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Austin Mask Update

Austin-Travis County Withdraws its Mask Mandate

by Brittany Long The Austin-Travis County health authority withdrew its COVID-19 mask mandate in compliance with Governor Abbott’s Executive Order GA-36 (“Executive Order”), which went into effect on Friday, May 21, 2021.  Under the Executive Order, local governments (including counties and cities) are prohibited from requiring the use of masks. Local governments that attempt to impose a mask mandate can be subject to a fine of up to $1,000.
 
On May 18, 2021, the Austin-Travis County health authority had extended its COVID-19 rules, while loosening its mask mandate for those who are fully vaccinated. The new rules stated that businesses may choose to allow fully vaccinated individuals to remove their masks indoors when there are less than 500 people, and outdoors when there are less than 2,500 people. Partially vaccinated and non-vaccinated residents were still required to wear masks and remain at least 3 feet from others while outside and inside public places. This came shortly after the CDC released new guidelines stating fully vaccinated residents can resume activities without wearing a mask or physically distancing. Read More...
Litigation & Arbitration
Baseball Arbitration: Is it in your Wheelhouse?
by Chuck Jeremiah With the approach of summer, baseball is back in season, along with homeruns, double plays, hotdogs, and the seventh inning stretch.  So, what does this have to do with arbitration?

While there are many variations on the arbitration process of resolving disputes, one of the lesser known and utilized is baseball arbitration.  It is the mechanism long used in salary negotiations in major league baseball – hence its name.  Its use pertains to more than just baseball, salary negotiations or major league sports, and it may be an option you should consider.

How does it work?  In baseball arbitration, the pre-arbitration proceedings and arbitration hearing itself are no different from any standard arbitration.  However, in baseball arbitration, prior to the hearing each party submits a proposed award – a single figure - to the arbitrator.  The arbitrator must select one of the two numbers submitted, period.  There is no middle ground.  Read More...
One of Construction's Best

Andrews Myers is consistently recognized among the best in client and peer-reviewed industry awards and rankings, and the 2021 edition of Chambers USA, America’s Leading Lawyers for Business continues this trend for the 16th consecutive year. 

Chambers recently announced Andrews Myers as having a top construction law practice in Texas, awarding it an elite “Band One” rating, and recognized seven AM attorneys in the practice group. The 2021 Guide once again highlights that the firm has more Chambers ranked construction attorneys than any other law firm within the state of Texas.
 
Real Estate
Negotiating a Subordination Agreement with a Tenant's Lender
by Scott McKaig It is not uncommon for commercial landlords to receive requests from their tenants asking to subordinate or waive their interests in any lien or similarly-secured rights to the tenant’s personal property in favor of that tenant’s lender. Landlords then frequently ask what they need to look out for in these agreements and whether they should reject such agreements entirely. Even if a landlord does not have and/or care about any lien rights on the tenant’s property, there are other important factors that should still be considered that may affect the landlord’s rights under the applicable lease. The following is a short summary of the main factors to review with respect to any requested subordination agreement.

First and foremost, should a landlord even agree to enter into such an agreement with the tenant’s lender? The answer is generally yes. Tenants often require financing in order to kick off their business, including the financing of necessary trade equipment and other inventory and fixtures, which is in the best interest of all parties involved. Most banks require having superior lien rights on some or all of the tenant’s personal property in the leased premises in order to approve the tenant’s loan. This principal is essentially the same for any subsequent refinance as well.  Read More...
Construction

Common Sense Prevails: A Victory for Texas General Contractors

by Wesley Walker  The Texas Supreme Court recently held that a general contractor (“GC”) who had no control over the work of an injured subcontractor could not be sued for the subcontractor’s work related injuries. The Texas Supreme Court ruled that the GC owed the injured worker no duty as a matter of law and ordered that he take nothing on his claims.

In making this ruling, the Texas Supreme Court explained that in Texas, a party who employs an independent contractor owes no duty to ensure that the independent contractor safely performs the work. The Court did note that an exception to this rule exists if the employer retains "some control over the manner in which the contractor performs the work that causes the damage."  Read More...
Back to Your Regular Programming: Construction Contracts - What is the Critical Path?
by Mike Cortez In these strange times, it is good to go back to basics, the “nuts and bolts” in mitigating common risks on a construction project.  This is NOT intended to be an extensive article about every possible risk in a construction contract, but just a reminder of the basic construction contract risks that every party in a construction project should review. That holds especially true for construction contracts in this post COVID-19 world that is rapidly speeding up with multiple layers of risks, like price escalation due to the skyrocketing lumber prices. 

Managing risks can be handled not only by sound business and construction practices (like estimating and scheduling) but also by careful contract preparation and review.  One basic concept I like to emphasize with my clients is that any potential project risk should be anticipated by the parties to determine which party is in the best position to control that accept of risk and responsibility.  Read More...
 
Bankruptcy
To Reject or Not to Reject: Can Midstream Agreements be Rejected in Bankruptcy?
by Patrick Kelly In the oil and gas industry, producers and midstream operators frequently enter into gathering agreements. As part of the gathering agreement, a producer will dedicate its production to an operator in return for the building and maintaining of a pipeline system for the benefit of both parties. In order to build and maintain a pipeline system, surface easements have become a common feature of gathering agreements.

As previously discussed, in bankruptcy, the United States Bankruptcy Court for the Southern District of Texas ruled in Alta Mesa that when gathering agreements “directly touch and concern” the leasehold interest, either by burdening or benefitting it, they are not subject to rejection under Section 365 of the Bankruptcy Code.   Read More...
Summer is Here!
This summer we are hosting four summer law clerks: Sarah Yancey, Megan Sheena and Rahul Rao from University of Houston Law Center and Onyi Ibe from South Texas College of Law. They will spend the next six weeks participating in the various activities with our multiple practice groups and gain exposure to both transactional and litigation groups.
We're all looking forward to returning to traditional programs and social gatherings that we've always enjoyed during these summer programs.
Employment
OSHA Changes its Mind on Recordability for Adverse Reactions to the COVID-19 Vaccine
by Tony Stergio  As we previously reported, OSHA recently issued a guidance concerning adverse vaccine reactions rising to the agency’s recordability standard (reactions resulting in days away from work, restricted work, a transfer to another job, or requiring medical treatment beyond first aid). Just last month, OSHA said such vaccine reactions were recordable if the employer required the employee to get the vaccine. If the employer only recommended the vaccine, then there was no recording requirement for such adverse vaccine reactions.


But OSHA, facing backlash, quickly changed its mind. 


Now OSHA says: DOL and OSHA, as well as other federal agencies, are working diligently to encourage COVID-19 vaccinations. OSHA does not wish to have any appearance of discouraging workers from receiving COVID-19 vaccination and also does not wish to disincentivize employers’ vaccination efforts. As a result, OSHA will not enforce 29 CFR 1904’s recording requirements to require any employers to record worker side effects from COVID-19 vaccination through May 2022. We will reevaluate the agency’s position at that time to determine the best course of action moving forward.

So, at least for the next year, employers do NOT need to record any adverse effects from the COVID-19 vaccine, regardless of whether the vaccine is mandated or voluntary.

Stayed tuned.


Independent Contractor Misclassification: If it can Happen to Kanye, it can Happen to You

by Tony Stergio  Kanye’s Problem (as it relates to this matter)
Kanye West is being sued by a former Yeezy employee who alleges that Kanye failed to pay her for work she was required to do off-the-clock, and other wage and hour violations.  Kanye’s wage and hour problems seem to arise from the fact that he misclassified employees (subject to wage and hour laws) as independent contractors. Taliah Leslie claims that Yeezy regularly misclassified employees as independent contractors despite their responsibilities as full-time company employees. Such a misclassification allegedly deprived these workers of wages and other benefits. Additionally, Leslie says Yeezy failed to keep accurate payroll records of the total hours these “employees” worked.

Now More Difficult to Establish Workers as Independent Contractors Under Biden Administration
Misclassification of employees as independent contractors has long been a problem for employers and it is about to get worse. The U.S. Department of Labor (DOL) is officially withdrawing the Trump administration's independent-contractor rule, which would have made it easier for businesses to classify workers as independent contractors rather than employees. President Biden’s DOL has indicated that it believes the Trump Administration rule is inconsistent with the FLSA's text and purpose.  Read More...

About Andrews Myers
Where to find Andrews Myers
05/27 - HCA May Luncheon
05/27 - HCA Networking Mixer
05/27 - AGC Houston Member Mixer
06/09 - SPONSOR AAA Construction Conference
06/09 - CFMA Luncheon
06/11 - MCA Shotgun Invitational
06/18 - SPONSOR AGC Houston BBQ Cook-Off
06/23 - SPONSOR ABC Central Texas Construction Executive Breakfast
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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