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Archive for the ‘Employment Law Blog (US)’ Category

Federal Court Addresses Georgia Restrictive Covenant Rules

Posted on: October 21st, 2020

By: Ken Menendez

Employers regularly grapple with the interpretation and application of the law regarding restrictive covenants. Court rulings in such cases are often drawn narrowly to address the specific facts of the case at issue and therefore can be of limited value in providing guidance to employer and employee alike. In light of this, decisions which establish clear rules of interpretation are always welcome.

One such decision was recently issued by the United States District Court for the Northern District of Georgia. Georgia’s restrictive covenant statute states that covenants not to compete are generally enforceable so long as they are “reasonable in time, geographic area and scope of prohibited activities.” O.C.G.A. § 13-8-53(a). In Chef Merito v. Javier Gonzalez, et. al., No. 1:20-cv-1242-AT, 2020 U.S. Dist. LEXIS 171934 (N.D. Ga.August 19, 2020), the employer sought a temporary restraining order preventing two former employees from engaging in competitive sales activities on the basis of a covenant not to compete contained in their employment agreements. The covenant did not contain a geographic limitation. The employer conceded this, but argued that because the Georgia statute allows the court to blue-pencil a contract, the court should utilize that power to modify the covenant to apply to a territory comprised of the sales routes covered by the employees in question.

The court denied the request for a temporary restraining order, stating emphatically that “a trial court may not under the guise of the ‘blue pencil’ method reform a contract which is otherwise unenforceable by reason of vagueness…The ‘blue pencil’ marks, but it does not write. It may limit an area, thus making it reasonable, but it may not rewrite a contact void for vagueness, making it definite by designating a new, clearly demarcated area.” Chef Merito, at p. 15 (Hamrick v. Kelley, 392 S.E. 2d 518, 518-19 (Ga. 1990); see also Wind Logistics Professional, LLC v. Universal Truckload, Inc., No. 1:16-cv-00068, 2019 WL. 4600055 at *10 (N.D. Ga. 2019 (stating that courts “cannot ‘reform and rewrite’ contracts to make them acceptable to Georgia public policy.”).

In Chef Merito, the court makes clear that in Georgia blue pencils are to be used for subtraction, but not for addition. In the wake of this decision, parties asking Georgia courts to engraft geographic parameters onto covenants which do not contain them are likely to come away empty-handed.

If you have questions or would like more information, please contact Ken Menendez at [email protected].

Keeping Politics Out of the Office: First Amendment Considerations for Public Employers In the Age of Social Media

Posted on: October 13th, 2020

By: Taryn Haumann

As we approach another hotly contested presidential election, Americans are frequently turning to social media to share their political ideologies or engage in debates. In the weeks leading up to the election, as well as the days immediately following, employers could see conflict arise in the workplace relating to their employees’ postings on social media. For public employers, the decision on how to handle these situations becomes even more complicated due to the employees’ First Amendment protections.

On October 6, 2020, a Sixth Circuit three-judge panel in Bennett v. Metropolitan Government of Nashville, No. 19-5818, weighed in on this scenario. In Bennett, the court held that a public employee’s use of a racial slur when discussing politics on Facebook was not sufficiently protected by the First Amendment, and the speech did not outweigh the government agency’s interest in having an efficient workplace and effectively serving the public.

The court’s ruling overturned the U.S. District Court’s determination that a 911 operator’s use of a racial slur when discussing the groups of voters who supported Donald Trump was protected political speech that outweighed the government’s interest in policing her conduct. Following the 2016 presidential election, the employee posted a response to a comment on her public Facebook page celebrating Trump’s victory. The employee, who was White, used a racist slur historically used to demean Black people, while also stating that “rednecks” and “[L]atinos” voted for Trump. Following the employee’s comments, her coworkers and members of the public complained to the Metropolitan Government of Nashville (“Nashville”).  Following paid administrative leave and a due process hearing, the employee was terminated, and she subsequently sued Nashville for retaliation under the First Amendment. 

The Sixth Circuit applied the balancing test outlined by the United States Supreme Court in Pickering v. Board of Education, 391 U.S. 563 (1968) to determine whether the employee’s interests in free speech outweighed the government employer’s interest in efficiency in the workplace. In deciding the employee’s comment was not sufficiently protected speech, the court considered the following factors: whether the statement disrupts harmony among co-workers or impairs supervisory discipline, has a determinantal impact on close working relationships, impedes the performance of the employee’s duties or the workplace’s general operation, or undermines the employer’s mission.

In short, the employee’s derogatory comments caused an uproar in the workplace, and the district court failed to fully consider the importance of harmonious relationships in the workplace. The employee’s post caused “substantial” disruption and increased stress levels across the entire agency. The employer even brought in counselors to address the tension. The court recognized the employer had an undeniable interest in maintaining an effective workplace, promoting employee harmony, and efficiently serving the public, which ultimately outweighed the employee’s interest in using racially offensive language in a Facebook comment.

Whether you are a public or private employer, it is important to remind your employees to be cognizant of what they post on social media—particularly if their profiles are public. For employers, one of the best tools is to include a social media policy in your employee handbook that adequately addresses the complexities of social media in the modern workplace. For instance, it can be helpful for an employee to decline to identify herself as an employee of your organization, or for the employee to post a “disclaimer” that her opinions or views expressed are those of the employee and not the employer. However, as seen in Bennett, certain postings can still cause major disruption in the workplace and negatively reflect on the employer.

If you have questions about an employee’s social media presence, or would like to discuss implementing social media policies at your place of business, please contact Taryn Haumann directly at [email protected].

California’s New Normal: Electronic Service and Remote Depositions

Posted on: September 25th, 2020

By: Marshall Coyle

Prior to California Governor Gavin Newsom approving Senate Bill 1146 on September 18, 2020, California law provided that, for cases filed on or after January 1, 2019, if a document may be served by mail, express mail, overnight delivery, or facsimile transmission, electronic service of the document was permitted if a party or other person has expressly consented to receive electronic service in that specific action, or if the court had ordered electronic service on a represented party or other represented person.

Senate Bill 1146 requires a party represented by counsel, who has appeared in an action or proceeding, to accept electronic service of a notice or document that may be served by mail, express mail, overnight delivery, or facsimile transmission. The bill requires a party represented by counsel, upon the request of any party who has appeared in an action or proceeding and who provides an electronic service address, to electronically serve the requesting party with any notice or document that may be served by mail, express mail, overnight delivery, or facsimile transmission.

Prior California law required a party deponent to appear at a properly noticed deposition and be in the presence of the deposition officer. It authorized a court to expressly provide that a nonparty deponent may appear at a deposition by telephone if the court found there was good cause and no prejudice to any party. It authorized a court to issue a protective order with respect to the conduct of a deposition in order to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, oppression, or undue burden and expense.

Senate Bill 1146 deletes the provision authorizing a court to provide that a nonparty deponent may appear by telephone. It instead authorizes the deponent or the deposing party to elect to have the deposition officer attend the deposition by telephone or other remote electronic means. It specifically provides that a deponent is not required to be physically present with the deposition officer when being sworn in at the time of the deposition, and that any party or attorney of record may, but is not required to, be physically present at the deposition at the location of the deponent, subject to any protective order issued by the court.

If you have questions or would like more information, please contact Marshall Coyle at [email protected].

EEOC Issues Opinion Letter on Scope of Pattern or Practice Claims that Modifies Earlier Position

Posted on: September 23rd, 2020

By: Jennifer Markowski

On September 3, 2020, the Equal Opportunity Commission (“EEOC”) issued an Opinion Letter concerning the so-called “pattern or practice suits” brought under section 707 of Title VII. The questions answered in the letter are: (1) Does a pattern and practice claim under section 707(a) require allegations of violations of section 703 or section 704; and (2) Does a section 707 claim require the pre-suit requirements of section 706 be satisfied before suit can be filed? The EEOC answered both questions in the affirmative, which was a change from previous stances on both issues.

Section 707(a) allows the EEOC to bring suit when “a person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by this subchapter, and that the pattern or practice is of such a nature and is intended to deny the full exercise of the rights herein described.” 42 U.S.C. § 2000e-6(a). The subchapter is Title VII itself and the rights secured by Title VII are the rights to be free from unlawful discrimination (section 703) and retaliation (section 704). Reading the sections together, the EEOC opines that a claim under section 707 must therefore be based on a pattern or practice that is tied to unlawful discrimination or retaliation. This position deviates from the EEOC’s earlier broader interpretation that it had authority to pursue claims based on undefined practices that it believed facilitated unlawful “resistance” in some way, even if those practices did not violate section 703 or 704.

The EEOC further advised that the 706 pre-suit requirements must be satisfied before bringing suit. Thus, a charge must be filed, a reasonable cause finding must issue, and conciliation must be pursued before suit is filed. This too was a change from the EEOC’s earlier position that it was not bound by the section 706 requirements when pursuing a claim of “pattern or practice of resistance.”

Employers who rely in good faith and in conformance with the interpretations provided in the Opinion Letter may have a defense to a claim even if the Opinion Letter is subsequently rescinded, modified, or invalidated by a court.

If you have questions or would like more information, please contact Jennifer Markowski at [email protected].

Georgia Revamps Lactation Break Law for Private Employers and Creates a New One for Public Employers

Posted on: September 22nd, 2020

By: Tim Boughey

The Georgia state legislature recently weighed in on the issue of lactation breaks by passing “Charlotte’s Law.”  Before August 5, 2020, Georgia employers largely followed the federal Fair Labor Standards Act’s lactation break requirements to provide an employee with a reasonable amount of unpaid break time and a space to express milk as frequently as needed by the nursing mother, for up to one year following the birth of the employee’s child. The former Georgia lactation law (O.C.G.A. § 34-1-6) did not require much more than the FLSA – so it took a back burner to the federal requirements.

Now, Georgia public and private employers need to do more and comply with “Charlotte’s Law,” which is more robust than the FLSA in its requirements.  In short, Charlotte’s law requires most Georgia employers to provide reasonable break time to working mothers who desire to express breast milk at their worksite during working hours in a safe location near the employee’s workspace. Like the FLSA, restrooms do not satisfy the “safe location” requirement. Unlike the FLSA, Georgia’s law applies to all employees, requires PAID break time and includes no one-year time limit on granting of lactation breaks.  Charlotte’s Law requires employers to pay the employee at the employee’s regular rate for the lactation break. If an employee is salaried, employers cannot require employees to use paid leave for such breaks or reduce their salary because of the breaks.

The amended O.C.G.A. § 34-1-6 now applies to Georgia private employers with one or more employees. The law does create an undue hardship exemption for employers with fewer than 50 employees where compliance would cause significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the business.

For employers with teleworking or traveling employees, Charlotte’s Law does not require a paid lactation break for any employee working away from their worksite. But employers should continue to follow federal requirements.

Notably, Charlotte’s Law also created O.C.G.A. § 45-1-7, which applies the same rules to public employers, except public sector employers can avoid liability for making reasonable efforts to comply with Charlotte’s Law.

Here is the final legislation:

If you have questions or would like more information, please contact Timothy Boughey at [email protected].