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Andrews Myers
We Mean Business in Texas
Eyes on the Gulf
In the Midst of Hurricane Season – Is Your Business Prepared?
by Sara McEown As those of us located in Houston know too well - coastal areas bordering the Gulf of Mexico and Atlantic Ocean are all vulnerable to hurricanes. The official hurricane season for the United States is June 1 through November 30, and some research predicts the 2021 hurricane season to be an “above average” season for hurricanes with the potential for 17 named storms and as many as 8 hurricanes.

That being said, is your business prepared? Below are some considerations as to whether your business and its people are prepared to weather the storms.

Preparedness Planning
Is there a plan in place company-wide to protect your people, physical locations, and other assets? Assessing the needs of your company by evaluating needs of people, physical location, and key suppliers is the necessary first step. Then using that assessment, create a specific plan to address measures needed year round, immediately before the storm, and after. Read More...
Employment
New OSHA Guidance on COVID-19
by Mike Schiff & Tony Stergio Following the CDC’s recent changes, OSHA has again updated its guidance to employers on COVID-19 preventions in the workplace. OSHA now recommends that employers in substantial and high transition areas, which includes almost all of Texas, require all employees to wear a mask in public indoor settings regardless of vaccination status.

In another change, OSHA now advises employers to require vaccinated employees who have  close contact with someone with suspected or confirmed COVID-19 to mask in public indoor settings for 14 days after exposure or until they receive a negative test result. The COVID-19 test should be taken no earlier than 3 to 5 days after possible exposure. Vaccinated employees generally do not have to quarantine after a close contact but should mask.  Unvaccinated employees must quarantine after a close contact.
 
What does a Fully Approved Vaccine Mean for COVID-19?
by Tony Stergio The FDA has now fully approved the Pfizer COVID-19 vaccine for all persons ages 12 and up. The real impact of the FDA approval of the Pfizer booster, will likely be to further weaken people’s resistance to the vaccine and to also strengthen employers’ and contractors’ resolve to insist on fully vaccinated workplaces and projects.

Further, the vaccine-hesitant will have one less argument in an attempt to support their position. Their weakened hand will likely meet with growing opposition, bolstered by fully authorized vaccines and a population growing more tiresome of the unvaccinated in the wake of the Delta variant. This will almost certainly lead to a great many more mandates from employers and contractors.

So what does that mean for employers and contractors? Nothing new, actually. Even before full authorization, employers could require employees to get vaccinated (allowing for limited disability and religion exemptions). Further, owners and contractors could already require all contractors and subcontractors to have every employee on a project be fully vaccinated (and to provide proof of their vaccination status). Read More...


EEOC Makes Final Extension to EEO-1 Reporting Deadline
by Tony Stergio The EEOC recently announced that covered employers now have until October 25, 2021 to file their 2019 and 2020 EEO-1 reports. Although the deadline has been extended several times, the agency said it will not authorize any more extensions.
 
Under federal law, businesses with at least 100 employees and federal contractors with at least 50 employees plus a contract of $50,000 or more must file the EEO-1 form each year. 
Should I Have my Employees Sign a Non-Compete?
by Chuck Jeremiah As previously reported, President Biden signed an Executive Order in July, encouraging the Federal Trade Commission to ban or limit non-competition (“non-compete”) agreements, agreements that generally restrict employees from going to work for a competitor or competing against you themselves. There has been no regulatory action by the FTC yet, and non-competes remain legal where, and to the extent which, they are permitted by state law. So, should you have your employees sign a non-compete agreement?

Consider the Nature of Your Business
In determining whether a non-compete makes sense, you should consider the nature of your business, job positions, employee access to confidential information and how harmful it could be if such information was used against you. Some industries are heavier in trade secrets and confidential information than others are. For example, a Silicon Valley tech company developing source code is situated quite differently than your average swimming pool maintenance company. Notably, when challenged by the New York Attorney General’s Office, sandwich retailer Jimmy Johns backed off from requiring its minimum wage sandwich makers to sign non-competes. Probably a wise decision on their part.

Chances are, your business is somewhere in between the ends of the confidentiality spectrum.  You may have developed pricing, bid or estimating information over the years. You may have specific information about customers in your industry, including their identity and needs, which is not generally known. In addition, you may have developed sales techniques or methods and provided training, which give you a unique competitive advantage. The greater the investment, value and secrecy of your proprietary information, the greater the need for comprehensive protection. Read More...
2022 Best Lawyers Announced
Twelve attorneys across five practice groups have been named in the 2022 Edition of The Best Lawyers in America. For this edition, 9.4 million votes were analyzed, which resulted in the inclusion of more than 67,000 lawyers, or approximately just 5% of practicing lawyers in the United States. 
Construction
Dealing with Notice of Assignment of Accounts
by Bill Davidson There seems to be a continuing rise in UCC lien notices and litigation by “factors” and “cash advance” companies that purchase accounts receivable from subcontractors. UCC liens are legal forms that a creditor files to give notice that it has an interest in the personal or business property of a debtor. These companies often purchase the accounts receivable, or a percentage of those accounts, from subcontractors and others in the construction industry. A “factor” is a company that purchases invoices, usually at a discounted rate, in order for the subcontractor to obtain financing or improve cash flow.

A general contractor that receives a UCC Lien Notice, usually accompanied by a Notice of Assignment, needs to proceed cautiously when processing the next invoice or application for payment. These notices come from someone that has entered into a “Secured Merchant Agreement” with a subcontractor or supplier. The general contractor could end up being required to pay the same invoice twice if they are not careful. Once to the subcontractor and again to the factor.

Once a general contractor receives a signed notification that payments due to a subcontractor have been assigned to the factor or entity purchasing the account, the general contractor is required to make payments directly to the factor. While there are a few exceptions, these exceptions are typically not applicable in the commercial construction context. Read More...
Examining the Timing of a Subcontractor's Lien Notices
by Kenton Andrews In Espinoza Valle v. Hertz Electric, LLC, the Texas Court of Appeals in Austin examined whether a subcontractor had properly perfected a lien under Chapter 53 of the Texas Property Code. The subcontractor provided written notice to the general contractor on March 13, 2018, for “Electrical Wire labor and material” furnished and stated, “All of the Claim Amount [$26,400] has accrued and is past due” and that “[e]nclosed are copies of the statements or billings that constitute this claim.” The subcontractor attached two invoices to the notice, dated October 2, 2017, and November 13, 2017, respectively which totaled $26,400.
 
The subcontractor argued in its affidavit testimony that it “provided labor and materials to the Project until January 2018” and that this was evidence that the subcontractor “was working” on the project in January, and, therefore, its March 13 notice was timely because it was filed by the fifteenth day of the second month after January.
 
However, the appellate court noted that the subcontractor allegedly working on the project in January was not relevant to whether the subcontractor had timely noticed the work invoiced on October 2, 2017, and November 13, 2017. Read More...
 
2022 Ones to Watch

Five young attorneys were recognized as “Ones to Watch” in the 2022 Edition of The Best Lawyers in America. These awards, in its second year, are recognitions given to attorneys who are earlier in their careers for outstanding professional excellence in private practice.

Mediation & Arbitration
Ongoing Arbitration in COVID-19
by Carson Fisk  In May 2020, I wrote about the advantages of arbitration in the pandemic. Though not that long ago, much has changed, including the introduction of vaccines and the continual evolution of tension between and often-changing and conflicting orders by state and local officials. With the rise of the Delta variant, much has also stayed the same. Many courts are effectively closed. Trials, and especially in-person jury trials, are a rarity in many jurisdictions. Many cases continue to languish in judicial purgatory.

As I wrote previously, “When some form of normalcy returns, courts will inevitably be grappling with a significant backlog of hearings, trials, and related matters, not to mention the challenges likely stemming from requirements or recommendations to continue to implement health and safety measures such as limited attendance in confined spaces and social distancing. The likely outcome is delay.” For many courts, this is exactly what has happened.

For parties involved in a construction dispute, another avenue offers relief when seeking a binding decision. Arbitration is essentially a private trial before an arbitrator, who issues a final award that determines who prevails. It is a function of an agreement—only required when the parties contractually agree to participate. Often the parties agree to have an arbitral body, such as the American Arbitration Association, administer the arbitration, which is then generally subject to governing arbitral rules, as may be modified by the parties. Thus, arbitration is a flexible process that can be tailored to the needs of the parties.

As I noted the limits of litigation in the era of a global pandemic, I also predicted that arbitration would not suffer from the same affliction,  Read More...
About Andrews Myers
Where to find Andrews Myers
08/26 - She Builds It Happy Hour
09/01 - SPONSOR CREW Houston Luncheon
09/01 - SPONSOR ABC Central Texas PAC Dove Hunt
09/09 - ULI Sporting Clay Tournament
09/14 - ABC Houston ELITE Legislative Recap Mixer with Ben Westcott
09/20 - ABC Houston FALL PAC Clay Shoot

 
Andrews Myers, PC
Founded in 1990, with offices in Houston and Austin, Andrews Myers, Attorneys at Law, is a corporate law firm and recognized market leader in Texas construction law.  The firm focuses on the concentrated disciplines of commercial litigation, construction, commercial real estate, corporate and business transactions, with additional emphasis on related issues including bankruptcy and insolvency, energy, employment and capital formation. A seasoned team of attorneys provides timely and cost-effective solutions to the most complex problems facing entrepreneurs and middle-market industry leaders throughout the state and the nation. For more information please visit www.andrewsmyers.com.
COVID-19 Updates
Andrews Myers attorneys have been tracking and updating the many changes that could effect you and your business throughout the ongoing COVID-19 Pandemic. To see all of the articles and information you may have missed, please visit our dedicated COVID-19 page on AndrewsMyers.com

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