Kaiser Legal Solutions, PLLCKaiser Legal Solutions, PLLC2023-08-11T09:40:27Zhttps://www.attorneysforbusiness.com/feed/atom/WordPress/wp-content/uploads/sites/1503731/2021/07/cropped-Kaiser-fav-icon-32x32.pngOn Behalf of Kaiser Legal Solutions, PLLChttps://www.attorneysforbusiness.com/?p=475222023-08-03T10:57:48Z2023-08-03T10:57:48Zamend and improve their processes to remove discriminatory practices, including hiring procedures.
The law enforces the following regulations on the following parts of an employer's hiring process:
Advertisements for open positions: These ads must show no discriminatory preferences or biases.
Recruitment process: Procedures must be fair, allowing everyone equal opportunities. For example, recruiting only young candidates could be unlawful if the employer refuses older candidates who are equally or more qualified for the job.
Application process: Employers must allow qualified applicants to pursue the job opportunity. Refusing them could be a form of discrimination. Additionally, employers can only impose tests that are relevant to the job. Requiring inappropriate tests could be unlawful.
Referrals: Referring a person for the job should be based on skills, qualifications and competencies. If not, they might be unlawful.
These rules require implementation in compliance with federal and local employment laws. Failing to comply might result in legal actions and sanctions.
Collaborating for a safer workplace
The workplace should welcome people from all walks of life. The law provides comprehensive guidelines on how to make company policies more inclusive. However, some problematic practices might go undetected unless raised by an employee. Employers could address these risks by providing channels to their employees, encouraging collaboration against discrimination. Doing so could help determine what to improve and how to do it.]]>On Behalf of Kaiser Legal Solutions, PLLChttps://www.attorneysforbusiness.com/?p=474642023-07-11T15:44:58Z2023-07-25T15:37:17ZEstate planning mistakes to avoid
As you embark on your estate planning journey, you’ll need to be aware of some common mistakes that you’ll want to avoid. If you don’t sidestep these pitfalls, then you might end up with unwanted consequences. Here are some of those mistakes to be on the lookout for:
Waiting too long to create your estate plan, which could put you at risk of passing away without a plan in place, thereby subjecting your estate to intestate succession.
Not naming secondary or contingency beneficiaries, which allows you to still direct the flow of assets even if your initial named beneficiary passes away.
Failing to plan for your own incapacitation and long-term care.
Naming an untrustworthy individual to handle your estate administration and your trusts.
Neglecting to update your estate plan as life, relationships, and assets change.
Not having a catch-all provision that addresses those assets not specifically mentioned in your estate plan.
Overlooking your minor children in your estate plan.
Create the estate plan that’s right for you
There’s a lot of thought that goes into an effective estate plan. That’s why it’s wise to start the process early and give yourself the time you need to think through the strategies that are best suited to bring about the future that you envision for your estate and your loved ones. Then, once you have a plan in place you can rest easy knowing that the matter has been properly addressed.]]>On Behalf of Kaiser Legal Solutions, PLLChttps://www.attorneysforbusiness.com/?p=474652023-07-25T04:59:34Z2023-07-25T05:00:16ZReasons for termination
There is never a perfect way to terminate an employee, but before you do, make sure you are doing it for the right reasons. It is illegal to fire employees for reasons such as their ethnicity, immigration status or gender.
You also cannot terminate an employee out of retaliation because they did something such as file a complaint against the business or submit a claim for workers’ compensation.
There are many valid reasons for terminating an employee, including poor work performance or excessive absences. They might also be coming to work intoxicated or harassing other employees.
Picking the right time
One of the biggest challenges you may experience is knowing when the right time is to terminate the employee. There is no right answer to this question as it depends on your specific situation.
Before deciding to terminate, consider giving the employee a chance to improve. Talk to them about the problem and offer potential solutions and an opportunity for them to correct it. This will also prevent the termination from coming as a surprise to the employee.
If it is clear the situation is not going to improve and termination is in everyone’s best interest, you may decide the time to terminate the employee has come.
In that case, be prepared. Have all documentation related to the reasons for termination ready and think about what you are going to say before talking with the employee.
Lack of preparation can lead to an awkward situation that could even result in legal action. Although the employee is likely not going to walk away happy, they will hopefully feel that they were treated with respect and understanding.
Choosing the right location
Have the meeting in the appropriate time and place. Again, this will depend on your situation, but generally times when your business is not busy are best. Choose a quiet, open space, such as a conference room, for the discussion.
Consider having someone else there with you. This has a couple of different benefits. You will have someone there to back up your version of what happened and what was said if the employee later accuses you of something illegal or unethical. Additionally, having another person there can protect you if the employee becomes disruptive or violent.
When talking with your employee, do not make the conversation personal. Focus on their work, not them as a person.
Do not be vague. Be detailed and specific when discussing the situation and their work. Use examples of times they have failed to meet workplace expectations.
Document everything
Back everything you say up with documentation. Have any business policies or procedures ready, including disciplinary policies and documentation showing exactly how the employee has violated the policies.
If your disciplinary policies require written warnings before termination, have copies of these written warnings to show the employee you have complied with your policy.
When the conversation is over and it is time for the employee to leave, have someone escort them out. Continue to treat them with respect throughout the process.
Terminating someone is never easy, but these tips can hopefully make the experience easier for both of you.
]]>On Behalf of Kaiser Legal Solutions, PLLChttps://www.attorneysforbusiness.com/?p=474632023-07-03T12:47:22Z2023-07-11T12:45:58Zthe bases for contesting a will in Texas. Of course, simply knowing the bases for challenging that will is not enough information.
Who can challenge the will?
Not everyone can challenge a will. Only those who have a direct interest in the outcome of the will can file a lawsuit to contest its validity. These are called interested parties. They include beneficiaries named in the will, fiduciaries named in the will, such as executors or trustees, heirs-at-law who would inherit from the deceased person if there was no will or if the will was invalid and creditors who have a claim against the estate.
Interested parties have up to 2 years from the date that the will was admitted to probate to file a will contest. However, there are some exceptions, such as when fraud or forgery is involved, or when a person is incapacitated or under duress.
How to file a will contest
The first step to challenging a will is to file a petition with the probate court where the will is being administered. The petition must state the name of the deceased person, date of their death, name of the executor or administrator of their estate and the grounds for contesting the will. The petition must also include information about the interested party’s relationship to the deceased person and reason for the challenge.
The next step is to serve a copy of the petition to all parties involved in the probate proceeding, including the executor or administrator of the estate and all beneficiaries named in the will. The interested party must also pay a filing fee to initiate the lawsuit.
The final step is to present evidence and arguments at a hearing before a judge or jury. The interested party has the burden of proving their case by a preponderance of the evidence, which means that it is more likely than not that their allegations are true.
The executor or administrator of the estate and the beneficiaries named in the will have the opportunity to defend the will and present their own evidence and arguments. The judge or jury will then decide whether the will is valid or invalid based on the evidence and the law.
If the will is found to be invalid, the probate court will either admit a previous valid will to probate or distribute the estate according to the Texas laws of intestacy, which govern how property is divided when there is no will. If the will is found to be valid, the probate court will proceed with administering the estate according to the will’s terms.]]>On Behalf of Kaiser Legal Solutions, PLLChttps://www.attorneysforbusiness.com/?p=474622023-06-13T18:12:50Z2023-06-27T18:11:48ZTexas prompt pay laws
Texas has enacted prompt pay laws to ensure medical insurers pay claims submitted by health care providers. Currently, these laws establish deadlines for when claims must be paid, denied or audited by insurers and impose penalties if these deadlines are not met. These laws apply to fully insured health plans. They do not apply to self-funded health plans, that is, benefit plans governed by the Employee Retirement Income Security Act of 1974 (ERISA). In addition, the penalties only apply to billed charges.
Problems with the prompt pay laws
There are some problems that can be found with Texas’ prompt pay laws. One issue some find problematic is that the claim submitted by the health care provider must be a clean claim. Problems can arise if the definition of a clean claim in a health care provider’s contract differs from the definition of clean claim as found in the rules promulgated by the Texas Department of Insurance.
Problems also can arise with billed charges. Billed charges are those representing the health care provider’s customary fees. Hospital billed charges can be significantly greater than what is actually paid. Moreover, what is included in hospital billed charges is generally self-determined.
This means that what constitutes billed charges at one hospital in Arlington could differ from those in other hospitals across the state. Thus, the associated penalties under Texas’ prompt pay laws are much in the control of the hospital who receives them, because they are based on billed charges.
Health care providers—both physician practices and hospitals—deserve prompt payment of claims. Still, some would say Texas prompt pay laws are not perfect, and more can be done to ensure the laws are fair both to insurers and health care providers.]]>On Behalf of Kaiser Legal Solutions, PLLChttps://www.attorneysforbusiness.com/?p=474612023-05-31T09:25:29Z2023-06-12T09:23:54Zchallenge with contract negotiations is that you want to maintain a good relationship with the other party, while still walking away with a contract that is favorable to your business.
Take it slowly
The first thing to remember is to be patient. It is tempting to rush through the process and get your contract in place so you can begin doing business, but approaching things this way could result in a contract with terms you realize you could have negotiated better.
Keep direct communication lines open with the other party. At the start of your negotiations, make sure that you agree on the main points of the contract and what both of you are trying to achieve.
Negotiate one piece at a time
It can help to draft an outline of your contract with your main points highlighted and then go back and negotiate the smaller parts one piece at a time. This can help both parties feel that they are making progress on the contract, which helps everyone stay positive.
The final version of your contract is likely going to be lengthy with complex details, but it should not start out this way. Use simple language and remember those main points as you fill in your terms.
Be prepared to compromise
Remember that negotiation usually involves some compromise. Going into your contract negotiation expecting to get everything you want is unrealistic.
You chose this person or business to enter a contract with for a reason, and vice versa. A contract should be mutually beneficial to both parties, which means the other party expects to get something too.
Don’t be afraid to ask questions
However, if you feel you are being pressured or taken advantage of, speak up. Ask what their goals are and how what they are asking of you helps them to achieve the goals. Their answer can help you better understand their position.
There are professionals out there who are experienced in contract negotiations, and they may be able to help you and your business.
]]>On Behalf of Kaiser Legal Solutions, PLLChttps://www.attorneysforbusiness.com/?p=474592023-05-11T09:56:22Z2023-06-02T09:55:38Zstate guidelines for these circumstances that employers should be aware of. As the case moves forward, it is also useful to have help.
What happens with unemployment claims after a harassment case?
Employees who say they are being harassed and that the harassment has reached a level where they can no longer stay in the job may decide to quit. This can be a difficult case when they seek unemployment benefits.
Employers are obligated to take specific steps to protect workers from harassment. That includes preventing it by having a series of guidelines for behavior and giving workers an outlet to lodge complaints if they feel they are being mistreated. The employer should also investigate and act when a harassment claim is made. Those who are found to have committed harassment can be sanctioned or even fired.
After an employer has done everything feasible to address the issue and believes it was handled in an aboveboard manner, but the complaining employee still quits, then the employer might not be obligated to pay unemployment. Some employees simply leave before the employer can do anything about the harassment. Doing this without notifying an employer about the harassment will likely shield the employer from needing to pay unemployment benefits.
Employees who are terminated after being accused of harassment might also have a difficult time getting unemployment benefits. Employers should not make any rash decisions when there are accusations of harassment.
The following is important in this type of case: the investigation must be comprehensive; the policies known; proof must be shown that the terminated employee was aware of the anti-harassment policy; there should be a report of the investigation and how the employee was warned to stop their behavior; and there needs to be evidence as to what occurred. Adhering to these steps will give employers a strong foundation when disputing an unemployment claim.
Employers are advised to be prepared for every eventuality
For employment law cases, it is often viewed from the perspective of the aggrieved employee. This is understandable given the amount of attention these issues have garnered in recent years. It is wise to note that employers have rights. Employment law for employers can be confusing and it is vital to try and forge workable solutions with limited long-term damage to the business.
Employers are advised to be fully prepared for every eventuality. Still, even the most vigilant employers will be confronted with challenges. It is generally preferable to avoid court in these cases. With that, negotiation can be easier with experienced representation. If the case does go to court, it is even more crucial to have legal guidance.
When facing harassment claims, being proactive is key. This means consulting with professionals who are well-versed in employment cases and their aftermath. From the start, employers must be protected. Discussing the case with those who have a wide range of experience in all forms of employment law from the employer’s viewpoint can be a good start to reaching a satisfactory result.
]]>On Behalf of Kaiser Legal Solutions, PLLChttps://www.attorneysforbusiness.com/?p=474602023-05-16T20:12:26Z2023-05-30T20:09:37ZBefore you can form a professional association, you need to make sure that you and your prospective members meet the eligibility criteria set by the Texas Business Organizations Code. According to the BOC, all the owners and managers must have the same professional licenses.
Exceptions
There are some exceptions to this rule. If the different licensed professionals perform services that are within the scope of those practitioners, then they may fall into an exemption.
Choose a name
Once you have verified that you and your prospective members are eligible to form a professional association, you need to choose a name for your entity. Chapter 5 of the BOC requires that your entity name be unique.
The name of your professional association must also include an organizational designation that indicates its status as a professional entity. The BOC provides three options for this designation: Professional Association, P.A. and P.C.
You can check the availability of your desired name by using the SOSDirect online system. You can also reserve your name for up to 120 days by filing an application for reservation or renewal of an entity name (Form 501) with the Secretary of State and paying a $40 fee.
File a certificate of formation
The next step is to file a certificate of formation with the Secretary of State. This is the document that officially creates your professional association and sets forth its basic information and structure. The certificate of formation must comply with Title 1, Chapter 3, Subchapter A of the BOC.]]>On Behalf of Kaiser Legal Solutions, PLLChttps://www.attorneysforbusiness.com/?p=474582023-05-04T19:20:58Z2023-05-16T18:58:07Zlawsuit challenging the disputed provisions.
Such lawsuits are usually called “will contests,” and the legal grounds for a will contest may help a person decide whether to institute a will contest.
Persons eligible to file a will contest
Only certain people can commence a will contest. This group includes beneficiaries named in the will, fiduciaries named in the will, and people who would otherwise be eligible to inherit the decedent’s property but have been left out of the will or are given an inheritance smaller than they would have received had the deceased left no will.
Grounds for contesting the validity of a Texas will
Texas law provides four major grounds for contesting a will:
Lack of formalities: To be valid, a Texas will must be in writing, signed by the testator, signed by two witnesses who are each at least 14 years of age, and who signed the will in their own writing and in the presence of the testator. The lack of any of these steps can lead to a will being ruled to be invalid.
Lack of testamentary capacity: A person making a will must understand the legal effect of the will. The lack of such understanding – called “lack of testamentary capacity” – may lead a judge to declare the will to be invalid. The person contesting the will may prove lack of testamentary capacity by introducing medical evidence that the decedent was mentally incapacitated by dementia or some similar ailment when they signed the will, i.e., that they did not comprehend the legal effect of the will.
Undue influence: Proving undue influence requires evidence that the decedent was influenced by a third party to make an inappropriate bequest that favored the alleged influencer. Proof of undue influence usually rests on testimony showing that the maker of the will had a close relationship with the alleged influencer that caused the maker to include a provision that benefited the influencer.
Fraud or forgery: A will or a specific bequest in the will may be ruled to be invalid if the person contesting the will demonstrates that the bequest was the product of someone making a fraudulent misrepresentation to the testator and the reliance of the testator upon that misrepresentation.
Will contests are notoriously difficult cases. Still, they can be necessary to avoid injustice.]]>On Behalf of Kaiser Legal Solutions, PLLChttps://www.attorneysforbusiness.com/?p=474572023-04-25T20:23:16Z2023-05-02T20:17:15ZNoncompete clauses
A noncompete clause is a contract provision that restricts an employee from working for a competitor or starting a similar business within a certain geographic area and period after leaving the employer. These agreements are controversial, and a number of states limit their application.
In Texas, noncompete clauses are generally enforceable if they meet certain requirements. However, there are some special rules and considerations that apply to physicians.
Physician noncompete clauses
According to the Texas Business and Commerce Code, a noncompete clause for physicians must be part of an otherwise enforceable agreement, such as an employment contract or a separation agreement. It must have a reasonable relationship to the employer's interest in protecting its goodwill, confidential information, patient relationships or referral sources. Though, the noncompete can have reasonable limitations as to time, geographic area and scope of activity.
The departing doctor can keep their patients that they treated within the last year. You must provide access to medical records of the physician’s patients as consistent with medical ethics and state law. And, if the departing doctor is providing care for an acute illness, the noncompete cannot stop that treatment.
Reasonable limitations
What constitutes reasonable limitations depends on the facts and circumstances of each case, such as the nature and size of the practice, the location and population of the area and the specialty and skills of the physician. Generally, courts will look at whether the noncompete clause imposes a greater restraint than necessary to protect the employer's legitimate business interests.
An example
As an example, a noncompete clause that prohibits a physician from practicing any type of medicine within 100 miles of the Arlington, Texas, employer for 10 years may be considered unreasonable and unenforceable.
On the other hand, a noncompete clause that prohibits a physician from practicing a specific specialty within 10 miles of the employer for one year may be considered reasonable and enforceable.]]>