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

• Publication year: 2001

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 the state statutory and common law that affect labor and employment relations of Georgia employers.¹ Accordingly, it covers significant cases decided during the survey period by the Georgia appellate courts, as well as significant issues of state law analyzed by United States district courts located in Georgia and the Eleventh Circuit Court of Appeals.² This Article also includes highlights of certain revisions to the Official Code of Georgia Annotated ("O.C.G.A.") and relevant local ordinances.

II. Recent Legislation

A. Recent Amendment to the O.C.G.A.

The 2000 General Assembly passed several amendments to the Georgia Labor and Industrial Relations Code.³ Without regard to workers' compensation,⁴ the most notable change was the enactment of O.C.G.A. section 34-1-7.⁵ This code section pertains to workplace violence⁶ and provides a method by which employers can seek and obtain temporary restraining orders in the workplace.⁷ In pertinent part, the section provides:

Any employer whose employee has suffered unlawful violence or a credible threat of violence from any individual, which can reasonably be construed to have been carried out at the employee's workplace, may seek a temporary restraining order and an injunction on behalf of the employer prohibiting further unlawful violence or threats of violence by that individual at the employee's workplace or while the employee

is acting within the course and scope of employment with the employer.⁸

The new code section defines "credible threat of violence" as:

[A] knowing and willful statement or course of conduct which would cause a reasonable person to believe that he or she is under threat of death or serious bodily injury, and which is intended to, and which actually causes, a person to believe that he or she is under threat of death or serious bodily injury, and which serves no legitimate purpose.⁹

It defines "unlawful violence" as "assault, battery, or stalking, as prohibited by [the Georgia code]."¹⁰ The definition specifically excludes lawful acts of self-defense or defense of others.¹¹

When an employer believes one of its employees is at risk of workplace violence, the employer may seek a temporary restraining order from the court.¹² The employer does so by filing for an injunction under the terms of section 34-1-7.¹³ Accompanying the petition for an injunction, the employer must file an affidavit setting forth "reasonable proof that an employee has suffered unlawful violence or a credible threat of violence."¹⁴ The affidavit must also show that great or irreparable harm will result to an employee if the court does not grant the injunction.¹⁵ Furthermore, the affidavit must demonstrate that the employer has investigated the underlying facts giving rise to the petition.¹⁶ If the employer meets the foregoing requirements, the court may grant a temporary restraining order.¹⁷ Unless modified or terminated by the court, the temporary restraining order will remain in effect for a maximum of fifteen days.¹⁸

While the new code section allows employers to respond to threats of workplace violence rapidly, the code section also protects the rights of the accused. Specifically, section 34-1-7 provides that the court should hold a hearing within ten days of the fifing of the petition "or as soon as practical thereafter."¹⁹ Nonetheless, the court must hear the case within thirty days after the employer files the petition.²⁰ In the unusual event the court cannot schedule a hearing in the county that the case is pending within the thirty-day period, the code specifically authorizes the court to hold the hearing in any other county in the judicial circuit.²¹ Moreover, section 34-1-7 authorizes the respondent to explain, excuse, justify, or deny allegations of wrongdoing, or to file a cross complaint.²²

With regard to the merits of the claim, the Code allows the judge to conduct an independent inquiry based on the evidence presented at the hearing.²³ If the judge finds wrongdoing by clear and convincing evidence, the judge must grant an injunction.²⁴ However, the scope of the injunction is limited to preventing violence or threats of violence from being carried out in the employee's workplace or "while the employee is acting within the course and scope of his employment."²⁵ The injunction is further limited to three years, unless the injunction is modified sooner.²⁶ It may also be renewed within three months before its expiration.²⁷ In short, with the enactment of O.C.G.A. section 34-17, the General Assembly provided employers and their counsel an important instrument to protect the workplace from the threat of violence. This statute accounts for the fact that workplace violence is becoming more common in society.²⁸

B. Local Ordinance with Employment Impact

1. Atlanta Ordinance Impacts Nepotism Policies and Homosexuality. In another significant legislative development, the City of Atlanta amended its antidiscrimination ordinance²⁹ to include, along with traditional categories of protected classes such as race, age, and disability,³⁰ a new category called "domestic relationship status."³¹ The ordinance defines that term as "the presence or absence of a domestic partnership or marital relationship."³² It includes the status of "married, separated, divorced, engaged, widowed, single, cohabitating, or domestic partnership, without regard for whether such relationship is between persons of the same or opposite sex."³³

The ordinance specifically prohibits private employers from discriminating in "hiring, firing, compensation, terms, conditions, and privileges of employment."³⁴ On its face the ordinance's prohibition against discriminating on the basis of "familial status"³⁵ affects many employers "anti-nepotism" policies, which limit the employment of spouses, children, or other relatives. Employers use the policies to promote a sense of fairness, reasoning that even the appearance of favoritism based on family relationships is detrimental to workplace morale.³⁶ While some employers may consider evaluating their policies "on a case-by-case basis,"³⁷ such an approach may give rise to other problems, such as allegations of discrimination.³⁸ This may be particularly true if either of the employees in the relationship is in a protected class, such as race, gender, age, or disability.³⁹

Although some employers may discontinue their nepotism policies in an effort to comply with the ordinance, many others will probably continue the practice of prohibiting one person in a romantic relationship from supervising his or her paramour.⁴⁰ Compromising between the extremes, employers may choose to prohibit romantic partners from making employment decisions affecting each other.⁴¹ A partner who hires, sets raises, or makes other decisions regarding terms and conditions of employment of a paramour or family member will almost certainly face precisely the kinds of favoritism charges that nepotism policies were designed to prevent.⁴² Therefore, this middle of the road approach may be the best way for an employer to walk the line between seemingly contradictory legislative and statutory enactments.⁴³

Significantly, the Atlanta ordinance also prohibits discrimination on the basis of "sexual orientation."⁴⁴ This places Atlanta among the growing number of cities that prohibit private employers from discriminating against homosexuals.⁴⁵ Therefore, although Title VTI of the Civil Rights Act of 1964 does not provide for sexual orientation as a protected classification,⁴⁶ Atlanta employers have to face another layer of legislation that provides substantial penalties for its violation.⁴⁷ Specifically, the ordinance allows the aggrieved employee to file a civil action in a court of competent jurisdiction and "to seek injunctive relief, actual and compensatory damages, and punitive damages, as well as attorney fees and costs."⁴⁸ The employee may also file a complaint with the human relations commission that, after an investigation, may issue penalties ranging from fines to revocation of municipal licenses.⁴⁹

The ultimate ramifications of the Atlanta ordinance are unclear. What is clear, however, is that employers that act without considering the statute risk significant legal exposure.

III. Employment Law Principles—Case Law

A. Preserving Employment At-Will

O.C.G.A. section 34-7-1 explicitly provides for the doctrine of employ-ment-at-will. It states:

If a contract of employment provides that wages are payable at a stipulated period, the presumption shall arise that the hiring is for such period, provided that, if anything else in the contract indicates that the hiring was for a longer term, the mere reservation of wages for a lesser time will not control. An indefinite hiring may be terminated at-will by either party.⁵⁰

In recent years, commentators throughout the country have speculated that the doctrine of employment-at-wi 11 is slowly being eroded.⁵¹ Sometimes, in other places, these arguments prevail,⁵² and at other times, these arguments fail.⁵³ For Georgia employers the courts have continued to reaffirm the general principal of employment-at-will.⁵⁴

1. Wrongful Termination Arguments Based Upon Statutes. During the survey period,⁵⁵ the Georgia Supreme Court reaffirmed its commitment to preserving the doctrine of employment-at-will in Reilly v. Alcan Aluminum Corp.⁵⁶ In Reilly the Eleventh Circuit Court of Appeals certified two employment questions to the Georgia Supreme Court for review. First, the circuit court asked the supreme court whether Georgia tort statutes create causes of action against an employer alleged to have violated the Age Discrimination in Employment Act ("ADEA").⁵⁷ Specifically, the Eleventh Circuit asked whether

"[O.C.G.A. section] 51-1-6 or [section] 51-1-8 give rise to a cognizable claim for breach of...