Phillips Murrah Dallas Office Gets New Location

Dallas New Office Web leader imageDALLAS – To accommodate growth, the law firm of Phillips Murrah P.C. is proud to announce we have relocated our Dallas office. We remain in the Regency building, at 3710 Rawlins Street, and the firm’s Dallas-based attorneys now occupy Suite 900.

“We are excited about this move because it’s a direct result of our growth in the North Texas market,” said Phillips Murrah’s Managing Partner, Thomas G. Wolfe. “This Dallas office expansion indicates that we are on track with our overall plan.”

Dallas Lobby photo

Phillips Murrah Dallas reception area

Phillips Murrah opened its Dallas office in Spring 2018 intending to enhance value for clients in Texas and beyond by delivering substantial cost saving opportunities due to a lower comparative overhead structure. This goal is achieved, in part, through the firm’s collaborative culture, which includes using experienced Oklahoma lawyers with lower billing rates on client teams, and maintaining back-office operations in the Oklahoma City office.

“Support for the firm’s middle-market value proposition, as evidenced by an increased number of assignments from clients, ranging from local entrepreneurs to Fortune 500 companies, has allowed us to add new lawyers and new practice areas to our Dallas team since the beginning of 2020,” said Mark E. Golman, a Dallas-based Phillips Murrah Shareholder. “Our new space in Gaedeke Group’s Regency building will allow us to continue that growth.”

The new office contact information is as follows:

Phillips Murrah P.C.
3710 Rawlins St., Suite 900
Dallas TX, 75219
Main: 214.434.1919
Fax: 214.434.1370

PLEASE NOTE: All Dallas-based attorneys have new phone numbers, listed below.
Click to visit their attorney profile pages.

Laurel L. Baker portrait
Laurel L. Baker
Associate
469.485.7338
llbaker@phillipsmurrah.com
Phillips Murrah attorney Alison Cross
Alison J. Cross
Director
469.485.7336
ajcross@phillipsmurrah.com
Mark Golman Web
Mark E. Golman
Director
469.485.7333
megolman@phillipsmurrah.com
Janet Hendrick portrait
Janet A. Hendrick
Director
469.485.7334
jahendrick@phillipsmurrah.com
Kim Kelly portrait
Kim Beight Kelly
Associate
469.485.7337
kbkelly@phillipsmurrah.com
Beau M. Patterson portrait
Beau M. Patterson
Of Counsel
469.485.7340
bmpatterson@phillipsmurrah.com
Michele Spillman portraitMichele B. Spillman
Of Counsel
469.485.7342
mcspillman@phillipsmurrah.com

About us:

Phillips Murrah P.C. empowers clients with the insight and strategic legal counsel necessary to maintain a competitive edge. Through a multi-disciplinary team of skilled attorneys, clients are supported by across-the-board transactional legal representation and in all areas of civil litigation. The Firm provides world-class representation at competitive rates while maintaining personalized relationships that a client would expect from a boutique firm. Whether an individual, a local company, or a Fortune 500 corporation, our clients can depend on us to deliver valuable, practical solutions that fit specific needs.


Related posts:

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Limitations of the Texas Citizens Participation Act – Jan 2021

Phillips Murrah recognized as Champion of Justice Law Firm by Texas Access to Justice Commission – Oct. 2020

Laurel Baker joins Phillips Murrah law firm’s Dallas legal team – Oct. 2020

Clients seek lower costs for legal services – Sept. 2020

Texas Lawyer: Mid-Market Strategy to Achieve Cost Reductions that Clients Seek – June 2020

Beau M. Patterson joins Phillips Murrah Dallas office – June 2020

PM Director Janet Hendrick praises Supreme Court LGBTQ decision – June 2020

Michele C. Spillman joins Phillips Murrah Dallas office – Mar. 2020

Phillips Murrah Shareholder Janet A. Hendrick elected as Fellow of the Texas Bar Foundation – Dec. 2019

Hendrick partners with North Texas LGBT Chamber of Commerce – Aug 2019

Kelly selected to join Dallas Association of Young Lawyers Leadership Class – July 2019

Kim Beight Kelly joins Phillips Murrah Dallas office – May 2019

Director to present employment law lecture for SMU School of Law – May 2019

Alison J. Cross joins Phillips Murrah Dallas office – May 2019

Texas Court Sends Non-Compete Agreement Lawsuit to Arbitration – Nov. 2018

Wolfe reflects on Law Firm growth in Dallas market for Texas Lawyer article – Oct 2019

Phillips Murrah welcomes Janet A. Hendrick to Dallas office – Oct. 2018

Dallas employment attorney Janet A. Hendrick tells Law360 why she joined Phillips Murrah – Oct 2018

Phillips Murrah Director Janet Hendrick mentioned in Power Players: Women Leading in Law – Oct. 2018

ALERT: Austin Court of Appeals: Austin Paid Sick Leave Unconstitutional – Nov. 2018

Phillips Murrah expands into Dallas – May 2018

Sharpe shares Native heritage, legal experience in FDCC New Member Spotlight

Republished with permission from the Summer 2021 Edition of Federation Flyer

 

Calvin Sharpe Web pic

New Member Spotlight – G. Calvin Sharpe

The high caliber of new members being nominated, vetted and admitted to the Federation continue to deepen the broad diversity of our membership and enhance our brand. In this issue, we profile one of those who define our standard of being “above and beyond” in their personal life and in their profession. Please join us in welcoming and learning a bit more about one of our newest members; G. Calvin Sharpe, a Director with Phillips Murrah in Oklahoma City, OK. Contact “G. Calvin” at gcsharpe@phillipsmurrah.com.


Q:  G. Calvin, welcome as one of the FDCC’s newest members. Can you share a little with us about your educational and professional background?

A:  I am a life-long Sooner, having graduated from The University of Oklahoma with a Bachelor of Business Administration degree in 1982 and from The University of Oklahoma College of Law in 1985. I joined Phillips Murrah in 2009 and am now a Director of the firm. For many years, I have been very involved in the Oklahoma Association of Defense Counsel and the Oklahoma County Bar Association, among other organizations. In 2005, I was honored to be admitted to the American Board of Trial Advocates, an invitation-only organization that, at the time, required members to have tried at least 20 civil jury trials as lead counsel. Throughout my career, I have tried 30+ jury cases.

 

Q:  What got you interested to specialize in medical malpractice, environmental and products liability defense work?

A:  I was always focused on a career in litigation and gravitated to the defense side early on. With a retired doctor as my father-in-law and many doctor friends, medical malpractice defense became an easy choice. Defense work is particularly enjoyable, as each matter is unique and interesting. I like focusing on the technical manufacturing details and medical aspects of products liability and medical malpractice cases. Over the years, I have learned much about the practice of medicine, including watching an open-heart bypass surgery in person, but some other interesting things as well, including how to make my own Taco Bell chicken quesadilla ( when representing them in a products liability and negligence case brought against them) and how a paper mill works (when representing a paper products company in a negligence case brought against them).

 

Q:  When your Nomination Form came in, we noticed you are also admitted to practice in the Seminole Nation and Cherokee Nation Tribal Courts, as well as the Supreme Court of the Muscogee (Creek) Nation, Chickasaw Nation Tribal Court, and Osage Nation Tribal Court. Can you give us some insight into how you developed an interest and specialty in Tribal Laws?

A:  I have always been very proud of my Native roots. My great grandfather was a famous Seminole Indian. My father is a full-blood Seminole who did not even speak English until grade school when he was sent to boarding school. He grew up very poor but after joining the military, was able to put himself through college and law school. For many years, he held various positions within the Seminole Nation of Oklahoma and often represented the tribe as its counsel.

Through my dad and my relatives, I learned much about my Native heritage. To get more involved with the Native community, I served on the board of Red Earth for many years, including as President and Past-President. Red Earth, Inc., a non-profit, is a multi-cultural organization that promotes the understanding and continuation of traditional and contemporary Native culture and art. Each year, it holds a juried-art competition and festival that is attended by many tribes from around the country.

Through Red Earth, I made many contacts with Native businesses and tribal leaders. When Oklahoma’s many tribes became more affluent in recent years and began pursuing many more economic development projects than they had in the past, I was able to secure many opportunities to represent Native businesses, tribes, and tribal members, as well as non-native businesses wanting to do business with them.

 

Q:  We also understand that you trace your own ancestral lineage to the Seminole Nation of Oklahoma through your great grandfather, “Chili Fish,” who was – and I hope we have this correct – one of the first Light Horsemen, which was the first law enforcement unit in Indian Territory, and also a Chief of the Seminole Nation of Oklahoma What can you share with us about your family’s history?

chili fish gcs great grandfather

Chili Fish, Chief of the Seminole Nation of Oklahoma in 1935-1936 and Director G. Calvin Sharpe’s great grandfather

A:  Yes, my great grandfather was a very famous Seminole leader. He served as Chief of the Seminole Nation of Oklahoma in 1935-1936 and, as you mention, was one of the first Light Horsemen, who served as law enforcement in early Indian Territory-law enforcement which then consisted of hanging for serious offenses and public whipping for lesser offenses. The old “Whipping Tree” still stands in Wewoka, OK today.

Although he did not speak English, he was instrumental in helping his people address the serious deficiencies in federal administration of lndian affairs in the 1930s, including the exclusion of Indians in managing their own affairs and the poor quality of public services they received. In early 1932, he and a delegation of Seminole members visited Washington regarding the Mekusukey Mission school that the Department of Interior had promised to fund but had closed without warning, leasing the land on which the school sat to an oil company. As a result, Congress soon thereafter passed the Act of April 27, 1934 which made all sales and leases of tribal lands subject to the Seminole General Counsel’s approval.

In 1931, Chili Fish helped bring together the Seminoles with many other tribes to celebrate their own cultures and traditions in a large festival-an event that is still held today, known as “Seminole Nation Days:’ While in high school, my daughter rode in the Seminole Nation Days parade as First Runner-Up in the Miss Seminole pageant, a contest that allows young Seminole women to display their talents and knowledge of their Seminole culture.

 

Many native people are inherently suspicious of those outside their own tribes. To bring people within the tribe together with those outside the tribe is often not an easy task. Being creative in handling delicate issues has served me well.


Q:  Has there been anything that you have learned or utilized in your practice in representing the Tribal Nations that you have brought with you to your civil practice as well?

A:  Definitely the importance of maintaining creativity of thought. Because each tribe in Oklahoma is a sovereign nation in and to itself and each has its own laws and practices, I have learned that it is critical to remain open to new ideas and being creative in handling issues, especially when tribal laws intertwine with state and federal laws. Many native people are inherently suspicious of those outside their own tribes. To bring people within the tribe together with those outside the tribe is often not an easy task. Being creative in handling delicate issues has served me well. This thought process has helped me in other practices areas of my practice as well.

 

Q:  For many years, we have taken the heritage and legacy of the Tribal Nations in this country for granted, even though they were here before any of us. If there were 3 things you could share with us from your family’s history as well as your representation of the Tribal Nations about their story, history and culture, what would they be?

gcs and father

Director G. Calvin Sharpe and his father in front of a portrait of Chili Fish

Three things that are important to my family’s history, as well as the history of many Native people, are our Native language, art, and traditions. Each tribe in Oklahoma has its own special language, many of which were waning as the younger generations were taught to speak only English. A resurgence of learning Native languages has been helped by tribal language programs, as well as classes taught as some Oklahoma universities.

Each tribe also has its own style of art, including dress and jewelry. I enjoyed learning beadwork as a young child from my relatives. As to the importance of Native art, I would love to mention that later this year, the First Americans Museum (FAM) will be opening in Oklahoma City. It will be a world-class facility celebrating the 39 tribes of Oklahoma, both as they existed in the past and as they exist today. The museum will house many native artifacts on loan from The Smithsonian Institute. I welcome all FDCC members to visit FAM, a museum and center that what will no doubt be a national treasure once it opens.

And each tribe has its own traditions, including family celebrations, special foods, and religious holidays. As I mentioned above, Oklahoma Seminoles still celebrate “Seminole Nation Days” with our traditional stick-ball games (similar to modern-day lacrosse), enjoying homemade sorghum (molasses) and sotkey (a sour drink), and stomp and gourd dance competitions.

I believe it is very important for each tribe, including my own tribe, to educate our young tribal members in each of these areas in order to best preserve the rich culture and heritage of our Native past for the future.

 

Q:  What are some of the issues and cases you have been working on relating to the Tribal Nations?

A:  I argued an interesting issue related to separation of governmental powers before the Seminole Nation Supreme Court. There, the tribe’s legislative branch—the Tribal Counsel—was challenged

by the judicial branch. The Tribal Counsel had sought to regulate the Nation’s court system by dictating who could serve as judges and court staff. Representing the judicial side, we were able to successfully assert that such powers must be kept separate in order for the government to properly function.

Just recently, I successfully represented an Osage Nation Congresswoman in proceedings before the Osage Nation in which the tribe had sought to remove her from her position as a congresswoman.

I also represent non-native businesses in negotiations with various tribes in Oklahoma, including representing a non-native medical company in negotiations with the Rosebud Sioux tribe to enter into a teaming agreement for the provision of medical billing services to governmental agencies.

 

Later this year, the First Americans Museum (FAM) will be opening in Oklahoma City.

It will be a world-class facility celebrating the 39 tribes of Oklahoma, both as they existed in the past

and as they exist today. I welcome all FDCC members to visit FAM, a museum and center that what will no doubt be a national treasure once it opens.


Q:  What else do you enjoy doing in your spare time?

A:  My wife and I enjoy spending as much time as possible with our grandson, 20-month-old Hudson. We have a house at Lake Eufaula, a two-hour drive from home, and spend about a third of our time there, enjoying boating and just relaxing with our kids. I also enjoy hunting and fishing. My wife is an excellent cook so I probably spend too much time eating and enjoying a good wine as well.

 

Q:  OK … time for the lightning round … Favorite place ever visited?

A:  I can’t name just one so here are my top three: Maui, Costa Rica, and Santa Fe. And of course, Lake Eufaula, Oklahoma.

 

Q:  What’s on the bucket list?

A:  I love Formula 1 racing, so a ride and dinner with Lewis Hamilton is a “must” on my list.

 

Q:  What’s something else unique about you?

A:  I am a French Bulldog nut. My wife and I had a Frenchie for almost 16 years who passed away last year, and our daughter and son-in-law have one as well. Soon after our beloved Rocket died, we purchased a blue Frenchie, RJ, and just recently we got a white Frenchie, Windy. I follow many French Bulldog websites, including French Bulldog Enthusiast. I just can’t get enough of them!

 

Q:  Will we be seeing you in for the 2021 Annual Meeting at The Greenbrier Resort in WV?

A:  Assuming the vaccines are rolled out and the pandemic is under control by then, I definitely plan to attend.

Phillips Murrah Paying it Forward campaign benefits Oklahoma Humane Society in July

Phillips Murrah Paying It Forward Header Graphic

Phillips Murrah Presents: Paying It Forward

Amplifying the message of one non-profit each month for a year

[Paying It Forward] In Dec. 2020, Phillips Murrah partnered with Oklahoma NPR radio station KGOU to sponsor broadcast announcements each month that shine a light on a selected non-profit organization. Our aim is to amplify each beneficiary organizations’ needs and goals, and to help increase awareness, drive volunteer quality and quantity, assist in fundraising support, and improve capacity to deliver service to the community.

Our beneficiary in July is Oklahoma Humane Society, whose primary focus is to eliminate the needless euthanasia of healthy, adoptable animals in Oklahoma City.  #PIFOKC


July Beneficiary

Oklahoma Humane Society

Oklahoma Humane Society logo

Oklahoma Humane Society exists to enrich the communities it serves by promoting the well-being of animals. Their vision is to make the compassionate and respectful treatment of animals a prevalent community value and the well-being of animals a community priority.

“Our journey begins and ends with love. We love animals and believe that central Oklahoma will see a day when every healthy and adoptable pet finds a home.”

Founded in 2007, Oklahoma Humane Society works in close partnership with Oklahoma City Animal Welfare (OKC Animal Shelter) and other local shelters.

Contact Oklahoma Humane Society: okhumane.org

DONATE to Oklahoma Humane Society: okhumane.org/donate

Oklahoma Humane Society on Social Media:

Facebook logo icon Instagram logo icon Twitter logo icon


Previous Beneficiaries

June 2021: Arts Council Oklahoma City
May 2021: Partners in Public Health
April 2021: CASA of Oklahoma County
March 2021: The Homeless Alliance
February 2021: Mental Health Association Oklahoma
January 2021: Positive Tomorrows
December 2020: Regional Food Bank of Oklahoma

OSHA issues COVID-19 Emergency Temporary Standard for healthcare employers

OSHA-Temp-Standard-GraphicBy Janet A. Hendrick and Phoebe B. Mitchell

On June 10, 2021, the Occupational Safety and Health Administration (OSHA) issued its long-awaited Emergency Temporary Standard (ETS) regarding mandatory safety standards for COVID-19 for healthcare employers pursuant to President Biden’s January 21, 2021 Executive Order. The ETS outlines what healthcare employers must do to protect healthcare workers from COVID-19. OSHA also issued voluntary guidelines for employers outside of the healthcare sector.

The rule is designed to protect workers who face the highest risk of contracting COVID-19 in the workplace – namely, those working in healthcare settings where suspected or confirmed COVID-19 patients may be treated. This includes employees in hospitals, nursing homes, and assisted living facilities; emergency responders; home healthcare workers; and employees in outpatient care facilities. The ETS exempts fully vaccinated workers from masking, distancing, and barrier requirements in well-defined areas where there is no reasonable expectation that any person with COVID-19 will be present.

Here are the key requirements of the ETS:

  • Written COVID-19 Plan: Healthcare employers with more than 10 employees must develop and implement a written plan that designates a safety coordinator who has the authority to ensure compliance with the ETS. The plan must include a workplace-specific hazard assessment and involve non-managerial employees in the hazard assessment and plan development. Additionally, the plan must include policies and procedures to minimize the risk of transmission of COVID-19 between employees.
  • Patient Screening and Management: Employers must limit and monitor points of entry to settings where direct COVID-19 patient care is provided. Employers must also screen and triage patients, clients, other visitors and non-employees.
  • Personal Protective Equipment (PPE): Employers must provide and ensure that each employee wears a facemask when indoors or in a vehicle with other employees for work purposes. Employers must provide and ensure that each employee working directly with suspected or confirmed COVID-19 patients use respirators and other PPE to prevent exposure to the virus.
  • Social Distancing: Employers must keep people six feet apart when indoors.
  • Physical barriers: Employers must install cleanable or disposable barriers at each work location in non-patient care areas where employees are not separated by six feet.
  • Vaccination: Employers must provide reasonable time and paid leave for vaccination and vaccine side effects.
  • No Cost: All requirements of the ETS must be implemented at no cost to the employees.

The rule will take effect when it is published in the Federal Register and healthcare employers must comply with the majority of the guidelines 14 days after publication.

Phillips Murrah’s labor and employment attorneys continue to monitor developments regarding COVID-19 rules in the workplace to provide up-to-date advice to our clients.


Janet Hendrick portrait

Janet Hendrick is a Director and member of the Firm’s Labor and Employment Practice Group.

For more information on this alert and its impact on your business, please call 214.615.6391 or email me.

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E-Discovery in a Post-COVID World

When it comes to e-discovery, savvy litigants and litigators who take the time to proactively tweak their practices now will be well-positioned for effective advocacy (and intact litigation budgets) in a post-COVID world.

By Kim Beight Kelly
Published in Texas Lawyer (June 08, 2021)

Kim Kelly Web

Kim Kelly is a civil litigator in Phillips Murrah’s Dallas office who represents individuals and corporations in both federal and state courts.

By now, we are all aware of the explosion of digital connectivity necessitated by the COVID-19 pandemic. While the pandemic will eventually end, changes like increased remote work and reliance on digital communication are likely here to stay.

These societal changes spell certain increase to our digital footprints and for litigants, changes to the discovery landscape for electronically stored information (ESI). As experienced litigants know, discovery of ESI (e-discovery) can be a budget-buster involving costly disputes, production, and even sanctions if a party neglects its obligations.

Oftentimes, these issues can be avoided with simple planning and effective communication with opposing parties. Post-COVID e-discovery is no different: revisiting standard e-discovery practices now can make all the difference in litigation expenses and outcomes in the years to come.

Prior to the pandemic, discoverable communications generally included text messages, emails, and social media messages and posts. As time goes on, lawsuits will increasingly involve events during which parties relied more heavily than normal on these traditional digital communications and perhaps integrated new technologies like Zoom, Slack, Microsoft Teams or other collaborative platforms. For litigants, this means: (1) an increase in the volume of potentially relevant ESI; and (2) additional non-traditional sources of ESI.

As with any emerging issue, it will take time for courts to issue meaningful guidance on how to preserve, produce and request ESI in a post-COVID world, particularly from these non-traditional data sources. In Texas, courts have historically taken a measured “common sense” approach to e-discovery. Proportionality is the name of the game; baseless, oppressive requests for ESI and boilerplate objections will not win the day. Parties are encouraged to work out e-discovery issues on their own and, if court intervention is necessary, must come prepared with real facts on which forms of ESI are available, and the benefit and expense of the ESI they seek to compel or resist.

With this background in mind, it is reasonable to conclude that post-COVID litigants should continue to prioritize knowledge of each party’s systems and available ESI from the outset of litigation. For example, before sending out discovery requests for ESI, a party should consider whether to first request specific information regarding an opposing party’s systems and practices to better tailor their substantive requests.

Given recent rapid changes in many workplaces, these types of requests might be appropriate even when the party or attorney used to be familiar with the producing party’s systems. Litigators should adopt the same attitude toward their own clients and ensure from the outset of litigation that they have up-to-date information on their systems and retention policies. Counsel may also consider whether to update form discovery requests, instructions and definitions to include, for example, Zoom recordings or chats, prior versions of collaborative documents, or communications on other platforms.

As with much in life, an ounce of e-discovery prevention is worth a pound of cure. Savvy litigants and litigators who take the time to proactively tweak their practices now will be well-positioned for effective advocacy (and intact litigation budgets) in a post-COVID world.


Reprinted with permission from the June 08, 2021 edition of Texas Lawyer© 2021 ALM Media Properties, LLC. All rights reserved.

Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.


For more information about this article, please call Kim Beight Kelly at 214.615.6372 or email her at kbkelly@phillipsmurrah.com.

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Attorney Cassity Gies featured as family law columnist in The Journal Record

Phillips Murrah family law attorney Cassity B. Gies is featured in the June 3 edition of the Journal Record.

Phillips Murrah family law attorney Cassity Giles

Cassity practices family law including divorce and separation, custody, and child support issues.

In the Gavel to Gavel guest column, Cassity writes about the possibility of custody issues in family court as related Oklahoma medical marijuana license holders.

“Our family law practice handles medicinal marijuana issues on a weekly basis now. The impact of holding a medical marijuana card varies according to every situation, and multiple factors affect the extent that a patient card or commercial business license can complicate a custody decision,” she wrote.

Cassity expands on this topic in a longer version, which you can read here: Oklahoma medical marijuana license holders could face custody issues.


For more information on how the information in this article may impact you, please call 405.606.4744 or email Cassity B. Gies.

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2021 Phillips Murrah Externship Program teaches law students career lessons

Externship group photo

From L: Phillips Murrah Attorney Lauren Barghols Hanna, Phillips Murrah Director Candace Williams Lisle, OU Law 2L and PM Externs Christopher Punto and Camille Burge pose together in the courtroom of Federal Judge Jodi Dishman during their Apr. 14 educational visit and tour.

In January 2021, Phillips Murrah initiated its inaugural Externship Program in partnership with the University of Oklahoma College of Law, continuing the Firm’s efforts to recruit talented and motivated future attorneys who reflect the diversity of our local community. The Externship Program is spearheaded by the Firm’s Diversity, Equity, and Inclusion Committee. The Program, chaired by Director Candace Williams Lisle, is designed in alignment with Phillips Murrah’s goal to create a workplace culture that is open to all needs, perspectives, contributions, experiences, and backgrounds. The Externship Program exposes a diverse group of students to the everyday practice of law, cultivates relationships, and provides mentorship and opportunities to enhance legal skills. Participating students gain legal experience while working at Phillips Murrah’s Oklahoma City office and receive 3 hours of course credit.

This year, Phillips Murrah welcomed second-year OU Law students, Camille Burge and Christopher Punto. As externs, Burge and Punto were mentored by Phillips Murrah attorneys while learning about practice areas including litigation and appeals, labor and employment, business transactions, real estate, tax, family law, oil and gas, bankruptcy, municipal financing, energy and regulatory, administrative, estate planning, cannabis and liquor licensing, and workers compensation. The externs attended events including depositions, client meetings, a trial, and frequent lunch and learns.   They worked on a variety of research and writing projects and received feedback from their supervising attorneys. The externs also enjoyed a presentation by a Firm client about practicing law as Deputy General Counsel for a large public corporation.

A highlight of the program was a visit to the William J. Holloway Jr. United States Courthouse. Burge and Punto accompanied Lisle and Phillips Murrah Attorney Lauren Barghols Hanna to meetings with federal judges Hon. Bernard Jones, Hon. Patrick Wyrick, and Hon. Jodi Dishman. The federal judges offered advice, answered the externs’ questions, and Judge Dishman gave a tour of her courtroom.

“It was a unique opportunity for the externs to meet one-on-one with the federal judges, learn about their respective paths to the bench, and receive the benefit of their wisdom and advice,” Lisle said.

Below is a video interview with Burge and Punto discussing their courthouse visit as well as their experience participating in the 2021 Phillips Murrah Externship Program.

 

 

“We are very pleased with our inaugural externship program,” Lisle continued. “Through the interview process, we had the opportunity to meet a number of outstanding diverse students from OU Law School. Our externs, Camille and Chris, were talented, energetic, and enthusiastic. We were able to provide them with wonderful opportunities to learn about various areas of law practice from our talented practitioners, and to observe legal work in action. Our primary goal for the externship program was to develop relationships and collaborate with students with diverse backgrounds and perspectives, and we definitely achieved that goal with this program. We’re very excited to expand on our externship program in the future.”

Phillips Murrah continues to be a leader in gender equity in Oklahoma with 44% of Shareholders and 53% of all employees identifying as female. In 2020, Phillips Murrah was nationally recognized by Law360.com as “Ceiling Smashers.” Not only is Phillips Murrah a leader in the percentage of women attorneys, but more importantly, in women who have a seat at the table as equity partners and firm leaders,” Lisle said.

Through the Externship and other programs and initiatives, the Firm seeks to build on this success and further our team’s innovation, engagement, and creativity in our work.  As a six-time-consecutive recipient of the Top Work Place in Oklahoma honor, an award chosen annually by employees of Oklahoma businesses, the Firm is confident in our ability to grow and continue making Phillips Murrah a fulfilling place for all current and future employees.

Oklahoma medical marijuana license holders could face custody issues

medical marijuana custody issues graphic

By Cassity B. Gies

On June 26, 2018, Oklahoma voters approved State Question 788, legalizing cultivation, use, and possession of medical marijuana. Almost three years after passing with 57% of voter support, our state struggles to manage the competing interests surrounding a legal concept colored with controversial opinions, long standing prejudices, and discriminatory undertones that linger in the air every bit as noticeable as the smell of marijuana smoke, itself.

Phillips Murrah family law attorney Cassity Giles

Cassity practices family law including divorce and separation, custody, and child support issues.

Far from a settled issue, the debate surrounding the medicinal value of the marijuana plant carries hundreds of years of societal and legal baggage, which complicates the implementation of Oklahoma’s newest industry.

Anticipating the gamut of opinions surrounding this controversial plant, anti-discrimination laws approved both by voters in the original ballot initiative and again by lawmakers in the Oklahoma Medical Marijuana Use and Patient Protection Act (more commonly known as the Unity Bill), aim to protect patients and license holders from foreseen prejudices. However, when bumping up against 120 years of court decisions regarding marijuana as a dangerous Schedule 1 drug, akin to the likes of heroin, frankly, the reality of our state’s anti-discrimination protections should make Oklahoma patient card holders, especially those with families and children, nervous.

The Oklahoma Public Health Code, 63 O.S. § 42(D), reads “No medical marijuana license holder may be denied custody of or visitation or parenting time with a minor, and there is no presumption of neglect or child endangerment for conduct allowed under this law unless the persons behavior creates an unreasonable danger to the safety of the minor.”

Our family law practice handles medicinal marijuana issues on a weekly basis now. The impact of holding a medical marijuana card varies according to every situation, and multiple factors affect the extent that a patient card can complicate a custody decision.

Judges vary in their attitudes towards medical marijuana. Some attribute its uses to the likes of any other legal prescription. Others take a stricter stance, opposing its use by any person providing care for children, regardless of prescription. Clients should be fully informed that marijuana consumption during these early years of implementing its legality can disadvantage a marijuana patient if he or she comes up against judicial disfavor.

I have heard attorneys openly warned from the bench that, regardless of how the law reads, any consumption of marijuana by a parent will be enough for that judge to presume the parent is under the influence while parenting a child, and therefore endangering the child. While this may seem to cut directly against 63 O.S. 42D, judges are ultimately charged with determining the best interests of children during custody decisions, and the deference awarded to their judicial determination provides wide latitude.

One straight-shooting guardian ad litem candidly told me that if their office learns a client has a marijuana card and that client resides in certain rural jurisdictions, the first piece of advice given to those parents is to surrender their prescription and forfeit their medical marijuana license because they will instantly be disfavored by the court.

The more moderate and more widely held attitude towards medicinal marijuana use and child custody decisions examines the facts of a case and looks for a nexus between a parties’ marijuana use and activity that threatens to harm the child. Is a parent exposing the child to marijuana? Is the child able to access it? Are the parents subjecting the child to secondhand exposure? Practicing in family law requires understanding that multiple global perceptions shape custody decisions and, as in all custody considerations, the specific facts at hand will affect the outcome of the case.

When a parent finds themselves googling “marijuana and child custody decisions,” litigation is already at an increased risk of conflict, and understanding that complication starts with understanding how to frame the divisive issues at hand and the rules of the Oklahoma Medical Marijuana Authority (OMMA). Attorneys in this field should know how to craft their case when marijuana issues are present, and, remarkably, this area of law often gets glanced over by attorneys declining to study this nuance.

It surprises me how few family law attorneys have studied the OMMA regulations and are admittingly unfamiliar with the impact that they have on child custody issues. A common example is Okla. Admin. Code § 310:681-5-17, amended last fall, authorizing non-licensed minors to enter a licensed cannabis premise when accompanied by a parent or legal guardian.

Besides a thorough knowledge of cannabis laws, many attorneys have yet to dive into the evidentiary nuances that arise in these cases. For example, drug testing has been accepted for years amongst courts as forensic evidence, but a good attorney knows the limits of these tests. When the purpose of a drug test is to provide forensic evidence in a court of law, shockingly, the FDA does not regulate or review the processes and procedures for drug testing facilities providing forensic results. This surprises people to hear and causes a good attorney to slow down and learn a little cannabis chemistry.

Having a relationship with experts who can support or discredit a disputed drug test can crucially benefit your client’s case. Most of our local courts require education in understanding the limitations of a drug test. Understanding laboratory inconsistencies, chain of custody arguments, and scholarly research illuminating faulty processes helps sort through blatantly false results which, disappointingly, circulate in courtrooms everywhere.

As soon as a prospective client shares that they hold a medicinal marijuana license, or that opposing party holds a license, the attorney should recognize this complication and advise their client of the additional work that could likely accompany their case. With the Oklahoma cannabis industry blazing ahead into what many people consider a twenty-first century land rush, the accompanying fallout affecting family law should not be taken lightly.


For more information on how the information in this article may impact you, please call 405.606.4744 or email Cassity B. Gies.

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Employer tax considerations for remote work

international remote work graphic headerBy Jessica N. Cory

Over the last year, the COVID-19 pandemic resulted in a number of changes for employers, from navigating the PPP loan process to implementing new sick and family leave policies.  One major change has been a massive experiment in telecommuting, with the number of American workers working at least part-time from home more than doubling.  According to a recent Gallup poll,[1] over 50% of U.S. workers continue to report they are working remotely all or part of the time.  Moreover, of those working remote at least part of the time, approximately 44% reported they would prefer to stay remote even after COVID-19 is no longer a threat.  This interest in ongoing remote work possibilities is consistent with an earlier Pew Research Center survey, which found that among employed adults who say the responsibilities of their job can mostly be done from home, 54% would like to continue working from home after the coronavirus outbreak ends.[2]

Phillips Murrah attorney Jessica Cory

Jessica N. Cory represents businesses and individuals in a wide range of transactional matters, with an emphasis on tax planning.

Given employee interest in continuing to telework, it is important for employers interested in offering remote work as a benefit to evaluate their policies now.  One important employer-side piece of a teleworking policy is potential tax exposure.  During the pandemic, many jurisdictions enacted policies, whether formally or through informal guidance, to prevent employers from becoming entangled in additional tax obligations as a result of employees temporarily teleworking away from an employer’s physical office as a result of COVID-19 restrictions.  Moving forward, however, many of these temporary reprieves have or will soon expire.  U.S. employers should thus carefully consider the tax implications of allowing an employee to work in other jurisdictions, whether in another state where the employer does not otherwise have a taxable presence or even internationally.

From a tax perspective, what should be considered in determining whether to allow employees to work remotely across state lines?

 If an employee wants to work remotely from another state, where an employer does not currently conduct business, an employer must carefully consider the potential tax consequences for both the employee and the employer.  For example, when it comes to the employee, there may be an impact on the employee’s take home pay if more than one state requires income tax withholding from the employee’s check.  This could arise in multiple situations, such as where an employee works part-time in the employer’s office in State A and part-time from home in State B, or where the employer’s home state has adopted a “convenience of the employer” test, which imposes income tax on remote-out-of-state employees where the employee is working for an office based in that state.[3]

From the employer’s perspective, permitting remote work across state lines may result in more than simply increased payroll tax compliance costs, from the withholding obligations that must be met in new states.  For instance, in each case, an employer must also consider whether merely having an employee teleworking from a particular state obligates the employer to register to do business in that state or even potentially creates sufficient economic nexus for a corporate income or business franchise type tax to apply to some portion of the employer’s income.

 Do similar considerations apply to an employee working remotely in an international jurisdiction?

International teleworking, similar to working across state lines, will involve a jurisdiction-specific tax analysis. However, an international remote work situation can be even more complicated, requiring an employer to look at multiple levels of authority, from tax treaties to the foreign country’s domestic laws.  Accordingly, employer policy should allow for a case-by-case evaluation of any proposed international remote work and make clear that the employee will be responsible for bearing the economic burden to the extent the company is required to withhold and remit foreign income taxes on his or her wages, or foreign social security type payments.

In considering a proposed international teleworking situation, there are two primary tax issues with which a company needs to concern itself:

  • Whether the employee’s presence in the foreign country creates an economic nexus between the company and the foreign country, sufficient for the foreign country to tax all or part of the company’s income
  • Whether the company be required to withhold and remit foreign income tax from the employee’s wages

To answer these questions, the first source of relevant authority would be a bilateral tax treaty between the United States and the foreign country, if any.  To the extent such a treaty exists, it should provide guidance on both of these issues. Otherwise, the answer will be found in the foreign country’s tax laws.

For example, under the Model Income Tax Treaty published by the Organization for Economic Cooperation and Development (OECD),[4] upon which many tax treaties are based, a company will be subject to tax in the foreign treaty-party country only if the employee’s presence in the country creates a “permanent establishment,” or “PE,” in that country.  For purposes of the Model Income Tax Treaty, a PE is defined as a “fixed place of business.”  Commentary to the treaty indicates that an employer’s home office can office can create a PE for the company, but whether it does so will be a facts and circumstances-based analysis.  Individual tax treaties and the domestic law of foreign countries may provide for harsher or more lenient treatment.

One factor that may prove particularly relevant is the duration of the proposed international remote work assignment.  For example, the analysis would be very different for an employee who wants to telework in a treaty country for several weeks while on vacation versus an employee that wants to relocate to a treaty country for months at a time. In the latter case, an analysis would also need to be made of the nature of the employee’s work, such as whether the employee has contracting or other decision-making authority on behalf of the company, leading to a stronger case being made for the company conducting business through the employee’s “home office.”

A tax treaty, where applicable, should also provide guidance on the second question, with respect to whether the teleworking employee will be subject to tax while in the foreign country, and thus whether an employer will have an obligation to withhold and remit foreign income taxes for that employee. Under many income tax treaties, including the Model Income Tax Treaty, an individual working in a treaty-party country will only become subject to tax in that country if he or she remains for more than 183 days.  Accordingly, employer policy could allow shorter stints abroad in a treaty country, but not stays over a set amount of days (for example, 160, to create a buffer before hitting the 183 day threshold).  By contrast, in a non-treaty jurisdiction, an employer could face a withholding obligation from day one.

 For employers looking to offer remote work as an ongoing benefit, the potential tax pitfalls described above should be viewed as important considerations, not a barrier to teleworking.  With proper planning and the adoption of well-though company policies, an employer may be well-placed to offer either domestic or international remote work as a benefit to its employees, potentially improving employee retention and productivity and providing the employer with a broader pool of employee candidates.  A qualified tax attorney can assist in providing the necessary guidance to employers looking to craft a remote work policy that would allow employees to work out of the employer’s home state.


For more information on this alert and its impact on your business, please call 405.552.2472 or email me.

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[1] L. Saad & A. Hickman, Majority of U.S. Workers Continue to Punch In Virtually, Gallup (Feb. 12, 2021), https://news.gallup.com/poll/329501/majority-workers-continue-punch-virtually.aspx.

[2] K. Parker, J. Menasce Horowitz, & R. Minkin, How the Coronavirus Outbreak Has – and Hasn’t – Changed the Way Americans Work, Pew Research Center (Dec. 9, 2020), https://www.pewresearch.org/social-trends/2020/12/09/how-the-coronavirus-outbreak-has-and-hasnt-changed-the-way-americans-work/.

[3] See, e.g., Arkansas Dep’t of Finance and Admin., Legal Opinion No. 20200203, imposing Arkansas income tax on a computer programmer working remotely for an Arkansas-based employer from Washington state (“Akransas Code Annotated § 26-51-202 levies the Arkansas income tax on the income received by a nonresident from an occupation carried on within Arkansas.  Your client is carrying on an occupation in the state of Arkansas, albeit from an out-of-state location.  Although your client performs her work duties in Washington state, those activities impact computer systems and computer users in Arkansas … Those activities constitute the conduct of an occupation in this state.”

[4] OECD, Model Tax Convention on Income and on Capital 2017 (Full Version) (Apr. 25, 2019), https://www.oecd.org/ctp/model-tax-convention-on-income-and-on-capital-full-version-9a5b369e-en.htm.

Department of Labor announces return of liquidated damages for wage and hour claims

By: Janet Hendrick and Phoebe Mitchell

On April 9, 2021, in Field Assistance Bulletin (FAB) No. 2021-2, the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) announced it would return to its former policy of seeking liquidated damages from employers in pre-litigation investigations and settlements of wage and hour claims. This revived policy simultaneously rescinds the Trump Administration’s employer-friendly practice of refraining from pursuing liquidated damages in such matters.

Wage and Hour Division logoUnder the Fair Labor Standards Act (FLSA), violations of minimum wage or overtime requirements subject employers to liability for the unpaid minimum wages and overtime. But the FLSA also provides that employers may be liable for an equal amount in liquidated damages, sometimes referred to as “double damages.” 29 U.S.C. § 216(b). The Portal-to-Portal Act of 1947 amended the FLSA to add a safe harbor provision against liquidated damages for employers who act in good faith or who had reasonable grounds for believing the act or omission that resulted in liability was not a violation of the FLSA. 29 U.S.C. § 260.

The pro-employer Trump Administration’s WHD abstained from pursuing liquidated damages in certain scenarios, including when there was no evidence of bad faith on the part of the employer, or when the employer had no previous history of violations. The stated objective of this policy of abstention was to remove certain regulatory and enforcement obstacles to economic growth during America’s battle with COVID-19. In contrast, the Biden Administration’s FAB 2021-2 serves as reminder to employers of the new administration’s pro-worker agenda.

Now, under FAB 2021-2, the “WHD will return to pursing liquidated damages from employers found due in its pre litigation investigations provided that the Regional Solicitor (RSOL) or designee concurs with the liquidated damages request.”  This makes employer compliance with the FLSA more important than ever to avoid the possibility of an assessment of liquidated damages.

Phillips Murrah’s labor and employment attorneys continue to monitor developments to provide up-to-date advice to our clients regarding the DOL’s policies.

 


Janet Hendrick

Janet Hendrick is an experienced employment litigator who tackles each of her client’s problems with a tailored, results-oriented approach.

For more information on this Employment Alert and its impact on your business, please call 405.235.4100 or email me.

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Phillips Murrah Paying it Forward campaign benefits CASA of Oklahoma County in April

Phillips Murrah Paying It Forward Header Graphic

Phillips Murrah Presents: Paying It Forward

Amplifying the message of one non-profit each month for a year

[Paying It Forward] In Dec. 2020, Phillips Murrah partnered with Oklahoma NPR radio station KGOU to sponsor broadcast announcements each month that shine a light on a selected non-profit organization. Our aim is to amplify each beneficiary organizations’ needs and goals, and to help increase awareness, drive volunteer quality and quantity, assist in fundraising support, and improve capacity to deliver service to the community.

Our beneficiary in April is CASA of Oklahoma, an organization that is critical to the wellbeing of our community.  #PIFOKC


April Beneficiary

CASA of Oklahoma County 

Court Appointed Special Advocates (CASA) of Oklahoma County provides trained volunteers to be champions for the individualized best interests of children in foster care.

CASA provides a trained caring adult to advocate for the best interest of children who have been removed from their home due to abuse or neglect. CASA volunteers get to know the children and communicate with all parties in the case and people in the child’s life in order to provide complete information and sound recommendations to the court. As “the eyes and ears” of the judge, the CASA volunteer offers a neutral, third-party opinion to the court, one that is unbiased and child-focused.

Contact The Homeless Alliance: https://okcountycasa.org

DONATE to CASA at this link: https://okcountycasa.org/support/

CASA on Social Media:

Facebook logo icon Instagram logo icon Twitter logo icon YouTube logo icon


Previous Beneficiaries

March 2021: The Homeless Alliance
February 2021: Mental Health Association Oklahoma
January 2021: Positive Tomorrows
December 2020: Regional Food Bank of Oklahoma

PM Director Fred Leibrock earns CIPP/US Information Privacy Professional designation

graphic of gears with cyber security terms in them.

In today’s information economy, it is more important than ever for companies and organizations to manage and safeguard their data. It is equally important to understand and develop privacy practices to comply with the latest regulations regarding records management and reporting obligations for privacy, as well as a plan of action in the event of a breach.

Photograph of Fred Leibrock

Fred A. Leibrock is an experienced trial lawyer who has tried dozens of jury trials and has served as lead counsel in a number of significant cases involving complex, multi-jurisdiction issues.

Phillips Murrah Director, Fred A. Leibrock, recently earned his Information Privacy Professional (CIPP/US) designation. According to The International Association of Privacy Professionals (IAPP), which administers the designation, their certification program, is “the most encompassing, up-to-date and sought-after global training and credentialing program for privacy and data protection.” The CIPP designation, one of several certifications on offer by the IAPP, is geared toward laws and regulations as they pertain to the information economy.

“The Information Privacy Professional designation awarded by the International Association of Privacy Professionals demonstrates that the credentialed individual has undertaken a detailed course of study in information privacy and passed a comprehensive credentialing exam,” Fred explained.

“A CIPP designation allows prospective clients to know that the attorney they are considering hiring is recognized as having significant knowledge in data breach prevention, response, mitigation, remediation and reporting, state and federal privacy law requirements, cybersecurity regulation compliance, data retention compliance, and cybersecurity insurance issues,” he continued. “The CIPP designation is important to insurance companies who are looking for an attorney to handle a cybersecurity incident for one of their insureds.”

Fred, who is also the Firm’s Chief Information Officer, has experience in defending claims and lawsuits alleging damages due to data breaches, in fortification against tactics, techniques, and procedures of cyber threat agents, in information security policies, in data breach incident response and after-action reporting, in data retention polices, in cybersecurity regulation compliance, and in cybersecurity insurance law.


For more information on how cyber security has affected or may affect your business, please call 405.235.4100 or email Fred A. Leibrock.

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Phillips Murrah Director Catherine Campbell successfully appeals client’s $4.3 million defamation jury verdict

Congratulations to Phillips Murrah Director Catherine L. Campbell on her successful appeal of a defamation jury verdict against former Oklahoma lawmaker, Wayne Pettigrew.

Portrait of Phillips Murrah Director Catherine L. Campbell

Catherine L. Campbell is a versatile and experienced appellate attorney whose practice is focused on commercial litigation and labor and employment matters.

A story about the verdict is featured in the March 18 edition of the Oklahoman newspaper, which states:

In the appeals court’s 2-1 decision issued last month, Vice-Chief Judge Barbara G. Swinton wrote that the trial court failed to properly instruct the jury on what kind of defenses could overcome a defamation challenge and did not provide a list of the alleged defamatory statements.

“As a consequence, there is a high probability the jury was misled by these errors and reached a different result than they would have reached but for the error,” Swinton wrote, reversing the decision.

Oklahoma’s Supreme Court declined to hear the case on appeal. It will be sent back to the lower court for another trial.

Click here to view the full article at oklahoman.com.

 

USDOL seeks to overturn two proposed FLSA rules: Independent Contractor Rule and Joint Employer Rule

USDOL header employee classification graphicBy Byrona J. Maule and Phoebe B. Mitchell

In January, the United States Department of Labor (DOL) issued a notice of proposed rulemaking regarding the classification of independent contractors. Now, just months into President Biden’s term, his administration seeks to overturn both this proposed rule and the DOL’s final rule regarding joint employers.

Independent Contractor

The proposed independent contractor rule, discussed at length here, significantly changed the legal analysis involved for employers deciding how to classify their employees. In stating its intention to rescind the new independent contractor rule, the DOL stated that the new “economic reality test,” which is not used by courts or the department, is not supported by longstanding case law or the text of the Fair Labor Standards Act (FLSA). Further, the DOL commented that the new rule minimizes the traditional factors utilized by courts in classifying workers, making it less likely to establish that a worker is an employee under the FLSA. Worker classification is an important issue for employers as it determines which workers are entitled to benefits and the overtime protections under the FLSA.

The DOL did not provide guidance on a replacement for the proposed rule. President Biden has stated his support for a uniform independent contractor test modeled after California’s “ABC” test. The “ABC” test considers a worker to be an employee unless their employer establishes all three of the following:

  1. The worker is free from control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of such work and in fact;
  2. The worker performs work that is outside of the “usual course” of the hiring entity’s business; and
  3. The worker is customarily engaged in an independently established trade, occupation or business of the same nature as the type of work performed for the company.

Joint Employer

The DOL’s joint employer rule clarified an employee’s joint employer status, such as when an employee performs work for his or her employer that simultaneously benefits another individual or entity. The rule, which took effect on March 16, 2020, was subsequently challenged by 17 states and the District of Columbia in a lawsuit filed in the Southern District of New York. The lawsuit claimed that the new joint employer rule violated the Administrative Procedure Act. The Southern District of New York agreed, holding that the new rule was contrary to the FLSA.

The March 16, 2020 final rule included several elements that were not consistent with the DOL’s prior joint employer rule, including:

  • a four-factor balancing test to determine when a person is acting directly or indirectly in the interest of an employer in relation to the employee;
  • a provision that an employee’s economic dependence on a potential joint employer does not determine whether it is a joint employer; and
  • a provision that an employer’s franchisor, brand and supply, or similar business model and certain contractual agreements or business practices do not make joint employer status under the FSLA more or less likely.

Jessica Looman, the DOL Wage and Hour Division Principal Deputy Administrator stated that “The Wage and Hour Division’s mission is to protect and respect the rights of workers. Rescinding these rules would strengthen protections for workers, including essential front-line workers who have done so much during these challenging times.”

The DOL is seeking public input until April 12, 2021 on its proposal to rescind these two rules.

Phillips Murrah’s labor and employment attorneys continue to monitor developments to provide up-to-date advice to our clients regarding the DOL’s new rules.


Portrait of Byrona J. Maule

Click to visit Byrona J. Maule’s profile page.

For more information on this Employment Alert and its impact on your business, please call 405.552.2453 or email me.

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Kanye Family Law Lessons – Digging for Gold in Oklahoma

By Robert K. Campbell

Music has permeated our society since the beginning of time. Artists have touched on all topics, such as politics, religion, social matters, etc. In 2005, Kanye West had a number-one hit song with “Gold Digger.” Urban Dictionary defines the term “gold digger” as “someone who only likes people because of how much money they have, or because of the items they own.”

In this article, I will discuss some of the lyrics and how West’s sentiments would apply based upon Oklahoma laws. For purposes of this article, any gender specificity as it relates to the term “gold digger” should be disregarded, as the term is gender neutral. After all, anyone can dig for gold. I am not, however, suggesting explicitly, implicitly, or in any other manner, that either Kim Kardashian West or Kanye West is a gold digger.

The first lines in verse two of the song begin: Eighteen years, eighteen years / She got one of your kids, got you for eighteen years

Attorney Robert Campbell

Robert K. Campbell’s legal practice is focused in the area of family law, specifically concentrated in matters of divorce, legal separation and custody issues. He represents clients by providing steady, thoughtful and resourceful counsel to advise them through significant family and life transitions.

This is mostly a true statement. Oklahoma law requires both parents to provide financial support for their children during a divorce, or in situations where the parents were never married. Typically, one parent pays the other parent child support. Child support is generally owed until the minor child reaches the age of 18 or graduates high school, whichever is later. Considering the lyrics above, if you have a child, you will be obligated to pay child support until at least the age of 18, so, the above lyrics are, in essence, correct.

“Gold Digger” lyrics go on to state: I know somebody payin’ child support for one of his kids / His baby mama car and crib is bigger than his … She was supposed to buy your shorty Tyco with your money / She went to the doctor, got lipo with your money

This sentiment is often a complaint that the child support payor makes about paying child support. The argument is that the payor pays the other parent monthly child support, and the payor does not know how the support is being spent by the other parent.

In Oklahoma, a child support obligation assumes that all families incur certain child-rearing expenses comprised of housing, food, transportation, basic public educational expenses, clothing, and entertainment. Absent a binding and enforceable agreement between the parents, there is no requirement that the child support funds be used for any specific purpose. In other words, yes, it could happen that a parent pays child support and the other parent uses it for a car, home, or whatever else they wish.

In a dramatic twist of events, “Gold Digger” lyrics include lines that state: Eighteen years, eighteen years / And on the 18th birthday he found out it wasn’t his?

Imagine believing you are the parent of your child, to then find out after 18 years that the child was not yours after all. This can and has happened. There is a published opinion in Oklahoma touching on this very point.

In Miller v. Miller, 1998 OK 24, Mr. Miller sued his ex-wife and her parents for damages for inducing him to marry his ex-wife and knowingly misrepresenting to him that she was pregnant with his child. Mr. Miller sued his ex-wife under the theories of fraud, intentional infliction of emotional distress, and that his ex-wife was unjustly enriched equal to the amount of child support he paid his ex-spouse per month.

The Oklahoma Supreme Court held that Mr. Miller had a viable claim for fraud and intentional infliction of emotional distress, but not for unjust enrichment for the child support he paid his ex-wife. To avoid such a situation, if there is any question or doubt that you are the father of a child, then genetic testing can be performed to establish your parentage, or lack thereof, to hopefully avoid the situation described above.

To side-step the mishaps that West sings about in “Gold Digger,” he attempts to provide his listeners with some words of wisdom. “Gold Digger” contains the lyrics: Holla, “We want prenup! We want prenup!” / It’s something that you need to have / ‘Cause when she leave yo’ ass, she gon’ leave with half

While these lyrics are not bad advice, the part about leaving you with half without a “prenup” is not always true. In Oklahoma, the courts divide the marital estate equitably, which does not always mean equally. However, in most circumstances, the Court attempts to divide the marital estate equally, but there may be circumstances that warrant a disproportionate division.

Oklahoma does recognize and enforce a valid prenuptial agreement. However, at this time, it does not recognize a post-nuptial agreement. Thus, if you want to determine how your estate will be divided upon death or divorce, you must execute a prenuptial agreement prior to marriage.

Additionally, while a prenuptial agreement can allow a couple to determine matters related to the division of their estate and support alimony, it cannot be used to determine custody, visitation, and child support. Issues related to children are always subject to the Court’s determination and what is in the best interest of the children.

And remember, as I stated earlier in the article: Now, I ain’t saying she a gold digger


For more information about this article or any other Family Law inquiries, please call Robert K. Campbell at 405.606.4797 or email him at rkcampbell@phillipsmurrah.com.

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OSHA issues updated guidance on workplace COVID-19 prevention programs

By Lauren Symcox Voth

The Occupational Safety and Health Administration (“OSHA”) published updated COVID-19 guidance for businesses on Friday, Jan. 29, 2021. The guidance, Protecting Workers:  Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace, (“Guidance”) outlines obligations for employers to comply with OSHA’s General Duty Clause during the pandemic and draws on previously published OSHA and Centers for Disease Control guidance.[1]  OSHA emphasizes the need for employers’ to plan and prepare to protect employees in the workplace from COVID-19.  The Guidance states that it does not create any new legal requirements for employers, but instead provides more detail on “existing mandatory safety and health standards.”  OSHA implies the Guidance may be used for purposes of enforcing employer compliance with COVID-19 prevention programs.

Stock image of industrial worker wearing a mask

(Adobe Stock)

OSHA recommends employers include employees in the development of company prevention programs.  OSHA takes a stronger stance on masking requirements for employees and anyone entering the workplace, physical distancing of employees and non-employees, installing barriers to protect employees, and improved ventilation to prevent the spread of COVID-19 in buildings.

OSHA considers the following to be essential to an effective COVID-19 prevention program.  Many of these elements have been in place for employers for several months.  Companies can benefit from documenting these elements to ensure a cohesive and complete COVID-19 prevention program.  A comprehensive COVID-19 Prevention Program should address the following elements:

  1. Assignment of a workplace coordinator, centralizing responsibility and communication from the company to employees regarding COVID-19 issues.
  2. A Company assessment of hazards in order to identify where and how workers might be exposed in the workplace.
  3. Identify the combination of measures that will limit the spread of COVID-19 in the workplace, which includes prioritizing what controls are most effective and least effective. For example, sending home people with a known exposure, physical distancing, improving ventilation, and cleaning routines.  The Guidance states face coverings should include “at least two layers of tightly woven fabric” and “Employers should provide face coverings to workers at no cost”.
  4. Consider protections for workers at higher risk for severe illness through supportive policies and practices. This element may overlap with an employer’s federal obligations under the Americans with Disabilities Act, Family Medical Leave Act, or state statutory obligations for accommodating disabled employees to protect them from the risk of contracting COVID-19.
  5. Establish a system for communicating effectively with workers in a language they understand. This includes communicating to employees about COVID-19 hazards and a method for employers to receive communications from employees, without fear of reprisal or discrimination.  The communication plan should allow employees to report illness, exposures, hazards, and closures related to COVID-19.
  6. Educate and train workers on company COVID-19 policies and procedures using accessible formats and in a language employees understand. This includes education on COVID-19, prevention policies, and making sure employees understand their rights to a safe and healthful work environment.
  7. Instruct workers who are infected or have potential exposure to stay home, isolate or quarantine to prevent or reduce the risk of spreading COVID-19. OSHA states that absences to prevent or reduce the spread of COVID-19 should be non-punitive.
  8. Minimize the negative impact of quarantine and isolation on workers. OSHA believes this can be achieved by employers permitting remote work or allowing employees to work in areas isolated from others.  OSHA also encourages implementation, or allowing the use of, paid sick leave policies for time off work.  In some states employees may be entitled to COVID-19 related leave.  Although the paid leave requirements in the Families First Coronavirus Response Act expired on December 31, 2020, employers may continue these leave policies and can find more information here [insert link to PM article].  Employers should continue to watch for further changes in federal and state paid leave requirements in 2021.
  9. Isolate, send home and encourage medical attention for employees who show symptoms.
  10. Perform enhanced cleaning and disinfection after people with suspected or confirmed COVID-19 have been in the facility. This may include closing areas, opening doors or windows, waiting to clean, and using disinfectants appropriate to clean COVID-19.
  11. Provide state and local guidance on screening and testing.
  12. Record and report COVID-19 infections and deaths on the company’s Form 300 logs according to OSHA standards. Outbreaks should also be reported to the local health department for contact tracing.  Employers are also prohibited from retaliating or discriminating against employees who speak out about unsafe working conditions or report infection or exposure to COVID-19 in the workplace.
  13. Implement protections from retaliation and set up an anonymous process for workers to voice concerns about COVID-19-related hazards.
  14. Make a COVID-19 vaccine or vaccination series available at no cost to all eligible employees.
  15. Employers should not distinguish between workers who are vaccinated and those who are not. This means that vaccinated employees must still comply with all COVID-19 protective policies including but not limited to physical distancing, masking, and other steps necessary to limit transmission.
  16. Apply all other applicable OSHA standards and requirements (i.e. respiratory protection, sanitation, etc.) to ensure that the company provides a safe and healthful work environment free from recognized hazards that can cause serious physical harm or death.

The Guidance provides additional detail for implementing these essential elements to a COVID-19 prevention program, including procedures for isolating infected or potentially infected employees, physical distancing guidelines, physical barrier guidelines, face coverings, cleaning and ventilation improvements.

This OSHA Guidance is likely the first of many updates to COVID-19 prevention procedures for employers in 2021.  Employers should review the full Guidance for more information on COVID-19 prevention programs and keep watch for more information from OSHA, the U.S. Department of Labor, and the Equal Employment Opportunity Commission regarding employer obligations.

[1] The General Duty Clause requires employers to provide employees with a work environment “free from recognized hazards that are causing or likely to cause death or serious physical harm.”  OSH Act of 1970, §5(a).


Attorney Lauren Symcox Voth

For more information on this alert and its impact on your business, please call 405.606.4740 or email me.

Phillips Murrah’s labor and employment attorneys continue to monitor developments to provide up-to-date advice to our clients during the current COVID-19 pandemic. Keep up with our ongoing COVID-19 resources, guidance and updates at our RESOURCE CENTER.

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Phillips Murrah Director Jim Roth featured in USA Today energy article

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

On Monday, Jan. 18, 2021, Phillips Murrah Director Jim Roth was featured as a source in the USA Today energy article titled “Biden’s administration could affect Oklahoma’s energy industry in surprising ways.”

From the article:

Presidential administrations and Congresses throughout the past 40 years undoubtedly worked to nudge the nation’s energy and climate-related policies one way or another.

Debates about ways to support the energy industry both in Oklahoma and across the nation have been part of every presidential and congressional election since the 1980s, and subsequent governmental actions have prompted applause or angst as they have helped or hurt energy production along the way.

That’s no surprise. While the number of Oklahomans employed by oil and gas companies in the state is relatively small, the industry’s impact on the overall health of the state’s economy and the services provided by state and local governments is huge.

Roth is referenced and quoted after after remarks by Mike Cantrell, co-chairman of the Oklahoma Energy Producers Alliance.

“I have done my fair share of that, looking back and asking whether or not the positions I took were right,” Cantrell said. “The question is, should we have let the marketplace decide?”

His thoughts are similar to those of Jim Roth, an attorney who is the dean of Oklahoma City University’s School of Law and a past Oklahoma Corporation Commissioner.

Roth said past Congresses and administrations indeed have been able to influence rises and falls in domestic energy production through regulatory and tax-related policies.

“But there are market forces that are evolving, regardless who is in control,” Roth said.

To read the entire story, click HERE.

Limitations of the Texas Citizens Participation Act

Originally published in Texas Lawyer on Jan. 05, 2021.

Logo Texas LawyerThe Texas Citizens Participation Act (TCPA), commonly referred to as the Texas Anti-SLAPP statute, provides litigants a valuable tool: an early opportunity to move to dismiss a lawsuit that infringes on their First Amendment rights, and if successful, an award of attorney fees.

By Laurel L. Baker |

 The Texas Citizens Participation Act (TCPA), commonly referred to as the Texas Anti-SLAPP statute, serves as a constitutional safeguard protecting the “rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect[s] the rights of a person to file meritorious lawsuits for demonstrable injury.” In other words, the statute provides litigants a valuable tool: an early opportunity to move to dismiss a lawsuit that infringes on their First Amendment rights, and, if successful, an award of attorney fees.

Although the Texas Supreme Court has previously described the TCPA as “casting a wide net,” recent changes to the statute’s language, in effect since Sept. 1, 2019, have significantly narrowed its application:

  • Prior to the amendments, a litigant could file a motion to dismiss under the TCPA if the “legal action is based on, relates to, or is in response to a party’s exercise of the right of free speech, right to petition, or right of association.” The amended statute omits the “relates to” language.
  • The amendments limit “right of association” to matters “relating to a governmental proceeding or a matter of public concern.”
  • The amended statute defines a “matter of public concern” as a statement or activity regarding a public official, public figure, or other person who has drawn substantial public attention due to the person’s official acts, fame, notoriety or celebrity; a matter of political, social or other interest to the community, or; a subject of concern to the public.

Although not an exhaustive list of the amendments to the TCPA, these changes are likely to be the most litigated, as evidenced by the Dallas Court of Appeals recent decision in Vaughn-Riley v. Patterson.

In Patterson, the Dallas Court of Appeals was asked to interpret the changes to the TCPA and determine whether the statute applies to claims related to alleged defamatory statements made by an actor, Terri Vaughn. Vaughn argued that her statements fell within the purview of the TCPA because they “concerned the quality and timeliness of the public performance of a theatrical work authored and produced by a limited purpose public figure and marketed to the public in Texas, Louisiana, and Oklahoma.” The appeals court, ultimately unpersuaded by Vaughn’s argument, focused on the amended definition of a “matter of public concern” and held that the statements were “not based on or in response to” Vaughn’s exercise of the right to free speech or right of association.  In the court’s view, “Vaughn’s actions and communications regarding one isolated performance that did not go on as scheduled is simply not a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.”

In light of the 2019 amendments to the TCPA and the resulting opinion in Patterson, the intent of the legislature and Texas courts could not ring louder—to rein in the circumstances to which the TCPA would apply. While the statute previously served as a frequently used sword in litigation, we will likely see courts less likely to apply it to cases in which the statute’s application to the facts is not “black and white.”


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Laurel L. Baker is a litigation attorney at the law firm of Phillips Murrah. Her primary practice focus is on commercial and business litigation matters representing both plaintiffs and defendants disputes involving banking, corporate governance, contracts, mergers and acquisitions, employment, and other business issues. Baker received her J.D. from the SMU Dedman School of Law and was a Dean’s Scholarship Recipient. She is also a member of the Junior League of Dallas, through which she volunteers in the community.


Reprinted with permission from the January 5, 2021 edition of the Texas Lawyer © 2021 ALM Media Properties, LLC. All rights reserved.

Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.

Employee or independent contractor? DOL finalizes new rule

By Michele C. Spillman

The United States Department of Labor announced a new final rule on January 6, 2021 regarding classification of workers as independent contractors under the federal Fair Labor Standards Act (FLSA).  “Streamlining and clarifying the test to identify independent contractors will reduce worker misclassification, reduce litigation, increase efficiency, and increase job satisfaction and flexibility,” said DOL Wage and Hour Division Administrator Cheryl Stanton.  The rule takes effect on March 8, 2021, absent action by the new administration (more on that below).

The FLSA entitles employees, but not independent contractors (aka “freelancers,” “gig workers,” and “consultants”), to certain protections, such a minimum wage and overtime requirements. Classification of workers has long been a confusing issue for employers because neither the FLSA nor its regulations define “employee” or “independent contractor.”

contract gig workerDOL has historically used the “economic reality” test to determine whether a worker is an employee or independent contractor. Under the economic reality test, “[I]n the application of the FLSA an employee, as distinguished from a person who is engaged in a business of his or her own, is one who, as a matter of economic reality, follows the usual path of an employee and is dependent on the business which he or she serves.” Department of Labor. (2008).  Employment Relationship Under the Fair Labor Standards Act [Fact Sheet 13].

In applying the economic reality test, DOL relied on six factors developed by the U.S. Supreme Court. But these factors often proved difficult to apply and led to conflicting results across various employers and industries, making worker classification a moving target and a hotly debated issue.

The new rule reaffirms the “economic reality” test, but identifies and explains two “core factors” that are most probative to the question of whether a worker is in business for herself (an independent contractor) or someone else (an employee): (1) the worker’s nature and degree of control over the work; and (2) the worker’s opportunity for profit or loss based on initiative and/or investment.

DOL identified three other factors that “may serve as additional guideposts in the analysis, particularly when the two core factors do not point to the same classification”: (1) the amount of skill required for the work; (2) the degree of permanence of the working relationship between the worker and the potential employer; and (3) whether the work is part of an integrated unit of production.

Despite this clarification, worker classification remains a very fact-specific inquiry. As DOL cautions, “the actual practice of the worker and the potential employer is more relevant than what may be contractually or theoretically possible.”

Whether the final rule will become effective as planned remains a question. President-Elect Biden has pledged to combat worker misclassification, and many predict he will freeze the rule when he takes office on January 20, 2021.

We will continue to post updates on new guidance from DOL and other federal agencies on our website.  For more information, consult with a Phillips Murrah labor and employment attorney.


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With a background in both commercial litigation and labor and employment law, Michele offers clients comprehensive solutions to meet their business goals.

For more information on how this DOL guidance may impact your business, please call 214.615.6365 or email Michele C. Spillman. Click HERE to visit her profile page.

For ongoing coverage of information related to COVID-19, please visit our COVID-19 Resource Center.  

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Sign of the Times: Department of Labor publishes guidance on electronic postings and telemedicine visits in light of pandemic changes

By Janet A. Hendrick

Janet Hendrick

Janet Hendrick is an experienced employment litigator who tackles each of her client’s problems with a tailored, results-oriented approach.

Recognizing ongoing changes the COVID-19 pandemic has brought to the way we work and receive medical treatment, the Wage and Hour Division of the United States Department of Labor issued employer guidance on December 29, 2020 on two issues:  electronic posting of required employment law notices and when a televisit with a health care provider counts as an in-person visit under the Family and Medical Leave Act. DOL’s guidance comes in the form of Field Assistance Bulletins, which provide guidance to the Wage and Hour Division field staff.

Field Assistance Bulletin No. 2020-7:  Electronic Statutory Postings

DOL published this guidance in response to “questions from employers regarding the use of email or postings on an internet or intranet website, including shared network drive or file system, to provide employees with required notices of their statutory rights.”  The bulletin provides guidance as to when these forms of electronic notice satisfy the notice requirements of the Fair Labor Standards Act, the Family and Medical Leave Act, the Employee Polygraph Protection Act, and the Service Contract Act.  DOL’s general view is that electronic postings should supplement, but not replace, physical postings in most cases.

Electronic communications graphicFirst, if a statute requires the posting of a notice “at all times,” DOL will only consider electronic posting an acceptable substitute where (1) all employees work exclusively remotely, (2) all employees ordinarily receive information from the employer electronically, and (3) all employees have access to the electronic posting at all times.  For employers that have both remote and on-site employees, the employer may supplement physical postings with electronic postings and in fact the DOL “would encourage both methods of posting.”

Second, if a statute, such as the Service Contract Act, permits employers to meet notice requirements by delivery of individual notices to each employee, an employer satisfies this requirement by emailing notices, but only if the employee customarily receives information from the employer electronically.  Otherwise, the employer must send a physical notice to satisfy the notice requirement.

Third, any electronic notice must be as effective as a physical, hard-copy posting to meet statutory requirements.  This means employees must be able to readily see a copy of the posting, which DOL says will “depend on the facts.”  At a minimum, DOL requires that the employees are capable of accessing the posting without having to request permission to view a file or access a computer.  DOL will not consider an employer to have complied with a posting requirement if:

  • The employer does not customarily post employee notices electronically;
  • The employer has not taken steps to inform employees where and how to access the notice electronically;
  • The employer posts the notice on an unknown or little-known electronic location, which DOL equates to “hiding the notice, similar to posting a hard-copy notice in an inconspicuous place, such as a custodial closet or little-visited basement”; or
  • The employees cannot easily determine which electronic posting applies to them and their worksite.

Following the general guidance, the bulletin provides further guidance specific to each relevant statute, with examples of when DOL will consider electronic postings compliant with the relevant statutory requirement.

Field Assistance Bulletin No. 2020-8:  Telemedicine and Serious Health Conditions under the FMLA

DOL’s Wage and Hour Division issued a frequently asked question (FAQ #12) in response to the COVID-19 pandemic that states “Until December 31, 2020, the WHD will consider telemedicine visits to be in-person visits . . ., for purposes of establishing a serious health condition under the FMLA.  To be considered an in-person visit, the telemedicine visit must include an examination, evaluation, or treatment by a health care provider; be performed by video conference; and be permitted and accepted by state licensing authorities.”  Bulletin 2020-8 provides guidance to DOL staff regarding telemedicine visits past December 31, 2020.

As a reminder, under the FMLA, eligible employees may take leave for their own or a family member’s “serious health condition.” A “serious health condition” requires either inpatient (overnight) care or “continuing treatment,” which in turn includes “examinations to determine if a serious health condition exists and evaluations of the condition.”  FMLA regulations provide that “treatment by a health care provider means an in-person visit to a health care provider,” and does not include a phone call, letter, email, or text message.”

Noting the rapid acceleration of telemedicine during the COVID-19 pandemic, and the Wage and Hour Division’s “experience . . . that health care providers are now often using telemedicine to deliver examinations, evaluations, and other healthcare services that would previously have been provided only in an office setting,” the bulletin states that “WHD will consider a telemedicine visit with a health care provider as an in-person visit,” provided certain criteria are met.

To be considered an in-person visit, the visit must include:

  • An examination, evaluation, or treatment by a health care provider;
  • Be permitted and accepted by state licensing authorities; and
  • Generally, be performed by video conference.

Phone calls, letters, emails, or text messages remain insufficient, alone, to satisfy the in-person visit requirement.

We will continue to post updates on new guidance from DOL and other federal agencies on our website.


For more information on how this DOL guidance may impact your business, please call 214.615.6391 or email Janet A. Hendrick.

For ongoing coverage of information related to COVID-19, please visit our COVID-19 Resource Center.  

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SCOTUS declines to hear same-sex parent case

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By Janet A. Hendrick and Mark E. Hornbeek

On December 14, 2020, the United States Supreme Court declined to review the Seventh Circuit Court of Appeals’ decision requiring the State of Indiana to list two females on the birth certificate of a child of a lesbian couple who was conceived by in-vitro fertilization. Ashlee and Ruby Henderson brought suit against the Indiana State Health Commissioner claiming that the State’s practice of listing only the birth mother and her husband, if any, violated their rights to equal protection under the United States Constitution. Indiana argued that forcing it to identify both women as parents would prevent the State from treating the sperm donor as a parent, while providing parental rights to an individual who provided neither the sperm nor the egg.

Same sex parents graphicThe trial court ruled in favor of the couple and ordered Indiana to treat same-sex couples the same as opposite-sex couples with regard to parentage on birth certificates. Indiana appealed, and the appeals court upheld the trial court’s decision. Indiana then filed a petition of certiorari asking the Supreme Court to hear the case.

Court-watchers have monitored this case, waiting to see if the Supreme Court’s 6-3 conservative majority, given the addition of new Justice Amy Coney Barrett, would take this opportunity to roll back rights of same-sex couples as established by the Court’s 2015 decision in Obergefell v. Hodges, legalizing same-sex marriage, and confirmed by the Court’s 2017 decision in Pavan v. Smith, which requires the government to provide the same rights to all couples with respect to parentage on birth certificates, regardless of the parents’ genders.

Many observers have been particularly interested whether Justice Coney Barrett, who has been critical of same-sex marriage, will seek to disturb Obergefell and Pavan and whether this case would present the opportunity for her to do so.

Once a party has appealed a lower court’s decision to the Supreme Court, it requires the vote of four justices before the Court will grant certiorari agreeing to hear the case. While we know that the Court denied certiorari, neither the margin of the vote, nor the vote cast by any individual justice, is publicly revealed, so we cannot know how any particular justice, including Justice Coney Barrett, voted. At least six justices, including at least three of the justices typically considered to be conservative, voted against hearing Indiana’s appeal.

The Court’s refusal to take this case may be a signal that the current Supreme Court is not interested in reversing or narrowing the rights established by its recent opinions. The value of the Court’s denial of certiorari in Box, however, is somewhat limited, as the denial does not necessarily indicate that the majority of justices agree with the lower court’s ruling. Rather, refusal to take the case means that fewer than four justices felt this particular case was worth review.  Because the Court refused to hear the case, it will not issue an opinion either confirming or upsetting the rights of same-sex couples or set any new precedent that would bind future courts.

As a result, the Seventh Circuit’s Box decision will continue to guide courts, at least within that court’s jurisdiction, which includes Wisconsin, Illinois, and Indiana. While other appellate courts will undoubtedly consider the Seventh Circuit’s opinion when faced with similar cases, it is possible that another court may reach a conflicting conclusion.  While the Supreme Court’s decision not to consider Box may signal some stability of same-sex rights, the door remains open for future challenges.


Janet Hendrick

Janet Hendrick is an experienced employment litigator who tackles each of her client’s problems with a tailored, results-oriented approach.

For more information on this article, please call 214.615.6391 or email Janet A. Hendrick.

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Employers should prepare for COVID-19 vaccine in the workplace

By Phoebe B. Mitchell

On December 11, 2020, the United States Food and Drug Administration (FDA) issued its first emergency use authorization (EUA) for the COVID-19 vaccine, which allows Pfizer-BioNTech, the manufacturer of the vaccine, to distribute the vaccine throughout the United States. This encouraging step for the United States in its fight against COVID-19 also raises several important questions for employers as the vaccine becomes more broadly available.

Covid vaccine imageWhile we wait for both full FDA approval and the United States Equal Employment Opportunity Commission’s (EEOC) anticipated employer guidance on the vaccine, we recommend that employers prepare now to address the legal issues that arise when the vaccine is accessible to the American workforce.

May Employers Mandate the COVID-19 Vaccine as a Condition of Employment?

Even though the EEOC has not yet issued formal guidance, the EEOC has stated that an employee who has COVID-19 or symptoms of COVID-19 poses a “direct threat” to the health and safety of the workplace. This means that a person with COVID-19 or symptoms of COVID-19 poses a significant risk of substantial harm to himself or others. The EEOC continues to use this standard to allow employers to exclude employees who have contracted COVID-19 or who are showing symptoms of COVID-19 from the workplace.

Until the FDA fully approves the COVID-19 vaccine, and the EEOC issues formal guidance regarding the vaccine in the workplace, employers should strongly encourage, rather than require, their employees to take the COVID-19 vaccine. After full FDA approval and guidance from the EEOC, we expect employers will be able to mandate that their employees take the COVID-19 vaccine as a condition of employment, subject to possible exceptions under the Americans with Disabilities Act and Title VII. In fact, mandatory flu vaccines are already common in the health care field, and many health care employers require their employees to take the flu shot each year or forfeit employment.

What Happens When An Employee Refuses the COVID-19 Vaccine?

If an employer requires the COVID-19 vaccine for all its employees, there are situations in which an employee’s refusal will require additional analysis to determine if the employee should be exempted from the mandate, including (1) where the refusing employee is a qualified individual with a disability, as defined by the Americans with Disabilities Act (ADA), (2) where the employee’s refusal is due to their sincerely held religious belief, and (3) where the refusing individual is subject to a collective bargaining agreement.

First, qualified employees under the ADA whose disability puts them at higher risk for an adverse reaction to the vaccine may be able to refuse the COVID-19 vaccine as a reasonable accommodation.  If an employee requests a reasonable accommodation in the form of refusing to take the COVID-19 vaccine, the ADA requires an employer engage in the interactive process with the employee to determine if the requested accommodation is reasonable and/or creates undue hardship on the employer. Because the EEOC has made clear that COVID-19 meets its “direct threat” standard, it is possible that, even with a qualified disability under the ADA, an employee cannot safely perform his or her job without the COVID-19 vaccine. Thus, COVID-19’s classification as a “direct threat” will unquestionably impact the interactive process for reasonable accommodations.

Next, under Title VII of the Civil Rights Act of 1964, which protects employees from religious discrimination, an employee may refuse to take the COVID-19 vaccine based on a sincerely held religious belief. The sincerely held belief must be religious, rather than political or philosophical. An employer who receives a request from an employee to refuse the vaccine based on religious reasons has the right to inquire further to determine whether the belief is truly a sincerely held religious belief. Even where an employee refuses a vaccine based on a sincerely held religious belief, courts recognize that an employer may lawfully refuse such an accommodation where it would cause the employer an undue hardship. For example,  courts have held that the spread of influenza, which could be caused by an employee’s failure to take the flu shot, constitutes a safety risk to a health care employer’s workforce and patients, thus posing an “undue hardship” on the health care employer. As a result of this reasoning, employers in fields where transmission of COVID-19 is highly likely may be able to terminate an employee for refusing to take the COVID-19 vaccine, even if the refusal is based in a sincerely held religious belief.

Lastly, if an employee is a party to a collective bargaining agreement, the employer should negotiate the mandatory vaccination provision with the employee’s union. Incorporation of the employer’s vaccination policy into the CBA will help ensure compliance and could avoid disputes.

May an Employer Terminate an Employee Who Refuses the Vaccine?

In order to terminate an employee who refuses the COVID-19 vaccine, an employer must have a uniformly applied policy regarding its mandate of the COVID-19 vaccine as a condition of employment. Thus, under a uniformly applied policy, employers may lawfully terminate an employee who has not requested a reasonable accommodation on the basis of a disability, refused on the basis of a sincerely held religious belief or who is not subject to a collective bargaining agreement for refusing the COVID-19 vaccine.  But as discussed above, even termination of an employee who requests accommodation because of a disability or religious belief may be lawful depending on the circumstances.  Employers should remember the importance of individually analyzing each situation.

Who Pays for a Mandated COVID-19 Vaccine?

If an employer mandates that its employees take the COVID-19 vaccine as a condition of employment, it is a best practice, and in the employer’s best interest, for the employer to pay the cost of the vaccine.

As always, it is imperative that employers uniformly apply policies to all employees. This information is subject to change based on further guidance regarding the COVID-19 vaccine in the workplace. Employers should consult with their employment counsel for additional guidance on addressing concerns about the COVID-19 vaccine in the workplace. Phillips Murrah’s labor and employment attorneys continue to monitor developments to provide up-to-date advice to our clients.


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For more information on this alert and its impact on your business, please call 405.606.4711 or email me.

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Law360’s 2020 Glass Ceiling Report: Phillips Murrah ranked for gender diversity

Phillips Murrah is proud to announce that our Firm is ranked in Law360’s 2020 Glass Ceiling Report.

Phillips Murrah Glass Ceiling Report visual

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Each year, Law360 surveys participating law firms in various size categories and ranks their percentage of female attorneys and female equity partners. They publish their findings in the Glass Ceiling Report. For the 2020 GCR, Phillips Murrah is ranked 12th in the nation for firms of 100 attorneys or less.

Click on the graphic on this page to examine details of Law360’s findings about Phillips Murrah. The full story and an interactive data graphic is HERE. The numbers used by Law360 were collected on their survey in April 2020.

“We’re pleased to receive this recognition for Phillips Murrah and its culture, which rewards talent, skill, and work ethic, and affords equal opportunities to all,” said Candace Williams Lisle, Phillips Murrah Director and Chair of our Firm’s Diversity, Equity and Inclusion Committee. “Not only is Phillips Murrah a leader in the percentage of women attorneys, but more importantly, in women who have a seat at the table as equity partners and firm leaders. Our goal is not simply diversity – but equity and inclusion as well. We’re fortunate that the pool of legal talent in our region includes so many accomplished women, and that so many practice law with us at Phillips Murrah.”

Law360 Ceiling Smashers 2020 graphic

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Phillips Murrah is also featured in a Law360 article titled “These Firms Have The Most Women In Equity Partnerships,” which names our Firm among those that have the highest representation of women equity partners.

“Here are this year’s Ceiling Smashers — the top 10 firms in each law firm size category that are outpacing their peers as the legal industry works towards closing the gender gap in its top ranks.” – Law360

Phillips Murrah has a long history of elevating attorneys based on skill and talent, and we continue to lead, both locally and nationally, in our number of women attorneys and equity partners.

However, according to Law360, progress has not been easy in the overall legal industry.

“While law firms continue to tout efforts to close the gender gap in their ranks, parity is still a distant goal, our annual survey shows. Law360’s Glass Ceiling Report indicates only incremental growth in the number of female lawyers in private practice. Female attorneys remain underrepresented at U.S. law firms, particularly at the highest levels.” – Law360

Law 360 wrote that they see the Glass Ceiling Report as the beginning of a conversation that they hope will expand as they develop new ways of examining gender diversity in the profession and evaluate the data that is the most relevant to answering the difficult questions. As they continue to collect and analyze data, they also welcome your comments here.


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Phillips Murrah recognized as Champion of Justice Law Firm by Texas Access to Justice Commission

The Texas Access to Justice Commission announced Phillips Murrah is among the recipients of their Champion of Justice Law Firm Award. The Commission presents the awards to attorneys and law firms who champion and support the important work of Texas legal aid and pro bono providers.

Phillips Murrah is recognized via our Texas office, located in Dallas.

Texas Access to Justice Champion of Justice Law Firm

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About The Texas Access to Justice Commission:

The Supreme Court of Texas created the Texas Access to Justice Commission in 2001 with the mandate of expanding access to justice for low-income Texans. Because there are a variety of challenges to access to justice in Texas, the Commission’s work is necessarily multi-faceted. These are our primary areas of focus:

  • Policy Initiatives: By promoting policies that remove barriers to our judicial system, the Commission works to create a framework for equitable access to justice.

  • Resource Development: Through ongoing fundraising efforts and a strong partnership with the State Legislature, the Commission works to secure funding and other resources for legal aid across Texas.

  • Awareness and Education: By educating the legal community about access to justice issues and the importance of pro bono work, and by training legal aid lawyers to effectively advocate for their clients, the Commission seeks to expand and enhance the delivery of legal aid and pro bono services across Texas.

To contact Phillips Murrah’s Dallas office, email or call:

Janet A. Hendrick photoJanet A. Hendrick
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jahendrick@phillipsmurrah.com
214.615.6391
3710 Rawlins Street
Suite 900
Dallas, TX 75219


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Employee or independent contractor? Department of Labor issues new proposed “Five-Factor Test”

By Phoebe B. Mitchell

In the past several years, employers have struggled to determine whether some workers should be classified as employees or as independent contractors. The difference is significant, as employees are entitled to many benefits that independent contractors are not, including overtime for those not exempt under the federal Fair Labor Standards Act (FLSA). As a result, worker misclassification is a costly mistake employers want to avoid.

DOL proposal contracting

U.S. Department of Labor proposes new rules on who is considered an employee and who is considered an independent contractor.

This week, the United States Department of Labor (DOL) issued its anticipated proposed rule regarding classification of workers as independent contractors. According to Secretary of Labor Eugene Scalia, the proposed rule will “make it easier to identify employees covered by the [FLSA], while respecting the decision other workers make to pursue the freedom and entrepreneurialism associated with being an independent contractor.” DOL is accepting comments on the proposed rule for 30 days.

The new rule includes a five-factor test that considers the “economic reality” of the relationship between workers and their employers.

Among the five factors, the DOL made clear that two “core” factors are key:

  1. Control a worker has over their work
  2. The worker’s potential for profit or loss

Both factors help determine if a worker is economically dependent on someone else’s business, or alternatively, if the worker is in business for him or herself.

The nature and degree of the individual’s control over the work

This first core factor examines a worker’s ability to personally control his or her work. For example, a worker is an independent contractor if the worker, as opposed to the company, exercises substantial control over key aspects of performance of work.  A worker exercises substantial control over performance of work by setting his or her own schedule or selecting his or her own projects. Further, the worker exercises substantial control over key aspects of performance of work if the worker has the ability to do work for other employers, including the employer’s competitors.

On the other hand, a worker is properly classified as an employee if the employer, as opposed to the worker, exercises substantial control over key aspects of the performance of the work. For example, if the employer controls the worker’s schedule or workload, or directly or indirectly requires the worker to work exclusively for the employer, the worker should be classified as an employee.

The individual’s opportunity for profit or loss

This second core factor examines a worker’s personal opportunity for profit or loss. If the worker’s profit or loss opportunity is closely tethered to the work he or she performs, the worker is likely an independent contractor. In other words, a worker is a true independent contractor if the individual has the opportunity to earn profits or incur losses based on his or her own exercise of initiative, or management of his or her investment in helpers, equipment, or material to further the work.

Alternatively, an employee does not have as much personal opportunity for profit or loss. A worker who is unable to affect his or her earnings or is only able to do so by working more hours or more efficiently is properly classified as an employee.

Three other factors

The proposed rule includes three other factors:

  1. The amount of skill required for the work
  2. The degree of permanence of the working relationship between the worker and the potential employer
  3. Whether the work is part of an integrated unit of production.

For example, if a worker has specialized training that the employer does not provide, and the work relationship is by design definite in duration, the worker should be classified as an independent contractor. On the other hand, an employee depends on the employer to equip him or her with the skills or training necessary to perform the job, the work relationship is, by design, indefinite in duration or continuous, and the worker’s work is a component of the employer’s integrated production process for a good or a service. Lastly, the actual practice of an employer is more relevant than what may be contractually or theoretically possible in determining a worker’s classification as either an independent contractor or employee.

While these three factors are important, according to DOL, if the two “core” factors point to the same finding, “their combined weight is substantially likely to outweigh the combined weight of the other factors that may point toward the opposite classification.”

The complete proposed rule is available at: https://www.dol.gov/sites/dolgov/files/WHD/flsa/IC_NPRM_092220.pdf.

Phillips Murrah’s labor and employment attorneys continue to monitor developments to provide up-to-date advice to our clients regarding the DOL’s new rules.


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For more information on this alert and its impact on your business, please call 405.606.4711 or email me.

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Phillips Murrah attorneys remember Ruth Bader Ginsburg at OKC candlelight vigil

Phillips Murrah attorneys attend RBG vigil in OKC

From left: Nikki Jones Edwards, Cathy L. Campbell, Charlotte Hanna, Rev. Lori Walke and Lauren Barghols Hanna.

Tuesday night, Oklahomans gathered at the state capitol to mourn the death of Supreme Court Justice Ruth Bader Ginsburg, an American legal, cultural and feminist icon and, as described by Chief Justice John Roberts, a justice of historic stature and a cherished colleague.

Among those who gathered were Phillips Murrah attorneys Nikki Jones Edwards, Cathy L. Campbell and Lauren Barghols Hanna, joined by (see photo) Cathy’s granddaughter and Lauren’s daughter, Charlotte, and Rev. Lori Walke, Associate Minister at Mayflower Congregational United Church of Christ.

“Justice Ginsburg famously declared that ‘Women belong in all places where decisions are being made,’” said Hanna, who practices employment law at Phillips Murrah. “In 1956, she was one of only nine women in her 500-person law school class. Today, thanks to the tireless efforts of Justice Ginsburg and other fierce advocates for equality, almost half of Phillips Murrah partners and two-thirds of our Executive Committee are women. We owe a great debt to Justice Ginsburg and the other women attorneys who paved the road, and we must now continue her efforts to ensure ‘justice for all.’”

The event, A Candlelight Vigil in Remembrance of Ruth Bader Ginsburg, was organized by The Oklahoma Women’s Coalition to honor and remember Justice Ginsburg, who died Friday at the age of 87. Video of the speakers at the vigil are available here.

“We deeply mourn the loss of Supreme Court Justice Ruth Bader Ginsburg. Our country has lost a champion of women’s rights and progress for all Americans. Our thoughts are with her loved ones and all whose lives were shaped and touched by her unwavering commitment to justice,” OWC posted to their Facebook page.

After 13 years on the U.S Court of Appeals, President Bill Clinton appointed Justice Ginsburg to the U.S. Supreme Court in 1993. Over the following 27 years, she earned a reputation for being the High Court’s liberal leader and a steadfast advocate for equality. As stated in an achievement.org profile called “Ruth Bader Ginsburg – Pioneer of Gender Equality”:

“On the high court, Justice Ginsburg was often called on to rule in cases regarding the rights of women and issues of gender equality. In 1996, she joined the majority in United States v. Virginia, ruling that the state could not continue to operate an all-male educational institution (the Virginia Military Institute) with taxpayer dollars. She also joined in the majority opinion in Stenberg v. Carhart (2000), striking down a Nebraska law banning so-called ‘partial birth’ abortions. She dissented vehemently in Ledbetter v. Goodyear Tire (2007), in which an Alabama woman sued unsuccessfully for back pay to compensate for the years in which she had been paid substantially less than junior male colleagues performing the same job. The U.S. Congress would later address the issue of pay equity through legislation known as the Lily Ledbetter Fair Pay Act of 2009.”

Late in Ginsburg’s life, she also became a cultural and social media icon. According to the New York Times, “a law student, Shana Knizhnik, anointed her the Notorious R.B.G., a play on the name of the Notorious B.I.G., a famous rapper who was Brooklyn-born, like the justice. Soon the name, and Justice Ginsburg’s image — her expression serene yet severe, a frilly lace collar adorning her black judicial robe, her eyes framed by oversize glasses and a gold crown perched at a rakish angle on her head — became an internet sensation.”

In a 2015 television interview, Ginsburg was asked how she would like to be remembered, to which she replied: “Someone who used whatever talent she had to do her work to the very best of her ability, and to help repair tears in her society – to make things a little better through the use of whatever ability she has. To do something, as my colleague David Souter would say, outside myself, because I’ve gotten much more satisfaction for the things that I’ve done for which I was not paid.”


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Clients seek lower costs for legal services

[VALUE] Clients, including in-house legal departments, are understandably focusing on lowering their legal expenses. They are looking to mid-market law firms like Phillips Murrah to achieve it.

Phillips Murrah presents Blocks for Bucks donation to Thunder Cares Foundation for 2020 season

As with the previous three years, the end of the season coincides with Phillips Murrah’s Blocks for Bucks donation to the Thunder Cares Foundation. This season, Phillips Murrah is donating $18,700.

Breaking News: IRS issues guidance on Trump’s payroll tax deferral order

On Friday, August 28, 2020, the IRS and Treasury issued guidance implementing President Trump’s order to defer collection of some payroll taxes amid the coronavirus pandemic.

Phillips Murrah attorney Jessica Cory

Jessica N. Cory represents businesses and individuals in a wide range of transactional matters, with an emphasis on tax planning.

On August 8, 2020, President Trump issued a Presidential Memoranda, commonly known as an Executive Order (the “Order”), to defer the withholding, deposit, and payment of certain payroll taxes on wages paid from September 1, 2020 through the end of the calendar year.   The Order applies to any employee whose pretax compensation is less than $4,000 per biweekly pay period (or $104,000 per year, on an annualized basis).  The Order permits the employers of these eligible employees to temporarily suspend the 6.2% Social Security tax typically withheld from employees’ paychecks.

The Order has raised a number of questions for employers and payroll companies considering whether to implement the deferral.  For example, the National Payroll Reporting Consortium (“NPRC”) recently raised concerns about whether sufficient time is available to implement a deferral option by September 1, given the substantial programming changes that such an option would require. Because payroll systems are typically designed to use a single Social Security tax rate for the full year, for all employees, it may be challenging to change a reporting system to apply a different tax rate for part of the year, beginning mid-quarter, for only certain employees of certain employers.

In addition to practical challenges relating to implementation, the Order also raises liability concerns for both employees and employers, who are dually liable for unpaid payroll taxes under the Internal Revenue Code. Under Code Section 7508A, the Secretary of the Treasury can delay tax payments for up to a year during a presidentially-declared disaster, but no authority exists to authorize forgiveness of those deferred amounts. Accordingly, employees, employers, or both could be held liable for any deferred payroll taxes after the deferral period ends. This could represent a substantial burden. For example, for an employee earning $50,000 per year, the deferral would allow the employee to take home an additional $119 per paycheck during the deferral period. But, without Congressional action to authorize forgiveness of the deferred taxes, that employee—or his or her employer—would be facing a $1,073 tax liability in January.

Based on guidance released today from the Treasury Department in Notice 2020-65, employers who opt into the deferral program will be required to collect the deferred taxes ratably from their employees during a four month repayment period beginning on January 1, 2021, through increased withholding. Accordingly, during the repayment period, employers will be required to withhold 12.4% from their employees’ paychecks, rather than the normal 6.2%, to repay the payroll tax liability accumulated from September to December. The guidance does not indicate how an employer should collect the deferred taxes from an employee who terminates his or her employment prior to the end of the repayment period but indicates that employers may make other “arrangements … to collect the total [deferred tax amount] from the employee,” if necessary.

The guidance offered on Friday indicates that the Treasury intends to put the onus of repayment on the employer, with the employer potentially subject to interest, penalties, and additions to tax beginning on May 1, 2021, if the employer is unable to collect the accrued tax liability from its employees. Accordingly, given the voluntary nature of the deferral, the potential liability involved, and the costs and complexity associated with upgrading their payroll systems to accommodate the deferral, employers have a strong incentive to opt out and continue withholding for now.

To the extent an employer does want to participate in the tax deferral, the employer should consider establishing a procedure to allow eligible employees to opt in to the deferral. This procedure should require any employee opting in to provide the employer with a written and signed statement that:

  1. Acknowledges that any deferred taxes will come due in 2021.
  2. Authorizes the employer to withhold tax at a double rate, consistent with the guidance provided in Treasury Notice 2020-65, for those pay periods falling in the four-month repayment period.
  3. Agrees that in the event the employee’s employment is terminated prior to the end of the repayment period, for any reason, the employer can set off any remaining amount owed to the employee by the amount of outstanding deferred taxes, that the employee will be liable for any remaining amount, and the employee will reimburse the employer for any associated liability, including penalties and interest, as necessary.

Employers who decide to establish such an opt-in procedure should consult with counsel to ensure compliance with state labor laws.


For more information on this alert and its impact on your business, please call 405.552.2472 or email me.

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Teleworking and an Employer’s Woes of Record Keeping

Portrait of Byrona J. Maule

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In this era of Covid-19, many employees who have never had the opportunity to telework are now, out of necessity, teleworking.  This creates many challenges for employers – and none is more important than the employer’s obligation to exercise reasonable diligence in tracking teleworking employees’ hours of work.

The Wage and Hour Division of the United States Department of Labor (WHD) issued Field Assistance Bulletin 2020-5 (FAB 2020-5) today on the employer’s obligation to track a teleworking employee’s hours of work pursuant to the Fair Labor Standards Act (FLSA).

FAB 2020-5 acknowledges the employers’ obligation to pay its employees for all hours worked – even if the work was not requested, if the employer “suffered or permitted” the employee to work.  This includes work performed at home.  If an employer knows or has reason to believe that an employee is performing work, the employer must count those hours as hours worked.  An employers’ knowledge may be either actual or constructive.

Employers may exercise reasonable diligence in tracking an employee’s teleworking hours by having a reasonable reporting procedure for unscheduled time and then compensating employees’ for all reported hours.  An employer may not prevent or discourage employees to accurately report all hours the employee works. If the employee fails to use the reasonable procedure “the employer is not required to undergo impractical efforts to investigate further to uncover unreported hours of work and provide compensation for those hours.”  If an employee fails to report unscheduled hours worked through the employer’s established procedure, the employer is generally not required to investigate further to uncover unreported hours worked.

FAB 2020-5 explores when an employer has “reason to believe that an employee is performing work.”  An employer has actual knowledge of the employees’ regularly scheduled hours, and an employer may have actual knowledge of hours worked, through employee reports or other notifications.  An employer has constructive knowledge if the employer should have acquired knowledge of such hours through reasonable diligence.  Reasonable diligence is defined as what the employer should have known – NOT what the employer could have known.  “Though an employer may have access to non-payroll records of employees’ activities, such as records showing employees accessing their work-issued electronic devices outside of reported hours, reasonable diligence generally does not require the employer to undertake impractical efforts such as sorting through this information to determine whether its employees worked hours beyond what they reported.”  Examples given of impractical efforts included in FAB 2020-5 included sifting through CAD records and phone records to determine if an employee was working unreported hours. However, Bulletin 2020-5 does not give a definitive rule that an employer never has to consult records outside of timekeeping records, noting it depends on the circumstances, and there may be instances where an employer’s non-timekeeping records may be relevant to issue of constructive knowledge of an employee’s unreported work hours.

In order for an employer to leverage the most protection from an employee seeking wages for unreported hours, an employer should:

  1. Have a reasonable policy/procedure setting forth clearly that an employee is to report all hours worked, whether scheduled or unscheduled.
  2. The employer should not discourage an employee from utilizing the procedure.
  3. The employer should train on the policy, or otherwise assure that employees are aware of the procedure, and when to use the procedure.

If an employer undertakes these steps, and an employee fails to utilize the procedure to report unscheduled hours worked, the employer’s failure to pay for the unreported hours worked should not be a violation of the FLSA.


For more information on this alert and its impact on your business, please call 405.552.2453 or email me.

Keep up with our ongoing COVID-19 resources, guidance and updates at our RESOURCE CENTER.

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