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

• Publication year: 2011

Labor and Employment Law

by W. Melvin Haas III* William M. Clifton III** W. Jonathan Martin II******* and Alyssa Peters Morris****

I. Introduction

This Article surveys recent developments in the state statutory and common law that affect labor and employment relations of Georgia employers. Accordingly, it surveys published decisions interpreting Georgia law from June 1, 2010 to May 31, 2011.¹ This Article also

* Managing Partner and Macon Office Head in the firm of Constangy, Brooks & Smith, LLP, Macon, Georgia. Emory University (B.A., 1968); University of Alabama (J.D., 1971). Chapter Editor, The Developing Labor Law (John E. Higgins, Jr. et al. eds., 5th ed. 2006 & Supps.). Member, State Bars of Georgia and Alabama.

** Managing Partner in the firm of Constangy, Brooks & Smith, LLP, Macon, Georgia. Oglethorpe University (B.A. magna cum laude, 1988); Georgia State University (M.A., 1990); Columbia University (J.D., 1993). Law Clerk to the Honorable Duross Fitzpatrick, United States District Judge for the Middle District of Georgia (1993-1995). Member, State Bar of Georgia.

*** Managing Partner in the firm of Constangy, Brooks & Smith, LLP, Macon, Georgia. University of Georgia (B.B.A., cum laude, 1991); Mercer University, Walter F. George School of Law (J.D., magna cum laude, 1994). Member, Mercer Law Review (1992-1994); Administrative Editor (1993-1994). Chapter Editor, The Developing Labor Law (John

E. Higgins, Jr. et al. eds., 5th ed. 2006 & Supps.). Member, State Bar of Georgia.

**** Associate in the firm of Constangy, Brooks & Smith, LLP, Macon, Georgia. University of Georgia (B.A., magna cum laude, 2004); Georgia State School of Law (J.D., magna cum laude, 2008). Member, Georgia State Law Review (2006-2008). Contributing Editor, The Developing Labor Law (John E. Higgins, Jr. et al. eds., 5th ed. 2006 & Supps.). Member, State Bar of Georgia.

The Authors would like to thank Sarah Phaff (J.D. candidate, Mercer University, Walter

F. George School of Law, 2013) and John Weltin (J.D. candidate, Mercer University, Walter F. George School of Law, 2012) for their outstanding work in helping to research for and write this Article.

1. For analysis of Georgia labor and employment law during the prior survey period, see W. Melvin Haas III et al., Labor and Employment Law, Annual Survey of Georgia Law,

includes highlights of certain revisions to the Official Code of Georgia Annotated (O.C.G.A.).²

II. Recent Legislation

A. Modification of Restrictive Covenants

On May 11, 2011, Georgia Governor Nathan Deal signed into law Georgia House Bill 30,³ which became effective on that date.⁴ The express purpose ofHouse Bill 30, together with the previous amendment to the Georgia Constitution,⁵ is to clarify the law on restrictive covenants.⁶ House Bill 173,⁷ a 2009 legislative action, significantly changed Georgia law on covenants not to compete.⁸ House Bill 173 authorizes

62 Mercer L. Rev. 181 (2010).

2. Attorneys practicing labor and employment law have a multitude of reference sources for recent developments in federal legislation and case law. See generally The Developing Labor Law (John E. Higgins, Jr. et al. eds., 5th ed. 2006 & Supp. 2009); Barbara T. Lindeman & Paul Grossman, Employment Discrimination Law (C. Geoffrey Weirich et al. eds., 4th ed. 2007 & Supp. 2009); W. Christopher Arbrey et al., Labor and Employment, Eleventh Circuit Survey, 60 Mercer L. Rev. 1281 (2009); Bureau of Nat'l Affairs, Daily Labor Report, BNA.com, http://www.bna.com/products.labor/dlr.htm (last visited Aug. 13, 2011). Accordingly, this Article is not intended to cover the latest developments in federal labor and employment law. Rather, this Article only covers legislative and judicial developments arising under Georgia state law during the survey period.

3. Ga. H.R. Bill 30, Reg. Sess. (codified at O.C.G.A. §§ 13-8-2, 13-8-50 to -59 (Supp.

2011)).

4. Id.

5. Ga. H.R. Res. 178 § 1, Reg. Sess., 2010 Ga. Laws 1260, 1260-61 (amending Ga. Const. art. III, § 6, para. 5(c)(3)).

6. Ga. H.R. Bill 30 § 1 ("During the 2010 legislative session the General Assembly enacted HR 178 (Ga. L. 2010, p. 1260), the constitutional amendment necessary for the statutory language .... [T]here may be some question about the validity of that legislation."); see also Carl Cannon, W. Wright Mitchell & Alyssa Peters Morris, Client Bulletin #427: Georgians Vote to Make Restrictive Covenants Easier to Enforce, Con-stangy.com (Nov. 5, 2010), http://www.constangy.com/communications-305.html. See discussion in further detail infra Part VII(A).

7. Ga. H.R. Bill 173, Reg. Sess., 2009 Ga. Laws 231 (codified at O.C.G.A. §§ 13-8-2, 138-50 to -59 (2010)).

8. Id. § 3, 2009 Ga. Laws at 243 (codified at O.C.G.A. § 13-8-54(b) (2010)). The bill

stated,

[I]f a court finds that a contractually specified restraint does not comply with [certain provisions of the O.C.G.A.], then the court may modify the restraint provision and grant only the relief reasonably necessary to protect [a legitimate business interest established by the person seeking enforcement] and to achieve the original intent of the contracting parties . . . .

Id.

courts to "blue-pencil" otherwise unenforceable covenants rather than invalidate them entirely.⁹ House Bill 30 was enacted to remove any ambiguity following House Bill 173.¹⁰

House Bill 30, like House Bill 173, permits a court to modify a covenant so long as the modification is not more restrictive than the original.¹¹ In determining relief, a court must consider what is reasonable and the parties' original intent.¹² This legislation allows enforcement of a restrictive covenant by third party beneficiaries or assignees.

B. Employment Eligibility Verification

On May 13, 2011, Governor Deal signed House Bill 87, also known as The Illegal Immigration Reform and Enforcement Act of 2011 (Act).¹⁴ The Act became effective on July 1, 2011, and amends Chapter 60 of Title 36 of the O.C.G.A.¹⁵ The Act requires most private employers to use the federal work authorization program,¹⁶ also known as "E-verify."¹⁷ Prior to the Act, only those employers who conducted work

9. Id. Previously in Georgia, all covenants within an agreement were unenforceable where any one covenant was unenforceable. See Ward v. Process Control Corp., 247 Ga. 583, 584, 277 S.E.2d 671, 673 (1981) ("If any covenant not to compete within a given employment contract is unreasonable either in time, territory, or prohibited business activity, then all covenants not to compete within the same employment contract are unenforceable.").

10. Ga. H.R. Bill 30 § 1 ("It is the intention of this Act to remove any such uncertainty by substantially reenacting the substantive provisions of HB 173 (Act No. 64, Ga. L. 2009, p. 231), but the enactment of this Act should not be taken as evidence of a legislative

determination that HB 173 (Act No. 64, Ga. L. 2009, p. 231) was in fact invalid.").

11. Id. § 4 (codified at O.C.G.A. § 13-8-54) ("[T]he court may modify the restraint provision and grant only the relief reasonably necessary to protect such interest or interests and to achieve the original intent of the contracting parties to the extent possible.").

12. Id. § 4.

13. Id. (codified at O.C.G.A. § 13-8-58) ("A court shall not refuse to enforce a restrictive covenant on the ground that the person seeking enforcement is a third-party beneficiary of such contract or is an assignee or successor to a party to such contract.").

14. Ga. H.R. Bill 87, Reg. Sess. (codified in relevant part at O.C.G.A. §§ 13-10-90, 3660-6 (Supp. 2011)).

15. Id. pmbl., § 22.

16. The Act applies to private employers with more than ten employees, requiring them to use E-verify for all newly hired employees. Id. § 12 (codified at O.C.G.A. § 36-60-6).

17. Id. § 2 (codified at O.C.G.A. § 13-10-90).

on federal projects were required to use E-verify.¹⁸ Private employers will be phased into compliance over a period of a year and a half.¹⁹

III. Pending Legislation

Although not enacted in the 2011 Georgia legislative session, the following public laws represent potential trends for employer-employee legislation in coming years.

A. Parent Protection Act

Georgia House Bill 311,²⁰ still in committee, proposes an amendment to Chapter 1 of Title 34 of the O.C.G.A.²¹ if enacted.²² This legislation will provide a twenty-four hour paid or unpaid leave for employees to attend school conferences and medical appointments of a spouse or child.²³ The employee must give reasonable notice to the employer.²⁴ An employer with three or fewer employees may limit such leave.²⁵ Also, eligible employees should take leave under the federal Family Medical Leave Act of 1993,²⁶ if possible.²⁷

18. Exec. Order No. 13465, 3 C.F.R. 192 (2008), amending Exec. Order No. 12989, 3 C.F.R. 163 (1996). Since 2008, federal contractors and subcontractors have been required to use E-Verify. See generally United States Citizenship and Immigration Services, http://www.uscis.gov/portal/site/uscis/menuitem (last visited Aug. 4, 2011).

19. Ga. H.R. Bill 87 § 12 (codified at O.C.G.A. § 36-60-6). Employers will be phased in according to their size: 1) By January 1, 2012, employers with 500 or more employees must comply; 2) By July 1, 2012, employers with more than 100 but fewer than 500 employees; 3) By July 1, 2013, employers with more than 10 but fewer than 100 will be required to comply. Id.

20. Ga. H.R. Bill 311, Reg. Sess. (2011) (unenacted).

21. O.C.G.A. tit. 34, ch. 1 (2008 & Supp. 2010).

22. Ga. H.R. Bill 311 § 2.

23. Id. § 2(b).

24. Id. § 2(d)(1) ("An eligible employee requesting leave under subsection (b) of this Code section shall provide reasonable notice to the employer prior to the absence and make reasonable effort to plan the absence so as not to unduly disrupt the operations of the employer.").

25. Id. § 2(d)(3) ("An employer with three or fewer employees at the same location may reasonably limit the number of employees allowed to take a planned absence on the same calendar day.").

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