Labor and Employment Law
| Publication year | 2017 |
Labor and Employment Law
W. Melvin Haas III
W. Jonathan Martin II
Alyssa K. Peters
Patricia-Anne Upson
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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, 2016 to May 31, 2017, that affect labor and employment relations for Georgia employers.1
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On May 8, 2017, Georgia joined the recent national trend when Governor Nathan Deal signed legislation that provides paid sick leave to Georgia employees effective July 1, 2017.2 O.C.G.A. § 34-1-103 requires employers who meet specific criteria to allow employees to use available sick leave to care for immediate family members.4 Under the new statute, "immediate family members" is defined as "an employee's child, spouse, grandchild, grandparent, or parent or any dependents as shown on the employee's most recent tax return."5 This law only applies to employers who have twenty-five or more employees,6 do not provide an "employee stock ownership plan,"7 and already offer or have paid sick leave policies.8 The law provides that only employees who work thirty hours per week are eligible for the benefit of paid sick leave for family members.9 Employees may use a maximum of five days per year on sick leave for their family members.10
Interestingly, this law does not create a private cause of action for employees whose employer has failed to comply.11 Thus, the only means of enforcement would be through an administrative agency tasked with enforcing the law. At this time, no state agency has been appointed to enforce the provisions of this law. Lastly, this law contains a "sunset provision," which provides that "[t]his Code section shall be repealed in its entirety on July 1, 2020, unless extended by an Act of the General Assembly."12
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A. Employment At-Will
An "at-will employment" relationship is one that may be terminated at any time, with or without cause, by the employer or an employee.13 While employment at-will in other jurisdictions may be weakening,14 the presumption in Georgia remains that all employment is at-will unless a statutory or contractual exception exists.15 This bar to wrongful discharge claims in the at-will employment context "is a fundamental statutory rule governing employer-employee relations in Georgia."16 Particularly, O.C.G.A. § 34-7-117 provides that "[a]n indefinite hiring" is at-will employment.18 The definition of an indefinite hiring includes contract provisions specifying "permanent employment, employment for life, [and] employment until retirement."19 Further, a contract specifying an annual salary does not create a definite period of employment.20 However, if an employment contract does specify a definite period of employment, any employment beyond that period becomes employment at-will, subject to discharge without cause.21
Regardless of an employer's motive, the general rule in Georgia allows the discharge of an at-will employee without creating "a cause of action for wrongful termination."22 Oral promises between an employer and employee will not modify the relationship between the two; absent a written contract, an employee's status remains at-will.23
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In demons v. Delta Airlines, Inc.,24 a Delta employee was terminated after he allegedly mishandled a lost purse and its contents. The employee filed suit in Fulton County Superior Court against Delta, its CEO, and individual employees involved in the termination, alleging numerous claims, including defamation, fraudulent misrepresentation, negligent misrepresentation, fraudulent concealment, negligent retention, false promise, intentional infliction of emotional distress, and tortious interference with contract. The trial court dismissed all of the claims on various grounds. Notably, the court dismissed the fraudulent misrepresentation claim for two reasons. First, the employee failed to allege any facts about how Delta fraudulently misrepresented information to him.25 Second, the employee was an at-will employee, and the court held that "an at-will employee has no cause of action for an oral promise or fraudulent misrepresentation in connection with his termination."26 Thus, the court of appeals held that the dismissal of the claim was proper.27
B. Whistleblower Act
Under the Georgia Whistleblower Act (GWA),28 "no 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."29 To make out a prima facie case, the plaintiff must prove four elements: "(1) [The employee] was employed by a public employer; (2) [The employee] made a protected disclosure or objection; (3) [The employee] suffered an adverse employment action; and (4) There is some causal relation between the protected activity and the adverse employment action."30
In Franklin v. Eaves,31 the Georgia Court of Appeals concluded that there was a question of fact whether the plaintiff timely filed her whistleblower retaliation claim, reversing the grant of summary
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judgment.32 Based on the facts, the court decided that there was a genuine issue of material fact when the employee learned that certain work duties were taken away from her.33 Dedrain E. Franklin had worked with the health department since 2007, and in 2011, she became the financial systems coordinator. The new position required Franklin to handle confidential medical information from patients and payment information. Franklin's concern was prompted after she was moved from a private office to a cubicle. This new location would "expose providers' and patients' protected health information to the general public in violation of the law."34 She explained her concerns to her supervisor and subsequently filed a written grievance pertaining to the issue. Her grievance was denied, but the health department was required to provide employees with an office who handled this sensitive information.35
After her complaint and grievance, Franklin's job duties pertaining to the handling of patient information and credit card processing were assigned to other employees. Franklin claimed that she was not made aware these duties were taken away from her until mid-October of 2012. After numerous other actions that Franklin felt were retaliatory, she filed a lawsuit under the GWA for retaliation.36
The trial court held Franklin's claims were time-barred because the statute of limitations under the GWA is either "within one year after discovering the retaliation or within three years after the retaliation, whichever is earlier."37 On appeal, the county argued that the first instance of alleged retaliation occurred outside of the one-year statute of limitations. However, Franklin's contention was that she was not aware of the retaliatory actions within the one-year statute of limitations.38 Additionally, the court pointed out that Franklin claimed multiple acts of retaliation, many of which fell squarely within the one-year statute of limitations.39 Accordingly, the court of appeals held there was a question of fact when Franklin was aware that she had been retaliated against; therefore, summary judgment was inappropriate.40
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In West v. City of Albany,41 the Georgia Supreme Court addressed a certified question from the United States District Court for the Middle District of Georgia.42 The question stated, "Is a plaintiff required to provide a municipal corporation with ante litem notice pursuant to OCGA § 36-33-5 in order to pursue a claim against it for money damages under the [GWA]?"43 Serless West, a former employee of the city of Albany, brought claims under the GWA seeking monetary and equitable relief.44 The supreme court answered in the negative that pre-suit notice is not required in a claim against the city for retaliation under the GWA.45
In reaching its answer, the court analyzed both the language of the municipal ante litem notice statute and the GWA.46 The court concluded the municipal ante litem statute requires notice where the suit brought against the municipality is for monetary damages stemming from negligence.47 The GWA requires no pre-suit notice to claim retaliatory discharge, and this claim was not for negligence.48 The court held the Georgia General Assembly's use of limiting language in the types of claims that required the notice was conscious.49 Following notions of statutory construction, the court concluded the statute's plain language demonstrates that it applies only to damages caused by negligence, not intentional acts, breach of contract, or, like in this case, retaliatory discharge.50 Thus, the court answered that in a claim of retaliation under the GWA against a municipality, no ante litem notice is required.51
In Riggins v. City of Atlanta,52 the Georgia Court of Appeals applied the precedent set in West,53 discussed supra, reversing the superior court's determination that the plaintiff failed to provide ante litem notice.54
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C. Interpretation of Employment Contract
In Cobb Beauty College, Inc. v. Scamihorn,55 a former director was terminated in the first year of his contract after the school stated that "it did not intend to renew his contract."56 The Georgia Court of Appeals held that his employment agreement created an initial three-year term before the school had the option of not renewing the agreement.57 Randall Scamihorn, former director of Cobb Beauty College (CBC), entered into an employment agreement on May 11, 2010. The agreement stated, in part, "This Agreement shall remain in effect for 3 years from the effective date, renewed automatically on a year-to-year basis."58 Nine months into his contract, the former director was informed that...
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