Betts & Associates is committed to providing each of our clients with top quality legal representation and achieving successful outcomes for their cases. We specialize in representing individuals and businesses in all areas of complex civil litigation matters. Our firm provides legal services with skill, strength, and integrity to residents all over the state of Georgia.

Betts and Associates offer a wide range of skills in almost all areas of the legal practice. Our commitment to growing a wide range of more discrete practice areas allows us to better assess client needs and provide prompt and effective legal solutions. Our firm was founded on the belief in providing personal service and valuable legal counsel that addresses our client's needs creatively. After a decade, that has not changed. We ensure that every client's case is carefully handled every step of the way.

If you need advice about the best way to approach and resolve your case, consider Betts & Associates. To request a legal consultation, contact our office at 404-577-8888 to schedule an appointment. We are proud to provide personal service and practical solutions for those with even the most complex legal concerns.

January 11, 2013

How long is too long to wait to bring a claim for infringement or unfair competition in Georgia?

What legal options do I have in Georgia when a person or business has been using my name, trade dress, brand, trademark, or logo for a long period of time without my knowledge? This is a question that we often hear from our business clients.


In Georgia, the equitable doctrine of laches can be applied to bar claims for relief that the plaintiff has delayed brining or that fall outside of the applicable statute of limitations period. With respect to trademark infringement and unfair competition claims, however, neither the Lanham Act nor its state law counterpart found in the Uniform Deceptive Trade Practices Act (UDTPA) contain specified limitations periods from which to judge which statute of limitations applies: the two-year statute of limitations period applied by Georgia courts to fill in statute of limitations where the legislature did not provide one (like in employment discrimination claims for relief) found in O.C.G.A. § 9-3-22; or the four-year statute of limitations governing injuries to personalty found in O.C.G.A. § 9-3-31. Another confusing aspect of claims for relief from infringement or unfair competition concern the legal theory to apply to determine when to begin measuring delay in some cases. Fortunately, there are some Georgia cases that shed light on both of these concerns.

The 11th Circuit first grappled with the issue of laches when a trademark owner has not learned of the infringement until after the statute of limitations has run on a claim for damages in 1997 when it decided Kason Industries, Inc. v. Component Hardware Corp., 120 F.3d 1199, 1203 (11th Cir.1997). In that case, the court borrowed from the closest analogous state law and held that the four-year period applicable to similar causes of action under Georgia's UDTPA governs the inquiry in Lanham Act cases. Kason, at 1206.

The Court went on to say that this period is not an absolute bar either because laches is an equitable doctrine that is to be applied flexibly. Id. at 1206. In calculating delay, the clock begins at the point in which the plaintiff "knows or should know she has a provable claim for infringement." Id. at 1206.; see also ProFitness Physical Therapy Center v. Pro-Fit Orthopedic & Sports Physical Therapy, P.C., 314 F.3d 62, 70 (2d Cir.2002) ("[A] plaintiff should not be obligated to sue until its right to protection has ripened such that plaintiff knew or should have known, not simply that defendant was using the potentially offending mark, but that plaintiff had a provable infringement claim against defendant.").

Some courts have found a second, perhaps more important basis to deny summary judgment on the issue of laches. See Angel Flight of Georgia, Inc. v. Angel Flight Se., Inc., 424 F. Supp. 2d 1366, 1371 (N.D. Ga. 2006) aff'd sub nom. Angel Flight of Georgia, Inc. v. Angel Flight Am., Inc., 522 F.3d 1200 (11th Cir. 2008) Because of the strong interest in protecting consumers from deception, courts should not deny a delayed trademark or trade dress owner from obtaining relief when there is strong evidence of likely or actual confusion on the basis of delay alone. Id. at 1370 (citing Restatement (Third) of Unfair Competition § 31, cmt. e (1995)).

These cases tell us that, in Georgia, even though estoppel of laches may bar a trademark owner's claim for money damages after the four-year period has run, a plaintiff may still be granted injunctive relief despite the delay.

Thus, if you have just now learned of past infringement of your trademark, trade name, brand, logo or other mark and want relief in Georgia, you may have a remedy in equity even though your claim is delayed. You should consult an experienced business attorney at Betts & Associates to ensure that your rights are protected.

January 9, 2013

Take Legal Action to Protect Against Wrongful Interference with Your Business Rights in Georgia

What can I do when my business relationship with another goes sour through no fault of my own? This is a question that many of our clients ask us.

Fortunately, there are at least two actionable tort claims available in Georgia for a plaintiff who has been injured by wrongful interference with a business relationship: tortious interference with contractual rights and tortious interference with business relations.


These two distinct yet related torts require a plaintiff to show four common elements: that the defendant (1) acted improperly and without privilege, (2) acted purposefully and with malice with the intent to injure, (3) induced a third party or parties not to enter into or continue a business relationship with the plaintiff; and (4) for which the plaintiff suffered some financial injury. Chaney v. Harrison & Lynam, LLC, 308 Ga. App. 808, (2011); Gordon Document Products, Inc. v. Service Technologies, Inc., 308 Ga. App. 445 (2011). In Georgia, without privilege means that the defendant must be a stranger to the contract and the underlying business in order to be liable. See Carey Station Village Home Owners Ass'n, Inc. v. Carey Station Village, Inc., 268 Ga. App. 461 (2004) (homeowners association not stranger to contract between developer and certain purchasers of subdivision lots).

Although these torts share common elements, there are a couple of subtle differences to keep in mind when deciding a theory of liability. First, a plaintiff asserting a cause of action for tortious interference with business relations must show that absent the interference, those relations were reasonably likely to develop down the road. Wilson v. City of Sardis, 264 Ga. App. 178 (2003). And, a plaintiff asserting a cause of action for wrongful interference with contractual rights must show the existence of a valid and enforceable contract. Wachovia Ins. Services, Inc. v. Fallon, 299 Ga. App. 440 (2009). Proof of a valid and enforceable contract need not be proved for interference of business relations.

A plaintiff need not wait to show that an interference resulted in breach to pursue tortious interference - he need only show interference that, because of the defendant's interference, a third party's performance of a contract was made more difficult, more expensive or actually caused the party not to perform the contract. St. Mary's Hosp. of Athens, Inc. v. Radiology Professional Corp., 205 Ga. App. 121 (1992).

In cases where a defendant's interference was not to an already existing business relationship or contract but to an anticipated business relationship, or economic expectancy, of plaintiff's, then, to make out a claim for tortious interference, the plaintiff must show that the defendant acted with malice and fraud, and present evidence that as a result of those malicious and fraudulent actions, the economic benefit or gift which would have flowed to him was diverted to the defendant. Ford v. Reynolds, 726 S.E.2d 687 (Ga. Ct. App. 2012).

If you feel like you have been a victim of wrongful interference of business relations or contract rights, then you should consult an experienced business attorney at Betts & Associates to ensure that your rights are protected.

January 7, 2013

Find Out How To Improve Georgia Schools This Session

Students are back in school after Christmas break and many parents are eager to see changes in their schools. Since the passage of the charter schools amendment Georgia voters approved last November and talks of new legislation that could give parents the option of having their schools changed from traditional public schools to charter schools, Georgia parents will no doubt want to get their legislators involved by taking action this session.

But will parent-driven changes actually lead to good outcomes for Georgia students? An article in today's Atlanta Journal Constitution reported that an advocacy group rated Georgia's school choice policies a D+, a low score compared to other states.

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Talk to an experienced education lawyer at Betts & Associates to see how you can make a difference in a Georgia school.

January 2, 2013

What Is a Trademark vs. a Trade Name In Georgia Business Law and How Can I Protect Mine?

A "trademark" functions as an identifier of goods or services, while a "trade name" primarily identifies the owner or operator of a business and may also be used to identify the goods handled by such owner. Stuart Enterprises Int'l, Inc. v. Peykan, Inc., 252 Ga. App. 231 (2001).

A person may acquire a trade name through long and extensive use of the name or through registering a business with the Georgia Secretary of State. However, if a person fails to register a trade name previously acquired, he will not be deprived of using the trade name if someone else does register the name. Giant Mart Corp. v. Giant Discount Foods, Inc., 247 Ga. 775 (1981); Pearl Optical, Inc. v. Pearle Optical of Ga., Inc., 218 Ga. 701 (1963).

There are numerous sources of protection for someone else using your trade name in the course of business. The Uniform Deceptive Trade Practices Act (discussed in a previous post) is one of them. Other forms of protection come from Georgia common law.


Moreover, a claim for common law trademark infringement is expressly excepted from the registration requirement of Georgia's trademark infringement statute. Diedrich v. Miller & Meier & Associates, Architects and Planners, Inc., 254 Ga. 734, 334 S.E.2d 308 (1985); SCQuARE Intern., Ltd. v. BBDO Atlanta, Inc., 455 F. Supp. 2d 1347 (N.D. Ga. 2006).

If you are unsure whether your trade name or trademark are being adequately protected, make sure to contact an experienced business attorney at Betts & Associates to discuss your options with you over the phone or in person.

December 24, 2012

How to Protect Your Business Reputation in Georgia.

How can I protect my rights and reputation from deceptive business practices? What can I do to stop a business from wrongfully profiting off of my good will? These are questions our business clients frequently ask us.


What To Do If Someone Has Been Profiting From Your Brand Without Your Consent.

Monetary and injunctive relief may be sought under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), which generally proscribes "false designations of origin and false descriptions" of goods or services. U.S.C. § 1125(a). Claims available under § 43(a) also include a cause of action for trade dress infringement in Georgia. See, e.g., AmBrit, Inc. v. Kraft, Inc., 812 F.2d 1531, 1545 (11th Cir. 1986). See also, Kason Industries, Inc. v. Component Hardware Group, Inc., 120 F. 3d 1199, 1205 (11th Cir. 1997). A single deceptive or unfair act by a business can be enough to hold it liable in Georgia.

Georgia plaintiffs often bring claims for trademark or trade dress protection under both the Lanham Act and the Georgia Uniform Deceptive Trade Practices Act (UDTPA), which employs the same standard of proof for liability as § 43(a) - "likelihood of confusion." U.S.C. § 1125(a). The UDTPA provides a cause of action when a person, "in the course of his business, vocation, or occupation...[c]auses likelihood of confusion or of misunderstanding as to the source, sponsorship, approval, or certification of goods or services." O.C.G.A. § 10-1-372(a)(2). Any person upon information or belief that he or she is likely to be damaged by unfair or deceptive business practice may commence an action to claim injunctive relief from the court and may be able to recover exemplary damages for intentional violations. O.C.G.A. § 10-1-390 et. seq. Other remedies may also be awarded under state common law claims of trademark infringement and unfair competition. O.C.G.A. § 10-1-392.

One common way a business can trigger liability for unfair and deceptive trade practices in Georgia is by passing off as its own goods or services during the sale, purchase, lease, or rental of goods, services, or property belonging to another. Unfair and deceptive practices such as "passing off" are actionable by any person injured in the course of his or her business, regardless of whether such injured person or entity has their mark, symbol, dress, design or other proprietary information registered with the principal register - Georgia law recognizes a protectable property interest regardless of registration status.

The UDTPA provides numerous examples of actionable deceptive trade or unfair business practices. See generally, O.C.G.A. § 10-1-420 et. seq. For instance, a business may be liable for causing confusion as to where a good or service came from. And, a business may be liable for misrepresenting that a good has a certain quality or benefit when it does not. A business may also be liable for disseminating untrue or misleading information in its advertising of goods, services and commodities in the commercial marketplace. Id.


There are a variety of remedies available to someone injured by a deceptive or unfair business practice in Georgia. First, an injured party may seek damages in the form of injunctive relief for the purpose of stopping a defendant from continuing its deceptive or unfair business practice. To obtain injunctive relief, a plaintiff must show a connection between the defendant's deceptive act and the harm suffered. Evidence that the plaintiff has been harmed and will likely be harmed at some point in the future by the defendant's actions is considered; however, proof of monetary damage, loss of profits, or intent to deceive is not required. O.C.G.A. § 10-1-373(a). In addition, the plaintiff must show that any damages already sustained can be remedied by the granting of an injunction. Costs and attorneys fees may be granted to the prevailing party when a party charged with a deceptive trade practice has willfully engaged in the trade practice knowing it to be deceptive. O.C.G.A. § 10-1-373(b)(2).

A plaintiff may also obtain relief in the form of monetary damages. Damages may be available where the defendant's deceptive or unfair practice caused unjust enrichment. Treble damages (or three times the amount of actual damages) are to be awarded to the injured party when the harm was intentional.

If you feel that you have been deceived by the practices of a business, you should consult an experienced business attorney at Betts & Associates to ensure that your rights are protected.

December 17, 2012

How To Protect Your Business Trade Secrets In Georgia.

What To Do If Someone Steals Your Business Invention or Idea: How Can I Protect My Business Trade Secrets In Georgia? This is a question clients oftentimes ask us.

While many business lawsuits involve disputes between businesses against businesses, there are also actions for which individuals can bring against other persons or businesses in Georgia. Today's post will discuss how to recover under The Georgia Trade Secrets Act upon someone misappropriating or stealing your trade secret for his or her improper gain.


The Georgia Trade Secrets Act

Small business owners can obtain relief for the actual or threatened misappropriation or theft of secret information, including, but not limited to, a pattern, drawing, techniques or product plans that derive actual economic value or the potential for economic value from not being generally known to, and not readily ascertainable by proper means by, other people. O.C.G.A. § 10-1-761(4). Reasonable efforts to maintain such information's secrecy must have been made to have an actionable claim. O.C.G.A. § 10-1-761(4); Smith v. Mid-State Nurses, Inc., 261 Ga. 208, 403 S.E.2d 789 (1991). See also, Avnet, Inc. v. Wyle Laboratories, Inc., 263 Ga. 615, 617 (1993) ("Even in the absence of an express agreement, it is an implied term of an employment contract that an employee will not divulge a trade secret learned by virtue of his employment to a competitor of his former employer.") (citation omitted).

Small business owners do not have to suffer financial harm before taking action against a person or business misappropriating their secret information for commercial advantage. O.C.G.A. § 10-1-762. Instead, you can ask the court to order an injunction to eliminate the commercial advantage of those using or threatening to your business idea by improper means. O.C.G.A. § 10-1-762(a). If successful, the court may compel the other party to cease using the information or may condition future use upon payment of a royalty in certain circumstances. O.C.G.A. § 10-1-762.

In addition to injunctive relief, a person is entitled to monetary damages for misappropriation. Damages can include both the actual loss caused by the misappropriation and the unjust enrichment caused by the misappropriation that is not taken into account in actual loss. O.C.G.A. § 10-1-763(a). The jury can consider evidence of the monetary value in an owner's secret information and the fact that the unjustly enriched party realized a gain from the misappropriation of such information when calculating the amount of monetary damages. White v. Arthur Enterprises, Inc., 219 Ga.App. 124 (Ga. Ct. App.) (1995).

While Georgia law provides that a continuing misappropriation by any person constitutes a single claim against that person, the Code allows for separate claims to be made against each person who receives a trade secret from another person who misappropriated that trade secret. O.C.G.A. § 10-1-766.


Have you ever felt like someone has stolen your business idea? Has a competitor used your secret information to drive you out of business or to a financial breaking point? If you think your trade secret has been or is about to be misappropriated or stolen by another, you should seek advice from an attorney at Betts & Associates who will discuss with you over the phone or in person whether you have been cheated out of your rightful earnings from use of your secret information.

December 12, 2012

What To Do When New Vehicle Tag & Title Laws Going Into Effect on March 1 In Georgia

See this video of Cobb County Commissioner Gail Downing about some important changes going into effect on March 1, 2013 regarding your vehicle tag and title taxes.

Please contact an experienced attorney at Betts & Associates if you have questions about these new laws and how they can affect you starting March 1st.

November 19, 2012

Melvin Williams Wrongful Death Case Set To Go Before Eleventh Circuit Court of Appeals

The Eleventh Circuit Court of Appeals is set to hear oral arguments in early December over the wrongful death civil lawsuit filed on behalf of the family of Melvin Williams, a man who was fatally shot by an East Dublin police officer on May 14, 2010.

The incident happened after Williams was stopped and confronted by East Dublin police officer, Jeffrey Deal, after he allegedly ran a stop sign. There is no visual evidence of this moving violation though despite the presence of a police video that has been released to the public. Moreover, it was revealed after the shooting that Officer Deal had not attended the state's mandatory training on use of deadly force and therefore had lost his power to arrest when the incident occurred.

What the video does show is Officer Deal driving his police car to an East Dublin residence and aggressively approaching Williams who was standing next to his parked vehicle. A fight ensued between Williams and Deal, with Williams asking the officer repeatedly, "What's wrong with you?!" As the fight escalated, Deal drew his side arm and shot and killed Williams who was unarmed.

Upon further investigation by the Georgia Bureau of Investigation (GBI), it was revealed that over half of East Dublin's entire police department, including East Dublin Police Chief William Luecke, also lacked the power to make arrests throughout 2010 because they too had not undergone the training required by the Georgia Peace Officer Standards and Training Council to keep their certification active.

Even though the East Dublin police department does not dispute that Deal has lost his power of arrest Laurens County Magistrate Judge, Donald Gillis, decided he would not approve a warrant for Deal's arrest in September of 2011, claiming that he arrested Williams under a citizens' arrest. The Laurens County District Attorney has also refused to take the case to a grand jury hearing. Jeffrey Deal remains employed on the East Dublin police force.

The Williams' family has since filed a wrongful death lawsuit against Officer Deal, East Dublin police supervisory officers, and the city of East Dublin. That case, however, has also run into hurdles as the East Dublin police department has not allowed their officers to provide testimony in any deposition, citing "qualified immunity" as the reason. Qualified immunity is used to protect government officials from liability for the violation of an individual's federal constitutional rights. It can be cited by state or federal employees performing discretionary functions where their actions, even if later found to be unlawful, did not violate clearly established law.

Williams' family attorney, Mario Williams (no relation) challenged the police department's right to claim qualified immunity by bringing the matter before a United District Court Judge in Augusta, GA. The judge ruled that the department could not cite qualified immunity so the East Dublin defense attorneys have appealed that decision to the Eleventh Circuit Court of Appeals. The Eleventh Circuit will ultimately decide how this case will move forward.

Given the lack of a thorough criminal investigation and subsequent prosecution, many questions remain unanswered in this case. Therefore any evidence gathered during these civil proceedings will go a long way in determining whether the federal government will pursue criminal prosecution against Officer Deal under the Civil Rights Act.

October 27, 2012

Georgia's Macon State Prison Remains Under Investigation Over Prisoner Abuse Case

Federal and state authorities are still conducting an investigation over widespread reports of abuse and violence in various Georgia prisons. One case in particular focuses on an inmate, Terrance Dean, who was beaten while handcuffed on December 16, 2010 by seven prison guards at Macon State Prison and had to be hospitalized with life threatening injuries as a result.

The beating ensued after a fight broke out on December 16 between Dean and a guard during an inmate protest over better prison conditions. This resulted in an emergency response team being called in to diffuse the situation. However, after the officers broke up the fight they then handcuffed Dean and led him into the prison gymnasium where they allegedly beat him to the point where he fell into a coma.

Macon State Prison authorities also have been accused of covering up the incident after it happened. For example, Dean's family was not notified by the Georgia Department of Corrections that Terrance was in the hospital until nearly two weeks after the assault occurred. The family initially found out what happened through an illegal cell phone call that came from inside the prison to Dean's brother. And Dean's mother did not get to actually visit her son until January of 2011.

The Georgia Bureau of Investigation (GBI) has pressed charges against the seven officers involved for aggravated battery. So far three of the seven guards have pleaded guilty to federal civil rights and conspiracy charges related to the beating of Dean and other inmates.

Dean is still suffering today from sustained brain injuries and physical problems as a result of this vicious beating. He has filed a federal lawsuit against the seven officers who assaulted him, along with their supervisors, who Dean says had direct knowledge of the incident.

Dean's attorney, Mario Williams, has stated that he hopes the FBI's inquiry closely examines what role senior officials at the prison had with respect to their simultaneous knowledge and more importantly, approval, of the beating.

Homicides and violence in Georgia prisons have reached an unprecedented level in recent years due to overcrowding and short staffing. The Southern Center for Human Rights filed a lawsuit in July of 2011 against the state of Georgia that also alleged systemic abuse by prison guards at Hays State Prison.

Prisoners do not forfeit their basic human rights while serving out their sentences, and abuse is a serious issue that occurs nationwide. Any prisoner who believes he or she has been a victim of abuse by a prison official can pursue legal recourse in both criminal and civil courts.

October 24, 2012

What is the Lilly Ledbetter Act and How Does This Law Affect Me?

Much of the 2012 Presidential Election has been focused on women's issues. In particular both candidates alluded to the Lilly Ledbetter Act during the second Presidential debate at Hofstra University. But what are the terms and conditions of the Lily Ledbetter Act? And what sort of rights and protections does it give women in the workplace?

The Lilly Ledbetter Fair Pay Act of 2009 was passed by Congress and signed into law by President Barack Obama in January 2009. The Act amends Title VII of Civil Rights Act of 1964 to "clarify that a discriminatory compensation decision or practice that is unlawful under such Acts occurs each time compensation is paid pursuant to the discriminatory compensation decision or other practice." In other words, any employee shall not be time barred from filing a law suit around unlawful discrimination as long as they file that suit within 180 days of the last paycheck where they believe such discrimination has, and continues, to occur.

This piece of legislation stemmed from the 2007 Supreme Court case, Ledbetter v. Goodyear Tire & Rubber Co. The plaintiff, Lilly Ledbetter, had worked for many years in Alabama as a production supervisor at a Goodyear tire plant and was paid less than her male counterparts who had identical job titles and responsibilities. Ledbetter sued Goodyear when she was about to retire, alleging that the company had based this pay disparity on gender discrimination.

The Supreme Court reviewed this case and ruled in a 5-4 majority decision (written by Justice Samuel Alito) that Ledbetter was time barred from filing a lawsuit under Title VII of the Civil Rights Act because she has not done so within 180 days of first experiencing the effects of the alleged discrimination. In the minority decision, however, Justice Ruth Bader Ginsberg set forth an interpretation of the law that would require any time limits to file a complaint should be reset upon receipt of each paycheck.

The Supreme Court's Ledbetter decision was far reaching in its scope and sparked a national controversy since the new restrictions not only affected Title VII claims, but also claims and lawsuits pertaining to the Age Discrimination and Employment Act, the Fair Housing Act, the Patsy T. Mink Equal Opportunity in Education Act (Title IX), etc. By requiring such a short timeline to file a complaint, employers were given much more flexibility to argue that most claims were filed too late and thus illegitimate.

Democrats in Congress drafted a bill to amend the Supreme Court's Ledbetter decision very shortly after the ruling. And the new law, requiring that the 180 day statute of limitations be reset with each paycheck, has been in effect since 2009 but can be retroactively applied back to May 28, 2007.

In summary, the Lily Ledbetter Fair Pay Act is designed to protect workers from employment discrimination practices. Moreover, it enables individuals who believe they have been victims worksite discrimination a greater amount of time to seek justice.

If you believe you have been adversely affected by employment discrimination you should seek help from either a government enforcement agency like the Equal Employment Opportunity Commission (EEOC), or by contacting an attorney who specializes in employment law in order to determine if you have a legitimate legal claim.

October 18, 2012

Have You Been Misclassified as an Independent Contractor or Exempt Employee?

In recent years the federal government and many states have begun to crack down on business owners who misclassify their workers as "exempt employees" and/or "independent contractors." Such misclassifications are illegal and an injustice to workers, particularly low-wage and immigrant workers, as it denies them basic rights afforded by the Fair Labor Standards Act (FLSA).

One of principal benefits of the FLSA is that it requires employers to pay non-exempt employees at least the federal minimum wage and paid overtime (one and a half times your regular hourly rate of pay) for all hours worked in excess of forty (40) in a week.

When business owners misclassify their employees as being "exempt" then they can require them to work much longer hours for way less money since they do not have to pay overtime. Moreover, if they classify their workers as "independent contractors" they not only save money on overtime but also on contributions they would normally have to make to Social Security, Medicare, and Unemployment Insurance (i.e., the payroll or withholding tax).

Companies that don't play by the rules also unfairly place their business competitors at a financial disadvantage since they are shelling out less to their workforce, not paying their fair share of taxes, and not abiding by terms of the FLSA.

How do I determine if I am an Exempt Employee?

To be considered an "exempt employee" you must meet two basic tests, the salary test and duties test.

Salary Test: An employee must be paid a salary (usually weekly or monthly), which he or she receives regardless of the number of hours worked. This means that the employee must be paid a salary for the entire week if he or she performs any services during the week and may not be docked for short term absences.

Duties Test: There are three so-called "white collar" exemptions that can be applied: executive, administrative, and professional. However, the ultimate basis for determining whether each of these duties triggers an exemption is whether or not the employee exercises "discretion and independent judgment" on the job. Employees who perform job tasks under strict supervision and work rules (such as clocking in and clocking out) are not typically considered exempt.

How do I determine if I am an Independent Contractor?
A company has to meet three essential standards in order to classify an individual as an "independent contractor" or someone who is self-employed and working under a 1099 tax form:

1.) The worker must be free from direction and control of the employer in the performance of the work;

2.) The worker's services must be performed either outside the usual course of an employer's business or outside of all the employer's place of business;

3.) The employee must be customarily engaged in an independently established trade, occupation, profession, or business of the same nature as the service being provided.

Misclassification of employees is a problem that exists in lots of industries, but it is especially common in construction, hotels, manufacturing, arts and entertainment, food and beverage service, and retail establishments.

If you believe you have been misclassified as an "exempt employee" or an "independent contractor" then you should seek advice from an attorney at Betts & Associates who will discuss with you over the phone or in person whether you have been cheated out of your rightful pay by your current or a former employer.

Anyone can seek legal counsel from Betts & Associates regardless of where you live. You may be entitled to receive a sizeable amount of back pay as a result of your inquiry.

October 16, 2012

United States Supreme Court Expected to Make Important Rulings on Immigration, Civil Rights & Affirmative Action

The United States Supreme Court began its 2011-2012 term on October 1 and is expected to make some historic rulings on major laws pertaining to Immigration, Civil Rights, and Affirmative Action over the next few months.

One of those cases will address the Court's interpretation of a key provision of the Voting Rights Act of 1965. As over 26 states have passed strict voter identification laws, the US Department of Justice (DOJ) has sued on the grounds that these laws violate Section 5 of the Voting Rights Act. The Supreme Court is now poised to make a judgment on this contentious issue.

Section 5 of the Voting Rights Act requires states and voting jurisdictions with a clear history of voter discrimination get federal approval from the DOJ before they can implement any new voting practices or procedures. In other words, the states have a burden to prove that these new practices will not have a discriminatory purpose or effect on voters.

The 26 states that have passed these new voter ID laws claim their primary purpose is to crack down on "voter fraud." However, the DOJ disputes this claim citing that there is no clear evidence of widespread voter fraud but there is very clear evidence that these new voter ID laws could disproportionately curtail voting especially amongst people of color, as well as poorer and elderly citizens.

Indirectly related to the DOJ's challenge to the various voter ID laws is whether or not Arizona's new law requiring a person to show proof of citizenship before they can register to vote conflicts with the National Voter Registration Act of 1993. That law allows any eligible voter to complete a federal voter registration form which asks whether he or she is a United States citizen. If anyone incorrectly identifies themselves as a US citizen then they will be subject to charges of perjury. Arizona, by implementing its own rules to show proof of citizenship before one can register, is directly challenging this nearly 20 year old federal law.

Another critical Supreme Court case centers around whether or not individual states can base college admission standards on affirmative action. In the case Fisher v. University of Texas former white undergraduate applicant, Abigail Fisher, contends that she was unfairly denied admission to the University of Texas at Austin (UT) because of reverse racial discrimination. UT has argued that Ms. Fisher did not meet the school's normal admission standards and that it is free to admit a varied and diverse student body as a part of its overall academic and societal mission statement, which includes granting preferential treatment to students with specific racial and ethnic backgrounds.

In 2003, the Supreme Court ruled in a 5-4 decision in the landmark case, Grutter v. Bollinger, that a public college and/or university had the right to consider such matters of racial diversity when establishing its own admission standards. That decision is now at risk of being overruled as the current Supreme Court Justices review this new case.

Finally, in what is sure to be one of the more publicly discussed decisions in recent history, the Supreme Court is expected to rule on whether or not same sex couples can legally marry and/or be denied the same marital benefits as non-same sex couples. This ruling may decide whether or not the Defense of Marriage of Act (DOMA) of 1996 is constitutional. Yet there are several other outstanding cases the Court can elect to review in order to make a decision on this issue including a lower court ruling that overturned a California statewide ballot initiative, Proposition 8, which denied same-sex couples the right to marry.

October 12, 2012

Georgia Secretary of State's Office Not Equipped to Handle New Law Requiring Proof of Legal Residency to Obtain a Professional License

A Georgia law passed earlier this year requiring all applicants to prove legal residency in order to obtain a professional license has created a major backlog for the Georgia Secretary of State's office, and is delaying the issuance of the licenses to Georgia residents who have done everything correctly.

The professional licensing renewal process that covers over 200 professions (e.g., nurses, hair stylists, plumbers, pharmacists, etc.) and over 475,000 workers used to just take just a few days, but now because of this new proof of legal residency requirement the waiting period can take up to several weeks. And for new applicants the amount of time could stretch out for several months.

This is proving to be a challenge for Georgia workers looking to stay at their job, not to mention large and small business owners alike who want to keep their trained workforce in tact without an interruption in service.

Adding to the slowdown are cuts in state government jobs that have reduced the personnel necessary to take on this extra amount of responsibility. For example, there are not enough state licensing employees to answer the nearly half a million calls the agency has received as a result of these stricter licensing requirements.

The New York Times reported on October 8 that the entire Georgia state licensing division has been reduced to just 87 employees. This is a 30% reduction from 2008, which is four full years before the proof of legal residency requirements went into effect.

The Georgia Secretary of State's office has pledged not reduce any more positions in the state licensing department so instead it has scheduled to close the Georgia State Archives to the public on November 1 and has drastically reduced its staff. As a result, the work of researchers and historians looking to gather information on the state's long and storied history will have to be set aside for now as the state does what it can to implement this new certification requirement for professional employees.

Georgia professional license applicants used to be able to renew their licenses entirely online. However, the new proof of legal residency law requires that state licensing staff personally verify everyone's proof of citizenship or legal residency before a renewal application can be approved. This is happening across the board despite how many times an individual may have renewed their license in previous years.

So far this year more than 8,300 applications have arrived at the Georgia state licensing board without proof of citizenship or legal residency, which has significantly added to the slowdown. Georgia Secretary of State, Brian Kemp, has said that he will petition the legislature to amend the law so that proof of citizenship and/or legal residency will only be required for first time applicants. Until then there is no end in sight for what is proving to be a huge logistical nightmare for Georgia's limited state resources.

Other states with similar proof of legal residency laws, such as Alabama, could face even greater problems since their oversight is not run by a central state government office but rather operate independently with legislative approval. It remains to be seen how these independent professional boards and commissions will cope with these new requirements. It is not difficult though to anticipate problems and delays will occur on the same or even greater scale than they already have in Georgia.

October 11, 2012

Georgia Immigration Law Results in More Applications for Citizenship

According to the United States Census Bureau, large numbers of foreign-born Georgia residents are taking the necessary steps to become naturalized United States citizens. The Atlanta Journal-Constitution reported on October 9 this appears to be a direct result of Georgia's new, strict immigration law as the state has seen an increase in over 43,000 naturalized citizens between 2010 and 2011. That is a jump of 13% overall.

This increase in naturalization is logical given the harsh consequences of Georgia's new immigration law and the flexibility local law enforcement officers now have to enforce its terms. For example, local law enforcement officers have the authority to check the immigration status of virtually every suspected non-citizen or legal resident who cannot provide identification upon request. Such inquiries had been handled exclusively by federal immigration authorities in the past, but under Georgia's new law local authorities can now pursue matters of immigration on their own.

Moreover, strict penalties have been proposed to any business owner who does not verify their current workers' and new hires' legal authorization to work. This requirement is burdensome to companies and has reportedly resulted in a diminished labor pool in vital areas of Georgia's economy such as farming and agriculture.

The threat of arrest and trouble finding a job simply for not having all or your necessary paperwork in order is only part of the new law. Suspected non-citizens and/or legal residents can also be denied basic public benefits such as health care, education, and food assistance unless they can prove their status upon request.

Given all of these new requirements it comes as no surprise that more and more eligible people are looking to become naturalized citizens. Any foreign citizen or national can become a naturalized US citizen as long as he or she is able to meet the necessary requirements set by Congress in the Immigration and Nationality Act (INA). This process is administered by the United States Citizenship and Immigration Services (USCIS).

If you are a Georgia resident and think you are eligible to become a naturalized citizen then it would be advisable to seek legal counsel from a local attorney who specializes in immigration law in order to get the most up to date information on how best to proceed.

October 7, 2012

Georgia Product Liability Law - Part 1: History and Burden of Proof

When a manufacturer makes a product, they must consider the risks and harms that the product could cause. They do this because if a person is injured because of a defective product, the manufacturer will have to pay for the injury.

This has not always been the case. For a very long time, the "general rule" was that a manufacturer could not be sued, even for negligence, by someone with whom he had no contract. This was called the "rule of privity," and it was most famously set forth in an 1842 case Winterbottom v. Wright. This rule existed for many decades. See this article for more information about the history of product liability.

The law and its assumptions began to change in the middle of the 20th century. Many people consider Ralph Nader the true pioneer of Product Liability. According to his bio, "The crusading attorney first made headlines in 1965 with his book Unsafe at Any Speed, a scathing indictment that lambasted the auto industry for producing unsafe vehicles. The book led to congressional hearings and a series of automobile safety laws passed in 1966. Since 1966, Nader has been responsible for: at least eight major federal consumer protection laws such as the motor vehicle safety laws, Safe Drinking Water Act; the launching of federal regulatory agencies such as the Occupational Safety and Health Administration (OSHA), Environment Protection Agency (EPA), and Consumer Product Safety Administration; the recall of millions of defective motor vehicles; access to government through the Freedom of Information Act of 1974; and for many lives saved."

In Georgia, the following four part test must be meet for actions involving bodily injury to human beings. In any products liability case, the plaintiff has to prove: (1) that the product was defective, (2) that he or she actually was injured, (3) that that there was a connection between the product defect and the injury, and (4) that the defendant (manufacturer) was responsible for the defect. See Products Liability, Second Edition, Madden, §12.1, p. 487.

Upcoming: Part 2: Product liability - STRICT LIABILITY: O.C.G.A. §51-1-11