By Howard H. Johnston
In 40 years of practicing law, I have never seen such a misleading ballot question or such an unfair proposal as Constitutional Amendment No. 1.
Amendment No. 1 represents an attempt to control the employer-employee relationship in a manner previously unknown in Georgia. It will legalize unfair employment contracts, saying, “If you leave this company for any reason, you cannot work in this town (or several counties or states) for a period of two years.”
If passed, this amendment will allow an employer to force an employee to sign a contract which would create a modern form of involuntary servitude.
Amendment No. 1 deceptively states:
“Shall the Constitution of Georgia be amended so as to make Georgia more economically competitive by authorizing legislation to uphold reasonable competitive agreements?”
“Reasonable competitive agreements” are already upheld in Georgia. As the law stands today, you are protected from unreasonable employment covenants by the Georgia Constitution, which says that contracts that have the effect of “defeating or lessening competition” are unlawful and void. Our Constitution favors an open market and encourages free competition.
Accordingly, the Georgia Supreme Court has routinely refused to enforce contracts which unfairly restrict an employee’s opportunities. Our courts enforce post-employment contracts only where the provisions as to time, territory and the prohibited employment activity are reasonable. Georgia courts refuse to enforce any such contract where any of these elements are unreasonable. That means that judges refuse to “blue pencil” or redesign an unreasonable contract to make it enforceable against a former employee. The responsibility to develop a reasonable employment agreement currently is on the employer.
Amendment No. 1 would change all of this, making judges responsible for re-writing sloppy employment contracts, thereby overburdening the courts, increasing litigation, and allowing precedent to vary from county to county, courtroom to courtroom.
If this amendment is adopted, the next time you change employers or decide to go into business for yourself, you may not be able to do the same work for two years after you leave your present job, in an area as large as several states, because the employment agreement you signed says you cannot compete with your former employer. This agreement can apply to almost any type of private employee, including doctors, nurses, engineers, technicians, specialists, account representatives, real estate agents, executives, managers and wage earners. And, it doesn’t matter why you left your job -- whether you were “downsized,” or voluntarily left for more pay and opportunity, or left to avoid inappropriate behaviors at work.
Some businesses want to stop their employees from practicing their skill and trade for any other corporation, and require their employees to sign non-compete covenants as a condition of employment. As a result, when things don’t go well at work, the employee’s options can be severely limited. These businesses, represented by powerful and influential lawyers, have suffered embarrassment when the courts have held some contracts unenforceable and allowed former employees to compete. Now these businesses and their lawyers want to tilt the playing field in their favor.
Reading the complete proposed law is a challenge, even for an attorney, but consider this language found deep within the text: “If any portion of such restraint is against the policy of the law in any respect but such restraint, considered as a whole, is not so clearly unreasonable and overreaching in its terms as to be unconscionable, the court shall enforce so much of such restraint as it determines by a preponderance of the evidence to be necessary to protect the interests of the parties that benefit from such restraint.” These words, if passed, would require a former employee to go to court to see if he can compete against his former employer. Such an amendment would drastically tilt the playing field against the former employee who merely wants to make a living.
This amendment mandates judicial activism and interferes with competition and free enterprise. There are already laws in place to protect trade secrets and solicitation of customers. This outrageous amendment opposes fundamental fairness and equality before the law. Vote no on Amendment No. 1.
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Johnston is an attorney in Norcross.
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Copyright (C) 2010 by Georgia Forum. 10/10
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