Archive for the ‘employee’ Tag

ATC is Proud to Announce Eadaoin Waller Named Partner

Eadaoin WallerAndersen, 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.

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The Fair Labor Standards Act – a Formidable Opponent to Employers

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.

Employee Covenants: Protecting Business Property

Many businesses go to great lengths to protect their property against theft and unauthorized use or disclosure—they run background checks on employees, install keypads and other controlled-access technology at their facilities, and place firewalls and security programs on their computer systems, among other measures.  But what about company property that is not stored in a file drawer or on a server?  What about information stored in your employees’ heads about your customers, your products, your unique way of doing business?  How do you protect that valuable company property?

 Having agreements in place with your employees addressing how they can use the knowledge they gain in your service and relationships they create or manage on your behalf—both during and after their employment with you—should be a key component of your security scheme.  Depending on your employees’ responsibilities, it may be necessary and reasonable to require that they refrain from disclosing or using your confidential information, from soliciting customers or other employees with whom they have a significant relationship away from you for the benefit of a competitor, or even from performing similar services for a competitor for some period of time after their employment with you ends. 

 Our corporate and employment lawyers routinely counsel our business clients in this area and have significant experience in drafting and enforcing such restrictive covenants.  Due to recent changes in Georgia’s law in this area, employers have more flexibility than ever with respect to these agreements.  To explore whether such employee covenant agreements would be beneficial to your business, please contact Eadaoin Waller or Kathleen Hart in our Corporate Department.

Posted September 18, 2012 by Amy Bray in Business Law

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Negligent security claims may be dead in Georgia. What about negligent hiring claims?   Leave a comment

In a recent opinion, the Georgia Court of Appeals has decided that a jury may assign a “percentage of fault” to parties and non-parties even where the injured victim is not even claimed to be responsible for their own injury.  Cavalier Convenience, Inc. vs. Sarvis et al

This legal  precedent may be the death knell to negligent security claims.  Under previous Georgia law, a crime victim could sue the land owner (such as a shopping mall or hotel), asserting negligent security.  The jury could hold the proprietor responsible if  the victim proved that the proprietor was aware of prior violent criminal conduct but did nothing to either prevent it or warn the victim to protect themselves from it. 

Under the new law of Cavalier, that proprietor is entitled to ask the jury to allocate fault to the non-party pursuant to O.C. G. A. 51-12-33.  Thus, even if the proprietor is liable, many juries will find that the proprietor’s fault is relatively slight when compared to that of the actual assailant.  That percentage of fault is then applied to any dollar award in the verdict.  In a recent example in DeKalb County Georgia, the jury found that the proprietor knew of criminal conduct, did nothing to address it, and did nothing to warn the victim.  They found that the victim was entitled to recover $150,000, but since they also found that the proprietor was only 5% at fault, the proprietor was only legally liable to the victim in the amount of $7,500, hardly worth the effort. 

It remains to be seen how Cavalier will be applied to negligent hiring claims.  In negligent hiring claims, a crime victim can hold the employer of the assailant responsible for their injuries if the employment context gave the assailant the opportunity to perpetrate the crime.  These cases often involve maintenance men or janitors who have been given the master keys to an apartment complex or office building.  Under prior Georgia law, the employer may be liable if they failed to perform background checks on their employee and consequently failed to learn of criminal convictions, pending arrest warrants or prior workplace violence that foreshadowed the attack. 

Will courts allow juries to distinguish between the fault of the employer and the fault of their employee?  If given the chance, will juries let employers off the hook even though the crime could not have occurred in the absence of their negligent hiring of a convicted criminal.  Or, will negligent hiring claims face the same apparent fate as negligent security claims.

By:  Render C. Freeman

Partner, Andersen, Tate & Carr, PC

Duluth, Gwinnett County, Georgia

Some Final Thoughts on Employee Handbooks   Leave a comment

In writing an employee handbook which will help to give your company the greatest advantages that it is entitled to, extreme caution must be exercised to avoid creating contractual rights for employees via the employee manual. Don’t promise anything that you don’t specifically want to promise, if you are not required to do so by law (obviously, paid time off and benefits are perks that you specifically do want to offer your employees in order to be competitive – but promising a certain disciplinary procedure prior to termination is probably not). Employee handbooks have been construed as employment agreements by some courts, so it is important to make it clear that employment remains “at will”, and that policies may be changed at any time.

Once you commit your employment and workplace policies to paper, you must follow them. This will require some level of management training, the formality of which will depend on the size of your organization. Each employee who is responsible for managing subordinates should, at a minimum, read the handbook from cover to cover, and understand how to handle employee complaints. The importance of following these procedures should be emphasized to all employees.

Finally, make sure that every employee receives the handbook and acknowledges receipt in writing. Any time a policy is changed, all employee should acknowledge that change. If your company has employees who don’t have computer access, hard copies of the employee handbook should be accessible in convenient locations in the workplace. It should be clear that the company does, and intends everyone to, follow the policies and procedures set forth in the manual. A written policy only works if it is understood and enforced.

Take-aways:

• Don’t use your Employee Handbook against yourself – it should not create obligations unintentionally!

• Use “at will” language throughout

• Follow your policies, and train your employees

• Keep records of who has received the handbook

By: Eadaoin Waller, a senior associate in our Corporate Department

Using Your Handbook to Make the Most (or the least) of the Statutory Burdens On Your Business   3 comments

If the first purpose of an Employee Handbook is to reduce risk by taking advantage of the legal safeguards afforded to employers by law, the second is to make sure that one that the employer minimizes its legal obligations through well-drafted employment policies.

The FMLA

Companies with more than fifty employees are subject to the Family Medical Leave Act (FMLA), and it is essential to make sure that FMLA obligations are understood, and minimized to the extent permissible by law. A properly written policy allows for FMLA leave to run concurrently with paid leave, so that an employer is not required to provide vacation or sick leave, or PTO, in addition to the twelve or twenty-four weeks of unpaid leave which are required by the FMLA. Likewise, the FMLA allows employers to choose how the twelve-month FMLA entitlement period is calculated (a failure to make this election in a written policy means that the Employer will be stuck with a very burdensome default calculation method).

Some Other Illustrations

An Employee Handbook can be used to make the best out of the legal obligations imposed on your company in many other circumstances. Here is a random sampling of policies which we advise employers to include in their Handbooks. Without these written policies, you will experience at least one of two things, at some point: you may have to pay unemployment compensation to an employee who has been terminated for cause, or you will be legally required to accommodate employee demands that you could have avoided.

– Employee requests for religious accommodations may have to be met, but not all last-minute or unreasonable requests have to be honored – your policy should minimize the burden of Title VII of the Civil Rights Act on your business;

– Have an exacting absenteeism policy, while complying with the FMLA, the Americans with Disability Act, the FLSA or any other law (there’s nothing worse than being taken advantage of by an employee who won’t show up to work);

– Make it clear that certain behaviors may result in termination (being clear that terminations will always comply with the law) – this will minimize your liability for payment of unemployment compensation;

– make it clear to employees that disparagement of the company, or interference with its good reputation, via a social networking site, is not acceptable;

– include a policy which requires employees to consent to any (legal) deductions from their paychecks which you may need to make;

– include a substance abuse and testing policy which meets the standards required of Georgia’s Certified Drug-Free Workplace program, which allows you a discount on your workers’ compensation premiums;

– make it clear to all employees that they are responsible for recording their work time, and that they are prohibited from working unrecorded and/or unauthorized overtime.

– make sure that your written policies describe an employee’s entitlement to payment of sales commission following termination. This is a contentious and legally gray area, and many arguments can be avoided with a policy which has been written or reviewed by a lawyer.

Take-Away: An employee handbook requires a relatively small investment of time and money at the outset, but it is almost guaranteed to pay for itself in saved productivity, legal defense expenses, and unemployment benefits.

Next and final installment of this article: Some final thoughts on Employee Handbooks

By: Eadaoin Waller, a senior associate in our Corporate Department

Why Your Business Needs an Employee Handbook, and What Should be in it   2 comments

There are a lot of good reasons given to small businesses for adopting an Employee Handbook. Unfortunately, most of the reasons given fall into the “non-urgent” or “unnecessary expense” category. For instance, an Employee Handbook will inform your employees of their obligations so that you and your supervisors don’t have to make policy decisions on the fly (a phonecall to a supervisor is necessary in the event of an unplanned absence – a text message sent from an unknown destination will not do; track suits and flip-flops will not cut it on Casual Fridays; customer phonecalls must be returned within two hours, and so on). A Handbook will apprise employees of the extent of their rights in the workplace (family medical leave may be unpaid; your employment may be terminated at will and for no reason; there is no right to be paid for accrued vacation upon termination of employment). But, you reason, these are issues that can be dealt with as we go, as the need arises. Why the need to write everything down in painstaking detail?

Leaving aside all of the other practical reasons, there are two distinct legal reasons (and countless practical ones) which make an Employee Handbook a necessity for all businesses (apart, perhaps, from those with under five employees). This article will deal with the first of those, and we will post two more articles, in the coming weeks, which discuss the others, and offer some thoughts on implementing and enforcing an Employee Handbook.

Using the Affirmative Defenses that the Law Gave You

The first and greatest advantage of having a well-written employee handbook (at least, from a lawyer’s perspective) is quantifiable risk elimination. Certain affirmative defenses against employment claims exist for employers who have good written employment policies in place. All employers should take advantage of these defenses by making a small investment in an Employee Handbook, prepared by a labor and employment attorney.

An Example – the Fair Labor Standards Act

One prevalent and damaging type of employment liability is that of wage and hour claims arising from the Fair Labor Standards Act (FLSA), the law governing underpayment or miscalculation of overtime, minimum wage, or unlawful deductions from pay. The FLSA contains a “safe harbor” provision, however, which protects employers against liability for certain incidents of improper deductions so long as the employer: (1) has a clearly communicated policy prohibiting improper deductions, which includes a complaint mechanism; (2) reimburses employees for any improper deductions; and (3) makes a good faith commitment to comply in the future. The Federal Department of Labor recommends that this “improper deductions” policy be included in a written handbook, given to each employee upon hiring. With violations of the FLSA creating indescribable burdens, both in terms of time spent on audits, harsh penalties and liability for up to three years of back-pay, the advice of the DOL in this regard should be heeded.

And Another – Sexual Harassment

Similarly, the law on sexual harassment in the workplace has created a safety valve for employers, who are exposed to vicarious liability for the harassment of one employee by another, under Title VII of the Civil Rights Act. If the employer has a written harassment policy in place, giving victims of harassment a procedure for filing a complaint and a choice of managers to whom complaints may be addressed, the employer will have an affirmative defense against claims of sexual harassment if the employee fails to follow the complaint procedure. While not an absolute safeguard, this is a substantial and necessary defense against such claims.

Other Ways in Which Your Handbook Can Come to Your Defense

The presence of certain employment policies in your handbook can make it clear that certain activities are unauthorized in the course of work, and as such, the employer is not responsible or vicariously liable for actions of an employee which are prohibited by the handbook. For example, if an employer were to be sued for copyright violations as a result of internet downloads, it would be helpful to be able to show that employees were under strict instructions not to use the internet for personal reasons. If an employee causes a car accident while driving a company vehicle, because she was talking on the phone, the employer would certainly want to show that the employee was on strict orders to pull in before taking a call. If an employee assaults another employee at work, the employer will need to demonstrate that it had policies and procedures in place for dealing with interpersonal problems and preventing violence at work. And on, and on.

Take-aways:

• There are affirmative defenses against very damaging claims which your employees may make against you.

• Your Handbook can be used to anticipate and deflect liabilities created by your employees – auto accidents, workplace violence, intellectual property infringement, safety violations, etc.

• Take advantage of simple risk-reduction measures by investing in a well-drafted employee manual.

• Use a Labor and Employment Attorney in the State where your business is located. Employment law varies wildly from State to State. Using a form from the internet, or from a national payroll provider, is probably a false economy.

Next installment of this article: Using Your Handbook to Make the Most of the Statutory Burdens On Your Business

By: Eadaoin Waller, a senior associate in our Corporate Department

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