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Andrews Myers
Business Insight from the Ground Up
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Construction
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Contracting for the Surety to have a Seat at the Table in Arbitration
by Katy Baird  At the beginning of a project, when the parties believe that everything will run smoothly and not a drop of rain will fall from the sky, the general contractor is often asked to provide a payment/performance bond backed by a trusted surety. What the parties often do not contemplate under the rose-colored haze of contract formation is how the surety will fit into an agreement to arbitrate a dispute between the owner and the general contractor. 
 
Some might assume that in a dispute between the owner and general contractor, where a bond claim is implicated, the surety would necessarily be involved in the arbitration. Yet, the surety is not technically bound to participate in the arbitration proceeding agreed upon by the owner and general contractor, because it is not a party to the contract where arbitration is contemplated. This can pose a potential problem if you find yourself in a complex dispute involving a bond claim, because the one-year statute of limitations to take action on the bond could run out in the middle of your arbitration. As a result, the parties could end up expending additional time and money litigating against the surety in a separate state court proceeding.   Read more...
Real Estate
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What Commercial Tenants Need to Know about SNDAs
by Josh Harrison  As the commercial lease market heats up again in Houston and tenants face a more difficult time negotiating favorable terms in their lease agreements, tenants must be careful not to gloss over certain important lease provisions that may not be as obvious as the lease term, base rent, or improvement allowance.  What the lease says about the landlord’s lender (and the tenant’s relationship to the landlord’s lender) is one such provision.
 
If a landlord refinances or sells the property in which there are one or more commercial leases, then the new lender will require that all tenants of the property subordinate their leases to the lender’s lien on the property.  This agreement (which may be a part of the lease or a separate agreement altogether) between a tenant and the landlord’s lender is commonly referred to as an SNDA, which stands for Subordination, Non-Disturbance, and Attornment agreement.  Lenders require this because they need to have priority to foreclose on the property if the landlord-borrower defaults on its loan with the lender.  Read more...
Is Fido Allowed?  And Should Fido be Allowed?
by Bret Rycroft  Are animals allowed?  This is a probably the most common question tenants have when looking to lease an apartment. Assistance animals are a growing concern to landlords, and can create problems in the apartment industry with respect to whether a request for an assistance animal is legitimate or the masking of an unauthorized pet. As a property owner or manager, you must be familiar with the Fair Housing Act and its guidelines on requesting information and supporting documents from prospective residents.
 
Service Animals vs. Assistance Animals
 
A ”service animal” is defined under the Americans with Disabilities Act (ADA) as a dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. A dog that is specially trained to lead a blind person is a great example of a service animal, as the task(s) performed by the dog are directly related to the person’s disability. Under the ADA, these working animals are certified and are not considered pets but necessary guides that make it possible for their owners to live and travel safely, and thus are allowed anywhere the general public is allowed to go.  Read more...
Congratulations to Claire Dykeman!
Congratulations to first year litigation associate Claire Dykeman on having recently passed the Texas Bar Exam! 
Employment
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Cybersecurity from the Inside Out
by Claire Dykeman  The biggest threat to companies from cybersecurity attacks are their own people.  Training employees to recognize and avoid cyberattacks is vitally important.
 
Recently at one company, the human resources director received a request from an email address that appeared to be from the company owner, asking for a digital copy of all employee W-2’s.  The HR director complied.  When the email turned out to be fake, the company had to then inform all employees of the mistake.  The company also cautioned them about the threat of tax-related identity theft and offered to pay for additional personal protections such as LifeLock over a 12-month period. The HR director was fooled by a “phishing” email – an email that employs industry buzzwords or email addresses that appear very authentic in order to “phish” a response with sensitive information.  Read more...
OSHA Clarifies Position on Workplace Safety and Post-Accident Drug Testing
by Tony Stergio   In May 2016, OSHA shocked industry leaders by issuing anti-retaliation regulations indicating that safety incentive programs and post-accident drug tests could be viewed as improper disincentives to reporting workplace injuries and accidents. That regulation is still on the books, but on October 11, 2018, OSHA issued new interpretative guidance designed to clarify the controversial 2016 final rule.
 
The recent guidance establishes that safety incentive and post-accident drug testing policies will not be considered automatic violations of the 2016 anti-retaliation regulations.  Employers, however, must still be careful in how they construct, communicate, and implement their safety incentive and post-incident drug testing policies so as not to run afoul of the 2016 anti-retaliation regulation.  The recent guidance puts forth suggestions to maintain such policies in a way that does not impermissibly discourage the reporting of injuries or safety-related incidents.  Read more...
Join Us at Any of the Upcoming Special Events in November & December

11/1 - Kenton Andrews presents at CFMA Heart of Texas Chapter
11/1 - AM supports AGC Houston Member Mixer
11/12 - AM supports HBA Harvest Fest
11/15 - AM sponsors NAIOP Annual Fall Event
12/4 - AM sponsors AGC of Texas Holiday Party
12/4 - AM sponsors ABC PAC Holiday Party
12/5 - AM sponsors CREW Holiday Party
12/5 - AM Women's Initiative sponsors ASA She Builds It Holiday Party
12/5 - AM supports ABC Central Texas Holiday Party
12/5 - AM sponsors NACM Holiday Lunch & Toy Drive
12/6 - AM sponsors the HBA Holiday Party Honoring the Judiciary
12/6 - AM supports the HBA Construction Law Section Holiday Party
12/7 - AM supports HCA Holiday Dinner & Dance
12/19 - AM sponsors MCA Holiday Lunch with The Nehemiah Center
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