Equal Time For Amendment One

Some of the folks supporting Amendment One have requested an “equal time” post in support of Amendment One. Their post is below. Now I just have to decide if in the spirit of equal time, I need to create 6 aliases to add comments below against Amendment one. 🙂

A “YES” vote on Amendment 1 is a “YES” vote for Georgia businesses

Much of my legal practice involves helping Georgia businesses resolve issues relating to employment contracts. It is a complex issue with terms rarely heard outside legal circles, such as “restrictive covenants,” “non-competes,” and “competitive agreements.”  These concepts may be entirely foreign to many voters, although I use them frequently.  That is why I want you to know more about Amendment 1 before you vote. 

I want you to know that, as it now stands, this area of law is often time-consuming, expensive, and stressful for owners of businesses of all sizes.  Georgia’s current approach to “restrictive covenants” and “competitive agreements” leaves businesses and employees with much uncertainty and often leads to costly litigation where otherwise valid contracts are thrown out of court for even the slightest of errors.      
           
I want you to know that the legislation that Amendment 1 enables, which passed the House and Senate with strong bi-partisan support, goes to great lengths to protect employees from unfair agreements.  After the passage of Amendment 1, most employees will not be subject to “restrictive covenants” or “competitive agreements” under any circumstances.  After the passage of Amendment 1, such agreements will apply only to key employees, like executives or those with highly specialized training.  Moreover, for the first time under Georgia law, any employee subject to this type of an agreement may not be bound by its terms if doing so would cause undue economic hardship.   

In the end, Amendment 1 will make Georgia more economically competitive with states like Florida and North Carolina, modernize an uncertain part of the law, and do so while striking a fair balance between employers and employees.  All of this is good for Georgia, and I hope you vote “YES” on Amendment 1.
 
Erika Birg, Esq.

34 comments

  1. chefdavid says:

    http://www.atlantaprogressivenews.com/news/0698.html
    “H. Res 178 is the resolution which proposed the amendment.

    The Georgia Constitution already states, “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 is hereby declared to be unlawful and void.”

    The amendment would change that existing language to add an exception for non-competition agreements to the current prohibition on anti-competitive legislation.

    Ironically, perhaps deceptively, the ballot question asks whether to make Georgia more economically competitive, while the amendment in reality adds an exception to the prohibition on the General Assembly defeating or lessening competition, thus allowing the defeat or lessening of competition.

    The new exception details how the Assembly will be allowed to create laws allowing the courts to enforce non-competition agreements, but will also allow the courts to modify such agreements in the way they see reasonable.

    One email circulated by Atlanta attorney Brian Spears, calls Amendment 1 a “Trojan horse by the Chamber of Commerce to remove the only remaining employee friendly law left in Georgia.””

    Savannah Morning News, Athens Banner-Herald, and Creative Loafing say vote no. (not that any of us just go to the polls and vote on what they say)

    Here is the Resolution:
    http://www.legis.state.ga.us/legis/2009_10/fulltext/hr178.htm

  2. View from Brookhaven says:

    Posting this late on Friday afternoon when few are likely to see it?

    How very Deal-esque of you. 🙂

  3. Dash Riptide says:

    “I want you to know that, as it now stands, this area of law is often time-consuming, expensive, and stressful for owners of businesses of all sizes.”

    As well it should be if the executive-level employee is important enough. Otherwise you’re blackmailing people who just want to work by making them sign a cheap adhesion “pre-nup.”

    http://bit.ly/VoteNoOn1

  4. Steve says:

    This isn’t really an argument. This is, “Non-lawyers don’t understand terms of art, so how about I give you some reassuring platitudes and you just take my word for it?” Umm, actually I would prefer that you delve deeper into some of your terms of art…

    I want you to know that the legislation that Amendment 1 enables, which passed the House and Senate with strong bi-partisan support, goes to great lengths to protect employees from unfair agreements.

    Can you elaborate? Are you saying that a constitutional amendment which has yet to pass (i.e. future tense) has already enabled legislation (i.e. past tense)? Or are you giving a vague promise of future legislation to curtail this ugly thing? None of these “great lengths” exist in the constitutional amendment itself.

    After the passage of Amendment 1, most employees will not be subject to “restrictive covenants” or “competitive agreements” under any circumstances. After the passage of Amendment 1, such agreements will apply only to key employees, like executives or those with highly specialized training.

    Again, what are you talking about? None of this is in the amendment on which we’re actually voting. Regardless, terms like “highly specialized” generally don’t carry their ordinary meaning in the field of labor law. Example: if your job requires rubbing two brain cells together, you are probably exempt from overtime pay protection.

    Look, there are already laws on the books covering trade secrets and violations of nondisclosure agreements. Beyond that, the only purpose of no-competes is to keep an employee under your thumb… a company has the resources to make threats, while an average person typically lacks sufficient resources to assert their valid rights.

    The “uncertainty” you’re talking about is entirely self-inflicted. Businesses worry about drafting no-competes that are too aggressive, because they risk nullifying the rest of an employment agreement. Totally understandable. So don’t push no-competes in your employment agreements at all then! Again, all the legitimate concerns you might raise are already covered by intellectual property law. A push beyond that is purely a power grab for leverage over your labor force.

    • Doug Deal says:

      Good points. I love the condescending tone of the posters article. As someone in the software development industry, this type of thing always has a way of applying to me, desptie the fact that no place I have ever worked for has ever paid for “specialized training” that I received on my own inititive and labor.

      Btw, welcome to the practice of law Steve, and congratulations.

  5. Max Power says:

    Erika works at Seyfarth Shaw Take a look at their client list and that should explain her support of the bill.

    http://www.seyfarthshawatwork.com/clientCorner/ClientList.html

    Also this little bit: “After the passage of Amendment 1, most employees will not be subject to “restrictive covenants” or “competitive agreements” under any circumstances.” is great. This is a classic lawyer’s trick. Of course employees would not be subject to “restrictive covenants” or “competitive agreements” because the legislature will define these terms in such a way as to allow employers to impose whatever restrictions they like.

  6. seenbetrdayz, Ph.D. says:

    “Look, there are already laws on the books covering trade secrets and violations of nondisclosure agreements.”

    This is ultimately the reason I voted “no” on this one today. I don’t see this as being much (not identical, perhaps) different from a current system in which a mid-GA ambulance company agrees to pay the tuition of new EMT’s if they go to work for the company for x amout of time. If they want to leave early, they have to repay their tuition.

    We already have a workable system, and I couldn’t understand why the state wanted more power to do fix something that isn’t exactly broken.

    And as you stated, if this was about preserving sensitive trade-secrets or something, I’m pretty sure we’ve already got that covered by laws as it is.

    I think all of the amendments on the ballot may have been sugar-coated in such a way as to confuse folks. Or maybe it was just me. I left the space blank on the amendments concerning long term contracts because they mentioned something about saving money, and at this point, as bad as it sounds (yes I admit), if a politician comes up to me talking about saving money, I hide my wallet. But at the very least, I make all possible efforts not to make un-informed decisions when I go vote, so this year, there were a lot of blank spaces.

    I read through all of these amendments three or four times on the sample ballots while waiting for my turn to vote early at the courthouse, and I have to say that I now have doubts that any of them were intended by the general assembly to mean the same as I have been interpreting them.

    Of course, so much is open to interpretation these days, it might not have mattered at all whether I chose yes or no.

    “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”

    “The question is,” said Alice, “whether you can make words mean so many different things.”

    “The question is,” said Humpty Dumpty, “which is to be master — that’s all.”

  7. ZazaPachulia says:

    yadda yadda yadda. Amendment 1 is an awful ruse. The wording is horrendously tricky and it is an absolute disgrace that it was allowed on the ballot in this form.

    Just vote no.

  8. John Konop says:

    Erika Birg,

    You Claim:

    

.such agreements will apply only to key employees, like executives or those with highly specialized training

..

    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/

    If I was your client would you advise me not to worry about signing this agreement because it only applies “ to key employees, like executives or those with highly specialized training”?

    Since you are so positive about your conclusion would you please send us a blanket opinion letter from your law firm willing to take all liability if you are wrong?

  9. Erick Likes Puppies says:

    I need not even subject you to my liberal rantings against Amendment 1. I think you nice Repub folks have that covered.

    Thanks y’all.

  10. Kilkenny Kid says:

    Finally someone gets Amendment 1! Thanks for good analysis Ms Birg – glad to see an attorney who practices in this area who is looking out for the greater good of our state and not their billable hours (like the trial bar who has mischaracterized Amendment 1 from Day 1).

    All conservatives should support Amendment 1 as it allows parties to enter into a private agreements which will be upheld in court, just like the parties to the agreement originally intended.

    Vote YES on #1 – I am.

    • Dash Riptide says:

      Private agreements that don’t require a blue pencil to make them enforceable are upheld. Employers just want to cast a wide net and let the courts decide later how much of their reach exceeded their grasp. That’s not what courts do here. If you want your agreement enforced, enter into an enforceable agreement. It ain’t complicated.

      There is public tyranny and there is private tyranny. Using the former to facilitate the latter is the worst of all possible outcomes. And selling the effort like candy to folks who are hurting is disgusting.

      You know there’s got to be something wrong with an amendment when it turns “it’s the economy, stupid” conservatives into unabashed populists.

  11. Beat Florida says:

    I am Brett Grayson of Jobs of Tomorrow, Inc. Jobs of Tomorrow exists to promote Amendment 1. I personally believe in Amendment 1 and the arguments that Ms. Birg has put forth in very detailed form on many occasions to include a highly regarded article in the Georgia Bar Journal. This information has been provided to this site previously and ignored. While I am glad that PP has deigned to give the proponents of Amendment 1 equal time – I find it suspect that such time was given on a Friday afternoon long after Mr. Erikson’s original post.

    Reasonable minds can disagree and it is to be expected in an area of law that truly is practiced by very few. To artificially limit debate however is something else entirely. Having spent most of the last 5 years serving in the USMC I am generally unfamiliar with PP and its reach. I have heard good things. However, based on my experience with this issue this site is unworthy of its reputation and clearly in decline.

    • Charlie says:

      Please kind sir, allow me to deconstruct this one for you:

      1) You are Brett Grayson. Congrats on that.

      2) You work for a previously unknown entity that exists to promote a piece of legislation. Your organization has an Orwellian sounding name.

      3) As a paid person working for an organization with an Orwellian sounding name, you personally vouch for another person who was most likely paid to write a position paper. Those pieces, at least, seem intellectually coherent together.

      4) You have a claim that this information was provided previously, and ignored. We have a form for tips at the top of this page. This “information” was never submitted via this form, which is our preferred method of receiving this kind of information. That said, we retain the prerogative to ignore most of the stuff that comes to us that way. We exercise this prerogative often.

      5) You claim “Mr. Erikson” chose to ignore you in the past. Perhaps if you knew Mr. Erickson, or at least how to spell his name, maybe the email would have actually gone through. But most likely, he probably would have ignored it. We ignore most tripe from folks who resemble items 1-4 above.

      6) The placement of this post on a Friday afternoon probably has something to do with your government affairs person sending it to me at 2:46 this afternoon. Those of us who work for people outside of your employ often don’t react as quickly as those to whom you are paying a retainer to print your Orwellian talking points on behalf of your Orwellian sounding organization. For that, I must sincerely apologize. My employer, however, appreciates me finishing the task they were paying me to complete this afternoon before I moved on to printing your talking points.

      7) Reasonable minds can disagree. Please read items 1-6 to determine if I think you and those supporting your organization have reasonable expectations.

      8.) Not allowing members of your organization to create multiple false aliases to shout down a community of commenters who have developed over a period of 6 years, reaching across all ideological spectrums, does not contitute “artifically limiting debate”. Quite the contrary, it preserves the debate itself on a somewhat level playing field.

      9) You are unfamilair with our site, yet have determined it is in decline. Congratulations. I intend to alert Georgia Tech, as I’m sure there are many math geeks over there who are very interested in your abilities to detect trend lines from a single data point.

      10) Thank you for stopping by. Please come again.

    • Steve says:

      Ms. Birg puts forth no arguments in “very detailed form”. She merely throws around platitudes about the amendment being limited to high-level executives, without offering detail on where any such imaginary protections may be found (they’re not in the bill).

      With the theoretical exception of “Kilkenny Kid” (who I’ve never seen on this site prior to the last Amend. 1 thread), there hasn’t been a single Peach Pundit commenter willing to support Amendment 1 without being paid to do so professionally. Sir, the community of Peach Pundit commenters agree on virtually nothing. Yet somehow your cause has united everyone here… Tea Party, moderate GOP, independents and Blue Dogs, and liberal Dems alike. This is a pretty damning indictment of your employer, and of yourself by extension.

      You’ve arranged a front-page post, and you’ve written a comment in which you actually use your real name. I salute you for that, at least. Now go bill an hour or two under “social media marketing”, and then buzz off. We’ll see you in a couple years with the next thing you’re shilling.

  12. Lance Weatherby says:

    Equal time? Seriously? Perhaps Peach Pundit should ask Jobs of Tomorrow for a page on their non-comment enabled web presence or put you folks in an ad on MNF.

    If you are against amendment one there is Facebook page at http://www.facebook.com/GAVoteNoOn1 or you can search on the Twitter hashtag #VoteNoOn1.

  13. dogface says:

    The Amendment must have some merit:

    The Bar and GTLA didn’t express their disapproval during the session.

    The vote on the constitutional amendment passed the House overwhelmingly 152-3, overwhelmingly in the Senate, 49-0.

    • Dash Riptide says:

      Yeah, and Bernie Madoff reported solid returns for investors for years, so his methods must have had some merit.

      The Amendment is fraudulent on its face. The voters are being asked:

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

      Yet the offending language that would be stricken from the Constitution in order give effect to Amendment 1’s true purpose is as follows:

      “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…”

      This is a non sequitur. The four corners of the resolution show that it is a fraud upon the people. Apparently it was also a fraud on more than a few legislators who can’t be bothered to read the entirety of the resolutions that come before them.

      “What? A jobs resolution? Other states do it this way? ‘Kay.”

      The question is how many of them would change their vote once it is pointed out to them that the resolution literally lies to the voters regarding what the constitutional amendment would actually do. I’m thinking more than a few.

      And what does the bill actually do? It tells potential employers that they can come to Georgia and become virtual monopsonies with superior bargaining power to exploit Georgia workers.

      Of course, the best and brightest among us will eventually be forced to move out of state since they can’t quickly go to work across town to better themselves. I guess that is a boon to the mediocre among us who become relatively more competitive over time, but it sucks for Georgia.

      Ever watch that movie “Idiocracy”? It’s like that.

  14. So I guess the question now is can we repeal this particular amendment? If nothing else, the wording was certainly biased / leading. With all the talk about repeal these days, I’m sure our Republican majority will hop right on this, right?

    • John Konop says:

      David,

      If anyone has an issue they can use what Erika Birg the attorney said on this blog. As part of the Georgia bar association I would think she would stand 100% behind her claims.

      We have not heard back, but one would only think it was because she is busy. It is great to know her law firm and her will stand behind the claims.

Comments are closed.