Labor and Employment Law
| Publication year | 2022 |
Labor and Employment Law
W. Jonathan Martin II
Alyssa K. Peters
Patricia-Anne Brownback
David S. Cromer
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This Article surveys revisions to the Official Code of Georgia Annotated (O.C.G.A.) and decisions interpreting Georgia law from June 1, 2021 to May 31, 2022,1 that affect labor and employment relations for Georgia employers.2
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A. Constitutional Carry
Employers and their counsel should take note of Georgia's new "Constitutional Carry" law, which was signed by Governor Brian Kemp on April 12, 2022.3 The most significant part of the new law is O.C.G.A. § 16-11-127(c),4 which says any "lawful weapons carrier" can carry a knife or handgun in any location aside from a very small list of off-limits locations, such as court houses, jails, and polling places.5 The term "lawful weapons carrier" is critical because that term is defined as any person who has a weapons carry permit or is eligible to receive such a permit and is not otherwise prohibited from owning a firearm.6 In other words, the need for a weapons carry permit is now gone.
Importantly, owners of private property and people or entities in control of private property through a lease may prohibit a person who is carrying a knife or firearm from entering the property.7 of special importance to employers in Georgia is the recently amended O.C.G.A. § 16-11-135(b),8 which says employers cannot condition an offer of employment on a requirement that the prospective employee agree not to have firearms in their vehicles while parked on company property.9 However, the employer can still require that any firearm contained within an employee's car be locked out of sight in a trunk, glove box, or similar compartment.10 In light of this new law, employers should review their policies and consider adding a provision addressing firearms in the workplace.
B. H.R. Bill 1390: A New Retaliation Remedy for Local Government
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Employees
This year, the Georgia General Assembly passed House Bill 1390.11 Under this new law, codified at O.C.G.A. §§ 34-5A-1 and 34-5A-2,12 employees of any Georgia county, municipality, or consolidated government can bring a lawsuit against their employer in a Georgia Superior Court if they believe they have been retaliated against for reporting sexual harassment in the workplace.13 The new law defines sexual harassment as:
[S]exual advances, requests for sexual favors, sexual or sex-based conduct, or any other unwelcome and offensive conduct of a sexual nature where: (A) Submission to the conduct involved is made, implicitly or explicitly, a term or condition of work; (B) Submission to or rejection of the conduct is used as the basis for a personnel decision affecting the individual's work; or (C) Such conduct creates an intimidating, hostile, or offensive work environment, provided that an intimidating, hostile, or offensive work environment is not created when the conduct does not rise above the level of what a reasonable person would consider merely tactless, inconsiderate, overfamiliar, or otherwise impolite, particularly with regard to the totality of the circumstances.14
Interestingly, while the new law is primarily focused on "employee[s]" of local governments, it also applies to anyone who works for a local government in a "similar capacity" as an employee.15 Thus, volunteers and independent contractors could potentially fall under the law's protection.
Under H.R. Bill 1390, an employee who has been retaliated against will be able to sue his or her employer in state superior court according to the guidelines set out in O.C.G.A. § 45-1-4,16 otherwise known as the Georgia Whistleblower Act (GWA). The GWA already allowed local government employees to sue their employers for retaliatory conduct, but it did not specifically provide for a remedy for retaliation based on sexual harassment.17 Under the GWA, and therefore under H.R. Bill 1390, a would-be plaintiff has three years from the date of the retaliatory act to
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file a lawsuit, or one year after discovering that retaliation took place, whichever is earlier.18
This three-year statute of limitations makes H.R. Bill 1390 very different from the large body of federal law that already exists in this area. Title VII of the Civil Rights Act of 196419 is similar to H.B. 1390 in that it prohibits covered employers from retaliating against an employee who complains about sexual harassment.20 However, Title VII actions present certain procedural hurdles for would-be plaintiffs to overcome. Most notable is the fact that Title VII plaintiffs cannot file a lawsuit against their employers without first submitting a charge with the Equal Employment Opportunity Commission (EEOC) within 180 days.21 H.B. 1390's less stringent deadlines may clear the way for local government employees to more easily sue their employers, as plaintiffs will now have another less restrictive option at their disposal.
In light of the potential uptick in litigation arising from H.R. Bill 1390, local governments should take a close look at their employee handbooks and human resources manuals to make sure they give clear guidance to department heads and other managers regarding best practices on how to appropriately handle allegations of sexual harassment.
Generally, an employer can only be held vicariously liable for the actions of an employee through the doctrine of respondeat superior when the employee acts within the scope of their employment during the commission of a negligent act.22 Purely personal acts by the employee, meaning those that are not committed within the scope of their employment with the employer, are not subject to respondeat superior.23 For example, tortious actions that occur during an employee's lunch break or on their commute to or from work would generally be considered completely personal to the employee, and thus not trigger vicarious liability under respondeat superior.24
The potential complexities of this rule are exemplified by Cotton v. Prodigies Child Care Management, LLC.25 Here, Andrea Cotton's car was
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struck by a car driven by Bianca Bouie, a teacher.26 Cotton sued Bouie and her employer—Prodigies Childcare Management, LLC (Prodigies Childcare)—claiming that the employer was vicariously liable under the theory of respondeat superior. At the time of the accident, Bouie was employed as a lead teacher. Prodigies Childcare had promoted Bouie into this position to encourage her to further her education, but the employer did not require Bouie to take any classes, nor did it pay any amount of her tuition. While on her lunch break, Bouie traveled to an event for extra class credit where she subsequently fell behind schedule. As she drove back to work, Bouie became distracted by her cell phone as she tried to inform Prodigies Childcare of her late status, and she collided with Cotton's car. Cotton claimed that Bouie was acting within the scope of her employment and furtherance of her employer's business at the time of the accident because she was traveling back to work after attending a class meant to further her employment with Prodigies Childcare. Moreover, Cotton alleged that Bouie's phone call to let her employer know that she was running late showed that she was operating within the course and scope of her employment. Prodigies Childcare moved for summary judgment based on the fact that Bouie was on her lunch break, off the clock, and using her personal vehicle and phone at the time of the accident, arguing that she was engaged in a purely personal errand at the time of the accident.27
The Superior Court of Clarke County granted the employer's motion, and the plaintiff appealed.28 The Georgia Court of Appeals reversed the decision of the trial court, noting that genuine issues of material fact remained regarding whether Bouie was acting in the course and scope of her employment at the time of the accident.29 Because Bouie was using her phone to contact her employer with the purpose of updating them about her late arrival, the court reasoned that "special circumstances" might exist from which a jury could find that Bouie was acting within the course and scope of her employment.30
Respondeat superior was also the central theme in Blake v. Tribe Express.31 Here, Blake sued co-defendants Tribe Express, Inc. (Tribe) and its employee, Prosser, a tractor-trailer driver.32 Before the accident at issue occurred, Prosser's employment with Tribe was terminated, and he
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was instructed to return his company-owned truck to Tribe. Prosser was less than a mile away from returning the truck when he turned around, drove eighty miles in the opposite direction into a closed express lane and eventually collided with the median wall, bringing the truck to a halt. Once the truck was stopped, Prosser ran on foot across I-75, causing Blake to swerve in an effort to avoid hitting Prosser. This caused Blake to collide with Prosser's stolen semi-truck. Prosser pled guilty to theft by taking.33
After Blake sued Tribe and Prosser, Tribe moved for summary judgment, asserting that Prosser was not acting in the scope of his employment.34 The Superior Court of Lumpkin County granted Tribe's motion for summary judgment, and Blake appealed.35 The Georgia Court of Appeals affirmed the decision, noting that Prosser was not acting in furtherance of Tribe's business when he admittedly stole the semi-truck.36
The court of appeals also reexamined how respondeat superior operates with independent contractors in Healthcare Staffing, Inc. v. Edwards.37 Healthcare Staffing, Inc. (HCS) provided personnel to work with mentally incapacitated adults at Gateway Behavioral Health Services (Gateway).38 Errol Wilkins, an HCS employee contracted to work with Gateway, was fired after an investigation...
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