and all the BS fit to read!

Employment Contract Basics (Part 2 of 2)

Employment Contract Basics (Part 2 of 2)

Jul 24, 2014

Pros and Cons of the “At-Will” Contract by Jonathan Sparks, Esq. A Little History on Employment Contracts In employment law, you can break down contracts into two very broad categories: traditional contracts and at-will contracts. With traditional contracts, employees could not be fired without a legitimate reason, such as the failure to fulfill their job requirements or damaging the businesses’ reputation by mistreating customers. If an employee were fired for one of these reasons, he or she would be able to bring a lawsuit against the business, and argue that he or she actually did fulfill their duties and / or didn’t damage the company’s reputation when he threw his triple mocha latte at the TV during last year’s superbowl (totally excusable behavior, in my opinion). With a traditional contract, a lawsuit would ensue (very expensive) and a court would decide who was in the right. Similarly, if an employee decided to quit without any reason, the business was allowed to sue them for lost revenue or business that occurred because of the employee’s leaving. Of course, if such a lawsuit was brought against the employee, the employee could defend (again, very expensive) the lawsuit, arguing that their departure from the company did not cause any economic loss. Georgia is an “At-Will” State At-will employment contracts do a great job of removing the litigation expenses from the equation, by allowing an employee to either quit for no reason, or be fired by their employer for no reason (there are still some federally protected reasons a person can’t be fired for, more on this below). For more information on Georgia employment laws, go to the Georgia Department of Labor’s website, available here. The Few Limitations on At-Will Employment Contracts Ever since the mid 1950s, there has been a short list of federally protected rights for employees. Because the federal government protects these rights, individuals can’t be fired for these particular reasons in any American state. If this is the reason the employee is being fired, or even if it appears that this is the reason, then the fired employee will have a strong case against the business for “wrongful termination.” The list, basically, includes termination based on: sex, race, age, religion,...

Employment Contract Basics (Part 1 of 2)

Employment Contract Basics (Part 1 of 2)

Jul 22, 2014

6 Essential Clauses for Employment Contracts by Jonathan Sparks, Esq. Choosing to not hire an attorney to review your employment contracts or hiring policies might seem like a no-brainer, but saving a little money on the front end may cost you. Having the wrong policies, or missing even a single clause in your employment agreement, can cost tens of thousands in litigation fees alone, not to mention settlements that aggrieved employees can get. Compensation This needs to be explicitly defined in every employment contract. Make sure that the hourly rate or salary is clearly specified as well as the payment schedule. If your employees are compensated through commissions of any sort, the percentages must be easy to understand and well defined. Many small businesses that honestly forget to specify these terms have lost cases due to making “late” payments to their employees, when the date of the paychecks doesn’t match up to earlier payment schedules—read: when they got around to it. IC or Employee? This is an important question that must be dealt with in the employment contract. Are they an Independent Contractor (IC) or an Employee of the company? The two employment types have very different regulatory requirements from both the federal and state governments, not the least of which is knowing how much you need to be paying into worker’s comp and unemployment. Benefits? While these are usually subject to change (and you should have a clause to that effect), it is important that benefits are discussed in the contract. You don’t want to end up in a situation where the employee claims that you promised additional benefits that you did not. And if there’s a chance that you will switch healthcare companies—and therefore, coverage—make sure to include this in the agreement as well. Employment Contract Length / Term How long is this contract for? There are pros and cons for different time lengths. If the new-hire ends up being a bad employee, a shorter term will make it easier to get rid of them sooner. However, if they’re a strong employee, a shorter term contract might make you have to renegotiate a higher salary to keep the employee after the term...

Choosing a GREAT “Dream Team” for 2012

Choosing a GREAT “Dream Team” for 2012

Feb 22, 2012

Intro Happy New Year! It’s a new year with new opportunities and new challenges. Most importantly, it’s a chance to re-create your awesome professional team of supporters and advisors—-almost like your own personal Board of Directors! I am talking about your “Dream Team”—those individuals who are professionals but also confidants and advisors that will propel your business into the next level of profitability and sustainability. This blog will tell you WHO should be on this “Dream Team” and WHAT you should look for in a “Dream Team” Member as well as HOW you go about filling the slots on this “Dream Team.” Let’s begin. Who and Why? Banker- This should be obvious but this Team Member has access to capital, i.e. money, that can help provide your business with cash flow or an emergency loan if one is needed. Attorney- Again, this should be another obvious Team Member. Nothing can shut down your business faster or eat up more of your profits than a lawsuit or unknown regulation or rule. Make sure you have a business attorney that understands businesses and can respond to your business needs. Of course, Kendrick Law Practice is always at your service (www.kendricklaw.net). Insurance Agent- This may be less obvious than the previous two (2) Team Members but remember that insurance (premises liability, umbrella, health, car, home, life, personal, etc.) is important to make sure in case something unexpectedly happens, your business and you are protected. Accountant- This should be another one of those pretty obvious Team Members. Someone has to count, record and analyze the expected cash flow that you are highly expecting to receive right? Business Consultant- This is someone who knows how to run a business and that can give you not only business theories but timely practical tips for short term tactics and long term strategies to grow your business. Marketing & Branding Expert– No one can sell your business like you but it never hurts to have some extra help to focus your time, money and energies towards productive marketing efforts. What? (should you look for in these Team Members) Look for someone you are comfortable with– Clearly you need Team Members that you feel you can trust and talk to about sometimes...

ARE YOUR INDEPENDENT CONTRACTORS ACTUALLY EMPLOYEES?

ARE YOUR INDEPENDENT CONTRACTORS ACTUALLY EMPLOYEES?

Oct 12, 2011

ARE YOUR INDEPENDENT CONTRACTORS ACTUALLY EMPLOYEES? A.  TWO RECENT DEPARTMENT OF LABOR PRESS RELEASES WHD News Release: [10/04/2011] Contact Name: Rhonda Burke or Scott Allen Phone Number: (312) 353-4807 or x6976 Release Number: 11-1425-CHI Judge rules Ohio-based Cascom employees misclassified as independent contractors, denied overtime pay in suit brought by US Labor Department Court yet to determine amount of wages and damages owed; more than $1.6 million sought DAYTON, Ohio — In a lawsuit filed by the U.S. Department of Labor against Cascom Inc. and president Julia J. Gress alleging wage violations, U.S. District Court Judge Thomas M. Rose has ruled that the Fairfield, Ohio, company violated federal labor laws by misclassifying its employees as independent contractors and, consequently, not compensating them for overtime work, as required under the Fair Labor Standards Act. Cascom, which provided residential cable television, Internet and telephone installation services for Time Warner in the Dayton area, will be subject to further proceedings to determine the amount of overtime back wages owed to approximately 250 installers. The Labor Department filed its suit two years ago seeking to recover back wages in excess of $800,000 with an equal amount in liquidated damages, based on the findings of an investigation conducted by the Columbus District Office of the department’s Wage and Hour Division. The hearing on damages has been set for Nov. 22. “The misclassification of employees as independent contractors is an alarming trend. The practice is a serious threat to both workers, who are entitled to good and safe jobs, and to employers who obey the law and are undercut when others use illegal practices,” said Secretary of Labor Hilda L. Solis. “The Department of Labor is committed to remedying employee misclassification and ensuring compliance to protect and enhance the welfare of the nation’s workforce.” News Release WHD News Release: [09/19/2011] Contact Name: Laura McGinnis or Sonia Melendez Phone Number: (202) 693-4653 or x4672 Release Number: 11-1373-NAT Labor secretary, IRS commissioner sign memorandum of understanding to improve agencies’ coordination on employee misclassification compliance and education 11 state agency leaders also sign, agree to memorandums of understanding WASHINGTON — Secretary of Labor Hilda L. Solis today hosted a ceremony at U.S. Department...

Atlanta Musician Steven Marchi Missing for 15 Days!

Atlanta Musician Steven Marchi Missing for 15 Days!

Aug 29, 2011

Written by Duffie Dixon of 11 Alive Friends of a missing local musician are asking for the public’s help in locating him. 43-year-old Steven Marchi was last seen the night of August 12, 2011. His roomate Jeffrey Powell said Marchi left the apartment in in his green Dodge pickup that has a camper top and an Illinois license plate. Powell assumed he’d see Marchi in a few hours, but he and others have not seen or heard from Marchi since. “I didn’t think too much of it at first. I mean he’s a grown man and I thought he may have just been staying with a friend, but then I realized he left without his phone or his guitar,” said Powell. Other friends confirm Marchi is an avid musician and goes everywhere with his guitar and sheet music. Kelley Hagen said that’s what has her convinced something bad has happened to Marchi. “Anyone who knows him knows he is not without his guitar for more than a few hours. He’s also not someone who would leave a roomate without paying the rent or explaining if he was headed out of town,” said Hagen. In fact, Powell said Marchi is always prompt with his weekly rent. Powell is also convinced Marchi planned to be around for the coming week based on what he found in the refrigerator. Marchi, a strict vegan, had just purchased and cut up various produce and put it in containers for a week’s worth of meals. “There’s no way he would buy all of that, take all that time preparing it if he was headed out of town,” said Powell. Marchi has performed at a number of venues around Atlanta including Smith’s Old Bar, Eddie’s Attic and the Red Light Cafe. He was saving up money to pay for the release of a CD. Between gigs Marchi worked as a masseur, so friends worry he may have gone to a client’s house and something bad happened to him. “I just know he would have contacted one of us, any of us, by now,” said Hagen. Police have assigned a case number in the search for Steven Marchi. Friends say the only...

Non-Compete Agreements Under Georgia Law

Non-Compete Agreements Under Georgia Law

Jul 20, 2011

Gary Whitaker of Whitaker Business Law In May of 2011, HB 30 was signed into law. This law implements recent changes to the Georgia Constitution ratified by the Georgia voters on November 2, 2010.  For many years Georgia had been viewed as being one of the US states with the most legal hurdles to enforcing non-compete agreements, especially non-compete agreements against prior employees. A failure to specify reasonable geographic or duration restrictions, or the scope of prohibited activities, among other deficiencies, would completely void a non-compete, and courts were not permitted to modify the restraints to make them reasonable. As a result, relatively minor issues could completely void a non-compete, allowing, for example, a former officer of a company to start up a competing business across the street.  While Georgia and federal law prohibited (and still prohibits) a former employee from using confidential information, such as confidential customer lists, in his or her new position, in the absence of evidence that the identity of the customers was confidential information, or that such customers were solicited by the former employee, a company could not get legal assurances that a former key employee could be prohibited from opening a competing business immediately upon termination of employment. The Georgia constitutional amendment, and the implementing legislation, attempted to bring Georgia back into the legal mainstream in this area, but it still retained many protections for employees.  Critical distinctions are made as to (1) the type of employee who may be made subject to post employment restrictions and (2) the nature of those restrictions, whether pertaining to confidential information, solicitation of employees or creating a competing business. The major features of this new law are the provisions concerning post employment solicitation of employees and competing with the prior employer.  In either case, the employer seeking to enforce the restriction must prove a legitimate business reason justifying it. An employee may be prohibited for two year s following termination of employment (the law does not distinguish between terminations for differing reasons), from soliciting the employer’s customers or actively sought prospective customers, with whom the employee had material contact during the term of his or her employment, without regard to any geographic...