I just received this week’s newsletter from IIABA and the lead story was about the marketing of the telephone number “1-800-Trusted Choice” or “1-800-Trusted” to insurance agents by an organization known as 800 Partners. The IIABA emphatically states that it has not authorized 800 Partners to sell that or any other telephone number associated with the Trusted Choice name. It warns all insurance agents to be careful when considering any promotional offers from 800 Partners or anyone else claiming the right to use the Trusted Choice name. A cease and desist letter has been sent by IIABA to 800 Partners. To read the full story, click here.
In a per curiam decision issued earlier today, the United States Supreme Court rejected an attempt by the Oklahoma Supreme Court to pre-empt the application of the Federal Arbitration Act (“FAA”) to a dispute regarding the validity of restrictive covenants in an employment agreement. The Oklahoma Supreme Court had ruled that the FAA did not prohibit a court from determining in the first instance whether the agreement on which the dispute was based was a valid and enforceable one. The U.S. Supreme Court had a different view of the scope of the FAA and held that the question of whether the restrictive covenants were valid should have been answered first by the arbitrator. (Click here to read the full opinion).
The arbitration clause in question covered “‘any dispute, difference or unresolved question” between the employer and employee. It made no exception for a resort to the courts to obtain injunctive relief for a breach or threatened breach of the restrictive covenants. Such an exception should always be contained in any agreement that includes restrictive covenants because, by the time an arbitrator is appointed and presented with arguments regarding a breach or threatened breach of such covenants, it may well be too late to prevent significant loss of business by the employer.
In addition, employers should consider allowing a court to determine the validity of such covenants and reserve other disputes under the agreement for arbitration, as the grounds on which an arbitrator’s award can be appealed are much more restricted than the grounds for the appeal of a judgment of a court. Unlike a court judgment, an arbitrator’s award can not be overturned merely because the arbitrator misinterpreted or misapplied the applicable law. Both the FAA (which applies to contracts involving interstate commerce) and the Georgia Arbtration Code contain specified grounds on which an arbitrator’s award may be overturned, which grounds generally involve misconduct by the arbitrator. The Georgia Arbitration Code does permit an award to be overturned for the “arbitrator’s manifest disregard of the law”, but that requires more than a mere misinterpretation or misapplication of the applicable law.
An article in today’s Fulton County Daily Report clearly emphasizes the need for all employers to develop and implement a policy regarding the usage of mobile phones by their employees when operating a motor vehicle. The article was about a $2 million settlement that a local employer recently agreed to in a case involving a motor vehicle accident. The employer’s employee rear ended another vehicle while the employee was “rummaging for her cellphone.”
The article did not address whether the employer had a policy regarding the use of mobile phones by its employees while driving, but a safe guess would be that one did not exist or that if one did exist, it did not explicitly forbid employees from using their mobile phones for business purposes while operating a motor vehicle. As explained in my recent article on Georgia’s ban on texting while driving (click here to read), the adoption and consistent enforcement of a policy prohibiting the use of mobile phones for business purposes by employees while operating a motor vehicle would have provided the employer involved in the above situation a strong defense to any claim of liability on its part for the accident that occurred, if the cause of the accident was the employee being distracted due to looking for their mobile phone.
At a minimum, all Georgia employers should adopt policies that prohibit their employees from texting for business purposes while operating a motor vehicle, as that conduct is now prohibited by Georgia law. The failure to adopt and consistently enforce such a policy could expose the employer to liability for punitive, as well as ordinary damages, for any motor vehicle accident involving their employee, which accident was caused by the employee’s texting for business purposes.
On a rainy day in Georgia, my thoughts have turned to the people in New York and New Jersey who are still suffering the after effects of Hurricane Sandy. Almost two weeks later, tens of thousands of people in that region are still without power and many are homeless. In the face of such monumental destruction, we can feel powerless to help.
However, the IRS has recently issued a notice that provides a relatively easy way for businesses and their employees to make contributions to the ongoing relief efforts. That notice concerns what are known as “leave based donation programs”, under which the employees of a business can elect to forgo vacation, sick, or personal leave and request their employers to donate the cash value of the forgone leave time to charitable organizations that are engaged in Hurricane Sandy relief efforts.
As it did with Hurricane Katrina, the IRS has indicated that it will not require the employer to include the amount of the cash payments made to such organizations in the taxable income of the employees in question or withhold taxes from or make matching FICA contributions for those payments. Although the employees electing to donate all or a portion of their leave time in this manner will not be able to deduct the value of the leave time donated as a charitable contribution on their personal income tax returns, their employers can deduct the amount of the cash payments made to a charitable organization for this purpose on their income tax returns, either as a charitable contribution or a business expense. This tax treatment is available for cash payments made to charitable organizations for Hurricane Sandy relief efforts by January 1, 2014.
In the better late than never category, I thought it would be a good idea to let you know what Georgia law requires as far as providing time off for employees to vote is concerned. Under a statute first adopted in 1964, employers in the Georgia are required to allow their employees up to two hours time off to vote in any kind of election, including primaries, for which they are properly registered. However, if the employee’s normal working hours do not begin until at least two hours after the polls open or end at least two hours before the polls close, then the employer is not required to allow the employee any time off to vote. Thus, if the employee’s normal working hours are 9 am to 5 pm, they are not entitled to receive time off to vote, if the polls open at 7 am or earlier and close at 7 pm or later, which is the case in most elections held in Georgia.
For those employers who are required to give their employee’s time off to vote, the employee is required to give the employer “reasonable notice: of their desire to take such time off, and the employer can specify the hours during which the employee can take time off to vote. If the employee is nonexempt (i.e., must be paid overtime for any hours worked in excess of 40 during any one work week), the employer does not have to pay the employee for the time taken off to vote. If the employee is exempt, the employer can not reduce their pay for the time taken off to vote, but may require the employee to use any paid time off available to the employee, if that paid time off is normally accounted for in increments that small.