Employment Law

Is my Company's Non-Compete Agreement Enforceable?

Non-compete agreements have become a source of much controversy in recent years.  Some view non-compete agreements as an infringement to a worker’s ability to find jobs in the free market.  For the employer, however, non-competition agreements can prove essential for protecting the employer’s confidential information.  In many states, courts have limited the Read more . . .

What changes could we see to employment laws in the coming years?

Employment law is an evolving, ever changing field.  Employers across the country must stay abreast of the most recent legal changes in order to ensure compliance with state and federal laws.  Our Atlanta management based employment law attorney at Pankey & Horlock, LLC discusses the top employment law issues you need to watch below.
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As an employee, you may have heard of the notion of “reasonable accommodation” in the workplace. What does this mean exaction? The phrase stems from a body of law which governs the ways in which an employer is required to treat an employee (or potential employee) who has a recognized disability that could impact his or her job performance. Under anti-discrimination laws both in the State of Georgia and federal law, an employer is prohibited from discriminating against an employee or candidate due to the disability. Further, the employer must make accommodations for that employee. However, the employee’s rights are not limitless, and an employer is only required to make accommodations that would not be unreasonably burdensome or create a safety hazard for others.

Does my small business need to have an employee handbook?

Many small business owners think that employee handbooks are only useful for large organizations, but this is not the case. In fact, it is crucial for any business to establish formal rules concerning the employer-employee relationship and the rights and responsibilities of the parties. Ultimately, a formal handbook can protect a business owner in the event of an employee dispute.

What policies should be included in an employee handbook?

Compensation

The first topic to address is employee compensation and whether employees are paid an annual salary, an hourly wage, or commissions. Employees should also be notified when they will be paid, weekly or bi-weekly, although it is customary for sales people to be paid on a monthly basis.

Unlike race and religion, gender identity has yet to be cloaked with the highest level of equal protection by the U.S. Supreme Court. Nonetheless, many states and local municipalities have begun the process of implementing regulations and statutes to address the rights of those in the transgender community. While some jurisdictions have put into place exclusive policies concerning bathroom usage, the general upswing is toward offering transgender individuals the same level of protection from discrimination as women, racial minorities and those identifying as a practitioner of a particular religion.

How can our company management avoid discrimination or harassment lawsuits?

With the body of anti-discrimination and anti-harassment laws in place, it is not only prudent, but essential, for companies to take proactive steps to protect themselves from lawsuits that will be costly, both in monetary terms and in terms of reputation. Here are some recommendations about how to shield your company against an onslaught of complaints and possible legal actions. It is important that you find a knowledgeable and experienced attorney who handles management-based employment issues to consult with should such issues arise.
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What are the new Labor Department rules for overtime pay?

In May, the Labor Department announced new rules regarding overtime compensation that will go into effect on December 1, 2016. The federal agency has long-been considering the issue, so the changes to white collar exemptions under the Fair Labor Standards Act came as no surprise.

New Overtime Rule at a Glance

The new rule changes the annual salary threshold for administrative, executive and professional employee from $23,336 ($455/week) to $47,476 ($913/week). The new exemption amount will also be increased every three years starting January 1, 2020, based on a percentage of weekly earnings for full-time salaried employees in certain low-income regions. Highly compensated workers will also be affected by the new rule as their exemption threshold will be increased to $134,004, and workers making this amount will not be eligible for overtime pay.

What are the common wage violations by employers? 

In Georgia, many individuals work hard to make a living and they are entitled to fair pay. Because the state has not enacted wage and hour laws, however, employers are required to pay the federal minimum wage and comply with other provisions of the federal Fair Labor Standards Act.

What is the Fair Labor Standards Act?

The Fair Labor Standards Act (FLSA) is a federal law requiring employees to be paid a minimum wage of $7.25 per hour and overtime pay for hours workers over 40 hours per week at a rate of time and a half.

Certain employees, however, such as executive, administrative and professionals, are exempt from the overtime requirement.

Do cinema and TV companies continue to discriminate against African-Americans, women, and the LGBT population?

It is strange to find that, in the so-called "liberal" entertainment industry, discrimination against people because of color, gender, and sexual identity is still rampant. Though it can't be denied that we've come a long way from the days of "black faced" white performers and the frequent portrayals of women and LGBT individuals as caricatures, a new study has exposed enormous discrepancies in employment practices in major media companies.

It's Not Only Oscar Who Discriminates

The concern about gender, race, and ethnicity discrimination in the entertainment industry has been recently brought to the fore by the absence of African-American nominees for the Academy Awards -- for the second straight year. The recent study is even more inflammatory, demonstrating as it does that much of the discrimination takes place behind the scenes. Not only are the actors in movies and television shows misrepresenting the diversity of the population of the U.S., but the entertainment industry as a whole is discriminating against women, minorities and LGBT people in hiring and promotion.

The new study, released Monday by the Media, Diversity and Social Change Initiative at the University of Southern California's Annenberg School for Communication and Journalism provides a broad evaluation of the film and television industries. This evaluation includes an "inclusivity index" of 10 major media companies, including Disney and Netflix, rates every movie studio and most TV studios as failures.

The Actual Statistics

The study, entitled the Comprehensive Annenberg Report on Diversity, examined the 109 films released by major studios (including art film divisions) in 2014, 305 scripted, first-run TV and digital series across 31 networks and streaming services that aired from September 2014 to August 2015.

The study analyzed 11,000 speaking characters for gender racial and ethnic representation and LGBT status. Perhaps even more telling, the study also examined 10,000 writers, directors and TV show creators and the gender of more than 1500 executives. On every level, the industry failed to reflect the diversity of the culture it portrays. From CEOs to bit-parts, the industry is, the study concluded, "still largely whitewashed."

This study scored each film studio according to its percentage of female, minority and LGBT characters, and of female writers and directors. Not one of the six major studies rated better than 20 percent! Time Warner was rated worst, coming in at zero percent. The report concludes that the film industry "still functions as a straight, white, boy's club." Some of these same companies did score higher in terms of television and digital offerings, with Disney and Amazon scoring 65 percent.

While the actor ratios representing diversity were poor, the exclusivity behind the scenes was even more apparent. Film directors were 87 percent white and TV directors were 90.4 percent white. Women may, in some ways, "have come a long way," but just 15.2 percent of directors, 28.9 percent of writers and 22.6 percent of series creators were female. The film gender gap is greatest: Only 3.4 percent of the films studied were directed by women, and only two directors out of the 109 were black women.

Clearly, the old white boys club is still alive and kicking. Hopefully, the publication of this study and the commotion surrounding the Oscars will help to move the entertainment industry in the right direction. Employment discrimination is not acceptable anywhere, least of all in an industry that has prided itself on being diverse and outspoken about civil rights.

If you experience employment discrimination in terms of hiring, compensation, promotion, or termination, or are suffering harassment at the workplace, you should contact a knowledgeable attorney who specializes in the field.

How do anti-retaliation laws apply in the nonprofit sector?

It ought to go without saying that an employer cannot discriminate against his or her employee for merely following the law. However, anti-retaliation laws have been challenged yet again  in Georgia – and this time, it is the nonprofit, tax-exempt sector seeking answers on this pivotal issue.

In a recent lawsuit filed by the Equal Employment Opportunity Commission (EEOC), the petitioner is seeking damages and restitution following an alleged retaliatory decision by Atlanta’s King’s Way Baptist Church, Inc. According to the complaint, the petitioner was fired from her position as a kindergarten teacher within the church’s Christian school after reporting ongoing sexual harassment at the hands of the church’s lead pastor, who also serves as the chief executive officer of the nonprofit corporation.

Allegedly, the pastor engaged in the ongoing practice of inappropriately touching the teacher, followed by veiled threats of adverse treatment if the interactions were reported. When the teacher reported the incidents to the church’s governing board, the board opted to terminate her position rather than investigate the matter further.

In a statement by the EEOC’s Atlanta office, “[w]hen an employer fires an employee for complaining about sexual harassment, it is only compounding its own culpability and setting itself wide open for charges of retaliation….EEOC is stepping in to defend the rights of this discrimination victim not to be victimized even further. No one should be punished for telling the truth to power if that truth is sexual harassment.”

Pursuant to the lawsuit, the EEOC (on behalf of the teacher) is seeking back pay, punitive damages, and an injunction barring the school from engaging in further retaliatory acts against current or future employees. The lawsuit was filed after attempts to negotiate and settle the matter proved futile.

If you are experiencing workplace discrimination or retaliation it is in your best interests to contact a reputable attorney who specializes in such matters

Why does Tom Brady, the football player, have more employment rights than the average American?

The ongoing "deflategate" investigation  has resulted in an as yet unresolved four-game suspension of Tom Brady by the National Football League Commissioner, Roger Goodell.  Many people question why he has the right to challenge his employer's decision when most of us, under parallel circumstances,  do not. The reason is that the vast majority of workers in the United States are not union members, whereas as Tom Brady  belongs to a powerful union.

The gap between the employment rights of union and nonunion workers in this country is a wide one. Where employers of union members must have a good reason ("just cause") to punish or fire their workers, employers of nonunion workers are permitted by law to fire "at-will," meaning on a whim, for no reason at all.

Nonetheless, there are major exceptions to the concept of "at will" penalties or termination . Primary among these is discrimination, which is strictly forbidden in a number of areas. Employees cannot be penalized or fired because of:

• Race
• Nationality or ethnicity
• Religion
• Age
• Gender
• Disability status

It should be noted, however, that, although gay marriage has recently been legalized in this county, in more than half the states employers are free to fire employees for sexual orientation. Laws supporting such discrimination, however, are  gradually changing as they are being vigorously challenged.

Other limitations on at-will dismissals include the following: employers may not fire workers for union organizing, whistleblowing, jury duty or filing for workers' compensation.

In spite of these restrictions, strange as it seems, it is perfectly legal for an employer to fire a worker for being insubordinate, obsequious, aloof or even overly friendly,  for wearing particular clothing or for sporting a particular hairstyle.

Is "at will" firing policy accepted in other parts of the world?

No, among the industrialized nations, the United States is the only one to have at-will employment laws. In most of the developed world, businesses must have valid reasons for firing an employee. The one state in this country that has dropped the at-will standard is Montana, bringing Montana more in line with typical international policies.

In spite of the relative rigidity of employment laws for nonunion workers in this country, knowledgeable and experienced attorneys can help you  challenge unfair disciplinary actions and firings at the workplace.  The dedicated attorneys at Pankey  & Horlock have a high rate of success in fighting for the  their clients in cases involving discrimination, withholding of overtime pay and other employment violations. If you are facing mistreatment in the workplace anywhere in the state of Georgia,  please get in touch us at 770-670-6250.