Bustos Law Firm

Archive for January, 2018|Monthly archive page

I don’t own anything, why do I need a will?

In Wills on January 18, 2018 at 1:52 PM

By Deirdre Kelly Trotter

Even if you feel you have nothing to pass on, a will does more than distribute your property. It identifies the person you want to handle your affairs after you are gone. It sets out who you want to receive any property you may have. In addition, if you die as a result of an accident, there may be claims and monies available through a death claim that result from your death, or maybe you have a winning lottery ticket in your pocket when you die. Stranger things have happened.

If you die without a will, a dependent administration may be the result. In a dependent administration the court is involved in every stage of the administration. Because an individual who is not an attorney cannot represent another person or an estate, it is necessary to get the help of an attorney to handle the administration before the court. Depending on the size of the estate, a large portion of the estate may be consumed to cover the costs associated with the dependent administration, and if there is not enough value in the estate to cover the costs of dependent administration, your loved ones may be left to pick up the tab. By contrast, with a will, court involvement is minimal and expenses are greatly reduced.

There are different reasons for failing to make a will, fear of cost, fear of hurt feelings, the reasons change with the person. However, failing to execute a will may be more expensive and more hurtful in the long run. The better you have planned your exit, the better it will be for those you leave behind. Be open and honest with family members to avoid surprises later.

In Texas, a person of sound mind has the right to make a will, if the person is at least 18 years of age, is or has been married, or is a member of the armed forces of the United States, an auxiliary of the armed forces, or the maritime service. Tex. Est. Code § 251.001. Because of the sound mind requirement, a person must make estate planning decisions while he/she has capacity.

In Texas, an attested will must be in writing, signed by the person making the will, and attested to by two witnesses. Tex. Est. Code § 251.051. However, there is an exception for holographic wills. A holographic will must be wholly in the handwriting of the person making the will, and signed by the person making the will. Tex. Est. Code § 251.052. It should be dated, but does not require witness signatures. Seeking appropriate legal advice for estate planning is important, but a wholly handwritten and signed will, preferably with a date may be better than no will at all. However, keep in mind, if there are issues with the holographic will, it may require court intervention to interpret and resolve those issues, so it is not a foolproof solution.

While there are no guarantees, taking action now may save a lot of heartache and misery for your loved ones later. Even if you don’t feel you own anything, having a will in place is a wise choice.

BROWNING-FERRIS JOINT EMPLOYER TEST

In Employment on January 10, 2018 at 9:48 AM

In a recent 3-2 vote, the National Labor Relations Board overturned the Browning-Ferris Test, a commonly known test whereby a company and its contractors or franchisees could be deemed a single joint employer, even if the company has not exerted overt control over the workers’ terms and conditions. In the Browning-Ferris case, the board determined that Browning Ferris was a joint employer of recycling workers provided by a staffing agency at a Browning Ferris owned recycling facility. In Browning-Ferris, the board revised the standard to include “indirect control” or the ability to exert such control.

The board’s latest ruling now returns the test back to a “direct and immediate” control standard analysis. Commenting upon their ruling, the board’s majority stated: “[a] finding of joint-employer status shall once again require proof that putative joint employer entities have exercised joint control over essential employment terms (rather than merely having ‘reserved’ the right to exercise control), the control must be ‘direct and immediate’ (rather than indirect), and joint-employer status will not result from control that is ‘limited and routine.’”

The significance of this result is that an employer is less likely to be held liable as a joint employer under the NLRB, because indirect control alone is no longer sufficient to establish liability.  Thus, in the event an entity works with and supervises employees who are construed as part of a collective-bargaining organization, and those employees are employed by another entity, so long as the “non-employer” entity does not exercise “direct and immediate” control over the terms and conditions of the employees of other entity, such as hiring and firing, then the “non-employer” entity is unlikely to be considered a joint employer for purposes of liability under the National Labor Relations Act.

This standard is similar to standards for determining joint-employer liability under the Fair Labor Standards Act, as demonstrated in the Tenth Circuit, “(1) whether the alleged employer has the power to hire and fire employees, (2) supervises and controls employee work schedules or conditions of employment, (3) determines the rate and method of payment, and (4) maintains employment records.”  See Jensen v. Redcliff Ascent, Inc., No. 2:13-CV-00275-TC-EJF, 2014 U.S. Dist. LEXIS 82478 at *6-8 (D. Utah June 17, 2014) (discussing tests applied by various circuits); Baker v. Flint Eng’g & Constr. Co., 137 F.3d 1436, 1440-41 (10th Cir. 1998).  And Fifth Circuit, “whether an individual or entity is an employer, the court considers whether the alleged employer: ‘(1) possessed the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.’”  Williams v. Henagan, 595 F.3d 610, 620 (5th Cir. 2010).

Thus, the takeaway for employers to remember is that under the NLRB and FLSA, liability typically attaches to any entity, regardless of whether it is the “hiring-employer,” when that entity exercises control over determining the terms and conditions of employees’ employment.