Dick & Jane, Back to the Job Offer….

Justin cropped Super LawyerBy Justin O’Dell

In June, we left Dick and Jane with Dick contemplating a career change and the effects of a covenant not to compete.  The analysis of that situation was put on hold to discuss the landmark decisions of the United States Supreme Court related to same sex marriage.

Recall that Dick was being presented with a job opportunity.  The opportunity calls for Dick to take a position with a new company.  Dick would be offered a good compensation package and ownership interest in the enterprise.  The potential is well-worth considering.

However, Dick has an employment contract signed in 2005.  In June 2011, he was told to sign a new version of the contract.  Although his employment is labeled “at-will”, Dick has a clause labeled “COVENANT NOT TO COMPETE; NON-SOLICITATION.”  The paragraphs, in summary, prohibit Dick from:

–         Accepting any position with another engineering firm anywhere in the State of Georgia for a period of 2 years following his separation from his current employment; and

–         Soliciting any customer of his current employer with whom Dick has had contact in the 2 years prior to his separation from his current employment.

There is no doubt that the offer presented would be competitive.  As discussed previously, under Georgia law prior to 2010, the agreement would either be upheld or would be thrown out entirely.  Since 2011, the agreement could now be “blue-penciled” or edited down from unreasonable to more reasonable terms.

A covenant not to compete must be reasonable as to duration, scope and geography.  Under prior case law, a period of two years or less (as above) would likely be held permissible.  The new statutory scheme (much harder on the employee) provides that the agreement may be equal to the length of time of the duration of the parties business relationship.  Similarly, under prior case law, any agreement which was broader in geographic area than the territory worked by the employee would be unreasonable.  Under the new statutory scheme, no geographic limitation is required.  In fact, the agreement can include any location in which the company does business (whether or not the employee actually worked there) and the agreement contains a list of particular employers for whom the employee cannot take a position.  Finally, the old case law provided that the scope of the restriction should be limited to the business of the employee whereas the new statutory scheme allows restriction measured by the business of the employer.

Most importantly, the new statutory scheme contains a significant “savings” clause that provides that an agreement which contains nothing related to a limitation on duration, scope or geography can still be enforced as long as it “promotes or protects the purpose or subject matter of the agreement or relationship or deters any potential conflict of interest.”  Further, the only remedy for an unreasonable agreement is that the Court would edit the agreement down to something reasonable.

For the foregoing reasons, Dick would be able to take the opportunity under the old case law based analysis, but probably could not take the position under the new statutory scheme.  More importantly, he is not just stuck with missing this opportunity, he is most likely prohibited from accepting a position with another engineering firm in any capacity or role (whether as a project manager or not) since the scope the agreement is based on his employer’s services and not his actual job.

As a general rule, the effects of the revised Georgia law should have a severely depressing effect on job mobility and transferability.  The new laws should be very friendly toward large and mid-sized corporations wishing to lock up employees ranging from corporate officers down to mid-level managers and salesmen.

Marietta to the Berlin Wall

Abbey 360 Berlin Abbey with bear BerlinO’Dell & O’Neal Attorneys’ summer law intern, Abbey Warren, is currently studying abroad in Berlin and we have asked her to send us updates on her travels through Europe. As we continue serving clients and the community here in Marietta, it is our pleasure to share Abbey’s greetings from the Berlin Wall! Read and enjoy!

from Abbey Warren…

So, I have been in Berlin a week so far! I greatly miss my O’Dell & O’Neal family – especially the air conditioning and even needing to wear a sweater! Berlin has had record highs since we have been here; since it is normally so cold they do not have air conditioning in most buildings. Thankfully, our hostel does have A/C but the school where we have class from 9:30-3:30 does not!

The plane ride over was a bumpy one and I definitely felt motion sickness but finally made it here in one piece! The people in Germany are very friendly but direct – to the point they seem confused when I use my Southern manners to ask them how there day is going! It is a very interesting European city because unlike most of the other cities in Europe, 80% of the original city has been destroyed. So far, one of the best parts has been visiting remains of the Berlin Wall. It is incomprehensible to think of someone building a wall right through Atlanta! How lucky we are to have not experienced some of the turmoil this city has.

My classes have been interesting and I have been able to negotiate with people from 4 different countries so far (Denmark, Belgium, Australia, and Spain). It was tremendously intriguing to see how different cultures color the way we go about negotiating and conceding to the other party!

 

 

 

Dick & Jane, Jack & Bill

Justin cropped Super LawyerEffects of the Supreme Court Ruling on the Defense of Marriage Act (DOMA) and Proposition 8

By Justin O’Dell

Last month, we left Dick and Jane with Dick contemplating a career change and the effects of a covenant not to compete.  This month, the Supreme Court of the United States (SCOTUS) sent a ripple through the nation and has caused Dick to put his plans on hold for another month.  We will come back in August and look at the covenant not to compete issue.  For this month, a discussion of the landmark decision by SCOTUS presents a litany of issues.

In order to give the effects of the ruling practical understanding, let’s create a brother for Jane named Jack.  Jack is in a committed relationship with Bill.  Jack and Bill lived in Vermont and were lawfully married after Vermont began to allow for same-sex marriage.  However, Jack and Bill now live here in Georgia.  The Attorney General of Georgia has stated that the Georgia Constitutional ban on same-sex marriage, passed in 2004, remains valid and in effect.  That amendment states:

(a) This state shall recognize as marriage only the union of man and woman. Marriages between persons of the same sex are prohibited in this state.

(b) No union between persons of the same sex shall be recognized by this state as entitled to the benefits of marriage. This state shall not give effect to any public act, record, or judicial proceeding of any other state or jurisdiction respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other state or jurisdiction. The courts of this state shall have no jurisdiction to grant a divorce or separate maintenance with respect to any such relationship or otherwise to consider or rule on any of the parties’ respective rights arising as a result of or in connection with such relationship.

Last month, SCOTUS held that the Federal Defense of Marriage Act (DOMA) was unconstitutional and found a lack of standing on the part of the Appellants related to California Proposition 8.  Pages could be spent explaining and analyzing each ruling, but rather than reinvent the wheel, please read and consider this link for an excellent plain English explanation:  http://www.scotusblog.com/?p=166124.

So after the ruling in US v. Windsor, the following questions are immediately concerning to Jack and Bill.

(1)   Can Jack now carry Bill on his health insurance?

(2)  Can Jack and Bill file a joint tax return?

(3)  Can Jack and Bill get divorced in Georgia?

(4)  Are Jack and Bill treated as married if one of them dies?

(5)  Can Jack and Bill make spousal decisions associated with health care, banking, etc…?

Should SCOTUS eventually hold that individuals have a fundamental right to marriage and equal protection of marriages, that ruling would immediately apply to all States and render invalid any ban on same-sex marriage.  With that issue still up in the air, the overriding issue at the moment is the interplay between the rights of each State to enact its own laws and the Full Faith and Credit Clause of the U.S. Constitution.

The Full Faith and Credit Clause of the Constitution, found in Article IV, Section 1 provides that “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.”

The Clause is not unlimited and has been held that it does not require a state to uphold or enforce the laws of other states which are in direct contravention to the laws and policies of that state.  Pacific Employers Ins. Co. v. Industrial Accident Comm’n, 306 U.S. 493, 502 (1939).  This exception would seem to apply in the instance of marriage.  In fact, the Clause was never held to require states wherein interracial marriage was banned to recognize interracial marriages of other states.

But not so fast…. marriages wherein the parties are first cousins (legal in some states, illegal in others) are not deemed invalid simply by moving across state lines based on the Full Faith and Credit Clause.  Similarly, common-law marriages which are no longer recognized in Georgia (after January 1, 1997) are valid and recognized in Georgia if properly created in a sister state.  Precedent would seem to be shifting in favor of mandating the recognition of lawful marriages of another state.

The Federal Circuit Courts have already split on this issue.  In Finstuen v. Crutcher, the 10th Circuit Court found that Oklahoma must recognize a same-sex marriage in the context of an adoption birth certificate.  In Adar v. Smith, the 5th Circuit ruled just the opposite.

So what to do with Jack and Bill?  In the short term, Jack and Bill would be well advised to act as if their union will not be recognized in Georgia.  They should utilize powers of attorney and other estate planning techniques to make sure that their estates and legal matters receive the maximum possible recognition currently available under Georgia law.

Survey Says…

CheatingWifeMore Women Are Breadwinners and Cheaters

According to a recent survey by the National Opinion Research Center, women are earning higher wages and more of them are admitting to cheating on their husbands. The social survey indicates that greater financial security among women lessens their concern over having their husbands leave them when they cheat. For more detail on the survey, read this AJC.com article:

http://www.ajc.com/weblogs/biz-beat/2013/jul/03/study-higher-pay-more-wives-cheating/

 

Pandora’s Inbox

Jbo-ldo croppedMonitoring Employees’ E-mails

Part 3 of 3

By Justin O’Dell & Leslie O’Neal

For the 3rd part of our series on communicating with represented parties, we venture into the issue of employers, employees and e-mail. Many companies have policies in their employee handbooks regarding the use of e-mail in the office but how many are actually monitoring that activity? Are employees being told in advance what level of privacy they can expect when they send and receive e-mails at work? Should employers extend their internet usage policies to include e-mail communication? The Daily Report article by Shannon Green, “To read or not to read, what is expected?”, provides some excellent information on these very topics so we direct you to that article in it’s entirety:

http://www.dailyreportonline.com/PubArticleDRO.jsp?id=1202592309853&To_read_or_not_to_read_what_is_expected