Publications

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To Test, or Not to Test? Drug Testing and Safety Incentive Programs Face Challenges by OSHA
Friday, December 2, 2016
Employers have been asking themselves whether 2016 was the year of scrambling to meet new labor regulations. While some thought they were in the clear after the recent last-minute overtime decision, other employers were still questioning whether OSHA’s non-retaliation amendments, regulation of post-incident drug testing, and safety incentive programs would become law. This debate started after OSHA amended 29 C.F.R. §1904.35, requiring employers to record and report work-related fatalities, injures and illnesses. Specifically, the amended statute requires employers to establish not only reasonable injury reporting procedures, but also inform employees of their right to report work-related injuries without the threat of
 
Texas Federal Judge Blocks Labor Violation Reporting Requirement of Fair Pay and Safe Workplaces rule (for now).
Monday, October 31, 2016
Contractors and subcontractors vying for federal government contracts were relieved of complying with a majority of the requirements of Executive Order 13673, the "Fair Pay and Safe Workplaces" rule, thanks to a nationwide preliminary injunction issued by U.S. District Judge Marcia Crone of the Eastern District of Texas on the eve of the new rule's implementation. The rule was supposed to take effect on October 25, 2016, but was halted by Judge Crone's determination that the rule explicitly conflicts with established federal labor law, and that it unconstitutionally compels speech by contractors in violation of their due process rights. While the injunctive relief is a considerable triumph for the construction and security industry groups
 
Successful Mediation in Complex Environmental Cases
Thursday, October 27, 2016
Mediation is generally thought to be a faster, cheaper and less risky alternative to arbitration or litigation. It also enables he participants to control their own destinies to a large extent. A well trained mediator presents an impartial facilitator who can help parties move toward a final resolution of their dispute. A good mediator must understand the nature of the dispute, each party’s interests and often be creative in helping the parties reach an agreed resolution. Environmental disputes are among the most complex and challenging to resolve. These disputes often include discussions of science, property, economics, personal interests and legal or regulatory requirements. Occasionally, civil or criminal fines and charges
 
Data Breach: The Aftermath - Insurance Coverage Under CGL Policies for Cyber Security Breaches, Hacks, and Malware Attacks
Tuesday, October 18, 2016
October is National Cyber Security Awareness Month, which is an annual campaign led by the Department of Homeland Security, in order to raise awareness about cybersecurity. You may think that you and your business are fully aware of cybersecurity threats, and take adequate precautions to prevent hacks, phishing schemes, malware and ransomware attacks, and other cyber-attacks; but what if, against all preventative measures, you've been hacked? What if your company has suffered a data breach, and your data, or that of your clients or customers, has been compromised – stolen? The consequences of such a breach range from statutory penalties, to credit monitoring, to class action lawsuits, to business interruption losses, and all of this
 
Kenneth Johnston and Dan Klein featured in October DBA Headnotes
Friday, September 23, 2016
Kenneth and Dan's article focuses on Discovery in the Internet of Things. Read their article here.
 
The Supreme Court Speaks on the Scope of Chapter 95 Property Owner Protection
Tuesday, September 6, 2016
In June 2016, the Texas Supreme Court issued two opinions interpreting the applicability of Chapter 95 of the Texas Civil Practice & Remedies Code. While members of the Plaintiff's bar may be celebrating one of the Court's rulings, property owners should take note and protect themselves. Generally, Chapter 95 limits a property owner's liability for injuries sustained by a contractor who "constructs, repairs, renovates, or modified an improvement to real property." Prior to the Texas Supreme Court recent rulings, an independent contractor injured while working at a property could not prevail on a negligence based claim against the property owner unless the owner exercised control over performance of the work and had actual knowledge of
 
Hearing-Impaired Accommodations Required by Hospitality Industry
Monday, August 22, 2016
Title III of the Americans with Disabilities Act (ADA) gives rights of equal access to places of public accommodation. For people who are deaf or hard of hearing, Title III requires businesses to remove barriers to communication. Restaurants and other hospitality providers are required to provide "auxiliary aids and services" to assist any class of individuals with disabilities, in order for them to "fully and equally" enjoy any goods, services, or facilities offered by the hospitality provider so that effective communication can be achieved. What constitutes an "auxiliary" aid or service to a deaf or hearing-impaired individual is being scrutinized in recent discrimination lawsuits brought by deaf or hearing-impaired plaintiffs. As such
 
Litigation Update: The Texas Agritourism Act: New Potential Liability Protection for Texas Agricultural Landowners
Tuesday, August 2, 2016
Owners of agricultural land in Texas may be entitled to additional limited liability protection thanks to a bill passed in the most recent Texas legislative session and signed by the Governor. The Texas Agritourism Act ("Agritourism Act"), now codified as Chapter 75A of the Texas Civil Practice and Remedies Code, provides certain agricultural landowners with limited liability protection from injuries and damages sustained by individuals engaged in certain activities on the land, provided specific requirements are met. The Agritourism Act provides that an "agritourism entity" is not liable to any person for injuries or damages sustained by an "agritourism participant" engaged in an "agritourism activity" on "agricultural land" if prior to
 
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