The Buckley Brown Blog

An employee who complained of pain from loading heavy crates of chickens for long hours is not entitled to compensation benefits, as held in Herman Miller v. Tip Top Poultry.  There, the Administrative Law Judge ruled in favor of the employer, despite the employee’s claim that the cumulative effect of his work caused a gradual deterioration of his condition to the point of disability. 
 
The evidence in Miller, which at times was contradictory, showed at most that the activities caused the employee pain.  But the court found that the employee ceased working because of his wife’s poor health and his need to be with her, instead of his physical condition.  Further, the medical evidence did not substantiate any physiological problems, only subjective complaints.  Without an injury proven by a preponderance of competent and credible evidence, the employee was not entitled to workers’ compensation benefits. Pain in and of itself does not constitute a compensable injury.  Johnson v. Boston-Old Colony Ins. Co., 106 Ga. App. 410 (1962).  Therefore, the claim for medical and indemnity benefits was denied in its entirety.

For more information, please contact Catherine Dellinger Buckley at (404) 633-9230.

Employers can terminate employees for any reason, except for illegal grounds, in “at-will employment” states such as Georgia.  However, whether an employee is entitled to unemployment benefits is a separate question. 

In general, employees who are terminated without cause (through no fault of their own) are entitled to unemployment benefits.  But employees are not entitled to unemployment benefits when fired “for cause.”   Therefore, employers should be sure to document the bases of for-cause terminations to successfully defend claims for unemployment benefits. 

Common reasons for terminating employees to disqualify them for unemployment benefits are listed below.  Suggestions for employers to successfully defend a claim for unemployment benefits as set forth under the Georgia Department of Labor Rules Chapter 300-2-9 also are included:

1.            Absenteeism or Tardiness

                Absenteeism or tardiness can significantly interrupt a company’s business and is a valid reason for terminating an employee “for-cause.”  Prior to doing so, an employer should be able to answer the following questions in the affirmative and, if possible, have documentation of the action taken:

·         Does the employer have a policy on absenteeism and tardiness?

·         Has the policy been communicated to the employee?

·         Has the employee been absent or tardy on prior occasions (prior to the occasion leading to the termination)?

·         Does the employer have a policy on notifying employees of problems with absenteeism or tardiness?

·         Has the employee been warned/notified about his/her problems with absenteeism or tardiness?

In addition to the above, the Commissioner of Labor also will consider the reasons for and the frequency of the absenteeism or tardiness to determine whether an employee was at fault in the discharge.

2.            Violation of Rules, Orders, Instructions, or Failure to Discharge Duties

                Employees who fail to follow rules or orders or to complete the job for which they were hired can not only hurt a company’s business, but also can affect company morale leading to additional problems.  This is a valid reason for terminating an employee “for cause.”  In terminating an employee for this reason, employers must be able to answer and document the following questions:

·         Were the rules, orders, instructions or duties clearly communicated to the employees prior to the incident leading to the termination?  If yes, how?  (It is best to have all expectations in writing.)

·         Did the employee violate the rules, orders, instructions, or duties?  (It is best to be able to point to a specific provision.)

·         Did the employee fail to discharge the duties for which the employee was hired?  (It is important to be able to identify the tasks with specificity.)

·         Was the violation or the failure to discharge the employee’s duties a result of the employee’s fault, intentional conduct, conscious neglect, or misconduct?

·         What was the extent of the violation or failure to discharge duties?

·         How severe was the impact of the violation or failure to discharge duties on the employer’s business?

3.            Property Loss or Damage

                While loss of or damage to property may be a valid reason to terminate an employee regardless of whether unemployment benefits will be owed, the employee’s unemployment benefits only will be disqualified when the loss or damage was the result of the employee’s intentional conduct and exceeded $2,000.00.

4.            Intentional Conduct Resulting in Bodily Injury

                An employee will not be entitled to unemployment benefits when the employee’s intentional conduct causes bodily injury to the employer, other employees, customers, patients, bystanders, or the eventual consumer of products.  The key factor in this analysis is whether the action was intentional; if it was not, the employee will be entitled to unemployment benefits.  Additionally, the Commissioner of Labor will consider the extent of the physical harm resulting from the conduct, the foreseeability of the injury, and other aggravating or mitigating circumstances, including whether the employee was warned about the conduct.  Further, employers must take a strict stand on terminating employees whose intentional conduct results in bodily injury because this action can lead to civil liability. 

5.            Physical Fights or Threatening Behavior

                As with intentional conduct resulting in bodily injury, it is important that employers have a zero tolerance policy with regard to physical fights or threatening behavior as this too can subject the employer to civil liability.  If an employee engages in physical fights or threatening behavior that is intentional and occurs on the employer’s premises or while the employee was working, the employee will not be eligible for unemployment benefits.  Additionally, the following questions should be considered and addressed:

·         Did the employee use a weapon?

·         Was anyone injured?

·         Was the employee provoked or threatened?

·         Had the employee been involved in fighting on the employer’s premises on prior occasions?  If so, had the employee been warned about fighting?

6.            Falsification of Employer Records

                Falsification of records by an employee, while difficult to detect, can be the basis for terminating  an employee “for cause.”  An employee who is terminated for falsifying information will not be entitled to unemployment benefits if the omission/misstatement was intentional and/or if the omission/misstatement was material.

                Keeping the above factors and issues in mind will help employers successful defend claims by terminated employees for unemployment benefits.  Of course, other considerations frequently factor into a decision to terminate an employee.  By no means should an employer retain a “problem” employee to avoid paying unemployment benefits; however, employees can never legally be terminated on the basis of race, sex, religion, color, or national origin. 

                The attorneys at Buckley Brown are available to assist you in defending unemployment claims and advising and defending other employment law claims.

 For more information, please contact Tim Buckley at (404) 633-9230.

On May 27, 2008, the United States Supreme Court ruled that race retaliation claims are allowable under 42 U.S.C. § 1981.  See CBOCS West, Inc. v. Humphries, __ S.Ct. ___, 2008 WL 2167860 (May 27, 2008).  While lower circuit courts have held § 1981 allows retaliation claims, this is the first decision from the U.S. Supreme Court on the issue.  This ruling will have a significant effect on the area of employment litigation because it conclusively establishes that individuals may bring claims of retaliation against employers under § 1981. 

As we explained in our February 29, 2008, blog, this decision is important because it allows employees to circumvent the strict time requirements of Title VII and confirms employers may be subject to retaliation claims, even if the employee did not follow the administrative procedures required by Title VII.  In Georgia, this means employers must watch for retaliation claims for two years from the alleged retaliatory action rather than only watching for an EEOC Charge within 180 days after the alleged retaliatory action and a lawsuit within 90 days after the issuance of a right-to-sue letter from the EEOC. 

The attorneys at Buckley Brown are available to assist you in preventing and defending retaliation and other employment discrimination claims, under both Georgia and federal law.

For more information, please contact T.K. Haff at (404) 633-9230.

Employers should keep their employees’ personnel file information private from those who have no reason to have the information, including statements related to terminations.  Such statements may constitute defamation, according to the Supreme Court of Georgia in the case of Scouten v. Amerisave Mortgage Corp., 283 Ga. 72 (2008).  

In Scouten, the Court held that the complaint sufficiently stated a claim for defamation, including the required element of publication, where a former employee alleged that defamatory statements relating to his termination were disseminated to coworkers who had no need for access to employee’s private personnel information. The court explained that to recover for oral defamation or slander, one must prove (1) the making of a slanderous statement; and (2) publication of the slander to anyone other than the person slandered.

The Scouten Court explained that when a communication is intra-corporate or between members of unincorporated groups or associations, there is no publication if the alleged defamatory statements are stated to those who have the duty or authority for the information. However, the intra-corporate exception to publication does not apply to defamatory statements disseminated to employees who have no reason to receive the information. 

For more information, please contact Tim Buckley at (404) 633-9230.

The United States Patent and Trademark Office (”PTO”) offers two federal trademark registers - the Principal Register and the Supplemental Register. Marks may be registered on the Principal Register if they are shown to distinguish the applicant’s goods and services. Marks may be registered on the Supplemental Register if they pass the more moderate test of being “capable of distinguishing applicant’s goods or services.”

Registration on either the Principal or Supplemental Registers:

• allows the owner of the registered mark to use the registration symbol ® to deter infringers and impress customers (who may wrongly think that ® implies some sort of government approval);
• provides protection under §39(b) of the Lanham Act against state restrictions on use of the mark;
• gives priority rights in registering in foreign countries according to the provisions of international treaties; and
• places the mark on the PTO database and website at http://www.uspto.gov to serve as notice and may prevent others from adopting the same or similar mark.

Registration on the Principal Register provides the following additional advantages:

• provides constructive notice to those who might later adopt the mark;
• is prima facie evidence of the mark’s validity and registration as well as evidence of the registrant’s ownership and exclusive right to use the mark in commerce;
• allows the mark owner the right to ex parte seizure of goods bearing a counterfeit mark (”a spurious mark that is identical with, or substantially indistinguishable from, a registered mark”);
• gives the owner the right to treble damages (a multiple of actual damages) and attorneys’ fees against intentional use of a counterfeit mark, in the absence of extenuating circumstances;
• provides a deterrent effect of severe criminal penalties for the use of counterfeit marks;
• allows the owner to have the Bureau of Customs exclude imports bearing infringing marks; and
• gives the owner the right to apply to have the mark declared “incontestable” (although it can still be challenged, it is the highest form of protection available) after five years on the Principal Register and compliance with certain formalities.

Registration of the mark on the Supplemental Register, while not providing the more expansive protection of a mark registered on the Principal Register, will provide the following benefits to the registrant:

• allows the owner to file an infringement action in federal court;
• gives the PTO the ability to cite the mark against a later application by a third party for a substantially similar mark on the Principal Register;
• provides the owner the opportunity to have the mark registered on the Principal Register. This can be accomplished by showing that the mark has acquired “secondary meaning.” A showing of secondary meaning may be demonstrated once the mark has been in use for a period of time, usually five years.

In sum, registering your trademarks with the United States Patent Trademark Office offers many advantages and can help to protect your business assets.

For more information, please contact Carolyn E. Wright at (404) 633-9230.

On Friday, April 25, 2008, a secretary with an Atlanta downtown law firm was shot and killed by a co-worker during lunch.  This was a tragic event that will be investigated by the authorities.  Along with her unfortunate loss, her employer will also have to address the question of whether her death is compensable under workers’ compensation.

The Georgia Board of Workers’ Compensation examines two issues to establish whether workers’ compensation covers the willful acts of third person.  As a general rule, where an employee is free to use time for the employee’s individual affairs and an injury occurs during this time, the injury is not compensable.  However, if the employee is conducting the employer’s business during the break, the injury would be compensable.  Further, where an injury or death of an employee arises from the willful act of a co-employee or third party, the attack must be related to work in some way, rather than from personal animosity, to render the death or injury compensable.  

In this instance, a co-employee (who worked for a temporary agency) from the law firm’s records room approached the secretary at lunch outside at a picnic area.  After a quarrel, the co-employee shot the secretary and then killed himself.  What remains to be determined is the nature of their relationship and if anyone overheard the substance of the escalating conversation.  If the shooting was the result of a rebuffed personal advance or a soured personal relationship, the death would not be work-related.  Conversely, if the co-employee was angry about a job request or assignment given to him from the secretary, the death could be compensable.  Finally, if the secretary was on her free time for lunch but was working on employment-related business, the injury by a co-employee for personal reasons likely would not be compensable.  It would be the same as if the injury occurred during any hour of the day at work.  Of course, to make a final determination of compensability in any case, the specific facts must be examined.

For more information, please contact Catherine Dellinger Buckley at (404) 633-9230.

These days, authors, artists, and photographers are likely to find one or more of their creative works used without permission.  One defense to the purported infringement is often that it is a “fair use.”  The challenge is determining whether the unauthorized use is an infringement or fair use.  While only a court of law can make that decision, understanding what makes a use “fair” will help you protect your work.

Surprisingly, the purpose of copyright law is not to protect the work of creatives, but, as stated in Article I, section 8, clause 8, of the United States Constitution, it is “to promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”  Copyright law attempts to achieve a balance between public interest and the rights of authors/artists so that artists will be encouraged to create and the public will be the ultimate beneficiary.  In many ways, the priority leans towards public concerns when there is any conflict in those interests.  As a result, the law may not seem fair or just to the copyright owner.   

Rights of Copyright Owners

A copyright is created at the moment a work is made into a fixed form. For authors, it is created when you type the words on your computer.  For pho­tographers, it is created at the click of the shutter.  For artists, it is created when the paint is applied to the canvas.  Copyright law pro­tects both unpublished and published works, regardless of whether they have been registered with the U.S. Copyright Office. 

Copyrights give the owner the exclusive right to do, or to authorize others to do, specific things with their works. Copyright law effectively gives you, as the copyright owner, a legal monopoly on the use of that image. It also gives the copyright owner the right to prevent someone else from destroying their work. 

 When you own a copyright, you have the sole right (also known as the “exclusive rights”) to:

Enter fair use.  Fair use is the right to use copyrighted materials without the copyright owner’s permission.  It was designed as an exception to the exclusive rights granted above, permitting limited and reasonable uses without permission as long as they do not prejudice the copyright owner’s rights or interfere with normal exploitation of the work.  The classic example of fair use is the quotation from a book being reviewed.  Since an author usually does not review his own book, the impact of the quotation on his interests should be minimal.  If, however, so much material is quoted that the review will substitute for a purchase of the book, the use will not be considered fair.   

Thus, fair use is intended to allow the unauthorized use of copyrighted materials for the benefit of society, believing such use serves a higher purpose.  But fair use has its limits, too.  Specifically, Section 107 of the Copyright Act states that:

the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work. 

17 USC § 107. 

All four factors (as indicated by the “and” before the last factor) are considered by a court to determine whether a use is fair. 

The “purpose and character of the use” is considered one of the most important indicators of fair use.  Courts determine whether the copyrighted work has been used to create a new work (often referred to as a “transformative use”) instead of simply copied and/or placed into another work.  

A court is more likely to find fair use when the “nature” of the copyrighted work used has been published, rather than unpublished.  Copyright law recognizes the right of photographers to control the first public appearance of works.

An unauthorized use will more likely be considered a fair use if a small amount or insubstantial portion of the entire work has been used, such as a short quote from a book.  While such a “de minimis” use is more difficult with photographs than when copying text, it can occur when the photos are in the background of a video, for example. 

When the unauthorized use directly effects and competes with the copyright owner’s business or potential for income, a court will usually find that the use was not a fair use.  This is true even when the use is not in an area of business directly competing with the photographer – such as selling sculptures based on a photo.  What matters is that the photographer could have made money in that field.  

Apparent Inconsistencies in Fair Use Cases
Because of the subjective nature of the fair use factors, many court holdings on fair use appear to be inconsistent.  For example, in July 2008, a federal court in Massachusetts determined that CBS news’ use of Christopher Fitzgerald’s photograph of Stephen Flemmi being arrested was not fair use.  A summary and analysis of the case written by Fitzgerald’s attorneys can be reviewed at http://www.nppa.org/news_and_events/news/2007/07/fitzgerald.html.  However, some courts have found fair use when a photograph has been used by news organizations.  See the October 25, 2006, blog at http://www.photoattorney.com/2006_10_01_photoattorney_archive.html on Chris Harris’ case for an example.  However, it’s clear that the unauthorized use of a photograph is much more likely to be deemed a fair use when the photograph itself is newsworthy.

A review of significant fair use cases can be found at http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-c.html.  A review shows that it is sometimes difficult to predict how a court will rule on a fair use case.  While this can partially be attributed to the specific fact situations presented, it does appear that the current application of the law on fair use is unstable and unpredictable.

Conclusion

It is always a judgment call until a court gives a final ruling whether the use of a photograph is fair.  But if you find your work has been used without your permission and the defense is “fair use,” don’t be too quick to accept that answer.

For more information, please contact Carolyn E. Wright at (404) 633-9230.

In a slip and fall case, the plaintiff must show that the defendant had actual or constructive knowledge of the hazard that caused the injury in a slip and fall case.  But if the plaintiff’s knowledge was equal to or greater than that of the defendant, then the case will be dismissed.

Accordingly, the Court of Appeals recently affirmed a granting of summary judgment in favor of the defendant in a slip and fall case.  In Diaz v. Wild Adventures, Inc., — S.E.2d —, 2008 WL 239859 (Ga.App. 2008), the plaintiff fell at an amusement park when stepping in a puddle of water on a ride’s metal walkway.  Diaz admitted that he was aware that rain water had accumulated around the ride, having seen water flowing down the sides of the ride and onto the floor.  Diaz also admitted that he noticed the floor of the ride was very wet and dirty before attempting to enter the ride. 

The cars on the ride where Diaz fell traveled over small carbon deposits, which made the car’s floor appear dirty.  Because Wild Adventure’s facility manager acknowledged that graphite is a type of carbon, Diaz argued that Wild Adventure was aware that graphite, a known lubricant, was on the floor of the ride, making it more slippery. 

But the Court of Appeals did not agree.  It found that Diaz did not prove that carbon dust made the floor more slippery than rain water alone and that Wild Adventures did not have constructive knowledge of the hazard because it cleaned the floor each morning.  Since Diaz failed to prove that Wild Adventures had actual or constructive knowledge of the alleged hazard, it did not have the requisite superior knowledge; thus, the court affirmed summary judgment for the defendant.

For more information, please contact Tim Buckley at (404) 633-9230.

On April 24, 2008, several Buckley Brown attorneys will join a distinguished panel of speakers for a one day seminar addressing issues related to Municipal and Governmental Liability claims.  Among the scheduled speakers are United State Magistrate Judge Alan J. Baverman, University of Georgia School of Law Professor Thomas A. Eaton, and Bryan A. Downs, City Attorney for the City of Decatur, Georgia.  The seminar—appropriate for attorneys as well as human resource and claim professionals serving federal, city, county, law enforcement and state governmental agencies—will address recent trends and issues in cases involving claims against governmental agencies and individuals serving the federal, state and local governments.  Registration, directions and other information is available at www.iclega.org/schedule.html.

The Georgia State Bar has recommended changes to the Georgia Evidence Code that will affect the introduction of expert testimony at trial.  This proposal comes in response to several concerns about the existing statute on the admissibility of expert testimony at § 24-9-67.1.

Prior to March 2005, Georgia’s law on the screening of scientific expert testimony was tangled and untidy.  Georgia then adopted § 24-9-67.1 to provide order to the law by applying the federal Daubert line of cases (codified in Federal Rule 702) to civil cases in Georgia, and applying Harper v. State, 249 Ga. 519 (1982) and Riley v. State, 278 Ga. 677 (2004) to criminal cases.  The State Bar believes, however, that the existing statute violates Federal Rule of Evidence 703 and has other deficiencies.

In response, the State Bar’s proposed new rule (24-7-702(b)) provides a single standard for both civil and criminal cases.  Reinstating the Harper standards, a party would be able to challenge expert testimony based on scientific theories or techniques that have not “reached a scientific stage of verifiable certainty.”  Further, the proposed rule requires an expert’s testimony to be “based on sufficient facts or data,” and “the product of reliable principles and methods,” and the witness must have “applied the principles and methods reliably to the facts of the case.” § 24-7-702 (b).  As Georgia has an interest in not allowing evidence that would not be admissible in other states, the comments to the proposed rule note that a court should not look to federal cases to compare Georgia’s evidentiary standards, especially considering that Daubert is not the law in most states.

Another change in proposed Rule 24-7-702 is to set a 14 day time frame after the close of discovery for bringing motions to exclude expert testimony to allow sufficient time to find a new expert, if needed.  However, “[b]ecause the rules of discovery are different in criminal cases and there often is very little time between notice that an expert will testify and the trial date,” the comments provide, “no time limit is recommended for bringing a [motion to exclude expert testimony] in criminal cases.”

Finally, the proposed rule establishes a new standard for the trial judge to use in excluding expert testimony.  Specifically, rather than using his or her own judgment as to whether the expert’s testimony satisfies the requirements of section (b) of the proposed rule, the judge will decide the motion on whether a reasonable jury could decide so.

Text of the proposed changes and the comments are available on pages 76-80 of the Report of the Evidence Study Committee of the State Bar of Georgia, available at

http://gabar.org/public/pdf/news/proposed_new_evidence_rules.pdf

While the proposed changes have not been introduced to the state legislature, the acceptance by the State Bar signals that the proposition could soon move in that direction.  As many unanswered questions remain, and will continue to arise throughout the legislative rulemaking process, we will continue to update any new developments concerning these proposed new rules of evidence.

For more information, please contact Tim Buckley at (404) 633-9230.