Labor & Employment Law
| Jurisdiction | Georgia,United States |
| Publication year | 2020 |
| Citation | Vol. 71 No. 1 |
Labor & Employment Law
W. Melvin Haas III
W. Jonathan Martin II
Alyssa K. Peters
Patricia-Anne Brownback
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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, 2018 to May 31, 2019,2 that affect labor and employment relations for Georgia employers.
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A. Georgia's Hope Act
Effective July 1, 2019, Georgia's Hope Act (the Act)3 amends Chapter 12 of Title 16 of the O.C.G.A., providing for the production, manufacturing, and dispensing of low THC oil. The Act now also provides an exception to possession and purchase of certain quantities of low THC oil.4 Patients in the registry were permitted to possess up to twenty ounces of the oil, but they were required to purchase this oil from out of state.5 In-state production and sale of low THC, coupled with the expansion of individuals qualified for the registry,6 could mean a greater number of employees using low THC oil. While the passage of this legislation may raise questions for Georgia employers, the carve-out provision for employers in O.C.G.A. § 16-12-191(g)7 remains intact.8 Employers are not required to:
permit or accommodate the use, consumption, possession, transfer, display, transportation, purchase, sale, or growing of marijuana in any form, or to affect the ability of an employer to have a written zero tolerance policy prohibiting the on-duty, and off-duty, use of marijuana, or prohibiting any employee from having a detectable amount of marijuana in such employee's system while at work.9
In a nut shell, the new legislation seems designed to expand the network of dispensaries, expand the business opportunities for the manufacturing of the oil, and expand the list of illnesses that would
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authorize use of the oil. However, it does not appear to have the effect of (and specifically disavows) the accommodation of THC at work.10
B. Changes in Unemployment Weekly Benefit Amounts
Effective May 6, 2019, Georgia House Bill 37311 revises subsections (b) and (c) of O.C.G.A. § 34-8-193,12 relating to the determination of weekly benefits amounts. Beginning on July 1, 2019, when the weekly amount "would be more than $26.00 but less than $55.00, the individual's weekly benefit amount will be $55.00, and no weekly benefit amount shall be established for less than $55.00."13 Also, "[f]or claims filed on or after July 1, 2019, the maximum weekly benefit amount shall not exceed $365.00."14
C. Changes in Workers' Compensation Rates
Senate Bill 13515 amended subsection (a) of O.C.G.A. § 34-9-20016 relating to compensation for medical care, treatment, and supplies, among others. For non-catastrophic injuries occurring after July 1, 2013, the maximum period of 400 weeks shall not be applicable to certain durable medical equipment (DME) and prosthetic devices.17
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A. Employment At-Will
Georgia's employers are protected from wrongful termination lawsuits by the doctrine of "employment at will."18 Whereas the doctrine of employment at will has been eroded in other jurisdictions by public policy exceptions,19 the doctrine of employment at will remains strong in Georgia.20 It is protected by statute21 and contract provisions specifying "'permanent employment,' 'employment for life,' [and] 'employment until retirement,'"22 or contracts specifying an annual salary do alter the application of the doctrine.23 Only employment contracts specifying a definite period of employment are actionable as a breach of contract, and any employment beyond that period becomes employment at-will.24
Similarly, oral promises between an employer and employee will not modify the doctrine; absent a written contract, an employee's status remains at-will.25
In Shelnutt v. Mayor of Savannah,26 Christopher Shelnutt and twenty-one other firefighters challenged the trial court's grant of summary judgment for the City of Savannah (the City).27 The
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firefighters claimed that the City was not honoring its contractual obligation because the City was not paying them in accordance with the terms of the pay policy.28 Under the pay policy, agreed to by the firefighters at the beginning of employment, the firefighters would receive gradual increases in pay if they were promoted. This policy was amended throughout the years leading up to Shelnutt's complaint, with different plaintiff firefighters being hired under different versions of the pay policy.29 The trial court originally dismissed the firefighters' complaint because the court found them to be at-will employees of the City and promises of a future change in compensation were not enforceable.30 Shelnutt 1 reversed this decision, holding that while future promises of "change in compensation are generally unenforceable—each firefighter 'may be able to point to the version of the pay policy in effect at the time he or she was hired and show that it provided for a definite percentage pay increase conditioned on promotion to a supervisory position.'"31 On remand, the trial court again sided with the City, granting summary judgment for the remaining twenty-one firefighters and finding that the City was in compliance with its pay policy with the firefighters.32 On appeal, the firefighters argued that the trial court erroneously interpreted the court's decision in Shelnutt 1 by finding that only the pay policy in effect at the time of a firefighter's hire could give rise to contractual rights in an at-will relationship.33 The Georgia Court of Appeals disagreed, reaffirming its holding that "a promise of a future change in compensation generally is unenforceable since neither party is bound to continue performance under the contract at all, this rule does not apply to a promise of future compensation made at the beginning of the employment relationship. Such a promise is enforceable."34
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B. Breach of Contract (Other than At-Will)
For an employment agreement to be enforceable, it must include all traditional elements of a contract: offer, acceptance, and consideration.35 Additionally, it must include all necessary terms, and the terms must be definite.36
In Phillips v. Adams, Jordan & Herrington, P.C.,37 the Georgia Court of Appeals upheld a trial court's grant of summary judgment in favor of the defendant, a law firm (the firm), holding that the employment agreement between the plaintiff and the firm was too indefinite to be enforced.38 In December 2013, when hired, the plaintiff entered into an employment agreement with the firm. The agreement outlined that following successful resolution of the case, the plaintiff "would be paid a 'portion of the fee,' 'on a case by case basis,' based on 'the extent' of his work on the case."39 In addition, either party could terminate the agreement "upon thirty (30) days written notice."40
In 2014, the plaintiff requested to be switched to a salary with the understanding that his pay from cases as outlined in the December 2013 agreement would be reduced as a result.41 As the plaintiff began to successfully resolve cases, he perceived that his compensation was not in line with the December 2013 agreement. The firm responded to his concerns in writing, stating that the plaintiff requested to be paid on a salary as opposed to the pay structure under the December 2013 agreement. The plaintiff subsequently sued the firm claiming breach of contract and quantum meruit.42
The court of appeals held the December 2013 agreement to be unenforceable.43 For an employment contract to be enforceable, "the promise of future compensation must . . . be for an exact amount or based upon a formula or method for determining the exact amount of the [payment]."44 The court went on to state that where future compensation is based "at least in part" by "future exercise of
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discretion" then that is essentially a promise to change compensation in the future, which is unenforceable.45 The court focused on the firm's ability to change the plaintiff's compensation in the future based on arbitrary terms, such as "the extent" of his work "fairly determined by the partners," in declining to find the employment contract enforceable.46 The court noted, and the plaintiff also admitted in his testimony, there was no formula to determine his compensation between himself and the firm.47 In other words, there was no way to value his contributions to the firm and therefore the agreement was too vague to be enforceable.48 While the court granted summary judgment on the breach of contract claim, it allowed the quantum meruit claim to proceed to trial to determine if the December 2013 agreement was terminated and, if not, if the plaintiff was entitled to compensation for the benefit provided to the firm.49
C. Whistleblower Act
Georgia's Whistleblower Act (GWA) provides: "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 . . . ."50 A public employee establishes a prima facie violation of the GWA by proving four elements: "(1) [the plaintiff] was employed by a public employer; (2) [the plaintiff] made a protected disclosure or objection; (3) [the plaintiff] suffered an adverse employment action; and (4) there is some causal relationship between the protected activity and the adverse employment action."51 The establishment of a prima facie case creates a presumption of retaliation which the employer rebuts by producing a legitimate, non-retaliatory
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reason for the employment action.52 "The burden then returns to the plaintiff to prove that the employer's reasons are pretextual."53
In Franklin v. Pitts,54 the Georgia Court of Appeals overruled in part its decision in Freeman v. Smith,55 holding...
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