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.
Andersen, Tate & Carr, P.C. is proud to announce that Eadaoin Waller has been elected by the shareholders as a partner in the firm. Brad Carr, head of the firm’s corporate department, said: “Through her career at ATC, Eadaoin has developed expertise in guiding our corporate clients through the spectrum of corporate and non-profit issues, with a strong focus on common sense solutions, efficiency and service. We are excited to welcome her to the ranks of partnership.”
Eadaoin Waller is part of the corporate group of Andersen, Tate & Carr. Her practice focuses on employment law (employee handbooks and contracts; severance agreements; employer policies and procedures; non-compete/non-solicit and confidentiality agreements; intellectual property protection issues), mergers and acquisitions (stock and asset transactions), general corporate law (choice of entity and entity formation; shareholder and partnership agreements; general corporate advice) and non-profit law (including the assistance of charitable entitles in obtaining 501(c)(3) tax exempt status).
Eadaoin serves on the Boards of the Human Resources Management Group at the Gwinnett Co. Chamber of Commerce, the Rotary Club of Oconee County and the Oconee County Arts Foundation (OCAF). Born in Ireland, she is a passionate member of Atlanta’s Irish community and of Atlanta’s Irish Chamber of Commerce.
Our very own Render Freeman has been elected to the faculty of the American Association for Justice, an association he has been a member of since 2006. Congratulations Render!
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).
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.