Generally, overtime constitutes any time worked over 40 hours in a single workweek. The Fair Labor Standards Act, or FLSA, entitles employees covered by the Act to receive time-and-a-half (1.5x their rate of pay) for overtime work. Employers must adhere to the FLSA standards, ensuring that eligible workers are compensated for overtime. Employees concerned their employer is not properly paying overtime should track their hours to verify they are being paid correctly for overtime worked.

Importance of the Fair Labor Standards Act

The Fair Labor Standards Act (FLSA) sets strict criteria for overtime pay in the U.S., requiring non-exempt employees to receive time-and-a-half for hours worked beyond 40 in a week, with eligibility determined by job duties, salary level, and payment method. Employers must include most forms of compensation in calculating the regular rate of pay for overtime and are obligated to keep accurate records of hours worked and wages paid. This regulatory framework ensures employees are fairly compensated for overtime, mandates transparency of rights through visible postings in workplaces, and enforces compliance through detailed record-keeping. Altogether, the FLSA promotes a fair and equitable work environment.

How to Calculate Overtime Pay?

Hourly Employees

For hourly workers, overtime is straightforward—any hours worked over 40 in a week are paid at one and a half times the regular hourly rate. 

Salaried Employees

For salaried employees eligible for overtime, the calculation involves converting the salary into an equivalent hourly rate and then applying the overtime multiplier for hours worked over 40 in a week. 

Who Is Eligible for Overtime Pay? 

Most hourly workers are eligible for overtime pay, but there are exemptions. It’s important to understand which category you fall into.

Exempt employees

Exempt employees are not eligible for overtime pay. This category generally includes professionals, executives, outside salespeople, and certain administrative roles. Exemption status is determined by specific job duties and salary thresholds.

Nonexempt employees

These employees are eligible for overtime pay. Nonexempt status typically applies to hourly workers, but many salaried workers are also nonexempt, depending on their job duties and salary.

How do Employers Violate Overtime Laws?

Misclassification of employees 

Some employers may incorrectly classify workers as “exempt” from overtime, even when their job duties and salary do not meet the criteria set by the FLSA. This misclassification can deprive employees of the overtime pay they rightfully deserve.

Excluding overtime hours on purpose when calculating pay

In some cases, employers may intentionally fail to include hours worked beyond the standard workweek when calculating pay, effectively denying employees their earned overtime.

Requiring workers to do additional work while not working on the clock

Employers might request or imply that employees finish tasks or participate in work-related activities without clocking in or after clocking out, leading to unpaid overtime hours.

Utilizing round-down time clocks

Some businesses use timekeeping systems that round down employees’ clock-in and clock-out times, which can result in lost overtime pay overtime, especially when minutes add up.

Denying overtime pay based on the employee’s title in the company

An employee’s title does not exempt them from overtime pay if their actual job duties and compensation qualify them for overtime under the FLSA. Employers cannot deny overtime based solely on titles like “manager” or “supervisor.”

Keeping inaccurate records

Employers are required to keep precise records of hours worked for all employees. Inaccurate record-keeping can lead to unpaid overtime and violations of the FLSA.

What Are the Employer Penalties for Not Paying Overtime?

Monetary penalties

Employers found in violation of the FLSA’s overtime provisions may be required to pay back wages owed to employees, along with additional fines and penalties imposed by the Department of Labor.

Lawsuits

Employees can file lawsuits against employers for unpaid overtime. If the court rules in favor of the employees, the employer may be ordered to pay the owed wages, legal fees, and most often additional damages.

Criminal prosecution

In severe cases of willful violation of the FLSA, employers could face criminal charges, leading to further fines and even imprisonment.

Damage to reputation

Violating overtime laws can harm an employer’s reputation, affecting their ability to attract and retain talented workers and potentially leading to customer loss if the public becomes aware of their unfair labor practices.

Case Study: Southeast Connections Overtime Case 

On September 13, 2023, LAW Attorneys Steve Wolfe and Missy Torgerson filed a lawsuit against Southeast Connections, LLC, alleging violations of federal labor laws. The lawsuit centers on the claim that the company failed to pay wages to its employees for hours worked off the clock. This includes drive time from the worksite back to the shop at the end of the day, during lunch breaks, and during pre-shift and post-shift work.

Detailed Allegations

The named plaintiffs in the lawsuit, a foreman and a laborer, allege that they, along with others in similar roles, were not compensated for work performed off the clock. This unpaid work included time spent driving from job sites back to the company’s shop, working through lunch breaks, and engaging in necessary pre-shift and post-shift activities. The lawsuit identifies affected positions that include, but are not limited to, laborers, operators, CDL drivers, pipefitters, and fuse/fitters, and was filed as a putative collective action.

Legal Claims and Objectives

The legal action seeks to recover damages for the past three years, including compensation for unpaid overtime, unpaid minimum wages, and liquidated (double) damages, among other remedies provided under federal law. The firm aims to address the grievances of Southeast Connections’ employees who worked without pay.

Collective Action Complaint

Filed in the United States District Court for the Northern District of Georgia, the lawsuit by plaintiffs Brandon Stallworth and Jahleel Wilson underscores the alleged requirement to work off the clock without pay. The detailed complaint alleges systemic unpaid drive times and additional work at the shop before and after shifts, including missed lunch breaks, as part of the uncompensated labor.

The lawsuit currently requests the court to conditionally certify it as a collective action under the Fair Labor Standards Act (FLSA), which mandates overtime pay at a time-and-a-half rate for work exceeding 40 hours per week for many employees. Conditional certification would enable the court to require the employer to provide information about other potentially affected employees, who would then receive notice of the lawsuit and an opportunity to join in seeking any unpaid overtime wages owed to them.

Significance and Legal Recourse

This case emphasizes the importance of legal intervention in enforcing workers’ rights. By pursuing collective action, the lawsuit aims to hold Southeast Connections, LLC accountable for its alleged failure to comply with federal overtime wage laws, offering a potential path to justice and compensation for affected employees.

If you have been a Southeast Connections employee at any time since September 13, 2020, and you worked off the clock during drive time, before or after your shift, or through lunch breaks, you may be eligible to join this lawsuit.

If you’re interested in learning more about the lawsuit or your legal rights, please call this law firm at (470) 823-4000 to speak to one of the attorneys representing the plaintiffs in this case.

For those who believe they may have been similarly affected, our law firm has opened its doors for consultations, underscoring its commitment to fighting for fair labor practices and ensuring that employees receive the wages they are due under the law.

Final Thoughts: Stay Informed and Empowered

Knowledge is power. Staying informed about your rights regarding overtime pay can help you ensure that you’re being compensated fairly for your hard work. If you’re unsure about your eligibility or believe you’ve been wronged, seeking legal advice can be a valuable step in protecting your rights.

By understanding these key points about overtime pay laws in Georgia, workers can better navigate their employment rights and ensure they are fairly compensated for all the hours they dedicate to their jobs.

If you suspect you’re not being compensated fairly, it’s time to take action. Contact a trusted employment law attorney today to discuss your situation and explore your options.

Remember, every minute you wait could be costing you valuable earnings. Call us at (470) 823-4000 to schedule your consultation with our legal team and ensure you’re receiving every dollar you deserve for your hard work.

Frequently Asked Questions: 

Is unpaid overtime illegal in the US?

Yes, unpaid overtime is illegal for non-exempt employees under the Fair Labor Standards Act (FLSA).

What is the new overtime rule for DOL 2023?

The new DOL overtime rule for 2023 increased the salary threshold for exemption from overtime eligibility, requiring detailed examination for applicability.

What was the overtime rule change?

The overtime rule change involved updating the salary threshold for exempt employees, making more workers eligible for overtime pay.

Are we forced to work overtime?

Employers can require overtime, but it must be compensated, especially for non-exempt employees, according to federal and state laws.

When did the new overtime rules start?

The latest update to overtime rules started in 2023, following announcements and regulatory updates by the Department of Labor.

The lawsuit alleges that the plaintiffs, former Southeast Connections employees Brandon Stallworth and Jahleel Wilson, were required to work off the clock without pay. Specifically, the lawsuit alleges that Stallworth, Wilson, and other laborers, pipefitters, and foremen, were required to drive back from their jobsites to the company shop each day without being paid for the time they spent on their return trips. The lawsuit alleges these employees worked more time off the clock back at the shop before leaving each day, and that they sometimes worked through their lunch breaks.

The lawsuit asks the Court to conditionally certify the case as a collective action under the federal Fair Labor Standards Act (“FLSA”). The FLSA is the federal law that requires that many employees must be paid time-and-half when they work more than 40 hours per week. If a case is conditionally certified as a collective action, then courts will order the employer to provide information about other employees who may also have been denied overtime, and these employees will receive court-supervised notice of the lawsuit and a chance to join it to seek unpaid overtime wages they may be owed.

If you have questions about the overtime lawsuit against Southeast Connections, or about LAW’s work on behalf of other companies’ employees who may have been wrongfully denied overtime pay, please contact us.

Title VII of the Civil Rights Act of 1964 (Title VII) prohibits an employer with 15 or more employees from discriminating against or taking an adverse employment action against an employee because they are pregnant. Adverse employment actions include, but are not limited to, terminations. Unfortunately, some employers do break this law, subjecting employees to illegal discrimination and adverse actions because they are pregnant – or even because they intend to become pregnant or have the ability to become pregnant.

What If I Need an Accommodation to Continue Performing My Job While Pregnant?

Under the laws currently in effect, pregnant employees have not been entitled to an accommodation at work purely on the basis of their pregnancy; they have had to show that the employer has discriminated against them in violation of Title VII by denying them an accommodation but granting one to non-pregnant employees or that they are entitled to an accommodation due to a disability under the Americans with Disabilities Act Amendments Act of 2008 (ADA). Under Title VII, employers cannot discriminate against pregnant employees in their provision of accommodations, for example by providing accommodations for other employees but not for pregnant employees. This does not mean pregnant employees are automatically entitled to accommodations under Title VII, just that pregnant employees cannot be treated differently than non-pregnant employees that are similar in their ability or inability to work. Under the ADA, qualified individuals with disabilities are entitled to reasonable accommodations that will allow them to perform the essential functions of their job. Pregnancy itself does not entitle employees to accommodations under the ADA, so pregnant employees must have an impairment or condition falling under the ADA (for example, gestational diabetes) in order to be entitled to an accommodation.

However, the Pregnant Workers Fairness Act (PWFA) will provide pregnant employees with important new protections and new rights regarding accommodations. The PWFA was signed into law on December 29, 2022 and will go into effect on June 27, 2023. It will require employers with 15 or more employees to provide reasonable accommodations for employees with limitations related to pregnancy, childbirth, or related medical conditions. This means – even without discrimination under Title VII or a disability under the ADA – a pregnant employee will be entitled to request accommodations, and their employer must provide accommodations (for example, a closer parking spot, work attire that fits properly, and/or altered work hours) unless doing so would impose an undue hardship on the employer. The employee might not receive the exact accommodation they request, and the employer may not unilaterally impose an accommodation of its choosing; instead, both must work together in an “interactive process” to identify a reasonable accommodation. The new law will only apply to situations that arise on or after June 27, 2023.

What About Nursing?

Since 2010, the Break Time for Nursing Mothers Act has required employers to provide some nursing employees with breaks during which to pump breast milk and private spaces (other than bathrooms) in which to do so, for one year after a child’s birth. These rights were primarily provided to non-exempt (hourly) employees. However, the new Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) provides protections for increased numbers of nursing employees. Like the FLSA, the PUMP Act gives nursing employees rights to break time during which to pump and private spaces (other than bathrooms) in which to pump. However, the PUMP Act expands these rights and protections to a greater number of workers, as it covers new categories of employees including exempt (salaried) workers and agricultural workers. Employers must comply with the PUMP Act by April 28, 2023.

____________________

Every case is different, and especially in light of these upcoming changes in the applicable laws, it is important to consult with an attorney. If you believe you have been discriminated against because of your pregnancy, disability, or another protected category or denied an accommodation to which you are entitled due to a pregnancy or disability, please contact the lawyers at Legare, Attwood & Ragan, LLC for assistance.  (470) 823-4000 | law-llc.com

These noncompetes have had severely detrimental effects on both the individuals constrained by the agreements and the economy at large. For the employees, a noncompete can be a wholesale ban on starting a new business or taking a job in one’s chosen career field for up to two years. That can be economically devastating. And when employees who have signed noncompetes do find new jobs, the noncompete agreements suppress wages. They have become so pervasive that often an employee’s only option is to look for work in a new field, where their lack of experience means they must “start over” at a lower-level position and work their way back up.

Noncompetes also hurt companies looking to hire, especially small businesses. Potential employers find themselves hamstrung and unable to hire their preferred talent, and new businesses are curtailed before they can even begin. 

                Finding that banning noncompete agreements “could increase wages by nearly $300 billion per year and expand career opportunities for about 30 million Americans,” the Federal Trade Commission has proposed a new rule that would ban employers from using noncompetes.

                This rule would have massive positive impacts across the employment sphere. No longer could employers exploit their laborers by trapping them in oppressive noncompetes. Employees will be free to shop around for best offers and take their talents where they will be respected the most. And former employees looking to start new businesses will be legally free to take on entrepreneurship.

                But, before we celebrate too early, let’s break down Georgia noncompete law.

What is a Noncompete?

                Under Georgia law, U.C.G.A. § 13-8-53, a noncompete is a restrictive agreement that prevents employees from entering into subsequent employment with a similar employer “so long as such restrictions are reasonable in time, geographic area, and scope of prohibited activities.” Typically, restrictions limiting their reach to one year, including the geographic territory where the employer does business, and precluding the employee from performing the same or similar services, will be found reasonable by the courts. Kennedy v. Shave Barber Co., 348 Ga. App. 298 (2018).

                Employers almost always present noncompete agreements as non-negotiable and as a condition of employment. If the employee does not sign a noncompete, the employer will reject their job application and hire someone willing to sign the noncompete. If an employer presents a non-compete to its current employees, it can fire them for refusing to sign it. Most people lack the financial stability to turn down a job over a noncompete agreement. And even if they could, rejecting a job over a noncompete is often futile because these agreements have become so prevalent in some industries, it can be almost impossible to find a job that doesn’t require one.

Who do Noncompetes Affect?

U.C.G.A. § 13-8-53 also spells out what kinds of employee can be constrained by a noncompete. Essentially there are four kinds of employee who are covered under the statute:

1. Employees who solicit customers.
2. Sales workers.
3. Management level employees.
4. “Key” employees (those who have gained a high level of influence or notoriety within an organization) or professionals (employees with advanced skills or knowledge within a specialized intellectual field).

So, as written, Georgia’s noncompete statute can cover a vast number of employees. That being said, Courts are not willing to fit every employee into these neat categories. In Blair v. Pantera Enterprises, Inc., 349 Ga. App. 846 (2019), the Georgia Court of Appeals decided that key employees with high levels of influence or notoriety must be gained from the employer’s investment of time, money, skill, etc. Therefore, Blair (a backhoe operator), who had developed his skills prior to coming to his employer, could not be a key employee.

Can I Escape a Noncompete if I’ve Signed One?

In Georgia, noncompetes are very difficult to escape. In large part, this has to do with the Courts’ statutory ability to “blue-pencil” or edit a noncompete if an employee challenges its legality. Traditionally, blue-pencilling was used to strike offending, illegal, or unenforceable provisions of contracts. However, some courts are using their “blue pencil” to edit provisions, limiting too-long temporal provisions, or adding in a geographic provision where one did not previously exist. See Kennedy. This leads to significant uncertainty in the litigation of noncompetes. But overall, the Courts’ freedom to “blue pencil” disputed noncompetes gives employers even greater leverage over their employees, because employees who’ve signed noncompetes are very unlikely to fully escape them via litigation; the employee’s best likely outcome is just that the Court will reduce the noncompete’s severity and then enforce it anyway. This  incentivizes companies to draft even broader, more restrictive agreements, since the company knows a Court will almost always deem at least some portion of the agreement valid.

What will the FTC’s Rule do to Noncompetes?

If the FTC’s rule passes, then it will be illegal to enter a noncompete with an employee, maintain a noncompete with an employee, or even represent that an employee is subject to a noncompete. The rule will apply to all workers, including independent contractors and unpaid interns. It will require employers to rescind existing noncompetes and inform all employees that their prior noncompetes are no longer in effect. Basically, the rule will completely eviscerate noncompetes and allow employees to freely move between employers, self-employment, and any other style of employment they can find.

The Rule is currently subject to a “Notice and Comment” period, meaning the public can comment on the rule, sharing their opinion on whether it should be passed in its current form. Here at Legare, Attwood & Wolfe, we support the FTC’s efforts to curb the use of noncompetes.

If you believe you are being subjected to an unenforceable noncompete, please reach out to the attorneys at Legare, Attwood & Wolfe.

Legare, Attwood & Wolfe, LLC specializes in representing employees who have suffered civil rights violations, including racial discrimination, gender discrimination (including pregnancy, sexual harassment, sexual orientation and transgender discrimination), religious discrimination, national origin discrimination, disability discrimination, as well as those who have Family Medical Leave Act claims, overtime and job misclassification claims, harassment, and breach of contract or wrongful termination claims.  If you want more information about your unique situation, we’ll be glad to see if we can help.  (470) 823-4000 | law-llc.com

There is an exception: an employer cannot terminate an employee’s employment for an illegal reason, for example because of the employee’s race. Title VII of the Civil Rights Act of 1964 (Title VII) gives employees protection from adverse employment decisions, such as terminations, based on certain protected characteristics includingrace, color, national origin, sex, pregnancy, or religion. Similarly, the Americans with Disabilities Act Amendments Act of 2008 (ADA) provides protection against discriminatory employment decisions based on an employee’s disability. Both of these statutes also provide protection against retaliation for a “protected activity.” If, for example, an employee complains about gender discrimination or requests an accommodation for a disability, that is considered protected activity. Then, a negative reaction from the employer because of the protected activity, such as termination, can be considered illegal retaliation. If you believe you have been terminated or wronged by your employer because of a protected characteristic or protected activity, consider reaching out to the attorneys at Legare, Attwood & Ragan, LLC for assistance. You may have more rights under the law than you realize.

But what if your employer gives another explanation for the termination? Employers rarely admit that they have treated an employee badly because of the employee’s protected characteristic or because of retaliation for the employee’s protected activity. Instead, employers often make up explanations that would be legal and might appear legitimate at first glance. A typical excuse is that the decision was made for “business reasons.” This is a useful explanation for an employer to present, because the employer has control over what it says are its business needs and goals. Employers also often claim that the employee’s performance was poor. This is similarly a useful explanation for an employer to present, because the employer is the one that determines what qualifies as “good” or “bad” performance, and such criticisms can also help the employer by intimidating the employee or undermining their confidence.

There are effective ways to combat these strategies. To win in court, an employee must prove the employer’s real reason for terminating him/her was illegal discrimination or retaliation. This often means showing the employer’s claimed reason for the termination was false or not credible. When an employee shows that the reason the employer gave was not the true reason, that is called showing that the employer’s stated reason was a “pretext” for discrimination, which the Supreme Court discusses in the case Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). For example, if an employer claims it eliminated a person’s position for business reasons but then hires someone else to fill the same position, this might indicate that discrimination was the true reason for the termination. Similarly, a person with a history of positive performance reviews may be able to show that they were not actually fired because of poor performance, indicating that the reason the employer gave was false and was a “pretext” for the true, discriminatory reason. However, every case is different, and employers’ excuses often sound convincing. That’s why it is important to speak with an attorney if you believe you have been discriminated against at work, even if your employer claims it has a good reason for letting you go.

Michael Hewitt worked as a tool pusher for Helix Energy Solutions Group, Inc., an oil and gas services firm. In that role, Hewitt held supervisory responsibilities and earned over $200,000 per year based on a daily rate of $963.  Even though Hewitt routinely worked more than 40 hours per week, Helix classified Hewitt as exempt from overtime and other requirements under the FLSA, because of his supervisory duties and high level of pay.

After Helix terminated Hewitt’s employment, Hewitt sued his former employer for unpaid overtime, arguing that because he was paid a daily rate and not a salary, he was owed overtime under the FLSA.

The FLSA requires employers to pay covered employees one and one-half their hourly rate for any additional time worked over the standard 40-hour workweek.  However, the FLSA exempts some workers from overtime protections, including “highly compensated employees” who regularly perform executive duties, earn at least $107,4032 per year, and receive at least $684 per week on a salary basis.  29 C.F.R. § 541.601.  An employee is paid on a “salary basis” if she regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount “without regard to the number of days or hours worked.” 29 C.F.R. § 541.602.  Hewitt argued that because he was paid by the day for “hitches” he worked, he was not paid “without regard” to the days or hours he worked and thus was entitled to overtime pay.

The en banc Fifth Circuit agreed with Hewitt, holding that no matter how much an employee ultimately earns, the plain text of FLSA regulations requires that employers pay overtime to employees who, like Hewitt, are paid a daily rate without a minimum weekly guarantee and with regard to the number of days worked.  The Fifth Circuit joined the Sixth and Eighth Circuits in concluding that some highly compensated employees may still be owed overtime under the FLSA.  See Hughes v. Gulf Interstate Field Servs. Inc., 878 F.3d 183 (6th Cir. 2017); Coates v. Dassault Falcon Jet Corp., 961 F.3d 1039, 1042 (8th Cir. 2020).  In its cert. petition to the Supreme Court, Helix argued that the Fifth Circuit’s decision conflicts with cases from the First and Second Circuits holding that the “highly compensated employees” regulation isn’t limited by other FLSA regulations.  See Litz v. Saint Consulting Group, Inc., 772 F.3d 1 (1st Cir. 2014); Anani v. CVS RX Services, Inc., 730 F.3d 146 (2d Cir. 2013).

This term, the Supreme Court will resolve this potential circuit split.  During oral arguments, some Justices were skeptical that an employee making over $200,000 a year would be entitled to overtime.  Justice Kavanaugh even suggested that the federal regulations interpreting the term “salary” in the FLSA might be invalid.

Although this case presents a seemingly narrow issue, the stakes are high.  The FLSA provides all workers with many critical workplace and pay protections.  If the Supreme Court fails to hew to the plain text of the regulations, and instead relies on Helix’s dubious rationale that the FLSA’s purpose is to help only low-wage workers, it may signal the erosion of overtime protections and other workplace safeguards for a large class of workers.

As in this case, many employers incorrectly label employees who are legally protected by the FLSA as “exempt” in order to avoid paying them overtime or minimum wage. Employers also sometimes label protected employees as “independent contractors” so they can avoid paying them what the law requires. If you are covered by the FLSA, then your employer labeling you as “exempt” or calling you an “independent contractor” does not deprive you of your federal right to receive overtime when you work more than 40 hours per week.

If you are concerned your employer may have misclassified your position and may not be paying you the way the law requires, LAW can answer your questions and help you understand your rights.  And if you do need legal representation, LAW’s attorneys will fight aggressively for you.

Legare, Attwood & Ragan, LLC specializes in representing employees who have suffered civil rights violations, including racial discrimination, gender discrimination (including pregnancy, sexual harassment, sexual orientation and transgender discrimination), religious discrimination, national origin discrimination, disability discrimination, as well as those who have Family Medical Leave Act claims, overtime and job misclassification claims, harassment, and breach of contract or wrongful termination claims.  If you want more information about your unique situation, we’ll be glad to see if we can help.  (470) 823-4000 | law-llc.com

It is no secret that the American workforce developed a preference for working from home during the COVID-19 pandemic. In a September poll conducted by Monster, two thirds of the 1,806 workers polled stated they would quit if forced to return to a full-time in-office schedule. But that does not mean every employer is necessarily going to offer telework or hybrid working options. So, is there anything that you can do if your office is requiring you to return to office work? Yes, but only in certain circumstances. Teleworking can be an accommodation if working in office is not an option based on a disability.

Teleworking has been contemplated as an accommodation by the Equal Employment Opportunity Commission since February 2003, well before the COVID-19 pandemic began. The EEOC states that “allowing an employee to work at home may be a reasonable accommodation where the person’s disability prevents successfully performing the job on-site and the job, or parts of the job, can be performed at home without causing significant difficulty or expense.”

Let’s break that down.

What does it mean to have a disability?

The ADA (Americans with Disabilities Act Amendments Act of 2008) defines a disability as “a physical or mental impairment that substantially limits one or more major life activities of such individual.” Major life activities include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working, as well as the operation of major bodily functions (e.g., immune system, bladder system). So, mental illnesses (e.g. bipolar, depression, schizophrenia) and physical illnesses (e.g. cancer, diabetes, epilepsy) are disabilities under the ADA. Essentially, if you have been diagnosed with a chronic illness (i.e. one that is not transient or short-lasting by nature), you likely have a disability under the ADA.

If I have a disability, can I work from home? 

It depends.

Telework is not an option for every individual with a disability. In order for telework to qualify as a reasonable accommodation, your disability must prevent you from successfully performing the job on-site. For example, in Johnson v. McMahon, 2020 U.S. Dist. LEXIS 256532 (N.D. Ga. Jan. 7, 2020), the Court was willing to consider the possibility of teleworking as a reasonable accommodation for an individual who suffered from chronic migraines so that she could better control the light and sound in her environment (though the Court did not ultimately decide whether the accommodation was reasonable).

However, an employee’s request for telework as a reasonable accommodation will always be measured against an employer’s ability to provide such an accommodation. The EEOC has stated strictly that an employer’s decision to allow employees to telework during the COVID-19 pandemic “does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship.”

Often, the courts will engage in a fact-intensive inquiry that balances the interests of the disabled employee against the employer. Factors playing a role in the courts’ decisions are often job descriptions, existing company-wide work-from-home policies, and other available accommodations. Some jobs (e.g., cashiers, food servers, truck drivers) simply cannot be performed at home and thus, no matter the disability, an employer will not be required to provide teleworking as an accommodation. However, there are many jobs where some or all the functions can be performed at home. In these situations, the EEOC recommends that employers consider the need for face-to-face interaction, the need for supervision, and the need for access to workplace materials. But, the EEOC also discourages denying a telework accommodation simply due to the need to contact and coordinate with other employees because “meetings can be conducted effectively by telephone and information can be exchanged quickly through email.”

How do I ask my employer for a telework accommodation?

                Per the ADA, employers are mandated to engage in an “interactive process” with any employee who requests an accommodation. Under Eleventh Circuit precedent, a request does not need to be formal, but employees are required to inform their employer that they have a medical condition that requires some change in the way their job is performed. Gatson v. Bellingrath Gardens & Home, Inc., 167 F.3d 1361, 1364 (11th Cir. 1999). Then, the employer may ask the employee to explain why the disability is limiting their ability to work in the workplace and can even request documentation about the disability. Ultimately, the employer will either grant the accommodation, modify the accommodation, or deny the accommodation.

                Notably, engaging in the accommodation process is protected. The ADA prohibits employers from discriminating against their employees on the basis of disability and prevents employers from retaliating against their employees for requesting accommodations or otherwise participating in an interactive process. This means your employer should not take an adverse action (e.g., demotion, discipline, or termination) against you after you disclose your disability or ask for an accommodation. If they do, you may have legal recourse.

                If you believe your employer has failed to engage in an interactive process regarding your accommodation, has wrongfully denied a telework accommodation, or any reasonable accommodation, or has retaliated against you for requesting an accommodation, please reach out to the attorneys at Legare, Attwood & Ragan, LLC. Legare, Attwood & Ragan, LLC specializes in representing employees who have suffered civil rights violations, including racial discrimination, gender discrimination (including pregnancy, sexual harassment, sexual orientation and transgender discrimination), religious discrimination, national origin discrimination, disability discrimination, as well as those who have Family Medical Leave Act claims, overtime and job misclassification claims, harassment, and breach of contract or wrongful termination claims.  If you want more information about your unique situation, we’ll be glad to see if we can help.  (470) 823-4000 | law-llc.com

Georgia law provides government employees like Mr. Estill with recourse in situations where they allege that they have been terminated following their disclosure of a violation of or noncompliance with a law, rule, or regulation.

Who can be a whistleblower?

In order to receive whistleblower protection in Georgia, you must first be a public employee. Public employees are those who work for the government – from the state down to the school districts. The statute’s protection covers teachers, firefighters, city managers, agency workers, and many others throughout various levels of government.

Second, you must disclose or object to a violation of or noncompliance with a law, rule, or regulation. The disclosure or objection can relate to any federal, state, or local statue or ordinance, or to more informal rules or regulations adopted pursuant to such statues or ordinances. To object to a violation or noncompliance encompasses refusing to participate further in the violation or noncompliance. Examples include disclosing a violation of spending and purchasing policies, refusing to artificially inflate students’ grades, and complaining about health code violations, amongst many other possibilities.

Who you report to matters! Under the Whistleblower statute, you must report to a supervisor or a government agency. A supervisor is someone who has the ability to direct and control your work performance, who can take corrective action regarding the violation or noncompliance, or who is otherwise designated to field complaints. A government agency is any government organization, including federal organizations, who are charged with the enforcement of laws, rules, and regulations.

What does retaliation look like?

The Georgia Whistleblower Act prevents a public employer from retaliating against public employees who disclose or object to violations or noncompliance with laws, rules, and regulations. But what is retaliation? Retaliation is an adverse action that can take many forms, including termination, discipline, demotion, reassignment, reduction in pay, denial of benefits, and more. Essentially, if the terms and conditions of your employment are changing following your whistleblower activity, your employer may be retaliating against you.

“The Georgia Whistleblower Act has a one-year statute of limitations following your discovery of the retaliation, meaning that you only have one year to file your case in court after a public employer takes an adverse action against you.”

How does the whistleblower law help?

The Georgia Whistleblower Act provides a variety of remedies for public employees who have been retaliated against. A successful whistleblower claim can lead to reinstatement, recovery of lost wages and benefits, and/or compensatory damages. Attorney’s fees may also be awarded.

What should I do if I’m being retaliated against?

Talk to an attorney at Legare, Attwood & Ragan as soon as possible. The Georgia Whistleblower Act has a one-year statute of limitations following your discovery of the retaliation, meaning that you only have one year to file your case in court after a public employer takes an adverse action against you.

If you have any questions or concerns, you can read more about whistleblowing here or you can schedule a call with Legare, Attwood & Wolfe.

~~~

Legare, Attwood & Ragan, LLC specializes in representing employees who have suffered civil rights violations, including racial discrimination, gender discrimination (including pregnancy, sexual harassment, sexual orientation and transgender discrimination), religious discrimination, national origin discrimination, disability discrimination, as well as those who have Family Medical Leave Act claims, overtime and job misclassification claims, harassment, and breach of contract or wrongful termination claims.  If you want more information about your unique situation, we’ll be glad to see if we can help.  (470) 823-4000 | law-llc.com

The lawsuit alleged that the company forced its employees to work “off the clock” without paying them, including failing to pay them for “off the clock” overtime work. When a company pays its employees by the hour, the FLSA requires the company to keep accurate records of the employees’ true work hours. The FLSA also requires companies to pay these employees at least the federal minimum wage. And, if hourly employees work more than 40 hours per week, the FLSA requires the company pay them 1.5 times their regular hourly pay rate.

“Off the clock” work is a common violation of the wage and hour laws. It can take many forms. For example, a company might force employees to get to work before their shifts start, and to do set up, load  supplies, or do other work before they clock in for the day. Or, a company might force employees to stay after they’ve clocked out and do work like unloading, cleaning up, or setting up for the next day. Deducting lunches or breaks even though employees work through their breaks is another type of off the clock violation.

The overtime lawsuit Wolfe and Torgerson, along with Lee Brigham, resolved in February 2022 primarily alleged that the company required its workers to start work before clocking in and to continue working after they clocked out. Because the employees alleged they routinely worked more than 40 hours per week, their claimed unpaid “off the clock” hours were overtime hours. That meant, per the lawsuit, that the company not only had to pay them for the hours, but it had to pay them at overtime rates, meaning, 1.5 times their regular hourly pay rates.

After filing the lawsuit, Wolfe, Torgerson, and Brigham won a  motion for conditional certification of the case as an overtime collective action under the FLSA. One of the reasons the FLSA can be such a powerful law for protecting workers against wage violations is that it allows many employees with similar claims to join forces in a collective action. In this case, after winning the motion, the firm was able, under Court supervision, to send notice of the lawsuit to over a hundred workers who were eligible to join the lawsuit.

After winning the motion for conditional certification and other employees joining in the case, the firm aggressively conducted discovery, obtaining the company’s pay and hours records, and taking the sworn testimony of multiple witnesses, including the company’s owner. These efforts ultimately led to a favorable settlement on behalf of the firm’s clients.

Off the clock violations are just one of the many forms of wage violation and wage theft. LAW Partner Steve Wolfe heads the firm’s wage and hour practice, assisted by a team of knowledgeable associates and staff. Other common overtime violations Wolfe and LAW have successfully resolved for their clients include:

Cases on behalf of people who are misclassified as “independent contractors,” but who should legally be treated as employees because the company does not treat them as truly independent and controls how and/or when they do their work.

• Cases on behalf of salaried employees whose companies misclassify them as exempt from the FLSA. It is a common belief that, if you earn a salary, you do not have to be paid overtime. This is not true. Whether you are legally entitled to overtime pay depends on what your job is, not just on how you are paid.
• If you are concerned your company may not be paying you the way the law requires, LAW can answer your questions and help you understand your rights. And if you do need legal representation, LAW’s attorneys will fight aggressively for you.

~~~

Legare, Attwood & Ragan, LLC specializes in representing employees who have suffered civil rights violations, including racial discrimination, gender discrimination (including pregnancy, sexual harassment, sexual orientation and transgender discrimination), religious discrimination, national origin discrimination, disability discrimination, as well as those who have Family Medical Leave Act claims, overtime and job misclassification claims, harassment, and breach of contract or wrongful termination claims.  If you want more information about your unique situation, we’ll be glad to see if we can help.  (470) 823-4000 | law-llc.com

On February 10, 2022, Congress passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, a bill that would end mandatory arbitration of workplace sexual assault and harassment cases and allow vitims to assert their claims in court.  The bill passed with large bipartisan support, and President Biden is expected to sign it into law.

The bill amends the Federal Arbitration Act to bar employers from forcing employees with claims of sexual assault and sexual harassment into private arbitration proceedings designed to silence employees and protect employers from public accountability.  Now, employees who have experienced sexual harassment at work will have the right to seek justice in a public forum.  The bill also forbids predispute joint-action waivers that prohibit employees from participating in a joint, class, or collective action concerning sexual harassment or sexual assault claims.

Why this is Important for the Rights of Working People?

These are major changes that help level the legal playing field between employees and their employers. Arbitration is like a secret, corporate court system. In arbitration, there is no jury, there is no judge, and most of the court system’s rules and safeguards do not apply. The case is decided by an arbitrator, who is most often a corporate attorney paid by the employer. (That’s right: the company accused of violating the law pays the person who decides the case). Arbitrations are almost always confidential, meaning that other women who work with the accused harasser will ever learn of the sexual harassment allegations. Many employers require employees sign mandatory arbitration agreements in order to get hired, usually by including a mandatory arbitration agreement in the barrage of fine-print forms employees sign when joining the company.

Predispute joint-action waivers, which the Bill also bans, are another common limit on employee rights that many companies force employees to accept in order to get hired. Class actions and multi-plaintiff actions are lawsuits where people who have suffered similar injustices at the hands of the same company join forces in a single case. They can be powerful ways of leveling the legal power imbalance between individuals and corporations, which is why companies work so hard to ban them.

As Senator Kirsten Gillibrand (D-NY) noted, the bill is “one of the most significant workplace reforms in history.” Indeed, an estimated 60 million American workers are subject to mandatory employment arbitration procedures prohibiting them from suing their employers for discrimination, wage theft, and other workplace abuses in open court. And mandatory arbitration is more common in industries disproportionately composed of women and African Americans. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act will now give some of these workers the opportunity to take their sexual assault and harassment claims—individually or as a class—to court.

We hope this bill is the first step toward ending forced arbitration for any civil rights or employment dispute.  No worker experiencing discrimination or abuse at the workplace should be hamstrung by fine-print contracts designed to protect wrongdoers and limit employee rights.

Every federal statute that prohibits discrimination in the workplace has an anti-retaliation provision. As such, it is unlawful for an employee to be retaliated against for opposing perceived discrimination or participating in an EEOC investigation regarding such discrimination, including gender discrimination and sexual harassment. In other words, if you believe you were discriminated against and you complained to your supervisor about such discrimination and then the employer took an adverse employment action against you because of that report, that retaliatory act is unlawful. The same is true for co-workers who report discrimination or otherwise provide information regarding discrimination on behalf of a fellow employee. If you successfully demonstrate that your employer unlawfully retaliated against you, you are entitled to lost wages, compensatory and punitive damages (that may be capped depending on the number of employees), and attorneys’ fees.