Amendment 1; Trial Lawyers Vs. Chamber?

I was tagged in a facebook note by Justin Tomczak who is interested in having a discussion about Amendment 1. With his permission, I’m reprinting his note below to facilitate a wider audience for discussion.

I wanted to get some feedback on your thoughts on Amendment 1 on the November Ballot. In the State House, the measure passed 137-22. In the State Senate it passed 45-2. My initial reaction was negative, but if the Trial Lawyers are against it and the GA Chamber is for it, I think I’ll have to take another look at it.

I’ve included part of a letter from Rep. Levitas and would appreciate feedback on this matter. Thanks!

Employment agreements are private contracts between private parties. The freedom of these individuals to contract between themselves is an essential liberty of our American democracy. Freedom of contract supports the inherent right of individuals and businesses to form contracts without government interference.

Under current Georgia law, judges and trial attorneys are in the business of voiding private contracts without regard to either the intent of the parties or the terms of the contract itself. If Amendment 1 passes, the power to contract will be returned to its rightful place: individual choice and responsibility in the free market.

As it stands, judges have usurped for themselves the power to say whether an agreement between private parties can stand. The government has no business restricting the liberty of individuals to contract, but if it Amendment 1 does not pass, then judges are free to continue to dictate to people how to live their lives and to run their businesses. Trial attorneys make good money from trying to get the courts to help break contracts, to nullify promises that people make to each other. I believe that individuals are the best judges of what is right for them, not the government, a belief at the very heart of Amendment 1.

Far from stifling economic growth, Amendment 1 will help create and keep jobs in Georgia, which is losing out to neighboring states like North Carolina and Florida whose laws are in line with the 43 of 47 states that permit private parties to enter into employment agreements. Startup companies and small businesses are often the victims of employees who steal confidential information, accumulated over years of hard work by the entrepreneurs who employ them. This proprietary information is the very lifeblood of companies. I have attached for your review a letter from one such small business owner Ray DeMott who was victimized by his employee’s misappropriation of confidential information.

A vote against the Amendment keeps judges and trial attorneys in charge of the business sector, while a vote for the Amendment promotes the essential mission of the Libertarian Party: individual liberty and responsibility, freedom of contract, freedom from government intervention in the private sector and in the private lives of citizens.

I urge Georgia Libertarians to reconsider their position on Amendment 1 and would be glad to meet with you and other members of the Party to discuss this important issue. I would also welcome the opportunity to speak to your members about the need to pass this freedom-promoting measure.

Rep. Kevin Levitas

94 comments

  1. Max Power says:

    Seriously this is how you want to frame the Amendment 1 debate trial lawyers v chamber?

    The reason the chamber supports this is they know there’s essentially an unlimited labor pool and a finite number of jobs. Amendment 1 allows the legislature to give all the power to employers. So if someone’s not willing to sign a noncompete, they can easily be replaced by someone who will.

    If you’re a small business worried about someone stealing your trade secrets get a freakin patent. That’s why they are there. Don’t try to tell someone they can’t work in a field to which they’ve dedicated their career.

    • B Balz says:

      Beat me to it, Max Power. From an employee standpoint, I recall hearing from local managers, “Don’t worry too much about signing the Non-Compete. They are generally unenforceable, unless very definite in terms of scope and area.”

      By extension, giving employers more control is bad for the labor pool, top-notch employees will go to a place that they are protected. Giving employers this edge will not be a reason for them to move to GA.

      If GA. becomes competitive to other States that have this type of law, we are lowering ourselves to their level. I vote NO.

        • Three Jack says:

          what a bunch of malarkey! i mean really, a freakin lawyer acting as a conservative legislator lecturing citizens about how we have been taking advantage of helpless companies.

          if a company cannot protect it’s vital information by hiring decent people, then how is it government’s responsibility to handle that function for them. this isn’t about more liberty, it is about more government control of our lives. mr. levitas should be ashamed for putting that letter out and daring to say this is the libertarian thing to do.

          • gritsnga says:

            it looks like this amendment would give the emloyer the ability to say sign this or not work here, how does that make jobs and business better in Georgia?

  2. Charlie says:

    I’m voting no, with no reservations.

    I have a relative that had been on her job for about 10 years, and was called into HR one day to sign a non-compete agreement. She was told if she didn’t sign, she would have to leave the company that day. This isn’t just about pre-employement negotiations. And most people have no idea what they are agreeing to when they sign these. I think it increases the potential for litigation, and the trail lawyers should love it if amendment 1 passes.

    I fail to see how this makes Georgia more competitive. Rather, it seems to put everyday Georgians at a less competitive footing when marketing their services to potential employers.

    • Kilkenny Kid says:

      It makes Georgia more competitive by aligning our laws in this area with 40+ states in nation. Why would we want a business unfriendly law that eliminates us in many HQ location searches? Especially for high-tech and IP industries.

      If we want to compete against NC, FL and other neighboring states for these jobs, vote for Amendment 1. If you like 10%+ unemployment, note no.

      • johnnyB says:

        Your relative should vote yes as Amendment 1 may actually protect your relative from being captured by a noncompete agreement. If this passes, noncompetes can only be applied to “key employees” namley those with proprietary info

  3. bgsmallz says:

    The issue right now is not whether we have non-competes in Georgia. The issue is that Georgia is not a ‘blue line’ state.

    Currently in Georgia, my understanding is that if any part of a non-compete is unenforceable, then the entire agreement is void.

    If the law is changed, the judge would be required to mark out only the unenforceable portions of the non-compete agreement leaving the other portions intact .

    This whole business about “voiding private contracts without regard to either the intent of the parties or the terms of the contract itself” is a bunch of BS.

    The issue is that corporations/companies are in the business of not only writing non-competes that protect their interest, but also making them as broad and restrictive as possible so that an employee can not go to another competitive business or even think about leaving the job to go work in the same industry. This law gives corporations the M.O. to write their non-competes as broad as possible and then let a judge parse it down to what is constitutional vs. the current status quo that requires businesses to be measured in their requirements so that the agreement doesn’t get thrown out.

    Frankly, we have trade secret laws and the ability to write non-competes currently. This change would not be good for Georgia’s employees and I’ve yet to see where there is any evidence employers are setting up in other states because of Georgia’s non-compete laws. Truly…where is the evidence of that? This seems like a classic case of members throwing a bone to their donaters.

    I’m all for employers protecting their trade secrets and confidential information. There are laws in place that allow that.

    Plus, if you really don’t want your employee to leave. Pay them right and treat them right. It seems ridiculous that if a competitor is going to give that employee a big raise or better benefits or both for their human capital, that you can’t just pay the person market rate.

    • Kilkenny Kid says:

      I know of two businesses who are refusing to locate any more top executives in Georgia because of this law. I wonder how many businesses have balked at re-locating their HQ to Georgia for this very reason! Over 40 states in country already have laws like Amendment 1 would bring to Georgia. Why would we want to vote down Amendment 1 and waive a huge red flag to businesses thinking about moving their HQs?

      Btw, if anyone takes the time to read the underlying legislation, you would see that if Amendment 1 passes, the vast majority of employees would no longer be eligible to be solicited for non-competes. Today an employer can ask the janitor to sign one. It’s balanced proposal. Trial bar has been masterful in pulling the wool over eyes of conservatives on this.

  4. ACCmoderate says:

    If we’re losing new business to North Carolina and Florida because those states are willing to make their workers take it in the rear end, I don’t want those companies here in the first place.

    This law stifles innovation, stifles small businesses and is B-A-D for Georgia.

    Vote NO on 1.

    • Kilkenny Kid says:

      Exactly wrong – this Amendment is supported by small business – NFIB (National Federation of Independent Business) completely supports Amendment 1.

      Do your own research – once you do, you’ll come to same conclusion I did – Yes on #1.

      • ACCmoderate says:

        I’ve done my own research. I’m not coming to your conclusion.

        I don’t care what the NFIB thinks. Amendment 1 will choke out innovation and ultimately hurt the state of Georgia when it comes to small business development and job growth.

        We can pass this amendment and content ourselves with screwing our workers in an attempt to attract current businesses.

        -OR-

        We can vote no, protecting our workers and protecting their ability to innovate new ideas and new technologies that will make Georgia home to forward-thinking industries of the future.

      • Erick's Mortal Enemy says:

        Dear Troll,

        You are obviously a troll for this law. Good to hear from you, though. How about this quote:

        “Currently, the Constitution prohibits the General Assembly from authorizing any contract or agreement that may or intends to have the effect of defeating or lessening competition. Non-compete clauses in contracts may limit where a former employee works, where he or she works and the type of work they can perform. Moreover, these restrictions can be for brief periods or for years.

        If passed, the amended would give the General Assembly the power to grant to courts the ability to “blue-pencil” contracts with non-compete language. This means a judge could limit the duration, geographic area, and scope of prohibited activities provided in a contract or agreement with competition restrictions and thereby make such non-compete language reasonable.

        Pro: For many companies, non-compete clauses are essential to guarantee that former employees with specialized knowledge are not able to simply leave the company and take that knowledge to the next highest bidder or to create their own companies using knowledge gained from trade secrets. Most states allow “blue penciling” by judges, which Georgia currently does not. This amendment is ANTI-WORKER including doctors,lawyers, etc. Companies will simply write overly broad contracts and dare the employee to go to the expense of suing in court.

  5. NoTeabagging says:

    Thanks for posting this. Levitas is nuts.
    How does in any way resemble “individual liberty and responsibility, freedom of contract, freedom from government intervention in the private sector” IT is completely the opposite.

    I agree with bgsmallz and others. Treat your employees right, especially if you want long term employees.

    Personally, if I were offered a restrictive contract (no competing work for two years) I’d say fine, let’s put it in writing you will pay me the competitive salary offer (and benefits) for two years. Then watch them squirm as I make a hasty exit.

    How can you possibly create an environment where employers can legally keep you from working? How does that make us competitive? I wouldn’t come to Georgia If I knew such laws existed and were common among most employers.

  6. barstool69 says:

    Anybody want to render a guess as to what percentage of people voting for/against this actually understand the legal history, the proposed amendment and its possible effects? Less than 10%? 5%? 1%?

      • B Balz says:

        Which begs when you ask a question that most people are unqualified to answer, what do you expect?

        This could be a great Amendment, but as I understand, as a layperson, allowing a Judge to ‘blueline’ puts your chances at exactly 50% the matter will go your way.

        • barstool69 says:

          “Shall the Constitution of Georgia be amended so as to make Georgia more economically competitive by authorizing legislation to uphold reasonable competitive agreements?”

          I is GA voter and being “more economically competitive” sound more good.

          Would is be impossible to have an amendment on the ballot that isn’t couched in complete BS terms? That crap makes me want to vote “no” by itself.

          In first year contracts you learn that most states are blue pencil. Now the judges don’t have to throw out an entire non-compete if there is one unreasonable term in it. It’s an interesting power to give to a judge (which is funny because Levitas is talking about the judges having too much power in his letter), but I have absolutely no problem with reasonable restrictive covenants.

    • Kilkenny Kid says:

      If anyone took the time to read the bill (HB 173) and the resolution (HR 178), they would join me in Voting for Amendment 1. Many times knowing who is for and who is against says it all:

      Trial bar – against
      Business Community – for

      Simple decision in my mind – I’m voting YES

  7. Kilkenny Kid says:

    I completely agree with Levitas. The only ones who benefit from the current mess of a system on employee agreements are the cottage industry of trial lawyers. They love our current system that creates lawsuits (and tone of billable hours). Amendment 1 will clarify the law in this area and eliminate many of these lawsuits (and therefore eliminate their big bucks).

    This is a straight-up fight – business community vs trial bar. I’m voting with job creating businesses and voting for Amendment 1.

    • ACCmoderate says:

      I hate to break it to you buddy, but “the cottage industry of trial lawyers” is always going to create lawsuits and tons of billable hours regardless of whether Amendment 1 passes or not.

  8. gamecock says:

    Charlie, I have to oppose this amendment as I see think onerous non-compete clauses are a restraint of trade that should be against public policy. More later and I admit this is a close call for me.

    • Kilkenny Kid says:

      Cottage industry of trial lawyers who make nice livings off of this mess. When have trial lawyers been teh protectors of freedom and justice! Think again.

  9. Setting the Record Straight says:

    It seems to me like if I’m a small business person that has invested a lot of savings into creating a company, I want something that will keep one of my employees from taking off with all my sweat equity. I’m not attorney, but it looks to me like the passage of Amendment 1 will encourage business creation and expansion in Georgia because entrepreneurs will know that their financial investment and the sensitive information critical to business success will be fairly protected under Georgia law. A bunch of other states already have this. I don’t think Amendment 1 would prevent someone from starting a business. It does limit a person’s ability to take another person’s ideas and hard work and start a competing business across the street.

    It also appears to set in law some basic standards for non-compete agreements that aren’t already there and actually narrows the scope of competitive agreements to cover only “key employees,” such as executives and those with access to confidential sales information. It doesn’t restrict the movement of rank and file employees from one job to a better opportunity. I don’t even think these employees can even be parties to competitive agreements under the new law. It also provides all employees with a hardship exception whereby an employee, even in the case of a perfectly valid competitive agreement, would be able to work with a competitor out of economic necessity. The change in the law also appears to protect a new employee from having his or her customers, accounts, or business territory pilfered by a former employee.

    Just my two cents, but it looks like this protects employees a lot more than current law.

    • ACCmoderate says:

      There are already laws in place to protect against the dissemination of proprietary information. Anyone who has their “sweat equity” stolen has plenty of legal recourse available.

      Voting no on this amendment protects workers from contracts that are intentionally crafted to confuse and constrain. A worker shouldn’t be forced to sign a contract that is so bogged down with legal-ese it’s beyond comprehension for the average human being.

    • bird says:

      Couple issues here. First, it’s the key employees that need to be allowed some freedoms, not the rank and file, to encourage innovation. Having someone sit on the sidelines for 2+ years helps no one.

      Second, a decent non-compete will already stop an employee from setting up a shop across the street or using confidential information. We don’t need this amendment to accomplish those ends. Plus, there are plenty of other protections, including Georgia’s law on trade secrets and confidential information.

  10. View from Brookhaven says:

    If they made any attempt to put an honest amendment on the ballot, I might have considered it (before still voting NO).

    Instead, they went with this blatantly deceptive and vague phrasing.

    I’d like to see any legislator stand up and defend this one.

  11. bird says:

    I’m a corporate litigator, not a plaintiff’s “trial attorney,” and I litigate non-competes and restrictive covenants. I have represented both employers and key employees on these matters.

    If passed, this measure would stifle innovation and competition. Back when Boston and Silicon Valley were competing to be the world’s preeminent tech center, Boston permitted strict non-competes, California favored innovation. Though other factors obviously came into play, this was huge. Tech companies repeatedly poached talent by offering bigger paychecks, and the products and the companies ultimately benefited from the resulting innovation.

    Talent is attracted by Georgia’s laws on non-competes, and businesses are attracted to talent.

    • ACCmoderate says:

      Look everyone! It’s one of those danged trial lawyers! Let’s tar and feather him before he gets away!

    • barstool69 says:

      I was going to work in GA, but I found out that they’re now a “blue pencil state” like the vast majority of the country. So now, I’m going to work in North Dakota.

    • Kilkenny Kid says:

      So let me get this straight, we want to emulate the economy of California?

      Guess law school got in the way of your study of economics.

      • Charlie says:

        Seriously dude. The argument is over attracting companies that require talent to develop intellectual property, and your argument is that we don’t want to be like California?

        Have you heard of silicon valley? Have you ever used the Google?

        • Kilkenny Kid says:

          If Georgia’s current screwed up rules on agreements are so great and allows so much innovation, blah blah, blah, why don’t we already have a gaggle of tech companies like Google HQed here?

          Also, since NC already has enforceable non-competes (which you think discourages innovation), how did they ever develop the research triangle? They kick our rear every-time a tech company looks relocating their HQ to the Southeast.

          • Charlie says:

            Um, I don’t know, probably because our public education system ranks at the bottom of all states nationally, we’re still debating about whether evolution should be taught in schools, and we’re about to debate if any stem cell research can be conducted in this state.

            That answers why other companies may not want to locate here. Now genius, tell me why the most successful state in the country at attracting and developing cutting edge high tech companies currently has their non-compete laws structured in the same way Georgia does?

          • ACCmoderate says:

            KK, you must not venture outside of your house much. There are a number of high tech companies here in Georgia and the Empire State of the South is attempting to become a hub in the emerging feild of biotechnology.

            North Carolina developed the research triangle because three of the best universities in the world are all in very close proximity to each other. In addition to that, NC invested heavily in these universities in order to make them powerful research engines. As a result, companies wanted to move there in order to take advantage of those tremendous resources.

            Georgia Tech, Emory, and the University of Georgia already serve to attract a number of companies here AND, given adequate funding, could rival the research triangle IMHO.

            • Kilkenny Kid says:

              Trying is key word in your first paragraph. Passing Amendment 1 will help us in that effort.

              So let me get your argument in rest of post, if the government just spent more money, our economy would improve. Wow, they need great thinkers like you in D.C.!

              Never-mind, we already have people with that philosophy running this country – at least for the next week….

              • ACCmoderate says:

                Alright. I’ll feed the troll.

                Georgia isn’t trying actually, they’re doing. Emory is one of the BEST medical research facilities in the world. There’s also this huge complex called the CDC that is always at the forefront of new medical research.

                While Athens missed out on NBAF (thanks librul Athens hippiees), Athens is positioning itself as an attractive area for a number of biotech companies, especially those who wish to make huge innovations in agriculture. Did you know that Dr. Steve Stice at UGA has been cloning cattle for over half a decade?

                Add to that the development of a new health sciences campus at UGA. The amazing technological innovations coming out of Georgia Tech and the all-around awesomeness that is Emory’s medical division and you’ve got plenty of reasons as a company to re-locate to Atlanta.

                Even more important, is a climate that is structured similar to that of California’s that promotes innovation and encourages more start-up companies than you can shake a stick at. The great developments that have come out of Atlanta would not have been possible had Amendment 1 been passed 10 years ago. More prosperity and innovation down the road won’t be possible if Amendment 1 is passed next week.

                As far as the argument you valiently attempted to pin on me. I’m not saying that more government spending would improve the economy. I am saying that states like North Carolina have demonstrated that targeted spending priorities (like post-secondary education) have seen tremendous results in terms of economic development.

                Oh, and the new congressmen won’t get sworn in until January. So you’ve got a couple months of “people with that philosophy” running the country.

      • ACCmoderate says:

        I wouldn’t mind emulating the economy of California. By themselves, they’re the 8th largest economy in the world.

        Sure they’re sucked up in the recession, who the heck isn’t? California is home to 57 Fortune 500 companies. Silicon Valley is the hub of technological innovation (think Google). San Francisco is a huge center for trade, commerce, and investment. Los Angeles is still where they shoot all the movies and TV shows we’ve been dying to attract to Georgia.

        Every state is striving to emulate California’s economy.

  12. johnnyB says:

    Wow, the few trial lawyers who are invested in keeping these things unpredictable have really got folks on this blog snookered. Bottom line:
    1. There will be noncompetes in Georgia whether or not this passes
    2. If this passes, employers could no longer apply noncompetes to everyone – only key employees (with proprietary info on company)who are generally compensated to sign these noncompetes
    3. Best of all, this creates clear rules on the subject of noncompetes – no longer the wild wild west, determining whether or not they are upheld based on the interpretation of case law.
    4. Georgia is an outlyer State, as almost everyother state (other than California) has a reasonableness rule – or blue penciling.
    5. As for making georgia more economically competitive, companies want to invest in states where the rules are clear, especially when it comes to protecting their trade secrets. Why move your employees to a state where your employees that have proprietary knowledge of your company can be picked off in a global economy and destroy the company?

    This isn’t about whether or not you like noncompetes. Its about creating clear rules and narrowly focusing who noncompetes apply to. This is a no brainer – I already voted yes.

    • Charlie says:

      Wow, a third sock puppet has been created in less than 3 hours so that the group supporting this abomination can post their talking points, telling us we’re being snookered. How ironic.

      In addition, if I’m reading your post right, you say Georgia’s law is like California’s? Please tell me I’m not reading that right. I would really hope you’re not trying to tell me that the laws governing silicon valley are stifiling innovation.

      • johnnyB says:

        California just recently changed their law adversely (within the past two years). And yes, I would argue that it would have inhibited their initial successs if the change was made previously and expect that it will hurt their luring of new companies moving forward.
        I guess I become a sock puppet for reading and understanding the bill – which it doesn’t sound like Charlie has taken the time to do. Charile, why don’t you take a loan out for everything you are worth, start a innovative hi-tech company in Florida, have the opportunity to expand by sharing proprietary info with a few key employees, and ask your attorney if you should locate in Georgia, my guess is your attorney says – wait until they change this law, then go for it.

        • John Konop says:

          Few questions:

          Johnny B define key employee?

          And please tell me which company we lost via not having this law?

          And please tell me a company opening up in Georgia because of this law?

          What is the employee guaranteed if they are down sized?

          Help us understand how broad is the law? Would a trained civil engineer, lawyer, doctor…. no longer be able to use their skills? How would that help the employment problem?

          • johnnyB says:

            Interestingly, under current law, lawyers cannot be placed under a noncompete agreement. Regarding other employees in a downsize situation, nothing changes from our current situation if this passes except companies are restricted to applying these to only key employees, so fewer folks will be covered under that scenario. The definition of key employee is spelled out in hb 173. As for this being a factor in recruitment or retention, yes it is real. Don’t take my word for it, call the Dept of Economic Dev and ask them if this is a real issue.

            • John Konop says:

              Johnny B,

              This sounds very broad! You could make this argument about any employee! Adam Smith the father of free market economics was clear the restriction of rights to an employee hurts the free market system not helps. I guess the guys at the Dept of Economic Dev never read the bible of free market economics Wealth of Nations.

              ….According to the bill: “’Key employee’ means an employee who, by reason of the employer’s investment of time, training, money, trust, exposure to the public, or exposure to customers, vendors, or other business relationships during the course of the employee’s employment with the employer, has gained a high level of notoriety, fame, reputation, or public persona as the employer’s representative or spokesperson or has gained a high level of influence or credibility with the employer’s customers, vendors, or other business relationships or is intimately involved in the planning for or direction of the business of the employer or a defined unit of the business of the employer.”…….

              http://www.connectsavannah.com/news/article/102937/

      • TPNoGa says:

        Who is behind this amendment?

        I always vote no on amendments / propositions unless I know exactly what it is about and I support it 100%. If it confuses me, it’s a NO.

  13. Dennis from Dacula says:

    I happen to know that “Kilkenny Kid” is Kevin Levitas himself. So it shouldn’t be all that surprising that they agree with each other.

  14. MSBassSinger says:

    Amendment #1 is bad law.

    First, intellectual property and proprietary information in a business are governed via non-disclosure agreements. Those are not in dispute here. Non-compete agreements are the wrong place to put non-disclosure language.

    Second, there are many jobs that are “rank and file” in a company that deal with technical or proprietary information. As a software engineer, I have always had non-disclosure and non-compete agreements to sign. In fact, I am working here in metro Atlanta precisely because my non-compete agreement when I worked in Tallahassee was enforceable by stupid laws like Amendment #1. My employer there, as I found out later, regularly sued former employees (software engineers) who went to work elsewhere in Florida, and used the pressure of the suits to keep salaries and benefits low.

    Third, very few workers who would most definitely be covered under this law can afford the cost of a lawyer to defend their leaving one employer for another. What good is having a court to decide this when you can’t afford a lawyer? Or being out of a job for the 2+ years it would take a court to hear the case and decide?

    Fourth, since when is “business” pristine in motive? Just because the Chamber and NFIB are for this doesn’t make it good. Just too narrowly focused. This law only serves as a way to force employees to stay and work for lower salaries and benefits than are available on the open market. This law is a direct conflict between business interests and the free market. I, as each of you non-retired people, sell my services for a fee. This law interferes with my freedom to do so.

    Amendment #1 is a Rockefeller Republican “gimme” to business to treat employees as indentured servants and circumvent individual freedom. A friend of mine, who is an executive and co-owner in an Atlanta firm, tells me the unions are highly in favor of this law. He also tells me that if this is voted in, it will turn executives and high tech workers away from wanting to work in Georgia.

    If you are a business owner, I understand why you want this to pass. You should have more honor than to want to attach your best employees to another object by an inclined plane, wrapped helically around an axis (http://the-big-bang-theory.com/quotes/episode/405/).

  15. Charlie says:

    OK, I’m going to go out on a limb and assume the interests backing amendment 1 are feeling a bit threatened. Given the failure of the first ones who urge us to not have non-compete laws similar to the ones that Apple and Google operate under – you know, those companies that fail to show innovation – I guess they feel they need to re-load. We have a 4th anonymous commenter wanting to weigh in with new talking points. His comment will not pass moderation, nor will any other anonymous new sock puppets today.

    As a moderator, I will not be approving any new commenters on this subject so we can have our regular commenters shouted down with repetitive talking points. If anyone, preferably Rep Levitas, wants to sign in under their own name, we’ll admit them.

    While we want to encourage healthy debate, we will not permit multiple anonymous personas to be created in an effort to dominate one side of a debate.

    • Steve says:

      I haven’t seen a single person support this amendment on Peach Pundit with a username that’s been around for more than a month. Hell, I’ve never seen “Kilkenny Kid” prior to TODAY.

      Every time there a post about a SPLOST, or a “public-private partnership”, or any situation where the average Georgian gets bent over by the well-connected… you always see a few newbies show up, recite the big money talking points, and then disappear to never be heard from again.

      This is a political blog, boys. We live to sniff out that sort of thing. If you can’t show up under your real name and argue for your special interest out in the sunshine… then could you at least be more sneaky about it? The transparent sockpuppetry is just insulting.

  16. Kilkenny Kid says:

    Shut off all this fun so you can stifle debate at just talk with posters who agree with you? How Democratic!

    • John Konop says:

      This blog is usually very lively with different opinions! But when all the regulars agree on one topic like this it means the rats have been caught.

      • Kilkenny Kid says:

        While I hate to disagree with all the “regulars,” I do believe that this state will be better of enacting Amendment 1.

        My two cents….

        • John Konop says:

          KK,

          Help us understand how a blanket non-compete for almost every employee helps the economy? How is this free market?

          ….According to the bill: “’Key employee’ means an employee who, by reason of the employer’s investment of time, training, money, trust, exposure to the public, or exposure to customers, vendors, or other business relationships during the course of the employee’s employment with the employer, has gained a high level of notoriety, fame, reputation, or public persona as the employer’s representative or spokesperson or has gained a high level of influence or credibility with the employer’s customers, vendors, or other business relationships or is intimately involved in the planning for or direction of the business of the employer or a defined unit of the business of the employer.”…….

      • ACCmoderate says:

        Holy crap. Doug and I agree on something.

        In other news, pigs seen flying on one local farm and a snowball fight in Hell. More at 11.

    • Charlie says:

      Who the hell told you this was a democracy?

      And stuffing the ballot box by creating 5 sock puppets in one day to create some astroturf is not a right you are entitled to around here.

      For now, you’re still in the pool. Though your logic above has already probably done terminal damage to your argument. I’m sure you’ll still put this on the billable report to your employer as a success, however.

    • Three Jack says:

      thanks for the link. if i remember correctly, the stonebridge group is behind the propaganda website jobs of tomorrow which serves to promote this anti-liberty amendment. to borrow a term recently used by Jerry Brown, what a bunch of political whores.

  17. TalmadgeGhost says:

    Oh I’m happy to vote for Amendment #1, as soon as Georgia is not a “right to work” state and my employer can fire me for any reason they want to make up or for no reason at all.

    Non-competes don’t fly here because you can be terminated at any time, given at most $330 a week in unemployment benefits for 6 months, and have zero recourse unless you are in a protected class.

    Now, implement a Massachussettes style unemployment system where you get roughly 80% of your pay if you get cut loose, then we can talk about it.

    Had to get an attorney to help me one time because a former employer decided to up and pull out operations from Atlanta, and in letting me go they tried to tell me I had to honor my non-compete (since we sold to national companies, geography didn’t matter as much.) My lawyer sent one letter invoking the 13th Amendment to said former employer, and I got all my pay plus some and went to work the next day for a competitor.

  18. jackrosenberg says:

    As a plaintiff’s employment trial lawyer, I am not doing this to benefit me, but to benefit all employees in Georgia. I deal with this issue almost every day and this new law is a total fraud and is overreaching by big business. Ironically, I would make a lot more money if the law passed due to the incredible increase in litigation. But most middle class folks can’t afford this and big business will always be able to shackle the employee.
    It is election fraud and a total lie.

    http://www.forbes.com/2010/10/13/best-states-for-business-business-beltway-best-states-table.html?partner=relatedstoriesbox

    The proponents are constantly talking about bringing Georgia in line with surrounding states.

    1-This is a false argument as Georgia is way ahead of the other states. We’re #1 in Forbes regulatory environment, and #4 overall in states for business.

    2. Why would we want to drop down to where the other states are? Tennessee is #23, SC #34, FL #26, AL #28,

    3. Georgia and Atlanta are the biggest draws in the nation for corporate relos now, so there is NO problem that needs fixin. IF it ain’t broke don’t fix it.

    A. Georgia already a top destination for businesses.

    Wednesday, March 18, 2009

    Study: Ga. is fourth-best for business

    Atlanta Business Chronicle

    Georgia moved up in the ranks to become the fourth-best state in which to conduct business, according to Chief Executive magazine.

    The magazine evaluated states on natural resources, regulation, tax policies, quality of living, education and infrastructure, among others. Georgia ranked No. 7 in 2008.

    Thursday, September 24, 2009

    Forbes: Georgia 6th best for business

    Atlanta Business Chronicle

    Forbes magazine says Georgia is the No. 6 state for doing business.

    The magazine ranks all 50 states based on costs, labor supply, regulatory environment, current economic climate, growth prospects and quality of life. Business costs, which include labor, energy and taxes are weighted the most heavily.

    Wednesday, July 29, 2009

    Atlanta the seventh-best start-up city

    Atlanta Business Chronicle

    Entrepreneur magazine’s August issue ranks Atlanta the seventh-best start-up city in America.

    The magazine’s look at startup-friendly cities addresses issues such as government incentives, population growth, affordability of commercial rents, and openness to new ideas.

    Entrepreneur calls Atlanta the “Grower” among the top 10 cities.

    “There’s a simple formula that defines the Atlanta small-business scene: Big growth equals big opportunities,” the magazine said. “Service and retail businesses are in constant demand all across the metro area to serve the city’s expanding boundaries, and a full portfolio of city-backed loans, grants and tax credits, combined with a low cost of living, makes Atlanta prime real estate for entrepreneurs with franchise dreams.”

    The magazine noted Atlanta’s move to grow in biotech in its “Innovation Crescent,” an urban arc from Atlanta to Athens dedicated to life-sciences companies. As an example, it cited Atlantan Russell Rainey of Rainey Compression Essentials, who developed a line of nylon compression garments designed to promote healing after face-lifts, tummy tucks and other cosmetic procedures.

    The top ten cities in order are Las Vegas, Portland, Ore., Orlando, Fla., San Diego, Phoenix, Chapel Hill, N.C., Atlanta, Madison, Wis., Youngstown, Ohio, and Austin, Texas.

    Wednesday, January 14, 2009

    Peach State still a destination for movers

    Atlanta Business Chronicle

    Atlanta and Georgia remain top destinations for Americans looking for a new start, according to online consumer moving services site Relocation.com.

    Despite the recession, the West and South remain popular places to move, whether it is for a new job or finding a new home with more solid economic opportunities, Relocation.com said. Las Vegas was followed in popularity by Denver; Charlotte, N.C.; Phoenix; Portland, Ore.; Seattle; Orlando, Fla.; Washington, D.C.; Atlanta; and Tampa Bay/St. Petersburg, Fla. The results are largely consistent with 2007.

    Georgia saw 36 percent more people arriving than leaving in 2008. For every 100 looking to leave Georgia, 136 were looking to come to the state, Relocation.com estimated.

    Figures from the U.S. census bureau show 34 million people moved between 2007 and 2008.

    Thursday, May 21, 2009

    Atlanta a top relocation city

    Atlanta Business Chronicle

    Atlanta remains one to the best cities in America to get a fresh start, according to Relocation.com.

    The online moving service company ranked Atlanta the eighth-best city to start over and seek out new economic opportunities.

    Relocation./com used the following elements to create its list: city ‘popularity’ based on consumer requests for moving quotes to move to that city; economic-growth prospects; home affordability; and the strength of a community as reflected by volunteerism rates.

    The top city was Austin, Texas, followed by Dallas; Charlotte, N.C.; Denver; Columbus, Ohio; Indianapolis; and Washington, D.C. After Atlanta are Oklahoma City, Okla.; and Houston.

    Sony Ericsson relocation: More than jobs

    Monday, November 23, 2009, 11:50am EST

    Sony Ericsson’s decision to relocate its Americas headquarters to Atlanta is not just about jobs.

    Of the roughly 400 jobs displaced from the company’s Research Triangle Park headquarters, only a portion — about 30 percent — will move to Atlanta. The eventual number could be even smaller, because Sony Ericsson might consolidate some of those jobs as part of the relocation.

    The relocation is more about long-term impact on Atlanta’s telecom sector.

    Sony Ericsson will be the first top-tier handset maker to locate top management in this city. The company’s President of Americas Anderson Teixeira will be based in Atlanta.

    The power of the cluster is strong. Sony Ericsson was drawn to Atlanta because of its telecom management talent and the presence of business partners. The region is home to AT&T Mobility (Sony Ericsson’s largest customer) and the Southeast headquarters of Verizon Wireless. Handset maker Nokia’s North American networks division is also located in the city.

    With Sony Ericsson sending a signal that Atlanta has the talent, customer and supplier connections and business climate to thrive, the region could get a third or fourth look from other mobile hardware manufacturers seeking a new home.

    And that potential of Sony Ericsson to nudge others to move here, is where the real economic development value of this relocation deal lies.

    Friday, March 5, 2010

    Atlanta’s in the sweet spot for corporate locations

    As more companies continue moving their headquarters to the South, metro Atlanta sits in the sweet spot.

    Businesses are intent on streamlining their operations in regions with lower operating costs and a growing labor force.

    Companies also want to relocate to cities whose airports offer quick access to international destinations, as U.S. business continues to expand into emerging global markets.

    So far in 2010 those factors have made Atlanta a magnet.

    4. Levitas is trying to fix a problem that doesn’t exist because a few big businesses and franchisors like Huddle House want to protect themselves.

    5. The proponents are always trying to confuse confidentiality agreements and non-compete agreements. Georgia law is very clear that confidentiality agreements ARE upheld.

    It is only NCA agreements that are strictly construed so that people can earn a livelihood without having to move, or be shackled to a job forever.

    6. All of the real studies show that strict NCA laws are BAD for a state, and lessen initiative and job creation. So it will NOT create jobs, but cause jobs to be lost. See the example of Massachusetts and California.

    The classic case study compares Massachusetts, which allows strict noncompete contracts, and California, which bars them. At one point, the two states boasted comparable high-tech industries, but California’s Silicon Valley quickly outgrew Boston’s Route 128.

    Why? Well, California allowed workers to form new, more nimble companies, creating competition, while Massachusetts protected existing firms at the expense of innovation.

    A 2009 study by the Harvard School of Business focused on Michigan, which in 1985 passed a law much like that now on the Georgia ballot. By tracking patents, the study found that job mobility for inventors in Michigan fell significantly once the law changed.

    “States that continue to allow widespread use of such agreements as a way to protect established firms may instead be inadvertently creating a ‘brain drain’ of the very workers needed to create and build successful new firms,” the Harvard study warns.

    What evidence does Levitas have to support his arguments that it will create jobs? From thin air, or where the sun don’t shine! All the studies show otherwise!!

    7. Other states have various other employee job protection laws. Georgia has only ONE left, and that is the body of law protecting against overreaching NCA’s.

    8. In Georgia, you can lose your legs in a workplace accident and be fired the next day. Not so in Tennessee. Ask Levitas instead of sponsoring the NCA law, WHY NOT SPONSOR A REAL EMPLOYEE FRIENDLY LAW LIKE THE ONE IN TN SO THAT THERE IS A CAUSE OF ACTION AGAINST AN EMPLOYER FOR FIRING SOMEONE WHO HAS LOST THEIR LEGS IN A WORKPLACE ACCIDENT.

  19. NoTeabagging says:

    I have an idea for a new bill that will make GA ‘more economically competitive’. Let’s require all companies to fire employees that work 10 years at one company. Companies will be required to hire the next person that falls off the turnip truck, or recent college graduates. This will stimulate our economy by constantly creating new jobs for college graduates and transients, and increase the need/desire for higher education. Companies will save money because they can legally pay new hires less money than the former employees that built up higher salaries for their good work over many years.
    This will create a competitive environment for new jobs by drawing large numbers of young job seekers to entry level jobs. Long time ex-employees get to compete for entry level pay jobs at Wal-Marts.

    • MSBassSinger says:

      Sounds interesting. That means I can leave my software engineer’s position and go to work for the Nerd Herd at BuyMore, and begin a secret career with the CIA. 🙂

      At least as likely as Amendment #1 being beneficial to Georgians. 🙂

  20. Harry says:

    I agree with the person who mentioned that Amendment 1 may well be a unfair restraint of trade in what should be a free market. An employment contract should be an agreement between two parties, not a form of indentured servitude to try and inhibit the market for individual intellectual property. If there exists employment at will, when a contract is terminated there ought be no noncontracted handcuffs that cannot even be discussed. In such instances where there is disagreement, a lawyer really becomes necessary. There I said it. Vote no.

  21. analogkid says:

    If voters took amending the Georgia constitution half as seriously as amending the US constitution, we’d have a lot fewer stupid amendments on the ballot. Just my two cents.

    Amendment 1 is a crappy idea. Even if it was decent, I’d probably still vote against it (see paragraph 1).

  22. Doug Deal says:

    Special interest groups, no matter who they are, right or left leaning, are a cancer. The Chamber of Commerce has proven itself an enemy of the people of the state in not only backing this monstrocity, but backing Jim Marshall as well.

    Contracts are a key component to a free market economy, but contracts are nothing but tyranny when the playing field is designed to be so in favor of one side or another.

  23. Dave Bearse says:

    I’ll reconsider my NO vote if and when the General Assembly imposes automatic mandatory two year “non-compete” requirements on themselves, all statewide elected officeholders and US Congressmen, that prohibits same from lobbying or serving as key employees in any capacity concerning Georgia state or local government contracts or business.

  24. jackrosenberg says:

    Follow this time line closely as it is a bit involved and you need to read 1 and 3 first, then read 2.

    1. June 4, 2008-The Georgia Court of Appeals hands down its decision throwing out Atlanta Bread Company’s in-term non-compete provision:

    http://scholar.google.com/scholar_case?case=12845763714126095090&hl=en&as_sdt=2&as_vis=1&oi=scholarr

    The pertinent issue involved restrictive covenants in-term or after the term of the agreement:

    “Atlanta Bread Company contends the trial court erred in applying post-termination legal standards to conclude that a restriction on in-term competition contained in the franchise agreements was invalid on public policy grounds as a matter of law. We disagree and decline to extend Georgia law beyond what has previously been decided with respect to restrictive covenants. While the threat of a restrictive covenant regarding conduct during the term of a franchise agreement is not as great as a covenant regarding conduct following termination of the franchise agreement, it is still a restraint of trade and must be evaluated for reasonableness.”

    3. June 29, 2009-The Georgia Supreme Court issues its decision regarding the issue of in-term/after term.

    http://scholar.google.com/scholar_case?case=7160742206005128851&hl=en&as_sdt=2&as_vis=1&oi=scholarr

    “The appellate courts of this state have considered such restraints occurring during the active term of the parties’ agreement and have made no distinction as to the level of scrutiny applied based on whether the restraint occurs during the term of the agreement or after the agreement has been terminated. Barrett-Walls, Inc. v. T.V. Venture, Inc., supra, 242 Ga. 816, 251 S.E.2d 558”

    An article published on 10/25/10 by the AJC contained the following:

    The high court ruled last year in favor of an Atlanta Bread Co. franchise-owner who challenged a noncompete clause, a decision “that sent shock waves reverberating through the franchise community,” Claudia Levitas said.

    Levitas is SR VP and General Counsel of Huddle House a franchisor of restaurants.

    Of course Claudia Levitas was aware OF the COA’s decision on June 4, 2008 WHICH I WOULD EXPECT ALSO SENT SHOCK WAVES THROUGH THE FRANCHISE COMMUNITY.

    2. February 3, 2009-So what did husband Rep. Ken Levitas do after the shock waves went through the franchise community on June 4, 2008?

    On the 11th day of the legislative session in 2009 on February 3, 2009 Levitas had introduced, first reading a resolution, HR 178. By an incredible coincidence his bill covers exactly the issue, using the same language, struck down by the COA on June 4, 2008, the issue involving restrictive covenants during or after the term of a contract. His bill would overturn the decision of the COA.

    HR 178 – Enforcement of contracts; restrict competition; provisions
    Sponsored By
    (1) Levitas,Kevin 82nd
    February 3, 2009 -First Reader Summary
    A RESOLUTION proposing an amendment to the Constitution so as to allow the enforcement of contracts that restrict competition during or after the term of employment or of a commercial relationship so long as such contracts are reasonable in time, area, and line of business; to provide that courts may modify such contracts to achieve the intent of the contracting parties; to provide for the submission of this amendment for ratification or rejection; and for other purposes.

    Status History
    House Resolution 178

    By: Representatives Levitas of the 82nd, Coan of the 101st, Parrish of the 156th, Wilkinson of the 52nd, Lunsford of the 110th, and others

    A RESOLUTION

    Proposing an amendment to the Constitution so as to allow the enforcement of contracts that restrict competition during or after the term of employment or of a commercial relationship so long as such contracts are reasonable in time, area, and line of business; to provide that courts may modify such contracts to achieve the intent of the contracting parties; to provide for the submission of this amendment for ratification or rejection; and for other purposes.

    BE IT RESOLVED BY THE GENERAL ASSEMBLY OF GEORGIA:

    SECTION 1.

    Article III, Section VI of the Constitution is amended by revising subparagraph (c) of Paragraph V as follows:

    “(c)(1) Except as otherwise provided in this subparagraph, the The General Assembly shall not have the power to authorize any contract or agreement which may have the effect of or which is intended to have the effect of defeating or lessening competition, or encouraging a monopoly, which are hereby declared to be unlawful and void.

    (2) The General Assembly shall have the authority to provide by general law for contracts that restrict competition during or after a term of employment or of a commercial relationship so long as such contracts are reasonable in time, area, and line of business.

    (3) In order to conform contracts with general laws relating to contracts that restrict competition during or after a term of employment or of a commercial relationship and in order to achieve the original intent of the contracting parties, a court may modify a contract that restricts competition during or after a term of employment or of a commercial relationship to cure any deficiencies relating to the competitive restrictions where the restrictions would, if left unmodified, contravene any provision of this Constitution or of the United States Constitution or would otherwise render the contract or any restrictive covenant contained in the contract unlawful and unenforceable.”

    SECTION 2.

    The above proposed amendment to the Constitution shall be published and submitted as provided in Article X, Section I, Paragraph II of the Constitution. The ballot submitting the above proposed amendment shall have written or printed thereon the following:

    “( ) YES

    ( ) NO

    Shall the Constitution of Georgia be amended so as to authorize the General Assembly to provide for contracts that limit competition during or after the term of employment or of a commercial relationship and to authorize the courts to cure legal defects in such contracts in order to protect legitimate interests and achieve the intent of the parties?”

    All persons desiring to vote in favor of ratifying the proposed amendment shall vote “Yes.” All persons desiring to vote against ratifying the proposed amendment shall vote “No.” If such amendment shall be ratified as provided in said Paragraph of the Constitution, it shall become a part of the Constitution of this state.

    SUMMER 2010-Attorney Les Wharton of Epstein Becker Green made a presentation to the Southeast Franchise Forum apparently sometime in the summer of 2010 (sent to Guvna on 5/7/10 and see attached, panel 3 references that he signed and also says legislative solution!!!) regarding legal update for 2009. Panel 2 references the Atlanta Bread case and the issue of in term/post term, and says “SO A CONSTITUTIONAL AMENDMENT REQUIRED”

    The article published on 10/25/10 by the AJC states- “She is general counsel and senior vice president of Huddle House, the restaurant chain, as well as a member of the Southeast Franchise Forum, which is working with the International Franchise Association (IFA) to get Amendment 1 passed.”

    SAY WHAT YOU WANT, BUT IF IT WALKS LIKE A DUCK, QUACKS LIKE A DUCK, LOOKS LIKE A DUCK, IT’S A DUCK.

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