The Covid Card is not the excuse you use when you don’t want to attend an event or visit a relative.  The Covid Card is a handwritten note that we should all be sending to our employees, customers, clients, friends, and relatives. 

Since Covid, most people are much less social.  Many of us have been working remote or with substantially less interaction with others.  Team meetings and Zoom are not sufficient to prevent the feelings of isolation and loneliness.

Now is the time we should be lifting up others in the means that we still have.  Send your friends a handwritten note or card every four to six months.  They will remember your thoughtfulness even after the pandemic is over.  Your friends and relatives need the encouragement. 

Your remote coworkers and employees are working hard alone.  They may have felt like part of a team but now they feel isolated.  There are many things we can do to include and uplift our coworkers and employees.  Say something positive about the person in emails.  Remind the employees that you are a team by sending uplifting cards and maybe tell them something encouraging during online meetings.

It is hard to market to our clients and customers and to maintain the relationships we have long developed.  It is even harder to develop new relationships.  It is important to reach out to your customers and clients, new and old, with cards, gift cards, and invitations to outside events.  Don’t just ignore those relationships because you cannot invite them to lunch or to your usual events.  Send cards.

Sending cards is easy but does take some effort.  Be intentional about it.  Make a schedule and stick to it.  Have great stationary on hand and an easy way to access addresses.  You are going to brighten up the day of others, maintain relationships and encourage your workers. 

This article was written by GM Attorney, Sara Blackwell.

Goodman McGuffey LLP is pleased to announce the hiring of several new attorneys across various practice areas: Katherine Barton, Matthew McKagen, Paul Spann, Graham Newsome, Brett Tyler, Anna Waller, and Alice Hollaway. The firm is delighted to welcome these new talents and enthusiastic about their future’s here at Goodman McGuffey LLP.

Katherine I. Barton started as a law clerk in May 2019 working out of the Atlanta, GA office of Goodman McGuffey. After graduating from Georgia State University College of Law in May 2020, Katherine officially joined the firm’s liability defense practice group as an associate attorney focusing her practice on auto bodily injury, auto property damage, premise liability, and professional liability.

Matthew Phillip McKagen joined Goodman McGuffey LLP in January of 2021. Matthew is an associate of Goodman McGuffey and works out of the Atlanta, GA office. Matthew represents individuals and corporations in a wide range of general litigation matters in federal and state Courts across Georgia. Matthew has experience defending cases involving premises liability, auto bodily injury, professional liability, and medical malpractice.

Paul J. Spann is an Associate Attorney working out of the Atlanta, GA office of Goodman McGuffey LLP. His practice is focused on general civil litigation. Paul has practiced law in Georgia since November of 2019 and joined the firm in January of 2021.

Graham Newsome is an Associate Attorney working out of the Atlanta, GA office of Goodman McGuffey LLP. Graham focuses his practice on employment litigation for management, defending corporations in lawsuits arising under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), the Family and Medical Leave Act (FMLA), and the Americans with Disabilities Act (ADA), as well as related state laws. Graham also maintains a practice that includes providing daily HR advice and counseling to employers of all sizes.

Brett C. Tyler is an Associate Attorney working out of the Atlanta, GA office of Goodman McGuffey LLP. Brett’s practice focuses on representing insurers and employers in workers’ compensation matters. Brett has been licensed to practice law in Georgia since 2007 and in Alabama since 2017.

Anna M. Waller joined Goodman McGuffey LLP in March 2020 as an Associate Attorney working out of the Atlanta, GA office.  She is a part of the firm’s liability defense team.  Prior to joining the firm, Anna worked as an attorney for the State of Tennessee in Nashville, primarily in the areas of consumer protection, non-Medicaid false claims enforcement, nonprofit regulation and election law.

Alice B. Hollaway is an Associate Attorney at the Atlanta, GA office of Goodman McGuffey LLP, where she primarily focuses her practices on insurance defense and civil litigation. Prior to joining Goodman McGuffey, Alice served as an Assistant District Attorney for the Atlanta Judicial Circuit in Fulton County prosecuting serious violent felonies. She also served as an Assistant District Attorney for the Dougherty Judicial Circuit in Albany, Georgia.

In a decision issued March 11, 2021, the Court of Appeals of Georgia reversed a jury verdict of $8.6 million in damages against the employer of a stunt man killed during the filming of The Walking Dead. The stunt man, John Bernecker, was standing in as Mark, the character played by Griffin Freeman in the series.  As part of the episode, the fictional Mark was to be shot and then thrown off a balcony. During the first take of the scene, the stunt was interrupted and Bernecker unintentionally fell off the balcony.  He missed the “catcher system” designed to break his fall and struck his head on an unprotected area of concrete resulting in a fatal injury.

A jury found that John Bernecker was an independent contractor rather than an employee of Stalwart Films LLC and that Stalwart Films LLC and certain of its employees were liable for 94% of the damages*. The defendants asserted the immunity defense of the Georgia Workers’ Compensation Act, contending that Bernecker was an employee and therefore Stalwart Films LLC was immune from suit. Despite the finding by the jury, a three-judge panel of the Court of Appeals found that the undisputed evidence presented at trial established that Bernecker was an employee and that therefore his sole remedy was workers’ compensation benefits.

In support of their claim that Bernecker was an independent contractor, the plaintiffs relied upon the facts that Stalwart Films LLC (i) had issued Bernecker an IRS Form 1099, (ii) did not withhold any taxes, and (iii) did not provide any insurance to Bernecker. The Court cited longstanding law that the true test in determining whether someone is an employee or independent contractor is whether the employment contract gives or the employer assumes the right to control the time, manner and method of executing the work as distinguished from the right merely to require definite results in conformity to the contract. The Court relied heavily upon the contract with Bernecker which stated that it was for the employment of Bernecker. The Court noted that Bernecker could request only minor changes to assist him in performing the stunt, was directed as to exactly how he should act during the stunt, and had to appear at a specific call time on a specific day. He was expected to perform when told to, and his every movement and body placement were directed by Stalwart Films LLC.

Because it was determined that Bernecker was an employee of Stalwart Films LLC, Stalwart Films LLC and all of the employees of Stalwart Films LLC were immune from suit because of the immunity established under the Georgia Workers’ Compensation Act. Georgia has long been recognized as having one of the strongest workers’ compensation immunity provisions in the nation and this case is another example of the preference for finding an employment relationship to support finding employers immune from suit in Georgia.

Stalwart Fims LLC v Bernecker, Court of Appeals of Georgia, Case #A20A1896 (March 11, 2021) 

*The jury found that Bernecker himself was 6% at fault so the damages for which Stalwart Films LLC was responsible were reduced to 94%.

You can access this article written by Wade McGuffey by clicking HERE.

Featured In This Article:

C. Wade McGuffey, Jr.

Founding Partner

Atlanta Office, Orlando Office

Associate Samantha Mullis has been nominated for Secretary of the Young Lawyers Division of the State Bar of Georgia. She is running in one of two contested election races this year. Samantha is passionate about serving the Young Lawyers Division being part of the 2020 YLD Leadership Academy. Previously she served as co-chair of the Women in the Profession Committee for two years and has been a dedicated member of the YLD in general. Samantha is running on a platform of mental health awareness, inclusion and growth, and continued community service. Check out her candidate bio HERE.

If you are a licensed attorney in Georgia under the age of 36 or who have been admitted to practice less than five years, you are eligible to vote for Samantha. Just login to your State Bar of Georgia profile and click the “vote” icon. Click HERE to go to the State Bar of Georgia website. Voting is from March 22, 2021 through April 23, 2020.

On March 10, 2021, Congress passed the American Rescue Plan Act of 2021 (“ARP Act”), a $1.9 trillion stimulus bill to help speed up the recovery of the struggling United States economy that resulted from COVID-19. President Biden signed the bill the following day. 

The ARP Act was first introduced by Representative John Yarmuth, a Democrat from Kentucky. It was then considered by the House Budget Committee and later passed by the U.S. House of Representatives on February 27, 2021. The Senate passed a modified version of the original bill on March 6, 2021 and then on March 10, 2021, the House passed the final version of the bill. President Biden signed the bill into law on March 11, 2021, just before certain COVID-19 aid programs expired.

Most importantly for the general public, the ARP Act provides $1,400 stimulus payments for individuals making under $75,000, tax-free student loan forgiveness, and expanded federal unemployment insurance. The ARP Act also earmarks over $300 billion for state and local governments, over $100 billion toward the reopening of schools, and almost $100 billion for further COVID-19 testing and vaccinations.

Employers may also be interested to know that the ARP Act has extended the tax credits available to businesses with fewer than 500 employees under the Families First Coronavirus Response Act (“FFCRA”) through September 30, 2021 thanks in part to former President Donald Trump, who signed a pandemic relief package into law on December 27, 2020.  The pandemic relief package did not require employers to provide paid FFCRA leave after January 1, 2021, but instead allowed covered employers who voluntarily offered such leave to utilize payroll credits to cover the costs of benefits paid to employees through the end of March 2021. The ARP Act signed by President Biden simply extended this period an additional six months until September 2021.

Interestingly, the ARP Act adds two qualifying reasons for leave under the FFCRA: (i) obtaining an immunization related to COVID-19 or recovering from any injury, disability, illness or condition related to such immunization; or (ii) seeking or awaiting the results of a diagnostic test for, or a medical diagnosis of, COVID-19, when such employee has been exposed to COVID-19 or the employer has requested such test or diagnosis. The ARP Act also provides an additional 10 days of emergency paid sick leave under the FFCRA for those employees who already exhausted their sick leave prior to March 31, 2021. Lastly, the ARP Act also adds two additional weeks of eligible paid family leave, bringing the total family leave allowed from 10 weeks to 12 weeks, and simultaneously increased the total amount of wages eligible for an employer tax credit as a result of providing paid family leave from $10,000 to $12,000.

The additional leave is good news for retail businesses who may be planning to or have already resumed operations. The additional 10 days of sick leave will help keep employees on the payroll without providing an undue hardship on the employer. Once businesses are fully able to resume operations, there shouldn’t be a last-minute scramble to find healthy and willing workers to fill what may have been an empty employee roster. Second, with many schools pushing to reopen, a surge in the virus could lead to forced closures. Without the additional two weeks of paid family leave, retail establishments would be at the mercy of school and state officials in the event retail employees were forced to remain at home with their children due to further school closures.  

One thing to be careful for- large retail employers who are not subject to the FFCRA, but still provide leave, could be subject to a retaliation claim if the employer takes action against an employee who believes they are exercising a “right” under the FFCRA. Even though the “right” is more of a privilege for individuals employed by businesses with more than 500 employees, there have not been any court decisions deciding whether or not a claim for retaliation under the FFCRA can lie where no substantive right exists under the FFCRA. Additionally, it is likely that savvy Plaintiffs’ attorneys will add a claim for retaliation under the Family and Medical Leave Act (“FMLA”). While a court would most likely reject a claim for retaliation without any substantive right acting to act as a foundation, the time and cost spent in litigation to get to that point would certainly be expansive. Please stay tuned for additional updates relating to the American Rescue Plan and the Families First Coronavirus Response Act that employers must know in order to stay compliant in the ever changing world of labor and employment law with the Biden administration. 

You can access this article written by GM associate, Graham Newsome, by clicking HERE.

It is no surprise that the legal field’s reliance on technology has dramatically increased over the past year as final hearings have moved to Zoom as a safer platform in light of COVID-19. This increased reliance has brought many unexpected benefits, such as saving costs and time on travel. Additionally, Zoom creates a new medium for sharing documents where all parties can see and follow the document as it is being discussed rather than having to provide separate copies for all parties.

With these advantages, however, come certain disadvantages. The best example of Zoom difficulties is the viral “I’m not a cat” video in which an attorney did not know how to fix the Zoom filter that portrayed him as a cat. Furthermore, Zoom proceedings are vulnerable to hackers and internet connection issues. As Judge Pitts discussed during the OJCC Town Hall on February 4, 2021, courts have had to deal with issues of inappropriate suggestive pictures appearing on screens due to hacking.

Granted, as Judge Pitts noted, there is the solution of putting everyone in a waiting room before permitting them to enter the hearing; however, this appears feasible only for smaller meetings or hearings. For larger gatherings, it is tougher to control this “Zoom-bombing” because it is too taxing to let individuals in one at a time.[1] Zoom has been adapting to these increased security threats by developing more hacking counter-measures, but Zoom recommends that hosts change their settings so that only the host may share their screen.[2]

Even as lawyers are adapting to this new era and attempting to learn how to navigate through these unprecedented times, some are failing to understand even basic principles of technological etiquette like muting one’s microphone when someone else is speaking. This became evident during the OJCC Town Hall as over 100 attorneys attended, and most had to be reminded to mute their microphones to limit disruptions from outside conversation and noise.

Although it should be arguably commonsensical, another element of technological etiquette that some attorneys have been struggling to understand is their attire during courtroom proceedings. As Judge Langham explained, attorneys have been attending Zoom hearings in casual clothing, still in bed under the covers, or even shirtless.[3]

Based on the OJCC Town Hall with Judge Pitts and Judge Sculco, it appears that Zoom final hearings may become a permanent facet in the Workers’ Compensation world based on the provided benefits; however, this path forward appears less dependent on COVID and more reliant on attorneys’ ability to adapt and conform to professional requirements.

[1] Kate O’Flaherty, Beware Zoom Users: Here’s How People Can ‘Zoom-Bomb’ Your Chat, Forbes (Mar. 27, 2020), https://www.forbes.com/sites/kateoflahertyuk/2020/03/27/beware-zoom-users-heres-how-people-can-zoom-bomb-your-chat/?sh=6ac0b1e5618e.

[2] Id.

[3] Judge David Langham, Hearings in the Age of Video, Workers Comp Blogwire (June 10, 2020), https://www.workerscompensation.com/news_read.php?id=36077.

To access this article published by GM Associate, Brena Bergman, please click HERE.

Featured In This Article:

Brena C. Bergman

Partner

Orlando Office

In 2019 the Georgia State Board of Workers’ Compensation held that a professional employee organization (PEO) was the statutory employer of an employee of its customer in a case in which the injured employee was not listed in the agreement with the PEO as a leased employee of the PEO. The PEO client was a North Carolina company that did not have Georgia workers’ compensation coverage. It leased its management employees through the PEO, but it did not lease its construction workers and instead hired them directly. The PEO did have workers’ compensation coverage but the direct employer did not. One of the construction workers was severely injured on a job site in DeKalb County, GA.

Since the PEO only leased management employees to the direct employer, who were specifically named in its agreement with the PEO, it denied the injured employee was its employee and the insurer denied it had coverage. After a hearing, the Administrative Law Judge held that there was no employment relationship between the PEO and the injured employee. The ALJ also found that the PEO was not a statutory employer under O.C.G.A. §34-9-8 since the PEO was not a contractor engaged in construction, the business of the direct employer. The leasing arrangement created a contract governing the management employees but not the construction workers doing labor on the job site. The insurer therefore only insured the employees listed in the leasing agreement and not the injured employee.

The Appellate Division reversed the ALJ and concluded that the PEO was a statutory employer quoting the statute: “… an employee leasing company shall be deemed to be a statutory employer.” O.C.G.A. §34-9-11(c). Even though O.C.G.A. §34-9-8 did not apply, since the PEO was a statutory employer under O.C.G.A. §34-9-11(c), the insurer for the PEO was responsible for the benefits due to the injured employee even though he was not employed by the PEO. The decision of the State Board of Workers’ Compensation was appealed but the case was settled during the appeal.

Some in the PEO industry have sought a change and HB 397, introduced in the 2021 legislative session, would reverse the decision of the State Board of Workers’ Compensation. HB 397 proposes to amend the law relating to professional employer organizations, not the Workers’ Compensation Act. It would require an agreement in writing between the PEO and its co-employer client which specifically allocates the responsibility to obtain workers’ compensation coverage for the employees of the co-employer. Unless otherwise agreed in writing, the co-employer client is required to be solely responsible for any claims for injuries to its employees not covered by the written agreement between the PEO and the co-employer client.

The proposed statutory change potentially leaves an injured employee, such as the one employed by the North Carolina company in the case outlined above, with no way to obtain benefits if, as with the North Carolina company, the co-employer client does not obtain workers’ compensation insurance covering its employees and has insufficient resources to pay the benefits.

HB 397 was referred to the House Industry and Labor Committee which has indicated it will set up an ad hoc committee to study the bill. As a result, it is unlikely to pass or even see further action during the current legislative session but may be considered further next year. Despite the fact that HB 397 has the effect of changing the workers’ compensation law, the proposal was not referred to the Chairman’s Advisory Council of the State Board of Workers’ Compensation for input from the workers’ compensation stake holders.

You can access this article by Goodman McGuffey partner, Wade McGuffey, by clicking HERE.

Featured In This Article:

C. Wade McGuffey, Jr.

Founding Partner

Atlanta Office, Orlando Office

On February 5, 2021, Judge D.J. Burroughs of the United States District Court for the District of Massachusetts granted in part Whole Foods Market, Inc.’s (“Whole Foods”) Motion to Dismiss  in response to Plaintiffs’ claims of discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”). Also named in the suit was Amazon.Com (“Amazon”), who also filed a Motion to Dismiss that was granted in its entirety by the court. The case was captioned as Frith v. Whole Foods Market, Inc., Civil Action No. 20-cv-11358-ADB (D. Mass. Feb. 5, 2021).

            At the heart of the case was an allegation by the 28 named Plaintiffs that Whole Foods and Amazon discriminated and retaliated against certain employees who wore Black Lives Matter (“BLM”) masks and other attire. The facts are as follows: in June 2020, Plaintiffs began showing their support for BLM by wearing masks and other clothing with BLM messages to work. The majority of the named Plaintiffs worked for Whole Foods and were required to wear masks. In the opinion, it is interesting to note that Judge Burroughs specifically mentioned Whole Foods’ public support for BLM.

            When certain employees arrived to work in BLM attire, they were sent home. The employees that were sent home received no pay, but were given attendance points that can eventually lead to termination. In fact, one of the named Plaintiffs was terminated because of the points she accumulated from wearing BLM attire. Points could also affect an employee’s ability to receive a performance-based increase in salary. Other employees were placed on a performance improvement plan and received additional training. Some employees quit, some stopped wearing BLM attire, while other employees continued to wear BLM garb. One of the strongest arguments for the Plaintiffs was the fact that Whole Foods did not enforce its dress-code policy that prohibited employees from wearing clothing with slogans, logos, and advertising that is unrelated to Whole Foods.

            Analyzing the Plaintiffs’ claims under both a disparate treatment and disparate impact framework, Judge Burroughs found that the Plaintiffs failed to allege a Title VII violation under either framework. The Plaintiffs did not allege that either Amazon or Whole Foods disciplined them because of their race or that application of the dress code had a disproportionate impact on employees of a particular race. The court also noted that “inconsistent enforcement of a dress code does not constitute a Title VII violation because it is not race-based discrimination” in the case where, like here, Amazon and Whole Foods allegedly allowed employees to wear clothing with other messaging. Also damning to the Plaintiffs’ claims was the fact that their allegations showed that the employers treated all employees wearing BLM attire equally, regardless of race. The court also made swift work of Plaintiffs’ retaliation claim, holding that wearing BLM attire to protest racism is not done to “oppose any practice made an unlawful employment practice”, which is required for a retaliation claim under the participation clause of Title VII.

            While the court’s holding is limited to this judicial district, it does provide a framework for employers to follow when implementing guidelines for dress codes in an age where symbolic attire or garb is a part of modern day protests and political action. The court’s ruling could support an employer’s decision to ban clothing with slogans, logos, etc. In the event an employer decides to take such an action, consistent enforcement of a policy like the one in Frith is consistent with best practices. Just as the Plaintiffs argued in Frith, inconsistent application of a such a policy could be used to form the basis of a claim for discrimination as evidence of pretext.

You can access this article by GM Associate, Graham Newsome, by clicking HERE.

Generally, succeeding on an assumption of the risk defense is hard. It’s hard because it is so subjective. Not only do you have to show that the plaintiff was aware of the danger, but you also must show that the plaintiff appreciated the risk the danger posed. The struggle is usually very real. Every now and then the premises liability gods bless you with crystal clear nuggets, or shall we say diamonds, of plain, palpable assumption of the risk.

Such is the case of the jewelry heist at the Brunswick Park Hotel when an unknown subject absconded with Mrs. Carlson’s precious jewels while she and her husband attended dinner. After checking into the hotel with their dog, the Carlsons attempted to use the hotel safe to store their valuables but decided to forego that option when they could not get the safe to open.

Instead, Mrs. Carlson decided to carry a backpack of jewelry to dinner which was the way she preferred to travel with her valuables. Unfortunately, she forgot her jewelry in the hotel room after wrestling the dog into its crate so they could go to dinner. After making it out of the hotel room Mrs. Carlson realized she left her jewelry and attempted to go back for it when her husband stopped her from retrieving the jewels for fear of upsetting their beloved pet. Mrs. Carlson, then told her husband “[i]f there’s anything missing it’s going to cost you a hell of a lot of money.” Famous last words.

The odds were not in Mrs. Carlson’s favor as someone did steal her jewelry while they were at dinner. The Carlsons brought suit against the hotel arguing that the hotel had not taken enough security measures to ensure the safety of their belongings after a string of thefts that had occurred over a year prior to the Carlsons’ heist. The Carlsons further argued that they could not have assumed the risk of theft because they were unaware of the prior heists and therefore, could not fully appreciate the risk they took of leaving their belongings in the hotel.

The Southern District Court of Georgia rejected this argument concluding that the assumption of the risk defense lives and dies by what the plaintiff knew – not what the plaintiff knew in comparison to the defendant. The Court stated that the presence of a safe in the Carlsons’ hotel room should have indicated to them that theft was a conceivable risk. The Carlsons’ discussed the risk of theft and chose to leave their precious jewels in the room rather than disturb their dog.  The Court found that the Carlsons assumed the risk of theft and granted summary judgment to the defendants.

The fact that your valuables could be stolen if you leave them out in a hotel seems pretty cut and dry, and in this case it was. The full opinion can be found at Carlson v. BRGA Associates, LLC and Brunswick Hotel Partners, 82 F. Supp. 3d 1333, 1334 (S.D. Ga. 2015).

To access this article written by GM Associate, Samantha Mullis, please click HERE.

The United States Southern District Court of Florida Judge Federico Moreno ruled on February 26, 2021, in Town Kitchen LLC v. Certain Underwriters at Lloyd’s, et al, Case No. 20-22832-CIV-MORENO (Feb. 26, 2021), that the harm from Covid-19 is “from having living, breathing human beings inside one’s business—it is not damage to the physical business itself, it is damage done to other living, breathing human beings.” *13-14.  The Court noted that any actual presence of Covid-19 in the restaurant could be easily cleaned. *14.

The Court specifically addressed the issue of what constituted a direct physical loss.  Many insurance policies, including the one in Town Kitchen, require a direct physical loss or damage to the insured property to cover financial loss.  Like Plaintiff in Town Kitchen, it is common for insureds to allege that Covid-19 particles were present on the premises and caused direct physical loss and damage to the property.

The Court asserted that the Plaintiff’s property did not change, “[t]he world around it did.” * 8.  The property did not require a repair or change for it to be useable, “the world must change.” *8.  “Put simply, Plaintiff seeks to recover from economic losses caused by something physical—not physical losses.” The Court found that the Covid-19 shutdowns were similar to a zoning change, lost liquor license or a road blocked by a parade. *9.  The Court thoroughly discussed the multitude of other Florida cases dismissed in the past year because Plaintiff failed to assert direct physical loss or damage in its claim for financial loss related to Covid-19.

The Court properly dismissed Plaintiff’s Complaint for failure to state a claim upon which relief may be granted.  Like virtually all other courts in Florida, property claims related to Covid-19 have been dismissed in their entirety.

To access this article written by GM Attorney, Sara K. Blackwell, click HERE.