Alston & Bird LLP U.S.A. Georgia

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1 LABOR AND EMPLOYMENT DESK BOOK Alston & Bird LLP U.S.A. Georgia CONTACT INFORMATION Christopher D. Mangum Alston & Bird LLP Do you have a plant closing law in your jurisdiction and if so, what does it require? (For U.S. jurisdictions, please answer: Is there a Baby WARN Act in your state and if so, what does it require?) There is no Baby WARN Act in Georgia. There is no Georgia law requiring advance notice of layoffs or plant closings. 2. Are there special rules on releases/waivers in your jurisdiction? Georgia follows generally applicable common law principles regarding the enforceability of releases and waivers. With regard to contracts relating specifically to the terms and conditions of employment, arbitration clauses waiving an employee s right to sue in a judicial forum is unenforceable unless the arbitration clause itself, agreeing to submit disputes to arbitration, is initialed by all signatories to the agreement at the time of the execution of the agreement. O.C.G.A (10). 3. What are the equal employment opportunity/ non-discrimination categories in your jurisdiction (For U.S. jurisdictions, please answer: Are there protected categories beyond Title VII in your state?)

2 Georgia The only protected categories beyond those under Title VII created by Georgia law are age and handicap. Georgia s General Age Discrimination Law prohibits discrimination against any individual between the ages of 40 and 70 years, solely upon the ground of age, when the reasonable demands of the position do not require such an age distinction. The Georgia Equal Employment for the Handicapped Code protects individuals with a disability. A federal district court has indicated that it will not extend the meaning of disability under the Georgia Equal Employment for the Handicapped Code further than exists under federal law. Farrell v. Time Service, Inc., 178 F. Supp. 2d 1295 (N.D. Ga. 2001). The Georgia Fair Employment Practices Act prohibits discrimination against public employees because of a public employee s race, color, religion, national origin, sex, handicap, or age. Atlanta In 2000, the City of Atlanta passed an anti-discrimination ordinance aimed at private employers who employ ten or more employees. The ordinance prohibits employment discrimination based on the following protected categories: race, color, creed, religion, sex, domestic relationship status, parental status, familial status, sexual orientation, national origin, gender identity, age, and disability. 4. What are the minimum wage and overtime rules (and exemptions) in your jurisdiction? Georgia has a minimum wage law; however, there is no overtime or overtime wages laws. The Georgia minimum wage law, found at O.C.G.A , et seq. does not apply to any employer that is subject to the Fair Labor Standards Act. Id. at (c). Additionally, it does not apply to employers with sales of $40,000 or less per year; employers with five or fewer employees; employers of domestic employees; and farm owners, sharecroppers, or land renters. Id. at (b) The Georgia minimum wage law provides that all covered employees must be paid a minimum of $5.15 per hour. Id. at (a). Specific employees are not covered: employees whose compensation consists at least partially of gratuities; employees who are high school or college students; employees who are newspaper carriers; and employees who work for nonprofit, child-caring institutes or long-term care facilities serving children or mentally disabled adults, if the employee resides in the facility, receives free room and board, and is compensated on a cash basis at an annual rate of $10,000 or more. Id. at (b). Georgia does not provide for breaks or rest periods, with the following exceptions: reasonable unpaid break time for employees who need to provide breast milk for an infant child, so long as doing so would not unduly disrupt the operations of the employer, Id. at ; two hours of time off to vote, as chosen by the employer, as long as the employee provides reasonable

3 notice and does not have two hours outside of his or her regular shift to vote, Id. at ; and time off to serve on juries and participate in court proceedings, Id. at (a). Employers must not allow individuals employed in the cotton or woolen manufacturing establishments to work in excess of 10 hours per day or in excess of 60 hours per week. Id. at Is there employment-at-will, or some other rule, in your jurisdiction? What are the exceptions? Georgia recognizes the doctrine of employment at will. There are no public policy exceptions in Georgia. The only significant exception to the employment at will doctrine under Georgia law applies when there is a contract, express or implied, whereby the employer itself limits its ability to discharge an employee. The only other exceptions are those created by federal law, such as Title VII of the Civil Rights Act of What are the legal obligations upon terminating an employee in your jurisdiction? Georgia law generally provides that employers may make payments on dates chosen by the employer, as long as each month is divided into at least two pay periods, but there is no special provision for payment upon termination. O.C.G.A An at-will employee, though, can enforce an employment contract, even if it is an oral contract, for due compensation for work actually performed. Farrior v. H.J. Russell & Co., 45 F. Supp. 2d 1358 (N.D. Ga. 1999). Similarly, while Georgia has no law requiring vacation pay or other fringe benefits for terminated employees, provisions of an employee handbook may be considered part of an employee s contract and can therefore govern whether an employee is entitled to unused but accrued vacation pay or other fringe benefits upon termination. Shannon v. Huntley s Jiffy Stores, Inc., 174 Ga. App. 125, 329 S.E.2d 208, (1985). Every group policy for hospital, surgical, or major medical insurance must provide for a conversion and group continuation privilege for employees (and eligible dependents) whose coverage is terminated without regard to evidence of insurability, as long as the employee was covered under the contract for 6 months and the coverage was not terminated because of (1) nonpayment of premiums or non-contribution; (2) eligibility for Medicare; (3) the employee was terminated for cause; (4) any discontinued group coverage was immediately replaced by similar group coverage; or (5) the entire group contract was terminated (in which case the insurer must give 30 days notice to insureds of conversion rights). O.C.G.A Georgia does provide for a weekly benefit up to a statutory maximum for unemployment insurance. Id , 193. Whether an employee is entitled to that maximum depends on a formula: the total wages paid to the employee in the quarter of the base period in which the employee s earnings were highest divided by 25. Id. at The employee is entitled to the less of: 26 weeks of benefits or ¼ of the employee s wages in the base period. Id. Unemployment insurance is reduced by payments from a pension or retirement plan, as well

4 as by the amount of child support owed to the individual. Id. at , 198. Employees who are discharged or suspended for failing to obey orders, rules or instructions; for failure to perform job duties; or for violations of a drug-free workplace policy, are disqualified from receiving benefits. Id. at Are there any family and/or medical leave laws in your jurisdiction, and if so, what do they require? (For U.S. jurisdictions, please answer: Are there family and/or medical leave laws in your state beyond FMLA and if so, what do they require?) There are no family and/or medical leave laws in Georgia beyond the FMLA that apply to private employers. A public employer is required by law to grant an employee a paid leave of absence of up to 8 hours each year in two-hour increments for the purpose of donating blood. Employees donating blood platelets or granulocytes through the plasmapheresis process may take up to 16 hours paid leave per year for this purpose. A public employer must also grant a paid leave of absence of up to 30 days to any employee who donates a kidney. 8. Please list any miscellaneous, interesting or oddball laws in your jurisdiction, and state under what circumstances they pertain. O.C.G.A : A public employer is required by law to grant an employee a paid leave of absence of up to 8 hours each year in two-hour increments for the purpose of donating blood. Employees donating blood platelets or granulocytes through the plasmapheresis process may take up to 16 hours paid leave per year for this purpose. O.C.G.A : A public employer also must grant a paid leave of absence of up to 30 days to any employee who donates a kidney. Such leave may not be charged against the employee s sick or annual leave entitlement and must be counted as time worked for purposes of calculating retirement eligibility. O.C.G.A through : Employers are required to give their employees the benefit of a day of rest. According to the Act, [a]ny business or industry which operates on either of the two rest days (Saturday or Sunday) and employs those whose habitual day of worship has been chosen by the employer as a day of work shall make all reasonable accommodations to the religious, social, and physical needs of such employees so that those employees may enjoy the same benefits as employees in other occupations. The law exempts persons, nonprofit organizations or nonprofit corporations, if the activities are conducted solely for charitable or religious purposes, and also exempts any federal, state, county, municipal, or other local government department or agency in the conduct of its official duties. O.C.G.A through : A mother may breastfeed her baby in any location where the mother and baby are otherwise authorized to be. Georgia law also authorizes but does not specifically require all private employers with one or more employees and all public employers to provide accommodations to nursing mothers. Employers may provide reasonable unpaid break time each day to an employee who needs to express breast milk for

5 her infant child. An employer, however, is not required to provide break time for breast feeding if doing so would unduly disrupt the employer s operations. 9. Does your jurisdiction have a law requiring employers to give employees access to, or a copy of, their personnel records? Georgia has no law requiring an employer to grant employees access to their personnel files or medical files. Georgia law does require that employers keep accurate records of the name, address, and occupation of every employee; daily and weekly hours worked; and the wages paid during each period. 10. Does your jurisdiction outlaw or restrict drug tests, alcohol tests, genetic tests or any other kind of testing? Drug/Alcohol Testing There are several laws in Georgia that require or specifically permit drug testing for state government employees. See, e.g., O.C.G.A et seq. (drug testing for employees in high risk jobs); O.C.G.A et seq. (drug testing for state employment applicants). In addition, Georgia s Workers Compensation Premium Reduction Act provides a discount on workers compensation premiums to private employers who implement and maintain a certified drug-free workplace program in compliance with the Act. Neither the Georgia courts nor the Georgia legislature has created any laws directly prohibiting or regulating private employer drug testing in Georgia. However, drug testing by private employers may give rise to a claim of invasion of privacy. While there are no reported Georgia cases on this issue, there is case law from other jurisdictions where courts have found that a drug test unreasonably invaded an employee s right to privacy. Polygraph Testing The Georgia Polygraph Examiners Act provided extensive regulation of polygraph examinations, but contained no limitations on employer use. The Act, however, was repealed in Nevertheless, O.C.G.A (a) provides for recovery when a polygraph test is administered in a negligent manner; the cause of action is against the polygraph examiner. Genetic Testing Neither the courts nor the legislature in Georgia has addressed the legality of genetic testing by employers under Georgia law. 11. Does your jurisdiction have any special rules on the payment of sales commissions? Georgia law is silent on the payment of commissioned employees; this silence makes it appear that such employees would have to be paid in the same manner as hourly and salaried employees since there is no exception listed (that is, employers may make payments on dates

6 chosen by the employer, as long as each month is divided into at least two pay periods). O.C.G.A What are the basic rules on enforcing non-competes and related agreements in your jurisdiction? Restrictive covenants and covenants not to compete are enforceable in Georgia when they are reasonable as determined by analyzing the restrictions in terms of time, territorial effect, and the business interest the employer sought to protect. Watson v. Waffle House, Inc., 253 Ga 671, 324 S.E.2d 175 (1985). Covenants not to compete receive strict scrutiny, as compared with sale of business (lowest level) and partnership (middle level). See e.g., Smith Adock & Co. v. Rosenbohm, 238 Ga. App. 281, 518 S.E.2d 708 (1999); Russell Daniel Irrigation Co. v. Coram, 237 Ga. App. 758, 516 S.E.2d 804 (1999); Chiachimansour v. Pets Are People Too, No. 2, Inc., 226 Ga. App. 69, 485 S.E.2d 248 (1997). If any portion of a restrictive covenant is invalid, the court will not enforce any of it. Sunstates Refrigerated Servs., Inc. v Griffin, 215 Ga. App. 61, 449 S.E.2d 858 (1994). However, the striking of overbroad covenants will not invalidate specific, unrelated provisions of an employment contract relating to such things as the return of documents or non-interference with contractual relations. Hilb, Rogal & Hamilton, Co of Atlanta, Inc. v. Holley, 284 Ga. App. 591, 644 S.E.2d 862 (2007). The reasonableness of the restrictions depends on the circumstances. Generally speaking, the business interest test requires that the covenant be narrowly tailored to protect a particular interest of the employer. A restriction cannot simply prohibit an employee from working in any capacity for a competitor, Avion Systems, Inc. v. Thompson, 286 Ga. App. 847, 650 S.E.2d 349 (2007); from contacting any customers, including those with whom the employee did not work, Johnstone v. Tom s Amusement Co., 228 Ga. App. 296, 491 S.E.2d 394 (1997); or from accepting as customers those customers of the employer that wish to transfer business without solicitation, American Gen. Life & Acc. Ins. Co. v. Fisher, 208 Ga. App. 282, 430 S.E.2d 166 (1993). Noncompetition agreements without time and geographic limitations will not be enforced; and Georgia does not blue-pencil such agreements. William N. Robbins, P.C. v. Burns, 227 Ga. App. 262, 488 S.E.2d 760 (1997). Longer restrictions have been upheld where the covenant is limited in scope, such as limiting contact only with customers of the former employer. Smith v. HBT, Inc., 213 Ga App. 560, 445 S.E.2d 315 (1994). Territorial restrictions are generally upheld when they relate to the area in which the employee worked for the employer. Dominy v. Naitonal Emergency Servs., Inc., 215 Ga. App. 537, 451 S.E.2d 472 (1994).