Articles Posted in Commission and Pay Disputes

Non compete clauses or non-solicitation clauses are governed by O.C.G.A. 13-8-50 to 59. Under Georgia law, restrictive covenants in employment agreements are subject to strict scrutiny and will be enforced only if they are reasonable as to the duration, territorial coverage, and scope of activity of the covenant.

In H&R Block v. Morris, No. 09-11184 (11th Cir. 2010), the Eleventh Circuit addressed a dispute between the well-known tax services company and a former employee who allegedly violated the terms of her employment agreement. The employment agreement contained two restrictive covenants–a non-competition clause and non-solicitation clause. A restrictive covenant in an employment contract, whether a non-solicitation covenant or a non-competition covenant, is considered to be in partial restraint of trade and will be enforced only if it (1) is reasonable, (2) is supported by consideration, (3) is reasonably necessary to protect the restraining party’s interest, and (4) does not unduly prejudice the interests of the public.
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It hasn’t been a great 2010 for Wal-Mart.

Last month, a federal appeals court ruled that a class-action employment discrimination lawsuit against Wal-Mart could proceed. That lawsuit is expected to be the largest such suit in American history, and is expected to include more than 1 million current and former Wal-Mart workers who allege that they suffered gender-based discrimination at the retailer over the past decade. This month, the company agreed to pay up to $86 million in settlement of a lawsuit, which claims that the company failed to pay workers unpaid wages.
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Home Depot has settled a class action lawsuit which alleged that HD violated California’s strict labor laws by not providing its workers with a 30-minute paid meal period after working 5 hours. HD had apparently tried to comply with national labor laws which are chiefly governed by the Fair Labor Standards Act (FLSA).

The settlement shows that many state laws, including many Georgia laws which protect Georgia workers, can form the legal basis for employees to recover for unfair pay practices. While Georgia laws are not as protective of workers as those in California, there are many laws in Georgia which do protect workers and allow for the recovery of back pay, interest, exemplary damages and attorneys’ fees.
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Workers in Georgia who have recently been terminated should carefully consider whether they can continue to be covered under the employer’s healthcare plan and pay only 35% of the normal COBRA premium.

As part of the Stimulus Package that recently have taken effect, involuntarily terminated workers who are let go by March 31, 2010, must only pay 35% of the normal COBRA payment to remain under the employer’s health plan. The balance of the payment is repaid to the employer in the form of a federal tax credit.
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Employers have been negatively impacted by the sour Georgia economy and many have been cutting costs to remain profitable. Unfortunately for many hard-working Georgians, some employers have been cutting costs by offering less (or in some cases none at all) severance packages to terminated employees. As a Georgia lawyer with a great amount of experience representing terminated workers; executives who are not fully paid salary owed to them, and salespeople who are not paid commissions owed to them upon termination, I am seeing a strong surge in the amount of claims related to these areas over the last 2 years. This post focuses on severance pay.

Absent a written contract which requires certain payments upon termination, severance payments are not required in Georgia. However, many employers choose to provide severance packages to terminated employees for a number of reasons. Some companies provide severance pay to garner goodwill with their employees (this goodwill extends not only to the fired employee, but also to the current employees who see how well the terminated employee is treated and, hence, view the employer in a better light). However, some employers use severance payments as a shield against any future liability or waiver of all future claims and lawsuits by the terminated employee. This is where it gets complicated and when you should consult with an experience Georgia lawyer if you are put in this situation.

Many times the employer will offer a severance package and present it to the terminated employee with a “full release of liability.” The offer of severance will be open for a short time and is expressly conditioned on the employee signing the release by the deadline imposed by the employer.

While this may be “good business” for the employer, it may not be in your best interest to sign the release and take the severance being offered. This is a difficult decision that should be discussed with a good attorney to make sure you do not leave any money on the table, or that you do not release valuable legal claims that you may have. Some fired employees may have potential lawsuits related to outstanding commissions that are being wrongfully withheld by the employer, final paychecks which have been withheld, unlawful discrimination, OSHA violations, Fair Labor Standards Act (“FLSA”) violations, or any number of other valuable claims. At a minimum, your potential claims should be discussed with an experienced Georgia business lawyer prior to signing anything given to you.

As a practical matter, most employers provide a 21-day period to review the severance package being offered and the package states that the company urges the terminated to consult with a lawyer. Obviously, the company puts this language in the agreement as a protection against the terminated employee claiming that they did not know what they were signing or did not understand the effect of the document they signed. In most cases, the legal effect of signing the documents that come with a severance package that is being offered to you is that you release any and all claims against the company that you have, or may have in the future related to any conduct of the company up to the date you sign the release. Since this is a broad release, you should be absolutely sure be certain that you know: (1) what potential claims and causes of action you may have based upon your employment; and (2) the money that you are receiving is worth foregoing these causes of action.
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Current and former AT&T employees have banded together and sued the communications giant claiming up to $1 billion in unpaid overtime pay. The class action lawsuit was filed in federal court in San Francisco and Atlanta and stems from the alleged misclassification by AT&T of former BellSouth Corp. managers who joined AT&T when it merged with BellSouth in 2006. The suit alleges that, although classified by AT&T as managers, the employees’ duties were essentially non-management. If it is determined that these employees were misclassified, they will be eligible for overtime pay and back pay under the Fair Labor Standards Act (FLSA).

AT&T’s wireless operations are headquartered in Atlanta, Georgiahttps://www.robertjfleming.com/lawyer-attorney-1371077.html.
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According to recently released government statistics, the official unemployment rate is over 8% and climbing steadily. Georgia Department of Labor Web Site. No one needs to be told how tough times are these days and it’s any one’s guess as to when the job market will rebound. Conventional wisdom dictates that if you currently have a job, hang on to it. If you have just been fired, the following steps are advisable:

(1) Do not sign anything until you have had a chance to consult with an experienced attorney who represents workers. Many times, a severance package and check will be presented to you by your employer under the express condition that you sign a complete release in order to get your severance and money. As tempting as this may be, do not sign anything until you have had a chance to review the documents in detail and consulted with a lawyer. Getting the money quickly may be appealing, but in order to do so, you may be signing away valuable legal rights. If you sign the release, your right to sue may be lost forever. In addition, the money you get could be costly, in the form of future restrictions to compete against your former employer and/or call on their customers.

(2) File for unemployment benefits. If you are eligible, this may be what you need to make it through these certain tough times ahead. This should be done as soon as possible. Delaying the filing for unemployment does not help you in any way and a long delay may cost you to forfeit some benefits that you otherwise may have been entitled to.