Labor and Employment Law - W. Melvin Haas, Iii, William M. Clifton, Iii, W. Jonathan Martin, Ii, and Glen R. Fagan

• Publication year: 2008

Labor and Employment Lawby W. Melvin Haas, III^*

William M. Clifton, III^**

W. Jonathan Martin, II^*** and Glen R. Fagan^****

I. Introduction

This Article surveys recent developments in state statutory and common law that affect labor and employment relations of Georgia employers. Accordingly, this Article surveys published decisions from the Georgia Supreme court and the Georgia court of Appeals from June 1, 2007 to May 31, 2008. This Article also highlights specific revisions to the official code of Georgia Annotated (o.c.G.A.).¹

II. Recent Legislation

A. Concealed Weapons on Company Property

During the survey period, Georgia Governor Sonny Perdue signed into law House Bill 89,² which permits employees who lawfully possess concealed weapons to store these weapons in locked vehicles while on company property.³ Subject to several exceptions, O.C.G.A. Sec. 16-11135⁴ prohibits employers from enforcing policies that forbid employees from storing concealed weapons in the employee's vehicles on company property.⁵ Additionally, the law limits the ability of employers to search privately owned vehicles for concealed weapons.⁶

Despite the increased safety concerns that accompany the storage of concealed weapons on company property, employers do not assume greater obligations under the law.⁷ The law states that "[n]o employer . . . shall be held liable in any criminal or civil action for damages resulting from or arising out of an occurrence involving the transportation, storage, possession, or use of a firearm" unless the employer commits a criminal act with a concealed weapon while on company property or knows that another will do so.⁸

Even though the law appears broad, it has a number of exceptions that enable employers to prohibit employees and invited guests from storing concealed weapons in locked vehicles.⁹ Under what is perhaps the largest exception, employers may prohibit concealed weapons in vehicles parked on properties that they own, lease, or otherwise legally control.¹⁰ Even when employers do not legally control the property used for parking, other exceptions enable them to prohibit individuals from storing concealed weapons in their vehicles.¹¹ For example, employers may prohibit employees who have a completed or pending disciplinary action from bringing concealed weapons onto company property.¹²

In addition to the above exceptions, the law also has numerous exceptions that enable employers to search locked vehicles for concealed weapons.¹³ For example, employers may search vehicles that they own or lease.¹⁴ Employers may also search privately owned vehicles when "a reasonable person would believe that . . . [it] is necessary to prevent an immediate threat to human health, life, or safety."¹⁵ Moreover, employers may search vehicles parked in areas not open to the general public, such as by gates or security officers, provided that all vehicles in the area are searched uniformly.¹⁶

III. Wrongful Termination

A. Employment-at-Will

1. Overview. Although the employment-at-will doctrine is gradually eroding in other jurisdictions,¹⁷ it is alive and well in Georgia.¹⁸ Section 34-7-1 of the O.C.G.A.¹⁹ provides that employment contracts in Georgia are at-will unless the parties implicitly or explicitly contract otherwise.²⁰ Generally, this means that in the absence of a specified length of employment, the relationship is employment-at-will.²¹ Contracts specifying "permanent employment, employment for life, or employment until retirement" are indefinite and thus are employment-at-will contracts.²²

Georgia's employment-at-will doctrine has two notable characteristics. First, the employee or employer may terminate the employment relationship at any time, with or without cause.²³ Second, and a corollary of the first characteristic, the employee may not successfully maintain a wrongful termination claim upon the termination of an employment-at-will contract.²⁴

During the survey period, the Georgia Court of Appeals decision in Fink v. Dodd²⁵ demonstrated that an employee-at-will cannot successfully maintain a wrongful termination claim.²⁶ In Fink the defendant terminated the plaintiff after employing him for eleven months. The employee subsequently brought suit against the employer, alleging wrongful termination.²⁷ When the defendant failed to timely answer the complaint, the trial court entered a default judgment against the defendant. The defendant appealed, claiming that the plaintifffailed to state a claim. Specifically, the defendant asserted that the facts in the complaint failed to establish a claim of wrongful termination.²⁸

The court of appeals agreed with the defendant, stating, "Nowhere in the complaint does [the plaintiff] allege facts showing an enforceable contract of employment or assert facts from which such a contract reasonably may be inferred."²⁹ Due to the absence of an enforceable employment contract, the court deemed the plaintiff an at-will employ-ee.³⁰ Because an at-will employee may be terminated at any time, he or she cannot reasonably expect continued employment.³¹ Therefore, the court held that the plaintiff failed to successfully state a claim of wrongful termination and reversed the trial court's judgment.³²

2. Exceptions to Employment-at-Will. The statute creating the employment-at-will doctrine contains the most significant exception to the doctrine: unless the parties implicitly or explicitly contract other-wise.³³ In Powell v. Wheeler County,³⁴ the Georgia Court of Appeals reviewed a case in which the employee claimed he was not an at-will employee.³⁵ In Powell the plaintiff entered into a four-year employment agreement with the board of tax assessors. In compliance with O.C.G.A. Sec. 48-5-298(a),³⁶ the employment agreement was forwarded to the county commission for approval, but the commissioners voted against approval. Despite the contract not being approved, the plaintiff continued to work as a tax appraiser and to be paid by the county until he was terminated two years later. Following his termination, the plaintiff brought suit against the county and the board of tax assessors for breach of contract. The trial court granted the defendants' motion for summary judgment. The plaintiff appealed, claiming that the payments from the county ratified the employment agreement.³⁷

The court of appeals emphasized that a county commission's "'power to approve the whole includes the power to approve any part thereof less than the whole.'"³⁸ Because the county commission voted against approving the employment contract, thereby failing to ratify it, the court held that the payments from the county only demonstrated that the plaintiff was an at-will employee.³⁹ Accordingly, the court affirmed the trial court's grant of summary judgment.⁴⁰

In Avion Systems, Inc. v. Thompson,⁴¹ the court of appeals reviewed a case in which the employer claimed the employee was bound by the specific terms of an employment agreement rather than the general language of at-will employment.⁴² In Avion Systems, Inc., the employment agreement stated that the defendant was an at-will employee, but the agreement also stated that she would provide services for at least twelve months. Before the expiration of the specified period, the employee terminated her employment. The employer subsequently brought suit against the former employee for breach of contract. The trial court dismissed the action for failure to state a claim, and the former employer appealed.⁴³

The court of appeals agreed with the employer, stating, "Where, as here, the parties have explicitly set forth restrictions on the time and manner in which an employee may terminate employment, these specific terms must prevail over any conflicting general language of employment at-will."⁴⁴ Because the court considered the unilateral restriction on the ability to terminate employment during the first twelve months to be reasonable, the court held that the employee could terminate her employment only after the expiration of the specified period.⁴⁵ Accordingly, the court reversed the trial court's dismissal of the action.⁴⁶

B. Breach of Employment Contracts (Other than At-Will Contracts)

1. Formulation of Employment Contracts. When forming a valid employment agreement, the basic rules of contract law apply.⁴⁷ Therefore, there must be an offer, acceptance, and valuable consider-ation.⁴⁸ Additionally, an employment contract must contain a designation of the employee's place of employment, the period of employment (if other than at-will), the nature of services to be rendered, and the amount or type of consideration.⁴⁹ These terms must be sufficiently definite to be enforceable, and this is a question of law for the judge.⁵⁰

The party relying on the employment agreement has the burden of establishing the agreement's existence and terms by a preponderance of the evidence.⁵¹ In Shilling v. Cornerstone Medical Associates, LLC,⁵² the court of appeals considered whether this burden had been met.⁵³ In Shilling the plaintiff brought suit against the defendant to enforce an employment agreement. The defendant denied the existence of any agreement and sought a copy of the alleged contract. The plaintiff produced an employment agreement after being served with a motion to compel, but the defendant claimed that his signature was forged and pointed out that the middle initial in the typed name was incorrect. Despite the defendant's claim of forgery, the trial court granted the plaintiff's motion for summary judgment. The defendant appealed, claiming that there were issues of material fact.⁵⁴

The trial court never addressed whether the alleged employment agreement was valid even though the defendant repeatedly denied its existence.⁵⁵ The court of appeals, emphasizing this dispute, held that the plaintiff failed to meet his burden of establishing the existence and terms of the employment agreement by a preponderance of the evidence.⁵⁶ Accordingly, the court reversed...