Phillips Murrah continues OKC Thunder Blocks for Bucks partnership benefiting Thunder Cares Foundation

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Back in the Arena! Back to the Blocks!

We are finally living in a post-NBA Bubble world! With the 2021-2022 season upon us, we are excited that Thunder fans can once again attend home games at the newly minted Paycom Center.

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With the beginning of this year’s regular season, we are proud to resume Phillips Murrah’s popular Blocks for Bucks campaign, starting at the Oklahoma City Thunder’s first regular-season home game on October 24.

“We are excited to continue our partnership with Phillips Murrah as we return to live Thunder Basketball and head into our fourth year of Blocks for Bucks,” said Will Syring, Vice President of Corporate Partnerships for the Oklahoma City Thunder. “Through Blocks for Bucks, Phillips Murrah has donated more than $50,000 to the Thunder Cares Foundation. We are excited to see how this total grows during the 2021-22 season.”

What is Blocks for Bucks?

Since Phillips Murrah attorneys and staff are big Thunder fans, we decided in 2017 to become an Oklahoma City Thunder Corporate Partner – and Blocks for Bucks was born!

To recognize our home team’s accomplishments in blocking shots, and to tie our promotions into supporting a great community cause, Phillips Murrah donates $100 to the Thunder Cares Foundation for each blocked shot that the Thunder forces at home games during the regular season. At the end of each regular season, Phillips Murrah presents a check for the total amount of the season’s Blocks donations.

Over four seasons of our Blocks for Bucks campaign, we have seen some monster blocks, like this classic from the 2019 season! (click video player below)

 

You can check in at the Thunder Cares Blocks For Bucks landing page on the OKC Thunder website throughout the season to see new Blocks highlight videos and a Blocks Counter that keeps a tally of blocks and a to-date donation total.

Thunder Cares, and so do we! 

This is the fourth season of our Blocks for Bucks partnership with the Oklahoma City Thunder. Since kicking off B4B in 2017, our Firm has donated a total of $56,000 to the Thunder Cares Foundation. This makes us extremely proud because they turn our donations into great programs for kids, such as the Thunder Book Bus/Read to Achieve literacy program and Thunder Fit fitness clinics for middle schoolers.

They also provide Thunder-themed basketball courts in parks, schools and community centers across the state of Oklahoma, as well as activity rooms at organizations including the Boys and Girls Club of Oklahoma CountyCity Rescue Mission and Positive Tomorrows.

Thunder Cares’ community outreach projects are focused on making a positive impact in our community, and we are proud to play a part in supporting them through our Blocks for Bucks partnership.

To view our 2020 video explaining more about Blocks for Bucks and our support of Thunder Cares, please click on the video player below:

 

Employer Alert: OSHA Emergency Temporary Standard is Imminent

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By Angela M. Buchanan

Last June, OSHA adopted an emergency temporary standard (“ETS”)—29 C.F.R. Part 1910, Subpart U, 86 Fed. Reg. 32376 (June 21, 2021)—that set forth numerous requirements for healthcare employers aimed at combatting the spread of COVID-19. On September 9, 2021, as part of his COVID Action Plan, President Biden directed OSHA to issue a new and broader ETS requiring all private employers with 100 or more workers to mandate COVID-19 vaccination or a weekly test for all employees. Since that time, OSHA has been working towards meeting President Biden’s directive, and, on October 12, 2021, OSHA sent a draft ETS requiring either vaccination or weekly testing of workers for employers with 100 or more employees to the White House’s regulatory office for approval. The White House is expected to review and approve the new ETS quickly.

angela m buchanan portrait

Angela M. Buchanan is a litigator who primarily focuses her practice on complex commercial litigation and disputes.

According to Ann Rosenthal, Senior Advisor at OSHA, the ETS will be published “in the coming weeks.” If the new ETS is like the healthcare ETS in its implementation schedule, the new standard will take effect shortly after its publication in the Federal Register. By way of comparison, the healthcare ETS has some provisions that became mandatory 15 days after publication, while compliance with others was required a month after publication. 29 C.F.R. § 1910.502(s)(2). The ETS can remain in effect for six months.

Violations of the new ETS would likely be considered either “serious” or “willful.” The current maximum penalty for a “serious” violation is $13,653 per violation. The current maximum penalty for a “willful” violation is $136,532. 29 C.F.R. § 1903.15(d), 86 Fed. Reg. 2964 (Jan. 14, 2021).

Preemptively, Governor Abbott responded to the expected ETS on October 11, 2021 by issuing Executive Order GA-40, stating that no entity in Texas can “compel” any individual, including any employee or consumer, to receive a COVID-19 vaccination who objects “for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.”  The order establishes a maximum criminal penalty of $1,000.

Governor Abbot’s Order highlights the fact that the new ETS is likely to be challenged.  States, companies, and others will like challenge the ETS on the grounds that the required prerequisites for OSHA issuing an ETS are not met. Specifically, to make an ETS, OSHA must determine (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.” 29 U.S.C. § 655(c)(1). In the ten times OSHA has issued an ETS, the courts have fully vacated or stayed the ETS in four cases and partially vacated the ETS in one case.

Whether or not the ETS is eventually challenged, Companies still need to prepare for the new ETS mandates by proactively reviewing and updating their COVID-19 vaccination policies.  Phillips Murrah’s Labor and Employment attorneys regularly advise employers on complex issues relating to COVID-19 vaccination polices and OSHA standards.


For more information about how the information in this article may impact your business, please call 469.485.7341 or email By Angela M. Buchanan.

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Phillips Murrah recognized by Law360’s Glass Ceiling Report for second year

Phillips Murrah is proud to announce that for the second year in a row, our Firm is recognized in Law360’s Glass Ceiling Report for setting the pace in the legal industry for representation of women.

2021 GCR GridTo produce the 2021 Glass Ceiling Report, Law360 collected data during 2020 from more than 270 law firms on the demographic makeup of their lawyer workforce. The report ranks U.S. law firms, broken out into law firm size categories, on their overall representation of women at all levels of the firm.

Reflecting demographics as of Dec 31, 2020, Law360 reported that the national average of all women attorneys at law firms in the U.S. is just under 40 percent. Women represent less than 25 percent of equity partners and just over 48 percent of associates.

To achieve the rank of number five on the Glass Ceiling Report, Phillips Murrah demonstrated numbers far above the national average. Our survey results showed that 42.9 percent of equity partners and 73.7 percent of associate attorneys are women. Additionally, our overall Firm gender makeup is 53 percent women, and our Firm’s Executive Leadership is composed of 75 percent women.

Phillips Murrah is also ranked for the second year on Law360’s “Ceiling Smashers” list, which includes the top ten firms in each law firm size category that have the highest representation of women in equity partnerships.

2021 ceiling smashers gfxFirms on the Ceiling Smashers list are characterized by Law360 as those forging a path to progress and which “demonstrate the potential and possibilities of law firm efforts to work towards parity.”

“Phillips Murrah is proud to be recognized again this year as a ‘ceiling smasher’ and trailblazer in gender equity and inclusion,” said Candace Williams Lisle, Phillips Murrah Director and Chair of our Firm’s Diversity, Equity and Inclusion Committee. “This repeat performance demonstrates consistency of purpose and continued growth as we move toward gender parity in the practice of law. At Phillips Murrah, it isn’t just about numbers on a graph – but real opportunities for women to lead and flourish in their legal careers and in their lives. We celebrate all of the outstanding women who are valued members of our team.”

Phillips Murrah shares personal stories about tribal memberships

PIF KGOU OILS graphicPhillips Murrah celebrates Indigenous Peoples’ Day in recognition of the contributions of the Indigenous communities that have lived in the United States for thousands of years. To commemorate the occasion, Phillips Murrah is supporting Oklahoma Indian Legal Services as its Pay It Forward beneficiary for the month of October.

In addition, the Diversity, Equity, and Inclusion Committee invited members of the Phillips Murrah team who have Native American tribal affiliations to participate in a video interview to discuss what their ancestry and heritage mean to them.

Interviewees are Phillips Murrah Directors G. Calvin Sharpe and Kathy Terry; Associate Attorneys Phoebe Mitchell, Eric Davis and Molly Tipton; and Paralegal Donna Anderson.

Special thanks to Chickasaw classical composer Jerod Impichchaachaaha’ Tate for allowing us to feature his music in the video.

Please enjoy the video by clicking the player below.

 

FinCEN crackdown on shell companies to begin in January

financial crime graphicBy Laurie L. Schweinle

On Jan. 1, Congress passed the National Defense Authorization Act for Fiscal Year 2021, which included the Corporate Transparency Act (CTA). CTA is a new provision intended to eliminate the use of shell companies commonly employed by criminal enterprises to launder money, finance terrorism, and otherwise engage in criminal acts.

Laurie Schweinle portrait

Laurie L. Schweinle is a litigation attorney who represents individuals and both privately-held and public companies in a wide range of civil litigation matters.

Effective Jan. 1, 2022, the CTA requires “reporting companies” to provide certain information to the U.S. Department of Treasury’s Financial Crimes Enforcement Network, or FinCEN. A “reporting company” is defined under the CTA as a corporation, limited liability company, or other similar entity formed pursuant to state or tribal law or formed pursuant to the law of a foreign country and registered to do business in the United States. The reporting companies must report “beneficial ownership” information to FinCEN. Subject to several exceptions, a “beneficial owner” is an individual natural person who directly or indirectly exercises substantial control over an entity or owns or controls 25% or more of the entity.

Beneficial ownership information includes the individual’s name, date of birth, current address, and a unique identification number, which may be a passport or driver’s license number. The information is required to be maintained by the secretary of the Treasury in a nonpublic database only accessible by authorized users, such as law enforcement with a warrant or financial institutions with appropriate permission.

The CTA is intended to target entities typically used as shell companies, such as small LLCs or those formed under the umbrella of a large company. The law excludes reporting requirements for other entities, such as publicly traded companies and many financial services institutions, because existing reporting requirements already provide for ownership transparency.

Entities formed prior to the effective date of the regulations will have two years to provide beneficial ownership information. Entities formed after the regulations go into effect must provide the required information at the time of formation or registration. Additionally, FinCEN must be updated within one year of any changes.

Because violators of the CTA will be subject to civil and criminal penalties, entities should monitor when these regulations go into effect and review them carefully to ensure compliance. Entities may also want to consider developing a strategy to ensure future compliance. Without regulations in place, there are still many unknowns, but the effects of the CTA are certain to impact both foreign and domestic businesses in a significant manner.

This article originally appeared in The Journal Record’s Gavel to Gavel column. View it HERE.


For more information about how the information in this article may impact your business, please call 405.606.4728 or email Laurie L. Schweinle.

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Phillips Murrah Paying it Forward campaign benefits Oklahoma Indian Legal Services in October

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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 Paying it Forward beneficiary in October is Oklahoma Indian Legal Services, Inc. #PIFOKC


October Beneficiary

Oklahoma Indian Legal Services, Inc.

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Oklahoma Indian Legal Services, Inc. (OILS) offers free legal representation to low-income Native Americans living in the state of Oklahoma in cases involving housing, child welfare, land issues, individual civil rights, and tribal sovereignty issues.

OILS works to represent Indian people in cases in which children have been removed from their parents or guardians by the state or tribe. OILS also represents Indian people in adoptions or guardianships who are trying to adopt Indian children. You can apply for services by calling their office Monday through Thursday from 9 am – 4 pm at 405-943-6457.

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OILS on social media:

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Previous Beneficiaries

September 2021: OKC Beautiful
August 2021: Bethesda, Inc.
July 2021: Oklahoma Humane Society
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

Continuation of Pandemic-Related Remote Work as an ADA Accommodation: Lessons from the EEOC’s First Lawsuit

EEOC lawsuit graphicBy Janet Hendrick

Employers can glean valuable takeaways from the EEOC’s recent lawsuit against a facility management company, the EEOC’s first case alleging disability discrimination for an employer’s refusal to allow an employee to continue to work from home following pandemic-related remote work.  On September 7, 2021, the EEOC filed suit in federal court in Atlanta against ISS Facility Services, Inc. alleging that it unlawfully denied Ronisha Moncrief’s request for remote work as a reasonable accommodation under the Americans with Disabilities Act.  Moncrief, a health and safety manager for the company who has a pulmonary condition, sought treatment after she became sick at work.  Her doctor recommended that she work from home and take frequent breaks while working.  Around this time, due to the COVID-19 pandemic, ISS implemented rotating staff schedules, so that Moncrief and others worked from home four days a week.

Janet Hendrick portrait

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

In June 2020, ISS required all staff to return to the facility five days a week. When Moncrief requested continued work from home as a disability accommodation, ISS denied her request.  According to the lawsuit, and of critical importance, other health and safety managers were allowed to continue working from home. A month later, Moncrief’s supervisor recommended that Moncrief be terminated due to performance issues and ISS terminated Moncrief shortly after. According to the lawsuit, and again of critical importance, Moncrief had not previously been informed that her performance warranted termination.  Although the EEOC attempted conciliation of Moncrief’s charge of discrimination, that failed and the EEOC filed the lawsuit.

Although the lawsuit is in very early stages, here are some valuable takeaways for employers:

  1. Promptly address and document performance issues
    •  One glaring issue in this case, assuming the allegations are true, is that Moncrief claims to have been unaware that her performance could land her on the chopping block. Be sure your managers are managing.  This requires addressing performance issues in a timely manner, including documenting the issues and communicating the issues and possible repercussions to the employee.  Managers frequently ignore performance issues or sugar-coat communications, leading to terminated employees claiming they never had a chance to improve. Timely documentation of performance issues serves as key evidence for employers accused of not adequately informing an employee of possible termination.
  1. Assess accommodation requests on a case-by-case basis
    • The EEOC has repeatedly cautioned employers to avoid a “one-size-fits-all” blanket approach to disability accommodations. Instead, employers are expected to conduct an individualized analysis of each accommodation request. Further, in light of the ISS Facility lawsuit, denials of remote work requests may garner heightened scrutiny, particularly if the employee at issue has worked remotely for a “trial period” during the pandemic.
  1. Treat similarly situated employees consistently
    • When it comes to disability accommodations, employers who treat employees in the same or similar positions inconsistently create unnecessary legal risk.
    • If an employer allows one employee to work from home but denies remote work to another employee with the same or a similar position, the employer better be ready to explain the disparity There may be justification for the different treatment, but it gives an appearance of an unjustified denial of an accommodation.
  1. Ensure job descriptions are updated and robust
    • Job descriptions tend to be among the lowest priorities for often-harried human resources professionals. But accurate (i.e., updated), robust job descriptions can be some of the best evidence an employer can offer if an employee challenges that a task is not an “essential” job function. This is often a key issue in disability discrimination cases, as the employee must be able to perform all “essential job functions” with or without a “reasonable accommodation” to come with the protection of the ADA as a “qualified individual with a disability.” Courts routinely defer to an employer’s judgment as to whether a job function is “essential” and often rely on a written job description.
    • Employers who take the time and resources to periodically review and update job descriptions can reap the benefits if facing this type of challenge. Bonus points for including such nontraditional requirements as reliable, predictable attendance and regular attendance at the assigned office or work facility, as long as the employer can back these up as truly “essential” if challenged.

Phillips Murrah’s Labor and Employment attorneys regularly advise employers on complex issues relating to ADA accommodations and performance management and can help strengthen job descriptions and other key employment documents.


For more information on this alert and its impact on your business, please call 469.485.7334 or email Janet A. Hendrick.

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Biden orders private companies and healthcare institutions to mandate employee vaccines

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By Lauren Barghols Hanna

Yesterday afternoon, President Biden announced a series of executive actions and new federal rules to increase the number of vaccinated American workers. Noting that COVID-19 has killed more than 650,000 in the last 18 months, President Biden announced several expected executive orders and a forthcoming emergency OSHA rule. The expected rule will mandate that all companies with more than 100 workers require their employees to either be fully vaccinated or submit to weekly COVID-19 screening tests. By executive order, President Biden will mandate vaccines for health care workers, federal employees and federal contractors. If federal employees refuse vaccination without a valid medical reason or sincerely-held religious belief, they may be subject to disciplinary action, up to and including termination of employment.

President Biden vowed to “protect vaccinated workers from unvaccinated co-workers” and to “reduce the spread of COVID-19 by increasing the share of the workforce that is vaccinated in businesses all across America.” Until President Biden’s September 9th speech, he had appeared hesitant to enact federally-mandated vaccine requirements–instead relying on individual corporate vaccine incentive programs to encourage vaccine compliance. In his speech, President Biden conveyed the urgent importance of corporate and federal vaccine mandates to increase individual employee vaccination rates. His new orders are likely motivated by the rapid spread of the COVID-19 delta variant, the FDA’s recent full approval of the Pfizer-BioNTech COVID-19 vaccine, and the effort to achieve critical herd immunity to ensure continued economic recovery and minimize the likelihood of incubating potentially-severe variants among the unvaccinated population.

To ensure larger employers enact “vaccination or weekly testing” policies, President Biden ordered the Occupational Safety and Health Administration (OSHA) to draft a rule requiring even private employers with 100 employees or more to enact such policies to maintain critical OSHA compliance. OSHA has indicated that it intends to take enforcement action against private companies that do not comply with the vaccine mandate, with potential fines of up to $14,000 per violation.

Regardless of the number of employees, private hospitals and other healthcare institutions that accept Medicare and Medicaid reimbursements also will be required to enact similar mandatory vaccine policies, along with other federal contractors and federal agencies. In addition to these orders, President Biden also encouraged state governors to mandate vaccinations and/or weekly testing for entertainment venues, and private and public schools to “make sure we are keeping students safe.”

Across all industries, approximately two-thirds of America’s workforce will be impacted by one or more of President Biden’s orders and requested rules related to mandated COVID vaccinations and/or regular screening tests.

Phillips Murrah will continue to monitor the publications of these promised orders and provide additional implementation guidance as it becomes available.


Lauren Barghols Hanna portrait

Lauren Barghols Hanna is an attorney in Phillips Murrah’s Labor & Employment Practice Group.

For more information on this alert and its impact on your business, please call 405.606.4732 or email me.

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Notice to Oklahoma landlords: The door to residential evictions is now open

Eviction notice graphicBy Ashley M. Schovanec

For the past seventeen months, many Oklahoma landlords were prevented from evicting tenants for the nonpayment of rent due to various federal eviction moratoriums. Thanks to a recent decision by the U.S. Supreme Court, the latest eviction moratorium has now been declared unlawful and landlords are free to move forward with evictions based on the nonpayment of rent.

Attorney Ashley Schovanec Web

Ashley M. Schovanec is a litigation attorney who represents individuals and both privately-held and public companies in a wide range of civil litigation matters.

Congress initially declared a moratorium on evictions at the beginning of the coronavirus pandemic in March 2020. Following the lapse of the first moratorium in July 2020, the Director of the Centers for Disease Control and Prevention (CDC) imposed a series of the CDC’s own nationwide eviction moratoriums. As authority to promulgate the moratorium, the CDC relied on §361(a) of the Public Health Service Act, which is a statute originally passed in 1944 and a provision that has rarely been invoked except in the context of quarantining infected individuals and prohibiting the import or sale of animals known to transmit disease. The stated purpose of the CDC’s halt on residential evictions was to help slow the spread of COVID-19. The justification was that housing stability helps protect public health in that homelessness increases the likelihood of individuals moving into congregate settings, such as homeless shelters.

The CDC’s moratoriums applied to only certain evictions – those based on the nonpayment of rent. In order for a tenant to invoke the protections provided by the CDC, a tenant was required to provide the landlord with a CDC declaration form affirming that tenant was in financial need as a result of the pandemic. The last CDC moratorium expired on July 31, 2021. Thereafter, the Biden administration implemented yet another moratorium, which was set to expire on October 3, 2021 but was derailed by the U.S. Supreme Court on August 26, 2021.

In Alabama Association of Realtors v. Department of Health and Human Services et al., the U.S. Supreme Court ruled that the CDC exceeded its authority in imposing nationwide eviction moratoriums. The per curium opinion criticized the CDC’s reliance “on a decades-old statute that authorizes it to implement measures like fumigation and pest extermination” and found that “[i]t strains credulity to believe that this statute grants the CDC the sweeping authority that it asserts.” The Supreme Court concluded its opinion, “[i]f a federally imposed eviction moratorium is to continue, Congress must specifically authorize it.”

Now that the Supreme Court has declared unlawful the latest nationwide eviction moratorium, it is up to states and localities to impose eviction restrictions. New York, California and the city of Boston have imposed restrictions of their own to protect renters from eviction. As of now, there are no eviction constraints in the state of Oklahoma. This means the door is now open for Oklahoma landlords to file evictions to remove tenants who were previously shielded by the federal eviction moratoriums. Landlords may now file suit against tenants to collect past due rent, including all unpaid rent payments that accumulated during the federal eviction moratoriums.


The impact of the Supreme Court’s decision in Alabama Association of Realtors is significant for both landlords and tenants. If you are a landlord or tenant seeking guidance in navigating evictions in light of recent changes to the law, please call 405-552-2470 or email Ashley M. Schovanec.

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Q&A: Understanding divorce from start to finish

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By Molly E. Tipton

Q: My spouse and I want to get a divorce, does it matter who files first?

There is no hypothetical race to the court house in order to be the first spouse to file in a divorce proceeding. The filing party is referred to as the “Petitioner” and the responding party is referred to as the “Respondent.”

Molly Tipton portrait

Molly E. Tipton’s legal practice is focused on domestic and family law, including divorce, legal separation, prenuptial agreements, support alimony, child custody, visitation, child support issues, guardianships, and paternity, for clients ranging from high-net worth individuals to simple uncontested divorces.

In a divorce proceeding, both parties start the case on equal footing, and there is no advantage to being the filing party or the responding party. However, if you have concerns that your spouse is beginning to accumulate new debts, which would be marital, or is beginning to open new bank accounts and moving money, or changing the beneficiaries to life insurance policies, then filing for divorce will put in place the Automatic Temporary Injunction (the “ATI”).

The ATI prevents a spouse from damaging tangible property, withdrawing funds from retirement or joint checking or savings accounts, or modifying or canceling any insurance policies, among other things. The ATI is reciprocal such that both spouses are enjoined from violating it.

Q: What kinds of issues can I expect to discuss with an attorney in a divorce proceeding?

There are five main issues in a divorce proceeding that are almost always present: child custody, child visitation, child support, support alimony, and property division.

  • Custody can be awarded to the parents as either joint or sole custodians, or a hybrid, where the parties are awarded joint custody with one parent being the final decision maker. Custody does not necessarily mean that a child is in one parent’s care, custody is the decision-making authority of each parent. Joint custodial parents must work together to make decisions regarding important life decisions for the minor children, such as religion, schooling, and health and medical decisions, to name a few. A sole custodial parent may make these decisions unilaterally.
  • Child visitation is the schedule that will dictate when the parents will exercise their custodial time with the minor children.
  • Child support is ordered in every case involving minor children. Base child support is based upon the parties’ gross monthly income, the number of overnight visits awarded to each parent and can be calculated using the Oklahoma Child Support calculator.
  • Support alimony is not as simple as child support because there is no calculator, however, support alimony is based upon one party’s need and the other party’s ability to pay and each parties’ respective monthly income and monthly budget is a consideration for payment of support.
  • As for property division, almost all assets and debts accumulated during the marriage are marital, unless there is a valid, enforceable prenuptial agreement in place. All assets and debts deemed to be marital are subject to equitable division.

Q: What are all of the steps in a divorce?

First, a Petition for Dissolution of Marriage is filed, and often times it is accompanied by an Application for Temporary Orders. Once the Respondent has been served via certified mail or via process server, the Respondent has 20 days to file a response.

A hearing on the Petitioner’s Application for Temporary Orders may be set at the time of filing, however, counsel for the parties may work together to come up with an Agreed Temporary Order and then the parties may strike a hearing on temporary orders.

Once the temporary orders are in place, each side will conduct discovery, which includes Interrogatories, Requests for Production of Documents, Requests for Admission, and occasionally depositions of the parties or parties’ experts. Discovery allows for each side to have a clear idea of where each party stands regarding all issues mentioned above.

Once discovery is completed, the parties may either works toward a settlement or attend mediation, where the parties may end up with a Decree of Dissolution of Marriage, an Agreement Incident to Dissolution of Marriage, and a Joint Custody Plan.

If mediation is unsuccessful, then the parties may proceed to trial for a resolution on the all of the issues or any of the issues not resolved at mediation.


For more information about how the information in this article may impact your business, please call 405.606.4735 or email Molly E. Tipton.

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Phillips Murrah Paying it Forward campaign benefits OKC Beautiful in September

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 Paying it Forward beneficiary in September is OKC Beautiful. #PIFOKC


September Beneficiary

OKC Beautiful

OKC Beautiful logo

 

OKC Beautiful’s mission is to enhance the image and appearance of Oklahoma City through education, programs, and community engagement. OKC Beautiful believes the appearance of our city directly impacts its economic viability as well as affecting the quality of life and self-image of its residents. Oklahoma City is a vibrant community where citizens practice environmentally sustainable lifestyles and nurture economic growth through our programs.

DONATE to OKC Beautiful: https://www.okcbeautiful.com/donors/make-a-donation

Contact OKC Beautiful: www.OKC Beautiful.com

OKC Beautiful on Social Media:

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Previous Beneficiaries

August 2021: Bethesda, Inc.
July 2021: Oklahoma Humane Society
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

Michael D. Carter to receive 2021 DRI Kevin Driskill Outstanding State Representative Award

Michael Carter attorney portrait

Michael D. Carter is an experienced litigator and represents a wide variety of parties in environmental and toxic tort cases in state and federal courts.

Michael D. Carter of Phillips Murrah P.C. has been selected as the 2021 recipient of the Defense Research Institute (DRI) Kevin Driskill Outstanding State Representative Award. DRI is the leading organization of civil defense attorneys and in-house counsel.

Each year, the award is presented to a current or immediate past DRI state representative who has made significant contributions toward promoting DRI membership within his or her state; has been instrumental in implementing a significant, unique program to foster the relationship between DRI and the State and Local Defense Organization (SLDO) to enhance DRI’s stature; and/or has enhanced the public’s view of the role of the defense lawyer in the broader society.

Carter has been a DRI State Representative since 2018 and was DRI’s State Membership Chair in 2017-2018. He will be honored with the Kevin Driskill Outstanding State Representative Award during DRI’s annual meeting in October in Chicago.

“I am thrilled and humbled to receive this award, made more special by being named for our late colleague from Oklahoma, Kevin Driskill, who I first met when we were freshmen at the University of Oklahoma,” Carter said. Driskill’s legal career spanned over 35 years before he passed away in 2014.

Carter is an experienced litigator and represents a wide variety of parties in environmental and toxic tort cases in state and federal courts. In addition, he is a long-time policy advisor on workers’ compensation issues in the state of Oklahoma.

Contact Michael D. Carter at 405.606.4715 or mdcarter@phillipsmurrah.com.

As Dallas businesses scramble to comply with murky mask mandate, Governor files court challenge

mask mandate graphic strip

By Janet A. Hendrick

On the heels of Dallas County Judge Tonya Parker’s August 10, 2021 temporary restraining order nullifying Governor Abbott’s July 2021 prohibition on mask mandates within Dallas County, Dallas County Judge Clay Jenkins issued an order mandating masks for many Dallas employers effective August 12, 2021.  In addition to requiring universal indoor masking for all Dallas County public schools and childcare centers, and in buildings owned or operated by Dallas County, and encouraging masks in all public indoor spaces, the order requires “all commercial entities in Dallas County providing goods or services directly to the public” to develop, implement, and post a health and safety policy. The policy must include at a minimum universal indoor masking for all employees and visitors to the entity’s premises or other facilities and may also include other mitigating measures designed to control and reduce the transmission of COVID-19, such as temperature checks or health screenings. Businesses that fail to comply within three days risk fines of up to $1,000 per violation.

Janet Hendrick portrait

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

Although the language regarding “commercial entities” appears to be limited to only those businesses that provide “goods or services directly to the public,” the FAQs on the Dallas County website broadly state that “[b]usinesses operating in Dallas County must develop a Health and Safety Policy and this policy must mandate that all employees and visitors wear a mask while on any property owned or operated by the business.”

Lack of clarity in Judge Jenkins’ order means businesses within Dallas County must decide whether to comply, even if they do not arguably provide goods or services directly to the public, or risk fines. The most risk-averse route for Dallas County businesses is to (1) mandate masks for all employees and visitors, and (2) prepare a health and safety plan that includes the mask mandate and any other transmission-mitigating measures the business chooses to include.  Employers that choose this path should post the health and safety plan prominently near the entrance to their premises before midnight on August 14, 2021 to avoid the possibility of a fine for noncompliance.

Just hours after Judge Jenkins’ issued his order, Texas Governor Greg Abbott and Attorney General Ken Paxton filed a mandamus petition with the Dallas Court of Appeals to strike down the order.  A hearing is set for August 24, 2021 before Judge Parker, at which point she will decide whether to turn the temporary restraining order into a temporary injunction pending a trial.


We will continue to monitor developments regarding the Dallas County order and are available to discuss its implications and requirements.

  • To contact Janet A. Hendrick, please call 469.485.7334 or email.
  • To contact Michele C. Spillman, please call 469.485.7342 or email.

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Texas Small Businesses Beware: New Laws Expand Liability for Sexual Harassment Claims

sexual harassment graphic 2By Janet A. Hendrick and Laurel L. Baker

Janet Hendrick and Laurel Baker portraits

Janet A. Hendrick and Laurel L. Baker

September 1, 2021 marks the beginning of a new era for sexual harassment claims against employers in Texas. Texas is notorious for protecting its pro-employer policies, but recent legislation goes against the grain to make all businesses, regardless of size, subject to liability for sexual harassment claims.

  1. Senate Bill 45 Broadens Definition of “Employer” and Scope of Liability

Senate Bill 45, signed by Governor Greg Abbott on May 30, 2021, adds Section 21.141 to the Texas Labor Code to define “employer” as “a person who (A) employs one or more employees; or (B) acts directly in the interests of an employer in relation to an employee.” Currently, only employers with fifteen or more employees can be sued for sex harassment, under either federal or Texas law, but the new Texas law will subject all employers doing business in Texas, regardless of size, to these claims. Additionally, the law expands liability to individuals, such as officers, directors, and other employees, so an employee claiming sex harassment can sue not just the employer, but these individuals.

  1. Senate Bill 45 Requires Employers to Act Immediately

Historically, employers subject to sex harassment claims can avoid liability by taking prompt remedial action when an employee alleges sex harassment.  The new Texas law changes this standard, requiring employers to take “immediate and appropriate corrective action.”  What exactly this standard will require remains to be seen, as Texas courts will no doubt face interpreting the standard for years to come.

  1. House Bill 21 Lengthens the Statute of Limitations for Employees to File Claim

Under current Texas law, an employee has 180 days to file a sexual harassment claim with the Texas Workforce Commission. House Bill 21, signed by Governor Abbott on June 9, 2021, extends this period to 300 days for claims based on conduct that occurred on or after September 1, 2021. The 180-day period will still apply to other discrimination claims, including discrimination based on sex, race, color, disability, national origin, or religion.

Although it is yet to be determined exactly how these changes will be interpreted and applied, it is imperative that all employers—regardless of size—be proactive to ensure they are taking measures to minimize liability for sexual harassment claims. Three important steps are (1) robust policies, that allow reporting through multiple avenues, (2) manager training, and (3) swift action to investigate claims. Phillips Murrah has extensive experience investigating and defending sex harassment claims and working with employers to make sure their training, policies and procedures protect their businesses. For assistance, contact your Phillips Murrah labor and employment lawyer.

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


Janet Hendrick portrait

Janet Hendrick is a Shareholder and a 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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Phillips Murrah Paying it Forward campaign benefits Bethesda Inc. in August

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 August is Bethesda, Inc., which provides expert care for children in Oklahoma who have suffered the trauma of childhood sexual abuse. #PIFOKC


August Beneficiary

Bethesda, Inc.

Bethesda Inc Logo

For over 30 years, Bethesda has been a place of healing for children and families, ensuring the highest quality of individual and group counseling for children 3-18 years old and their caregivers. The therapists of Bethesda use a variety of therapeutic interventions to help children heal from the trauma of sexual abuse.

Bethesda is the only organization in Oklahoma devoted exclusively to helping children and families heal from the trauma of childhood sexual abuse. Because Bethesda offers these services with no charge to our clients, they rely on individual donations, in-kind donations and volunteers.

Bethesda invites you to make a $25 donation to support their mission: To heal the trauma of childhood sexual abuse through treatment, education and prevention. 

DONATE to Bethesda, Inc.: www.bethesdaok.org/donations

Contact Bethesda, Inc.: www.bethesdaok.org/

Bethesda, Inc. on Social Media:

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Previous Beneficiaries

July 2021: Oklahoma Humane Society
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

Biden DOL Rescinds Trump Administration’s Joint Employer Rule

By Janet A. Hendrick and Phoebe B. Mitchell

On July 29, 2021, the Department of Labor (DOL) rescinded the Trump Administration’s joint employer rule under the Fair Labor Standards Act (FLSA). This pro-worker change makes it more likely that an employer will be considered a “joint employer” and liable for another employer’s actions under the FLSA.

portraits of attorneys Janet Hendrick and Phoebe Mitchell

Janet A. Hendrick and Phoebe B. Mitchell

In its press release, the DOL explained the importance of the joint employer rule: “Under the FLSA, an employee can have more than one employer for the work they perform. Joint employment applies when – for the purposes of minimum wage and overtime requirements – the department considers two separate companies to be a worker’s employer for the same work. For example, a joint employer relationship could occur where a hotel contracts with a staffing agency to provide cleaning staff, which the hotel directly controls. If the agency and the hotel are joint employers, they are both responsible for worker protections.”

Under the previous rule, the DOL would consider four factors to determine whether a company is a joint employer: whether the company (1) hires and fires the employee; (2) supervises and controls employees’ work schedules or conditions of employment to a substantial degree; (3) determines employees’ rate and method of payment; and (4) obtains employment records.

The DOL stated that this former rule “included a description of joint employment contrary to statutory language and Congressional intent.” The new rule states that rescinded rule “intertwined the horizontal joint employment provision with the vertical joint employment provisions,” while the new final rule asserts that horizontal and vertical joint employment are separate concepts.

Under the new rule, horizontal joint employment exists where an employee is separately employed by and works separate hours in a workweek for more than one employer, and the employers are “sufficiently associated with or related to each other with respect to the employee.”

joint employer rule graphic 2

Vertical joint employment exists where “an employee has an employment relationship with one employer (typically a staffing agency, subcontractor, labor provider, or other intermediary employer),” another employer is “receiving the benefit of the employee’s labor,” and “the economic realities show that the employee is economically dependent on, and thus employed by,” the other employer.

joint employer rule graphic 1

The new rule goes into effect on September 28, 2021.

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.


Janet Hendrick portrait

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

For more information on this alert and its impact on your business, please call 469.485.7334 or email me.

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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
Angela Buchanan portrait
Angela M. Buchanan
Of Counsel
469.485.7341
ambuchanan@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
Angela Buchanan 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:

As Dallas businesses scramble to comply with murky mask mandate, Governor files court challenge – August. 2021

Hendrick presenting at 2021 Texas Diversity Equity & Inclusion Conference – June 2021

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.

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

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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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