Labor and Employment Law
| Publication year | 2014 |
Labor and Employment Law
W. Melvin Haas III
William M. Clifton III
W. Jonathan Martin II
Alyssa K. Peters
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This Article surveys revisions to the Official Code of Georgia Annotated (O.C.G.A.)1 and decisions interpreting Georgia law from June 1, 2013
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to May 31, 20142 that affect labor and employment relations for Georgia employers.
A. Unemployment Benefits
Effective April 24, 2014, a change was implemented regarding unemployment benefits for workers in the educational field.3 House Bill 7144 excludes educational service workers and contractors from receiving unemployment benefits if they were employed in the prior year, and there is a contract or a reasonable assurance of returning to work upon the end of the summer vacation period.5 However, if an individual is denied benefits pursuant to this law, and they are not offered an opportunity to work at any educational institution, the individual is entitled to retroactive payment for each week during unemployment in which a timely claim was applied for but denied.6 This amendment will affect about 60,000 school workers and is expected to save the state government about $8 million in benefits.7
Additionally, effective October 21, 2013, Georgia employers must comply with a new rule concerning state unemployment insurance claim notices.8 The rule states that an employer or employer's agent who does not "timely or adequately" respond to "three (3) individual claims" within the "current calendar year" will have its account "charged and may not be relieved of charges, regardless of whether the associated determination to pay benefits is later reversed on appeal or if an overpayment is established."9 While the rule does provide an exception for an employer
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that can show "substantial good cause," this standard is an onerous one.10 The practical effect of this rule is that Georgia employers will have their account with the Georgia Department of Labor charged if they do not respond timely and adequately (meaning completely) to every unemployment claim.11
B. Georgia's New Gun Laws
Effective July 1, 2014, licensed weapon holders had their right to carry expanded.12 Before House Bill 6013 was passed, the law allowed both private property owners and "persons in legal control of property" through a lease or other type of agreement to control access to such property and to prohibit licensed gun owners from entering with weapons.14 Businesses that operate on private property still enjoy the right to exclude or eject a licensed gun owner who enters private property carrying a gun.15 However, businesses that are housed in government buildings will no longer be able to exclude or eject licensed gun owners from carrying weapons on the property if certain statutory requirements are met.16 The statute authorizes licensed individuals "to carry a weapon in a government building when the government building is open for business and where ingress into such building is not restricted or screened by security personnel."17 A government building is denned as a building in which a government entity18 is housed or meets in its official capacity, or the portion of any building that is not publicly owned but is occupied by a government entity.19
This statute has yet to be interpreted by the courts. Many essential terms have not been defined in the statute. For example, the statute is silent on the definition of the terms "restricted" and "screened."20 Businesses will not know the degree to which they can restrict ingress to comply with the law until further explanation is provided by either
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the legislature or the courts.21 For example, should employers in government buildings provide metal detectors and have security officers at every entrance, or would having security personnel at the main entrance suffice? There are no civil penalties for non-compliance;22 however, businesses in governmental buildings may be subject to lawsuits, or other causes of action, for enforcing a ban on guns that violates the new law.23
A. Employment At Will
"At-will employment" refers to employment that either an employer or an employee may terminate at any time with or without cause.24 While employment at will in other jurisdictions may be weakening,25 the presumption in Georgia remains that all employment is at will unless a statutory or contractual exception exists.26 "[T]his bar to wrongful discharge claims in the at-will employment context 'is a fundamental statutory rule governing employer-employee relations in Georgia.'"27 Particularly, O.C.G.A. § 34-7-128 provides that "[a]n indefinite hiring" is at-will employment.29 The definition of an indefinite hiring includes contract provisions specifying "permanent employment, employment for life, [and] employment until retirement."30 Further, a contract specifying an annual salary does not create a definite period of employment.31
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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.32
Regardless of an employer's motives, the general rule in Georgia allows the discharge of an at-will employee without creating "a cause of action for wrongful termination."33 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.34
1. Due Process. An employee is only entitled to procedural due process where the governmental action would impair the employee's protected interest in life, liberty, or property.35 "Under Georgia law, a public employee has a property interest in employment when that employee can be fired only for cause."36 Given Georgia's strict adherence to the doctrine of employment at will, only employees that have a contract for employment for a definite time, or have job security through a statute, will be entitled to procedural due process.37
In City of St. Marys v. Brinko,38 the Georgia Court of Appeals reaffirmed that a due process claim has no legal merit when the employment relationship is at will because there is no legitimate property interest in the employment.39 Janet Brinko was an employee of the Convention and Visitors Bureau of the City of St. Marys. Brinko was fired, and the next day she requested a hearing to appeal her termination. The hearing was ultimately denied.40 After being denied,
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Brinko filed suit alleging "that the city had violated her due process rights by denying her request for a post-termination hearing."41
Brinko argued that she had job security because she and the city had an oral agreement for a definite term of fifty years.42 Georgia law requires that all contracts for employment for a definite term must be written; otherwise they are void.43 Therefore, even if her statement about an oral agreement for a term of fifty years was true, absent a written contract, her status would remain at will.44 Furthermore, her employee manual specifically stated that she was an at-will employee 45 As an at-will employee, she did not have a protected property right; thus, her due process claim was denied.46
2. Breach of Contract (Other than At-Will Contracts). The basic rules of contract law apply in creating a valid employment contract: competency to contract, offer, acceptance, and valid consideration.47 Furthermore, for an employment contract to be valid, the terms must define the following: the nature and character of the services to be performed; the place of employment; the time period for which the employee is to work; and the compensation to be owed to the employee.48 In addition, the enforceability of an employment contract requires sufficient definitiveness in the terms of the contract.49
In Walker v. City of Homerville,50 the United States District Court for the Middle District of Georgia determined that an employee could only be terminated "for cause," even if the employment contract does not state that the employee could only be fired "for cause."51 The Homerville City Council elected Walker as the chief of police. He was elected on March 22, 2010, and was terminated on January 4, 2011.52 There was never a written contract, but Walker was told that if he were elected "he would serve on a year-to-year basis subject to reappointment by the city council."53 The Homerville City Charter also stated that the chief of
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police would serve on a year-to-year basis subject to annual approval by the city council, and required a fair and impartial trial prior to termination. After he was hired, the mayor and a councilmen disagreed with Walker regarding citations that he issued. After Walker refused to dismiss the citations, he was terminated. Walker brought an action against the city and the council alleging, among other claims, breach of contract. The defendants moved for summary judgment on the grounds that there was no provision stating that Walker could only be fired for cause and that no oral agreement could require that result in Georgia.54 However, the district court held that even if a contract does not state an employer can only fire an employee for just cause, the duty of good faith and fair dealing requires just cause.55 The district court held, "In Georgia if an employer hires an employee for a definite term, then the employer must meet its 'duty of good faith and fair dealing in the performance and completion' of the contract."56
3. Whistleblower Act. Under the Georgia Whistleblower Act,57 "[n]o 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 . . . ,"58 To make out a prima facie case, the plaintiff must prove four...
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