Atlanta Employment Attorneys Blog

Department of Defense Security Clearance Denial Reversed

November 28, 2012 | Parks, Chesin & Walbert

November began on a high note for Parks, Chesin & Walbert with the successful appeal of a security clearance denial. The client, a government contractor based in Washington, DC, was initially denied an industrial security clearance by the Department of Defense (DoD). The Statement of Reasons (SOR) issued by the Defense Office of Hearings and Appeals (DOHA) in April cited financial considerations as grounds for revocation of security clearance by the DoD.

Overtime and the Fluctuating Workweek

July 18, 2012 | Parks, Chesin & Walbert

Under the Fair Labor Standards Act, nonexempt employees are entitled to overtime at a rate of one and one-half times their regular hourly rate for hours worked in excess of 40 per week. However, it is possible for a nonexempt employee to be paid on a “salary” basis, in which case the employee may receive only one-half times the regular rate for hours worked in excess of 40 per week. This method is called the “fluctuating workweek” (or “flex-pay”) method of calculating overtime (though sometimes it is unfortunately referred to as “Chinese Overtime”). The premise of flex-pay is fairly straightforward: because a nonexempt employee received a salary as compensation for all hours worked, the employee has already been paid all wages at the regular rate for all hours worked, including hours worked over 40. Accordingly, only the additional half-time overtime rate is owed for hours worked over 40. Flex-pay gets its name(s) because, when an employee is paid on a salary basis, the regular rate will fluctuate based on the number of hours worked. Notably, the more hours an employee works, the lower the regular rate (and the overtime rate) will go. Consider the following examples:

Individual Liability for Violations of the Minimum Wage and Overtime Laws

June 18, 2012 | Parks, Chesin & Walbert

Business owners are well-advised to organize their businesses using one of the legal forms that provides for limited liability protection. These forms include the Limited Liability Company (“LLC”) , the Limited Liability Partnership (“LLP”), and the Corporation. The advantage of incorporating a business in this manner is that the owners and officers will generally be protected from liability if the business is sued. For example, if a customer slips and falls in the premises of a business set up as a LLC, then, in most cases, the owner will not be responsible for having to pay a judgment out of personal funds.

Mays & Kerr Wins Appeal at 11th Circuit

June 13, 2012 | Parks, Chesin & Walbert

On Tuesday, June 5, 2012, Parks, Chesin & Walbert scored a decisive victory for Seven Oaks Academy of Lilburn, Georgia, successfully defending the small daycare against a former employee’s appeal of the District Court’s Order dismissing her lawsuit. The plaintiff’s claims, which grew out of allegations of religious discrimination, included religious harassment, hostile work environment, civil conspiracy, and negligent hiring and retention, and sought the statutory maximums in compensatory and punitive damages.

Salaried employees don’t get overtime, right?

June 12, 2012 | Parks, Chesin & Walbert

It is a common misconception among employers that simply paying a salary avoids the burden of paying overtime wages. Failing to properly classify salaried employees can have devastating consequences, including liability for unpaid overtime wages for highly compensated employees who routinely work well over 40 hours per week.

Guide to Exemptions Under the FLSA

January 4, 2012 | Parks, Chesin & Walbert

The Fair Labor Standards Act (“FLSA”) is one of the key protections for American workers. It sets a price‑floor by means of the minimum wage, and it reduces the hours that Americans are required to work by requiring overtime pay for hours above forty per week. However, when the law was drafted in the 1930s, Congress realized that certain jobs either required extremely long hours or were traditionally compensated in unique ways. For example, sailors generally are on-call or working 24 hours a day when they are at sea, and Congress decided that requiring overtime pay for these employees would threaten an important part of the American economy. For different reasons, Congress exempted “outside” salespeople from the FLSA because such employees spend a lot of time travelling and they are generally paid on a commission basis. According to Congress, it didn’t make sense to require that these employees be paid overtime. Alongside these examples, the drafters of the FLSA included various other exemptions that made sense from an economic standpoint.

“Employees” and “Independent Contractors” Under the FLSA

December 24, 2011 | Parks, Chesin & Walbert

The FLSA is a broadly remedial statute that was designed with the dual goals of raising wages for the economically vulnerable while at the same time increasing employment. To accomplish these goals, the FLSA renders illegal any employment contract involving wages that are lower than the minimum wage or for wages that do not include overtime payments for hours worked above forty per week. As a result, some employers are tempted to work around the FLSA by maintaining that their workers are actually “independent contractors.” While it is true that the FLSA does not apply to bona fide independent contractors, most employers who attempt the “independent contractor” strategy do so at their own peril. This is so because the concept of “employment” under the FLSA is astonishingly broad, and a worker could be an “employee” under the FLSA who would be considered an “independent contractor” under the common law or other federal statutes.

Damage Control

October 11, 2011 | Parks, Chesin & Walbert

When employees initiate lawsuits after separating from employment, they must typically meet certain burdens if they seek money damages, including a demonstration that they mitigated, or limited, their damages by pursuing a diligent job search. While this “duty to mitigate” damages is used routinely to limit back pay awards in discrimination cases, the defense seems to have a slightly different character in FLSA cases. In fact, courts appear to be divided as to what it actually means in FLSA litigation (and whether it applies at all). Some FLSA claims arise in cases of retaliatory termination for engaging in protected activities like demanding unpaid wages. This is analogous to both discriminatory discharge and retaliation for engaging in activities protected by discrimination laws. However, FLSA cases also present when employees have lost earnings but remain employed, and this scenario complicates the arguments for a reduction of back pay awards in FLSA suits under the theory of the plaintiff’s duty to mitigate.

Defamation and Slander

May 19, 2011 | Parks, Chesin & Walbert

Once terminated, former employees are often surprised to hear the employer’s reasons for termination. In many cases, former employees feel that the reason given for termination is unfair, deceptive, or simply a lie. To make things worse, employers don’t always provide a clear reason at the time of the firing. Sometimes the employee hears the reason for the first time when applying for unemployment benefits. Sometimes they may not hear the reason until they apply for a new job and the prospective employer checks their references. However, this does not mean that the reason given is defamation or slander.

Workers’ Compensation

May 3, 2011 | Parks, Chesin & Walbert

For those interested in Workers’ Compensation, check out atlantaworkerscompblog.com. Attorney Seth Bader has put together a blog for everyone from claimants to their attorneys, and I’m sure defense counsel could learn something too. Among other useful resources, the blog has a comprehensive list of forms published by the State Board of Workers’ Compensation, as well as some interesting posts answering common questions and recent news. The Bader Law Firm also provides exceptional representation, so tell your friends.