Archive for the ‘employment’ Tag

Are you ready for December 1?   Leave a comment

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.

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.

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.

Prescription Drugs in the Workplace – Employee Privacy, Safety and the ADA   2 comments

Eadaoin WallerHere 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.

Do you want to use this blog article?

You may, as long as you include this complete bio with it:

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.

Website: www.atclawfirm.com

Blog: www.andersentatecarr.wordpress.com

 Copyright © 2013 Eadaoin Waller & Andersen, Tate & Carr, P.C.

Congratulations to ATC’s 2013 Georgia SuperLawyers and Rising Stars!

superLawyers

Congratulations to our own Tom Andersen, Tom Tate, Jim Joedecke, Amy Bray, and Liz Clack-Freeman for making the 2013 SuperLawyers list for the State of Georgia.  Matt Reeves and Trinity Hundredmark made the SuperLawyers “Rising Stars” list for 2013 as well.

Tom Andersen made the list of Georgia real estate lawyers for SuperLawyers for the seventh time. Tom is the head of our commercial real estate and banking group. His practice focus is on commercial real estate, finance, and banking.

Tom Tate made the list of Georgia SuperLawyers in business litigation. Tom is the head of our litigation department and has a focus in business, eminent domain, intellectual property and title insurance-related disputes. This is Tom’s fifth time being named to this prestigious list of Georgia lawyers.

Jim Joedecke made the list for business litigation SuperLawyers for the first time this year.  His practice is focused in the areas of contract and business litigation, franchising litigation, condemnation and real estate litigation, bankruptcy, tax appeals and landlord/tenant disputes. Mr. Joedecke represents a variety of businesses and individuals in trial and appellate litigation around the country, as well as before local government boards and agencies, and in mediation and arbitration.

Amy H. Bray is making her first appearance on the Georgia real estate SuperLawyer list, after being named five times as a real estate “Rising Star”.  She is a partner in our commercial real estate and banking group and focuses on community association law. Her practice includes representing all parties that may be involved in a community association, from developers, lenders, associations, to home owners and even the mediation of community association related cases.

Liz Clack-Freeman is making her first appearance on the SuperLaywer list of litigators.   Ms. Clack-Freeman has a business and commercial litigation practice focused primarily in the areas of employment law, intellectual property and contract disputes in both federal court and state courts. Ms. Clack-Freeman’s employment practice includes not only litigation matters, but also includes preventative counseling and the drafting and reviewing of employment related documents including employee handbooks, employment agreements, severance agreements, restrictive covenant agreements, confidentiality agreements and other documents related to employment practice and procedure.

This year Matt Reeves and Trinity Hundredmark, both in our litigation department, made appearances on the SuperLawyer Rising Star list.

Matt Reeves has been named to the “Rising Stars” list for the first time.   His practice covers a wide range of matters within the areas of real estate litigation, commercial and banking litigation, and probate litigation, including representing private property owners and business owners in eminent domain matters.

Trinity Hundredmark has been named to the list for the second time.  She focuses her practice in criminal and family law matters. She counsels and advises clients on a variety of divorce and custody related issues. Ms. Hundredmark’s criminal practice includes both state and federal white-collar and general criminal defense. Ms. Hundredmark is also certified in DUI Detection and Standardized Field Sobriety Testing.

GASLRS13_Andersen pdf

Related Articles:

https://andersentatecarr.wordpress.com/2010/02/25/2010-superlawyer-accolades-for-atc/

https://andersentatecarr.wordpress.com/2011/02/24/2011-superlawyer-accolades-for-atc-attorneys/

https://andersentatecarr.wordpress.com/2012/02/18/2012-superlawyer-accolates-for-atc-attorneys/

Cost-Effective FLSA Compliance

Eadaoin Waller

We all know that under the Fair Labor Standards Act (FLSA), non-exempt workers should be paid for all work hours, including time spent on tasks which may be outside of their core employment obligations – such as training, meetings, education and travel between worksites.  A novel question on this topic cropped up in our employment practice recently, and we thought it worth sharing the answer we found.

A service industry client had been conducting in-house training for its non-exempt employees on a quarterly basis for years.  The training was related to the employees’ jobs – keeping their skills up-to-date and fresh.  However, these training sessions had always been unpaid.  Nobody had ever complained; indeed, the work-based training was viewed as a perk by most employees – an investment in their professional development.  However, it was clear that this would have to be corrected going forward, at a not-inconsiderable cost.  The question was how to minimize this new cost to the business.

There are several options for correcting a wage and hour issue like this one.  The first is to simply pay for the training hours going forward at each employee’s regular rate.  This option proved too expensive for our client.  The next option was to reduce each employee’s hourly rate, and compensate them for the training hours (paying them approximately the same amounts overall, on a quarterly basis, but with a reduced hourly rate of pay).  This would be a tough sell to existing employees, however, as it looks like a pay cut on paper.  It would also impact recruitment negatively.  The third option was to compensate all non-exempt employees for training hours at minimum wage.  Although unorthodox, this is permissible under the FLSA.  There is no requirement that all work be compensated at the same rate – less profitable tasks can be compensated at a lower rate, as long as overtime and minimum wage rules are observed and as long as the employee has notice of how each task will be compensated.

The client issued a notice to all non-exempt employees, stating that from that point forward,  all training hours would be compensated at minimum wage.  Although this did not correct the compliance issue entirely (in order to do that, the employer would have to issue two years’ back-pay [at the employees’ regular rate of pay] for training hours).   However, with that that solution being cost prohibitive, the prospective solution chosen by the client was a perfectly reasonable “next best thing”.

Keep in mind, though, that a good knowledge of the applicable regulations is necessary to navigate the facts in any situation, and just because this solution worked for this client, it may not work for you.  If you are facing a situation like this one we urge you to obtain legal counsel to ensure compliance.

Do you want to use this blog article?

You may, as long as you include this complete bio with it:

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.

Website: www.atclawfirm.com

Blog: www.andersentatecarr.wordpress.com

 Copyright © 2013 Eadaoin Waller & Andersen, Tate & Carr, P.C.

Employment Law 101 – For Georgia Businesses

Eadaoin WallerA client with a new software business approached us recently for some general employment advice. With a startup company, he didn’t have the benefit of a human resources professional, or even a personal assistant, to tell him what need to be filed or registered in the event of a new hire or an employee termination, or any of the myriad ways he needed to manage his employees in order to be in compliance with state and federal law.
As we started to describe basic Fair Labor Standards Act Compliance, the need for Workers’ Compensation coverage and the number of employees a company needs to have before worrying about harassment and discrimination policies, he interrupted. “Do you have a checklist with all of this stuff in one place? I’m a scientist, a list guy. I need to see it all written down.” We didn’t, and we still don’t have a comprehensive list of all the possible issues that will face every employer. However, in an attempt to give this client a “basics” guide to the things he needs to think about as a new employer, we prepared this. It’s a pretty good starting point for employment compliance for small (fewer than 15 employees) businesses.

1. Correct Classification.
a. Is a worker an independent contractor or an employee? (generally speaking, if you set the schedule, provide the tools/materials, provide training and oversight/control, and the person works solely or primarily for you, he/she is an employee)
b. Is the employee exempt or non-exempt from overtime/minimum wage requirements of the FLSA? (assume non-exempt unless the employee is paid in excess of $100k or has very autonomous/creative management or executive role – always seek legal advice where there is doubt)
i. For both exempt and non-exempt employees, understand the law on deductions from paychecks (deductions for lost property, uniforms etc can be problematic);
ii. For non-exempt employees, understand the overtime rules (which can be infinitely more complex than they look)
2. New Employer Checklist
a. Complete DOL form 1-A (to establish company as an employer for payment of unemployment insurance)
b. Obtain Workers Comp (for 3+ employees)
c. Have Employee Manual and Employee Covenant Agreements (confidentiality, non-solicitation and non-competition provisions) prepared
d. If you’ll use independent contractors, have a master form of Independent Contractor Agreement prepared (key provisions are work-for-hire and non-solicitation/non-competition; responsibility for payroll taxes)
3. New Hire Checklist.
a. Background check/reference check
b. I9
c. W-4 and G-4
d. Mandatory new hire reporting (http://newhire-reporting.com/GA-Newhire)
e. Signed Employee Covenant Agreement (or Independent Contractor Agreement)
f. Signed acceptance of Employee Manual
g. Completion of benefits paperwork (if any)
4. Termination
a. Have business-related reasons for termination documented (a written disciplinary history is ideal)
b. Provide employee with Separation Notice (including a truthful reason for termination)
c. If employee is troublesome or may have a claim against the company, consider paying a small severance in order to obtain release of claims (always consult with counsel)

Do you want to use this blog article?

You may, as long as you include this complete bio with it:

 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.

Website: www.atclawfirm.com

Blog: www.andersentatecarr.wordpress.com

 Copyright © 2013 Eadaoin Waller & Andersen, Tate & Carr, P.C.

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