Labor and Employment Law
| Publication year | 2015 |
Labor and Employment Law
W. Melvin Haas III
William M. Clifton III
W. Jonathan Martin II
Alyssa K. Peters
[Page 91]
This Article surveys revisions to the Official Code of Georgia Annotated (O.C.G.A.) and decisions interpreting Georgia law from June 1, 2014 to May 31, 20151 that affect labor and employment relations for Georgia employers.2
[Page 92]
Effective April 16, 2015, individuals with certain serious medical conditions may legally use medical marijuana to treat those illnesses. Governor Nathan Deal signed "Haleigh's Hope Act" into law, making Georgia the thirty-sixth state (in addition to the District of Columbia) to legalize the use of medical marijuana in various forms.3 Georgia has limited the use of medical marijuana to "low THC oil" by people with certain medical conditions—for example, cancer, multiple sclerosis, Amyotrophic lateral sclerosis (ALS), Parkinson's, sickle cell disease, seizures, and glaucoma.4 While the law does not allow for the cultivation of marijuana or cannabis oil in Georgia, it does permit registered individuals to obtain it legally elsewhere, and possess and use it in Georgia without fear of prosecution from the state.5 From the new bill, the Georgia Department of Public Health must implement a registry for qualifying individuals and distributing authorization cards.6
The Georgia Legislature specifically included language in the bill that is pertinent to employers:
(f) Nothing in this article shall require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growing of marijuana in any form, or to affect the ability of an employer to have a written zero tolerance policy prohibiting the on-duty, and off-duty, use of marijuana, or prohibiting any employee from having a detectable amount of marijuana in such employee's system while at work.7
[Page 93]
This section emphasizes that the law does not require employers to change any of their policies regarding drug use in the workplace.8 This deference to employers includes the ability for employers to maintain a zero tolerance policy for their employees.9 Georgia's employer-friendly provision shows that the representatives understand that "[e]mployers have a duty to their employees, customers, and the general public, to provide a safe and drug-free workplace."10 For now, this provision also means that the law does not require employers to make reasonable accommodations under the Americans with Disabilities Act (ADA),11 or otherwise, for those in the registry.12 However, this scenario will likely be an area of case law that will be developed in the near future.
From the few cases decided on this issue around the United States,13 the prevailing argument seems to be that as long as marijuana is illegal under federal law, employers will not have to accommodate for it, and it can be considered a cause for termination. In Coats v. Dish Network,14 the Colorado Supreme Court decided that "lawful activities" only refer to those activities that are lawful under both state and federal law.15 The court in Coats found that since the Controlled Substances Act (CSA)16 prohibits the use of medical marijuana under federal law,17 and federal law supersedes any state law, then the use of marijuana, even for medical purposes, is not a lawful activity.18 Therefore, in Coats, the plaintiff was barred from bringing a wrongful discharge claim after his employer terminated him for failing a drug test.19
The United States Court of Appeals for the Ninth Circuit in James v. City of Costa Mesa20 addressed whether there can be "discrimination"
[Page 94]
against individuals who use medical marijuana.21 In this case, the municipality sought to shut down medical marijuana dispensaries, and the plaintiffs filed suit, claiming discrimination against the availability of public services.22 The court of appeals found that discrimination under the ADA does not apply to "an individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use."23 Further, the court held that the CSA still prohibits using medical marijuana in any form, and without any explicit or implicit changes to the CSA or ADA by Congress, medical marijuana does not fall within any exception under the ADA.24 While this case is not specifically within the employment law realm, it does forecast the possible link, or lack thereof, between medical marijuana and the ADA.
A. At-Will Employment
Under "at-will employment," an employer or employee may terminate the employee's job at any time with or without cause by either of them.25 While the status of at-will employment in other jurisdictions may be weakening,26 the presumption in Georgia remains that all employment is at will unless a statutory or contractual exception exists.27 "[T]his bar to wrongful discharge claims in the at will employment context 'is a fundamental statutory rule governing employer-employee relations in Georgia.'"28 Particularly, O.C.G.A. § 34-7-129 provides that "an indefinite hiring" is at-will employment.30 The definition of an indefinite hiring includes contractual provisions specifying "permanent employment, employment for life, [and] employ-
[Page 95]
ment until retirement."31 Further, a contract specifying an annual salary does not create a definite period of employment.32 However, if an employment contract does not specify a definite period of employment, any employment beyond the contractual period becomes employment at will that is subject to discharge without cause.33
Regardless of an employer's motives, the general rule in Georgia allows for the discharge of an at-will employee without creating "a cause of action for wrongful termination."34 Moreover, oral promises between an employer and employee will not modify the relationship between the two because absent a written contract, an employee's status remains at will.35
B. Whistleblower Act
Under the Georgia Whistleblower Act,36 "[n]o public employer shall retaliate against a public employee for disclosing a violation of or noncompliance with a law, rule, or regulation to either a supervisor or a government agency . . . ."37 To make out a prima facie case, the plaintiff must prove four elements: "(1) he was employed by a public employer; (2) he made a protected disclosure or objection; (3) he suffered an adverse employment action; and (4) there is some causal relationship between the protected activity and the adverse employment action."38
In Albers v. Georgia Board of Regents of the University System of Georgia,39 the court held that a protected whistleblowing activity only requires the plaintiff to have a reasonable belief that his objection or disclosure was in relation to a violation of the law, not that it was actually a violation of the law.40 Additionally, the court held that the
[Page 96]
statute of limitations only begins to run when an actual adverse employment action is taken against the employee.41 Christopher Albers was the chief of police at Georgia Perimeter College (GPC) until he was given written notice of his termination on November 19, 2009. Albers alleged retaliation, claiming that he was engaged in a protected activity when he refused a request from the administration to speak to the district attorney about dropping or reducing charges against a student involved in a theft. GPC Human Resources began their own investigation of the incident and, according to Albers, interfered with the criminal investigation. Subsequently, the relationship between the police department and the administration deteriorated.42
On June 25, 2009, human resources advised Albers to either resign or face termination. He initially agreed to resign. However, Albers changed his mind and refused to sign. On November 19, 2009, he was terminated for "unsatisfactory job performance."43 The Georgia Court of Appeals held that Albers had successfully presented a prima facie case for whistleblower retaliation and that there were questions of fact as to the reason for termination and the causation element.44 The court also pointed out that the claim was not barred from the one year statute of limitations because the limitations period only begins when there is "a definitive decision to take adverse action against" the employee, rather than a "threatened termination."45
Under O.C.G.A § 34-7-20,46 "[t]he employer is bound to exercise ordinary care in the selection of employees and not to retain them after knowledge of incompetency."47 The Georgia Court of Appeals held that this statute imposes a duty on the employer to "warn other employees of dangers incident to employment that 'the employer knows or ought to know but which are unknown to the employee.'"48 To sustain an action for negligent hiring, the plaintiff must prove the employer hired an employee whom "the employer knew or should have known posed a risk of harm to others where it [was] reasonably foreseeable from the
[Page 97]
employee's tendencies or propensities that the employee could cause the type of harm sustained by the plaintiff."49 Typically, "the determination of whether an employer used ordinary care in hiring an employee is a jury issue,"50 and is only a question of law "where the evidence is plain, palpable and undisputable."51
In Allen v. Zion Baptist Church of Braselton,52 the court of appeals reversed the grant of summary judgment.53 The court concluded that there were genuine issues of material fact on each element namely, negligent hiring, retention, and supervision.54 In this case, Zion Baptist Church allowed a volunteer to interact with the church youth group without first doing a complete investigation into his background and...
To continue reading
Request your trial