Andrews Myers Monthly Law Alert


January 2018

How to Successfully Change a Master Service Agreement
By Champe Fitzhugh 

Every time that operating companies change names, service companies merge, or principal representatives change - all things that happen with regularity all over the oil-patch - new master service agreements (“MSAs”) are sent around.  Since most MSAs are not assignable by the service company, even a perfunctory merger for reorganization or tax purposes may require that a service company renew its MSAs, and every service provider knows that the new MSA is probably not going to be more favorable to it. A service company often finds itself with men in the field before a new MSA is signed, and the MSA is sent by the operator (or new operator entity) with a clear message: sign this or pull your people.  So the question is – what can a service company do to get reasonable changes?  The answer is to be well organized and have a process in place for immediate legal and insurance reviews, providing a 24-hour turn on the MSA... Read More

2018 Employment Law Updates
By Tony Stergio

Obamacare Employer Mandate.
The recent tax cut legislation under the Trump Administration eliminates Obamacare’s individual mandate for health insurance, the provision that taxed individuals who elect not to purchase health insurance.  The new tax legislation, however, did not affect Obamacare’s employer mandate.  Accordingly, Employers with 50 or more full-time employees (or full-time equivalents) must still provide affordable coverage to their full-time employees (those averaging 30 or more hours per week) or face a substantial penalty.

I-9s Inspections Are Back.
The U.S. Immigration & Customs Enforcement (“ICE”) Agency is expanding its inspections of employers’ Form I-9s in the Houston area.  Employers would be wise to self-audit I-9s before ICE knocks on their door. The agency has also indicated that it now intends to prosecute employers who knowingly hire illegal aliens.  Contact Anthony Stergio if you need assistance in preparing for possible actions by ICE.

OSHA Inspections Down Nationally, But Maybe Not Locally.
You may have seen reports from NBC and other national media outlets that OSHA inspections are expected to decrease nationally due to the Agency’s loss of 4% of its inspectors.  The Trump Administration has made no effort to fill these vacancies. But, as we first mentioned in October 2017, the local office of the Department of Labor is actually increasing its ranks through the use of “detailing.”  Detailing is the practice of transferring agents for 2 to 3 week stints to areas where the agency believes there exists a heightened need, such as Houston.  The DOL plans to continue this practice in the Houston area through the end of the year.

Protecting Your Employees and Your Company During the #MeToo Movement
By Elaine Howard

Sexual harassment is in the news more than at any other time in our history. Media attention is focused on actresses and Hollywood, but there is no question that the trend of increased sexual harassment awareness impacts the workplace. Although no official Equal Employment Opportunity Commission statistics for 2017-18 are out yet, there is likely to be an increase in sexual harassment claims in the work place.

What can you do as an employer to minimize your risk?  Read More. 

Preparing to Sell Your Business?
By Brent Pharis

If you're thinking about selling your business, imagine yourself as the potential buyer. What questions would you ask and what records would you want to see in making your decision? The answers to these questions will tell you what you need to do to get your business ready for sale. For those business owners who keep their records in order, this will be a relatively easy task; for those less prone to do so, it may prove to be very time-consuming. Set out below are some of the things to think about in preparation for an ultimate sale:

1. Are the financial records up-to-date?  One of the first things that prospective buyers want to review is the financial records of the business for the current fiscal period and at least the previous three annual periods. It is also important to insure that your accounting systems are appropriate for the type of business. I have seen transactions fall apart when prospective buyers have discovered failings in the financial reporting systems of an otherwise sellable business.  Read More.

DISPUTE RESOLUTION                                                                                                                                                 
Specify Methods of Appointing Arbitrators
By Brittany Cooperrider

Most parties are aware of the potential benefits of specifying arbitration as the method of dispute resolution in their contracts. However, some parties fail to appreciate the importance of specifying how the parties to the agreement will select an arbitrator, or panel of arbitrators, to preside over the dispute. The absence of a specific procedure for selection of an arbitrator or a requirement that the parties file their claims with a specific arbitration service (which generally administers the arbitration and assists in the appointment of arbitrators) may leave one or more of the parties with no choice but to seek court intervention in appointing an arbitrator. 

Both the Federal Arbitration Act (“FAA”) and Texas Arbitration Act (“TAA”) give courts the power to appoint arbitrators in certain circumstances, including when the parties cannot agree upon a selection mechanism and need to file an application with the appropriate court to obtain an order appointing an arbitrator. However, neither the FAA nor the TAA provide much detail regarding the qualifications of the individuals that the presiding judge may appoint as arbitrator and contain certain limitations. Read More.

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