Archive for the ‘attorney’ Tag
Waterscape, [represented by Andersen, Tate & Carr attorneys R. Matthew Reeves and Robert D. Thomas], [recently asked the] Forsyth County Superior Court Judge David Dickinson to disqualify [attorney George] Butler from representing the [opposing party], on the basis that Butler had been a lawyer for Waterscape.
Waterscape sought dismissal of the appeals, saying that the disqualification order was not a final order, meaning that Butler and his clients had to obtain a certificate of immediate review or follow the application procedures for an interlocutory appeal. Butler’s clients argued that there was a conflict in Georgia case law on whether a disqualification order is directly appealable.
[In reviewing the brief filed by Mr. Reeves and Mr. Thomas], the Nov. 13 opinion by Court of Appeals Judge Lisa Branch, joined by Chief Judge Herbert Phipps and Judge John Ellington…sided with Waterscape, ruling that Butler and his clients could not appeal the disqualification order at this point in the litigation.
The cases are Settendown Public Utility v. Waterscape Utility, No. A13A0830, and Butler v. Waterscape Utility, No. A13A0831.
- photos and summary courtesy of the Daily Report (Nov. 19, 2013).
Trinity Hundredmark recently appeared as a legal analyst on Cavuto on the Fox Business Network. Trinity discussed an administrative order issued by Illinois Gov. Pat Quinn “banning the box” on applications for state government jobs. Pursuant to the order, state government job applicants with criminal histories will no longer have to check a box disclosing that they have been convicted of, or pled guilty to, a crime. Trinity explained that by removing the box, every individual gets a fair opportunity to make a first impression and stand on their job qualifications, at least initially.
Patrick J. McDonough has appeared on Fox News as one of their Atlanta based legal analysts. Recently on Fox News, McDonough spoke on the issues surrounding revenge pornography. McDonough explained how currently there are civil remedies for victims, but that can be a costly endeavor and not available to most victims. McDonough did note the trend is for states to criminalize this behavior. First amendment advocates will surely challenge these statutes, but McDonough believes if the statutes are drafted narrowly they should withstand Supreme Court scrutiny. McDonough said the lesson is twofold: first, one should not take any uncompromising pictures of themselves and send them to current partners, and second, jaded ex-partners should think twice before posting these images.
Andersen, Tate & Carr, P.C. is proud to announce that Patrick J. McDonough has appeared on CNN’s Headline News and become one of their go-to legal analysts. He has been asked to provide legal insight into criminal cases that stretch across the United States. While on Now in America McDonough explained why the North Carolina Court of Appeals granted Brad Cooper’s motion for a new trial after a jury had found him guilty of murdering his wife. McDonough spoke on how the trial court had abused its discretion by not allowing the Defense to put up key expert witnesses during Cooper’s trial. During another segment of Now in America Mr. McDonough explained why the District Attorney in Bakersfield, California did not formally charge the popular elementary school principal with her husband’s recent murder. McDonough detailed the lack of evidence the police had ascertained at this point in the investigation.
To view a clip of Mr. McDonough’s commentary, please click below:
Now in America
The chair-elect of the American Bar Association Section of Real Property, Trust and Estate Law has appointed Amy Bray, a partner in our commercial real estate department, to serve as the Vice Chair of the Commercial Real Estate Transactions Group for the 2013-2014 bar year. Ms. Bray has also been appointed to serve as a member of the Section’s Communications committee for the 2013-2014 bar year.
Ms. Bray previously served as the vice chair and then, most recently, chair of the Easements, Covenants, and Restrictions committee.
These appointments help to carry out the substantive work of the Real Property, Trust and Estate Law Section.
ATC attorney Trinity Hundredmark was a guest contributor on HLN’s ”Raising America” on June 11, 2013. She commented on a variety of topics, including jury questions in the Jodi Arias trial, the Brett Seacat murder trial, and jury selection. Watch an excerpt here:
Congratulations to Matt Reeves for being chosen to be part of the 29th Class of Leadership Gwinnett!
Matt will soon join the number of attorneys at ATC that have graduated from the Leadership Gwinnett program over the years, with the skills to educate, equip, and engage in the community. Those attorneys include: Ethel Andersen, Tom Tate, Brad Carr, Kathleen Guy, Scott Duncan, Jim Joedecke, Pat McDonough, Don Swift, Brian Carmony and, most recently, Amy Bray.
With a strong history of creating a legacy of success in Gwinnett and metro Atlanta, the 29th class of Leadership Gwinnett is set to begin in August 2013 to drive positive change in the region. From the nearly 350 nominations received for the nine-month experience, Leadership Gwinnett alumni selected the final group of 42 based on work experience, accomplishments, community involvement, education and other information from their individual applications. The program year is comprised of two overnight retreats, seven learning days covering leadership in a world class community, infrastructure, economics, education, health & human services, justice and regional relations, as well as monthly study groups and other activities.
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.
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.
Here are some scenarios that we hear about frequently: “I know my employee is taking prescription pain medication (after his surgery/because of a rumor I’ve heard/because he told me he was). I’m concerned about his performance/attendance/ability to drive a company vehicle or operate machinery”. This scenario leads to these questions: “Can we test him for prescription drugs?” “Can we require him to stop taking prescription meds that interfere with his job or present a threat to the company or its employees?” “Can we terminate him for poor performance/attendance, even though we know that it is a result of his medication?”
This is a really sticky area of the law. There is an employer movement towards testing for certain prescription drugs that have workplace safety implications (painkiller narcotics being the primary example), most notably amongst employers with high rates of on-the-job injuries. EEOC v. Dura Automotive Systems, an important case on this topic, was settled in September 2012, with Dura Automotive agreeing to pay $750,000 as a penalty for its blanket testing and termination of auto workers taking certain prescription medicines. The outcome indicates, however, that prescription drug testing is permitted in limited circumstances. Across-the-board testing for prescription drugs is not permitted, but testing for certain prescription drugs is permitted in positions where those drugs may impact safety. Even for safety-sensitive positions, employers should not have blanket rules prohibiting employees from using certain prescription medications (even for safety reasons). Each individual’s circumstances and performance should be assessed in light of the Americans with Disabilities Act, and employers should avoid making assumptions about any prescription medication.
Talk to an employment lawyer before implementing a substance abuse policy or testing program which involves prescription drugs, and before taking any employment action involving a prescription drug issue. With careful handling, you can address legitimate safety and performance issues while avoiding the fate of Dura Automotive.
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Eadaoin Waller is a Georgia attorney, focusing her practice in corporate law.
Her firm, Andersen, Tate & Carr, P.C., works with all manner of clients in business and personal matters, providing “big firm” sophistication with suburban law firm attention and service.
Copyright © 2013 Eadaoin Waller & Andersen, Tate & Carr, P.C.