Atlanta Employment Attorneys Blog

Rights and Risks When it Comes to Pregnant Employees

October 22, 2014 | Parks, Chesin & Walbert

With perks like arcades, ball pits, laundry services, round-the-clock meals, and pretty much anything else it takes to coddle energetic young employees not quite ready to assume full adulthood, Silicon Valley firms are legendary for offering workers anything it takes to keep them at their desks instead of tending to an outside life. The latest entry in the “They get what?” panoply of benefits for high-tech workers is egg freezing, currently at Apple and Facebook and, presumably, to be adopted by more companies if it proves popular. While it’s being touted as a generous perk worth around $20,000, there’s no shortage of fierce criticism that it’s simply a manipulative way to extract longer, more focused efforts from younger employees the companies don’t want to see distracted by families and greater work-life balance. (It’s worth noting that, in some cases, the offer is extended to spouses of employees, so it’s not just the female workers who are affected by the new benefit).

While the debate about whether such a program assists or coerces delayed family planning is new enough that it should provide plenty of back and forth for quite some time, a much more established consideration for women of childbearing age is how a pregnancy would affect their jobs. Despite some longstanding laws designed to protect pregnant workers’ livelihoods, there is often a good deal of confusion for both them and their employers regarding rights and obligations.

An Employee’s Right to a Safe Work Environment

October 15, 2014 | Parks, Chesin & Walbert

With all the misplaced fears and manufactured hysteria about the first Ebola case diagnosed in the US, it is not hard to assume most people are happy they are not health care workers in that Dallas hospital. Unfortunately, it looks like at least one of the nurses caring for the initial victim is testing positive for the disease, and dozens more workers who had direct and indirect contact with the infected individual are being quarantined and monitored for the next couple of weeks. The chance of contracting a virus that is killing more than half of its victims in Western Africa is a high price for anyone to pay for choosing a career in medicine, but that is the risk they assumed when they took the job, right? Not exactly.

While health care workers are used to dealing with all kinds of sicknesses and gore, some things simply fall outside the norm. Expecting emergency room nurses or doctors to be well-versed in caring for highly unusual maladies, such as heavy radiation exposure, exotic poisons and toxins, or pandemic-level diseases previously confined to other continents is unreasonable, if not impossible. Thus, it was not surprising to see the head of the nation’s largest nurses’ union blast the Centers for Disease Control for appearing to blame the now-infected nurse’s own breach of safety protocol for her exposure to the Ebola virus.

Is Internal Loss Prevention Stealing Workers’ Wages?

October 9, 2014 | Parks, Chesin & Walbert

In Johnny Cash’s One Piece at a Time, the singer tells the story of an assembly line worker who longs for one of the cars he spends his days building. Instead of pinching pennies, he devises a plan to acquire that car little by little. With an over-sized lunchbox and some help from friends, the worker smuggles home pieces every day over the course of a couple of decades. By retirement, he ends up with a Frankenstein of an automobile whose many components required the entire courthouse staff to register and results in a title weighing sixty pounds.

The dream of a “psycho-billy Cadillac” may be a little far-fetched, but internal theft by employees remains a real concern for companies, particularly retail stores and other business that sell or warehouse popular, pricey, or scarce consumer products. To combat the threat, many businesses subject employees and their belongings to screenings for stolen items at the end of their shifts. In environments like large department stores, where shifts are staggered and the searches might take only a minute or two, the delay may be inconvenient at times, but it would be tough to argue that it’s overly burdensome.

On the other hand, there are facilities doing these kinds of checks with dozens, if not hundreds, of workers whose shifts begin and end together. As anyone who’s been though a TSA line at an airport can understand, funneling that many people through checkpoints is not a quick endeavor. Instead of a two-minute delay, people at the back of the line might be waiting 20 minutes or more after their shift ends just to leave the building. Should they be compensated for that time?

This is a Job for FedEx…or is it?

October 2, 2014 | Parks, Chesin & Walbert

By looking at the uniforms and the trucks and scanners and just about everything else associated with any FedEx delivery driver, it’s more than reasonable that one would naturally assume they’re part of a massive payroll consisting of tens of thousands of employees for the Tennessee-based corporation. FedEx, however, would tell you that assumption is wrong. Instead, the company has a lengthy history of using independent contractors with dedicated routes to deliver its packages around the country.

Outfitted with FedEx logos, uniforms, and operating systems, it’s easy to see why a layperson might confuse the independent contractors for employees, and now courts around the country are beginning to agree. Fueled primarily by a string of class action labor lawsuits brought by FedEx drivers, state and federal courts have been thrust into deciding whether those drivers can proceed on claims reserved for employee-employer relationships. Last month, a pair of decisions from the Ninth Circuit appeals court found that, at least in California and Oregon, those drivers are actually employees of FedEx.

Spurred by claims for unpaid overtime and employment expenses as well as Family and Medical Leave Act violations, among other things, the first hurdle for the hundreds of drivers represented by the class action was to prove themselves eligible to recover on those bases. Doing so meant demonstrating that their arrangement with FedEx fell under the purview of employment. In a previous blog post, we discussed some of the basics of what distinguishes independent contractor status, but the Ninth Circuit went into great depth as it picked apart the many factors that demonstrated how little “independence” these drivers actually have.

Employee or Independent Contractor? Why the 1099 Matters

September 24, 2014 | Parks, Chesin & Walbert

As the first American set to orbit Earth sat in a tiny capsule atop a giant rocket in February 1962, fellow astronaut Scott Carpenter wished him good luck with a succinct, “Godspeed, John Glenn.” Moments before, however, Carpenter was cutting the tension with a line that immediately became part of the Apollo Program’s lore and lexicon: “Remember, John, this was built by the low bidder.”

While very few endeavors will have the gravity of cobbling together millions of parts to build a missile capable of putting a human into space, there are plenty of reasons to wonder if we are getting what we paid for when we go as cheap as possible. There is, of course, the suspicion that lower prices may lead to cutting corners that will be reflected in the quality of materials and even the level of care in craftsmanship. But what if that low bid came at the expense of labor laws and undermined the economic health of a community?

Economic Policy Institute Report Indicates Startling Trend in Employee Wages, Inflation

September 17, 2014 | Parks, Chesin & Walbert

If you’ve been thinking that you’re probably not getting paid what you’re worth, a new report from the Economic Policy Institute might make you feel validated…or even more frustrated. According to the report, 70% of the US workforce’s inflation-adjusted wages are lower than they were in 2007, with declines in wages at every pay level except the bottom 10% from mid-2013 to mid-2014.

Perhaps the number that will stick out most to middle-class earners (those between the 20th and 80th percentiles) is $18,000. This is the amount of additional annual income the middle-class would have seen in 2007 if wage inequality hadn’t risen between 1979 and 2007. That means the average middle-class household in 2007 should have brought in more than $94,000 instead of the $76,451 it did.

Missing out on almost $20,000 they deserve is enough to make most people seethe, but it actually gets worse once the disparity in the increase of income at various levels is factored in. The average increase between 1979 and 2007 of 53.4% seems like a promising sign until a closer look shows how disproportionate the numbers are. Incomes in the bottom fifth increased by less than 30%, and those in the middle fifth fared even worse with an increase of less than 20%. Even those in the 80-90% range only saw an increase of 39%.

Why You Need to Read Your Next Employment Contract

September 10, 2014 | Parks, Chesin & Walbert

A fairly common trick many law school professors like to play on new students is to hand them a pretty lengthy agreement of some sort and ask that they sign and date it. Most everyone complies and hands them back in within a matter of seconds. A handful of stragglers takes their time and hands theirs in after a minute or so. It’s at that point the professor will congratulate the slower group and admonish the early birds for skimming or even ignoring the contents of the agreement. Sometimes the text explicitly says something like “don’t sign this” or “hand it in face down” just to see whether anyone’s paying attention.

The point of the exercise is to make it clear to people on their path to being lawyers that they should never again sign anything without reading and understanding the agreement. Being constantly bombarded with contracts, whether it’s leases or mobile phone agreements or even the terms of service for iTunes, it’s hardly uncommon to skip the slew of boilerplate language and just sign or click to save time and get on with life. But the law professors want the students to realize it’s now their duty to peruse all those clunky words, and there’s no reason the same rule shouldn’t apply to everyone, since making sure you know what you’re getting into ultimately is for your own protection. As a recent case from the Georgia Court of Appeals shows, it’s sometimes to your benefit, too.

In July, the Court of Appeals reminded us that it always pays to cross one’s Ts and dot their Is. The case of MAPEI Corporation vs. Prosser was a battle over which employment contract was binding when the employee was given two separate agreements on different dates with different terms. At first, anyone who’s dealt with employment contracts might guess that they know where this story is going, since the employee usually has little input or influence on the company’s standard terms, making the contract less of an evenly-negotiated agreement than it is an edict of “here’s how it’s going to be if you want to work for us.” This time, however, the contract-happy company didn’t come out the victor.

Celebrating Wins for the Working Class

September 3, 2014 | Parks, Chesin & Walbert

Much as single days celebrating mothers and fathers seem to fall short of fully acknowledging everything they do for their families, a lone Monday off in honor of America’s hard workers is far from all the reward they deserve. Of course, that shortfall is unfortunately what keeps employment law attorneys busy the other 364 days of the year. Instead of focusing on all that needs fixing to help ensure workers’ rights, however, today is a good day to reflect on some of the biggest labor wins of the past century.

By any objective standard, the Fair Labor Standards Act (FLSA) of 1938 should be near the top of victories for the working class. After decades of failed efforts to right wrongs that included excessive child labor, six-day work weeks of 10 or more hours a day, and unlivable wages, President Franklin D. Roosevelt and Congress engaged in years of back-and-forth negotiations to finally arrive at a bill that banned oppressive child labor, capped the work week at 44 hours, and set a minimum wage of 25 cents an hour–about $3.32 in 2014 dollars. (A detailed and compelling history of the FLSA can be found on the U.S. Department of Labor’s website.) While the FLSA couldn’t begin to solve all the ills faced by the labor force, and it didn’t achieve the 40-hour week or 40-cents-an-hour minimum wage that many had pushed, it cemented a huge win for workers’ rights.

Almost 80 years later, conditions for workers have generally improved. Still, access to fair, livable wages continues to dominate much of the conversation about what the labor force needs, with President Obama and labor unions using today to further their efforts to increase the federal minimum hourly wage from $7.25 to $10.10. So far, opponents have stalled any national movement on the issue, but several states and municipalities have already enacted higher minimum wages, with Seattle going so far as to raise it to $15 per hour.

NLRB Decision Shakes Up Liability for Franchise Restaurants

August 25, 2014 | Parks, Chesin & Walbert

“McJobs” may soon come with a side of leverage for workers who find themselves the victims of labor law violations. In a surprising move, the general counsel for the National Labor Relations Board (NLRB) last month permitted regional directors to name McDonald’s Corp. as a joint employer along with its franchisees in several pending actions. This marks a major shift to the traditional liability issues in the franchise world, where franchisees are essentially independent contractors who pay royalties to use the systems and products of the parent company, but are solely liable for any labor law violations against their W-2 employees. While this move doesn’t carry the binding power of a ruling, the potential changes it brings caught plenty of attention from the franchise world.

Under this new model, the parent company could share in the responsibility for unlawful labor practices by their franchisees. Lawyers on the corporate sides argue that such responsibility for oversight of what could be tens of thousands of franchisees would be impractical if not impossible. Workers’ and labor groups, on the other hand, point out that the parent companies already exercise a great deal of influence and control in micromanaging almost every other aspect of the businesses, from stock to procedures to store design to intellectual property and advertising. Such strict control of day-to-day operations, they say, voids any industry arguments that ensuring franchisees adhere to labor standards would require extraordinary efforts.

The move by the NLRB goes beyond McDonald’s, fast food, or even restaurants in general and could affect all kinds of retail stores and service providers who operate on the the franchise system. Adding a layer of responsibility to the franchisor-franchisee relationship would come at some financial cost to the corporate home offices, even as the franchise establishment market continues to grow. Naturally, there’s been a collective freak-out by industries and companies around the country. The recurring speculative concern is that a corporate parent ensuring basic labor laws are followed at their franchises will somehow have a negative effect on job creation.

Georgia Still Waiting for Governor Deal to Ban the Box

August 18, 2014 | Parks, Chesin & Walbert

After disappearing from his website earlier this month, Georgia Governor Nathan Deal’s executive orders are back online. Among the routine list of dozens of appointees to various boards and commissions, many had hoped to see the long-rumored “ban-the-box” order that would help remove employment barriers for convicted criminals who have served their time. Unfortunately for those hoping for the change, it looks like the wait will be a little longer. The good news for them, however, is that a growing movement of both public and private employers across the country is pushing to eliminate a major hurdle for many people trying to re-enter the workforce.

Anyone who’s filled out an employment application has encountered the question “Have you ever been convicted of a felony (or crime)?” Check the ‘NO’ box and the application gets judged on other merits. But check the ‘YES’ box and, in most situations, the further explanation had better be compelling to hold the hiring manager’s attention, that is if they haven’t already decided to pass on the applicant. The ban-the-box movement sees this question as unnecessarily prejudicial, effectively making convicted felons unemployable long after they’ve paid their debts to society.

Back in the spring, Governor Deal said the details were being worked out for an executive order to ban the box from applications for state jobs. This would make the State of Georgia the latest in a substantial list of employers who have broken down the barrier, like Target, Walmart, and Bed Bath & Beyond–as well as more than 60 cities and counties across the nation, including Atlanta and Memphis. Of course, masked in this movement is that, at its core, ban-the-box is as much about fair hiring practices as it is about helping to reduce crime, since Bureau of Justice statistics show two-thirds of released prisoners will be arrested for another crime within three years, and three-quarters will be re-arrested within five years. The ban-the-box notion is straightforward. If former convicts can’t find work, they’ll have little choice but to revert to criminal activity, so let’s give them a chance to go straight.