Employment 2024 Comparisons

There is no legal categorisation of employees in blue- or white-collar roles. That is simply a long-used shorthand reference and generally refers to blue-collar workers being paid by the hour and being eligible for overtime, with white-collar employees being paid on a salary basis and not eligible for overtime. The actual, legal terms are non-exempt employees (those eligible for overtime) and exempt employees (those not eligible for overtime). For further details, please refer to 1.3 Working Hours and 1.4 Compensation.

There is no requirement under Georgia law that employers have a contract with employees. The default relationship in Georgia is an “at will” employment relationship, meaning it is indefinite in duration but either party (the employer or the employee) can terminate the relationship at any time and without having to provide a reason – provided, of course, that the termination decision is not prohibited by law (ie, due to discrimination or retaliation).

Georgia Statute OCGA Section 34-7-1 provides that an at-will employee generally may be terminated for any reason at any time and the employee may not recover from the employer in tort for wrongful discharge. In some situations, employees may have contracts specifying the terms and conditions of their employment. Such contracts are not required in the USA or in Georgia, but may be warranted depending on certain factors, such as the type of employee (ie, an executive).

Barring a formal written contract, terms regarding the employment relationship are typically relegated to documents such as offer letters, job descriptions, employment policies, or employment handbooks. To avoid any unintended obligation to employment for a specific term or for termination only under certain circumstances (eg, “good cause”), employers should incorporate a carefully crafted disclaimer throughout employment documents.

There is no limit in federal law or Georgia law on the number of hours employees aged 16 and older may work in any working week. Flexible arrangements are possible and fairly commonplace. There are no specific terms for part-time contracts, other than most employee health and welfare benefit plans will have a minimum number of hours per week in order to be eligible to enrol. It is advisable for part-time employees to have a written offer letter that explains what employer benefits they are or are not entitled to, given their part-time status.

Under the federal Fair Labor Standards Act (FLSA), unless specifically exempted, almost all employees must receive overtime pay for hours actually worked in excess of 40 in a working week at a rate not less than “time and a half” (ie, one-and-a-half times) their regular rate of pay. The FLSA does not require overtime pay for work on Saturdays, Sundays, holidays, or regular days of rest, as such. The exemptions under the FLSA are very fact-intensive and employers should work with legal counsel to determine the applicability of such exemptions.

The minimum wage set by Georgia law generally applies only to very small employers. It is lower than the federal minimum wage, so almost all employers in Georgia will be required to pay the federal minimum wage of USD7.25 per hour. Other states may have higher minimum wages and, in cases where an employee is subject to both state and federal minimum wage laws, the employee is usually entitled to the higher minimum wage.

There is no 13th-month bonus requirement under Georgia law. Any bonus considered by the employer would be at the employer’s discretion. However, if the employer makes a definitive promise to pay a bonus under certain conditions, the employer may be held in breach of that promise if they fail to pay.

Georgia law does not have any restrictions concerning the timing or amount of wage increases. Those decisions are left to the discretion of the employer, so long as they comply with minimum wage and overtime provisions.

Types of Leave

There are no laws in Georgia regarding bereavement, maternity, disability or childcare leave.

Vacation

In Georgia, employers are not required to provide employees with vacation benefits, either paid or unpaid. If an employer chooses to provide such benefits, it must comply with the terms of its established policy or employment contract. Employers may establish a policy whereby employees forfeit accrued but unused vacation upon separation of employment, so long as the policy is clearly established.

Sick leave

In Georgia, employers are not required to provide employees with sick leave, either paid or unpaid. If an employer chooses to provide sick leave benefits, it must comply with the terms of its established policy or employment contract. Under the Georgia Family Care Act, if an employer with 25 or more employees provides sick leave for its employees, the employer must allow employees to use up to five of those days each year to take care of a family member who is ill. Any worker who works at least 30 hours a week is eligible.

Jury duty

Georgia law makes it illegal for an employer to discharge, discipline or otherwise penalise an employee for taking leave for the purposes of attending a judicial proceeding in response to a subpoena, summons for jury duty, or other court order. Georgia law does not specify whether jury duty leave is paid or unpaid. However, the Attorney General of Georgia has issued opinions that employers cannot penalise employees for being absent for jury duty leave and that therefore it should be paid.

Voting leave

Georgia law requires employers to provide an employee up to two hours of leave to vote if:

• the employee gives the employer reasonable notice of the need to take time off; and
• the polls are not open for at least two hours before the employee’s shift begins or after it ends.

Georgia law does not require employers to pay employees for voting leave. Also, in order to minimise the disruption to business operations, the employer may determine the hours that an employee may be absent to vote.

Confidentiality Provisions

Georgia’s Restrictive Covenants Act permits an employer to enter into an agreement with employees to protect the employer’s confidential information. The Restrictive Covenants Act provides that there is no limit to the period of time for which a party may agree to maintain information as confidential or as a trade secret, and no limit as to the geographic area within which such information must be kept confidential or as a trade secret, if the agreement provides it is only for so long as the information or material remains confidential or a trade secret (as applicable).

The Restrictive Covenants Act defines “confidential information” as data and information:

• relating to the business of the employer, regardless of whether the data or information constitutes a trade secret as defined by Georgia law;
• disclosed to the employee or of which the employee became aware as a consequence of the employee’s relationship with the employer;
• having value to the employer;
• not generally known to competitors of the employer; and
• that includes trade secrets, methods of operation, names of customers, price lists, financial information and projections, route books, personnel data, and similar information – provided, however, that such term shall not mean data or information that:
1. has been voluntarily disclosed to the public by the employer, except where such public disclosure has been made by the employee without authorisation from the employer;
2. has been independently developed and disclosed by others; or
3. has otherwise entered the public domain through lawful means.

Non-disparagement Requirements

There are no restrictions under Georgia law regarding non-disparagement provisions. However, such provisions have become subject to scrutiny by the National Labor Relations Board (NLRB).

The Georgia Restrictive Covenants Act specifies the terms under which a non-compete could be enforceable. Because of the detailed nature of the Restrictive Covenants Act and court interpretations of the Act, employers should seek legal advice in drafting restrictive covenants.

The following are some key terms and definitions, adapted from the Restrictive Covenants Act.

• Notwithstanding any other provision [of the Restrictive Covenants Act], enforcement of contracts that restrict competition during the term of a restrictive covenant – so long as such restrictions are reasonable in time, geographic area, and scope of prohibited activities – shall be permitted. However, enforcement of contracts that restrict competition after the term of employment shall not be permitted against any employee who does not in the course of [their] employment:
1. customarily and regularly solicit for the employer customers or prospective customers;
2. customarily and regularly engage in making sales or obtaining orders or contracts for products or services to be performed by others;
3. perform the following duties:
1. have a primary duty of managing the enterprise in which the employee is employed (or a customarily recognised department or subdivision thereof);
2. customarily and regularly direct the work of two or more other employees; and
3. have the authority to hire or fire other employees or have particular weight given to suggestions and recommendations as to the hiring, firing, advancement, promotion, or any other change of status of other employees; or
4. perform the duties of a key employee or of a professional.
• Activities, products or services that are competitive with the activities, products, or services of an employer shall include activities, products or services that are the same as or similar to the activities, products or services of the employer. Whenever a description of activities, products, services, or geographic areas is required by [the Restrictive Covenants Act], any description that provides fair notice of the maximum reasonable scope of the restraint shall satisfy such requirement, even if the description is generalised or could possibly be stated more narrowly to exclude extraneous matters. In the event of a post-employment covenant entered into prior to termination, any good faith estimate of the activities, products, services, or geographic areas that may be applicable at the time of termination shall also satisfy such requirement, even if such estimate is capable of including or ultimately proves to include extraneous activities, products, services, or geographic areas. The post-employment covenant shall be construed ultimately to cover only so much of such estimate as relates to the activities actually conducted, the products or services actually offered, or the geographic areas actually involved within a reasonable period of time prior to termination.
• Activities, products or services shall be considered sufficiently described if a reference to the activities, products or services is provided and qualified by the phrase “of the type conducted, authori[s]ed, offered, or provided within two years prior to termination” or similar language containing the same or a lesser time period. The phrase “the territory where the employee is working at the time of termination” or similar language shall be considered sufficient as a description of geographic areas if the person or entity bound by the restraint can reasonably determine the maximum reasonable scope of the restraint at the time of termination.
• Any restrictive covenant not in compliance with the provisions of [the Restrictive Covenants Act] is unlawful and is void and unenforceable – provided, however, that a court may modify a covenant that is otherwise void and unenforceable so long as the modification does not render the covenant more restrictive with regard to the employee than as originally drafted by the parties.

In determining the reasonableness of a restrictive covenant that limits or restricts competition during or after the term of an employment or business relationship, the court shall make the following presumptions.

1. During the term of the relationship, a time period equal to or measured by duration of the parties’ business or commercial relationship is reasonable – provided that the reasonableness of a time period after a term of employment shall be as provided for in [the Restrictive Covenants Act].
2. A geographic territory [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:
1. the total distance encompassed by the provisions of the covenant also is reasonable;
2. 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
3. both the above-mentioned points apply.
3. The scope of competition restricted is measured by the business of the employer or other person or entity in whose favour the restrictive covenant is given; provided, however, that a court shall not refuse to enforce the provisions of a restrictive covenant because the person seeking enforcement establishes evidence that a restrictive covenant has been violated but has not proven that the covenant has been violated as to the entire scope of the prohibited activities of the person seeking enforcement or as to the entire geographic area of the covenant.

In determining the reasonableness in time of a restrictive covenant sought to be enforced after a term of employment, a court shall apply the rebuttable presumptions provided in [the Restrictive Covenants Act].

In the case of a restrictive covenant sought to be enforced against a former employee, a court shall presume to be reasonable in time any restraint two years or less in duration and shall presume to be unreasonable in time any restraint more than two years in duration, measured from the date of the termination of the business relationship.

The Georgia Restrictive Covenants Act specifies the terms under which employee or customer non-solicitation agreements could be enforceable. Because of the detailed nature of the Act and Court interpretations of the Act, employers should seek legal advice in drafting restrictive covenants.

The following are some key terms and definitions, adapted from the Restrictive Covenants Act.

• Customer non-solicitation – notwithstanding any other provision of [the Restrictive Covenants Act], an employee may agree in writing for the benefit of an employer to refrain, for a stated period of time following termination, from soliciting, or attempting to solicit, directly or by assisting others, any business from any of such employer’s customers, including actively seeking prospective customers, with whom the employee had material contact during [their] employment for purposes of providing products or services that are competitive with those provided by the employer’s business. No express reference to geographic area or the types of products or services considered to be competitive shall be required in order for the restraint to be enforceable. Any reference to a prohibition against “soliciting or attempting to solicit business from customers” or similar language shall be adequate for such purpose and narrowly construed to apply only to:
1. such of the employer’s customers, including actively sought prospective customers, with whom the employee had material contact; and
2. products or services that are competitive with those provided by the employer’s business.

“Material contact” is defined to mean the contact between an employee and each customer or potential customer:

3. with whom or which the employee dealt on behalf of the employer;
4. whose dealings with the employer were co-ordinated or supervised by the employee;
5. about whom the employee obtained confidential information in the ordinary course of business as a result of such employee’s association with the employer; or
6. who receives products or services authori[s]ed by the employer, the sale or provision of which results or resulted in compensation, commissions, or earnings for the employee within two years prior to the date of the employee’s termination.
• Employee non-recruitment – notwithstanding any other provision of [the Restrictive Covenants Act], enforcement of contracts that restrict competition during the term of a restrictive covenant, so long as such restrictions are reasonable in time, geographic area, and scope of prohibited activities, shall be permitted. The Georgia Supreme Court recently held that an employee non-recruitment provision does not have to contain a specific geographic territory: to be enforceable, a restrictive covenant must be “reasonable in time geographic area, and scope of prohibited activities”. Whether a given covenant is reasonable in geographic area under [the Restrictive Covenants Act] is not dependent on whether its geographic scope is expressly stated but, rather, on the facts and circumstances of the case, as measured by the requirements of the [Restrictive Covenants Act] (North American Senior Benefits, LLC v Wimmer et al (4 September 2024)).

Data privacy rights in the employment sphere are covered by statutory protections.

In the absence of a written covenant, information that comes within the scope of a “trade secret” is protected from “misappropriation”, which is defined as the acquisition of a trade secret by a person who knows or has reason to know that the trade secret was acquired by “improper means” (theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage) or the disclosure or use of a trade secret without authorisation by someone who used improper means to obtain the information or who knew – or had reason to know – that the information was protected by law. Georgia adopted the Trade Secrets Act of 1990. The Georgia version of the law can be found at OCGA Section 10-1-761.

Employers that provide electronic equipment for employees to use in connection with their job duties (ie, laptops and internet access) are generally permitted to adopt policies notifying employees of the right to monitor the use of such equipment and reminding employees of their ownership interest in these devices. Employers can also impose reasonable requirements on how the employees can use the equipment. For the most part, these policies have been upheld on the grounds that employees have no reasonable expectation of privacy while using company equipment.

On 17 December 2019, the NLRB ruled that an employer’s rule prohibiting use of its email system for non-business purposes did not violate employees’ rights under the National Labor Relations Act (NLRA). The decision in Caesars Entertainment Corp d/b/a Rio All-Suites Hotel and Casino, NLRB Case No 28-CA-060841, overturns the Board’s 2014 decision in Purple Communications, which held that work rules prohibiting employees from using employer-provided email systems for union activity were presumptively invalid.

Monitoring employee activities in the workplace is generally permitted under federal and state law; however, an employer must disclose to employees in writing that they have the right to do so and may do so at their discretion. Moreover, employers should exercise caution in doing so and should make sure that their actions are reasonable. Discreet surveillance programs have long found favour with the courts.

The key question is whether the surveillance constitutes an invasion of the employee’s right to privacy. For the most part, the tort of invasion of privacy requires a plaintiff-employee to show an intentional invasion that is highly offensive to a reasonable person and that occurs where there is a reasonable expectation of privacy. Employees typically have no reasonable expectation of privacy on a factory floor. However, the same is not true for a bathroom or locker room. Thus, an employer can conduct video surveillance of work areas, lunchrooms, offices, parking lots and any other areas of its business, with the exception of those areas where employees have a reasonable expectation of privacy from visual observation (such as restrooms and showers).

In a unionised workforce, a change in surveillance methods – such as placing security cameras or implementing GPS (Global Positioning System) tracking devices – is generally subject to a duty to bargain with the union,  particularly if the employer intends to rely on such surveillance for disciplinary decisions.

Employers are continuing to encounter difficulties sponsoring foreign nationals for employment in the USA. Despite new and higher filing fees, US Citizenship and Immigration Services (USCIS) continues to experience lengthy delays in the adjudication process. Many local USCIS field offices have lengthy processing times due to staffing issues and a backlog. While the processing of immigration benefits by USCIS has improved in the past year, lengthy delays are still common. In addition, many US embassies and consulates continue to have significant backlogs for appointments to seek visas for entry into the USA.

Employers often consider the H-1B and L visas when sponsoring foreign nationals for employment in the USA. However, owing to increased scrutiny and changes in the immigration processes for the above-mentioned visa classifications, employers may also wish to consider the H-1B1, E, and TN visas in addition to the H-1B and L.

H-1B Visa

The H-1B visa is generally reserved for specialty occupations – positions requiring the theoretical and practical application of a body of highly specialised knowledge and which require the attainment of a bachelor’s degree or higher in a specific specialty or its equivalent, as a minimum for entry into the USA. New H-1B petitions are sometimes subject to an annual lottery due to high demand and USCIS has conducted a lottery in recent years. In 2020, the lottery underwent a significant processing change that resulted in the implementation of an additional fee for employers. This classification has experienced increased scrutiny in recent years, resulting in lengthy processing delays and increased rates of denial.

L Visa

The L visa is generally reserved for international companies seeking to transfer executives, managers or specialised workers to the USA. Like the H-1B visa, the L visa has experienced heightened scrutiny, resulting in lengthy processing delays and increased rates of denial. In addition, a change in the immigration process for renewals has added to the length of time required for a renewal and increased costs. Owing to the challenges of securing visa sponsorship for foreign national employees through H-1B or L visa classifications, employers are exploring alternatives to include the H-1B1, E and TN visa classifications.

H-1B1 Visa

The H-1B1 visa is reserved for citizens of Chile and Singapore. Like the H-1B visa, the H-1B1 is generally restricted to specialty occupations. Similar in many respects to the H-1B visa, the H-1B1 is attractive to many employers owing to the relative ease and reliability of the H-1B1 sponsorship process. This visa classification is generally a more reliable and faster option than the H-1B visa.

E Visa

Another option for sponsorship of foreign national employees is the E visa. The E visa category includes treaty traders (E-1), treaty investors (E-2) and Australian specialty occupation workers (E-3). To qualify as an employee of a treaty trader or treaty investor, the employee must share the same nationality as the employer, and the employee must be engaged in the duties of an executive, manager or specialised worker. The E-3 visa applies to Australian nationals performing services in a specialty occupation similar to the H-1B visa category but more easily attainable. As with the H-1B visa, employers have generally found the E visa to be reliable, fast and cost-effective – although there is concern about timing due to the lack of visa appointments at numerous US embassies and consulates.

TN Visa

The TN (NAFTA) visa allows employers to sponsor citizens of Canada and Mexico for employment in the USA in a professional capacity. While the North American Free Trade Agreement (NAFTA) has been replaced by the United States–Mexico–Canada Agreement (USMCA), the USMCA retains the TN visa classification. To be eligible for the TN classification, the profession must be noted on the treaty (list) and the foreign national employee must satisfy the qualifications for eligibility for employment in that profession. Employers have generally found this visa classification to be reliable, fast and cost-effective. Of note, an employer seeking to sponsor a Canadian citizen for employment under this visa classification may simply need to have the sponsored employee present an application package directly to a US Customs and Border Protection agent. Unfortunately, Mexican citizens requiring a visa are generally required to attend an appointment at a US embassy or consulate.

Generally, Georgia law does not dictate any specific requirements concerning mobile work. Employees that work in a remote setting, just like employees that work on-site or in other traditional means, are subject to the same protections under the law. As such, employers should be mindful that such employees – although not physically on-site – may assert similar claims for things such as:

• workers’ compensation;
• charges of discrimination; or
• even workplace safety complaints (even though not directly on the employer’s premises).

Employees may also be more likely to request mobile work as an accommodation under the Pregnant Workers Fairness Act (PWFA) and the Americans with Disabilities Act (ADA). Since the pandemic, many employers have created a remote work infrastructure that makes mobile work a reasonable accommodation that will not cause the employer undue hardship. In administering remote work policies, and when requesting an accommodation, employers should continue to be mindful of the potential for remote work as an accommodation, engage completely in the interactive process, and complete a thorough and comprehensive review as to whether remote work qualifies as a reasonable accommodation.

Sabbaticals are an example of a new manifestation in the field of “new work”, aimed at providing employees with flexibility in the workplace. Some employers provide sabbatical leave for specific purposes, such as continuing education, whereas others also allow it for personal/recreational purposes. Georgia does not have specific requirements for employers/positions.

When creating sabbatical leave programmes, employers should consider:

• whether the leave will be paid or unpaid;
• which benefits (such as paid time off) will continue to accrue or be available while the employee is on leave; and
• the interplay of such leave with applicable federal and state law.

Employers must also be cautious in correctly categorising the leave. If an employee takes a sabbatical due to their own serious health condition, for example, the leave may need to be categorised as leave under the FMLA and follow the applicable FMLA restrictions.

Today there is an increasing focus on digitalisation and collaboration in the workplace. The movement has become known as “new work”. “New work” looks different for every employer and incorporates innovative concepts such as desk sharing, hybrid work, and the use of AI.

Employers who are embracing “new work” have prioritised workplace flexibility and automation. The infrastructures that have been put in place to promote workplace flexibility have resulted in many accommodation requests under the PWFA and the ADA being reasonable requests that do not cause the employer undue hardship.

AI has already begun to be utilised in the workplace and in the coming year(s) it will likely only become more prevalent. Although AI is sometimes viewed as a preferred vehicle for eliminating potential bias, such as during job interviews, the reality is that AI has its own set of potential legal pitfalls. Firstly, because AI is programmed by humans, the AI code developed may have the programmer’s bias (conscious or unconscious) built into it – given that the programmer determines what data or parameters will be used. Courts have allowed claims to proceed under federal employment laws based on unconscious bias if the bias can be proven to have resulted in intentional discrimination against a protected class. Similarly, Title VII of the Civil Rights Act of 1964 recognises a legal claim for disparate impact when a selection criterion adversely impacts a protected class.

Georgia does not currently regulate the use of AI in the workplace. However, the federal government has begun to create guidance for employers.

In 2023, President Biden’s Executive Order on Safe, Secure, and Trustworthy Artificial Intelligence cautioned that the unbridled use of AI in employment may inadvertently lead to discrimination. A major concern discussed in the executive order and President Biden’s “Blueprint for an AI Bill of Rights” is how AI’s algorithm could lead to inadvertent discrimination, particularly when it comes to hiring practices.

In May 2024, the Department of Labor issued “Artificial Intelligence and Worker Well-Being: Principles for Developers and Employers”. This follows guidance from 2022 and 2023 from the Equal Employment Opportunity Commission (EEOC) on the use of AI in hiring. The EEOC’s guidance identified three primary ways that employers using AI may violate the ADA, as follows.

• The employer does not provide a “reasonable accommodation” that is necessary for a job applicant or employee to be rated fairly and accurately by the algorithm.
• The employer relies on an algorithmic decision-making tool that intentionally or unintentionally “screens out” an individual with a disability, even though that individual is able to do the job with a reasonable accommodation. “Screen out” occurs when a disability prevents a job applicant or employee from meeting – or lowers their performance on – a selection criterion, and the applicant or employee loses a job opportunity as a result. A disability could have this effect by, for example, reducing the accuracy of the assessment, creating special circumstances that have not been taken into account, or preventing the individual from participating in the assessment altogether.
• The employer adopts an algorithmic decision-making tool for use with its job applicants or employees that violates the ADA’s restrictions on disability-related enquiries and medical examinations.

The guidance also identified “promising practices” for employers to reduce the likelihood of disability bias when using AI tools.

Likewise, other states have passed or are considering legislation to protect candidates. Effective as of 1 January 2020, Illinois enacted the Artificial Intelligence Video Interview Act. The first-of-its-kind law imposes limitations on employers who use AI for candidate video interviews. Other states are considering legislation to limit the discriminatory use of AI or have created task forces to study the issue. This area of law is likely to continue to evolve, as more employers turn to AI in the hiring process. Owing to the newness of the technology that powers AI tools, the EEOC’s attempts to regulate it, and the lack of legal precedent to fall back on, employers should adopt and use AI tools with caution.

The vast majority of private sector employers in Georgia are covered by the NLRA. Under the NLRA, employees have the legal right to engage in “protected concerted activities”, including joining or forming a labour organisation. Employees also have the right to refrain from engaging in any such activities.

If a union is selected as the collective bargaining representative by employees in an appropriate bargaining unit (see 6.2 Employee Representative Bodies), the union serves as the “exclusive bargaining representative” for the employees in that bargaining unit. The employer is generally required to negotiate with the union over wages, hours and terms and conditions of employment for the employees in that bargaining unit. Typically, agreements on those topics are contained in a collective bargaining agreement. See 6.3 Collective Bargaining Agreements for more information.

In the USA, as of the end of 2023, unions represented 16.2 million workers – an increase of 191,000 workers compared to 2022, but only representing 11.2% of the workers in the USA. In the private sector, however, as of 2023, only 6.9% of workers are represented by a union. Georgia has one of the lowest rates of unionisation in the USA at 5.4%, which is well below the national average.

If a majority of employees designate a collective bargaining representative (typically a union by executing union authorisation cards), the employer may voluntarily recognise the union and begin collective bargaining negotiations with that union. The employer may also file what is called an Representation Management (RM) petition with the NLRB seeking a secret ballot election conducted by the NLRB to determine if a majority of employees want to be represented by the union. Finally, if at least 30% of the employees in an appropriate bargaining unit designate a collective bargaining representative (again, typically a union through signed union authorisation cards), the union may either demand recognition as the bargaining representative of those employees and/or file what is called a Certification of Representation petition (“RC petition”) with the NLRB seeking a secret ballot election.

Under the NLRA, the vast majority of “appropriate bargaining units” are single-site locations (or a subdivision of that site, such as a maintenance department).

In August 2023, the NLRB significantly altered the union representation process with its decision in Cemex Construction Materials, 372 NLRB No 130 (25 August 2023). Based on that decision, the onus will be on the employer to essentially “challenge” the union’s majority status through the representation process and there are some landmines if the employer violates the NLRA during the ensuing union campaign, as follows.

• In a nutshell, under Cemex, an employer violates Sections 8(a)(5) (bargaining in bad faith) of the NLRA by refusing to recognise, upon request, a union that has been designated as Section 9(a) representative by the majority of employees in an appropriate unit unless the employer promptly (within 14 days) files an RM petition seeking an election to test the union’s majority status or the appropriateness of the unit. As noted previously, the union’s majority status is typically demonstrated simply by having a majority of employees sign union authorisation cards.
• Thus, an employer confronted with a demand for recognition based on union authorisation cards signed by a majority of employees must promptly file an RM petition to test the union’s majority support and/or challenge the appropriateness of the unit or may await the processing of a petition previously filed by the union. If an RM petition is not filed (and assuming the union does not file an RC petition) and the union does have majority support (as reflected by signed authorisation cards), the employer will be found to have violated the NLRA by failing to recognise and bargain with the union.
• In addition, if the employer commits an unfair labour practice that requires the setting-aside of the election, the petition (whether filed by the employer or the union) will be dismissed, and the employer will be subject to a remedial bargaining order. This is a major change; a re-run election will not be ordered – the employer will simply be ordered to bargain with the union (assuming the union can demonstrate that it had majority support via signed authorisation cards).
• Also, if the employer makes unilateral changes while the election is pending and loses the election, the NLRB will find the employer violated the NLRA by making those changes without bargaining with the union – given that the employer failed to bargain with the union at the time it had majority status.

There is a separate labour law (the Railway Labor Act) that governs employees employed in the railroad and airline industries. Employees covered by the Railway Labor Act are required to organise on a carrier-wide basis through crafts or classes of employees (such as all railroad engineers or all airline pilots employed by the carrier). A majority of the employees in each class or craft may select a bargaining representative such as a union.

Private sector employees have collective bargaining rights under the federal NLRA. Under the NLRA, it is an unfair labour practice for an employer to refuse to bargain in good faith with the representatives of its employees. The obligation to bargain in good faith includes:

• negotiating, in good faith, over wages, hours and terms and conditions of employment; and
• reducing any agreements to writing if requested by either party.

For this reason, if a work force is unionised, virtually all collective bargaining agreements are reduced to writing and govern employees’ terms and conditions of employment, such as wages, shifts, seniority and work rules. Collective bargaining agreements also typically provide protections from discipline and discharge, as the vast majority of collective bargaining agreements have “just cause” provisions that provide that the employer will not discipline or discharge represented employees without just cause. Violations of labour contracts are most often adjudicated in arbitration, including disputes over employee discharges.

At-Will Employment Terminations

In the absence of an employment agreement, Georgia follows the “at will” employment doctrine for private sector companies – meaning that an employer can terminate an employee for any reason or no reason at all, provided it is not illegal (such as discrimination or retaliation). No justification is required. However, providing a well-articulated reason for termination is beneficial because clear communication with employees – combined with effective performance management – can prevent misunderstandings and reduce the likelihood of disputes. Additionally, a documented and legitimate reason for termination helps protect the employer in the event of litigation, providing a solid defence against potential claims.

Termination in Contractual Employment Relationships

Employment contracts typically outline the conditions under which either the employer or employee may terminate the relationship. It is important that these contracts clearly specify the grounds for termination, whether for cause, without cause, or due to other specified circumstances such as a change in control. The contract should also detail the process for termination, including any required notice periods or severance provisions. This level of specificity helps manage expectations, reduces ambiguity, and provides both parties with a clear understanding of their rights and obligations, which can be especially important if disputes or legal challenges arise. Well-drafted termination clauses can also help avoid costly litigation by offering a clear roadmap for resolving employment disputes.

Procedures

In Georgia, there is no mandate for which procedure an employer must follow when terminating an employee, unless there is such a procedure in an employment contract. However, there are certain best practices. Employers should consider involving HR or legal counsel early in the process to ensure consistency and compliance with company policies.

When delivering the termination message, it is important to communicate the decision clearly and objectively, using language that is easy for the employee to understand. Employers should also avoid engaging in tit-for-tat disputes or emotional confrontations, maintaining professionalism and boundaries throughout the conversation.

Additionally, it is best to assume that the conversation may be recorded on a phone, so maintaining a calm, respectful tone is critical. Training managers on best termination practices can significantly reduce litigation-creating mishaps by ensuring they handle the process smoothly and professionally.

Collective Redundancies

The Worker Adjustment and Retraining Notification (WARN) Act is a federal law that requires certain employers to provide advance notice in cases of mass lay-offs or plant closures. Although Georgia does not have its own specific state WARN law, covered employers in the state must still comply with the federal WARN Act.

Further, the Georgia Department of Labor (GDOL) requires employers to submit a mass separation notice when 25 or more employees are separated or laid off at the same establishment on the same day for the same reason and the separations are permanent, for an indefinite period, or expected to last at least seven days. Employers are also required to file a mass separation notice in duplicate within 48 hours when total or partial unemployment occurs due to a strike, lockout, or other labour dispute.

In Georgia, there are no state-mandated notice periods for terminating employees in the private sector, as the state follows the “at will” employment doctrine. This means that an employer can terminate an employee without providing advance notice unless otherwise stipulated in an employment contract or collective bargaining agreement. However, employers with 100 or more employees must comply with the federal WARN Act, which requires 60 days’ notice for mass lay-offs or plant closures affecting 50 or more employees at a single site.

Severance

Severance pay is not required under Georgia law unless it is specified in an employment contract. Employers may choose to offer severance as part of a separation agreement, often in exchange for the employee signing a waiver releasing the employer from future claims. Severance may be offered on top of a notice period or in lieu of notice, depending on the terms of the agreement or – in the case of an at-will employee – depending on the employer’s preference. Any severance arrangement should be formalised in a written agreement and reviewed to ensure compliance with applicable laws, especially if a waiver or release of claims is included.

Procedures

There is no specific state-mandated procedure that employers must follow for dismissals, aside from the requirements of federal laws such as the WARN Act and the issuance of the GDOL Notice of Separation. External advice or authorisation is not required for most terminations, but consulting with legal counsel is recommended – particularly for terminations involving high-risk situations, such as potential discrimination claims or mass lay-offs – in order to ensure compliance with federal laws and reduce the risk of litigation.

In the context of Georgia’s “at will” employment doctrine, the terms “summary dismissal” or “dismissal for serious cause” do not formally exist. These concepts generally come into play when an employment contract is in place that specifies certain conditions under which an employee can be dismissed for cause. In cases where an employment contract does exist, the employer must follow the specific procedures and formalities outlined in the agreement for dismissals due to gross misconduct, violations of company policies, etc. This may include providing written notice or giving the employee an opportunity to cure before termination.

In Georgia, separation agreements are permissible and commonly used to formalise the terms of an employee’s departure from a company. These agreements typically include provisions for severance pay, benefits continuation, and a release of claims against the employer. There are no state-specific procedures, formalities, or limitations governing these agreements, nor are there state-statutory requirements for enforceable releases.

It is best practice for parties to explicitly state that Georgia law will govern the agreement if that is their intent. Alternatively, Georgia courts generally respect choice-of-law provisions that identify another state’s law as controlling, so long as doing so does not conflict with Georgia public policy.

Requirements for Enforceable Releases

That said, the basic principles of Georgia contract law still apply. By way of example, a release must be voluntary, clearly written in understandable language, and must offer something of value (consideration) in exchange for the employee’s agreement to sign. Additionally, federal requirements – such as those under the Older Workers Benefit Protection Act (OWBPA) – must be adhered to when applicable. This includes provisions such as the 21-day consideration period and seven-day revocation period for releases of age discrimination claims.

In Georgia, there are no state-specific laws that provide particular categories of employees of private sector employers with enhanced protection against dismissal. However, federal laws offer protections for certain groups of employees, and these protections apply in Georgia.

By way of example, employees are protected from dismissal based on race, colour, religion, sex, national origin, age (40 and older), disability, pregnancy, and genetic information under federal anti-discrimination statutes, such as Title VII of the Civil Rights Act, the ADA, and the Age Discrimination in Employment Act (ADEA). Additionally, employees who engage in protected activities (eg, whistle-blowing or reporting workplace safety violations) are protected from retaliation under federal laws such as the Occupational Safety and Health Act and the Sarbanes-Oxley Act.

Although Georgia does not have additional protections for these groups, compliance with federal laws is critical for employers to avoid wrongful termination claims. Employers must be mindful of these federal protections when making dismissal decisions, particularly when dealing with employees who fall into protected categories or who serve as employee representatives.

Employee Representatives

There are also protections for employee representatives, such as union members or those involved in collective bargaining. Under the NLRA, employees who are part of a union or engaged in organising activities cannot be dismissed for participating in lawful union activities or for advocating on behalf of their colleagues. This law protects employee representatives from dismissal based on their roles in labour relations, ensuring they can carry out their responsibilities without fear of retaliation.

Georgia does not recognise a distinct claim for “wrongful termination”. However, Georgia law does provide some limited avenues of recourse for employees who experience unfair treatment or are terminated under specific circumstances. By way of example, employees may bring a breach of contract claim if their dismissal violates the terms outlined in an employment agreement. Additionally, certain situations may give rise to state law tort claims, such as intentional infliction of emotional distress, negligent hiring, negligent retention, or negligent supervision.

Employees also have recourse under federal anti-discrimination and retaliation laws, such as Title VII of the Civil Rights Act, the ADA, or the ADEA, which prohibit terminations based on protected characteristics or retaliatory actions. Cases arising under these federal statutes are much more common in Georgia, with any state law claims included via supplemental jurisdiction.

In Georgia, anti-discrimination claims are governed by federal law, as Georgia lacks its own set of comprehensive anti-discrimination statutes for private employers. The primary federal laws applicable to discrimination claims include, inter alia, Title VII of the Civil Rights Act, the ADA, and the ADEA.

Grounds for Anti-Discrimination Claims

Generally, employees can bring claims for various forms of discrimination, including:

• disparate treatment – when an employee is treated less favourably than others due to a protected characteristic (eg, race, sex, age);
• hostile work environment – when discriminatory behaviour creates an intimidating, hostile or offensive work environment based on a protected characteristic;
• failure to accommodate (ADA) – when an employer fails to provide reasonable accommodations for an employee’s disability; and
• retaliation – when an employee is punished for participating in protected activities, such as filing a discrimination complaint or co-operating with an investigation.

Burden of Proof

In cases involving indirect evidence of discrimination, which are the most common, the burden of proof generally follows a three-step process called the McDonnell Douglas burden-shifting framework, as follows.

• Prima facie case – the employee must first establish a prima facie case of discrimination by showing that they belong to a protected class, were qualified for their position, were subject to an adverse employment action, and that the circumstances give rise to an inference of discrimination.
• Employer’s legitimate reason – if the employee establishes a prima facie case, the employer must then articulate a legitimate, non-discriminatory reason for the adverse employment action.
• Pretext – finally, the burden shifts back to the employee to prove that the employer’s stated reason is a pretext for discrimination.

More recently, federal courts in Georgia have also employed other frameworks to evaluate whether an employee has stated a viable claim of discrimination. One such example is the “convincing mosaic” analysis, under which a plaintiff can avoid summary judgment if the record – viewed in the light most favourable to the plaintiff – presents a “convincing mosaic” of circumstantial evidence that would allow a jury to infer intentional discrimination by the decision-maker.

Damages and Relief

Employees who prevail in anti-discrimination claims may be entitled to various forms of relief, including:

• compensatory damages – these cover losses such as emotional distress, pain and suffering, and any financial losses resulting from the discrimination (eg, lost wages);
• back pay – wages and benefits the employee would have earned if they had not been unlawfully terminated or demoted;
• front pay – future wages if reinstatement is not feasible;
• punitive damages – in cases where the employer’s conduct is particularly malicious or reckless, punitive damages may be awarded to punish the employer and deter future discrimination;
• attorney’s fees and court costs – prevailing employees may also recover reasonable attorney’s fees and litigation costs; and
• injunctive relief – courts may order reinstatement, changes in employment practices, or other measures to prevent further discrimination.

These remedies are intended to make the employee “whole” and deter future discriminatory conduct by employers.

In Georgia, most court proceedings have returned to in-person formats following the pandemic-related shift towards digital hearings. However, many courts continue to offer hybrid options, allowing for certain proceedings to take place via video or other digital platforms. This flexibility is often available for non-jury matters such as pre-trial conferences, motions, or certain employment disputes where the presence of all parties in the courtroom may not be necessary.

Although there are no specific new regulations mandating digitalisation, individual courts have the discretion to allow video proceedings based on the nature of the case and the preferences of the parties involved. Parties may request virtual appearances or hybrid formats, especially if logistical challenges arise, but such requests are subject to judicial approval. It is advisable to verify with the specific court handling the employment dispute, so as to understand their current practices and options for digital participation.

Employment Forums

In Georgia, there are no specialised employment forums dedicated solely to employment disputes. Employment-related claims are typically handled through the general court system, either in state or federal court, depending on the nature of the claim. Federal employment claims (such as those under Title VII, the FLSA, or the ADA) are generally filed in federal court, whereas state law claims (eg, breach of employment contracts) are filed in state courts. Additionally, administrative agencies such as the EEOC and the GDOL handle specific employment issues, such as discrimination claims or unemployment disputes.

Class Action Claims

Class/collective actions may be brought under federal statutes, such as the FLSA, when a large number of employees are affected by similar wrongful conduct (eg, wage violations or discrimination). Georgia law also permits class actions – although these are more commonly seen in consumer protection or tort cases, rather than employment disputes.

Legal Representation

As regards representation in court, parties in employment disputes in Georgia are typically represented by attorneys experienced in employment law. Employers are almost always represented by legal counsel, given the complexity of employment litigation, whereas employees may seek legal representation to navigate the process. In some cases, such as small claims or certain administrative hearings (eg, unemployment claims), the parties can represent themselves.

In Georgia, arbitration is possible and commonly used as an alternative method for resolving employment disputes. Pre-dispute arbitration agreements, where the employer and employee agree to arbitrate disputes rather than litigate in court, are generally enforceable. These agreements are governed by the Federal Arbitration Act (FAA), which strongly favours arbitration as long as the agreements are clear, voluntary, and not unconscionable. Employers should ensure that arbitration agreements are well-drafted, specifying the scope of disputes covered and not covered (see, for example, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021) and arbitration procedures.

In Georgia, whether a prevailing employee or employer can be awarded attorney’s fees or other costs depends on the specific legal claims and the circumstances of the case. By way of example, in employment disputes involving federal claims such as under Title VII of the Civil Rights Act, the ADA or the FLSA, prevailing employees may be entitled to attorney’s fees and costs. These statutes typically include fee-shifting provisions – meaning that if the employee wins the case, the court can order the employer to pay reasonable attorney’s fees and court costs.

To compare, in state law claims, Georgia follows the “American Rule”, which means that each party typically bears its own legal fees unless there is a specific statute, contractual provision, or evidence of bad faith, stubborn litigiousness, or unnecessary trouble caused by the opposing party. By way of example, under Georgia’s OCGA Section 13-6-11, attorney’s fees may be awarded if one party acts in bad faith or is being stubbornly litigious.

In all cases, it is best practice for employers and employees alike to accurately track all time spent on legal matters – including detailed records of legal fees and other costs – to support any claims for reimbursement or to defend against such claims. Accurate tracking can be critical in demonstrating the reasonableness of fees and costs, particularly if a party seeks to recover these amounts through litigation.