It’s Not A Good Idea To Admit To Discrimination in a Text Message

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By Kathleen J. Jennings (kjj@wimlaw.com)

Sometimes, I just have to shake my head when I read about an employment decision gone horribly wrong. And this one is really a head shaker: according to a lawsuit just filed by the EEOC, a manager at a Franklinton, Louisiana, restaurant fired a newly-hired worker after sending her a social media message saying, “I’m not gonna be able to hire you. I didn’t realize that you were expecting a baby.” When the worker reapplied for work several months later, the restaurant wrote “pregnant” on her application and did not rehire her.

Now, this is just the EEOC’s side of the story, so the restaurant may have an entirely different version of the facts. But I find it unlikely that the EEOC is going to fabricate the existence of a social media message wherein the manager admits that he is discriminating on the basis of pregnancy, which is a violation of Title VII of the Civil Rights Act.

Here’s the thing: it is unlawful for an employer to fire an employee simply because she is pregnant. Furthermore, an employer cannot make assumptions about what a pregnant worker can or cannot do.

And please–do not fire (or unhire) employees via social media messages or text messages. Just don’t. It is not professional, and the shorthand often utilized in those media can confuse your message. Any time you put something in writing regarding an important employment decision, such as hiring, firing, promotion, or discipline, expect that it will be shown to an attorney, maybe the EEOC, or ultimately, a jury. How will your message look to someone who doesn’t know you or your business?

Having an attorney review these types of communications in advance will save the company money in the long run. Let’s face it: if the restaurant manager above had let the company’s attorney review his social media message to the pregnant worker before he sent it, I like to think that there is a high probability that the message would have said something completely different, and maybe the EEOC wouldn’t be suing the company. So asking an attorney to review these communications in advance can be money well spent.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Think Before You Require Your Employees to Sign Non-compete Agreements

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By Kathleen J. Jennings (kjj@wimlaw.com)

Today, the President issued an Executive Order broadly tackling the issue of competition in the marketplace. One of the particular issues that the FTC has been tasked with is to restrict the use of non-competition agreements that have become common in certain industries and limit worker mobility. In addition, several states have enacted laws that restrict the use of non-competition agreements, especially for lower level employees. Nevertheless, there may be situations in which it is prudent for an employer to require some employees to sign non-competition agreements. As a practical proposition, such agreements are useful if an employer wants to protect something valuable that could give a competitor an unfair advantage.

Generally, non-competition agreements are governed by state laws. Every state is different, so if you decide to use non-competition agreements, it is best to have them drafted by an attorney who practices in that area. Furthermore, if your company has employees working in different states, you may need to tailor the agreements to meet the requirements of the state in which an employee works. Even the choice of which law to apply to a particular agreement will depend on a state’s law. Complicated? Yes–that’s why an attorney should draft these agreements.

Non-competition agreements are considered restraints on trade, so the chances that one will be enforced by a court can depend on what the agreement is designed to protect. Valid protectable interests include trade secrets, confidential information, confidential customer lists or databases, and even the company’s employees. The greater the measures a company takes to protect certain information from being divulged, the more likely it will be found to be a protectable interest. Conversely, if the information or the names of the company’s main customers can be readily found on the internet, they are not likely to be found to be protectable. If a company makes a big investment in employee training, it may have an interest in preventing those employees from taking that investment over to a competitor. Again, state law will determine what a protectable interest may be.

High level management employees or employees with specialized knowledge are more likely to have access to information about the company that could provide an advantage to a competitor and are the best candidates for these types of agreements. However, the agreements must be narrowly enough drawn so that the employee is still able to make some kind of living while any restrictions are in place.

Pro Tip: The stricter scrutiny being placed on non-competition agreements means that the tactic of making all employees sign these types of agreements simply to scare them from going to work for competitors, even when the employer knows they will not be enforced, may get an employer in legal hot water.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

EEOC Issues Updated Guidance on Avoiding Discrimination Against Transgender Employees

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By Kathleen J. Jennings (kjj@wimlaw.com)

Last week, on the first anniversary of the U.S. Supreme Court’s decision in Bostock v. Clayton County, in which the Court held that Title VII’s prohibition on discrimination on the basis is “sex” encompasses sexual orientation and transgender status, the EEOC issued some updated guidance regarding the treatment of transgender employees in the workplace. “All people, regardless of sexual orientation and gender identity, deserve an opportunity to work in an environment free from harassment or other discrimination,” EEOC Chair Charlotte A. Burrows said.

This new guidance is considered controversial, especially by social conservatives, because of both the substance and the way that it was announced. The substance addresses things such as dress codes, bathrooms, showers, and pronouns. And the guidance was issued without a vote by the five member bipartisan EEOC panel, which currently has a 3-2 Republican majority, resulting in three very unhappy Commissioners.

Keep in mind that the publication in itself does not have the force and effect of law and is not meant to bind the public in any way. Nevertheless, this guidance tells us the position the EEOC will take in response to EEOC Charges filed by transgender employees. EEOC guidance also can influence court decisions.

What kind of guidance did the EEOC offer to us? Here are some highlights.

Dress codes:

May a covered employer require a transgender employee to dress in accordance with the employee’s sex assigned at birth?

No. Prohibiting a transgender person from dressing or presenting consistent with that person’s gender identity would constitute sex discrimination.

Bathrooms, showers, locker rooms:

Does an employer have the right to have separate, sex-segregated bathrooms, locker rooms, or showers for men and women?

Yes. Courts have long recognized that employers may have separate bathrooms, locker rooms, and showers for men and women, or may choose to have unisex or single-use bathrooms, locker rooms, and showers. The Commission has taken the position that employers may not deny an employee equal access to a bathroom, locker room, or shower that corresponds to the employee’s gender identity. In other words, if an employer has separate bathrooms, locker rooms, or showers for men and women, all men (including transgender men) should be allowed to use the men’s facilities and all women (including transgender women) should be allowed to use the women’s facilities.

Pronouns:

Could use of pronouns or names that are inconsistent with an individual’s gender identity be considered harassment?

Yes, in certain circumstances. Unlawful harassment includes unwelcome conduct that is based on gender identity. To be unlawful, the conduct must be severe or pervasive when considered together with all other unwelcome conduct based on the individual’s sex including gender identity, thereby creating a work environment that a reasonable person would consider intimidating, hostile, or offensive. In its decision in Lusardi v. Dep’t of the Army, the Commission explained that although accidental misuse of a transgender employee’s preferred name and pronouns does not violate Title VII, intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee could contribute to an unlawful hostile work environment.

Basically, the EEOC is telling employers to treat transgender employees in accordance with their gender identity, which is simply a matter of respect. However, employers should anticipate resistance from some employees to these guidelines and deal with it accordingly, or possibly face an EEOC Charge or a lawsuit.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Religious Liberty vs. LBGTQ Rights: Narrow Supreme Court Decision Fails to Resolve Many Questions

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By Kathleen J. Jennings (kjj@wimlaw.com)

One of the most eagerly anticipated decisions coming from the U.S. Supreme Court this term was Fulton v. Philadephia, a case involving a Catholic charity’s challenge to a Philadelphia ordinance that excluded it from part of the city’s foster-care program because the charity would not help place children with same-sex couples. The charity argued that the ordinance violated its First Amendment right to religious freedom, and the U.S. Supreme Court, in a unanimous decision, agreed. However, the Court’s decision focused very narrowly on the ordinance at issue and did not address the bigger question of what happens when religious liberty and anti-bias laws collide. Thus, it is likely that we will see more litigation on these issues.

What does this decision mean for employers? Not a heck of a lot–yet. Last year, the Supreme Court ruled that Title VII prohibits employment discrimination on the basis of sexual orientation and sexual identity. But that case did not answer any questions about the possibility of religious defenses to discrimination against LBGTQ employees and applicants. The ultimate question is this: Is there a Constitutional right to discriminate that would override Title VII in some context? 

Certain employers can invoke the Religious Freedom Restoration Act to defend against discrimination lawsuits brought by the government. Religious organizations, such as churches and religious schools, are permitted to give employment preference to members of their own religion under a Title VII exception. Religious groups are likely to continue pushing the boundaries of religious freedom. Whether that push will infringe upon the hard-won rights of LGBTQ people to be free from discrimination remains to be seen.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

EEOC Updates Guidance on Vaccinations, and Yes, Employers Can Require Employees to Be Vaccinated

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By Kathleen J. Jennings (kjj@wimlaw.com)

Late last week, just before most of us enjoyed a long holiday weekend, the EEOC issued some additional guidance addressing questions arising under the federal equal employment opportunity laws in regard to employees and COVID vaccinations. Considering that the distribution of vaccines started in February, the EEOC is a little late to the party, but better late than never. Employers have had a lot of questions about employees and vaccines, and this latest guidance answers some of them.

The key updates to the EEOC’s previous technical assistance are summarized below:

  • Federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, so long as employers comply with the reasonable accommodation provisions of the ADA and Title VII of the Civil Rights Act of 1964 and other EEO considerations.  Other laws, not in EEOC’s jurisdiction, may place additional restrictions on employers.  From an EEO perspective, employers should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.
  • Federal EEO laws do not prevent or limit employers from offering incentives to employees to voluntarily provide documentation or other confirmation of vaccination obtained from a third party (not the employer) in the community, such as a pharmacy, personal health care provider, or public clinic. If employers choose to obtain vaccination information from their employees, employers must keep vaccination information confidential pursuant to the ADA.
  • Employers that are administering vaccines to their employees may offer incentives for employees to be vaccinated, as long as the incentives are not coercive. Because vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information. [However, employers may not offer incentives to employees for their family members to be vaccinated, nor can they penalize them if their family members refuse to get vaccinated, as this may violate GINA. ]

It seems that more employers have chosen to offer incentives to employees in exchange for vaccination or proof of vaccination rather than require vaccination, so this new guidance is welcome insofar as it gives the EEOC’s blessing to incentives for vaccines.

Pro Tip: Employers must keep all information regarding employee vaccinations confidential. Indeed, the best practice is to place this information in secure confidential employee medical files, which must be maintained separately from employee personnel files.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Let’s Talk About HIPAA

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By Kathleen J. Jennings (kjj@wimlaw.com)

A lot of people talk about HIPAA, but how many of them have actually read the law? Not very many, from what I have seen and heard people say about HIPAA. Let’s set the record straight.

HIPAA rules do not apply to all communications that may involve health information. As we pointed out in an earlier blog post, that means that an inquiry about your vaccination status will probably not violate HIPAA.

Entities that must follow the HIPAA regulations are called “covered entities.”

Covered entities include:

  • Health Plans, including health insurance companies, HMOs, company health plans, and certain government programs that pay for health care, such as Medicare and Medicaid.
  • Most Health Care Providers—those that conduct certain business electronically, such as electronically billing your health insurance—including most doctors, clinics, hospitals, psychologists, chiropractors, nursing homes, pharmacies, and dentists.
  • Health Care Clearinghouses—entities that process nonstandard health information they receive from another entity into a standard (i.e., standard electronic format or data content), or vice versa.

In addition, “business associates” of covered entities must follow parts of the HIPAA regulations.

Often, contractors, subcontractors, and other outside persons and companies that are not employees of a covered entity will need to have access to your health information when providing services to the covered entity. These entities are called “business associates.” Examples of business associates include:

  • Companies that help your doctors get paid for providing health care, including billing companies and companies that process your health care claims
  • Companies that help administer health plans
  • People like outside lawyers, accountants, and IT specialists
  • Companies that store or destroy medical records

Covered entities must have contracts in place with their business associates, ensuring that they use and disclose your health information properly and safeguard it appropriately. Business associates must also have similar contracts with subcontractors. Business associates (including subcontractors) must follow the use and disclosure provisions of their contracts and the Privacy Rule, and the safeguard requirements of the Security Rule.

If you do business with a covered entity and are presented with a Business Associate Agreement–read it! Some of them can be quite broad and contain language that goes beyond the requirements of HIPAA.

Who Is Not Required to Follow These Laws

Many organizations that have health information about indivuduals do not have to follow these laws.

Examples of organizations that do not have to follow the Privacy and Security Rules include:

  • Life insurers
  • Employers
  • Workers compensation carriers
  • Most schools and school districts
  • Many state agencies like child protective service agencies
  • Most law enforcement agencies
  • Many municipal offices

What Information Is Protected 

  • Information your doctors, nurses, and other health care providers put in your medical record
  • Conversations your doctor has about your care or treatment with nurses and others
  • Information about you in your health insurer’s computer system
  • Billing information about you at your clinic
  • Most other health information about you held by those who must follow these laws

How This Information Is Protected

  • Covered entities must put in place safeguards to protect your health information and ensure they do not use or disclose your health information improperly.
  • Covered entities must reasonably limit uses and disclosures to the minimum necessary to accomplish their intended purpose.
  • Covered entities must have procedures in place to limit who can view and access your health information as well as implement training programs for employees about how to protect your health information.
  • Business associates also must put in place safeguards to protect your health information and ensure they do not use or disclose your health information improperly.

This may be more than you wanted to know about HIPAA. But if you want to dig even deeper into HIPAA, you can visit www.hhs.gov.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Merry Christmas!

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By Kathleen Jennings (kjj@wimlaw.com)

Cover Your Assets wishes everyone a safe and festive Christmas!

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

The Costs of Not Taking COVID-19 Seriously

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By Kathleen J. Jennings (kjj@wimlaw.com)

By all accounts, the number of COVID-19 infections (and deaths) are on the rise and are likely to increase even more after Thanksgiving. At the same time, there is a great political divide as to how seriously folks take the virus. Politics aside, what are some of the potential costs to your business if you fail to take COVID-19 seriously?

As an initial matter, when I talk about taking COVID-19 seriously, I mean that your business is following CDC guidelines, which provides strategies and recommendations for employers responding to COVID-19, which include disinfecting, hand washing, social distancing and the wearing of masks. Employers should also be familiar with OSHA guidance, which focuses on jobs classified as having low, medium, high, and very high exposure risks, and provides specific recommendations for employers and workers within specific risk categories.

So what are some of the potential business consequences of failing to take COVID-19 seriously?

Worker Absenteeism. If workers are not protected from exposure to the virus, they are more likely to get sick, and if they get sick, they cannot come to work. Worst case scenario–one sick worker infects a number of co-workers because no one is taking precautions in the workplace to avoid the spread of the virus, and now you have a number of employees who cannot come to work. Or an exposed worker then exposes his/her family, and they must stay home to care for a sick child. Or maybe a worker is afraid to come to work because they are immunocompromised or live with someone who is immunocompromised. How will you run your business if you don’t have enough people coming to work?

OSHA inspection. If any of your employees believes that you are not taking the necessary precautions to protect them from exposure to COVID-19, they can call OSHA and make a complaint against your business. A federal OSHA inspector may show up at your business to conduct an inspection. They will want to see evidence of your compliance with the OSHA laws, regulations, and guidance. Oh, and during the inspection, if they see something that is unsafe, even though completely unrelated to the initial complaint, they can cite you for it. If you can’t show compliance, you may receive a citation and fine. [And remember: you cannot, and should not, retaliate against any employee for making a complaint to OSHA.]

Employee turnover. Once the pandemic is over, your employees are going to remember how they were treated during the pandemic. Did you listen to their concerns? Or were you dismissive of them? When the economy stabilizes and the job market opens up, the employees who felt like the company did not care about their safety are going to look around for other opportunities. And what do you think those departing employees going to say about your business on job hunting sites?

Union organizing. Less likely, but still within the realm of possibilities. When employees feel like management is not listening to them, or does not care about their safety, they may reach out to a third party, such as a union, to act on their behalf. Do you really want union organizers sniffing around your employees?

Lawsuits. The least of your concerns, actually. While it is extremely difficult to pinpoint where a person was exposed to COVID-19, that is not going to stop enterprising lawyers from filing lawsuits against businesses to see if they can scare up a quick settlement Some states, such as Georgia, have enacted statutes that provide immunity from liability for COVID-19 exposure, which makes it even less likely that a lawsuit will be successful.

Adverse publicity. If your business is open to the public, you can count on members of the public to post something on social media about your compliance (or lack thereof) with COVID precautions or local orders. With photos. Do you want to be that business?

Look, we are all tired of COVID-19. Heck, I’m tired of writing about it. But until there is a reliable vaccine, it’s not going away, so we all need to do what we can to minimize the spread.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Jurors Say the Darnedest Things

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By Kathleen J. Jennings (kjj@wimlaw.com)

During a trial, lawyers can be so focused on the law and facts of a case that they may not recognize that jurors may be focused on different things entirely. A federal case out of Connecticut makes this point quite nicely. (SEC v. Westport Capital Markets, LLC, No. 3:17-cv-02064 (JAM)(D.C. Conn., 10/26/20). It is not a labor or employment case, but the conduct of a particular juror is so interesting I had to write about it.

The Securities and Exchange Commission (SEC) filed a civil action against Westport Capital Markets, LLC, and its owner and chief executive officer, Christopher E. McClure, for failing to comply with their disclosure obligations under the Investment Advisers Act. The district court granted summary judgment in favor of the SEC on three of its claims, and the jury at trial ruled for the SEC on the two remaining claims.

After the trial, one of the jurors wrote a glowing letter to one of the SEC’s attorney’s congratulating him on the victory and complimenting the presentation of his case at trial. In that letter, the juror also wrote this about the wife of defendant McClure:

Here’s an aside you might find interesting. During our deliberations we spoke of many things and McClure’s wife came up. She looked like she should have been at the Country Club playing Bridge. Her appearance came up and one of the jurors (who was a store manager at Macy’s in West Hfrd) asked if anyone noticed her shoes—I did! The manager told us they cost $3000 a pair. Ouch! You might pass that on to defense attorneys you know.

Ouch, indeed! That’s right, the jurors were commenting on the appearance and the three thousand dollar shoes worn by the defendant’s wife. I imagine that they were very nice shoes, but they clearly did not make the jury sympathetic to the defendant’s case. (And the juror’s letter was also not a reason to set aside the verdict, said the court).

This is why I take great care to give instructions to clients and witnesses how to dress at trial. Before one trial in Atlanta federal court, I found myself at a Big and Tall store buying button up shirts and ties for a client’s manager to wear because he did not own any. I have also told a client’s officer to leave her Louboutin shoes at home when she came to court. Appearances matter, especially at trial.

Coincidentally, I have also heard that juries tend to have a higher opinion of attorneys who dress well and look “prosperous,” the theory being that if the attorney is prosperous, she or he must be a good attorney. This may explain why there are always custom suit makers at many bar functions. And it means that maybe I need to find some $3,000 shoes to wear at my next trial….

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Do I Need To Give My Employees Time Off to Vote?

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By Kathleen J. Jennings (kjj@wimlaw.com)

Election Day is one week away, so it is a good time for employers to review the laws governing voting leave in the states where they do business. Chances are that you may be required to give employees some time off to vote.

In Georgia, there is a law that generally requires employers to give employees leave time to vote. O.C.G.A. 21-2-404 provides as follows:

Each employee in this state shall, upon reasonable notice to his or her employer, be permitted by his or her employer to take any necessary time off from his or her employment to vote in any municipal, county, state, or federal political party primary or election for which such employee is qualified and registered to vote on the day on which such primary or election is held; provided, however, that such necessary time off shall not exceed two hours; and provided, further, that, if the hours of work of such employee commence at least two hours after the opening of the polls or end at least two hours prior to the closing of the polls, then the time off for voting as provided for in this Code section shall not be available. The employer may specify the hours during which the employee may absent himself or herself as provided in this Code section.

Translated into regular language from legalese: a Georgia employer must give employees up to 2 hours off to vote, with the following conditions: (1) the employee gives reasonable notice of his/her intention to take the time off to vote, and (2) the employee’s work schedule on Election Day does not begin two or more hours after the polls open or end two or more hours before the polls close.

An employer who violates the statute is guilty of a misdemeanor.

The statute does not specify whether an employer must pay the employee during this voting leave, which means that an employer is not required to pay employees for their voting leave time. If an employer decides to pay employees for voting leave time, it should be consistent in its practice–if you decide to pay one employee for voting leave time, you should pay all employees for voting leave time.

The Georgia statute predates the current early voting periods. A literal reading of the statute would make it applicable only to voting leave on Election Day, and not during the entire voting period. However, there may be a practical reason for an employer to allow employees to use voting leave during the early voting period, especially when long delays in voting are expected on Election Day–it will limit the number of employees who are out of work at one time to vote. In other words, an employer can use an expanded voting leave policy to spread out the number of absent employees during the early voting period rather than have a large number out on Election Day. As always, an employer needs to be consistent in the application of its policy to avoid potential claims of discrimination.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Kathleen J. Jennings

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