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

• Publication year: 2002

Labor and Employment Lawby W. Melvin Haas, III^* William M. Clifton III^** and W. Jonathan Martin II^***

I. Introduction

This Article surveys recent developments in state statutory law and state case law affecting Georgia employers.¹ Accordingly, it covers significant cases decided during the survey period by the Georgia Appellate Courts, while highlighting certain revisions to the Official Code of Georgia Annotated ("O.C.G.A.").² Despite the fact federal laws and regulations govern the majority of employment-related issues, practitioners must also keep abreast of state laws affecting employers.

II. Recent Amendments to the O.C.G.A.

During the 2001 legislative session, the Georgia General Assembly passed two significant acts affecting Georgia employers.³ First, the legislature revised Georgia's minimum wage requirements⁴ by increasing minimum wage in Georgia from $3.25 per hour to $5.15 per hour.⁵ With this change, the Georgia minimum wage standard conforms to the Fair Labor Standards Act.⁶ The legislature also amended the Code to exempt certain resident-workers of nonprofit facilities from minimum wage standards, as follows:!!

Any individual who is employed by a nonprofit child-caring institution or long-term care facility serving children or mentally disabled adults who are enrolled in such institution and reside in residential facilities of the institution, if such employee resides in such facilities, receives without cost board and lodging from such institution, and is compensated on a cash basis at an annual rate of not less than $10,000.00.⁷ @@

The General Assembly also made significant changes to the Georgia Drug-Free Workplace Act.⁸ Among the revisions, the General Assembly allowed certain on-site testing to qualify for the Act's testing requirements; it reduced the number of hours required for employee and supervisor training after the first year of certification; it redefined the term "employee assistance program"; and, it changed the provisions relating to the insurance premium discount.⁹

The first, and most practical, revision is the authorization of on-site testing for job applicants, which provides employers with greater flexibility in establishing their drug-free workplace programs.¹⁰ Originally, such a drug-testing method was not allowed by the Code.¹¹

Second, the legislature changed the requirements for qualifying education programs as defined in O.C.G.A. section 34-9-417.¹² Prior to the revision, employers were required to "provide all employees with a semiannual education program on substance abuse, in general, and its effects on the workplace, specifically."¹³ Now, semiannual training is only required during the initial year of certification.¹⁴ The statute provides, "During the second and any consecutive subsequent years of certification, an employer must provide all employees with an annual education program."¹⁵ Similarly, the requirements for supervisory training, as set forth in O.C.G.A. section 34-9-418, have been changed to provide that:

During the initial year of certification ... an employer must provide all supervisory personnel with a minimum of two hours of supervisor training, which must include but is not limited to the following information:

(1) How to recognize signs of employee substance abuse;

(2) How to document and corroborate signs of employee substance abuse; and

(3) How to refer substance abusing employees to the proper treatment providers.¹⁶ @@@

Like the amendment to O.C.G.A. section 34-9-417, this change to O.C.G.A. section 34-9-418 stipulates that such training of supervisory personnel must occur during the initial year of certification. Whereas, "During the second and any consecutive subsequent years of certifica- tion, an employer must provide all supervisory personnel with a minimum of one hour of such supervisory training."¹⁷

The amendments in 2001 also redefine the term "Employee Assistance Program." Previously, "Employee Assistance Program" was defined as:

a program designed to assist in the identification and resolution of job performance problems associated with employees impaired by personal concerns. A minimum level of core services must include consultation and training; professional, confidential, appropriate, and timely problem assessment services; short-term problem resolution; referrals for appropriate diagnosis, treatment, and assistance; follow-up and monitoring; employee education; and quality assurance.¹⁸ @@@

Under the new definition, "Employee Assistance Program" has been modified to mean:

a worksite focused program designed to assist: (i) Employer work organizations in addressing employee productivity issues; and (ii) Employee clients in the identification and resolution of job performance problems associated with employees impaired by personal concerns, including, but not limited to, health, marital, family, financial, alcohol, drug, legal, emotional, stress, or other personal issues that may affect job performance.¹⁹ @@@

The definition of "core services" has also been expanded as follows:

(B) A minimum level of core services must include consultation and training and assistance to work organization leadership in policy development, organizational development, and critical incident management; professional, confidential, appropriate, and timely problem assessment services; constructive intervention and short-term problem resolution; referrals for appropriate diagnosis, treatment, and assistance; follow-up, monitoring, and case management with providers and insurers; employee education and supervisory training; and quality assurance.²⁰

(C) An optimum level of core services must include, in addition to the minimum level core services, the designation of an individual who shall be responsible to administer the employer's Employee Assistance Program and to certify that the employer work organization's drug-free workplace program contains all elements of the drug-free workplace

program required by Code [s]ection 34-9-413 and that such program satisfies the annual certification requirement of Code [s]ection 34-9421; provided, however, that such individual shall have training and experience with Employee Assistance Programs in accordance with rules and regulations prescribed by the State Board of Workers' Compensation.²¹ @@@

The elements of a drug-free workplace, defined by O.C.G.A. section 349-413, reflect the addition of the newly defined "optimum core services" by providing that "[a] drug-free workplace program may offer and include the optimum level core services."²²

The amendments also revise the notice requirements for employers who fail to have an Employee Assistance Program. Prior to the amendment, O.C.G.A. section 34-9-416 merely required employers without an Employee Assistance Program to "post in a conspicuous place a listing of providers of employee assistance in the area."²³ The Code now requires:

Such listing of available providers shall be reviewed and updated by the employer during the month of July of each year at which time the employer shall, when necessary, correct and revise information on all providers listed. Employers shall take reasonable care to identify appropriate providers and supply accurate telephone and address information on the posted listing of providers at all times.²⁴ @@@

Lastly, the General Assembly recognized the needs of self-insured employers by adding the following to provide for insurance premium discounts under this section:²⁵ !!!

A self-insured employer or an employer member of a group self-insurance fund who implements a drug-free workplace program substantially in accordance with Code [s]ection 34-9-413 and who complies with all other provisions of this article required of employers in order to qualify for insurance premium discounts shall be certified by the State Board of Workers' Compensation as having a drug-free workplace program in compliance with this article.²⁶ @@@

III. EMPLOYMENT LAW PRINCIPLES-CASE LAW

A. Wrongful Termination

1. Continuing Trends in Employment-at-Will. O.C.G.A. section 34-7-1 explicitly provides for the doctrine of employment-at-will.²⁷ Although the doctrine of employment-at-will is gradually deteriorating throughout the country,²⁸ Georgia courts have continued to zealously reaffirm the general principle of employment-at-will.

For example, in Eckhardt v. Yerkes Regional Primate Center,²⁹ the Georgia Court of Appeals reviewed employees' allegations of wrongful termination stemming from their whistle-blowing activities.³⁰ Specifically, the employees alleged defendant terminated them in retaliation for reporting the health risks associated with defendant's practice of transporting monkeys infected with the highly contagious Herpes B virus. The trial court granted the employer's motion to dismiss.³¹ On appeal, appellants contended that "because they were whistleblowers to the hazard involved in the handling of the monkeys, their terminations violated public policy in this state and that discharging employees for such actions discourages employees from reporting unsafe proce-dures."³² In response, the court of appeals noted:

In Georgia, the general rule is that "an employee, employed at will and not by contract, cannot bring an action against his employer for wrongful discharge from employment or wrongful interference with the employment contract when and where he is an at[-]will employee with no definite and certain contract of employment. The employer, with or

without cause and regardless of its motives[,] may discharge the employee without liability."³³

The court then held that, even though legislatively created public policy exceptions to the doctrine of employment-at-will exist,³⁴ the exceptions did not apply in this case.³⁵ Because there was no express statutory provision excluding whistleblowers from employment-at-will, the court of appeals affirmed the trial court.³⁶

This case is significant because it demonstrates the courts' reluctance to create public...