Labor and Employment Law
W. Jonathan Martin II
Alyssa K. Peters
Patricia-Anne Brownback
Aaron Chang
Amanda Morejon
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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, 2020, through May 31, 2021, that affect labor and employment relations for Georgia employers.1
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A. Time and Accommodations for Nursing Mothers
Effective August 5, 2020, employers must provide for reasonable unpaid break time each day for an employee who needs to express breast milk at the worksite during work hours.2 Employers must provide "a private location, other than a restroom,"3 where the employee can express breast milk (previously, the language was permissive and stated that an employer "may make reasonable efforts" to provide a room or other location to the employee).4 Employers who have less than fifty employees can utilize an exception to this obligation if it would impose an undue hardship on the employer.5
B. SB 288: Changes in Georgia's Criminal History Report Records
"On January 1, 2021, Georgia joined forty-one other states in allowing a person to remove certain convictions from their criminal record after a period of 'conviction-free' years."6 Senate Bill 2887 amended section 35-3-37 of the Official Code of Georgia Annotated to allow individuals with certain felony and misdemeanor convictions on their record the potential to clear and restrict their criminal history report or criminal record by allowing the restriction and sealing of up to two misdemeanor convictions during a person's lifetime and of pardoned felonies.8 Additionally, once sealed, an individual's criminal history record information is not available to private persons or businesses.9
Notably, SB 288 also added a new code section 24-4-419 of the Official Code of Georgia Annotated,10 which provides protections to employers who bring suit based on conduct of their employees or agents. In those cases, the employee's criminal history will not be admissible against an employer if:
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(1) The nature of such criminal history record information is not relevant to the facts underlying such proceeding or the veracity of the witness;
(2) Prior to the act giving rise to such proceedings, criminal history record information was restricted or sealed as provided in Code Section 35-3-37, or a pardon for such conduct was granted; or
(3) Such criminal history information is for an arrest or charge that did not result in a conviction.11
C. SB 443: Changes in Georgia's Garnishment Laws
On August 5, 2020, Governor Brian Kemp signed Senate Bill 443,12 which modified portions of section 18-4-1 of the Official Code of Georgia Annotated, Georgia's garnishment laws.13 The amendment went into effect on January 1, 2021.14 The most notable change for employers was the garnishment period for continuing garnishments being extended from 179 days (six months) to 1,095 days (three years).15 Thus, employers facing continuing garnishments must file answers through the 1,095-day period, or until the debt has been repaid in full or otherwise discharged.16
SB 443 also expanded the garnishment statute to now apply to a person or entity "under periodic obligations for payment," which can include independent contractors and workers in the "gig" economy.17 For employers that hire an independent contractor or "an employee of such garnishee subject to federal and state income tax withholding," the employer is not considered to have knowledge of or have an obligation to determine any exemptions based on disposable earnings, until the garnishee is served with or consents to a court order or filed modification form that establishes an alternative basis for determining the amount subject to garnishment.18 In light of these new changes to the Georgia garnishment laws, all Georgia employers should review their internal policies and procedures for processing garnishments and adjust them accordingly.
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A. Employment At-Will
For an employment agreement to be enforceable, it must include all necessary terms, and the term of employment must be definite.19 If an employment contract does not state the duration of the term of employment, the contract is "terminable at the will of either party."20
In Zulke v. AC&DC Power Technologies, LLC,21 the Georgia Court of Appeals reversed the Clayton County Superior Court's grant of summary judgment in favor of the employer defendant, holding that the Georgia Statute of Frauds did not bar the plaintiff's contract of employment, including the benefit provisions.22 In April of 2012, the defendant made a verbal employment offer to James Zulke, and subsequently emailed him a written offer specifying the terms of his employment as the chief operations officer.23 The letter that the defendant sent was dated March 2012, and had no employment start date or duration dates; but did provide "a first year salary of $130,000, with an incentive payment 'after the first year of operations' conditional on meeting company goals in overhead reduction, profitability, and revenue increase."24
On April 23, 2012, Zulke returned the defendant's edited employment contract document with an added provision that if he was terminated for any reason within the first year, he would receive "nine 'monthly payments of the base salary amount paid on the first of each month,' reduced to six payments if he was 'terminated for any reason during the second and third years.'"25 Zulke began his employment in May of 2012 and was later terminated in September of 2014. Zulke did not receive the value of his ownership interest, nor any incentive bonus or severance upon his termination, and sued the company for breach of contract, promissory estoppel, and attorney's fees.26
The court of appeals held that since the employment was terminable at will at any point, it logically could have been terminated within the first year and did not fall under the Georgia Statute of Frauds.27 However, after he completed his first year, he was only entitled to the
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pay that he earned up to discharge because he was an employee at will and did not have a contract entitling him to any more pay for his work.28 The court of appeals denied summary judgment as to the benefits issue as well because, arguably, Zulke earned the severance agreement upon commencement of his second year, which means it also was not barred by the Statute of Frauds.29 Therefore, the court remanded this issue back to the trial court for a jury to decide.30
Under the doctrine of respondeat superior, an employer may be held vicariously liable for the negligence or intentional torts of employees that are committed within the scope of their employment.31 To hold an employer vicariously liable for the torts of an employee, the following elements must be established: (1) the employee was acting in furtherance of the employer's business; and (2) the employee was acting within the scope of the employer's business.32
A. Vicarious Liability and Apportionment of Fault
In Quynn v. Hulsey,33 the Supreme Court of Georgia fundamentally reversed prior precedent commencing in the 1960s, when it held that section 51-12-33 of the Official Code of Georgia Annotated,34 known as the apportionment statute, abrogated the respondeat superior rule.35 The longstanding precedent for negligence cases in Georgia was that a plaintiff may not recover damages if they are 50% or more at fault.36 When the tortious conduct was done by an employed person in the course and scope of business, an employer could defeat claims of negligent hiring, supervision, training, entrustment, or retention by admitting that it is vicariously liable under respondeat superior.37 By admitting
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respondeat superior, the employer's own negligence would not be considered by the jury for purpose of apportioning damages.38
Here, the defendant, Riley Hulsey, was driving a truck owned by his employer, TriEst, when he struck and killed an individual attempting to cross the street. The administrator of the estate brought a wrongful death and personal injury action against the defendant and his employer, alleging negligent entrustment, hiring, training, and supervision. The jury found that the decedent was 50% at fault, and the defendant and his employer were 50% at fault; thus, the estate could not recover damages.39 The State Court of Gwinnett County, affirmed by the Georgia Court of Appeals, held that TriEst was entitled to summary judgment on the plaintiff's claims for negligent entrustment, hiring, training, supervision, and retention, as the statute and case law precedent provided.40
Granting certiorari, the Supreme Court of Georgia held that the employer's independent acts of negligently hiring, entrusting, retaining, and supervising are separable from the employee's actions—not a "concerted act between an employer and its employee"—thus, the plaintiff's claims of negligent hiring, training, entrustment, and supervision were in themselves allegations of fault within the apportionment statute.41
The supreme court held that the lower courts erred, within the plain language and strict construction of O.C.G.A. § 51-12-33, by not apportioning fault onto TriEst, and erred in finding that TriEst's own admittance of vicarious liability entitled it to summary judgment on the plaintiff's claims.42 Analyzing and construing the statute strictly, the court concluded that O.C.G.A. § 51-12-33 "mandates that the jury be allowed to consider the fault of all persons who contributed to the alleged injury or damages," and abrogated the historic precedent of the respondeat superior rule.43
B. Vicarious Liability and Negligence
In Johnson v. Avis Rent A Car System, LLC,44 Brianna...
