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Which issues would you most highlight to someone new to your state?
In 2011 Georgia completely overhauled its law on restrictive covenants in employment contracts. The Georgia Restrictive Covenants Act applies to covenants entered into on or after May 11 2011. Significant questions remain regarding the act’s application and enforcement—including the nature of a court’s “blue pencil” powers. As cases arise under the new legislation and parties litigate recently executed restrictive covenants, employers should expect further clarity regarding what covenants will be enforced and how.
As in other jurisdictions, in recent years the Georgia Department of Labor and the plaintiffs’ bar have paid increasing attention to worker classification issues.
Georgia law also contains significant protections for individuals who own and are licensed to carry firearms.
What do you consider unique to those doing business in your state?
Georgia is a right-to-work state with a low rate of union membership (<5%) and fewer state laws governing the employment relationship than employers may find elsewhere. Employers will generally need to ensure compliance with federal laws governing employment and thus have more freedom when making decisions that affect their workforce.
Is there any general advice you would give in the labor/employment area?
In comparison to many other states, Georgia has few specific employment laws and regulations. Most employment issues, such as retaliation, discrimination, and wage and hour issues, are governed only by federal law. Also, employers should be cognizant of the differences between Atlanta’s dense, diverse, and cosmopolitan character—including its expansive suburban perimeter—and most other areas of the state, which tend to be less densely populated, more conservative, and more rural.
What are the emerging trends in employment law in your state, including the interplay with other areas of law, such as firearms legislation, legalization of marijuana and privacy?
Georgia remains a staunchly at-will, right-to-work jurisdiction.
In recent years, Georgia’s General Assembly has enacted legislation to broaden individuals’ rights to carry firearms and to strengthen employment rights for veterans and national guardsmen. In 2014 the General Assembly legalized the possession and use of cannabis oil for a limited range of serious medical conditions (see O.C.G.A. § 16-12-191). In 2015 Governor Nathan Deal issued an executive order to “ban the box” (i.e., limit the consideration of an employee’s conviction or arrest history) in public sector hiring; however, at the moment, there is little evidence that this approach will move into the private sector as a legal obligation. In 2016 the General Assembly also enacted legislation clarifying that a franchisor is not the employer of its franchisees or the franchisees’ employees.
Like some other Southern states, Georgia is experiencing increasing divergence between its metropolitan centers—Atlanta, in particular—and the state’s more rural, conservative areas, which could in future lead to increased activity at the local level on issues that are unpopular or unaddressed at state level. However, by statute, local entities in Georgia—such as counties and municipal corporations—may not enact wage requirements that are different from those required under state or federal law.
Proposals for reform
Are there any noteworthy proposals for reform in your state?
In the 2015-2016 legislative session, members of Georgia’s General Assembly proposed measures to:
- provide protection for pregnant workers;
- create paid sick leave requirements;
- restrict pre-employment inquiries about arrests and convictions;
- limit the use of credit checks in employment decisions; and
- limit employer access to social media accounts.
Members also proposed increasing Georgia’s minimum wage rate from $5.15 per hour to $15.00 per hour—a push that gained little traction. None of the proposals described above made it out of committee. However, it is expected that some or all of the proposed measures will be reintroduced in future legislative sessions.
In addition, in 2016 Governor Nathan Deal vetoed a controversial Religious Liberty Bill (Ga. H.B. 757 (2015-16)), after it was passed by the General Assembly.
What state-specific laws govern the employment relationship?
Most of Georgia’s employment laws are contained in Title 34 (Labor and Industrial Relations) of the Official Code of Georgia Annotated, which includes:
- minimum wage laws (Chapter 4);
- sex discrimination in employment laws (Chapter 5);
- employment security laws (Chapter 8); and
- workers’ compensation laws (Chapter 9).
Georgia’s statutory contract rules also affect many areas of the employment relationship and can be found in Title 13 (Contracts) of the code. Further, Georgia’s Restrictive Covenants Act can be found in Chapter 4 of Title 13 (courts will still analyze restrictive covenants executed before May 2011 under the standard used before the new legislation).
State public sector employment is also addressed in Title 45 (Public Officers and Employees) of the code.
Who do these cover, including categories of workers?
Employers should consult each statute to determine whether their contractors, employees, interns, or volunteers are covered. Even within Title 34, there is no uniform definition for “employer” or “employee”. Some statutes, such as Georgia’s Age Discrimination Statute, apply to all employees (see O.C.G.A. § 34-1-2). In contrast, the state’s Disability Discrimination Statute applies only to employers with 15 or more employees. Further, Georgia’s Minimum Wage Law does not apply to any employee who is covered by the federal Fair Labor Standards Act and contains multiple exceptions based on the type of employee or size of the employer.
Are there state-specific rules regarding employee/contractor misclassification?
Georgia courts ordinarily apply the “control” test to determine whether an individual is an employee or independent contractor, and multiple cases have cited and applied the factors contained in the Restatement of Agency 2d § 220(2) (see Murphy v. Blue Bird Body Co., 207 Ga. App. 853, 854-55, 429 S.E.2d 530, 532 (1993)). These factors include:
- the extent of control which, by agreement, the master may exercise over the details of the work;
- whether the employee is engaged in a distinct occupation or business;
- the kind of occupation, with reference to whether the work is usually carried out in the locality under the direction of the employer or by a specialist without supervision;
- the skill required in the particular occupation;
- whether the employer or workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
- the length of time for which the person is employed;
- the method of payment, whether by time or by the job;
- whether the work is a part of the employer’s regular business;
- whether the parties believe that they are creating a master-servant relationship; and
- whether the principal is or is not in business (restatement (Second) of Agency § 220 (1958)).
Georgia’s workers’ compensation statutes and employment security rules also contain guidance for classifying employees and independent contractors for their respective purposes.
Must an employment contract be in writing?
No, an employment contract need not be in writing. However, contracts for a definite period exceeding one year may be subject to the Statute of Frauds, which requires a written agreement.
Are any terms implied into employment contracts?
All employers have the duty to exercise ordinary care to provide safe working conditions and to do those things that are reasonably necessary to protect their employees (see O.C.G.A. § 34-2-10). In Georgia, parties to a contract also have an implied duty of good faith and fair dealing.
Are mandatory arbitration agreements enforceable?
With limited exceptions, mandatory arbitration agreements are enforceable under Georgia law (see O.C.G.A. § 9-9-2). However, if the arbitration agreement is a clause contained in the employment agreement, the parties must initial that clause when executing the agreement. Nevertheless, this request has been held to be pre-empted by the Federal Arbitration Act and is inapplicable to arbitration agreements governed by that act.
How can employers make changes to existing employment agreements?
Employers can modify employment agreements in compliance with the normal rules of contract law (e.g., with the employee’s agreement or through a method described in the agreement itself). However, when changing the terms in a written employment contract that is not terminable at will by the employer, there must be new consideration given in exchange for the modification.
What are the requirements relating to advertising open positions?
An employer may not distribute an advertisement or notice for an open position that:
“indicates any preference, limitation, specification, or discrimination based on disability, except that such a notice or advertisement may indicate a limitation or specification based upon disability if the [criterion] is job related.” (O.C.G.A. § 34-6A-4.)
Georgia law contains no other express provisions regarding advertising open positions in private employment.
What can employers do with regard to background checks and inquiries?
(a) Criminal records and arrests
Private employers may request and obtain criminal history records for applicants or employees. If an employer takes an adverse employment action based on an applicant’s or employee’s criminal history, it must provide the applicant or employee with the information specified in the Official Code of Georgia Annotated § 35-3-34, which includes information about the records that were obtained, the records’ contents, and the effect(s) that those records had on the employment decision.
With certain exceptions, an employer may not obtain records for arrests, charges, or sentences for crimes addressed under Georgia’s First Offenders Act. When an employer knows of a discharge under the act, it may not base employment decisions on the discharge itself, but there is a basis for arguing that the employer may consider the facts of the underlying incident. Currently, only public employers are restricted as to when they may use criminal records in the hiring process. Georgia tort law creates a rebuttable presumption of due care in hiring and retaining an employee who has received a Program and Treatment Completion Certificate from the Georgia Department of Corrections or who has received a pardon from the State Board of Pardons and Paroles.
(b) Medical history
Although Georgia law prohibits employment discrimination based on a disability, those statutes do not prevent an employer from seeking job-related medical information (see O.C.G.A. § 34-6A-3(a)).
(c) Drug screening
Georgia law does not directly address whether, and under what circumstances, an employer may conduct drug testing on an employee or applicant in the private sector. Nonetheless, there is strong evidence that it is permitted. Notably, Georgia workers’ compensation law allows employers to set up a Drug-Free Workplace Program to receive discounts on premium payments and provides a set of notice requirements about company policies and the anticipated testing (see O.C.G.A. § 34-9-414). Regardless of whether an employer participates in the workers’ compensation program, to insulate against potential state law tort claims related to invasion of privacy, it is advisable that all employers inform their employees in writing about company substance abuse policies and the potential for drug testing before implementing any testing. The state public sector also has multiple laws requiring or allowing state employers to drug test certain types of employee (see Title 45).
(d) Credit checks
Georgia law contains no express provisions regarding use of credit checks by private employers for employment purposes.
(e) Immigration status
Private employers with more than 10 employees must register and use an electronic verification of work authorization program operated by the U.S. Department of Homeland Security, to verify the work authorization status of newly hired employees. Unless the employer is exempt from this e-verify requirement, the employer must submit an affidavit of compliance with the state’s e-verify requirements before a county or municipal corporation will issue the employer a business license, occupational tax certificate, or other document allowing it to conduct business in that jurisdiction.
(f) Social media
Georgia law contains no express provisions regarding use of social media by private employers for employment purposes.
Georgia law permits an employer to create and use an employment policy preferring veterans (who served on active duty in the U.S. armed forces and received an honorable discharge) over other qualified applicants in hiring, promoting, and retaining employees. However, that policy must be in writing and applied uniformly.
Georgia also has a New Hire Reporting Law, requiring employers to provide certain information to the Department of Human Services within 10 days after an employee is hired, re-hired, or recalled to work (see O.C.G.A. § 19-11-9.2).
Wage and hour
What are the main sources of wage and hour laws in your state?
Most of Georgia’s wage and hour laws are found in Chapters 4 and 7 of Title 34 of the Official Code of Georgia Annotated.
The state’s garnishment law can be found in Chapter 4 of Title 18.
What is the minimum hourly wage?
Georgia’s state minimum wage is $5.15 per hour for each hour worked. There are significant exceptions to the state minimum wage requirements. For example, the law does not apply to:
- employers employing five or fewer employees;
- employers with $40,000 or less in annual sales;
- an employee who is a high school or college student; and
- certain agricultural employees.
Further, employees covered by the Fair Labor Standards Act’s minimum wage requirements are excluded from Georgia’s Minimum Wage Statute—although this makes little practical difference because the federal rate is higher.
What are the rules applicable to final pay and deductions from wages?
Georgia law has no express provisions related to payment of final wages or wage deductions.
However, for most employees performing manual, mechanical, or clerical work, an employer must divide each month into at least two equal pay periods; in other words, each month, the employee must receive at least two paychecks (see O.C.G.A. § 34-7-2).
Hours and overtime
What are the requirements for meal and rest breaks?
Georgia law contains no express requirements for meal or rest breaks, although there are special regulatory requirements for the entertainment industry that include maximum hours and break requirements. Georgia law permits, but does not require, employers to accommodate employees who are breastfeeding mothers by providing a private location and reasonable unpaid break time in which to express breast milk. This break time should, if possible, run concurrently with break time already provided to the employee.
What are the maximum hour rules?
Georgia law has no overtime compensation provision and, for most adult workers, no maximum hour law. With certain exceptions, individuals employed in cotton and woolen manufacturing facilities may not work over 10 hours per day or 60 hours in a week (see O.C.G.A. § 34-3-1). Chapter 2 of Title 39 of the Official Code of Georgia Annotated also places restrictions on the number of hours and the times of day that minors under 16 can work.
How should overtime be calculated?
Georgia law has no overtime compensation provision for private employers.
What exemptions are there from overtime?
Georgia law has no overtime provision for private employers.
What payroll and payment records must be maintained?
Employers must maintain payroll information, including:
- each employee’s name, address, and occupation;
- the employee’s daily and weekly hours worked; and
- the employee’s wages paid per pay period—for one year following the date of the record.
However, because the general limitations period for actions to recover wages is two years, it is recommended that employers maintain payroll records for at least that period.
Georgia law requires that employers maintain income tax information, including records of all remuneration paid to employees, for at least four years after the tax is due or after the tax is paid, whichever date is later.
Employers must also maintain unemployment compensation records for at least four years after remuneration is paid or due. Further, Georgia law contains some non-payroll record retention obligations related to discrimination claims (O.C.G.A. § 34-9-12) and child labor restrictions (see O.C.G.A. Title 39, Chapter 2).
Discrimination, harassment and family leave
What is the state law in relation to:
Georgia law prohibits, by statute, discrimination based on age for employees between 40 and 70 years old. That statute (O.C.G.A. § 34-1-2) allows only criminal sanctions for violation, which can include fines between $100 and $250, but not a civil cause of action. In addition, Atlanta has enacted an ordinance prohibiting discrimination in employment on the basis of age (see Atlanta Code of Ordinances, § 94-112). Significantly, the Atlanta ordinance defines an employment practice as impermissible if the employee’s protected status was a motivating factor in the relevant practice, even if other factors also motivated the decision (see § 94-112(g)).
Georgia law contains no express statutory provisions prohibiting race discrimination in private employment. Atlanta enacted an ordinance prohibiting discrimination in employment on the basis of race or color (see Atlanta Code of Ordinances, § 94-112). Significantly, the Atlanta ordinance defines an employment practice as impermissible if the employee’s protected status was a motivating factor in the relevant practice, even if other factors also motivated the decision (see § 94-112(g)).
Georgia law prohibits, by statute, discrimination in employment based on disability. The relevant legislation (O.C.G.A. Title 34, Chapter 6A) is substantively similar, although not identical, to the protections offered by the Americans with Disabilities Act. In addition, Atlanta enacted an ordinance prohibiting discrimination in employment on the basis of an employee’s disability (see Atlanta Code of Ordinances, § 94-112). Significantly, the Atlanta ordinance defines an employment practice as impermissible if the employee’s protected status was a motivating factor in the relevant practice, even if other factors also motivated the decision (see § 94-112(g)).
Georgia law contains equal pay protections that prohibit wage discrimination on the basis of sex (O.C.G.A. § 34-5-3). Further, an employer may not retaliate against an employee for complaining about a violation of the equal pay protections or for instituting or participating in an action related to an alleged violation. In addition, Atlanta has enacted an ordinance prohibiting discrimination in employment on the basis of “gender identity”—defined, in part, as:
“self-perception as male or female, and shall include a person's identity, expression, or physical characteristics, whether or not traditionally associated with one's biological sex or one's sex at birth” (Atlanta Code of Ordinances, §§ 94-112; 94-10).
Significantly, the Atlanta ordinance defines an employment practice as impermissible if the employee’s protected status was a motivating factor in the relevant practice, even if other factors also motivated the decision (see § 94-112(g)).
(e) Sexual orientation?
Georgia law contains no express statutory provisions prohibiting sexual orientation discrimination in private employment. Atlanta enacted an ordinance prohibiting discrimination in employment on the basis of an employee’s sexual orientation (see Atlanta Code of Ordinances, § 94-112). Significantly, the Atlanta ordinance defines an employment practice as impermissible if the employee’s protected status was a motivating factor in the relevant practice, even if other factors also motivated the decision (see § 94-112(g)).
Georgia law contains no express statutory provisions prohibiting religious discrimination in private employment. However, it does require that employers who operate their businesses on the weekends offer reasonable accommodations to employees whose day of religious worship falls on one of the weekend days. In addition, Atlanta enacted an ordinance prohibiting discrimination in employment on the basis of an employee’s creed or religion (see Atlanta Code of Ordinances, § 94-112). Significantly, the Atlanta ordinance defines an employment practice as impermissible if the employee’s protected status was a motivating factor in the relevant practice, even if other factors also motivated the decision (see § 94-112(g)).
Georgia law contains no express provisions prohibiting medical discrimination.
An employer may not discipline, terminate, or otherwise penalize an employee because the employee was absent to attend a judicial proceeding in response to a court order or process (O.C.G.A. § 34-1-3). Further, Atlanta enacted an ordinance prohibiting discrimination in employment on the basis of various protected characteristics, including domestic relationship status, parental status, familial status, and national origin (see Atlanta Code of Ordinances, § 94-112). Significantly, the Atlanta ordinance defines an employment practice as impermissible if the employee’s protected status was a motivating factor in the relevant practice, even if other factors also motivated the decision (see § 94-112(g)).
What is the state law in relation to harassment?
Georgia recognizes workplace sexual harassment as tortious conduct under state tort law. Generally, employee sexual harassment of a co-worker will not create liability for the employer, unless:
- the employer ratified the conduct and the conduct was committed in furtherance of the employer’s business (and within the scope of employment); or
- the employer engaged in some other form of negligence that permitted the harassment to occur or continue (e.g., by ignoring the situation after learning about the harassment).
Family and medical leave
What is the state law in relation to family and medical leave?
Georgia law contains no express provisions related to family and medical leave.
Privacy in the workplace
Privacy and monitoring
What are employees’ rights with regard to privacy and monitoring?
Employers may not engage in activity that constitutes a state law tort—for example, tortious invasion of privacy, infliction of emotional distress, or defamation. Importantly, an employer may reduce the likelihood of a successful tort claim by an employee by providing its employees with prior notice regarding the monitoring at issue.
Are there state rules protecting social media passwords in the employment context and/or on employer monitoring of employee social media accounts?
Georgia law contains no express provisions protecting social media passwords in the context of the employment relationship or limiting an employer’s use of information from social media accounts in making employment decisions.
Bring your own device
What is the latest position in relation to bring your own device?
Georgia law has yet to take a position on this issue.
To what extent can employers regulate off-duty conduct?
Georgia law contains no express provisions prohibiting discrimination based on an employee’s lawful off-duty conduct, often called “lifestyle discrimination”.
Are there state rules protecting gun rights in the employment context?
An employer may not maintain a policy or rule that allows the employer or its agents to search a locked, privately owned vehicle of an employee or invited guest that is in the employer's parking lot. This statute addresses an individual's ability to keep a firearm in his or her privately owned vehicle, if locked out of sight and if the vehicle is parked in an area that is not restricted parking owned or controlled solely by the employer (see O.C.G.A. § 16-11-135(a)).
Trade secrets and restrictive covenants
Who owns IP rights created by employees during the course of their employment?
Although Georgia case law suggests that an employer gains an irrevocable license to use intellectual property developed by an employee using the employer’s resources, it is advisable that, for certain industries or types of employee, employers include IP assignment language in handbooks and employment agreements.
What types of restrictive covenants are recognized and enforceable?
Georgia’s law on restrictive covenants is divided into pre-May 11 2011 covenants and those entered into on or after May 11 2011.
Pre-2011 covenants receive rigorous scrutiny under Georgia’s common law approach, which overwhelmingly disfavors restrictive covenants in employment. Few covenants will survive this analysis, and courts will not blue-pencil these agreements.
For covenants entered into on or after May 11 2011, the Georgia Restrictive Covenants Act (O.C.G.A. Title 13, Chapter 8) applies. A court will enforce one or more restrictive covenants between an employer and an employee that protect a legitimate business interest for the employer, including:
- valuable confidential information;
- customer, patient, vendor, or client information (including prospective customers and clients);
- goodwill associated with the employer’s business; or
- special training received by the employee (see § 13-8-51).
Each covenant must be reasonable as to time, geographic area, and scope of activities prohibited, and the Restrictive Covenants Act includes multiple rebuttable presumptions regarding which restrictions are reasonable. Further, a court can modify or blue-pencil covenants whose restrictions are unreasonable as drafted, to make them reasonable and enforceable (see § 13-8-54). However, questions remain regarding whether a judge can simply delete language or substitute or add language to a covenant—in other words, “whether the blue pencil can write”.
Are there any special rules on non-competes for particular classes of employee?
Yes. For non-compete covenants entered into on or after May 11 2012, in contrast to covenants not to solicit customers or not to disclose confidential information, non-compete covenants are enforceable only against an employee who:
- customarily and regularly solicits customers or prospective customers for the employer;
- customarily and regularly engages in making sales or obtaining orders or contracts for products or services to be performed by others;
- performs the following duties:
- has a primary duty of managing the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof;
- customarily and regularly directs the work of two or more other employees; and
- has the authority to hire or fire other employees or has particular weight given to suggestions and recommendations as to the hiring, firing, advancement, promotion, or any other change of status of other employees; or
- performs the duties of a key employee or professional (O.C.G.A. § 13-8-53).
The term “key employee” is roughly defined as an employee who—because of the employer’s investment in him or her—has:
- a reputation as a representative or spokesperson for the company;
- a substantial relationship with the company’s customers or other business relationships;
- an intimate knowledge of the company’s business strategies and planning; or
- specialized skills, training, or customer information (see § 13-8-51).
Right to work
Is the state a “right to work” state?
Yes. Further, with some exceptions, employees must sign an annual written authorization for the deduction of union dues and have the option to revoke a union dues authorization at any time if they decide to leave the union.
Unions and layoffs
Is the state (or a particular area) known to be heavily unionized?
No. In fact, based on information from the U.S. Bureau of Labor Statistics, in 2015 Georgia was one of only five states with union membership rates below 5%— Georgia’s rate was 4.0%.
What rules apply to layoffs? Are there particular rules for plant closures/mass layoffs?
When an employer separates 25 or more employees on the same day, Georgia law contains notice requirements to the state government (see O.C.G.A. §§ 34-8-33; -34).
Discipline and termination
Are there state-specific laws on the procedures employers must follow with regard to discipline and grievance procedures?
At-will or notice
At-will status and/or notice period?
Georgia is an at-will employment state. In the absence of a contract specifying a particular duration for employment or a notice period for termination, Georgia law presumes an at-will employment relationship, terminable without any required notice.
What restrictions apply to the above?
For private sector employment, Georgia courts have repeatedly rejected the creation of non-statutory exceptions to the at-will doctrine (e.g., Balmer v. Elan Corp., 261 Ga. App. 543, 544-45, 583 S.E.2d 131 (2003), judgment aff'd, 278 Ga. 227, 599 S.E.2d 158 (2004)). Thus, for example, an employer may not terminate an employee because of:
- disability, unless otherwise permitted by relevant statutes;
- absence due to attendance at a judicial proceeding under court order or a form of process; or
- activities related to Georgia’s gender-based equal pay protections.
The Georgia General Assembly codified these exceptions to the at-will doctrine in their respective statutes.
Are there state-specific rules on when final paychecks are due after termination?
Georgia law contains no express provisions governing when an employer must pay an employee’s final wages; however, it is advisable to do so by the next regular payday after the separation.