Archive for the ‘Litigation’ Category
Recently, a client approached us after losing his job as a cashier at a convenience store. He contended that he had been terminated over religious differences with his boss and coworkers. Our client was Hindu and his coworkers Muslim. As a result, he felt that he was routinely given the worst tasks of all of the staff, and ultimately, that he was fired for complaining about the discriminatory treatment.
This client relied heavily on his steady income and was suffering from its sudden loss. We agreed to pursue a claim of wrongful discharge based on religious discrimination under Title VII of the Civil Rights Act. In preparing a complaint and computing the damages to the client resulting from the loss of his job, we asked him more about his lost earnings – what was his hourly rate? how many hours did he work in a typical week? It became Immediately apparent that, not only had the client been unlawfully terminated, but, working 60 – 80 hour weeks at a “straight time” rate of $10.00/hr, he had not been paid overtime (or “time and a half”) for all hours in excess of 40/week in accordance with his rights under the Fair Labor Standards Act (“FLSA”). Suddenly, this client’s case became focused on the three years of unpaid overtime to which he was entitled – a clear, easily calculated claim which was not dependent upon proving the discriminatory mindset of the employer.
Once an overtime violation is alleged by an employee, the burden shifts to the employer to disprove the entitlement to overtime and/or back pay. For that reason, FLSA allegations are notoriously difficult to disprove, and such wage and hour claims allow the plaintiff to seek back pay, front pay, attorney’s fees and liquidated damages.
In our client’s case, the violations were so blatant (the pay records, of which our client had copies, clearly showed up to 80 hours of work per week paid at a straight time rate) and serious (thousands of hours of underpaid overtime), that the claim was settled within two weeks and before a complaint was even filed. The resulting settlement to our client was substantial.
Employers provide slam-dunk FLSA cases for disgruntled employees when they
- fail to pay 1.5x the “regular rate of pay” for all hours worked in excess of 40 per week;
- incorrectly calculate of “regular rate of pay” (which is more complicated than it sounds);
- use “comp time” in lieu of overtime;
- incorrectly classify employees as “exempt” (“exempt” means more than just “salaried and/or responsible”);
- make automatic deductions from pay for meals and breaks;
- permit, or require, “off the clock” work of any description;
- make deductions from pay for the cost of uniforms, damage to property, loss of property, violations of rules/policies;
- retaliate against an employee who complains of FLSA violations.
Employees who feel that their FLSA rights may have been violated should compile good records of their hours worked and pay received for the previous three years, before speaking to an employment lawyer. Employers should be proactive in consulting an employment lawyer to confirm they are complying with the FLSA.
Jim Joedecke, Liz Clack-Freeman and Eadaoin Waller represent both employees and employers regarding compliance with Title VII, FLSA and in other areas. By not limiting their practices to “one side,” they have a unique perspective to “both sides” of a claim or potential danger zone.
When I watch TV shows with my teenage boys, it drives me crazy that they are on their mobile phones, texting, Tweeting and Facebooking. We frequently have to back up the show when something funny or significant happens. Of course, when my wife and I suggest that they pay attention to the show, they strenuously argue, “I’m multitasking!”
Multitasking is the modern American way. Friends and colleagues frequently claim to be multitasking, as if bragging about their high efficiency. But decades of research by neuroscientists has definitively established that multi-tasking is a myth. Our brains are not designed to pursue two or three tasks at the same time. Our brains function best when doing a singular task.
The best example of this is texting and driving. You cannot give your full attention to the road in front of you and draft or read a text message. Surprisingly, the same is true of merely talking on your cell phone while driving, even if you’re using a hands-free device or Bluetooth through your stereo system. In fact, research has shown that driving a car while on your cell phone is the equivalent of being intoxicated. Sleights of Mind, What the Neuroscience of Magic Reveals about our Everyday Deceptions, Macknik, Stephen L.; Martinez-Conde, Susana; Picador ISBN 978-0-312-61167-5, 2011, p.87. www.sleightsofmind.com.
Neuroscientists refer to this principle as inattentive blindness. “We have to be aware that there is a cost to the way that our society is changing, that humans are not built to work this way,” says Russ Poldrack, a brain scientists at UCLA. “We’re really built to focus. And when we force ourselves to multitask, we’re driving ourselves to perhaps be less efficient in the long run even though it sometimes feels like we’re being more efficient.” Id, pp. 87-88.
Psychologists at Western Washington University conducted a fascinating experiment regarding inattentive blindness. They observed four categories of college students walking across the main campus square. One group was minding their own business and told to simply walk across the quad. A second group was walking in pairs and talking. A third group was listening to music on mobile devices. The fourth group was talking on cell phones. In each instance, a ridiculously costumed clown on a unicycle pedals in circles around the participants.
Which participants noticed the unicycling clown? The students walking in pairs were most likely to notice the clown. The students listening to music on their mobile devices were only slightly less attentive. Half of the students talking on cell phones entirely miss the unicycling class. Half! The cellphone users also walked more slowly, weaving as they crossed the square. Id., p. 86.
So if we are not going to notice a unicycling clown, we certainly are not going to notice the subtleties of the traffic patterns unfolding in front of us: the driver slowly decelerating, the car in front of us drifting into our lane or the commercial vehicle unexpectedly making a left turn into our lane.
Inattentive blindness is probably a factor in the vast majority of car accidents in metropolitan Atlanta, Gwinnett County and in counties all across Georgia. Multi-tasking drivers must be held responsible for the injuries they cause with their carelessness.
It is vitally important to retain a competent attorney to represent you in collision cases whether they involved 18 wheelers, other commercial vehicles or Passenger vehicles. Preserving and collecting the proof of cell phone usage in connection with car accidents is highly time sensitive. Cell phone providers only maintain data for a limited period of time. This data must be preserved, and in order to do so, you must put the at-fault driver and their insurance company on notice.
On March 21, 2013, thanks to the efforts of Tom Tate and other members of the defense team a federal judge in Louisiana decertified a class of plaintiffs who accuse Viking Range Corp. and its distributors of making slipshod appliances in order to create opportunities for repair work, finding the group of products being labeled defective was overly broad and could not be shoehorned into a single case.
English: The Dunwoody Farmhouse (Photo credit: Wikipedia)
ATC litigation partner Matt Reeves represented Dunwoody City Council Member Dr. Adrian Bonser, a dentist, in getting ethics charges against her dropped. This was the first Board of Ethics matter in the new City of Dunwoody, and included approximately six months of proceedings and a four-hour ethics hearing in September. The dispute centered around complex Georgia Open Meetings Act and Executive Session issues.
Matt was counsel to the Georgia House Judiciary Committee Chairman during the 2008 Georgia General Assembly, when legislation was approved to create the City of Dunwoody. Matt has handled many governmental litigation matters, in addition to litigating eminent domain, business, real estate and probate cases.
Have you notified all potential insurance carriers of your claim? If you’re unsure, then watch out! They may use that as a basis for denying your claim. A competent attorney can assist you in not only promptly notifying an insurance carrier of your claim but also of identifying all of the insurers that may be responsible for the injuries and losses you sustained. The following case serves as an example of how far an insurance company may go to try to avoid paying a claim:
In October 2004, a work supervisor asked Mr. Hoover, to deliver a ladder to a job site where a contractor was making roof repairs. Once there, Mr. Hoover courteously agreed to climb onto the roof and assist the contractor with his work. Tragically, after Mr. Hooper helped finish the work and was climbing off the roof, he fell to the ground and sustained a serious brain injury. Mr. Hoover’s brain injury led to a long hospitalization and expensive medical bills. As a result, Mr. Hoover obtained an attorney and filled suit against his employer and his employer’s insurance company in an effort to recover for his medical bills, lost wages, and pain and suffering.
The insurance company that was supposed to cover Mr. Hoover’s employer denied coverage and refused to defend the employer. The insurance company claimed that a certain exclusion listed in the policy allowed it to avoid paying the claim. At the same time, the insurance company tried to argue that there might also be additional exclusions that would allow it to avoid paying the claim if a court were to find that it’s first exclusion wasn’t legitimate.
Not to be discouraged, Mr. Hoover and his attorney proceeded to trial on their claim and were awarded $16.5 million in damages! To collect Mr. Hoover’s verdict, Mr. Hoover and his attorney appealed the decision of the trial court and Georgia Court of Appeals, which both held that the insurance company wasn’t liable. However, thankfully for Mr. Hoover, and injured victims across the state, the Georgia Supreme Court held that the insurance company was liable. Specifically, the Court held that the insurance company could not both (1) deny the claim and (2) try to reserve the right to argue other defenses later if its first reason for denying the claim was proven to be untrue. In other words, the insurance company had to take one position from the very start and then stick to it. Mr. Hoover’s case certainly goes a great way in illustrating an insurance company’s efforts to avoid paying a claim. Fortunately, in this case, the Court required the insurance company to actually provide insurance and pay for Mr. Hoover’s injuries.
ATC partner Amy Bray was quoted extensively in the recent article “Hanging Up the Gloves” by Anna Stolley Persky in the Community Association Institute’s May/June 2012 issue of Common Ground magazine.
The article analyzes and shares information for homeowners and condominium association boards to consider in approaching and resolving disputes. Ms. Bray was consulted not just for her experience in representing associations, but for her experience as a mediator of such disputes. She is registered as a mediator with the Georgia Office of Dispute Resolution, with years of experience both with dealing with all legal aspects of community associations and with mediating lawsuits.
Oconee County courthouse in Watkinsville, Georgia (Photo credit: Wikipedia)
ATC Partner Matt Reeves addressed the Oconee County Rotary Club in Watkinsville on March 20, 2012, on the topic of Condemnation/Eminent Domain. Firm corporate attorney Eadaoin Waller is a member of the club. Property owners in fast-growing counties such as Oconee County, Gwinnett County, and surrounding counties frequently encounter condemnation, and Matt and several other ATC attorneys including managing partner Tom Tate and Jim Joedecke have tried many condemnation cases to verdict in recent years. Matt spoke to the club about legal issues concerning condemnation, the Landowners Bill of Rights, and the U.S. Supreme Court’s Kelo decision. Reeves answered questions from Rotarians, and the club made a donation to the “Oconee Wee Read” program in Matt’s honor following the presentation.
In many civil cases such as a trucking case, hospital malpractice or products liability, Georgia law requires that the Judge tell the jury that corporations are people too. Here is the precise language from the Pattern Jury Charges:
”You must consider this case as a lawsuit between persons of equal worth and equal standing in the community and between persons holding the same or similar positions in life. All persons stand equal before the law. In a court of justice, all persons are to be dealt with as equals. A business entity such as a corporation is regarded as a person in this instance.“
What do you think? Are corporations people too? How would this language affect your deliberations if you were a juror in Georgia and corporate wrong doing had severely injured or killed someone?
In car wreck cases in Georgia, the jury is not allowed to know whether or how much insurance the defendant has available to satisfy a verdict and judgment against him or her. However, jurors must be qualified as to whether they are shareholders, officers, directors or employees of the defendant’s insurance carrier, and, when it’s a mutual insurance company such as State Farm, jurors must also be qualified as to whether they or their family members are policy holders of the defendant’s insurance company.
Defendants get testy about this because they believe that the qualification of the jury as to the insurance carrier is a gaping loophole in the law that allows the jury to essentially be told that the defendant has insurance. In Park v Nichols, 2011 Ga. App. LEXIS 95, (Feb. 15, 2011), the defendant’s Insurer, Nationwide Mutual Fire Insurance Company was mentioned by name four times. First, the Trial Court pre-qualified the jury as to officers, directors, shareholders, and employers of Nationwide. Next, the Court asked if any members of the panel were policy holders of Nationwide. Then, the Court asked if any jurors were related by blood or marriage to a director, agent, shareholder, or employee of Nationwide. The defense team moved for a mistrial but the trial court refused. On appeal, the Georgia Court of Appeals agreed, holding that repeating the name of the insurer is appropriate in questioning the prospective jurors about their potential financial interest in the outcome of the case.
These rules essentially choose between the lesser of two evils. The alternative would be to allow a senior executive of Nationwide to sit on a jury in which one of his customers was being blamed for a wreck. Of course not.
Many defense teams also complain when the plaintiff asks about the employment background of the prospective jurors and specifically asks whether they or their family members work in the insurance industry. Georgia law permits these questions as well and for good reason. For example, if a prospective juror has been a Nationwide personal injury adjuster for forty years, the Plaintiff is entitled to know that information and to factor it in to her preemptive strikes. See Norfolk vs. Perkins, 24 Ga App 552 (1997) (holding that prospective juror’s insurance background was a legitimate rationale for plaintiff’s preemptory strike as non-race based rationale).
Lawrenceville, Ga January 20, 2012 1:30pm.
The allegations in the case included that the customer sustained serious injury, necessitation a 5-level cervical fusion, when he fell in a foreign substance at a Kroger grocery store. The trial judge struck Kroger’s answer and found it liable for the injuries sustained by the customer when evidence developed during discovery suggested that the Kroger employees had tampered with and destroyed video surveillence footage of the incident and had deliberately deceived the customer’s lawyer during the lawsuit. Thus, the jury was only charged with the duty to arive at a dollar figure that would compensate the customer for his injuries and permanent disability.
The Gwinnett County Jury also found that Kroger had been stubbornly litigious. Based on that factual finding, the judge sent them back to the jury room for a second round of deliberations. This time their job was to calculate the attorneys fees and expenses incurred by the customer and to reimburse him for those expenses. After about five minutes of deliberations, the jury awarded an additional 40% of its base verdict of $1.689 Million for a grand total of $2,364,600.