Sarita Garg's Legal Blog

There is no greater act of selflessness than the adoption of a child. Nobody knows this better than Angelina Jolie! Since 1987 the annual number of children who were adopted has hovered between 118,000 to 127,000. In Texas in 2005 there were over 10,000 children in foster care that needed stable loving homes. There were over 115,000 nationwide. In 2004 a little over 2,500 children in Texas were adopted through a public adoption agency. Although many adoptions are stepparent adoption, a few people adopting internationally and an even smaller amount seeking surrogacy, there are still a lot of children in Texas who are in need of loving homes.

In the U.S. the laws governing an adoption case are the ones in which the child resides and it is considered a private legal matter. Whether you are adopting a child internationally, across state lines or right here in Texas, it is imperative that you seek sound legal advice from a family law attorney at Smith & Garg.

In basic terms, an “arbitration clause” is a paragraph that is typically inserted into a contract or written agreement, and provides that all parties to the contract or agreement, agree that if a dispute should arise between the parties, then all parties agree to go through the “arbitration process”.  You may be wondering, what is arbitration?  Arbitration, alterative dispute resolution (ADR), or mediation, all refer to a process where the disputing parties meet outside the court system, and an aribitrator/mediator, who is a neutral party, will hear both sides of the dispute, and encourage a  settlement of some sort.  Of course, as a matter of public policy, the judicial system is suuportive of such methods for resolving disputes, as it keeps the courthouses less crowded.  For more detailed information on arbitration, and the legal signficance of arbitration clauses, please feel free to contact our office at 281.210.0010.

Our firm recently (on the 22nd of February) celebrated the first anniversary of Smith & Garg which was actually a few months before that, but timing was not the best due to our firm moving office locations, and expanding in Long Beach, California. It was extremely thoughtful of Mama Garg & Papa Garg (my in-laws) who arranged the whole event by throwing us a very lavish party, which was held in a private room at Grotto’s in the Woodlands.  The room was decorated beautifully, including the tables with assorted candies, and beautiful table pieces, and when you entered the room, after being greeted by the Gargs (Senior), there was a table with balloons and a huge card, which everyone signed on their way in.  The party included fantastic food, fine wine (glasses were constantly refilled by the minute), and one of the best champagnes I have ever tasted, and the best part was the desert…big, sweet, delicious, chocolate cake, with the Smith & Garg Logo on the face of it!  To top the evening off, we had a fabulous band that played light jazz tunes in the corner of the room!  I abosolutely loved it. I gave a speech at the party, but I would like to reiterate a few things that I said that night, here.  First of all, I have tremendous gratitude for my in-laws for even throwing us a party, and for all the planning that went into the event.  It would not have happened without them.  Secondly, I would not be able to do what I do, everyday, every week of every month, without the support of my loving husband, Dr. Amit K. Garg.  As I stated in my speech that evening, “behind every successful wife, stands a very supportive husband” which perfectly conveys what I feel.  Whether it is a brunch at the Indo-American Chamber of Commerce, a marketing event at the George Brown, an Indian temple in Pearland, Reliant Stadium, or a concert in the park…time and time again, my husband has been there for me…I could not ask for anything else.  My speech would not have been complete without giving credit to my partner, Brian Smith, a fantastic businessman, whose engine never runs out of fuel, whose mental wheels keep moving, and whose morals and ethics remain constant through it all, something that is fundamental to me, and which I respect him for.  He and his whole family have become part of our family (the Garg family), and I look forward to the day when my kids will be calling him “Uncle Brian”!  And of course, the structure of our company would not be solid without the hard work and efforts of Smith & Garg’s brilliant, energetic and assertive Managing Partners (Steven Pham, Steven Pham, Jim Jones, & Kevin Cloves) and team of lawyers (Marjorie Perry, Evi Huynh, Jennifer Ray, Sherea Vitelli, and Jenny Nguyen. 

Happy Birthday Smith & Garg!

 At Smith & Garg, many clients will approach us with what they believe to be “wrongful termination” cases.  Unfortunately, 8 out of 10 people that we speak with do not have a case, at least under Texas Law.  It is important to understand what the term means, whether you are an employer or an employee.  Especially if you work or own a business in the State of Texas, you need to be aware about what rights and duties exist under Texas law with regard to termination of employment.  

I am sure you have heard it time and time again, but Texas is an “at-will employment state” and with regards to employees, this is a very tough standard. So what in god’s name does that mean?  Basically, at-will employment means that absent a contract or civil rights exception, the employer may fire the employee at any time, with or without cause. For instance, an employer can come into the office one morning and fire an employee because he or she does not like the color of the employee’s shirt. Additionally, the employer does not have to state why he/she is firing the employee.  This is completely legal in the State of Texas. For this reason, despite popular misconception, there is generally no claim or cause of action for wrongful termination or wrongful discharge. I have had several individuals call me and tell me that they just got fired, that they were not given any reasons for why, and that they felt that it was racially motivated.  When I proceed to ask questions, there is typically not any actual proof or solid evidence of racial discrimination, and unfortunately you can’t sue an employer on the grounds of a hunch or a feeling.

There are, however, a few exceptions to the general rule and these exceptions are very important. An employer’s right to terminate an at-will employee can be limited by contract, by public policy concerns, by federal and state civil right statutes, and by some tort theories.  Let us explore these a little further.

If an employee and an employer signed an employment contract, each party to the contract has the duty and obligation to adhere to the terms and conditions of that contract. Wrongful termination can occur if the employer terminates the employee in violation of the contract - oral or written. It is also important to note that an employee can also be sued for violation of an employment contract if he/she is in breach.

Employees of a publicly traded company who report fraudulent activity are protected from retaliation and cannot be terminated for reporting that activity.  This is called “Whistle-Blower Protection”.

An employer may not terminate an employee for refusing or failing to commit illegal or illicit acts. If an employee is terminated for the sole reason that he or she failed to commit a crime, he or she may have a cause of action for filing a wrongful termination lawsuit.

Certain civil right statutes prevent employers from terminating or taking adverse action against an employee for the following reasons:

• Discrimination – An employer may not discriminate on the basis of an employee’s race, color, national origin, religion or sex.
• Age – An employer may not terminate an employee on the basis of age if the employer has more than twenty employees.
• Disability — An employer cannot terminate employees who are otherwise qualified for a given job position based on disability.
• Health Related — An employer can be liable to an employee if he or she fails to allow unpaid leave for the birth or adoption of a child, or to care for a child spouse or parent suffering serious health condition.

Sometimes, issues can arise during the period of employment or after employment has terminated which can impose liability on a company or an employee. Defamation claims can arise in a variety of employment contexts including reviews, corporate communications, investigations of an employee’s conduct, and post-employment references. In Texas, to establish a claim for defamation an employee must show the following:
     (i) an employer made a false statement about him or her, which
     (ii) was published to a third party, and
     (iii) caused the plaintiff harm and the statement was made with malice.

Some common statements complained of involve dishonesty, fraud, sexual harassment, and illegal drug use.

The Family Medical Leave Act prohibits retaliation by the employer for an employee taking or requesting medical leave.

If an employee files for bankruptcy under the U.S. Bankruptcy Laws and is terminated by an employer because of the filing for bankruptcy, an action can be brought against an employer for wrongful termination.

The Fair Labor Standards Act (“FLSA”) was designed to protect workers from excessive hours and substandard wages. The FLSA entitles an employee to receive not less than one and one-half times regular rate for every hour of compensable time worked in excess of forty hours in any given workweek. Some employees, however, are exempt, such as executives, as well as certain service industries, such as domestic services.

If you are an employer or employee, violation of some of the standards and laws referenced above can have dire consequences both personally and professionally. It is important to consult with an attorney immediately if you believe that you have been wrongfully terminated or if your company has been sued or is about to be sued for wrongful termination. The attorneys at Smith & Garg, LLC are experienced attorneys who would be honored to represent you or your company’s interests in the event you need legal services.

Whether you were aware of it or not, debt collectors are required to conduct themselves in a certain manner, and the entire debt collection process is not only regulated by state law, but also federal laws. What does that mean? Well, basically, fair debt collection laws have been set forth which specifically define permissible and impermissible methods that the debt collector must abide by when trying to collect a consumer debt. For example, a debt collector may not harass, oppress, or abuse a consumer or a third party connected to the consumer, or contact the consumer at inconvenient times or places, or continue to do so after the consumer has asked the collector to stop. Thus, the debt collector should not use threats of violence or harm, use obscene or profane language when communicating with the debtor, or repetitively call the debtor with the intention to annoy him or her. Also, debt collectors may not use false or misleading statements when trying to collect. Therefore, the debt collector cannot lie about their identity and falsely claim to be an attorney, government employee, or employee of a credit bureau; tell the consumer that he or she is going to be arrested if he or she doesn’t pay the debt; lie about the amount of the debt owed; or lie about any documents that have been sent to the debtor by claiming that they are legal documents when they are not, or vice versa. Additionally, the debt collector may not resort to unfair practices when collecting a debt. That means that the debt collector may not use deception to try and get the debtor to accept collect calls or pay for telegrams; threaten to take the debtor’ property unless the collector has legal authority to do so; or try to contact the debtor through postcards.  However, it is important that you realize that if you have a claim against a debt collector for violating these laws, it doesn’t relieve you of your obligation to pay off your debts.

So, I am sure you are wondering what happens next, if you discover that you do in fact have a claim.  With regards to remedies , you may sue the debt collector within one year from the date of the violation, in state or federal court. If you are successful, you could potentially recover monetary damages, as well as an additional amount up to $1,000.00. Also, you may be able to recover attorney’s fees and court costs involved in pursuing such a claim. Class action suits are also an alternative, where a group of consumer-debtors file suit against a common debt collector, they can recover monetary damages up to $500,000, or one percent of the debt collectors’ net worth; whichever is the lesser of the two options. If you feel that your consumer rights have been violated by a debt collector, call a qualified attorney at Smith & Garg today for a consultation.