James Radford, Author at Decatur Legal Page

Welcome to Decatur Legal

James Radford here.

In 2014, I co-founded Radford & Keebaugh, LLC, a law firm focused on civil rights and employment litigation. We adopted DecaturLegal.com as our website, emphasizing the community where our practice was located. In 2023, we wound down that firm, and I co-founded Radford Scott LLP, where we have assembled a team of experienced employment attorneys, focused on employment discrimination, wage and hour law, employment contract review and negotiation, and employment-related legal counsel for small businesses.

Today, DecaturLegal.com serves to preserve the various writings, news, announcements, and analysis from the R&K days, as well as serving as a resource for the Decatur and Georgia legal communities as a whole. I host a list of trusted legal referrals here, and showcase some of my own writing.

Jury finds for disabled veteran in ADA discrimination trial against Clayton County Sheriff’s Office

An African-American woman with glasses and braids testifies in court. — Brittani Williams testifies in the employment discrimination trial, Williams v. Allen. Illustration by Callia Alandete. All rights reserved.

FOR IMMEDIATE RELEASE

On May 19, 2023, after a three-day trial, a jury found that the Sheriff’s Office of Clayton County, Georgia, discriminated and retaliated against a disabled veteran after she notified her supervisors of her diagnosis of PTSD. The case was filed in 2019 under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. The jury awarded the plaintiff back pay equivalent to two years salary, plus compensatory damages, for a total verdict of $202,811.96. The case, captioned Williams v. Allen was tried before Hon. J. P. Boulee in the U.S. District Court for the Northern District of Georgia. Ms. Williams was represented by Regan Keebaugh and James Radford of the Decatur, Georgia law firm Radford & Keebaugh, LLC.

Brittani Williams is a veteran of the U.S. Army Reserves. She had been an employee of the Sheriff’s Office since 2012 and was working as a Sheriff’s Services Clerk. In 2019, after she was transferred from the day shift to the night shift, she sent her supervisors a letter from her providers at the Department of Veteran’s Affairs, notifying them that the shift change may cause her to experience increased symptoms associated with her PTSD. Her immediate supervisors were all willing to work with her, and one gentleman volunteered to escort her to her vehicle in the evening. However, when former Sheriff Victor Hill was informed of the request, he wrote “do a fit for duty status and release from employment.”

At trial, the Sheriff’s Office argued that Ms. Williams’ disability rendered her unqualified for the job, citing her VA disability rating. They also claimed that Ms. Williams was terminated for coming to work one day with her hair dyed red.

However, the jury rejected each of these arguments.

Former Sheriff Victor Hill did not testify at trial. On the day before trial, he reported to federal prison in Arkansas. On October 26, 2022, former Sheriff Hill was convicted in federal court of six counts of willfully depriving pre-trial detainees in his custody of their constitutional rights by strapping them into a restraint chair, resulting in serious bodily harm on each occasion. He was sentenced to 18 months in prison. The jury was presented with Hill’s videotaped deposition, however.

The jury heard testimony from Clayton County Director of Human Resources Pamela Ambles, who urged Hill to seek accommodations for Ms. Williams under the ADA rather than carrying out a “fitness for duty” process. The jury also heard from several of Ms. Williams’ supervisors, who testified that she was a high-performing employee, and that it was no burden to escort her to her vehicle. The witnesses described a heavy-handed, top-down leadership style from former Sheriff Hill, in which people were afraid to make recommendations regarding employment issues for fear of retribution.

“This was a hard fought case in which the Sheriff’s Office filed numerous motions to try and prevent a jury from ever hearing the evidence,” said Regan Keebaugh, who served as lead counsel in the case. “We fought many battles along the way, from her unemployment benefits appeal all the way through to this trial.”

“It was an honor to represent this veteran. Hearing the jury’s verdict was such a proud moment, and it makes the long hours and stress of trial worth it,” said partner James Radford.

Are salaried employees entitled to overtime pay?

The practice of employers inflating employees’ job titles to avoid overtime pay has received a lot of media attention lately after a study by economists at Harvard Business School and the University of Texas at Dallas. By looking at job listings with managerial titles near the Fair Labor Standards Act’s cutoff for employee overtime pay, the researchers found that inflated titles occurred five times as often just above the threshold. Companies saw substantial savings from this clerical sleight of hand, avoiding paying an estimated $4 billion in wages a year. 

But there’s another common side to overtime exploitation. Workers often believe—and employers often lead them to believe—that salaries are an automatic disqualifier for overtime pay. While the Fair Labor Standards Act’s definitions are incredibly complex, some salaried employees are, in fact, entitled to overtime. And just as companies hire at a manager title without managerial responsibilities to avoid paying overtime rates, they’ll also move employees from an hourly basis to salary to do the same.

So how do you know if you might be eligible for overtime pay, and what should you do if you believe you are? 

How overtime works

The Fair Labor Standards Act (FLSA), established under the U.S. Department of Labor as a part of the New Deal in the 1930s, aimed to set parameters on working life during a time of employer abuse. A 40-hour workweek, guidance on minimum wage, limits on child labor, and overtime compensation helped protect workers and force some separation between working life and leisure for Americans. 

Under FLSA rules, hourly employees are almost always eligible for overtime pay: at least time and a half for work above the standard 40 total hours per workweek. These are non-exempt employees.

But employees may be considered exempt from FLSA overtime rules under three conditions:

1.     The salary basis test: Employees receive a fixed salary instead of an hourly rate that fluctuates depending on their schedule.

2.     The salary test: Workers meet the exemption threshold—basically a minimum pay that could be considered a supportive salary. In 2020, this bumped up to $35,568. Some states (though not Georgia) have set their own, higher thresholds.

3.     The duties test: Primary duties include executive, administrative, or professional work —often considered white-collar work. This is why blue-collar workers, or workers who typically provide manual and physical work, are often still eligible for overtime even if they’re highly paid.

Employers have a lot of discretion in how they classify employees, and there are many ways to engineer FLSA guidelines to lower payroll costs. Here are some of the most common scenarios where salaried employees are actually due overtime:

Eligible workers don’t know they’re eligible

In many workplaces, it’s understood that a salaried job might mean sometimes working late on a project, prepping for a presentation on a weekend or traveling to a conference out of state. By extension, salaried workers tend to expect some flexibility on the part of their employer, allowing them to manage medical appointments and occasional family events without issue.

Salaried pay also usually means better compensation and high-value benefits. Most salaried workers expect PTO, competitive health insurance, life insurance and retirement plan matching. Ideally, the value of these benefits outweighs the occasional time demands outside of the working week.

But salaried workers can still be eligible for overtime pay, though most assume they’re exempt unless employed in a field where overtime is widely used and understood, like law enforcement.

 If you’re in a salaried role that’s not an executive, administrative, professional or outside sales position and you’re regularly asked to stay late, work weekends, work through lunch, travel outside of working hours or “volunteer” for events beyond your normal workweek, it’s worth speaking to an employment attorney about the number of hours you are working. 

Workers are promoted to salaried positions but lose out on pay

Workers often accept and celebrate promotions to salaried positions as a sign of career advancement. But employers sometimes take advantage of FLSA rules to load their workers down with unpaid overtime. Sometimes, losses in potential overtime pay will even overtake the benefits that come along with the salary. 

If your employer switched you to a salaried position without major changes to your job duties, and if you’re regularly required to complete hours of work beyond your normal schedule, an employment attorney may be able to help.

Workers are misclassified in management roles

Management positions usually come with added responsibilities: hiring and firing, setting schedules, placing supply orders, or otherwise guiding a company’s operations with skill and expertise. Because of these added responsibilities, managers should earn more and have more control over their hours and career path.

But, as the Harvard Business School and the University of Texas at Dallas study made clear, companies will inflate titles to avoid paying overtime hours, even if the supposed manager’s work is nearly identical to an hourly counterparts.

Challenging overtime assumptions

In the 1970s, not only did most employees working overtime qualify for overtime pay, but more than 60 percent of salaried employees did as well, according to the Economic Analysis and Research Network. As that percentage has dropped over the decades, many workers are no longer aware that they might be entitled to overtime, or they believe their employers will retaliate against them if they raise the issue. The complexity of Department of Labor overtime laws also makes it hard to understand “exempt” and “non-exempt” classifications. 

An employment attorney familiar in labor laws can help, however. Employers who misclassify workers or otherwise withhold overtime pay may be subject to fines and back overtime payments. If you think you’re being treated unfairly, keep a record of the extra hours you work, make note of how other workers with jobs similar to yours are classified, and talk to an employment lawyer who specializes in employment law.

Contact Radford Scott to discuss your situation

Employers sometimes take advantage of the complex rules around overtime pay and salaried workers. If you believe you may be eligible for overtime pay, it’s worth speaking to an attorney to learn more about your situation. We take a hands-on approach to every case we work on, and we have an established history of success in Georgia.

Do at-will employees have legal rights for wrongful termination?

As Georgia earns a reputation as a top state for doing business, there’s an underside for workers: Employer-friendly laws sometimes leave employees with fewer protections.

With limits on labor organizing and no state laws on the books regarding flexible shift scheduling, paid sick leave, paid family leave and other top employee concerns, Georgia workers don’t always have a robust slate of safeguards. Like almost every state in the U.S., Georgia is also an at-will employment state, meaning employers can fire employees at any time and for any reason—unless it’s an illegal reason.

There are some exceptions to the at-will employment doctrine. Employers cannot fire employees for any reason that violates the federal civil rights law—such as the employee’s race, sex, age, disability, or nationality. Public employers—including state agencies, counties, cities, and school districts—can’t fire an employee for refusing to break the law. And no employer can fire an employee for heeding a jury summons. Contracts can also change the terms of an employment relationship. Typically, though, employers in Georgia may let someone go for any reason, or for no reason at all. While this can be frustrating, or even deeply unfair, it’s not illegal.

 Still, sometimes a termination just doesn’t sit right. Whether you have a clear record of retaliation or simply a suspicion that discrimination played a role in your firing, it can be hard to know how to proceed. So, what rights do employees have in an at-will employment state, and how do you prove wrongful termination?

Wrongful termination defined

Employers are given a lot of leeway in terms of acceptable conduct during a termination. They are, however, still subject to federal and state antidiscrimination laws, employment contracts and whistleblower protections. 

Wrongful termination claims typically center on:

Contractual promises: Contracts can redefine the at-will employment arrangement, stipulating that employees can only be fired for cause, like wrongdoing or an intentional breach of contract or company policy. Executives often protect themselves with such contracts, which may also set the terms of their severance. If you can argue that the firing broke the terms of your contract, you may have a wrongful termination suit.  
Employment Discrimination: Employers can’t fire workers because of a protected characteristic, like race, color, religion, sex (including pregnancy, gender identity and sexual orientation), national origin, age (40 or older), disability or genetic information. Before bringing a private suit, you have to file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC).
Family and Medical Leave Act use: Employers can’t fire workers for using or planning to use Family and Medical Leave Act (FMLA) protections. Such cases are also often associated with discrimination based on disability, genetic information or pregnancy.  
Retaliation: Employees can’t be fired for making an EEOC complaint, testifying in a coworker’s EEOC case, requesting accommodation, resisting sexual harassment, asking about possible pay discrimination or for using FMLA. Employers also can’t fire workers for filing a workers’ compensation claim. While discrimination cases can sometimes be challenging to prove, retaliation is often more clear-cut.
Military service: Employees cannot be fired because they need time off for anything related to their obligations to U.S. miliary service, including answering National Guard obligations.
Whistleblowing: Workers can’t be fired for reporting a workplace hazard to the Occupational Safety and Health Administration (OSHA) or for raising the alarm about certain illegal activities or issues like youth employment.
Violations of law: Employees of Georgia state agencies, counties, cities, school boards, or any other public employer can’t be fired for refusing to break the law or for reporting suspected violations of law.

Proving wrongful termination

Companies with proactive HR teams are typically quite mindful of potential employment suits. While at-will employment gives companies the right to terminate employees without cause, many are careful to show their work: documenting poor performance reviews, warnings or attempted interventions. If there’s no record supporting the employer’s decision, they are in a more vulnerable position.

Often, the first step in a wrongful termination lawsuit is challenging the employer’s story and demonstrating you were fired under false pretenses. Then, you must also show that the employer’s actual reason for termination violated the law. After a termination, you’ll want to:

1.     Take notes about what was said during your meeting. While employers don’t have to give a reason for firing, some comments may be revealing.

2.     Don’t agree to your severance package right away. Doing so will almost certainly close the door on a future employment lawsuit. 

3.     Contact an employment lawyer to discuss your options. Getting an expert opinion from someone with a strong understanding of your situation and labor laws will help determine if you have a potential lawsuit, or if you’d be better served negotiating for a stronger severance agreement.

4.     Build up a record that challenges the company’s narrative regarding your firing. It’s helpful to save your performance reviews, make note of your company awards and flag emails from your supervisor celebrating your work. Since companies often freeze email access upon termination, maintaining these records on your own devices is a good practice.

5.     Collect evidence of employer wrongdoing. Depending on your situation, this could include your employment contract, the employee handbook, records of discriminatory comments or actions taken by your employer, written requests for accommodation or reports of wrongdoing.

 After evaluating your claim, your wrongful termination attorney will advise you on the best path forward. In employment law, it’s helpful to work with an attorney who understands Georgia businesses and knows the true, unspoken limits of possible compensation. If your goal is justice and future career growth, you’ll want an employment attorney who sets realistic expectations and provides hands-on representation.

 Contact Radford Scott to discuss your options

While there are limits to worker protections in Georgia, you do have rights. At Radford & Keebaugh, we represent individuals—not companies. We understand the corporate budgeting that plays into how much businesses set aside for possible employment settlements, and we know how to make a compelling case for wrongful termination. If you’re ready to move past an illegal firing and move forward in your career, we’re here to provide the legal advice to get you there. Contact us today to discuss your situation.

Red flags in severance agreements 

Severance agreements can be a helpful tool for transitioning through a job loss. They extend some temporary stability during a time of upheaval by offering benefits like pay, insurance coverage and even continued access to company perks.  

But businesses don’t trade away money and benefits without asking for something in return. Severance pay isn’t required by federal law, and Georgia is an at-will employment state, so companies are free to fire employees at any time, for any reason—so long as it’s not because of a protected characteristic, like race, religion, color, sex, national origin, age, genetic information and disability.  

Still, many companies choose to offer severance packages. Doing so helps limit damage to their intangible assets, like public goodwill, and their reputation as a great place to work. It’s not all about marketing and recruiting, though. Severance agreements typically include a release or waiver of liability for claims. Essentially, in exchange for the severance payment, an employee agrees to forgo the right to pursue any legal claims against the company.  

The severance agreement is often presented to an employee at an emotionally vulnerable point—the time of termination. It is no surprise that employers might sometimes abuse the process. While a severance agreement should work to everyone’s benefit, there are some red flags departing employees should watch for: 

You’re pressured to sign 

You are in no way required to sign a severance agreement or release of claims.

After a layoff, it’s easy to feel overwhelmed by all of the emotions that come with being let go—the surprise, disappointment, fear, self-doubt or even anger. It can be hard to carry out a conversation during a termination meeting, let alone review and sign a document.   

Companies should never pressure employees to sign severance agreements on the spot, or imply that they have to. Workers who are 40 or older have clearly defined protections in this respect. The Older Workers Benefit Protection Act (OWBPA) gives them 21 days to consider the agreement and a further 7 days after signing to change their minds. If the layoff is part of a larger downsizing, they have 45 days to review the agreement. Even if you’re under 40, many companies extend the OWBPA decision period to all employees—it’s always OK to ask HR how long you have.  

The agreement contains restrictive covenants  

Restrictive covenants, including non-competition clauses, confidentiality clauses, non-disparagement clauses, cooperation clauses or non-solicitation clauses, can seriously limit your career prospects, making the immediate gains—short-term severance pay—not always worth the sacrifices.   

While such covenants are becoming more and more common, you’ll want to carefully review the language before signing. If they bar you from working in your field for a period of time, your severance compensation should absolutely support you during that required career pause. But also ask yourself if that is what you want. Maybe you know you have strong contacts at another company and you’re ready to make moves towards a new job there. Or you’ve been considering starting your own business for years and don’t want to feel held back.  

Leaving money behind may be challenging during the uncertainty of a layoff, but, in some cases, it’s more advantageous to walk away without limiting your future flexibility and independence.  

You’ll be held responsible for damages   

If you’ve spotted restrictive covenants in your severance agreement, you’ll also want to look out for liquidated damages clauses, which set a fixed compensation amount for contract breaches. Typically, a business has to prove it was harmed by a breach of contract. If, for example, a company wanted to argue an employee’s violation of its confidentiality clause hurt them in some way, they’d have to demonstrate how. But with a liquidated damages clause, they can collect a lump sum from the former employee if a contract violation occurred.  

Liquidated damages clauses also pop up sometimes in employment contracts, even dictating the terms of your eventual exit. If you’re working with an employment attorney on a severance review, it’s often smart to return for an employment contract review down the road. 

You’re asked to give up rights 

A waiver of liability for claims is expected in any severance agreement. A company offers the goods—pay, insurance and other benefits—in exchange for the agreement not to sue. This in itself requires consideration if you believe the terms of your dismissal were unfair. Discrimination suits can be challenging, and it takes an employment attorney to give you a realistic assessment of your prospects. 

But while it’s fair for a company to ask you to sign a release of claims (so long as they’re offering you something in return and not pressuring you to agree), there are limits. A company should not: 

Ask you to release rights you cannot waive in the first place, like your cooperation with an Equal Employment Opportunity Commission (EEOC) investigation 
Ask you to waive future claims—claims that may happen after you sign the document  
Ask you to give up things you’re entitled to under federal or state law, like COBRA insurance coverage, unemployment compensation or workers’ comp pay

You’ll need to “stay available for questions” 

If you’re asked to work for a period of time before your official end date begins, or if you’re asked to help with training, answer questions or otherwise keep the ship running after you’re no longer employed, that’s an issue. If your severance contract hints at situations that don’t quite sound like an actual split, you’ll want to speak to an employment attorney to clarify what’s being asked of you and what payment you should expect in return.  

You get a lowball pay offer 

Employers typically offer one to two weeks of pay per year worked. Managers and executives typically get more. If you’re offered less than two weeks per year, or if your company suggests a small lump sum, that’s a sign there could be other issues in the contract. Unfortunately, many employees don’t realize this, believing a severance offer is a one-way negotiation. Your time with the company, your performance reviews and documentation of your ideas and contributions all increase your leverage.  

You should also have an exact understanding of how and in what increments your former employer will make severance payments.  

If you have earned benefits, like vested commissions or, in some cases, unused PTO, be sure this isn’t lumped in with your payments. The company cannot use compensation you have a right to as consideration for releasing employment claims.  

Schedule a severance agreement review with Radford Scott   

Severance agreements should help you move on in your career—not hold you back. If you’ve been affected by a layoff, contact an employment lawyer to set up a severance package review. We’ll offer you legal advice, helping you avoid pitfalls and negotiate for what’s fair. And when you’re ready for your next position, we can take a look at your employee contract to ensure you’ll be off to a good start. Contact Radford Scott today to set up your severance review.  