Texas Employer’s Checklist April 27, 2020

On April 27, 2020, Governor Greg Abbott issued additional Orders regarding the re-opening of the Texas economy. Among other things, Governor Abbott has issued a Checklist applicable to All Employers in the State of Texas. Any employers with questions about the Texas Employer’s Checklist 4.27.20 or about re-opening their businesses, generally, should feel free to contact us at 214-919-3555.


3 Steps to Minimize the Risk of Your Secrets Walking Out the Door When a Key Employee Leaves


3 Steps to Minimize The Risk of Your Secrets Walking Out the Door When a Key Employee Leaves

It happens often and in every type of business: a key employee notifies her supervisor that she has accepted a job with a competitor and will be leaving the company. The initial reaction is panic— “she can’t leave, she knows everything about our business, she knows all of our trade secrets, and she knows our confidential business strategies.” A call is made to outside counsel and everyone gears up for litigation against the former employee and her new employer. But, is that the only course of action?  You may end up at the courthouse but there are steps you can take before filing suit to mitigate the risk that your trade secrets and confidential information will be at risk when the employee walks out the door–you just might be able to avoid the courthouse altogether.

  1. Make every reasonable effort to retain the employee.  

If you are dealing with a key employee whose departure will be costly to the organization, you should assess whether it is possible and desirable to retain the employee.  Do not automatically assume the employee is out the door and cannot be convinced or enticed to stay.  Whether it is an issue of compensation, additional vacation time, freedom to work on projects of her choosing, or some other non-monetary perk or benefit, employers should fully explore all available options at their disposal to retain the employee.

  1. Negotiate assurances with the departing employee.

If retaining the key employee is not an option, meet with the person, ideally prior to the exit interview, to address the departing employee’s post-employment obligations with respect to the employer’s trade secrets and confidential information:

      • Explain the importance of preserving the secrecy of the trade secrets and confidential information they had access to or developed during their employment.
      • Discuss all confidentiality, nondisclosure and covenants not to compete that the person may have executed.
      • Ask them if they have any questions or concerns about any areas of their work and any matters which may not be clear to them.
      • Find out where the departing employee is going, what they will be doing, and when they plan to begin work for the new employer.
      • Ask the employee two important questions:  1) are you certain you can perform your new job without using or disclosing our trade secrets and confidential information? 2) will you notify us if you are ever asked to use or disclose any of our trade secrets or confidential information?
      • Have at least two persons present for the meeting and document the meeting with a checklist that the employee initials to indicate you covered the topics in your meeting.
  1. Contact the new employer.

Consider contacting the new employer after your meeting and before the employee’s start date.  The purpose of this contact is to inform the new employer that the departing employee executed one or more written agreements in which they agreed not to use or disclose confidential information and trade secrets belonging to the company.  Describe the former employee’s work in general terms but provide enough specificity to place the new employer on notice of the areas you are most concerned about.  Detail the efforts you have undertaken to obtain assurance from the departing employee that she will honor her obligations of confidentiality and that she has provided assurance her new job will not require her to use or disclose your trade secrets.  Request confirmation from the new employer that they will not ask or allow her to use or disclose any of your trade secrets in her work for them.

Taking these steps will not eliminate the need for litigation in every departing employee situation. Sometimes, litigation may prove to be the only means of protecting against imminent use and disclosure of your trade secrets.  But, when followed, these steps may reduce the number of lawsuits filed merely out of an abundance of caution, because an employee “inadvertently” disclosed trade secrets, or because a new employer was not aware of the former employee’s previous work.  And if followed, these steps will strengthen the foundation of any trade secret litigation you may be forced to initiate.

For additional information about our Employment Law Practice or to make arrangements for an initial consultation with a lawyer call our law office directly at (214) 919-3555.

Texas Mechanic’s and Materialman’s Liens

Mechanics Liens in Texas

Texas law protects the interests of general contractors, subcontractors, and suppliers by providing them with lien rights against construction projects, but the law is complex and there are many hurdles to overcome in order for a claimant to perfect its lien. Chapter 53 of the Texas Property Code is the primary, though not exclusive, source of Texas lien law. Chapter 53 describes the parties who are entitled to a lien, the notices that must be given, the form of the documents that must be filed, and a multitude of related rules, defenses, and restrictions. Texas lien law is so varied and complex that it poses a challenge to some of the state’s best lawyers. A claimant who chooses to wade into those waters without a lawyer’s assistance should proceed with great caution.

The first step is to determine whether a potential claimant is granted lien rights under the statute. Not every person who is involved in a construction project has lien rights. Certain trades, such as architects, engineers, landscapers and demolition experts, are required to have a written contract; an oral contract will not suffice. On residential projects, the original contractor must have a written contract, signed by the owners (both spouses), before the original contractor or any of its subcontractors can assert lien rights.

If a potential claimant qualifies, the next step is determining the proper notices that must be sent, to whom, and when. The types of notices necessary to perfect a lien claim, and the deadlines for same, depend on a variety of facts. The types of notices are different for specially fabricated materials and claims for retainage. The particular wording of the notices will control whether an owner may withhold payment from a general contractor to satisfy a subcontractor’s claim. The deadline for the notices, how many that a claimant has to send, and to whom the notices must be addressed, vary depending upon whether the project is residential or commercial if the claimant is an original contractor, subcontractor, or supplier, and whether the claim is for a progress payment, final payment, or retainage.

Drafting and filing the lien affidavit is no less complex than the notices that have to be sent in advance. The affidavit claiming a lien must contain specific information and, under some circumstances, very specific wording. The information that has to be included varies depending, again, upon whether the project is residential or commercial and whether the claimant is an original contract, subcontractor, or supplier. In addition, the deadline for filing the lien affidavit varies based upon a number of factors: when the claimant’s work was performed; whether the project was completed or the original contract terminated; and whether the owner has made a written demand for lien claimants to file their lien affidavits. A claimant may have lien rights, send the proper notices, and still fail to file a valid lien affidavit by the applicable deadline.

Even after a qualified claimant sends proper notices and timely files a valid lien affidavit, the owner of the project may still have defenses against the lien claim that will prevent a claimant from realizing a full recovery. The deadline for filing suit to foreclose on a lien varies depending upon whether the project is residential or commercial. The owner may have withheld the statutorily required retainage, thereby limiting the owner’s liability and protecting the project from foreclosure. In short, after a valid lien is perfected, the war is not over.

The Texas legislature has considered making changes to the Texas lien statutes to simplify the process, but, as of the writing of this article, no significant changes have been made in years. Perhaps one day the process will be easier, but until that day, it is vitally important for a potential lien claimant to seek the advice and assistance of an experienced construction lawyer.

If you need assistance collecting payment for labor/materials you’ve provided to a project, please contact us to discuss the lien filing process and how we can help.