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FMG Law Blog Line

Archive for October, 2018

Is “Birthright Citizenship” Subject To Revocation By A Presidential Executive Order?

Posted on: October 30th, 2018

By: Ken Levine

citizenship

During an interview by Axios on October 29, 2018, President Trump declared that he was about to sign an executive order to abolish birthright citizenship in the United States. While the President insisted that birthright citizenship, a concept enshrined in the 14th Amendment of the U.S. Constitution, could be revoked via executive order, it is an understatement to say that the constitutionality of such an order would be dubious.

The 14th Amendment of the U.S. Constitution provides, in part, that all individuals born in the United States, and subject to the jurisdiction of the laws of this country, are automatically U.S. citizens. Any amendment to the U.S. Constitution requires a 2/3rd majority in both houses of Congress or a constitutional convention called for by two-thirds of the State legislatures.

Furthermore, the issue of birthright citizenship has already been comprehensively addressed in the 1898 U.S. Supreme Court case of U.S. vs. Wong Kim Ark, 169 U.S. 649. The issue at hand in the case was whether a child born in the United States to Chinese citizens, who were temporarily residing in the U.S., was automatically a U.S. citizen by operation of law. In a 6 to 2 decision the Supreme Court determined that the 14th amendment, which was passed after the U.S. Civil War, guaranteed U.S. citizenship to all individuals born in the United States, no matter the citizenry of the child’s parents. The decision reiterated that the 14th amendment does however exclude birthright citizenship for the children of foreign diplomatic officers, which is the sole exception.

Eminent constitutional scholars around the U.S. have already weighed in on this issue and have spiritedly validated that the U.S. Constitution not only guarantees birthright citizenship, but that a unilateral Presidential Executive Order cannot amend the constitution. It is unclear at this time whether President Trump will actually move forward with this executive order.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Ken Levine of the law firm of Freeman, Mathis & Gary, LLP at (770-551-2700) or [email protected]

Closings Gone Bad

Posted on: October 25th, 2018

By: Dana Maine

Nathan Hardwick IV was convicted by a Northern District of Georgia federal jury on October 12, 2018 of embezzling $26 million from the accounts of his former firm, Morris Hardwick Schneider.  $20 million of this amount was from the firm’s escrow accounts.  The good news for clients of the firm is that firm’s insurer, Fidelity National Finance, stepped in to cover most of the escrow shortfall.  All parties to real estate closings were watching this trial and trying to understand how this scheme could have gone on for as long as it did and involve this amount of money. There are lots of lessons to be learned, and policies to be implemented.  Doubtless, attorneys for escrow agents and their insurers are scurrying to draft these new policies and put them in place.  Hardwick’s sentencing is set for December 19.  He will remain in custody until sentencing.

If you have any questions or would like more information, please contact Dana Maine at [email protected].

OSHA Developments Favorable for Employers

Posted on: October 24th, 2018

By: Amy Bender

Two recent OSHA developments signal good news for employers.

The first relates to the scope of OSHA inspections of an employer’s workplace. In a recent federal court case, after an employee of a poultry processing plant was injured at work, the employer reported the incident to OSHA as required. It also provided 3 years of its injury and illness (“OSHA 300”) logs and permitted OSHA to inspect the particular hazards relating to the injury. OSHA then sought a warrant to inspect the employer’s entire facility based on this information as well as the fact that poultry processing plants were included in OSHA’s Regional Emphasis Program, which had identified hazards of particular concern to that industry. After the warrant was issued, the employer objected. The court agreed with the employer and quashed the warrant, finding a lack of reasonable suspicion to support such a broad inspection and a lack of evidence that OSHA selected the employer for inspection applying neutral criteria. Although the permissible scope of an OSHA inspection will depend on the individual circumstances of each situation, this case can give employers some comfort that OSHA’s authority is not unfettered. The case may be read here: USA v. Mar-Jac Poultry, Inc., Case No. 16-17745  (11th Cir. Oct. 9, 2018).

The other development relates to OSHA’s stance on post-accident drug testing and workplace safety programs. As we previously reported here, OSHA published a final rule in 2016 prohibiting mandatory, across-the-board post-accident drug testing as being discriminatory against employees based on their injury or illness reporting and limited testing to situations where employee drug use was a likely factor in the incident. The final rule also required employers to develop employee injury and illness reporting requirements that meet certain criteria, including informing employees of their right to make such reports without fear of retaliation. The final rule left employers scrambling to revamp their long-standing and well-meaning policies and procedures relating to workplace safety. Fortunately, OSHA now has issued a memorandum clarifying that it does not prohibit workplace safety incentive programs or post-incident drug testing. Such programs are impermissible only to the extent they are intended to penalize employees for reporting a workplace injury or illness. The memorandum provides additional guidance on what will be considered acceptable reporting policies and drug-testing procedures. The memorandum is available here.

If you have any questions or would like more information, please contact Amy Bender at [email protected].

Who’s Liable for Letting the Dogs Out?

Posted on: October 23rd, 2018

By: Wes Jackson

“Cry ‘Havoc!,’ and let slip the dogs of war.”

William Shakespeare, Julius Caesar act 3, sc. 1.

 

Havoc indeed—in a case argued before the Georgia Supreme Court on October 10, two pit bulls slipped out of a tenant’s backyard gate with a broken latch and then mauled a woman walking her smaller dogs nearly two blocks away from the home. Police had to fatally shoot both dogs to end the attack, and the woman was life-flighted to a hospital where she stayed for seven days and was left disfigured after multiple surgeries.

The question before the Court was whether the landlord could be liable for the attack. The trial court entered summary judgment in the landlord’s favor because the plaintiff could not show the landlord had any prior knowledge of the dogs’ propensity for violence. The Georgia Court of Appeals reversed, holding that the question of the landlord’s liability should have been submitted to a jury.

The case exemplifies how thorny questions of proximate causation can jeopardize a defendant’s hopes at summary judgment. For example, the Court of Appeals found the trial court erred by failing to properly consider the fact that the landlord had known the gate latch was broken but failed to repair it. Additionally, the parties argued before the Court whether a landowner’s failure to keep the premises in repair could, as a matter of law, proximately cause an injury that happens more than two blocks away from the property. Given these arguments, the Supreme Court’s decision will likely either extend or limit the scope of landlords’ liability for injuries caused by their tenants or those that occur off the property.

The case is Tyner v. Matta-Troncoso et al., S18G0364. If you have any questions about this case or its impact on landlord liability, premises liability, or dog attack cases in Georgia, feel free to contact Wes Jackson at [email protected].

Panera Assistant Managers Granted Cert. In Overtime Suit Reminds Franchisees that Duties, Not Title, Prevail

Posted on: October 22nd, 2018

By: Brad Adler & Hillary Freesmeier

While retail employers have tightened up their wage and hour practices, there are still too many companies in the retail industry, including fast food and fast casual employers, that have failed to take inventory of their compliance with current wage and hour laws. One such example is how some retail employers classify their assistant managers.  For years, there have been contentious fights over whether assistant managers can be classified as exempt under the administrative exemption.

And that fight continues as a federal judge in the District of Columbia has granted conditional certification of a nationwide collective and D.C. collective of Panera bread assistant managers who have sued the national chain for alleged denial of overtime wages under both the Fair Labor Standards Act and the District of Columbia Minimum Wage Act.

In conditionally certifying the collectives, U.S. Magistrate Judge G. Michael Harvey found that the plaintiffs had presented sufficient evidence that the assistant managers were classified as exempt from FLSA overtime provisions, but the bulk of the work they performed was nonmanagerial – a reminder that under the FLSA an employee’s duties, not title, determine exemption status. The plaintiffs assert that their assistant manager training focused on nonmanagerial tasks that involved customer service, cashiering, food preparation, and cleaning, while general managers took on the actual managerial work, and management issues such as budgets, prices, restaurant layouts, marketing and promotion strategies, hours of operation, and dress code were set by Panera’s corporate headquarters.

This suit is not the first Panera has seen in relation to assistant managers and overtime pay in recent months. In February of this year, Covelli Enterprises, a Panera franchisee which owns and operates approximately 260 Panera bakery-cafes in five states and Ontario, Canada, was sued in an Ohio federal court by a proposed class of assistant managers alleging they were improperly classified as exempt and deprived of overtime wages. This action is still pending. Additionally, in June a federal judge in New Jersey conditionally certified a collective action by Panera assistant managers with similar claims.

As these cases develop, employers and franchisees should be mindful of their management structure and duty assignments to ensure FLSA compliance. These suits serve as a reminder that FLSA exemption does not necessarily rest on an employee’s title, but their duties and responsibilities within their role.

If you have any questions or would like more information, please contact Brad Adler at [email protected] or Hillary Freesmeier at [email protected].