Employment Law – Small Business Solutions Uncategorized Archives - Page 10 of 10 - Employment Law

Advance Notice of Resignation – Do’s and Don’ts

April 16, 2017

Joe Blow quit his job this morning. His employer did not see it coming and though Joe knew he was going to leave sooner or later, he just did not get around to providing notice of resignation.

Employers, here are a few do’s to minimize the frequency of this occurrence:

enter into an employment contract or provide an employee handbook requiring the employee to provide a certain amount of advance notice of resignation, on the penalty of a breach of contract lawsuit
incentivize the employee by providing a bonus pay at resignation if adequate notice of resignation is provided
if the employee is otherwise deserving, the employer can contract to provide an excellent written employment recommendation for the departing employee if adequate notice of resignation is provided
include a stipulation in the employment contract or employee handbook making employees who leave without the required notice ineligible for re-hire by the employer

Also for employers, here are a few do nots, regardless how frustrating it is to have employees constantly leave you understaffed:

withholding pay for hours already worked as penalty for lack of notice of resignation contravenes the FLSA
contracting out of or convincing the employee to waive FLSA rights will not be enforceable before the Wage and Hour Division of the Department of Labor

While advance notice of resignation of employment is not required by law in the state of Georgia, it appears employers through their conduct and workplace policies have the power to ensure that in more cases than not, it is provided.

Challenge and Defeat EEOC Subpoenas

April 11, 2017

Title VII of the Civil Rights Act of 1964 permits the Equal Employment Opportunity Commission (EEOC) to issue subpoenas to obtain evidence that is relevant to a pending investigation of discrimination on the basis of protected grounds from employers. The statute then authorizes a district court to issue an order enforcing such a subpoena.

In McLane Co. Inc. v. EEOC, Ochoa was employed by McLane to complete tasks which were physically exhausting. McLane required all employees, both new and returning, to complete a physical fitness evaluation to ensure fitness for work. Upon return from a three (3) month maternity leave, Ochoa attempted and failed the fitness evaluation three times. Her employment was terminated.

Ochoa filed a sex discrimination charge which the EEOC attempted to investigate, however, it was unable to access the names, Social Security numbers, addresses, and telephone numbers of thousands of McLane applicants and employees that had been asked to take the same fitness evaluation. The EEOC issued subpoenas for this information, but McLane was not forthcoming. The EEOC then brought an action to enforce its subpeonas to the Federal District Court. The District Court declined to enforce the subpoenas stating that the requested information was irrelevant to the case, prompting an immediate appeal to the Ninth Circuit Court. The Ninth Circuit ultimately determined that the lower court erred in finding the information irrelevant and agreed to enforce the subpoenas.

On appeal to the Supreme Court of the United States, the subpoenas were once again set aside on the basis that a district court’s decision whether to enforce or quash an EEOC subpoena should be reviewed for abuse of discretion only and not de novo, meaning “anew”. Its reasons were:

the abuse of discretion standard is “the longstanding practice of the courts of appeals” in such matters as EEOC and NLRB agency subpoenas;
enforcement of subpoenas is determined by whether the information sought is relevant or whether the subpoena is unduly burdensome, which are both issues that the district courts have the expertise to review;
deferential treatment of the district court’s decisions in such cases “streamline[s] the litigation process by freeing appellate courts from the duty of reweighing evidence and reconsidering facts already weighed and considered by the district court”.

For employers, this case highlights the importance of a comprehensive and well-prepared response to EEOC subpoenas at the initial stages and at the district court. Being the trial court, it will always be more familiar with facts and parties that are actually relevant in the charge and thus be less likely to enforce an over-broad subpoena. Once the battle is lost at this front, the likelihood of obtaining a favorable reversal at the circuit court has just been greatly diminished.

By subpoena the EEOC may legitimately request broad batches of information pertaining not only to current employees but to applicants and former employees alike. The more intently the EEOC investigates with this magnitude of information, the greater the risk of liability for any employer. Thus, employers should consult with experienced counsel to successfully challenge and defeat EEOC subpoenas at the right opportunity.

At-Will Employee Cried “Breach of Contract”

March 20, 2017

The United States District Court for the Northern District of Georgia released a decision on March 20, 2017 declaring: “even an at-will employee can, under certain circumstances (when the employer makes an oral promise to pay), recover under a breach of contract theory”.

In Georgia, employees are hired “at-will” meaning that they can be terminated or fired without cause and without notice. At-will employees are protected from termination only when they are being terminated for reasons that are prohibited under other laws (such as that which would contravene Title VII of the Civil Rights Act or the Georgia Whistleblowers Act, etc.).

In Jamie Anthony et al v. Concrete Supply Company, the Plaintiffs were employed by CSC to haul sand, rocks, gravel and dirt to its customers. The Plaintiffs alleged that the employer breached their contract when contrary to representations made in pay stubs and the company handbook which promised that they would be paid 27% of the revenue generated from each haul, the employer in fact paid them 27% of a lesser amount, among other claims. The employer moved to dismiss the complaint for several reasons including the allegation that at-will employees are not entitled to the breach of contract cause of action in the absence of a written employment agreement.

The Court disagreed with the employer, ultimately denying its motion to dismiss the complaint. In part, the Court based its reasoning on the following tenets of employment law in Georgia:

“the employment relationship is contractual in nature, whether the contract is express or implied, oral or written.”

“courts are rightly loathe to find […] that no contract existed between the employer and employee.”

“nothing about the contractual nature of the employment relationship transforms it into anything other than an at-will relationship terminable at will by either party.”

“even an at-will employee can, under certain circumstances (when the employer makes an oral promise to pay), recover under a breach of contract theory.”

The significance of this decision is rooted in the conclusion that not only independent contractors have access to the breach of contract claim, rather, even at-will employees, who seemingly in Georgia employment law are of all men most miserable, do in fact have access to this claim.

Newest on Whistleblower Protection

March 9, 2017

Plaintiffs seeking protection under the anti-retaliation provisions of the Georgia Whistleblowers Act (“GWA”) will applaud the Georgia Court of Appeals’ recent decision in West v City of Albany wherein it removed a fatal procedural obstacle.

In this case, Ms. West claimed damages, attorney fees and litigation costs against the City for its decision to terminate her employment when she reported what was deemed to be financial irregularities in the City’s utility department. The City responded with a motion of dismiss the claim due to West’s failure to provide pre-litigation notice (known in latin as “ante litem notice”) six (6) months prior to filing her claim in Court and after the discovery of the adverse employment decision, as is required by the municipal ante litem notice statute. The Court reviewed the specific text of the GWA and concluded mainly that retaliation under the GWA is defined as an intentional act while the municipal ante litem notice statute specifically pertains to negligent acts; therefore, the six (6) month notice period does NOT apply to claims made pursuant to the GWA.

The GWA is a powerful statute in that it creates a wrongful termination cause of action, even in the employment “at-will” state of Georgia, it waives sovereign immunity for municipalities such as the City in this case and, as the Court concluded: it establises a statute of limitations of up to three (3) years for a negligence claim that would otherwise provide only one (1) year. The Court would not have these powers truncated by ante litem requirements.

This decision, issued on March 6, 2017, highlights once again the importance of timely claims. If you have a legal issue, it probably has timeliness considerations in tow; therefore, speak to legal counsel sooner rather than later in order to preserve your rights!

S.O.

Welcome!

March 8, 2017

“Employment…is the institution through which most of us secure much of our self-respect and self-esteem.” – Chief Justice Dickson, Supreme Court of Canada, 1980

I have always been fascinated by employment law because it exists at the intersection of the most intimate of personal beliefs, goals and ambitions while at the very same time bearing heavily on business realities, facts and legislative mandates. This fascination has birthed a deep respect for my clients both management-side and employee-side when they contact me with a dispute. I understand that, at that moment, it is the utmost priority.

Launching this Firm enables me to put my education, experiences, and expertise to your service in resolving disputes without compromising your dignity or business interests, every day. You have my undivided attention. It is a privilege.

Let’s get started.