It used to be that Georgia took a dim view of employee non-competes, and courts happily threw them out for technical drafting issues the vast majority of the time. This regime, which persisted up until May of 2011, is now wistfully referred to in employment law circles as “the old law”. The old law has been displaced by the new Georgia Restrictive Covenant Act, a statute intended to make non-competes easier to draft, easier to enforce and thus secure an additional measure of competitiveness for Georgia employers. However, the era of the Restrictive Covenant Act is riddled with problems for both employers and employees.
It’s been over four years since the RCA become law, and still, not one case to guide us on its biggest question mark – what will courts do with sloppily-drafted, or overly-broad, non-competes? Will they throw them out, along with other covenants in an employment agreement? Or will they exercise their discretion to “blue-pencil” or “modify” an offending non-compete? We simply don’t know, and nobody wants to be the guinea pig. Therefore, when a sales manager or a junior engineer comes to us for advice on a document that purports to keep him out of his industry, worldwide, for three years, it can be difficult to give them peace of mind. Likewise, when a company calls us to ask if they can hire a CFO under an overreaching non-compete, it can be difficult to give a clear green light. Thanks a lot, RCA – at least under the old law, we knew where we stood – or at least, we knew where we stood more often. Under the RCA, we won’t know exactly where we stand until the parties have spent $100,000 on litigation.
It’s not all doom and gloom. We have learned a few things in this past four-and-a-half frustrating years. Non-competes can often be navigated and negotiated. They cannot, however, be ignored. If you have a non-compete and want to know what it means, or you are thinking about signing one, call an experienced employment lawyer for advice. Often, there are effective damage-control strategies at their fingertips.
To learn more, please contact us via our website or call us at 770-822-0900.
It’s no secret, by now, that December 1 will usher in the application of the “Final Rule” – the increase of the minimum salary payable to “exempt” employees from $455 per week to $913 per week.
In addition to changing the manner in which employees are managed, compensated and asked to track their time, the impending effectiveness of the Final Rule raises a myriad of other questions related to classification: are the employees who have historically been treated as exempt, really exempt? Even if their salaries are raised to the requisite $47,476, do their duties meet the requirements of an executive, administrative, professional or other exemption? How does this affect commissioned employees? Does this affect independent contractors in any way?
Certain employees who have never been considered remotely eligible for overtime, now find their status thrown into question – in particular, in our experience, teachers, engineers and administrative employees – and the answers are a lot muddier than employers think.
Employees are more aware of their wage and hour rights under the Fair Labor Standards Act, as modified by the Final Rule, than ever before – thanks to the publicity efforts of the Department of Labor and the media. Be sure to conduct a legal audit of your employees’ positions and compensation completed in advance of December 1, and correct any compliance issues by that date. If there is a silver lining to the Final Rule, it is that the change in the law gives great cover for correcting a multitude of ills.
What you need to know about your Georgia DUI
by Patrick McDonough.
Driving under the influence of alcohol is an offense that the State of Georgia does not take lightly. Although DUIs are typically considered misdemeanors, there can be extenuating circumstances that advance it to be a felony charge.
Typically, the officer will first try to establish how much you have had to drink and then request you take field sobriety tests (“FST”). Often this will include (1) the Horizontal Gaze Nystagmus test; (2) the 9 step Walk and Turn and (3) the One Leg Stand. Most people believe they are required to take these tests; you are not. These tests serve to bolster an officer’s grounds to arrest and are of little benefit to the driver. Also, the officer may ask you to blow into a handheld machine on the side of the road. This is known as the preliminary breath test. This is not the state administered test, and there are no penalties for refusing to take this test.
When arrested for a DUI, Georgia law requires the driver to take a chemical test to measure their blood alcohol content (BAC). This must be taken as soon as possible from the time they were last driving, and the officer decides whether a breath, blood or urine test will be taken. The officer must explain that, if the motorist decides to take a test, then they have the option of asking for another test at their own expense and they can choose where to take it. The officer must read an implied consent notice explaining that refusal to take a chemical test results in license suspension for at least one year and that the refusal may be used against him or her in court.
If a person refuses this test, even on a first lifetime DUI, a person’s driver’s license may be suspended for one year without being eligible for a work permit.
Georgia’s laws make it illegal for drivers of all ages to operate motor vehicles if they have blood alcohol content (BAC) percentages of 0.08 percent or higher. The minimum percentage of alcohol needed for arrest drops to 0.04 percent if the suspect is operating a commercial vehicle and lower to 0.02 percent if they are below 21 years of age.
If the driver took a chemical test with a result of 0.08 percent or greater, or if they refuse to take it entirely, the driver has only 10 days to request a special hearing in order to save their right to drive. If this deadline is missed, the driver’s license will be suspended.
Specific DUI penalties depend on the motorist’s age, license type and previous DUI convictions. However, penalties usually consist of license suspension or revocation, possible jail time, alcohol and drug evaluations and recommended treatment if any, and increased car insurance rates in addition to varying fines and court costs.
DUI charges are serious, and the law is ever changing. When selecting your representation, it is imperative you hire someone who specializes in DUI law, has trial experience and is familiar with the prosecutors.
Patrick McDonough and Trinity Hundredmark at Andersen, Tate & Carr, P.C. have combined experience of more than 30 years representing drivers facing Georgia DUI charges.
For more information or to request a case evaluation, call our law office at (770) 822-0900. We have been very successful at reaching the best possible outcome for our clients, and our attorneys are here to help you through this difficult and stressful time.
Andersen, Tate & Carr, P.C. congratulates our own Janet Williams on being honored with The National Federation of Paralegal Associations’ Certification Ambassador of the Year award. The award is just one of a handful of awards given by the national organization and it recognizes outstanding achievement in promoting NFPA’s paralegal certification exams. Janet, your hard work and dedication to mentoring paralegals and to enriching paralegal education are greatly appreciated by our firm.
Janet currently serves as an officer of the Georgia Association of Paralegals (GAP). She has also worked extensively in mentoring and educating candidates seeking their paralegal certification. Janet is also active in recruiting new members and making them feel a part of the paralegal profession.
Thomas J. Andersen was recently selected by his peers for inclusion in The Best Lawyers in America® 2015 in the field of real estate (Copyright 2014 by Woodward/White, Inc., of Aiken, S.C.) for the 8th time.
Since its inception in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence. Because Best Lawyers is based on an exhaustive peer-review survey in which more than 39,000 leading attorneys cast almost 3.1 million votes on the legal abilities of other lawyers in their practice areas, and because lawyers are not required or allowed to pay a fee to be listed, inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”
There is a general misconception that Federal courts handle severe offenses, while State courts handle less harsh crimes. However, this isn’t always the case. In fact, Federal courts deal only with violations against Federal law. If an offense goes against both Federal and State law, the Federal courts can decide whether they will pick up the case.
A good example of this would be if a law enforcement agency found a stockpile of drugs ready for distribution. Although the charges from this type of circumstance are not unusual for a Georgia state courthouse, a Federal court is also entitled to take the case for prosecution.
Although Federal courts have the option of picking up certain cases from the State, this freedom is not a two-way street. Violations involving only Federal laws are reserved for the Federal jurisdiction. A main focus for Federal institutions includes large-scale drug operations, terrorism cases, crimes occurring in more than one state, firearm charges and robbery of federally insured (FDIC) banks.
Many of the crimes committed in Georgia are in direct violation of State law, putting Georgia’s courts in a better position to deal with these cases. In fact, most crimes committed in Georgia—DUI, theft, murder, battery, property crimes, and so on—are handled by State and local courts.
A federal prosecutor’s decision to take a case is based on a variety of factors, including the extent of the criminal activity, the current priorities of the federal government and the amount of public awareness about the case. Federally convicted felons are in for the long haul, as Federal Law does not allow for parole and inmates typically serve at least 85% of their sentences.
Regardless of whether you have been charged with a State or Federal crime, it is important that you get the legal counsel of a qualified criminal defense attorney. Patrick McDonough and Trinity Hundredmark at Andersen, Tate & Carr, P.C. have more than 30 years of combined experience representing both Federal and State offenses.
For more information or to request a case evaluation, call our law office at (770) 822-0900. Our goal is to reach the best possible outcome for our clients, and our attorneys are here to help you in a difficult and stressful time.
What to Do If Your Teen is Caught Shoplifting
by Patrick McDonough
Most parents are shocked when their child is caught for shoplifting. After all, these offenders are often good kids from good families that maintain above-average grades. One bad judgment call can result in an offense that is subject to both civil and criminal penalties. If prosecuted, the stigma can follow these young offenders longer than imaginable.
People tend to think of shoplifting as taking an item without paying for it. The offense, however, can take many forms. Aside from concealing or taking possession of merchandise, a shoplifting charge can be brought for altering or switching price tags, transferring unpaid goods from one container to another, or anything else wrongfully causing the amount paid to be less than the merchant’s stated price.
In the state of Georgia, offenders that are 17 years of age or older are prosecuted as adults. The child or teen is charged with a misdemeanor if the total retail value of the items adds up to $500 or less, which can lead to a maximum sentence of 12 months in jail and a $1000 fine. The charge becomes a felony if the retail value of the items exceeds $500, potentially leading to between 1 and 10 years incarceration in addition to any applicable fines.
If your child has been accused of theft, the first thing you should do is speak to a qualified criminal defense attorney. They will be able to advise you of what steps need to be taken and what to expect throughout the process.
Theft is something that retailers take very seriously, having cost them over $112 billion worldwide last year alone. There is a perception that stealing from larger companies creates less harm, but they are more likely than smaller retailers to have zero-tolerance polices. After the store notifies authorities, the arriving officer has the discretion to either issue a citation or arrest the suspect.
Unless handled properly, the arrest and conviction will remain on your teen’s permanent record for life. Even with Juvenile offenders, there are steps needed to seal the record.
The most important step a parent can take to keep their teen’s future safe is to call a qualified criminal offense attorney. Patrick McDonough and Trinity Hundredmark at Anderson, Tate & Carr, P.C. have combined experience of more than 30 years representing teens in shoplifting cases. For more information or to request a case evaluation, call our law office at (770) 822-0900.
Our goal is to reach the best possible outcome for our clients, and our attorneys are here to help your family through this difficult and stressful time. We have been very successful at getting shoplifting cases dismissed and the arrest expunged, all while preserving the child’s good name.
RECENT GEORGIA CONDEMNATION CASES
By R. Matthew Reeves
Gwinnett County’s renewal of the one-cent Special Purpose Local Option Sales Tax in November of 2013 provides three more years of millions of dollars of local funding for transportation projects, which will no doubt produce more condemnation cases in Gwinnett County. Eminent domain law remains a highly specialized area of Georgia law, as evidenced by several reported condemnation cases over the past year.
Condemnation cases often require application of other areas of Georgia law, and in Postell v. Bd. of Commissioners of Houston County, 317 Ga. App. 898 (2012), probate law was applied. As part of a road project, Houston County condemned part of a 101 acre tract that Mr. Postell’s great-grandfather owned until he died intestate in 1949. Several weeks after the property was condemned, Mr. Postell was conveyed the property by way of a quit claim deed from his mother. The Court of Appeals affirmed the denial of Mr. Postell’s motion to set aside the condemnation, holding that Mr. Postell had no standing to challenge the taking because the quit claim deed was not recorded until after title had passed to the condemning authority. The Postell court noted that a petition for condemnation is not merely a pleading, but is an instrument which passes title.
Fulton County v. Dillard Land Investments, LLC, 322 Ga. App. 344 (2013), also analyzed when a condemnation becomes final. Dillard concerned a condemnation to expand a library, which must proceed under a special master form of condemnation, rather than a declaration of taking as in road-related condemnations. The Special Master opined that the property owner was entitled to $5,187,500.00. Apparently shell-shocked by the award, Fulton County attempted to voluntarily dismiss the case and abandon the proposed condemnation before the massive sum was paid. The Court of Appeals reversed the trial court, and held that Fulton County was authorized to dismiss the case. The Court’s reasoning hinged upon the fact that title does not pass in a special master condemnation until money is paid into the registry of court pursuant to the special master’s award.
Georgia Dept. of Transportation v. Jackson, 322 Ga. App. 212 (2013), was an inverse condemnation case in which a property owner claimed that the DOT condemned a property interest he owned, when the DOT closed a driveway that led to his property. Between the DOT’s road and the owner’s property were a tract with no owner of record, and a railroad track. Based on aerial photographs and evidence of use of the driveway for decades, including testimony from a local historian and attorney, Judge Bill Ray wrote an opinion affirming a jury verdict based on the inverse condemnation of the property owner’s prescriptive easement.
Power companies have the power of eminent domain to acquire land for transmission likes and other infrastructure. In Boston Creek Holdings, LLLP v. Amicalola Electrical Membership Corp., 320 Ga. App. 375 (2013), the Court held that there is a one-year statute of limitations for claims against power companies for occupying the lands of others. In this case, potential class action claims filed in 2011 based on power lines installed between 1979 and 2008 were dismissed on statute of limitations grounds.
In Amica Mutual Insurance Co. v. Gwinnett County Police Department, 738 S.E.2d 622 (Ga. Ct. App. Feb. 19, 2013), distinguished jurist Judge Michael Clark was once again affirmed, when the Court of Appeals held that Gwinnett County was entitled to sovereign immunity against an inverse condemnation claim based on damage caused during a police stand- off. Judge Clark and the Court of Appeals sided with effective but messy cops in this subrogation suit following a homeowner’s insurance claim based upon damage to a home during the execution of an aggravated assault arrest warrant. Former Gwinnett County Bar Association President Tuwanda Williams and County Attorney Van Stephens won this appeal.
If probate law, seven-figure Fulton County awards unrecorded driveway easements, “S.O.L.” issues, and knock-down drag-out fights with cops were not colorful enough, the barring of alcohol in private booths at a nude dancing club near Hartsfield-Jackson Airport rounds out this review of recent eminent domain cases. In Walleye, LLC v. City of Forest Park, 322 Ga. App. 562 (2013), the Court of Appeals affirmed summary judgment on an inverse condemnation claim, holding that based on the facts of the case, after passage of an alcohol-nudity ordinance, the subject property did not experience a regulatory taking.
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Matthew “Matt” Reeves is a former President of the GCBA, a partner at Duluth law firm Andersen, Tate & Carr, P.C., and practices real estate, business and probate litigation, including representing property owners and business owners in eminent domain matters.
This article was previously published in the Gwinnett County Bar Association newsletter.
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Trinity M. Hundredmark and Martina G. Palatto of Andersen, Tate & Carr P.C. in Duluth have been appointed to serve on the Young Lawyers Division of the State Bar of Georgia as part of the Board of Directors. Hundredmark and Palatto will act as directors of special projects for education and will assist in promoting initiatives set by the YLD president, Sharri Edenfield, focusing on service to military veterans, leadership development in YLD members and finding solutions to access to justice issues.
Hundredmark was appointed by the Supreme Court of Georgia to serve as a District 9 chair on the Unauthorized Practice of Law Committee for the State Bar of Georgia. Palatto is a cum laude graduate of the University of Georgia School of Law and has served as executive editor of the Journal of Intellectual Property Law, president of the Health Law Society and vice president of the Student Bar Association.
The YLD has more than 25 committees that produce a variety of projects and programs. It has also gained national recognition by winning several American Bar Association awards for its projects and publications.
As posted in the Gwinnett GAB section of the Gwinnett Daily Post
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ATC’s Melody Glouton was recently recognized as a part of the legal team of what is rated as #14 Top Georgia Verdict of 2013 by the Daily Report. The case, a Product liability case, revolved around the defective operation of a seatbelt during a car accident. For additional details, please click the attached link.
Andersen, Tate & Carr, P.C. 