Deceptive Trade Practices in Texas

Texas has their “act” together when it comes to misleading, deceptive or false business practices under the auspices of the Texas Deceptive Trade Practices Consumer Protection Act (DPTA).

While the act may have a long name and even longer reputation, it carries a clout on which Texas consumers can rely. Generally speaking, the DPTA is rather controversial and is constantly bombarded with a stream of legal interpretations and legislative changes, nonetheless it still provides Texans with the security of knowing that businesses must be accountable to them and adhere to ethical standards.

This particular act doesn’t just demand accountability for individual consumers, it holds all companies and businesses up to scrutiny and offers guidelines relating to fraud, breaches of warranty and false statements. So if someone went to a grocery store and they were misled by advertising about a product or bought an expensive painting at an art gallery, and it was a fake, consumers may be protected.

One of the reasons that the DTPA is so successful is because its provisions are applicable to most businesses or entities that engage in “any commerce or trade.” Of course this is also the reason why it gets “interpreted” rather frequently. Without getting too complex and legal, what the Act does is cover the sale, lease and distribution of just about all goods and services. It does not, however, cover professional advice. What that means is, if someone is asked for their professional opinion – say a licensed antique dealer about the authenticity of a painting – and their opinion turns out to be wrong, they can’t be held liable for being mistaken (whether someone relied on that advice or not).

Other terms in this Act make it illegal for any business or person participating in “trade or commerce” (which is fairly straightforward) to carry out “unconscionable conduct” (which isn’t that straightforward). The unconscionable conduct provision has caused a lot of grief over the years merely because of disputes over what that phrase means. One favored reading is that this is an act of behavior that takes advantage of a person in an unfair manner. Unfortunately, lawyers could and have frequently driven a truck through the holes in that definition.

Typically that particular definition has been used in court cases to refer to making false statements about how a product was made or its origin; misrepresenting the benefits of a product/service; passing off used products as being new; misleading or false advertising and fibbing about whether or not something needs parts or repairs. There are other situations where the definition of unconscionable conduct applies, and that is usually dictated by the facts of the case at hand; E.g. hiking prices on goods after a disaster.

In cases where an individual feels they have been misled or defrauded, it’s best to speak to an experienced attorney and discuss the details of the case. Knowing what one’s rights are goes a long way toward being an informed and aware consumer.

Gomez Law Group is a Dallas employment lawyer and Dallas business lawyer. To learn more, visit http://www.gomezlawyers.com.

Are Limited Liability Companies in Texas a Good Idea?

Is the choice of a limited liability company in which to vest real estate a good idea?

When it comes to choosing the form of company to hold a portfolio of real estate investments there are a number of choices, and they may be confusing without asking a knowledgeable attorney. Generally speaking, a good choice for a company intending on vesting real estate holdings is the limited liability company (LLC).

The major reasons someone might wish to choose a LLC are because it tends to limit personal liability but maximize asset protection, which is always a good thing. LLCs are a good choice to confidently organize an investment business and there may be some nice tax benefits, one of which is a one-time tax on member’s profits.

A business entity such as a limited liability company is considered to be a separate legal entity that has a life of its own. It has certain rights and duties it needs to carry out. It is responsible for filing a tax return on its own. In other words the limited liability company is independent, and because it is viewed that way, it needs to be at arm’s length in terms of being properly “legal.”

In other words, the company “must” have and keep a separate character because if it does not, the owner of the business runs the risk of being personally liable for actions taken by the company or its agents and workers. This is known as the legal doctrine of piercing the corporate veil.

If the company doesn’t follow these “corporate formalities” such as maintain all required records, pay taxes, hold meetings and have a bank account it uses regularly, then the owners may lose the benefits and protections the company was designed to create. In an instance such as that, the courts could allow a creditor to go after the owners personally and disregard the company, as it would be considered to be a personal “alter ego” of the owners.

This is the one area where most investors go wrong when they set up their companies. They go through the motions, but don’t really do much else to make the company a “real” company, thus leaving the door open for personal liability.

If a client wants to start a business in Texas, we often recommend that they form a exas LLC because of the legal protections and benefits it provides. However, the specific circumstances and needs of each client are different and this is a decision that is best made in consultation with a business attorney.

The attorney will cover other requirements that may need to be dealt with such as filing a DBA certificate, choosing the right company name, separating the company assets from personal assets and other issues that may arise under the circumstances presented. Clients should also consult with their CPA or tax attorney about the tax issues related to the business entity they choose.

Gomez Law Group is a Dallas employment lawyer and Dallas business lawyer. To learn more, visit http://www.gomezlawyers.com.

At Will Employment in Texas

At will employment can be a slippery slope toward discrimination.

Many people across America have lost their jobs in the face of this dreadful recession. Many of them needed to be laid off or let go because the company they worked for could no longer afford to pay their wages. Downsizing or resizing has become common and the consequences are devastating for those who lost their employment, as well as their families.

The underlying question here is whether or not a person lost their job due to the poor economy or for other nefarious reasons having to do with prejudices, illegal cost-cutting in the workplace, retaliation or blatant discrimination. Have you been terminated legally or do you suspect that something else was going on and you were wrongly fired? If you feel you were discriminated against in some form or other, then contact a Texas employment law attorney right away. While these cases may be difficult to prove, depending on the circumstances and how quickly you call a competent lawyer, you need to be made aware of your legal rights and discuss the case with someone who knows the law intimately.

The one strike you will have against you if you have been let go is that your employment, unless you have a contract, is “at will” which means you work for your employer as long as they want you and until they choose to fire you at any time for pretty much any reason. Mind you, this also means you may leave anytime you would like as well.

This doesn’t mean that you are not protected. You have the rights and guarantees of many laws which include: Chapter 21 of the Texas Labor Code and Title VII of the Civil Rights Act (1964) backing you up. These laws deal with the illegality of discrimination based on age, sex, national origin, color, race or religion. There are other laws that specifically state you may not be denied work if you have a disability; may not be terminated if you are asking for unpaid leave under the Family and Medical Leave Act; are refusing to perform an illegal act for your employer and/or if you are blowing the whistle on fraud, safety violations or environmental issues where you work. If you happen to have an employment contract in place, then you may have protection from termination under certain circumstances.

Again, look to the economy to understand the main reason behind the high numbers of jobs being lost. Take a closer look and you may also find employment discrimination going on. Consider the most recent statistics from the Equal Employment Opportunity Commission in Texas that state they investigated roughly 13,000 more complaints in 2008 than in 2007, and there were 95,402 charges issued against employers last year.

The hidden side of the numbers doesn’t show that sometimes when an employer is faced with cutting a portion of his staff, they may make some of those decisions based upon an improper bias. On the other hand, these numbers also reflect an increased level of awareness on the part of those who have been terminated; that they may have been fired for the wrong reasons, thus prompting them to file a complaint or lawsuit.

Do you feel that you have been wrongly terminated? If that is the case, speak to an experience attorney who will ask you the right questions to evaluate your case, find witnesses who may be able to verify your story, and assist you if your case gets to mediation or a courtroom.

Seth Wilburn writes for the Gomez Law Group, a Dallas employment lawyer and Dallas business lawyer. To learn more, visit Gomezlawyers.com.

Texas Employment Complex

There are numerous forms of illegal discrimination recognized under Texas employment law.
Not a lot of people are aware of the many forms of illegal discrimination relating to employment law in Texas. Those forms include refusing to hire or promote an individual because of some protected characteristics. The second form is firing that person for those characteristics, otherwise called wrongful termination.

What this boils down to is it’s illegal to discriminate against someone because of their age, race, sex, religion, national origin or because they have a disability. There are a number of other forms of discrimination recognized by Texas courts.

Interestingly, even though Texas state law does not specifically list sexual orientation as an illegal reason to fire a person or decline to hire them, it may be improper under certain circumstances to ask about an applicant’s sexual orientation or ask about their family life. On the other hand there are many personal traits and characteristics that are not protected.

An employer has every right to not hire a person with a criminal record and may also terminate a worker they discover with a record. This should not be confused with being “accused” of a crime. The mere accusation does not make the person guilty, which brings up another point you should know about – it being illegal to ask about arrests or accusations during the initial job interview. They only thing they may ask about are convictions.

Potential employers are also permitted to ask whether or not you need special equipment or accommodations to do your job – for instance a larger screen to see text because your eyesight isn’t very good, or an extra space at a desk for a wheelchair. If your need is not “reasonable,” it may not be discrimination if you are turned down for the position.

In Texas, like most states, workers are considered to be employed “at will.” In other words, the employee can end the employment relationship at any time without prior notice. On the other hand, in most instances, the employer can terminate the employee at any time without notice as long as the reason for termination is not an “illegal reason.”

As with most things pertaining to the law, there are numerous exceptions to the at will employment relationship. One exception is where the employee and employer sign an employment contract that limits either party’s ability to end the employment relationship. For example, the contract might provide a specific time period of employment or that the individual may only be let go for certain reasons.

The important thing about contracts is that the words that are chosen matter and many employment contracts are written differently. That means in order to understand what your rights are under an employment contract, you must be able to understand the legal meaning of the provisions it contains. The best way to do that is to take your contract to a qualified lawyer who can read and understand what it means.

Seth Wilburn writes for the Gomez Law Group, a Dallas employment lawyer and Dallas business lawyer. To learn more, visit Gomezlawyers.com.