The COVID-19 pandemic will likely change the workplace permanently, not simply because of the immediacy of the 2020 pandemic, but also as employers realize their workplaces must be prepared for future airborne or other viral outbreaks. Although the US has previously experienced viral outbreaks (SARS, MERS, H1N1), those outbreaks were limited in terms of geographic spread. The highly contagious nature of SARS-CoV-2 (the new coronavirus that causes COVID-19) has affected employers, employees, their workplaces, and their families, all while federal, state, and local governments and health authorities have struggled to understand the spread of the virus and to contain and mitigate the spread through shutdowns, staggered re-openings, and containment measures.
Some employers have faced downturns, closures, and reductions in force; others have struggled to keep up with consumer demand and to overcome worker shortages. Employers have:
For the foreseeable future, the workplace will likely remain changed as employers seek to protect their employee populations and limit the risk that their workplaces become sites of community spread. Remote work has allowed for some employers to maintain productivity and service, potentially becoming – at least to some degree – the new “norm.” This, in turn, may impact commercial real estate if employers shrink their physical workplaces due to permanent reliance on remote work for some or all of their employees. For example, at the time of writing, Google had already announced its 200,000-plus employees would continue remote work until at least July 2021, and Facebook had announced that it will permit some employees to work from home permanently. Employees are also likely to proactively seek out employers that offer some type of remote work to avoid or limit long commute times, public transit, or even relocations.
Likewise, the COVID-19 pandemic has forced large global employers to limit or ban travel (both within their own countries, as well as internationally). With the success of videoconferencing on such platforms as Zoom and WebEx, it is expected that global entities will revisit their travel budgets for sales, recruiting, and other functions that have traditionally been performed face to face.
The impact of the COVID-19 pandemic is also likely to have long-term implications for safety and health. In response to the pandemic, most employers developed or updated existing infection control and sick leave policies, and evaluated additional protective measures for their workforces, including physical barriers, additional spacing, and staggered shifts. Obviously, one size does not fit all with respect to reconfiguring workplaces, and employers must remain in compliance with federal and state laws protecting older workers, workers with disabilities, and other employment-related laws.
The "Black Lives Matter," "Me Too," and other social justice movements have pushed global entities, including those operating in the US, to take a hard look at anti-discrimination and anti-harassment policies and commitment to social justice and diversity. Employers have been re-examining how they manage their workforces and how they interact with their communities.
The pervasiveness of social media brings scrutiny and rapid societal response, implicating companies and employees who can be tied to them. An employer may now need to consider whether an employee’s public bad conduct may require separation, particularly when the conduct reflects racism or sexism.
The BLM and Me Too movements have placed a spotlight on discriminatory actions and practices, including systemic racism and implicit bias, leading employers to provide additional support and training to their existing workforces in an effort to mitigate or eliminate bias, thereby enhancing their abilities to recruit, hire, and develop diverse workforces.
While US employers have adopted and implemented longstanding policies prohibiting harassment based on legally protected characteristics, the attention placed on this issue by the Me Too movement and the publicity generated in recent high-profile cases has initiated a seeming cultural shift from preventing conduct that is illegal to promoting a respectful and inclusive work environment. This shift can be seen in training being provided by employers (more focused on civility training and respect), as well as the focus of anti-harassment policies. The promotion of environments that encourage reporting and offer multiple avenues to bring concerns forward, coupled with an appropriate response to the behaviors at issue, are important components of such a program.
Before the COVID-19 pandemic, some employers had already warmed to the "gig" economy approach, sometimes relying heavily on transient, temporary, and short-stint workers, many focused on particular projects or ventures. The pandemic also forced employers to revisit a historical resistance to remote work concepts given the various shelter-in-place orders that were implemented at the beginning of the pandemic. While some employers, primarily in the technology sector, had already embraced the concept of remote work, the COVID-19 pandemic forced most employers to adopt and/or implement remote work policies, greater use of videoconferencing, and develop alternative methods for in-person meetings, particularly with larger groups.
All of these changes had enormous socio-economic and legal implications. First, not all employees had ready access to computer equipment necessary for remote work. This required employers to ensure their workforce had the hardware and internet access to perform remote work. Employers also had to ensure their technology infrastructures and IT security supported the same. In addition, remote work policies, IT security policies, and wage-hour policies had to be reviewed to confirm their legality and that they adequately addressed the myriad types of work now being performed away from the employer’s usual work location.
With the steady increase in the gig economy, employers must understand the challenges and risks of contracting for services and promoting contracted services as well as unique issues raised by remote work. While the economy has drastically changed, applicable US law has not.
Employers (or entities contracting for services or personnel) must consider the costs, savings, and potential risks related to particular choices in this framework. Misclassifying workers as "independent contractors" who should be classified as "employees" leads to the following potential legal issues: collective bargaining, taxes, wage and hour compliance, benefits, and anti-discrimination laws.
Independent contractors typically have no such protections under federal and most state employment laws. The question of whether a worker or group of workers is properly classified can easily lead to disputes before administrative agencies and state and federal courts. See more detailed information on the independent contractor relationship in 2.1 Defining and Understanding the Relationship.
In August 2020, a court in California ruled that Uber and Lyft drivers were misclassified as independent contractors by the companies and the drivers must be classified as full employees under California law that establishes a test for determining whether workers can be classified as independent contractors.
The California Attorney General brought the lawsuit after the two ridesharing giants resisted the law after it took effect in January 2020, arguing their core business is technology rather than ride-hailing. “Uber and Lyft have misclassified their ride-hailing drivers as independent contractors rather than employees in violation of [California] Assembly Bill 5 (AB5), which took effect on January 1, 2020. That statute is intended to ensure that all workers who meet its criteria receive the basic rights and protections guaranteed to employees under California law,” the court concluded. Both companies can appeal the ruling. Also, the companies, along with DoorDash, succeeded in meeting requirements to get a public question on the November election ballot as Proposition 22. California voters will be asked to permanently classify ride-hailing drivers as independent contractors subject to certain labor and wage policies that fall short of traditional employment. While this case is within California, it could be persuasive to other courts around the country.
Technology has allowed employers to be flexible with their workforce, allowing employees to address work issues outside of the traditional office environment. However, hourly workers not exempt from the requirements of the Fair Labor Standards Act (FLSA) likely will need to be paid for work performed after hours. US employers need to have clear policies that address their compensation policies with respect to the use of these devices and after-hours work.
Union membership has been on a significant decline in the United States for decades, with private sector union membership hovering around 6.5%. Their ranks remain strongest on the coasts.
In the wake of the COVID-19 pandemic, there has been an uptick in worker militancy across the country, some of which was related to union organizing and some of which was grass-roots action by employees related to worker safety. Unions have attempted to capitalize on worker concerns during the pandemic, promoting themselves as a vehicle to ensure that employers address worker safety issues.
However, the pandemic also created a number of obstacles to union organizing, with face-to-face organizing meetings becoming more challenging. In addition, for a short period during the pandemic, the National Labor Relations Board (NLRB) put a temporary hold on processing union election petitions. Although that hold was lifted as of April 2020, the number of representation petitions filed dropped precipitously as the pandemic continued. For example, during 2019, Region 10 of the NLRB, which covers most of the State of Georgia, processed 67 union election petitions. As of the end of August 2020, Region 10 had only processed 32 union election petitions.
Despite this, to the extent workers feel their workplace is unsafe or believe they should receive things such as “hazard pay,” companies may see unions try to exploit those issues to gain entry to the company.
At 4.5%, Georgia has one of the lowest private sector union membership rates in the country. This has spurred investment and development in the automotive, manufacturing, and other business sectors in the state. Georgia was a very early adopter of Right to Work laws, making it illegal to require employees to join a union as a condition of employment.
As noted in the previous section, although union organizing declined during the pandemic, unions are attempting to leverage worker safety concerns to expand their low representation in the workforce. The pandemic also led to unique legal issues in established bargaining relationships, with many unions demanding things such as hazard pay for the employees that continued working, even though the employees’ terms and conditions of employment were already governed by an existing collective bargaining agreement. In addition, many unions served information requests demanding information related to employer health monitoring of the workforce, safety and health precautions adopted by employers, and furloughs or layoffs implemented by employers in response to the pandemic.
The NLRB has yet to weigh in on many pressing issues related to the COVID-19 pandemic. For example, it is not yet clear whether companies have to bargain with unions over their emergency measures undertaken in response to the virus. Many collective bargaining agreements already had various reduction in force provisions in place, but it was unclear as to whether such provisions addressed furloughs or shutdowns implemented. Bargaining with unions is also in new territory given the social distancing protocols now in place. For example, it is not clear whether bargaining with unions must be done face-to-face (as is customary) or via videoconference. Accordingly, companies looking to start or augment their business in the US should continue to closely monitor important decisions coming out of the NLRB.
There are different types of service arrangements in the USA. As a result, it is important that the parties agree on the terms and conditions at the outset of their relationship, and ensure that the agreement reached is consistent with applicable law. Failing to properly do this at the commencement of the engagement not only creates unnecessary uncertainty, it increases the organization’s legal exposure with regard to future disputes.
The COVID-19 pandemic made employers more comfortable and reliant upon independent contractor relationships. In addition, the pandemic forced employers to revisit the acceptability of remote work for some or all of its workforce, particularly for positions historically performed at corporate offices.
The default service relationship in the USA is that of employer and employee. Most states, including Georgia, are "at-will" employment jurisdictions, meaning 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 otherwise prohibited by law (ie, due to discrimination or retaliation). In some situations, employees may have contracts specifying the terms and conditions of their employment. Such contracts are not required in the USA, but may be warranted depending on certain factors such as the type of employee in question (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.
The NLRB issued a new Rule in February 2020 over the issue of joint employment. Under the Rule, to be a joint employer, a business must possess and exercise substantial direct and immediate control over one or more essential terms and conditions of employment of another employer’s employees. The Rule defines key terms, including what are considered “essential terms and conditions of employment,” and what does, and what does not, constitute “direct and immediate control” as to each of these essential employment terms. The Rule also defines what constitutes “substantial” direct and immediate control and makes clear that control exercised on a sporadic, isolated, or de minimis basis is not “substantial.”
Evidence of indirect and/or contractually reserved control over essential employment terms may be a consideration for finding joint-employer status under the Rule, but it cannot give rise to such status without substantial direct and immediate control. Importantly, the Rule also makes clear that the routine elements of an arm’s-length contract cannot turn a contractor into a joint employer.
The importance of control in a relationship also extends to the determination of whether a worker is an independent contractor. The law in this area is rapidly evolving and there are no rigid rules for determining whether a person is an independent contractor or an employee. Various jurisdictions and administrative agencies in the USA have adopted different tests to determine whether an individual is an independent contractor. Georgia has adopted a relatively moderate approach, distinguishing employees from independent contractors based on the following factors:
While no one factor is dispositive of a person’s status, the extent of control over the work performed by the worker is regarded by Georgia courts as the single most significant factor in determining the existence of an employer-employee relationship.
Internships have been the subject of considerable scrutiny in the past few years, notably from the standpoint of whether private businesses can rely on unpaid interns. The US Department of Labor’s Wage and Hour Division has developed a test for evaluating whether an individual constitutes a "trainee" (intern) for the purposes of the FLSA. The following factors are considered in determining whether a for-profit employer lawfully can utilize an unpaid intern:
See Fact Sheet #71: Internship Programs Under The Fair Labor Standards Act.
The COVID-19 pandemic negatively impacted the ability of employers to attract and retain foreign national talent. The pandemic, and the federal government’s response, disrupted virtually every aspect of the US immigration system. The processing of immigration benefits by US Citizenship and Immigration Services (USCIS) has dramatically slowed, visa processing abroad by the US Department of State (DOS) has ground to a halt, and entry into the US has been restricted by several presidential proclamations.
Corporate Structure and Relationships
Employers are finding it increasingly difficult to sponsor foreign nationals for employment in the US. Increased scrutiny by USCIS and DOS has resulted in lengthy delays in the adjudication process and greater rates of visa denials. The pandemic has resulted in even longer delays due to the temporary closure of local immigration offices for in-person services and the suspension of routine visa services by DOS. In addition, various presidential proclamations have prohibited a number of foreign national employees from seeking entry to the US to initiate or return to employment.
Employers often consider the H-1B and L visa when sponsoring foreign nationals for employment in the US. However, due to increased scrutiny and changes in the immigration processes for the above visa classifications, employers may also wish to consider the H-1B1, E, and TN visas in addition to the H-1B and L.
The H-1B visa is generally reserved for specialty occupations – positions requiring the theoretical and practical application of a body of highly specialized knowledge and that requires the attainment of a bachelor’s degree or higher in a specialty or its equivalent as a minimum for entry into the occupation in the US. 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 and 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. Of note, while several presidential proclamations limited the ability of foreign nationals to enter the US on various visa classifications, Presidential Proclamation 10052 specifically restricted the ability of employees in the H-1B visa to enter the US to initiate or resume employment.
The L visa is generally reserved for international companies seeking to transfer executives, managers, or specialized workers to the US. As with 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. Various presidential proclamations, including Presidential Proclamation 10052, have restricted the ability of employees in the L-1 visa classification to enter the US to initiate or resume employment.
Due 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.
The H-1B1 visa is reserved for citizens of Chile and Singapore. As with 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 due 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, although there is concern with timing due to the suspension of routine visa services at US embassies and consulates due to the pandemic.
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 specialized worker. As with the H-1B visa, employers have generally found the E visa to be reliable, fast, and cost-effective, although there is a concern with timing due to the suspension of routine visa services at US embassies and consulates due to the pandemic.
The TN (NAFTA) visa allows employers to sponsor citizens of Canada and Mexico for employment in the US in a professional capacity. While NAFTA has been replaced by the USMCA Agreement, 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 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 and there is concern with timing due to the suspension of routine visa services at US embassies and consulates due to the pandemic.
There has been an uptick in worker militancy during the COVID-19 pandemic, and unions representing employees have also tendered unique bargaining demands related to safety protocols and economic issues such as “hazard pay.” Unions have also demanded bargaining over temporary steps implemented by employers during the pandemic, such as short-term layoffs, furloughs, and shutdowns. With some exceptions, these issues were already addressed by existing collective bargaining agreements between the employer and the union, particularly if the collective bargaining agreement had a broad management rights clause.
With respect to organizing campaigns, the authors expect unions to continue to attempt to capitalize on worker militancy and concerns over health and safety issues.
To the extent the company desires to remain union-free, the importance of hiring a strong HR and employee relations staff who can establish a positive culture and get buy-in from the managers cannot be overstated.
If an entity acquires a business where employees are represented by a union, the entity may have options under the National Labor Relations Act (NLRA) depending on the nature of the transaction. If the acquisition is a stock transaction, a stock purchaser is almost always bound by the existing collective bargaining agreement with the union. If, however, the acquisition is an asset purchase, the purchasing entity generally has the right to assume or not assume the existing collective bargaining agreement. If there is continuity in the "employing industry" (with the most significant factor being the continuity of the workforce), the purchasing entity of the assets becomes a "successor" with an obligation to recognize and negotiate with the union. Depending on the specific facts, a "successor" may be able to establish "initial terms and conditions" of employment prior to negotiating with the union.
The pre-hire and interviewing process is a significant opportunity for Georgia employers to identify and hire the strongest candidate for the positions in question. Prior to the employment interview, employers should consider requiring applicants to complete an employment application that accurately describes prior educational and work history, reasons for leaving prior employment, references, and any special skills.
As a best practice, the employment application should include a certification by the applicant that he or she provided complete, accurate, and truthful information on the application. The employment application should also contain an affirmation of the at-will nature of the employment relationship, and employers should refrain from making verbal or written assurances of "long-term" or "permanent" employment, or other statements that could adversely affect the employer’s ability to successfully assert that the employee was employed at-will at a later time. In addition, to the extent that any post-offer testing is to be conducted, employers should include that information in the employment application to ensure that applicants are aware of the requirements and allow them to request reasonable accommodations, if needed.
The employment application and the interview process, as a best practice, should not ask questions or elicit information about legally protected characteristics such as age, national origin/race, religious practices, pregnancy or desire to have children, sex, sexual orientation or gender identity, or medical conditions or disabilities and similarly should avoid questions that would elicit this type of information.
Background Checks and Physical Assessment
A common aspect of the hiring process is a limited criminal background check for the successful candidate. While this due diligence provides benefits for employers, such as a defense to a negligent hiring claim and the avoidance of a high-risk hire, this is an area of the law that is currently evolving on the national, state, and local level. The Equal Employment Opportunity Commission (EEOC) has taken the position that, given that minorities are disproportionately adversely affected with regard to convictions and arrests, criminal convictions should only be considered if they are job-related to the position being sought. Employers should consider doing a case-by-case analysis, and review the type of conviction, the date of the conviction, the nature of the job in question, and any exceptional circumstances before making a decision about employment based on a criminal conviction.
Employers using background checks (including credit reports and criminal records) to make employment decisions – including hiring, retention, promotion, or reassignment – must comply with the federal Fair Credit Reporting Act (FCRA) administered by the Federal Trade Commission (FTC).
The Americans with Disabilities Act (ADA) also imposes restrictions on employers with regard to what information can be sought or discussed during the hiring process. The ADA generally prohibits employers from any pre-employment inquiries about an applicant’s medical condition. Thus, the employer may not ask any questions designed to elicit medical information prior to a conditional job offer being made.
After a conditional offer of employment has been made, the employer may conduct a post-offer medical examination, provided that this is required of all applicants for the position. However, to withdraw an offer of employment, the employer must be able to demonstrate that the individual is unable to perform the essential functions of the job in question, even with reasonable accommodations. Thus, to the extent that post-offer testing is to be completed, employers should ensure that the components of the test directly correlate to the essential functions of the position.
Employers may also require physical agility testing. Depending on how these tests are constructed, they may or may not be considered a "medical examination" under the ADA. For example, if an agility test simply requires an employee to pick up products and carry them a certain distance, such a test would not be a medical examination. However, if the tester measures the employee’s physiological response to the activity (eg, pulse and blood pressure), the test may be considered a medical examination subject to the ADA restrictions on such testing. Even these agility tests must be job-related and consistent with business necessity, in essence accurately depicting the physical demands of the position in question. As this is a highly technical area of the law, employers are well advised to seek legal assistance with these determinations.
The Genetic Information Nondiscrimination Act (GINA) similarly imposes restrictions on employers during the hiring process (and afterward), making it unlawful for employers to request genetic information with respect to employees. Because genetic information is defined broadly to include family medical history, employers should ensure that any post-offer medical examinations, even those conducted by occupational doctors, do not elicit this information.
Finally, the ADA requires employers to provide reasonable accommodation to disabled applicants to permit them to participate equally in the hiring process. While reasonable accommodations may take many forms, such as having an interpreter for a hearing-impaired applicant or administering a test in an accommodated format – more time, reading the questions, answering in a different format (eg, dictating), ensuring access to the testing site, etc – the employer is not required to "carve off" essential functions of the position in question as such an accommodation would not be reasonable.
COVID-19 Creates New Issues
The COVID-19 pandemic has not changed this basic process, but it has raised a host of new issues that might arise during the interactive process as well as caused employers to revisit what are the essential functions of a job. For example, an applicant may have an underlying condition (asthma, diabetes) for which they seek reasonable accommodations that may not have been discussed pre-pandemic. In addition, while attendance at the workplace on a day-to-day basis has historically been recognized as an essential function of the job, the success of remote work has forced many employers to revisit whether remote work may serve as a reasonable accommodation for a particular applicant/employee.
The enforceability of restrictive covenants in the USA is heavily dependent upon state law, which varies dramatically on this subject. Some states consider non-competition and non-solicitation covenants to be void and unenforceable under almost all circumstances, whereas other states will enforce contractual restrictions, but only if they meet specific criteria set forth by state statute. Other states will enforce such restrictions, but only reluctantly and only if the terms are reasonable and narrowly defined.
In Georgia, post-employment restrictive covenants are governed by state law. The law covers non-competition covenants, customer non-solicitation covenants, and covenants regarding non-disclosure of confidential information. The statute contains detailed requirements about the scope of such agreements, the time period for which they may be effective, and other safe harbour provisions. Georgia employers should discuss the provisions of the statute with legal counsel.
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 authorization 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 is found at O.C.G.A. § 10-1-761.
COVID-19 has altered the application of some traditional privacy rules. Generally, conducting medical tests or examinations on employees is prohibited. However, in the wake of COVID-19, the Center for Disease Control (CDC) and state and local authorities permit reasonable measures – including temperature checks, asking questions regarding potential COVID-19 exposure, and even testing to check if an employee has an active case of COVID-19 – to help curb the community spread of the virus. Indeed, under the ADA, mandatory testing to check for an active case of COVID-19 (but not to check for COVID-19 antibodies) is permissible if “job related and consistent with business necessity.” Regulatory guidance from the EEOC confirms that COVID-19 testing meets these parameters due to the ongoing pandemic. Further, while all medical information (including information related to COVID-19) normally must be kept confidential, an employer may discreetly disclose the name of an employee who is COVID-19 positive to a public health agency. Not surprisingly, this has created some tension in the workplace, as employees’ fears have led them to ask whether co-workers they work with have tested positive for COVID-19 or otherwise exhibited symptoms of COVID-19. Despite these understandable concerns, the employer remains obligated to protect the privacy of an employee’s medical information even during contact tracing or notifying employees of possible exposure to COVID-19.
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 December 17, 2019, the NLRB ruled that an employer’s rule prohibiting use of its email system for nonbusiness purposes did not violate employees’ rights under the 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, employers should exercise caution in doing so and should make sure that the employer’s actions are reasonable. Discreet surveillance programs long have found favor 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 area 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).
There are a number of federal laws that prohibit discrimination, harassment, or retaliation based on legally protected characteristics or legally protected activity. Legally protected characteristics include age, gender (potentially including sexual orientation and/or gender identity), pregnancy, race, color, national origin, disability, military or veteran status, genetic information, religion, or citizenship status. In addition to federal laws, many states – as well as local governmental entities such as cities, counties, and townships – have enacted laws that expand the coverage of legally protected characteristics. Thus, it is important to understand and abide by all the laws in the jurisdiction in which the employer is located.
Employers are well advised to conduct periodic supervisor training that identifies the types of behaviors that are inappropriate in the workplace, the methods to report concerns, their role as a member of the management team (both in communicating with applicants and employees, and in the investigatory process), and how to appropriately document and issue any discipline needed. Employees should also receive training on the applicable policies, the types of behaviors that would violate the policies, the mechanism to report concerns, and the non-retaliation provisions of the policies. Many employers are also including diversity training designed to foster an inclusive and respectful workplace, and to discuss varying perspectives employees may bring to the workplace as a result of their life experiences.
The Occupational Safety and Health Administration (OSHA) is the federal agency charged with enforcing all applicable federal safety laws and regulations. Roughly 22 states have applied for and been granted authorization to establish state plans to administer and enforce the applicable safety and health compliance program for private employers in their states. Georgia has not been granted authorization for a federal-approved occupational safety and health program, and therefore safety and health complaints by employees are processed through OSHA. The COVID-19 pandemic has resulted in a large number of employee complaints that the employer is not providing them a safe work environment, which has challenged the Agency given its current resources. Most of these complaints are processed through the “general duty” clause under OSHA that requires employers to furnish a place of employment free from recognised hazards that are causing or are likely to cause death or serious physical harm to employees.
In Georgia, an employer who establishes a “drug-free workplace program” in compliance with state law is eligible for a discount on its workers’ compensation insurance premiums. The program must include all of the required provisions in Georgia law.
The provision of employee benefits and the documentation of employee benefit plans is largely a matter of federal law under the Employee Retirement Income Security Act of 1974 (ERISA). Generally, state law is pre-empted as it relates to employee benefit plans.
The Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) is an element of ERISA that requires that administrators of group health plans provide the option of purchasing continued healthcare coverage to employees and their qualified beneficiaries who would otherwise lose coverage as a result of a "qualifying event," such as the termination from employment.
Federal courts have jurisdiction to interpret how ERISA applies to employee benefit plans and these interpretations can vary from geographic region to geographic region. The federal courts that have authority for interpreting ERISA as it applies to employers located in Georgia have generally been more employer-friendly in their interpretations.
The COVID-19 pandemic has brought changes to the federal statutory framework governing benefits and benefit plans, enhanced unemployment compensation benefits, and employee leave (paid and unpaid). Georgia, however, did not adopt any legislation specifically in response to the COVID-19 pandemic affecting compensation or benefits.
The COVID-19 pandemic presented a number of additional challenges with respect to terminations. As an initial matter, a number of businesses, particularly in the hospitality or restaurant industry, were forced to immediately shutter operations on a temporary or permanent basis, resulting in layoffs or terminations. This created potential exposure for employers under the federal Worker Adjustment Retraining and Notification Act of 1988 (WARN) governing plant closings. However, unlike some states, Georgia does not have a state-specific “mini-WARN” statute governing plant closings.
In addition, the Families First Coronavirus Relief Act (FFCRA) created new leave mechanisms for qualifying employees, including paid leaves for limited amounts of time, and, correspondingly, potential new causes of action for interfering with these leaves or retaliating against employees for taking them. Additionally, employers who took advantage of Paycheck Protection Program loans and who terminated employees or reduced their work schedules will be obligated to rehire or reinstate employees to the extent they intend to have the loans forgiven pursuant to the terms of the legislation.
Finally, terminating an employee because they have the virus or are suspected of having the virus also raises the spectre of disability discrimination or retaliation claims under federal anti-discrimination statutes. In addition, for employers not covered by the FFCRA, their employees may have requested family and medical leave in connection with having the virus or having a family member that they care for affected by the virus. Terminating an employee because of an FMLA leave request may result in claims of retaliation under the FMLA, or interference with an employee’s FMLA rights. Therefore, it is imperative that employers properly process and vet these leave requests under the FMLA. Georgia, however, does not have its own state-specific leave act providing for paid or unpaid sick leave.
If an employee is at-will, this should be disclosed to them upfront so there are no surprises if they are terminated at a later point. The employer should – at a minimum – be able to point to evidence documenting that the employees were advised of their at-will status at the commencement of employment. Best practice is to ensure that at-will statements are included in the employment application, offer letters, and employee handbooks and acknowledgment forms.
Terminations by Operation of Contract and Severance
If the parties have entered into an employment agreement that addresses how the employment relationship will end, the terms of the agreement will normally govern the situation. Employers are well advised to pay close attention to the language of the employment agreement, especially where there are defined terms addressing termination for "cause," "change of control," and provisions describing the renewal of the contract. Employees in the USA typically are not entitled to severance unless the employer agrees to provide it pursuant to the terms of an agreement or policy.
Separation Agreements and Releases
In the event employees are offered severance, this customarily will be contingent upon them entering into a release waiving any and all claims they may have against the company. Such release agreements are treated as contracts, and generally will be subject to enforcement in a similar manner. One caveat, however, concerns waivers for employees age 40 or over pursuant to federal law. The federal Age Discrimination in Employment Act (ADEA) has many procedural requirements in order for a severance agreement to be lawful. Employers should consult with employment counsel to ensure compliance.
Beyond federal law, some states require additional provisions to ensure that a release is valid. As such, the current state of the law in the applicable jurisdiction must be reviewed before any release is prepared and presented to an employee.
Terminating multiple employees may trigger requirements under another federal law, WARN, if a sufficient number of employees are affected. This law applies to any business that employs 100 or more employees (excluding part-time employees). Under the law, if an employment loss results in a "plant closing" or "mass layoff," a qualifying employer must provide affected employees and certain government officials at least 60 days' advance notice of the event. Employers who fail to provide the requisite notice can be required to pay the affected employees’ back pay for each day of the violation, reimburse them for the loss of benefits and any medical expenses they incurred, and may also have to pay civil penalties.
The law in the USA generally favors the private adjudication of disputes including arbitration.
Arbitration can apply to employment disputes and can cover the full range of potential claims that employees can raise against employers, including tort claims and claims based on the violation of federal employment statutes.
Under Georgia law, to constitute a valid contract, there must be, among other things, “the assent of the parties to the terms of the contract” (O.C.G.A. § 13-3-1). A party cannot be required to submit to arbitration any dispute that he or she has not agreed so to submit. The party seeking to enforce an arbitration agreement must prove assent to the contractual terms.
Generally, in Georgia, employees are employed on an at-will basis so that no "breach of contract" claims can be brought against the company upon an employee’s separation. A best practice in Georgia is to have "at-will disclaimers" included in offer letters as well as any employee handbooks/manuals that specify an employee remains at-will unless the company enters into a written agreement stating to the contrary.
Certain executives or other employees may have a written agreement that provides for termination “for cause” and “without cause” with the employee’s separation pay impacted by whether the employee was terminated “with cause” or “without cause.” For businesses that temporarily or permanently closed their operations due to the COVID-19 pandemic, and terminated employees as a result, those contracts would need to be reviewed to assess whether that unique business circumstance was covered by the employee’s agreement.
In union environments, the labor agreement between the parties controls employees’ terms and conditions of employment, including termination decisions. Violations of labor contracts most often are adjudicated in arbitration, including disputes over employee discharges.
Damages for contractual claims most often are tied to the alleged harm suffered. For instance, if an employee had a five-year employment agreement and argued he or she was terminated improperly three years prematurely, the employee, if successful, would be entitled to three years of pay. It is important to note, however, that some contracts may provide for one or both parties to receive attorney’s fees or other, additional categories of damages in the event they prevail in a dispute under the agreement, which can be significant sums.
In some circumstances, it is held that handbooks may create enforceable rights, but many employers include clear disclaimers that the handbook is not a contract, that the employees are employed at-will absent some clear agreement signed by an officer of the company, and that the policies may be changed at any time, for any reason, without prior notice.
While handbooks generally are not construed as contracts, employers should consistently follow the terms of the handbook policies (absent exceptional circumstances) to avoid claims of disparate treatment based on a legally protected characteristic.
In a union environment, a labor agreement between the union and employer governs employees’ terms and conditions of employment, including employee terminations. Nearly every such agreement provides (either explicitly or implicitly) that a union employee can only be terminated with "just cause." Just cause is a murky standard that is viewed differently by arbitrators, and union employee discharge cases most frequently are pursued in arbitration. Generally, the employer must show that the reason for the termination was justified, that the employee should have known the misconduct at issue could lead to discharge, and that the company consistently has imposed such penalty for similar violations in the past. In terms of potential damages in labor arbitrations related to employee terminations, generally only back pay and reinstatement are available as potential remedies.
As a result of the COVID-19 pandemic, there has been an increase in claims arising under these federal anti-discrimination statutes. These claims include failure to accommodate disabilities under the ADA, interference or retaliation against employees requesting leave under the FMLA, as well as other discrimination claims if the employer takes an adverse action based on an employee’s protected characteristic, such as assuming that older workers should remain furloughed during the pandemic.
The FLSA requires that all covered non-exempt employees be paid at least minimum wage and overtime pay at no less than time and one half their regular rates of pay for all hours worked in excess of 40 in a single workweek.
The laundry list of potential wage and hour-related legal issues can seem daunting and includes classification of employees as exempt and non-exempt; classification of independent contractors and consultants; compensable v non-compensable work time; payroll docking policies and practices; "off-the-clock" and regular work time; meal periods, breaks and on-call time; overtime, commissions, bonuses, reimbursements and tip pooling; record-keeping and notice obligations; payments upon termination of employment; compensable time to be included in an employee’s hours; calculation of overtime; and deductions from pay. In addition to the FLSA, states can impose requirements on employers concerning pay.
Claims under the FLSA often are brought in a class action under Federal Rule of Civil Procedure 23, or a collective action under Section 216(b) of the FLSA. Either framework allows a large number of employees citing similar alleged wage or compensation errors to join together against an employer to make claims for monetary and equitable relief. Potential damages include back pay, front pay, punitive or liquidated damages, and attorney's fees. Additional wage claims and penalties are available on a state-by-state basis.
One way to try to combat the risks and costs of collective and class actions is to require employees to sign class-action waivers, requiring employees with disputes to individually adjudicate the dispute in arbitration. Such waivers must be carefully crafted to help ensure enforceability.
As a result of the pandemic, several types of claims are likely to arise. First, as a result of remote work, more employees avoided long commutes and their work was readily accessible at home. For non-exempt employees, employers were facing potential overtime claims as non-exempt employees worked in excess of 40 hours. These types of claims are typically avoided by ensuring the employer was carefully tracking hours worked, and requiring accurate reporting of the same by employees. Employers need to confirm they have appropriate policies in place governing the accurate recording of hours worked, as well as management approval of overtime. For exempt employees, there is the possibility that such employees began performing non-exempt work that, depending on the amount of such work performed, could leave the employer vulnerable to employees challenging their exempt status.
There are a variety of federal and state laws that protect employees who report perceived unlawful acts. Even if it is ultimately determined that the employee’s perception is wrong, the employee generally will still be protected unless the employer can establish that the employee knew he or she was making a false report. The types of conduct that afford this protection include on-the-job safety issues; violation of federal or state anti-discrimination laws; violation of the Affordable Care Act; wage payment violations; environmental violations; fraud against the government; financial misconduct, including false reporting of financial information or tax evasion; and misappropriation or misuse of investor funds in a public company. To successfully defend against such a whistle-blower claim, the employer must typically provide substantial evidence of its non-retaliatory reason for the discipline or discharge. Many statutes give the governmental entity authorized with evaluating these claims the power to reinstate a terminated employee before making a final decision on whether the termination was lawful.
The means by which a worker can present a claim against an employer in the USA are very broad. These can range from internal complaints to filing claims with government agencies to participating in arbitration to a full-blown lawsuit filed in court.
During employment, the most common way for an employee to present a claim against the employer is by way of a complaint to his or her supervisor or manager, or to the HR department (although it should be noted that nothing expressly prohibits an employee from pursuing a claim with a government agency or even filing a lawsuit while employed). This is why it is essential that supervisors/managers are properly trained on how to recognize and respond to such complaints. This also is why it is imperative that employers educate employees on the policies or procedures that apply to such complaints – so employees know how to make the complaints and employers can deal with them promptly. Employers receiving complaints should have HR procedures in place to address them, including interviewing the people in question and taking steps to correct any problems.
The investigation process and the outcome of the investigation should be well documented. There are no rigid rules on what steps an employer should take to investigate a complaint or who should be involved in the investigation. However, courts have inferred discriminatory motive from the failure to conduct a reasonable investigation. As a result, employers have a vested interest in carefully conducting investigations and dutifully maintaining records of each step in the process. Taking proactive steps to address concerns raised by employees can help fix actual problems in the workplace, can correct perceived bias, and – if nothing else – can be used as evidence that the company took the matter seriously in the event the case does proceed to litigation.
If the parties have entered into a valid arbitration agreement, the agreement will typically be upheld and the parties will proceed in the forum selected.
Another ADR procedure that is popular in the USA is mediation. In contrast to arbitration (where the dispute is submitted to one or more individuals to render a decision), a mediator acts as a go-between for the separate parties and tries to structure a resolution. The mediator does not issue a final, binding decision (although the mediator certainly may provide input on how he or she perceives the relative strengths and weaknesses of the parties’ positions). The benefit of mediation is that it is fast and does not involve protracted litigation or discovery. Additionally, the parties can conduct multiple mediations (with the same or different mediators) if they so choose.
There are both federal and state administrative agencies that present an avenue for employees to pursue claims against an employer. Almost every state has a civil rights agency that can address claims of discrimination, harassment, or retaliation. In addition, multiple cities have also enacted non-discrimination ordinances and have a local agency that can investigate complaints. Employees also can submit worker’s compensation claims in the state in which they worked (or where the incident occurred), or file a claim for unemployment in that state if they are terminated. Separate and apart from the state agencies, the federal EEOC has jurisdiction over federal laws regarding discrimination, harassment, and retaliation, and employees in any state can file a charge with that agency. Other federal agencies also have jurisdiction to decide employment disputes involving issues within their regulatory authority.
There are two parallel court systems in the USA: state and federal. Each state operates its own trial courts (circuit or superior courts). Decisions made by the trial courts are subject to appeal to intermediate appellate courts and, ultimately, each state’s Supreme Court. The federal system operates in a similar manner with trial courts (federal district courts), then intermediate appellate courts (circuit courts) and finally the United States Supreme Court. Generally, state courts have jurisdiction over claims involving state laws, state residents, and actions that take place in the state, whereas federal courts have jurisdiction over federal statutes (which includes many employment laws), and disputes over a certain threshold dollar amount involving citizens of different states (diversity jurisdiction).
Actions filed in court are subject to liberal discovery, which permits each side to obtain documents and question witnesses well in advance of the filing of a dispositive motion or trial. After the initial discovery period (which typically takes several months), the parties can file motions requesting that the presiding judge dismiss the case. If the case proceeds to trial, most will be tried before a jury, although in some limited circumstances – or by agreement – the parties can have the trial be decided by the judge (a bench trial). Thereafter, the decision of the judge or jury can be submitted to an appellate court for review.
Damages and Remedies
There are a wide variety of remedies that can be recovered by parties in litigation, particularly in employment cases. Most statutes specify the nature of relief that may be recovered for violation of its provisions. Injunctive relief, which involves asking a court to order the other party to do something (or refrain from doing something), is often requested, but less often ordered. Plaintiffs in most employment actions typically seek to recover the actual damages they have suffered as a result of the defendant’s conduct – referred to as back pay. Prospective damages, or front pay, may also be claimed in order to compensate for damages going forward in time that an employee expects to experience. Damages for emotional distress, punitive or exemplary damages to punish the defendant for extreme or outrageous conduct, and attorney’s fees are also typically sought. The available damages vary based on the law under which the claim is brought, and some may not be available in all instances.
In addition to wage and hour claims, certain forms of discrimination claims are often brought in a class action under Federal Rule of Civil Procedure 23. A class action allows a large number of employees citing similar alleged discriminatory practices to join together against an employer to make claims for monetary and equitable relief.
Potential damages vary depending on the statute under which the claim is brought, but may include such items as back pay, front pay, punitive or liquidated damages, and attorney's fees. The court can also order the employer to reinstate/rehire employees found to have been improperly discharged.
HR Employee Cannot Solicit Others to File a Lawsuit
In Gogel v Kia Motors Manufacturing of Georgia, Inc., the 11th Circuit Court of Appeals, sitting en banc, held the company lawfully discharged an HR manager who secretly solicited a fellow employee to file a lawsuit against the company. The 11th Circuit covers the State of Georgia.
The Court found that “when the means by which an employee expresses her opposition so interferes with the performance of her job duties that it renders her ineffective in the position for which she was employed, this oppositional conduct is not protected under Title VII’s opposition clause.”
The plaintiff worked in the company’s HR function and her duties included handling and investigating complaints of harassment and discrimination. She was also responsible for working with employees who complained in an effort to resolve their issues within the company structure, rather than having employees seek third-party resolution through Equal Employment Opportunity Commission (EEOC) or other government investigators.
The plaintiff was unhappy with the way in which the company responded to a specific complaint and the way it handled the investigation. She also felt that female employees were discriminated against overall. Instead of filing an internal complaint, plaintiff filed a charge of discrimination with the EEOC on her own behalf. Plaintiff also encouraged the employee involved in the investigation to which she took issue to likewise file a charge with the EEOC and even provided her with plaintiff’s own attorney’s contact information.
The 11th Circuit held that, because of plaintiff’s position and duties with the company, encouraging another employee to file an EEOC charge was not protected activity for the purposes of Title VII. Filing the charge on her own behalf was. The solicitation of a subordinate employee to file a charge against the company and giving her the contact information for an attorney was in direct conflict with her role and responsibilities as a member of HR, such that the conduct rendered her ineffective in her position as a matter of law.
It is important to note that the HR employee could have internally advocated on behalf of an employee who complained, and that employees outside of HR who are not involved in seeking to internalize employee complaints likely could engage in this same conduct and be protected.
11th Circuit Settles on Similarly Situated Definition
The 11th Circuit also recently clarified what “similarly situated” means for the purposes of discrimination lawsuits. In those cases, a plaintiff will often point to fellow employees who they believe were treated better than them because of some protected characteristic (race, gender, age, etc). Those other employees – the comparators – have to be similarly situated in order to make a valid legal comparison. In other words, the courts require a true “apples to apples” comparison for this purpose.
However, the 11th Circuit had struggled with the precise definition of similarly situated for many years. Previous cases used phrases such as “nearly identical,” the “same or similar,” or some combination of the two. In fact, the Court even noted, “As we’ve already confessed, we’ve made something of a hash of the 'similarly situated' issue, bouncing back and forth (and back and forth) between two standards – 'nearly identical' and 'same or similar.'” The Court resolved that issue in the case Lewis v City of Union City, Ga., sitting en banc. In that case, the Court held that a plaintiff seeking to prove discrimination at the summary judgment stage must show that the plaintiff and the alleged comparators are “similarly situated in all material respects.”
The Court went on to explain, that does not mean that the plaintiff and the comparators need to be “nearly identical.” Instead, the Court defined a “similarly situated” employee to be someone who (i) engaged in the same basic conduct (or misconduct); (ii) is subject to the same employment policy, guideline, or rule; (iii) reports to the same supervisor; and (iv) shares the same employment or disciplinary history. The Court clarified that comparators do not have to have precisely the same title and minor differences in job function will not disqualify a would-be comparator.
Applying this standard to the present case, the Court ruled that the two white male officers were not similarly situated “in all material respects” because they were placed on administrative leave pursuant to different personnel policies and for different medical conditions.
Sexual Harassment Plaintiff Must Prove Actions Were Severe or Pervasive
In another recent case, the 11th Circuit reiterated that occasional banter or sexual comments and innuendo are not enough to prove legally actionable sexual harassment. In Allen v Ambu-Stat, the Court upheld the district court’s granting of summary judgment to the employer on a former’s employee’s sexual harassment claim. It held that no reasonable jury could have found five crude or sexually charged comments made over a period of four months meet the “severe or pervasive” standard required to prove sexual harassment under Title VII.
The Court noted that “Title VII is not a civility code,” and therefore not all profane or sexual language or conduct will constitute illegal harassment. Instead, the work environment must be “objectively and subjectively offensive,” and one that a “reasonable person would find hostile or abusive.” The Court said it will look at the conduct’s frequency, its severity, whether it is physically threatening or humiliating, and whether it unreasonably interferes with the employee’s job performance.
Prior cases in the 11th Circuit had determined that four categories of conduct over 11 months and multiple attempts at physical conduct with the plaintiff as well as frequent telephone calls outside of work over a period of six or seven months did not constitute actionable harassment. Thus, the Court concluded that while the employee’s conduct was “unsavory and unpleasant,” the five “sporadic comments, spread over four months,” were not “sufficiently pervasive” to prove harassment. The Court noted that there is no mathematic formula for what would constitute pervasive conduct, but that even frequency alone would not be determinative, because the underlying conduct would also have to be “sexual in nature and subject the plaintiff to ‘disadvantageous terms or conditions of employment to which members of the other sex were not exposed.’”
Title VII Encompasses Sexual Orientation Discrimination
The United States Supreme Court’s landmark decision in June of 2020 that Title VII covers sexual orientation discrimination involved one case that originated in Georgia, Bostock v Clayton County, Georgia.
The facts found by the Supreme Court were that Bostock worked for Clayton County, Georgia, as a child welfare advocate. Under his leadership, the county won national awards for its work. During his ten-year career with Clayton County, Bostock received positive performance evaluations and numerous accolades. In 2013, Bostock began participating in a gay recreational softball league. Shortly thereafter, Bostock received criticism for his participation in the league and for his sexual orientation and identity generally. During a meeting in which Bostock’s supervisor was present, at least one individual openly made disparaging remarks about Bostock’s sexual orientation and his participation in the gay softball league. Around the same time, Clayton County informed Bostock that it would be conducting an internal audit of the program funds he managed. Shortly afterwards, Clayton County terminated Bostock allegedly for “conduct unbecoming of its employees.”
When he later sued for discrimination, the federal district court dismissed his lawsuit for failure to state a claim, finding that Bostock’s claim relied on an interpretation of Title VII as prohibiting discrimination on the basis of sexual orientation, contrary to a 1979 decision holding otherwise by the 11th Circuit. The 11th Circuit affirmed the lower court. The Supreme Court took the case (and two cases from other circuits) to answer the question whether Title VII of the Civil Rights Act of 1964, which prohibits against employment discrimination “because of... sex,” encompasses discrimination based on an individual’s sexual orientation. The Supreme Court held that it did.
The Supreme Court found that the plain language of Title VII unambiguously prohibits the discriminatory practice. Discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat employees differently because of their sex – the very practice Title VII prohibits in all manifestations.
The Court also found: “An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge.”