Employment Law

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.

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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.

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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.

Is firing someone due to his or her intention to enter into a same-sex marriage the same as discriminating against him or her for sexual orientation?

An openly gay band teacher at a Catholic school in Georgia was fired from his position in 2014 after announcing that he would enter into a same-sex marriage.  The teacher is claiming that he was discriminated against due to his sexual orientation based on the recent landmark United States Supreme Court decision making same-sex marriage legal in all 50 states.  He has brought a civil action against the school in Federal court.

Flint Dollar was hired as a band teacher at Mount de Sales Academy in Macon, Georgia in April of 2011.  Dollar claims that during the hiring process he revealed to school officials that he was gay and living with his partner.  In May of 2014, Dollar announced to officials that he planned to marry his long-time partner later that year.  Dollar also made this announcement via Facebook.  Several weeks later, he was fired, even though he had just signed a contract for the 2014-2015 school year.

The school based the firing of Dollar on the fact that he intended to enter into a same-sex marriage, which violated the teachings of the Catholic Church.  Dollar claims that he was never aware that he could be fired for a behavior that violated church teaching and that other employees, such as those that are heterosexual and live with their partners prior to marriage, and those that are divorced, had not been fired, even though both activities clearly violate the teachings of the church.

Dollar alleges in his lawsuit that he was discriminated against due to his sexual orientation.  The school maintains that he was fired not due to his sexual orientation, but due to his intention to enter into a same-sex marriage in clear violation of church teaching.  The school cites to its goal of providing an education that is based on church doctrine and the local Diocese and other organizations, such as the Cardinal Newman Society and the Catholic University of America, have come out in support of the schools decision.

If you believe that you have been discriminated against due to your sexual orientation or any other protected characteristic, please contact Pankey & Horlock today.  Our team of Georgia employment discrimination lawyers can be reached at (770)670-6250.

I am subject to random drug screening at my job. How will Georgia’s new medicinal marijuana law impact my employment? 

In April, 2015, the state of Georgia joined the leagues of other jurisdictions allowing the use of medicinal marijuana by citizens with a documented medical condition. While this will come as a welcome opportunity for the millions suffering from cancer-related pain, glaucoma, and other afflictions, the law has failed to address the plight of those lawful users who are “caught” with a positive drug test by their employer. However, with the help of a dedicated and progressive Atlanta employment law attorney, there may be ways to combat this delicate intersection of medical autonomy and employer rights. 

Under the new law, known as Haleigh’s Hope Act, applicants with a valid underlying medical condition will be able to obtain a permit from their physician for the use of low-potency medicinal marijuana – generally available in the form of cannabis oil. More specifically, the Act allows for the use of marijuana by patients suffering from any of the following conditions: 

• Cancer being treated by chemotherapy, or that has reached end-stage
• Amyotrophic lateral sclerosis
• Epilepsy
• Trauma-related head injuries
• Multiple sclerosis, severe or end-stage
• Parkinson’s disease, severe or end-stage
• Chrohn’s disease
• Mitochondrial disease
• Sickle Cell disease, severe or end-stage

However, despite the seemingly high thresholds imposed by the General Assembly for obtaining a lawful medicinal marijuana card, the Act fails to mention or address the duties of employers in honoring the use of medicinal marijuana, especially if doing so does not impact job performance in any way. This omission creates a distinction between the Georgia law and others, as most other states have artfully drafted their medical marijuana statutes to protect employees from workplace discrimination. 

If you are facing a difficult situation and would like to discuss your options, you may be able to circumvent workplace discrimination under Georgia’s disability protections. More specifically, employers are prohibited from discriminating against workers or engaging in adverse treatment (e.g., termination or demotion) based solely on that employee’s status as a disabled individual. Chances are, an employee meeting the definition of “medical condition” listed above may also meet the ADA definition of “disability,” which is any “physical or mental impairment that substantially limits one or more major life activity.”

If you have questions about Georgia’s new medicinal marijuana laws, or are facing backlash from your employer over the issue, please contact Pankey & Horlock today.  Our team of reputed Georgia employment lawyers can be reached at (770)670-6250.

Can my employer retaliate against me for being a whistleblower?

The United States Securities and Exchange Commission (SEC) is investigating whether companies are trying to silence and retaliate against whistleblowers. A whistleblower is an employee who complains of illegal or unethical activities either internally or to a government agency. Whistleblowers play an important role in keeping employers honest, and there are state and federal laws protecting their rights.

Authorized by the 2010 Dodd-Frank Wall Street reform law, the SEC started a whistleblower program which rewards people reporting possible securities law violations if their tip leads to more than $1 million in sanctions. Awards can range between 10 and 30 percent of money collected by the agency. The SEC Office of the Whistleblower received more than 3,500 tips last year. This is the highest number since the program started.

Concerned about corporate backlash against whistleblowers, the SEC issued letters to several companies seeking years of documents such as nondisclosure agreements and employment contracts. It is unknown how many letters were sent or to whom. The documents being sought by the SEC might reveal employers discouraging whistleblowers. Sometimes these kinds of documents contain clauses that require employees to forfeit any awards, even though such clauses are prohibited by federal regulations.

U.S. Attorney General Eric Holder called on Congress for action last year, stating that Wall Street companies often shielded their leaders from responsibility for misconduct. Holder suggested increasing rewards for whistleblowers and requested funding for more FBI agents with forensic accounting expertise.

If you live in Georgia and believe your employer is involved in illegal activities but fear speaking up, contact the attorneys at Pankey & Horlock, LLC. We have decades of experience representing clients and aggressively protecting their rights. Call (770)670-6250 today to schedule a consultation and learn more about state and federal legal protections for whistleblowers.

Can I be fired for expressing my religious beliefs at work?

In a complaint filed with the Equal Employment Opportunity Commission (EEOC), former Atlanta fire chief Kelvin Cochran claims that the city discriminated against him because of his religion. The EEOC complaint could be an indication that Cochran plans to file a federal lawsuit against the city.

In November 2014, Cochran was suspended without pay in connection with a bible study book he wrote; the book contained controversial statements about homosexuality. According to Cochran's EEOC complaint, he was informed by city officials that his publication of the book violated unspecified city policies and that an investigation would be conducted.

When Cochran returned from his suspension, he was allegedly told that every city employee interviewed in the investigation reported that Cochran's faith influenced his leadership style. However, no employee reported specific examples of discrimination or being treated unfairly because of Cochran's religious beliefs.

Mayor Kasim Reed terminated Cochran earlier this month, stating that Cochran's "judgment and management skills were the subject of the inquiry" and that "Cochran's personal religious beliefs are not the issue." One issue raised is that Cochran distributed his book at work. Mayor Reed's decision to fire Cochran was reportedly supported by the Atlanta Professional Firefighters union.

Cochran asserts that he obtained authorization from the City's Ethics Department to publish the book, which expresses his "deeply held religious convictions on many subjects." He is claiming that the city violated his federal civil rights by discriminating against him because of his Christian religion. A rally in support of Cochran was held at the Georgia Capitol earlier this month, apparently organized by evangelical groups and leaders.

If you believe that you have been discriminated against at work, the experienced employment discrimination and civil rights attorneys at Pankey & Horlock, LLC, can advise you. We serve the entire state of Georgia. Contact us today at (770)670-6250 for a free case evaluation.

Are Georgia School Districts Immune from Federal Lawsuits?

A Georgia school district cannot claim immunity from federal lawsuits under the Eleventh Amendment to the U.S. Constitution, according to a federal circuit court in Atlanta.  The court's decision finally addresses an issue that had gone unresolved for decades.

Zaneta Lightfoot taught English and drama at Woodland High School in Georgia's Henry County School District. Because she suffered from sickle cell anemia and occasionally experienced extreme pain, she applied for, and received, leave under the Family and Medical Leave Act.  After a year of taking days off sporadically when she could not work, she received a disciplinary letter and a poor performance evaluation from the school.  She sued the school district for violating the FMLA and other laws and was terminated the following year.

Initially, a federal district court dismissed her FMLA claim on the grounds that the school district was entitled to immunity under the Eleventh Amendment.  The Eleventh Amendment generally protects states from federal lawsuits if the states have not consented to being sued under the circumstances involved.  This immunity does not shield counties or cities, but it can protect state officials and entities acting as an "arm of the state."  The 11th Circuit Court of Appeals had never ruled on whether this immunity protected Georgia schools from federal lawsuits.

Lightfoot appealed the dismissal of her case, and a panel of judges reversed the lower court's ruling, allowing the action to proceed.  The reversal hinged on whether the school district was an "arm of the state."  The Circuit Court panel said that it was, based on how state law defined the school district, the amount of state control over it, how it was funded, and who would be responsible for satisfying court judgments against it.  The court rejected the school district's argument that, because school districts enjoy sovereign immunity, they are also entitled to immunity under the Eleventh Amendment. 

The decision clears the way for a variety of federal employment law claims to be brought against Georgia school districts.

Employment rights cases are often fraught with obstacles, from constitutional questions to technical issues.  If you have been mistreated by an employer, experienced counsel can help you overcome these challenges and receive compensation for your suffering.  The skilled attorneys of Pankey & Horlock have handled cases in the Atlanta area involving discrimination, wrongful termination, and other workplace abuses for decades.  Contact our knowledgeable litigation team to schedule your confidential free case evaluation.  Call (770)670-6250 today.