All lawsuits begin with the filing of a complaint.  Your complaint will set forth the facts of your case and the cause of action for which you are looking to recover.  For example, if you entered into a contract whereby you provided consulting services for a fee of $20,000 and the other party failed to pay for those services, the complaint may set forth the terms and conditions of the contract and the cause of action may be for breach of contract.

 After filing the complaint, it must be served on the defendant.  Service can be made by the sheriff’s office or through a private process server.  Once the defendant is served, he has 30 days in which to file his answer.  If the defendant does not file an answer within this time period, you can file for a default judgment, in which the court may grant you a judgment for $20,000.  If you are going to file for a default judgment, you should technically wait 45 days before filing.

 Assuming the defendant files an answer, you will then have an automatic 6 months in which to conduct discovery.  Discovery may consist of filing interrogatories and requests for production, as well as taking depositions.  Interrogatories are questions you pose to the other party for which you want answers, and requests for production are requests for documents that the other party has in his possession.  You may also request documents from third parties.  Depositions are essentially question and answer sessions of an individual or corporate representative that are taken under oath by a court reporter.  The rationale for interrogatories, requests for production and depositions is to find out information which can both help and potentially hurt your case, and on which the other party is going to rely on to win the case.

 If the parties do not reach a resolution to the case prior to the close of discovery, the matter will be placed on a trial calendar and will eventually be set for trial.

 The information above does not contain every aspect of the litigation process, but rather gives you an overview.  Due to the number and complexity of laws involved with litigation, it is advisable to retain an attorney if you have to file a lawsuit in state or superior court.

 Michael Weinstein is an attorney with MBW Law, LLC in Johns Creek. He specializes in labor and employment, corporate transactions, landlord/tenant and litigation. Contact Mike at (678) 387-3396 or mike.weinstein@mbwlaw.net.

However, there are clear exceptions to employment at will, including federal laws that protect employees from suffering an adverse employment decision based on being in a protected class, which include, but are not limited to, the employee’s race, sex, age, religion, and national origin. For example, if Wendy works at a car dealership and her employment is terminated because a customer complained about having to buy a car from a woman, there most likely will be legal consequences for the car dealership if Wendy decides to pursue a claim for wrongful termination.  However, if Wendy’s employment is terminated because the sales manager comes in one day and decides he does not like her, there may not be any legal consequences.

The Equal Employment Opportunity Commission is responsible for enforcing the federal laws that protect employees from being discriminated against by their employers. If an employee believes they have suffered an adverse employment decision based on being in a protected class, they have 180 days from their date of termination to file a complaint with the EEOC. Once a complaint is filed, the EEOC will investigate the claim and make a finding as to whether the employee was discriminated against.  If the EEOC finds there was discrimination, they will attempt to find a resolution for the parties.  If they are not successful, they can either decide to file a lawsuit on behalf of the employee, or decide that if the employee desires to file a lawsuit, it must be done without their assistance.  In most instances, the EEOC will not file a lawsuit on behalf of the employee unless they believe the discrimination is quite clear.  At any stage in the EEOC’s investigation, the employee may request the EEOC stop its investigation.  If an employee makes this request, the employee will then have 90 days in which to file a lawsuit against the former employer alleging discrimination of laws covered by the EEOC.

Michael Weinstein is an attorney with MBW Law, LLC in Johns Creek. He specializes in labor and employment, corporate transactions, landlord/tenant and litigation. Contact Mike at (678) 387-3396 or mike.weinstein@mbwlaw.net.

Mediation is a non-binding process where both parties sit down with an impartial mediator in an attempt to find a resolution to their case.  Each side, beginning with the plaintiff, may make an opening statement, and then the mediator will sit down with each party individually to discuss the case.  A good mediator will not just point out the strong elements of your case, but, more importantly, will point out the weak elements of your case.  Furthermore, when assessing your case, a good mediator will help inform you of what you will need to prove in court to win your case.  Often times, knowing you are right and being able to prove it are two different things.  And if you do not have the information or ability to prove your case in court, it does not matter how right you may be.

A benefit of mediation is it provides an opportunity to reach a resolution that is agreeable to both parties.  That is in contrast with going to court, where one party will most likely win and one party will most likely lose.  That being said, if you choose to participate in mediation, you should go in with an open mind.  If you are not going to be willing to listen to what the other party has to say, or are not going to be willing to reach a compromise whether in terms of value or time, you are better off not participating in mediation.

Michael Weinstein is an attorney with MBW Law, LLC in Johns Creek. He specializes in labor and employment, corporate transactions, landlord/tenant and litigation. Contact Mike at (678) 387-3396 or mike.weinstein@mbwlaw.net.

 In a situation where a tenant has not paid rent when due under a lease agreement, Georgia law requires the landlord to make a demand on the tenant for the tenant to voluntarily vacate the premises.  If the tenant receives the demand and refuses to vacate the premises, the landlord may then file a dispossessory action in a court in the county where the property is located.  A dispossessory proceeding is filed when the landlord, or an agent acting on the landlord’s behalf, makes an affidavit under oath in front of a judge or magistrate with appropriate jurisdiction, that the tenant has not paid rent when due and that demand has been made for the tenant to vacate the premises.

 After filing the affidavit with the court, the sheriff’s department will serve the tenant with a summons and a copy of the affidavit, and the tenant shall have seven days in which to file its response.  If the tenant pays all rent due to landlord within this seven day period, the tenant shall be allowed to remain in the premises.

 However, if the tenant fails to file an answer within this seven day period, the landlord will receive a writ of possession that requires the tenant to vacate the premises, and may also receive a default judgment for all rent due.  If the tenant files an answer within this seven day period, in order for the tenant to remain in the premises, the tenant must pay all rent due into the court.  If the tenant fails to do so, he must vacate the premise.  However, with regard to the issue of rent due, if the tenant has filed an answer within the seven day period, the landlord will have to follow the rules governing a civil lawsuit to collect the rent due.

 If a judge rules that the tenant shall be evicted, it is possible that the sheriff’s department will have to conduct the eviction process. However, it is always preferred if the tenant vacates the premises peacefully.

 Michael Weinstein is an attorney with MBW Law, LLC in Johns Creek. He specializes in labor and employment, corporate transactions, landlord/tenant and litigation. Contact Mike at (678) 387-3396 or mike.weinstein@mbwlaw.net.

 In the scenario where the client does not step forward and pay the judgment, there are some techniques you can use that will increase the probability of receiving payment.  Of course, the first step should be to attempt to contact the client and see if you can work out an arrangement for payment.  If that is not successful, the most common technique is to file post-judgment interrogatories in an attempt to determine if and where the client has assets.  These are filed with the court that entered the judgment and the client has a responsibility to provide truthful answers, or run the risk of being thrown in jail.  Of course, if you already have information where the client’s assets are being held, or if the client is employed, you may not need to file post-judgment interrogatories.

 Assuming you file and receive answers to post-judgment interrogatories, the most likely next step is to proceed with a garnishment action.  A garnishment action is a court action where you ask a third party (ex. client’s employer, client’s bank) to withhold some of your client’s assets for your benefit and to send those assets to the court for disbursement to you.  The nice thing about garnishment actions is that it puts an affirmative duty on the third party to set aside your client’s money for your benefit.  For example, if your client’s employer is served with the garnishment paperwork and then refuses to pay money into the court, you are entitled to pursue a cause of action against the employer.

 Unfortunately, even with the threat of being held in contempt and facing the possibility of being placed in jail, there are many times where the client will not answer post-judgment interrogatories.  Accordingly, one technique I advise my clients to use is to try to find information at the outset of the client relationship.  Ask where the client works, if applicable, or if you have received a previous payment from the client, take note of where the payment came from.

 With the amount of individuals and companies struggling today, there is an increased likelihood that some are going to fail to pay for services provided.  As a result, if you can find out information at the outset of the relationship that would be helpful in collecting on a judgment, it will save you a great deal of time and aggravation.

 Michael Weinstein is an attorney with MBW Law, LLC in Johns Creek. He specializes in labor and employment, corporate transactions, landlord/tenant and litigation. Contact Mike at (678) 387-3396 or mike.weinstein@mbwlaw.net.

When running a business where you are providing services to a customer, it is important that you have a valid contract in place that lays out exactly how the business relationship will work.  While we all like to hope that we are not going to have any problems with our customers, this is not the reality.  And if you find yourself in court with a customer, the first thing the judge is going to want to do is review the contract.

In drafting a contract, there is usually nothing wrong in keeping it simple. One technique that will help you keep it simple is to think of the following questions:  Who are the parties to the contract? What is the contract for? How much does it cost? When is the service to be provided? When is payment to be made? How does the contract terminate?

In addition, when drafting contracts, I advise my clients to be a little selfish. For example, let’s assume you are my client and have been hired to perform consulting services for a technology company at the rate of $100 per hour.  The project requires you to work 40 hours per week for 24 weeks, making the project’s value $96,000.   While a common clause in contracts allows either party to terminate the contract with or without cause upon providing the other party with 30 days’ written notice, I would advise you to be selfish and propose language that states the contract can only be terminated with cause.  This way, as long as you perform the services agreed to in a competent manner, you will be entitled to receive payment for a period of 24 weeks.  On the flip side, if I were representing the technology company, I would advise them to give themselves the ability to terminate without cause upon providing you with 30 days’ written notice.

A similar technique can be used when it comes to pricing.  If you are happy with the rate of $100 per hour, the contract should state that the price shall remain constant throughout the project’s duration.  On the other hand, if you consider $100 per hour as an introductory price used to get your foot in the door, you may want to propose fee increases after 60 days and 120 days.

Coming Next Week – I Received A Money Judgment; Now What?

Michael Weinstein is an attorney with MBW Law, LLC in Johns Creek. He specializes in labor and employment, corporate transactions, landlord/tenant and litigation. Contact Mike at (678) 387-3396 or mike.weinstein@mbwlaw.net.

For example, assume Pete is a manager of ABC Wood Floors in Alpharetta, where they specialize in wood floors, and do not sell any other flooring products.  If, upon being hired, Pete signed a non-compete agreement that stated for a period of 12 months after his termination from ABC Wood Floors he cannot work for any other wood flooring company in Alpharetta, a court would most likely deem that non-compete agreement to be enforceable.  If, however, the non-compete agreement stated that for a period of 24 months after his termination, Pete could not work for any flooring company in Georgia, the agreement would most likely be deemed unenforceable.

In making this determination, a court would look to the length of the non-compete, the geographical territory covered, and that it is not limited to wood flooring companies, but rather encompasses all flooring companies.  In order for a non-compete agreement to be valid in this situation, it should be limited to wood flooring companies, and the territorial restriction must be narrower, such as Fulton County. In addition, the geographical territory should not encompass areas where the company does not do business. If ABC Wood Floors does not do business outside of metro Atlanta, the non-compete agreement should not cover areas outside metro Atlanta.

And while some states allow their courts to “blue-pencil” non-compete agreements — which means a judge can revise an overly broad non-compete agreement to make it enforceable — Georgia courts do not do this. As a result, if one even one part of the non-compete agreement is deemed unenforceable as written, the entire agreement will be found to be unenforceable, and then the former employee would have no work restrictions at all.

However, as with most areas of the law, there are exceptions to every rule.  The most common exceptions to the payment of overtime are called the white collar exemptions.  The white collar exemptions state that if an employee is an executive, professional, or administrative employee, he or she may be paid on a salary basis, rather than an hourly wage. 

To be considered an executive employee, the employee’s primary duty is the management of a company or division, which includes the supervision of other employees, and having the ability to hire or fire other employees.  Examples of executive employees are restaurant managers, warehouse supervisors, and construction superintendents.

With respect to the administrative exemption, an employee must have a primary duty that includes the performance of office or non-manual work directly related to the management or general business operations of the employer, and must have the ability to exercise discretion and independent judgment regarding matters of significance.  Some examples are administrative assistants, purchasing agents, and human resource managers.

The professional exemption requires the employee to have a primary duty that includes the performance of work requiring knowledge of an advanced type in a field of science or learning that is normally acquired through higher education.  Professional employees would include doctors, lawyers, and accountants.

However, employers should be mindful that assigning an employee a job title that appears to fall into one of the exemptions mentioned above will not shield the employer from the requirement to pay overtime.  Rather, the employee’s job responsibilities and duties will be examined when determining if an exemption from overtime is applicable.

What determines whether an individual should be considered an employee or an independent contractor?  In making this determination, courts have held it depends on whether the employer has the right to control the time, manner, and method of executing the work.  In making this determination, some of the factors courts have looked at are the level of supervision provided, whether the employer or individual provides the equipment used for the job, the level of skill required, where the work is performed, whether the work is limited to a particular project and whether the work is an integral part of the business of the employer.  It has been said that an independent contractor renders service that represents the will of his employer only as to the result of the work and not as to the means by which the work was accomplished.

There have also been instances where an individual did not understand they were being classified as an independent contractor, and at the end of the relationship with the employer, they have gone to the Department of Labor to file for unemployment benefits.  However, independent contractors are not eligible for unemployment benefits.  If the Department of Labor believes the individual should have been classified as an employee, and not an independent contractor, this can result in an audit of not only that individual’s employment status, but of every individual working for that employer. 

During the audit, the Department of Labor has the right to review employment records for previous years for all individuals who worked for the employer, as well as those of individuals currently working, and if they find irregularities, they will require the employer to make restitution.  Unfortunately, in this situation, what may have started with an issue involving one individual has the ability to cause far more significant harm for the employer.

As with most legal matters, it is always wise to seek guidance prior to making a decision that can have far-reaching consequences.