many, but the Food and Drug Administration (“FDA”) has brought us a gift just in time for the holidays. On December 11, 2020, the FDA authorized the emergency use of Pfizer-BioNTech COVID‑19 Vaccine. Shipments are expected to begin immediately, and the Centers for Disease Control (“CDC”) has recommended health care workers and long-term care facility residents receive the first doses. It is expected that by the end of 2020, there will be enough vaccines available to inoculate 20 million people.

As Ralph Waldo Emerson famously said, “the first wealth is health,” and consequently, the COVID-19 pandemic is not just a health crisis, but an economic one too. Social distancing restrictions, implemented to stop the spread of a highly contagious, airborne virus, have caused a global recession, and many businesses will not recover. However, for those businesses that have managed to stay afloat, they may be wondering: Can I require my employees to get the COVID-19 vaccine?

The Americans with Disabilities Act (“ADA”) prohibits disability-related inquiries or medical examinations unless they are job-related and consistent with business necessity. If an individual will pose a direct threat to the health or safety of the others, despite a reasonable accommodation, then the ADA protections do not apply. The Equal Employment Opportunity Commission (“EEOC”) has stated that COVID-19 poses a direct threat to the workplace. While the EEOC has not yet weighed in on mandatory vaccine policies, the short answer is that it is likely permissible to mandate that most employees receive the vaccine.

During the swine flu pandemic, the Occupational Safety and Health Administration (“OSHA”) administered an opinion in 2009 finding that an employer may require an employee take the seasonal flu and H1N1 vaccine. However, OSHA warned that an employee who either has a sincerely held religious belief or a medical condition that creates a real danger of serious illness or death may refuse the vaccine. If an employee requests an exemption, employers should tread cautiously; while a general moral or medical objection is not sufficient grounds warranting an accommodation, employers should be careful not to overstep when verifying that an employee qualifies for an accommodation under the ADA or Title VII.

Confidence in this new vaccine is on shaky ground, with a recent study by the Pew Research Center indicating that about 39% of Americans would probably not get the COVID-19 vaccine if one were immediately available. Employers should consider that if they implement a mandatory vaccine policy and an employee suffers an adverse reaction, that employee would likely have legal recourse by filing a workers’ compensation claim against the employer. Of course, because of the polarizing and personal nature of this topic, the employer may prefer to use the carrot rather than the stick approach by incentivizing employees to get vaccinated rather than mandating it. One option to motivate compliance is to reduce the required personal protective equipment or permit more social activities of those who have opted for vaccination.

Employers are encouraged to continue monitoring the CDC and EEOC for new recommendations and regulations that may impact their business. Stibbs & Co., P.C. has experienced labor & employment attorneys who can provide guidance on these emerging legal issues.

Employers are also encouraged to seek legal counsel prior to taking actions to avoid violations of federal or state employment laws including, but not limited to, Title VII of the Civil Rights Act of 1964.

Topic: COVID-19

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Is Santa Trespassing?

Written by Bret W. Davis

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Imagine the scenario: It is late on Christmas Eve. Mr. and Mrs. Grinch have hung the stockings by the chimney with care, milk and cookies have been carefully placed by the lighted tree, and the Grinch children all nestled and snug in their beds. Suddenly, up on the rooftop there arose such a clatter created by eight tiny reindeer and one jolly ol’ St. Nick. The bearded and red-suited man with a little round belly now stands in your living room with a bag full of toys. You have one question in mind – Has Santa committed an intentional tort by trespassing onto the Grinch’s real property? That is, has Papa Noel, aka Kris Kringle, made an unauthorized entry onto and/or into the Grinch’s abode? Assuming the Grinches had legal title and actual (or constructive) possession of the home at the time of Santa’s entry, the answer is a resounding silver bell, “maybe!”

In order for the Grinches to meet their burden of proof, they would need to show a Texas court that Santa entered the Grinch’s real property; that the chief elf’s entry was physical, intentional, voluntarily, and unauthorized; and some injury was caused to the Grinch’s right of possession. However, Santa himself does not need to actually enter onto the Grinch’s property to make him liable. Ol’ St. Nick could still be held responsible if he caused or assisted in causing “Hermey, the Dentist Elf” to enter onto the property or even if he caused “something” to physically invade the Grinch’s real property. In other words, Santa could possibly be held liable if he flew his “Sleigh One” drone down the chimney to determine who was awake. It matters not Santa’s motive for entering the Grinch’s property, the torts element requires only that St. Nick intended to enter the real property.

However, the crux of this cause of action, generally lies in the analysis of whether entry was “authorized.” Because the burden of proof is on the Grinches, we must examine whether they may have authorized Santa’s entry onto their property by either actual, apparent, or implied consent. The Grinches could simply assert that neither Santa nor North Pole, Inc., had received nor even requested authorization to enter their real property, and therefore there was no consent. It is foreseeable the “Big Man” would counter that he was given permission by the Grinch’s children to land his team on the Grinch’s roof and come down the chimney with lots of toys. However, Santa’s argument would probably be short lived after the Grinches convinced the Court that the children had neither the capacity nor authority to grant Santa and his team permission to “trespass.”

Instead of Christmas adversity hinging on “Rudolph’s Red Nose,” the question of whether Santa intentionally trespassed upon the Grinch’s real property would come down to implied consent. Santa should advocate an affirmative defense that he had “implied consent” to land his reindeer on the Grinch’s roof and come down their chimney. He should take the position that based on the Grinch’s own conduct and actions, he clearly was provided with implied consent. (Note to readers: I am a neutral advocate, however I also want to avoid the “naughty” list). Santa should put on evidence of the Grinch’s hanging stockings above the fire place, lighting their Christmas tree, and finally (the smoking gun) the laying out of milk and cookies! Based on the totality of these circumstance, I believe the actions and conduct by the Grinches would give ample indication of their implied consent and authorization for Santa to enter onto their real property.

I want to encourage each of us this holiday season, “Don’t be a Grinch!”

We at Stibbs & Co. wish each of you joy, peace, and happiness for this coming New Year – 2021!

Topic: Trespassing

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Wage and Hour Pitfalls of Telework

Written by Haley Paul

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Thanks to COVID-19, many employers are still permitting some or all of their employees to work remotely. While telework presents a whole host of complications for employers, one of the primary concerns—or what should be a primary concern—among employers is properly tracking and calculating work time.

Under the Fair Labor Standards Act (the “FLSA” or “Act”) and its regulations, an employer is required to pay its employees for all hours worked, even work that was not requested but was allowed, including work performed at home.

Under typical circumstances, the Department of Labor (the “DOL”) generally considers the time between an employee’s “first and last principal task” in a work day to be compensable (with some exceptions). But given the fact that many workers are simultaneously having to care for children during school and childcare closures and/or caring for sick family members or are dealing with new and unique complexities of working from home, the DOL has made it clear that employees need only be compensated for time actually spent working. This permits employers and employees to agree to flexible schedules that more closely align with current needs.

New questions have arisen due to these new work-from-home arrangements. Namely, how do employers accurately track their employees’ working hours? How do employers ensure that employees are not inflating their hours, given the lack of oversight? What if employees under-report their hours, which could open employers up to significant liability under the FLSA?

The FLSA regulations make it clear that if the employer knows or has reason to believe that work is being performed, the time must be counted as hours worked. An employer may have actual or constructive knowledge of additional unscheduled hours worked by their employees, and courts consider whether the employer should have acquired knowledge of such hours worked through reasonable diligence.

So how do employers find a balance between creating policies that ensure employees do not over-report work hours and/or work unauthorized overtime while also ensuring that employees do not under-report their hours such that they invite liability for unpaid worktime? The DOL has indicated that the key is to provide a reasonable reporting procedure and carefully monitor employees’ hours. It may be time to invest in a better time-keeping software or app. Some of the newer programs have features such as random screen sampling and ability to track progress on specific projects.

If an employee fails to report unscheduled hours worked through such a procedure, the DOL has indicated that the employer is not required to undergo impractical efforts to investigate further and uncover unreported hours of work and provide compensation for those hours.

On the other hand, if the employer believes an employee is inflating hours or the employee is taking too long on a particular job assignment, it is time for a verbal or written warning, a performance improvement plan or perhaps even some informal coaching, depending on the circumstances (including, whether this is the first instance or an ongoing problem and whether the employer believes the issue to be an intentional misstatement or an issue of inefficiency).

If you are permitting employees to telework and you have concerns about potential under or over-reporting of workhours, it is important to discuss your concerns with an experienced labor and employment attorney. Wage and hour violations can be grossly expensive and time consuming. It is always better to catch and correct the problem early, rather than through a DOL investigation or lawsuit.

Topic: Employment Law

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Supreme Court Bars Discrimination Against LGBT Workers in Landmark Decision

Written by Haley Paul

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On June 15, 2020, the United States Supreme Court issued an opinion on three separate cases: Bostock v. Clayton County, Georgia, No. 17–1618; Altitude Express, Inc., et al. v. Zarda et al., as Co-Independent Executors of the Estate of Zarda, No. 17–1623; and R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission et al., No. 18–107. The Court held that an employer who fires an individual merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964 (“Title VII”). The 6–3 ruling came as a surprise to many, particularly given that conservative Justice Neil Gorsuch—appointed by President Trump in 2017—authored the opinion (a copy of which can be found here: Supreme Court of the United States Slip Opinion, Bostock v. Clayton County, Georgia).

For several years now, the Equal Employment Opportunity Commission (“EEOC”) has interpreted and enforced Title VII as forbidding employment discrimination based on sexual orientation and gender identity under the broader prohibition on sex-based discrimination. However, the Supreme Court’s June 15 decision was the first time the highest court in the country weighed in on this interpretation.

The court adopted the view promulgated by the EEOC—namely, that sexual orientation and gender identity discrimination are forms of sex-based discrimination because such discrimination requires an employer to intentionally treat individual employees differently “because of” their sex. In other words, an employer who intentionally treats a person worse because of sex—such as by firing the person for actions or attributes it would tolerate in an individual of another sex (like acting feminine or masculine)—discriminates against that person in violation of Title VII. Employers should be prepared for greater scrutiny when terminating LGBT employees and should take care to analyze current employee policies to ensure that LGBT employees are afforded the same protections as other protected classes. It may also be a good time to schedule discrimination and harassment awareness training to ensure that employees, and managers in particular, are aware of the prohibition against employment discrimination based on sexual orientation and gender identity. Stibbs & Co. attorneys have extensive experience drafting employee handbooks and conducting employee and manager trainings and are here to help.

Topic: Employment Law