Are you prepared for a potential lawsuit or government investigation involving your employment practices? Most employers know they have significant risk in this area, but do not know how to limit their legal exposure. To properly assess and improve its risk profile, and potentially avoid a legal dispute altogether, an employer should work with legal counsel to focus on the following key areas:
Policies: Assess and revise where necessary the Employee Handbook and other employment-related policies to ensure optimal protection and to avoid facial violations and other evidence of non-compliance.
Placement: Examine practices for recruiting, selecting, onboarding, and promoting employees to avoid potential claims of discrimination and ensure compliance with government regulations (EEOC, OFCCP, NLRB, ICE, and other agencies).
Pay: Ensure that compensation practices are sound and compliant with FLSA/DOL requirements (including classification of workers as exempt employees or independent contractors) and anti-discrimination laws.
Performance: Focus on effective methods for fair and consistent evaluation of performance and correction of disruptive workplace behavior, including best practices for investigation and documentation.
Accommodation: Educate and prepare managers to handle requests for job modifications or leaves of absence due to disabilities or serious health conditions under the ADA or FMLA.
Addressing Concerns: Establish and maintain channels for responding to internal complaints or reports of perceived harassment or other misconduct, including best practices for investigation, documentation, and avoidance of potential claims of retaliation under Title VII, ADA, ADEA, and other applicable laws.
Asset Protection: Consider the use of restrictive covenants, information security, and other means of protecting trade secrets and confidential information, important relationships, and other investments, particularly in light of new Georgia law.
These are just a few of the steps our attorneys can take to help you assess and improve your employment risk profile. If you might have needs in any of these areas, please do not hesitate to call for a “P4A3 Assessment.Read More
The Eleventh Circuit Court of Appeals recently held that an employer is not absolved from liability for unreported overtime under the Fair Labor Standards Act (FLSA) if it has actual or constructive knowledge that time records are inaccurate. The ruling in Bailey v. TitleMax of Georgia (No. 14-11747) reversed a lower court’s decision accepting the defense that an employee could not recover overtime pay because he underreported his own work hours.
In the TitleMax case, there was evidence that the employee’s supervisor encouraged the underreporting of hours to avoid paying overtime and occasionally edited time records after they had been entered. The Court of Appeals found that this showed the employer had either actual or constructive knowledge of the underreporting of work hours. According to the court, “[i]f an employer knew or had reason to know that its employee underreported his hours, it cannot escape FLSA liability by asserting equitable defenses based on that underreporting.”
The TitleMax case highlights the importance of maintaining accurate time records, ensuring that supervisors and managers are trained on FLSA requirements, and requiring non-exempt employees to accurately report all working time. This is one of the many areas in which our firm can provide guidance to reduce employers’ legal risk.Read More
We recently resolved a restrictive covenant dispute in favor of our client after obtaining a preliminary injunction to enforce the covenant. After an employee announced her resignation to work for a competitor, we obtained a preliminary injunction against the employee in the U.S. District Court for the Southern District of Florida, precluding her continued employment. The employee appealed to the Eleventh Circuit. After the issues were fully briefed, and after being sidelined for seven months, the employee and the competitor agreed to various restrictions and a substantial payment to our client.Read More
The U.S. Court of Appeals for the Eleventh Circuit recently affirmed the grant of summary judgment and dismissal of claims against our client for alleged retaliation under 42 U.S.C. § 1981. In a case filed in U.S. District Court for the Northern District of Georgia, a former employee claimed he had been terminated in retaliation for making allegations of race discrimination against the same manager in a prior job for another employer. In its order dated December 8, 2014, the Eleventh Circuit held that the plaintiff failed to show that our client’s legitimate, non-discriminatory reason for the discharge was untrue or a pretext for retaliation.Read More