Employment Discrimination Blog

Thursday, February 25, 2021

Understanding Gardening Leave

Employers across the United States have relied on non-compete agreements to protect their business interests for a long time. Each state takes a different stance on non-competes, with some favoring employers and others the employees. As such, the enforceability of a non-compete, and the extent to which it will be enforced, is dependent on the state.

In Georgia, the state legislature revisited the non-compete provisions years ago and forced Georgia’s shift from pro-employee to pro-employer. For employees, this was an unfortunate move that has caused undue hardship and heartache for many families. However, this move is consistent with many states attempting to lure in businesses from nearby states or across the country by changing the corporate, tax, and employment laws to favor employers over employees, and thereby improve their profits.

A semi-recent development in the non-compete sphere is the appearance of gardening leave in the United States. This is a concept originally adopted from the United Kingdom where employers would give employees several weeks or months of paid leave upon receipt of their resignation or termination to tend their garden. This is of course metaphorical – the term gardening leave came about as a filler to explain what these employees would do with their time, not their employer’s intention for the employee’s pursuit.

Employers using gardening leave as a non-compete agreement

The purpose of gardening leave is to protect the employer from legitimate concerns, such as a disinterested employee performing poorly or in more concerning matters, an employee taking intellectual property and trade secrets with them when they go. However, a more nefarious use of gardening leave is to act as a non-compete agreement. Because the employee is still employed and is being paid for that period, the employee cannot work for the business’ competitor.

Although gardening leave is traditionally a few weeks or months, employers have opted to push the envelope by making gardening leave a quasi-non-compete through extended periods of 1+ years. While a year of paid leave may sound nice to many, the terms of the compensation often differ from normal employment, with performance pay (bonuses) being non-existent. For those working in sales, where performance pay makes up a significant portion of their income, they may financially struggle to support their family without it.

Although there is little case law on the matter, many courts around the United States have upheld lengthy gardening leave agreements as valid due to the employee’s continued compensation. For many, this is a worrying development.

Georgia Employment Discrimination and Civil Rights Attorneys

At Pankey & Horlock, we understand the unique pressures that COVID-19 has placed on employees and families. Unfairly, those most affected are often mistreated by their employers and denied the rights they’re entitled to. Our attorneys still believe in the rights of employees, even though Georgia may not. If you believe you’ve been the victim of an employment rights violation or are subject to a non-compete or gardening leave agreement, please contact our office today for a free consultation.

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The attorneys of Pankey & Horlock, LLC serve the entire state of Georgia, including Atlanta, Alpharetta, Auburn, Decatur, Doraville, Douglasville, Duluth, Kennesaw, Lawrenceville, Marietta, Stone Mountain, Dekalb County, Fulton County, Gwinnett County, and Cobb County, GA.

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