USA Regional Employment 2019 Comparisons

Last Updated January 15, 2019

Law and Practice

Authors



Arnall Golden Gregory LLP 's Employment Practice has been chosen as the exclusive member in the State of Georgia of the Employment Law Alliance, a group of employment firms in every state and more than 135 countries, all of whom specialise in representing management. The Employment Practice assists management with solving the full range of employee challenges, from practical counselling on the immediate problem of the day to the most complex workforce issues. AGG's benefits lawyers advise on qualified or non-qualified plan issues, from merging benefits plans to avoiding plan terminations and limiting the risk of IRS and DOL fines, while if an employment problem goes to court, the firm's trial lawyers stand ready to expertly defend management's interests anywhere in the nation. AGG's key employment practice areas include: employee benefits and executive compensation; employer counselling; employment litigation; ERISA litigation; immigration and global migration; employment migration, restrictive covenant and competition disputes.

The regional climate in Georgia is particularly employer-friendly and sees minimal state regulation. As noted in most of our responses, employers in Georgia, as in every state, must comply with federal law, but the absence of significant state regulation leaves Georgia employers substantial leeway in structuring compensation, benefits, hiring and termination with little oversight at the state level. In addition, Georgia recently overhauled its laws on restrictive covenants to make them more enforceable and business-friendly.

The Georgia Department of Economic Development has recently engaged in a push to attract businesses to the region, and the publication Site Selection named Georgia the Number 1 State for Business for the fifth year in a row in 2017. Georgia offers a number of tax credits to employers, including small businesses. Effective 1 January 2019, Georgia’s corporate tax rate will decrease from 6% to 5.75% for income earned in-state. 

In addition to a favourable fiscal climate, the workforce pool in Georgia is diverse and talented. Georgia is home to a number of prestigious, nationally ranked universities, including the University of Georgia, Georgia State University, Georgia Institute of Technology, and Emory University, to name only a few. The presence of high-quality local schools means that Georgia employers have access to abundant high-quality, skilled labour. The state sees very little union membership, except in very specific industry segments (such as auto and flooring). Further, Hartsfield-Jackson Atlanta International Airport is one of the busiest in the world, making both domestic and international travel convenient with numerous direct flights.

The socio-economic and political issues on the national stage are just as relevant in Georgia as in any other region. 

With regard to the “gig” economy, “gig” services such as Lyft, Uber, GrubHub, and Instacart abound in Georgia. In a common theme throughout this narrative, unlike some other states, Georgia has not enacted any state-specific laws governing the “gig” relationships. Rather, companies with a “gig” business model located in Georgia must be concerned primarily with the worker classification and compensation issues existing under federal law – specifically, whether “gig” workers are appropriately classified as independent contractors or as employees, who are subject to wage and hour laws and for whom certain social taxes must be paid. There is currently litigation on the proper classification of “gig” workers in multiple jurisdictions within the USA, and while the rulings could affect businesses in Georgia equally with businesses located elsewhere, these issues are not specific to Georgia.

The "Me Too" movement, the “Black Lives Matter” movement, and other general privacy issues are not state-specific. These movements exist in Georgia as in many other states in the nation. Again, unlike other states, Georgia generally has not enacted legislation responding to these movements. For example, in response to the #MeToo movement, certain other states have enacted, or are considering enacting, laws that require employers to present training on the prevention of workplace harassment to their supervisors and employees. While implementing such training is a good practice in Georgia, it is not required by Georgia law.

Union membership in Georgia is particularly low, as with other southern states. In 2016, the percentage of employees in Georgia with union membership was 3.9% – well below the national average of 10.7%. Georgia is a "right-to-work" state, which means that membership in a union, or payment of dues to a labour organisation, cannot be made a condition of employment; Official Code of Georgia (OCGA) § 34-6-21 and § 34-6-22. Any employment agreement purporting to require union membership or the payment of fees will be void under Georgia law. Moreover, violation of the right-to-work law is punishable by injunction and damages; OCGA §§ 34-6-23 through 34-6-27. Because of the low number of unionised employees, as well as the lack of union tradition and culture, Georgia is an attractive location for businesses whose workforces are generally unionised.

Owing to the low number of unionised workers in Georgia, rulings from the NLRB do not have a tremendous impact on Georgia’s employers and employees. Nevertheless, Georgia employers are still governed by the National Labor Relations Act’s protection of “concerted activity” by non-union employees. Generally speaking, “concerted activity” occurs when two or more employees discuss, complain of, or otherwise act together to improve or change the terms and conditions of employment. Practically speaking, the NLRB rulings that may most affect non-unionised workplaces in Georgia are those dealing with employee handbook provisions. Specifically, the NLRB frowns on any employer policies that inhibit employees’ ability to discuss the terms and conditions of their employment, including through social media. For example, handbook policies that generally prohibit employees from posting negative comments about their employer online have been considered unlawful by the NLRB, because they could lead employees to believe that the employer is attempting to suppress employees’ ability to discuss the terms and conditions of their employment. As shown by this example, NLRB rulings addressing the protection of concerted activity impact all Georgia employers.

As stated previously, the low level of state regulation makes Georgia an employer-friendly venue. Georgia is a staunch “at-will” employment state, meaning that either the employee or the employer may terminate the employment relationship at any time and for any reason, as long as the reason is not unlawful. Georgia is also a right-to-work state, so employees cannot be forced to pay union dues in a unionised workplace.

Georgia law will recognise and enforce employment contracts in accordance with normal contract principles. In addition, employers in Georgia are strongly encouraged to implement a handbook setting forth their policies and procedures for the sake of clarity, as the handbook is frequently the first line of defence in disputes regarding the terms and conditions of employment. With that being said, every employment manual should contain numerous conspicuous and express disclaimers, emphasising that the employment relationship is at-will, that the terms of the employee handbook do not constitute a contract, and that the company retains the exclusive right to unilaterally modify, rescind or amend the procedures contained in the handbook at any time, with or without notice

Georgia does not have a comprehensive wage and hour law; rather, employers must comply with the federal Fair Labor Standards Act. Accordingly, there are no state requirements regarding the payment of overtime, the provision of breaks, or the like. Although Georgia does have a state minimum wage – currently USD5.15 per hour – it is in almost all instances pre-empted by the higher federal rate of USD7.25.

With respect to benefits, Georgia has not implemented any laws requiring that employers offer paid or unpaid leave. The one minimal Georgia regulation related to leave is the Family Care Act of 2017, which states that if employers with more than 25 employees choose to offer sick leave, employees must be permitted to use up to five days of sick leave to care for the illnesses of immediate family members. Notably, the law does not require that sick leave be offered, but only regulates how sick leave can be used in shops of more than 25 people when the employer does choose to offer it. 

Georgia does not have any significant analogues to federal anti-discrimination statutes, but there are a few noteworthy regulations. For example, the City of Atlanta has a specific ordinance prohibiting discrimination on the basis of age, race, disability, sexual orientation, religion and other protected characteristics. The Georgia Sex Discrimination Act prohibits any employer from paying one sex at a lesser rate than the other for comparable work. This statute largely mirrors the federal Equal Pay Act.

While Georgia has enacted a few other anti-discrimination laws, they have little effect on private employers. For example, Georgia’s General Age Discrimination Law prohibits employers from discriminating against persons between 40 and 70 years' old on the grounds of age, but provides no private cause of action. Georgia has also enacted the Fair Employment Practices Act prohibiting discrimination on the basis of race, colour, religion, national origin, sex, handicap, or age, but that statute applies to public, state employers, not private employers.

Thus, employers operating in Georgia need to be concerned primarily with complying with federal laws and regulations.

See above, 2.1 Defining and Understanding the Relationship.

Immigration is regulated at the federal level, chiefly under the Immigration and Nationality Act (INA). The Immigration Reform and Control Act (IRCA) of 1986 was enacted to curb illegal immigration, denying welfare benefits to undocumented immigrants and strengthening sanctions against employers who hire them. The U.S. Congress has control over all immigration-related regulations, while the executive branch of the federal government is in charge of enforcing immigration laws.

The federal government's jurisdiction over immigration law has been upheld by the U.S. Supreme Court, which has overruled attempts by State laws to discriminate against immigrants. More fundamentally, however, the Supremacy Clause of the U.S. Constitution is interpreted to mean that federal laws trump state laws in the realm of immigration.

With that being said, many states have passed laws directly bearing on immigration. For example, the Georgia legislature is currently debating a bill that would make it easier for people living without legal status in Georgia to end up in a deportation proceeding. The bill, SB 452, would require local law enforcement and court officials in Georgia to report to U.S. immigration enforcement if they learn a suspect is in the country illegally.

Collective bargaining negotiations as well as union organizing campaigns are governed by the NLRA. Georgia does not have any specific regulations governing these issues.

Georgia itself imposes very few constraints on the employment relationship, but the obligation to comply with federal law is a constant in any state, including this one. Beginning at the interview stage, if the employer requires background checks, the process must comply with the federal Fair Credit Reporting Act (FCRA). Just as in the courts in many other jurisdictions, federal courts in Georgia have recently seen active litigation from the plaintiffs’ bar for violations of the FCRA. However, unlike other jurisdictions, Georgia has not implemented a “ban the box” measure, which would prohibit private employers from asking about an applicant’s criminal history. (Notably, Georgia does have a “ban the box” law applicable to public employers). Still, however, even private employers may be well advised not to ask for such information, as it may open them to liability under federal anti-discrimination laws. 

Georgia employers must also be cognisant of federal anti-discrimination laws, which would prohibit them from asking questions in the earliest stages of the interview process about an employee’s disability, pregnancy, or other health conditions, or any other protected characteristic. In addition to avoiding enquiry into protected characteristics under federal law (eg, race, national origin, sex, religion), Georgia employers generally – and with some limited exceptions – are prohibited from making employment decisions based on an employee's discharged, "first offender" criminal conviction.

Georgia has a Restrictive Covenants Act which has substantially liberalised the drafting requirements for restrictive covenants in Georgia. Before the effective date of the adoption of the new statutory scheme in 2011, even the smallest semantic variations in language caused a restrictive covenant to be deemed unreasonable and unenforceable as a matter of law. The Act dramatically altered the landscape of restrictive covenant law in Georgia, making it much easier to compose enforceable covenants, including confidentiality provisions, covenants not to compete, and customer non-solicitation provisions. Significantly, and contrary to the prior law, the Act empowers courts to modify (or “blue pencil”) restrictive covenants that are deemed overbroad as to duration, geographic scope, or scope of prohibited activity.

The extent of permissible modification – for example, whether the court can rewrite overbroad provisions or only strike them – is in debate, especially given the current lack of appellate guidance. See OCGA §§ 13-8-53(d); 13-8-54(b); compare PointeNorth Ins. Group v Zander, No 11-3262, 2011 WL 4601028, at *3 (N.D. Ga. 30 September 2011) (modifying restrictive covenant by “blue penciling” a provision to only apply to certain customers) with LifeBrite Laboratories, LLC v Cooksey, No 15-4309, 2016 WL 7840217, at *7 (N.D. Ga. 9 December, 2016) (interpreting the term “modify” in the Restrictive Covenants Act to mean striking unreasonable restrictions, not reforming and rewriting contracts). However, the Act sets out fairly detailed guidelines for determining the presumptive reasonableness of a restrictive covenant – for example, in most employment situations, a covenant lasting two years or less is reasonable; OCGA § 13-8-57(b).

The Act also provides guidance about the types of competitive activity that may be restricted. See OCGA § 13-8-53. For example, a geographic restriction that includes the areas in which the employer does business at any time during the parties’ relationship, even if not known at the time of entry into the restrictive covenant, is reasonable provided that:

  • the total distance encompassed by the provisions of the covenant is also reasonable;
  • the agreement contains a list of particular competitors as prohibited employers for a limited period of time after the term of employment or a business or commercial relationship; or
  • both subparagraphs (A) and (B) are met.

OCGA § 13-8-56(2). Given the lack of appellate interpretation of the Act, drafters should pay careful attention to the language of the statute.

Furthermore, in a shift from past law, Georgia now does not require that confidentiality obligations be limited as to time, and instead permits the obligation to keep employer information confidential to continue for as long as the information remains confidential.   

Georgia law allows employers to request that employees enter into restrictive covenants (including non-competes, for certain approved categories of employees) at the outset of employment. However, if the employer wishes to implement such covenants after the inception of employment, Georgia recognises that offering an at-will employee ongoing employment in exchange for entering into a restrictive covenant is sufficient consideration to render the new covenants enforceable. 

In addition, in 1990, Georgia adopted the Uniform Trade Secrets Act. The Uniform Trade Secrets Act significantly expanded the common law definition of a "trade secret", which the Georgia courts had previously construed to exclude non-technical confidential business information. The Act also establishes criminal liability for stealing, embezzling, or copying trade secrets without authority, although the definition of "trade secrets" under the criminal statute is narrower than its civil counterpart. 

The Georgia Drug-Free Workplace Act

Georgia law does not expressly prohibit drug testing of employees; indeed, in the public sector, Georgia statutes sometimes mandate such testing; see OCGA § 45-20-90, et seq; OCGA § 45-20-110, et seq; OCGA § 50-24-1. Moreover, Georgia employers that comply with the Drug-Free Workplace Act, including its detailed provisions for drug testing, may be entitled to receive a discount of 7.5% in their workers' compensation insurance premiums; OCGA §§ 33-9-40.2, 33-9-412. The Drug-Free Workplace Act is multi-pronged. To qualify for the insurance discount, an employer must do all of the following:

  • implement a written policy that includes the employer’s policy on substance abuse, the types of testing to which an employee may be required to submit and the consequences for refusing to submit, the actions the employer may take for a violation of the policy, a statement about confidentiality, a description of the employee’s ability to contest or explain the result of a positive test within five days after receiving the notification of the positive result, and statements informing the employees of the Georgia Drug Free Workplace Act and the federal analogues to the Georgia act, if applicable to employers, OCGA § 34-9-413;
  • implement a written statement regarding substance abuse testing, including types of tests, specimen collection and testing, procedures for handling of lab specimens, and confirmation testing, OCGA § 34-9-315;
  • offer an Employee Assistance Program or maintain a resource file of drug and alcohol abuse programs, mental health providers, or others capable of assisting employees with personal and/or behavioral problems, and notify the employees in writing of the availability of this resources, OCGA § 34—416;
  • implement employee semi-annual employee education on substance abuse in general and its effects on the workplace, specifically, OCGA § 34-9-417; and
  • implement annual supervisors’ training with instruction on how to recognise the signs of employee substance abuse, how to document and corroborate the signs of substance abuse, and how to refer substance abusing employees to proper treatment providers, OCGA § 34-9-418.

As indicated with the foregoing citations, the means of satisfying each of these five requirements are described in detail by the statutory provisions, which should be consulted carefully for compliance. In addition, the program must also meet certain confidentiality standards prescribed by statute; OCGA § 34-9-413. 

While Georgia provides an incentive for implementing robust employee drug testing programs, in other jurisdictions, private employers subjecting employees to drug testing have sometimes faced liability for invasion of privacy and/or intentional infliction of emotional distress. To avoid such liability, employers are encouraged to provide employees with notice of the existence of, and procedures for, workplace drug testing in advance of any such testing (preferably at the beginning of the employment relationship), and to ensure that such procedures are reasonable.

Personnel Files

Handling of personnel information can be a delicate issue, and certain states impose tight strictures around sharing such information. Georgia, however, generally allows employers to produce personnel files in response to a validly served subpoena or through a request for documents propounded in litigation; Chaney By and Through Guilliam v Slack, 99 F.R.D. 531 (S.D. Ga. 1983). Even so, employers should be cautious in disseminating information contained in personnel files, and may be well served to request that any production be made pursuant to a confidentiality agreement.

The case law respecting invasion of privacy liability for such dissemination is not well developed in Georgia, however, and could create an area of potential risk exposure. Significantly (and positively for employers), at least one Georgia court has held that the disclosure of a personnel file is "privileged" when the employer is under a "private moral duty" to make the disclosure and the recipient is a person naturally interested in the employee's welfare; Kobeck v Nabisco, Inc., 305 S.E.2d 183 (Ga. Ct. App. 1983) (disclosure to employee's husband who suspected employee of having an affair).

Conduct Outside of Work

Unlike some other states, Georgia employers are not expressly prohibited from terminating an employee based on lawful, off-duty conduct. The "at-will" doctrine permits the discharge of an employee for any reason except an illegal reason, and except where expressly foreclosed by statute, irrespective of motive; OCGA § 34-7-1.

Employee Medical Information

With one large exception (discussed below), neither Georgia statutes nor Georgia courts offer particularly clear guidance on the circumstances under which an employer may or may not disclose employee medical information. Employers located in Georgia should comply with federal restrictions on the dissemination of such information, including HIPAA (the Health Insurance Portability and Accountability Act) and the Americans with Disabilities Act (ADA). In addition to liability under federal statute, tort liability may attach in the case of improper disclosure of medical information, including through an invasion of privacy claim.

In one area of particular clarity, Georgia law extensively regulates the disclosure of information pertaining to an employee who is infected with HIV or AIDS through the Georgia AIDS Confidentiality Act, codified at OCGA § 24-9-47. Employers who receive requests for disclosure of such information should review the AIDS Confidentiality Act and consider whether the requested disclosure can be made consistently with that legislation.

Searches, Surveillance, and Monitoring of Employer Premises

Although private employers are not subject to the requirements of the Fourth Amendment of the United States Constitution – which restricts the government from engaging in unreasonable searches and seizures – private employers may nevertheless be subject to private civil liability in tort for improper searches and seizures, or for detaining employees in connection with such searches and seizures. Potential causes of action in tort for employer searches may include intentional infliction of emotional distress, assault, battery, false imprisonment, malicious prosecution, and/or defamation. Thus, employers should be cautious in conducting employee searches, and should provide employees with notice of grounds for workplace searches and search procedures well in advance of any search. Disclosing the circumstances under which a search may be conducted and warning employees in advance, in writing, that they should have no expectation of privacy with respect to the employer’s premises, may be helpful in defending any later claims arising out of a search.

In addition, OCGA § 16-11-62, a Georgia statute of general applicability, prohibits various forms of clandestine surveillance, eavesdropping, and recording of private conversations or events. However, recognising the employer’s legitimate interest in conducting certain forms of employee surveillance, Georgia courts and the Georgia legislature have made some exceptions to the general prohibition on clandestine surveillance. See OCGA § 16-11-65; Jackson v Nationwide Credit, Inc., 426 S.E.2d 630 (Ga. Ct. App. 1992). As with employee searches, employers can help reduce the risk of liability for surveillance (or at least set up a defense to any claim) by disclosing to employees in advance the fact of surveillance and/or the location of any cameras.

Lie Detector Testing

In unusual situations, an employer may wish to have an employee submit to a lie detector test. As with many other topics discussed here, Georgia has not enacted any laws prohibiting the use of polygraph testing in the employment setting. However, an employer who elects to use a polygraph test may face tort claims from the employee in private litigation along the same lines as those described in the foregoing section. Moreover, Georgia law expressly contemplates that claims may be brought against polygraph examiners who negligently administer a test; seeOCGA § 51-1-37. Georgia employers should be aware of the existence of the federal Employee Polygraph Protection Act of 1988, 28 U.S.C. § 2001 et seq, which sets forth many restrictions on an employer's use of such testing.

The Georgia Fair Employment Practices Act of 1978 prohibits most public, state employers (with 15 or more employees) from discriminating against employees on the basis of race, color, religion, national origin, sex, handicap, or age; OCGA §§ 45-19-29 to 45-19-45. The Georgia General Assembly drafted the Fair Employment Practices Act to coincide with the federal anti-discrimination laws, and thus, the statute, despite its more limited scope, largely mirrors the prohibitions of Title VII, the ADA, and the ADEA. In addition, the Georgia General Assembly has passed the Georgia Sex Discrimination in Employment Act, the General Age Discrimination Law and the Georgia Equal Employment for Persons with Disabilities Code, all of which extend prohibitions of discrimination to both the public and private sector.

The Georgia Sex Discrimination in Employment Act of 1966 applies to all employers, public and private, with ten or more employees engaged in interstate commerce. It prohibits the payment of wages to employees of one sex at a lesser rate than the payment of wages to the opposite sex for "comparable work" on jobs that require the same or essentially the same knowledge, skill, effort, and responsibility; OCGA § 34-5-1, et seq. While the statute in many ways tracks the federal Equal Pay Act, the term "comparable work" is unique to the Georgia statute, and commentators have suggested that the inclusion of the phrase may expand the scope of the state statute beyond that of the federal Equal Pay Act. Private actions may be filed to recover damages and up to 25% of the judgment in attorneys' fees.

The Georgia General Age Discrimination Law of 1971 prohibits employers from discriminating against any person between the ages of 40 and 70 years solely on grounds of age "when the reasonable demands of the position do not require such an age distinction"; OCGA § 34-1-2. The statute, however, does not contain a private civil remedy provision, and the Georgia Supreme Court has held that the General Age Discrimination Law does not permit a discharged employee to sue in tort for wrongful discharge based on allegations of age discrimination; Reilly v Alcan Aluminum Corp., 528 S.E.2d 238 (Ga. 2000). The only relief for violating the statute is a misdemeanour criminal prosecution, with a fine of USD100-250 if the employer is found guilty.

The Georgia Equal Employment for Persons with Disabilities Code of 1981 – OCGA § 34-6A-1, et seq – prohibits any Georgia employer, public or private, with 15 or more employees, from discriminating against "disabled individuals", defined as "any person who has a physical or mental impairment which substantially limits one or more of such person's major life activities, and who has a record of such impairment". The statute is unique to Georgia and, while loosely modelled after the federal Rehabilitation Act, is in many respects broader than its federal counterpart. Unlike the federal Americans with Disabilities Act of 1990, however, the Georgia Disabilities Code does not impose a duty on employers to "reasonably accommodate" an employee's disability. The Georgia Disabilities Code provides for a private right of action for aggrieved employees against employers with 15 or more employees, allowing the recovery of damages, as well as equitable relief; OCGA § 34-6A-6.

Finally, it should be noted that Georgia employers located within the City of Atlanta, with ten or more employees, additionally are subject to an anti-discrimination ordinance that prohibits employment discrimination based on race, colour, creed, religion, sex, domestic relationship status, parental status, familial status, sexual orientation, national origin, gender identity, age, and/or disability; Atlanta Code of Ordinances, Article V, §§ 94-110 – 94-114 (2001). Violation of the ordinance may result in a range of penalties up to and including loss of a professional or business license or contract with the City.

Georgia employers, at least in the private sector, are not subject to any state statute expressly prohibiting harassment in the workplace. Nevertheless, there is Georgia authority supporting the proposition that employers and/or supervisors may be subject to common law tort liability for acts of workplace harassment – eg, under the doctrines of assault, battery, invasion of privacy, intentional infliction of emotional distress, negligent hiring, negligent training, negligent supervision, or negligent retention. See Simon v Morehouse School of Medicine, 908 F. Supp. 959 (N.D. Ga. 1995) (invasion of privacy, intentional infliction of emotional distress); Cox v Brazo, 303 S.E.2d 71 (Ga. Ct. App. 1983) (negligent hiring).

Both by statute and judicial decision, Georgia requires employers to maintain a safe workplace; see OCGA § 34-7-20 and § 51-3-1. The duty imposed on the employer is that of "ordinary care", which generally requires that the employer give notice to its employees of known dangers in the workplace, and inspect the premises to discover whether there are any manifestly dangerous conditions. Significantly, an employee may be foreclosed from pursuing an action against his or her employer for failure to maintain a safe workplace if the employee had knowledge of the dangerous condition or had an "equal means" of discovering the condition; see OCGA § 34-7-23. In addition, certain actions for failure to maintain a safe workplace may be pre-empted by Section 301 of the National Labor Relations Act or Section 18(a) of the Occupational Safety and Health Act, or may be precluded by Georgia's workers' compensation law; Dugger v Miller Brewing Co., 406 S.E.2d 484 (Ga. Ct. App. 1991). In an effort to encourage safety in the workplace, the Georgia legislature passed a Drug-Free Workplace Program law. As described above, this voluntary program allows businesses to receive a 7.5% discount off their workers’ compensation insurance premium so long as they adopt (and certify) a drug-free workplace program that complies with the strictures of the law; seeOCGA § 34-9-410 et seq.

Georgia courts have consistently refused to recognise "wrongful termination" claims, finding them to be impermissible inroads to the statutorily mandated employment at-will doctrine. Thus, absent a contractual requirement – for example, that an employee can only be terminated for delineated reasons constituting “cause” – termination can be made at any time so long as it does not violate state or federal law. In addition to the federal employment statutes (and particularly the discrimination statutes), Georgia, by statute, prohibits private employers from terminating employees for the following reasons:       

  • based upon the employee taking time off in connection with a summons for jury duty, subpoena, or other court order or process that requires attendance at a judicial proceeding;
  • based upon the employee taking time off to vote, as long as the employee meets certain statutory criteria, including the provision of reasonable notice; or
  • based upon the employee making a complaint, testifying, or instituting proceedings related to the Sex Discrimination in Employment Act.

We find that the disciplinary process is typically of particular interest to global entities, who may be accustomed to a complicated, legally prescribed procedure.  Georgia does not have similar mandatory requirements. While employers often implement progressive discipline procedures, again, these are adopted by the employer as a matter of policy or contract. 

Georgia has no state statute analogous to the federal Worker Adjustment and Retraining Notification Act (WARN).  Consequently, state law does not mandate the provision of notice prior to mass layoffs or similar workforce reductions, although Georgia employers of course remain bound by the federal WARN Act. Similarly, absent a contract or collective bargaining agreement provision to the contrary, Georgia generally does not require that employers pay severance pay to their employees following termination. Separation agreements, including release of claims, are fully enforceable in Georgia, and Georgia law does not require any unique language over and above that required by the federal Older Workers Benefit Protection Act to effectuate a release of claims upon termination of employment.

In addition to the requirements of the federal Consolidated Omnibus Budget Reconciliation Act (COBRA), Georgia employers that offer insured group coverage plans, and that employ workers who have been continuously covered under the group plan for six months prior to termination of coverage, are obligated to comply with the Georgia Health Care Continuation Law. The Georgia Health Care Continuation Law provides a right to continued coverage for employees and their dependents following the occurrence of a "triggering event" (defined similarly to qualifying events under COBRA) for a maximum of three policy months following the event, at which time the employee is eligible for conversion privileges. Global entities with Georgia (or other US) operations should also be mindful that, under COBRA and certain other federal statutes, their foreign employees may count toward the employee thresholds for determining coverage if those employees are considered part of the same control group as the US-based employees.

Unless an employee can present a viable claim for breach of contract, quantum meruit (ie, a suit to recover the fair value for services rendered and knowingly accepted), or a recognised common law tort, he or she generally will be unable to recover in an action brought pursuant to state law. In that regard, there is Georgia authority supporting the proposition that employers and/or supervisors may be subject to common law tort liability for acts of workplace harassment or other misconduct – eg, under the doctrines of assault, battery, invasion of privacy, intentional infliction of emotional distress, negligent hiring, negligent training, negligent supervision, or negligent retention.

See above, 4.3 Discrimination, Harassment and Retaliation Issues.

Wage and Hour Law

The key piece of wage and hour legislation governing Georgia employers is the federal Fair Labor Standards Act (“FLSA”). Although some states have enacted analogues to the FLSA that impose even more restrictive regulations, Georgia is not one of those states. In fact, in Georgia, the minimum wage is currently set at USD5.15 per hour (although it is adjusted from time to time). Thus, Georgia’s minimum wage is, practically speaking, a nullity, since employers are required to comply with the federal minimum wage of USD7.25 per hour. The Georgia minimum wage statute, however, is subject to myriad exceptions, and does not apply to "any employer who is subject to the minimum wage provisions of any act of Congress as to employees covered thereby if such act of Congress provides for a minimum wage which is greater than the minimum wage which is provided for in this Code section"; OCGA § 34-4-3.

Insofar as state law is concerned, the amount and frequency of wage payments is, for the most part, a matter of private agreement. A presumption arises that a contract that provides that wages are payable for a stipulated period establishes that the hiring is for an equal period, but the presumption may be rebutted by pointing to contrary language in the contract; OCGA § 34-7-1.

While Georgia law does not prescribe particular pay days, the pay dates selected must be such that the month will be divided into at least two equal periods, and "the payments made on each such date[s] shall in every case correspond to the full net amount of wages or earnings due the employees for the period for which the payment is made"; OCGA § 34-7-2.

Georgia has no independent laws regarding overtime payments; therefore, Georgia employers will be bound by the provisions of the Fair Labor Standards Act on that topic.

Age Restrictions and Child Labour

According to the Georgia Code, children under 12 cannot be employed; OCGA § 39-2-9. However, Georgia law recognises limited exceptions in the agricultural context, for domestic service in private residences, and also where the child is employed by a parent or guardian; OCGA § 39-2-9. This latter exception, however, requires that the parent or guardian be the child's actual "employer" – not merely his or her supervisor; Op. Atty. Gen. 88-7 (17 February 1988).

Children over 16 years of age are permitted to work with few restrictions. In between the ages of 12 and 16 years, however, child workers are subject to numerous restrictions with which employers should be familiar.

For example, there are many jobs which children under 16 cannot hold, including work in any mill, factory, laundry, manufacturing establishment, workshop, or any occupation that has been determined by the Commissioner of Labor to be dangerous to the life and limb, or injurious to the health or morals, of the child; OCGA § 39-2-1 and § 39-2-2. Children 14 years of age and older are permitted to care for and maintain lawns, gardens and shrubbery, including the operation of related equipment, as long as: (i) the child is covered by either an accident and sickness or a workers' compensation insurance plan; (ii) the child has presented an employment certificate from the superintendent of schools; and (iii) the lawns, gardens, and shrubbery to be maintained are owned or leased by the employer; OCGA § 39-2-11.1.

In addition, Georgia law restricts the times that children under 16 years of age may work. The general rule is that children under 16 cannot work between 9pm and 6am. An exception to this rule exists for children employed in the sale and delivery of newspapers in residential areas, who may work between 5am and 9pm; OCGA § 39-2-3 and § 39-2-6. Moreover, unless the child has completed high school, no minor under 16 can be employed when public or private schools are in session; OCGA § 39-2-4. As another example, children under 16 cannot work more than four hours per day on a day when they are supposed to attend school, and not more than eight hours on any other day, with a maximum of 40 hours being worked in one week (such as weeks that constitute a school break); OCGA § 39-2-7.

Prior to beginning employment, any child under the age of 18 years of age must present an "employment certificate", generally issued by the superintendent of schools, which must be returned by the employer if the child is terminated or fails to appear for work for 30 days; OCGA § 39-2-11.

Finally, it should be noted that there are unique provisions and restrictions applicable to children working in the performing arts. Employers engaged in such enterprises should consult the Georgia Code (OCGA § 39-2-17 and § 39-2-18) for information pertaining to child labour.

Work Day/Work Week/Work Hours

Georgia requires that persons employed in the cotton or woolen manufacturing establishments, with certain exceptions, not be required to work more than ten hours per day, or 60 hours per week; OCGA § 34-3-1. Moreover, any contract requiring employees of cotton or woolen manufacturing establishments to work more than 40 hours per week are null and void; OCGA § 34-3-2. Failure to abide by the requirements of the statute may result in a fine to be paid to the Board of Education in the county in which the violation occurred; OCGA § 34-3-3 and § 34-3-4.

The Georgia Common Day of Rest Act (OCGA § 10-1-570et seq) provides that "[a]ny business or industry which operates on either [Saturday or Sunday] and employs those whose habitual day of worship has been chosen by the employer as a day of work shall make all reasonable accommodations to the religious, social, and physical needs of such employees so that those employees may enjoy the same benefits as employees in other occupations". However, the Act excludes several types of employers, including those in the practice of the healing arts, certain charitable organizations, and many public employers.

Paid Leave

In Georgia, paid time off is almost exclusively a matter of the employment contract, and generally is not mandated by statute or case law. While employers frequently offer paid time off in some form or fashion to be competitive in the job market, Georgia law does not require that any paid leave be offered. Limited caveats to this general rule exist, however, for public employees taking time off to donate blood, platelets, granulocytes, or organs (OCGA §§ 45-20-30 to 45-20-31), or taking time off to engage in and travel to and from military duty (OCGA § 38-2-279). Both exceptions, however, are subject to durational restrictions.

In addition, Georgia employers cannot "penalize" employees, financially or otherwise, for missing work to attend a judicial proceeding in response to a subpoena, a summons for jury duty, or other court order or process. That being said, employers are authorized to offset employee wages by any compensation they receive for participating in the judicial process, such as jury fees. However, the employee’s overall compensation should not be decreased.

Although Georgia has a Whistleblower Act that prohibits retaliation for reporting a violation of or failure to comply with the law, that Act applies only to public, not private, employers.

Many employers in Georgia choose to implement and utilise alternative dispute resolution procedures, such as mediation and arbitration, to resolve employment-related disputes. These procedures can provide, among other things, the confidentiality and expediency seldom found in the courts. Although most arbitration agreements are covered by the Federal Arbitration Act (FAA), Georgia has an Arbitration Act that governs agreements not covered by the FAA. 

Although the Georgia Civil Practice Act provides a mechanism for class action, as a practical matter, most class or collective actions in Georgia are litigated under federal law in federal courts. 

As explained above, the vast majority of employment claims brought by Georgia employees arise under federal law, and so the possible relief is determined by the applicable federal statute. 

It should be noted that Georgia law does allow for the recovery of punitive damages in appropriate cases sounding in tort. Specifically, punitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that “the defendant's actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences”. Pursuant to OCGA § 51-12-5.1, however, punitive damages are capped at the amount of USD250,000, except in cases that (i) arise from product liability, or (ii) where it is found that the defendant “acted, or failed to act, with the specific intent to cause harm, or that the defendant acted or failed to act while under the influence of alcohol, drugs other than lawfully prescribed drugs administered in accordance with prescription, or any intentionally consumed glue, aerosol, or other toxic vapor to that degree that his or her judgment is substantially impaired”.

In addition, pursuant to OCG. § 13-6-11, Georgia law allows for the recovery of attorneys’ fees by claimants where it is found that the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense.

Whether Georgia law will apply outside its borders is typically a matter of contract, as parties may contractually elect Georgia law to govern their disputes. However, whether another forum will actually apply Georgia law depends on a conflict of law analysis, which considers (among other things) whether the forum state has a materially greater interest in applying its own law and whether applying Georgia law would conflict with the forum state’s public policy. 

Arnall Golden Gregory LLP

171 17th Street NW
Suite 2100
Atlanta, Georgia 30363

404-873-8500

404-873-8501

kevin.duffy@agg.com www.agg.com
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Arnall Golden Gregory LLP 's Employment Practice has been chosen as the exclusive member in the State of Georgia of the Employment Law Alliance, a group of employment firms in every state and more than 135 countries, all of whom specialise in representing management. The Employment Practice assists management with solving the full range of employee challenges, from practical counselling on the immediate problem of the day to the most complex workforce issues. AGG's benefits lawyers advise on qualified or non-qualified plan issues, from merging benefits plans to avoiding plan terminations and limiting the risk of IRS and DOL fines, while if an employment problem goes to court, the firm's trial lawyers stand ready to expertly defend management's interests anywhere in the nation. AGG's key employment practice areas include: employee benefits and executive compensation; employer counselling; employment litigation; ERISA litigation; immigration and global migration; employment migration, restrictive covenant and competition disputes.

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