Maury Bowen Joins Savannah Office as Partner
Our Savannah office continues to grow with the addition of attorney Maury Bowen as a partner. Maury brings 20 years of diverse experience to the firm, most recently as a partner at another law firm and before that as Assistant General Counsel for a sizable corporation.
In her labor and employment practice, Maury advises and defends corporate clients On a wide variety of issues, including lawsuits, arbitrations, administrative charges, employment decisions of all types, collective bargaining issues, and multi-employer benefit plan management.
Maury also has a thriving corporate law practice, in which she advises on entity formation, asset sales and acquisitions, workforce restructuring, and various other matters.
Ms. Bowen is a 1994 graduate of the University of Georgia School of Law, with an undergraduate degree from the University of the South at Sewanee. She is an active member of the Savannah community and has served on boards for a number of charitable and educational organizations.
We are extremely excited to have such a strong presence in Savannah with Maury and Kristen Goodman, both of whom are long-time residents with outstanding professional reputations and relationships. Including our main office in Atlanta, the firm now has 12 lawyers focused on employment law and related litigation.
Read MoreUntimely Discrimination Claims Could Be Revived
A recent decision by the Eleventh Circuit Court of Appeals (covering Georgia, Florida, and Alabama) may have opened the door for countless otherwise-expired claims of age discrimination with no evidence of intentional basis.
In Villareal v. R.J. Reynolds Tobacco Co., the Court ruled that an unsuccessful job applicant could pursue a claim of age discrimination under the federal Age Discrimination in Employment Act based on a “disparate impact” theory. Under this approach, the claimant does not have to prove (or even allege) intentional discrimination, but instead that a neutral policy or practice resulted in adverse actions (e.g., non-hire) that are statistically disproportionate against older individuals.
Perhaps the most disturbing thing about the decision was the Court’s ruling that the running of the 180-day statute of limitations did not necessarily preclude the filing of a claim. The Court held the statute could be “equitably tolled” as long as the claimant did not know and could not reasonably have known about any discriminatory practices or statistical disparities.
The Court’s rulings on both the “disparate impact” and the “equitable tolling” claims could have substantial repercussions for employers. This case highlights the importance of ensuring that employment-related policies do not have a discriminatory impact. The best way to guard against such a policy is to have a qualified employment attorney conduct a privileged employment practices audit. For more, please do not hesitate to call any of our attorneys.
Read MoreDOL Continues Expansion of “Joint Employer” Coverage
The US Labor Department’s Wage and Hour Division (WHD) recently issued an Administrative Interpretation that greatly expands the possibility that two or more businesses are “joint employers” of one employee. Joint employment status means two or more employers may be held jointly and severally responsible for fulfilling minimum wage, overtime, and other obligations under the Fair Labor Standards Act.
The WHD’s guidance discusses two types of relationships: (i) “horizontal,” in which the employee is potentially employed by two related companies, and (ii) “vertical,” in which the employee is directly employed by a staffing company or contractor but is dependent upon (and thus employed by) a second business. If joint employment exists under either analysis, both employers could be liable for overtime and other wage and hour violations.
When viewed alongside last summer’s DOL guidance on classification of independent contractor/employees, the imminent increase on salary level required for white collar exemptions, and the National Labor Relations Board’s recent decisions on joint employment, it is clear that today’s labor and business models face a rapidly changing legal landscape.
While these Administrative Interpretations are not binding law, they are persuasive to courts and are used by DOL agents in compliance investigations. The WHD has made clear that it intends to influence how companies do business. This opinion specifically highlights a few industries, but all businesses should be mindful of these issues when considering alternative staffing models and labor related contracts. Having a qualified employment law attorney review the arrangement can go a long way to addressing joint employer risks.
For more information, contact a Hall, Arbery, Gilligan, Roberts & Shanlever attorney in Atlanta or Savannah.
Read MoreNLRB Widens the Goalposts for Labor Union Organizers
A recent decision by the National Labor Relations Board could have a major impact on tens of thousands of employees who never thought that they would have to worry about labor unions. In Browning Ferris Industries of California, Inc. et al., NLRB Case No. 32-RC-109684 (August 27, 2015), a majority of the five member Board held that a company was required to recognize and bargain with a union that was elected not by its own employees but instead by the employees of a services contractor. In so deciding (over vehement dissent by two members), the Board overturned longstanding precedent and applied a new standard for determining “joint employer” status.
For decades, joint employer status and obligations applied only to entities that exercised “direct and immediate” control over workers, which generally excluded employees of outside contractors or franchisees. Under the Board’s new interpretation, an entity could be deemed a joint employer of a contractor’s employees — and be required to recognize and bargain with a union — if it has only indirect control over working conditions or has the right to control such conditions, even if it does not actually exercise that right.
By expanding joint employer status to include entities who merely have the right to control some aspects of the workplace indirectly, it is conceivable that collective bargaining obligations could apply to entities that have no actual employees at a particular location, such as general contractors, franchisors, or even property owners who engage outside contractors for cleaning or landscaping services. The Board’s new interpretation potentially could even restrict such an entity’s rights to terminate a service contract if such a termination could be deemed to discriminate against workers for whom the entity is deemed to be a joint employer.
To discuss how to prepare for the possibility that your business could be targeted for union organizing activity, please contact one of our attorneys.
Read MoreHAGRS LLP Opens Savannah Office with New Partner Kristen Wigh Goodman
We are extremely pleased to welcome Savannah attorney Kristen Goodman as a partner in the firm. Ms. Goodman joins us from Goodman Law Firm, which she founded in 2002. She was the lead appellate Assistant U.S. Attorney for the Department of Justice in the Southern District of Georgia, before founding her own firm. Kristen will continue to practice in Savannah and Atlanta, handling a variety of legal matters, including litigation and advice on employment-related issues. Her practice also focuses on business law, unfair trade practices, health care law, Constitutional law, and appellate matters. She has extensive experience representing clients in the logistics industry and in the medical field.
Kristen is an Atlanta native who graduated with high honors from Emory University in 1989 and the University of Georgia School of Law (magna cum laude) in 1993. She is licensed in both Texas and Georgia. After clerking for the Honorable J.L. Edmondson on the U.S. Court of Appeals for the Eleventh Circuit, Kristen worked as an associate in the employment and labor group for Baker Botts, LLP in Houston Texas, and later as a litigation associate with Hunter Maclean in Savannah.
Read MoreWhat is Your Employment Risk Profile?
Are you prepared for a potential lawsuit or government investigation involving your employment practices? Most employers know they have significant risk in this area, but do not know how to limit their legal exposure. To properly assess and improve its risk profile, and potentially avoid a legal dispute altogether, an employer should work with legal counsel to focus on the following key areas:
Policies: Assess and revise where necessary the Employee Handbook and other employment-related policies to ensure optimal protection and to avoid facial violations and other evidence of non-compliance.
Placement: Examine practices for recruiting, selecting, onboarding, and promoting employees to avoid potential claims of discrimination and ensure compliance with government regulations (EEOC, OFCCP, NLRB, ICE, and other agencies).
Pay: Ensure that compensation practices are sound and compliant with FLSA/DOL requirements (including classification of workers as exempt employees or independent contractors) and anti-discrimination laws.
Performance: Focus on effective methods for fair and consistent evaluation of performance and correction of disruptive workplace behavior, including best practices for investigation and documentation.
Accommodation: Educate and prepare managers to handle requests for job modifications or leaves of absence due to disabilities or serious health conditions under the ADA or FMLA.
Addressing Concerns: Establish and maintain channels for responding to internal complaints or reports of perceived harassment or other misconduct, including best practices for investigation, documentation, and avoidance of potential claims of retaliation under Title VII, ADA, ADEA, and other applicable laws.
Asset Protection: Consider the use of restrictive covenants, information security, and other means of protecting trade secrets and confidential information, important relationships, and other investments, particularly in light of new Georgia law.
These are just a few of the steps our attorneys can take to help you assess and improve your employment risk profile. If you might have needs in any of these areas, please do not hesitate to call for a “P4A3 Assessment.
Read More11th Circuit Rejects “Not Our Fault” Defense
The Eleventh Circuit Court of Appeals recently held that an employer is not absolved from liability for unreported overtime under the Fair Labor Standards Act (FLSA) if it has actual or constructive knowledge that time records are inaccurate. The ruling in Bailey v. TitleMax of Georgia (No. 14-11747) reversed a lower court’s decision accepting the defense that an employee could not recover overtime pay because he underreported his own work hours.
In the TitleMax case, there was evidence that the employee’s supervisor encouraged the underreporting of hours to avoid paying overtime and occasionally edited time records after they had been entered. The Court of Appeals found that this showed the employer had either actual or constructive knowledge of the underreporting of work hours. According to the court, “[i]f an employer knew or had reason to know that its employee underreported his hours, it cannot escape FLSA liability by asserting equitable defenses based on that underreporting.”
The TitleMax case highlights the importance of maintaining accurate time records, ensuring that supervisors and managers are trained on FLSA requirements, and requiring non-exempt employees to accurately report all working time. This is one of the many areas in which our firm can provide guidance to reduce employers’ legal risk.
Read MorePreliminary Injunction Obtained by HAGRS LLP Leads to Favorable Settlement
We recently resolved a restrictive covenant dispute in favor of our client after obtaining a preliminary injunction to enforce the covenant. After an employee announced her resignation to work for a competitor, we obtained a preliminary injunction against the employee in the U.S. District Court for the Southern District of Florida, precluding her continued employment. The employee appealed to the Eleventh Circuit. After the issues were fully briefed, and after being sidelined for seven months, the employee and the competitor agreed to various restrictions and a substantial payment to our client.
Read MoreHAGRS LLP’s Client Win Upheld on Appeal
The U.S. Court of Appeals for the Eleventh Circuit recently affirmed the grant of summary judgment and dismissal of claims against our client for alleged retaliation under 42 U.S.C. § 1981. In a case filed in U.S. District Court for the Northern District of Georgia, a former employee claimed he had been terminated in retaliation for making allegations of race discrimination against the same manager in a prior job for another employer. In its order dated December 8, 2014, the Eleventh Circuit held that the plaintiff failed to show that our client’s legitimate, non-discriminatory reason for the discharge was untrue or a pretext for retaliation.
Read MoreBeyond Liability: Get Employees In S.H.A.P.E.
What are you providing employees in exchange for their time and service? The answer many managers and supervisors probably would give is “a regular paycheck; insurance.” Unfortunately, most employees probably would give the same answer. Managers who want more from employees should consider what more they are doing (or should be doing) for employees, every day.
Managers and supervisors should view their roles as providing value to employees above and beyond monetary compensation. In many ways, a supervisor is a coach whose function is to get employees in optimal SHAPE to benefit the company and themselves. A good supervisor builds the following in each employee:
Skills: job skills are a true source of economic value and personal pride
Habits: good working habits allow employees to succeed in their current roles and beyond
Attributes: a healthy culture can help each employee develop valuable character traits
Purpose: a strong sense of mission is the foundation of accomplishment
Energy: constructive motivation provides intangible benefits on and off the job
With the right mindset, any supervisor can significantly improve employee engagement without necessarily increasing costs for the company. There are many ways to accomplish this, but it should start with a mindset of mutual exchange: “Ask not (only) what your employees can do for you, ask what you can do for your employees.
Read More