Georgia Employment Handbook

GEORGIA EMPLOYMENTLAW HANDBOOK Guide to Workplace Issues 2015

Table of Contents

Chapter 1: Employment at Will xxChapter 2: Georgia Discrimination Statutes and Related Laws xxA. Age Discrimination (O.C.G.A. § 34-1-2) xx xxB. Equal Pay (O.C.G.A. § 34-5-3) xx xxC. Employee Jury Duty and Attendance at Judicial Proceedings (O.C.G.A. § 34-1-3) xx xxD. Georgia Fair Employment Practices Act (O.C.G.A. § 45-19-20 et seq.) xx xxE. Georgia Right To Work Law (O.C.G.A. § 34-6-21 et seq.) 3 xx xxF. Negligent Hiring (O.C.G.A. § 34-7-20) xx xxG. Georgia Equal Employment for Persons with Disabilities Code (O.C.G.A. § 34-6A-1 et seq.) xx xxH. Retaliation for Garnishment xx xxI. Protection of Employees Objecting to Performing Abortions xxJ. Protection for Employees Assisting in Combating Medicaid Fraud xx xxK. Whistleblower Protection for Public Employees xx xxL. City of Atlanta Antidiscrimination Ordinance xx xx1. Overview xx xx2. Retaliation xx xx3. Exceptions xx xx4. Enforcement xx xxM. The Augusta-Richmond County Equal Opportunity Policy xx xxChapter 3: Federal Discrimination Statutes Applicable in Georgia xx A. Title VII of the Civil Rights Act of 1964 (“Title VII”) xx 1. Coverage and Requirements for Compliance Under Title VII xx 2. Categories Protected Under Title VII xx B. Title I of the Americans with Disabilities Act of 1990 (“ADA”) xx 1. Introduction xx 2. “Qualified Individual with a Disability” xx 3. “Reasonable Accommodation” xx 4. “Undue Hardship” xx 5. Prohibited Inquiries and Examinations xx 6. Drug and Alcohol Use xx C. Civil Rights Act of 1991 xx D. 42 U.S.C. Section 1981 xx E. Age Discrimination in Employment Act of 1967 (“ADEA”) xx F. The Rehabilitation Act of 1973 G. Genetic Information Nondiscrimination Act of 2008 3 1. Coverage and Requirements for Compliance under GINA 2. Acquisition of Genetic Information and Exceptions 3. Confidentiality H. Fair Labor Standards Act (“FLSA”) I. Equal Pay Act of 1963 (“EPA”) J. Family and Medical Leave Act (“FMLA”) K. Occupational Safety and Health Act of 1970 (“OSHA” Antiretaliation Provision) L. Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (“VEVRAA”) M.Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) N. National Labor Relations Act (“NLRA”) O. Worker Adjustment and Retraining Notification (“WARN”) Act P. Federal Contractors and Subcontractors 1. Executive Order 11246 2. The Rehabilitation Act of 1973 3. The Vietnam Era Veterans Readjustment Assistance Act of 1974 (“VEVRAA”)

Chapter 4: E-Verify xxChapter 5: Jury Service xx A. Overview xx B. “Penalize” xx C. Notice xx D. Civil Action xxChapter 6: Voting Leave xx A. Overview xx B. Notice xx C. Time Requirements xx D. Compensation xxChapter 7: Military Leave xx xxChapter 8: Common Day of Rest xxChapter 9: Wage Payment Statute xx A. How Often Must Georgia Employers Pay Employees? xx B. Deductions from Wages xxChapter 10: Direct Deposit xxChapter 11: Record-Keeping and Posters xx A. Record-Keeping xx B. Required State Posters xx 1. Equal Pay for Equal Work xx 2. Unemployment Insurance for Employees xx 3. Employer Vacation xx 4. Bill of Rights for the Injured Worker xx 5. Panel of Physicians, Conformed Panel of Physicians, and WC/MCO Panel of Physicians xx C. Required Federal Posters xx 1. Employee Rights Under the Fair Labor Standards Act xx 2. Your Rights Under the Family and Medical Leave Act xx 3. Job Safety and Health: It’s the Law xx 4. Equal Employment Opportunity Is the Law xx 5. Employee Rights on Government Contracts xx 6. Employee Polygraph Protection Act xx 7. E-Verify xx 8. Genetic Information Nondiscrimination Act xx xxChapter 12: Garnishment xx A. Overview xx B. Procedure xx C. Retaliation xxChapter 13: Unemployment Compensation xxChapter 14: Smoking xx4 Georgia Employment Law Handbook

Chapter 15: Duty to Report Newly Hired Employees xx A. Do I Have to Report? xx B.How Do I Report New Hires? xx C.When Do I Have to Report New Hires? xxChapter 16: Prohibiting Guns at Work and the Employer’s xxRight to Search Employee Vehicles xxChapter 17: Georgia First Offenders Statute xxChapter 18: Restrictive Covenants and Protection of Confidential Information xx A. Why the Date of the Agreement Matters xx B. The New Statute – May 11, 2011 Forward xx C. Prior Law xx 1. Noncompetition xx 2. Nonsolicitation Covenants Under Prior Law xx D. Trade Secrets xxChapter 19: Drug Testing xx A. Introduction xx B. The Georgia Workers’ Compensation Drug-Free Workplace Law xx 1. A Written Policy on Substance Abuse in the Workplace xx 2. Notice of the Drug-Free Workplace Program xx 3. Substance-Abuse Testing xx 4. Employee Assistance Resources xx 5. Employee Education About Substance Abuse xx 6. Supervisory Training Regarding Substance Abuse xx C. Disqualification from Workers’ Compensation Benefits Based on a Positive Substance-Abuse Test xx D. Disqualification from Unemployment Benefits Based on a Positive Drug Test xx E. Requirements for Federal and State Contractors xx F. Impact of Federal and State Disability-Discrimination Laws xxChapter 20: Right to Work Statute(Prohibition Against Compelling Union Membership) xxChapter 21: Strike Violence and Mass Picketing xxChapter 22: Negligent Hiring, Supervision, and Retention xxChapter 23: OSHA - Occupational Safety and Health xx xxChapter 24: Medical Benefits Continuation – COBRA and Georgia Law xx A. Federal COBRA Requirements xx 1. Qualifying Events That Trigger COBRA Rights xx 2. Limited Exceptions xx 3. Notice Requirements xx 4. Additional Notice Requirements xx 5. Benefits and Cost of Coverage xx 6. Period of Coverage B. Georgia COBRA Requirements 5

Chapter 25: Workers’ Compensation xx A. Coverage xx B. Exclusive Remedy xx C. Compensable Injuries and Diseases xx D. Frequent Changes xx E. Compensation xx F. Procedure xx G.Poster xx H. Insurance xxChapter 26: Wage and Hour Requirements xx A. Georgia Minimum Wage Law xx B. The Fair Labor Standards Act of 1938 xx 1. Overview xx 2. Coverage xx 3. The FLSA’s Requirements xx 4. Enforcement and Damages xxChapter 27: Child Labor xx A. Overview xx B. Required Documentation xx C. Permitted Employment xx D. Work-Hour Restrictions xx 1. Ages 12 to 16 xx 2. Age 16 or Older xx E. Termination of Employment xx F. Entertainment Industry Employment xxChapter 28: Termination of Employees xx A. Termination of an Employee xx B. Plant Closings and Mass Layoffs xx6 Georgia Employment Law Handbook

IntroductionGeorgia is probably the most employer-friendly state in the country. It has a strong tradition of protectingemployment at will and the right of the employer and employee to freely decide if they will continue theemployment relationship. Georgia is a “right to work” state that does not compel unwilling workers tojoin unions. In short, it provides an environment that is conducive to the successful operation of goodbusiness.However, Georgia employers are still subject to a number of restrictions. Although Georgia doesnot duplicate many of the federal antidiscrimination laws as some other states do, the federal equalemployment laws are vigorously enforced in Georgia. In addition, there are a number of state laws andrestrictions that employers must keep in mind.This book is intended to provide an introduction to this regulatory landscape. It is not, of course, anattempt to provide legal advice or a substitute for consultation with a lawyer or analysis of specificcircumstances and legal authorities.Georgia is probably the most employer-friendly state in the country. It has a strong tradition of protectingemployment at will and the right of the employer and employee to freely decide if they will continue theemployment relationship. Georgia is a “right to work” state that does not compel unwilling workers tojoin unions. In short, it provides an environment that is conducive to the successful operation of goodbusiness.However, Georgia employers are still subject to a number of restrictions. Although Georgia doesnot duplicate many of the federal antidiscrimination laws as some other states do, the federal equalemployment laws are vigorously enforced in Georgia. In addition, there are a number of state laws andrestrictions that employers must keep in mind.This book is intended to provide an introduction to this regulatory landscape. It is not, of course, anattempt to provide legal advice or a substitute for consultation with a lawyer or analysis of specificcircumstances and legal authorities.

Chapter 1: Employment at WillGeorgia generally follows the traditional employment-at-will rule and has adopted it by statute.1 Underthis rule, in the absence of a contract providing otherwise, either party may terminate the employmentrelationship with or without cause or notice for any reason, so long as the reason is not a prohibited one. Insome cases, it may be implied that employment was intended to continue for the pay period stated.Georgia is perhaps the most pro-employer jurisdiction in the country with regard to employment at will.However, this does not mean that a discharge can never be unlawful. If there is a valid employmentcontract for a defined term of employment, it may be enforced. Terminations contrary to discriminationlaws, or other employment statutes, will be unlawful. Although Georgia does not have a statute requiringemployers to provide severance pay to terminating employees, promises to pay employees certain types ofbenefits, such as termination pay, can be enforced in some circumstances.Further, although Georgia does not typically permit the employment-at-will status to be modified byvague statements in employee handbooks and policy manuals, it is prudent for employers to prepareagainst the possibility that the Georgia courts might adopt a different approach in the future. Thus, theinclusion of contract disclaimers and the avoidance of promises of job security in company documents isrecommended. 1O.C.G.A. § 34-7-1.8 Georgia Employment Law Handbook

Chapter 2: Georgia DiscriminationStatutes and Related Laws

Chapter 2: GeorgiaDiscrimination Statutesand Related Laws

A. Age Discrimination (O.C.G.A. § 34-1-2) This statute applies to any employer and covers employees between ages 40 and 70. Under the law, employment discrimination based on age is a misdemeanor punishable with a fine of up to $250, provided that the reasonable demands of the position do not require the employment of a younger individual and that the alleged victim of age discrimination is qualified physically, mentally, and by training and experience. The statute does not provide a private right of action for damages.B. Equal Pay (O.C.G.A. § 34-5-3) This statute prohibits employers with ten or more employees from sex-based discrimination against employees in pay for performing equal work in jobs requiring equal skill, effort, and responsibility performed under similar working conditions. The law includes the following exceptions, permitting a pay differential when the following exist and result in the differential: (1) a seniority system; (2) a merit system; (3) a system measuring earnings by quality or quantity; or (4) where the differential is based on a factor other than sex. The law also contains an antiretaliation provision.C. Employee Jury Duty and Attendance at Judicial Proceedings (O.C.G.A. § 34-1-3) This statute prohibits all employers from discharging, or threatening to discharge, an employee who is absent from work to attend a judicial proceeding in response to court order or process. Aggrieved employees may file a civil action to recover actual damages suffered and reasonable attorneys’ fees.D. Georgia Fair Employment Practices Act (O.C.G.A. § 45-19-20 et seq.) This statute covers any state employee employed in a state agency with at least 15 employees. The statute prohibits discrimination in public employment on the bases of race, color, religion, national origin, sex, disability, or age (40-69). Complaints are filed with the Georgia Commission on Equal Opportunity.E. Georgia Right To Work Law (O.C.G.A. § 34-6-21 et seq.) Under this statute: (1) membership or nonmembership in a labor organization cannot be a condition of employment; (2) payments to a labor organization cannot be a condition of employment; and (3) contracts requiring such memberships or payments are void and illegal. The remedies available include actual damages, injunctive relief, attorneys’ fees, and other equitable remedies.F. Negligent Hiring (O.C.G.A. § 34-7-20) Employers are required to exercise ordinary care in the selection of employees and not to retain them after obtaining knowledge of their incompetency. To obtain a judgment against an employer for negligently hiring or retaining an incompetent employee, a plaintiff injured by an employee must prove that: • The employee was incompetent; • The plaintiff’s injury results proximately from the incompetency; and • The employer knew, or should have known, of such incompetency. As noted below, this principle does not override the exclusivity of the Georgia Workers’ Compensation Act, under which the exclusive remedy by an employee against his/her employer for an on-the-job accident or injury is the Workers’ Compensation scheme. 11

G. Georgia Equal Employment for Persons with Disabilities Code (O.C.G.A. § 34-6A-1 et seq.) This statute prohibits Georgia employers with 15 or more employees from discriminating against employees on the basis of a disability. Unlike the federal Rehabilitation Act and the Americans with Disabilities Act, which also prohibit disability-based discrimination, there is no requirement under the Georgia statute for employers to provide a reasonable accommodation to disabled employees. In a further departure from federal law, the Georgia statute does not prohibit employers from making job- related inquiries to applicants and employees about the existence of a disability or about the extent to which a disability has been overcome by treatment, medication, appliances, or other rehabilitation. The statute also expressly permits rejection of an applicant on the basis that he or she suffers from, or carries, any communicable disease. The statute provides an aggrieved employee a private cause of action within 180 days of alleged prohibited conduct and contains an antiretaliation provision protecting individuals who assert claims under the statute.H. Retaliation for Garnishment Georgia prohibits employers from “discharg[ing] any employee by reason of the fact that his earnings have been subjected to garnishment for any one indebtedness, even though more than one summons of garnishment may be served upon such employer with respect to the indebtedness.”2I. Protection of Employees Objecting to Performing Abortions A Georgia medical facility employee may state in writing his/her objection on moral or religious grounds to participating in the performance of an abortion. Having done so, the employee cannot be disciplined or subjected to other adverse action for refusing to participate in the performance of an abortion.3J. Protection for Employees Assisting in Combating Medicaid Fraud Georgia law prohibits false Medicaid claims and provides for a civil action to deal with them.4 To further this effort, Georgia law prohibits discrimination, including discipline and discharge, against employees because of lawful acts by them to stop violations of the Medicaid fraud law.5 Discriminating against an employee for assisting in a Medicaid fraud lawsuit would constitute such illegal discrimination.K. Whistleblower Protection for Public Employees Although not applicable to private employers, Georgia does provide whistleblower protection for many state employees.6 State agencies are prohibited from retaliating against a state employee for disclosing, objecting to, or refusing to participate in an activity, policy, or practice that the employee has reasonable cause to believe violates laws, rules or regulations. This statute provides for a private right of action with possible reinstatement, lost wages and benefits, and compensatory damages available for the state employee.2 O.C.G.A. § 18-4-7.3 O.C.G.A. § 16-12-142.4 O.C.G.A. § 49-1-168 et seq.5 O.C.G.A. § 49-1-168.4.6 O.C.G.A. § 45-1-4.12 Georgia Employment Law Handbook

L. City of Atlanta Antidiscrimination Ordinance 1. Overview In addition to federal and state discrimination statutes, private employers with ten or more employees located in Atlanta must adhere to the City’s Fair Private Employment Ordinance. Under this ordinance, employers are prohibited from discriminating against employees or applicants for employment on the basis or perception of the individual’s race, color, creed, religion, sex, domestic relationship status, parental status, familial status, sexual orientation, national origin, gender identity, age, and disability. Unlawful employment discrimination includes using membership in the protected categories as: (1) the basis for decisions regarding hire, termination, compensation, or other terms, privileges, and conditions of employment; or (2) a means to limit, segregate, or otherwise classify employees or applicants for employment “in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his or her status as an employee.” Atlanta’s employment discrimination ordinance is much broader than federal and state law in that domestic relationship status, parental status, familial status, sexual orientation, and gender identity are protected categories. Gender identity is a person’s self-perception including his or her identity, expression, and physical characteristics, as well as “attitudes, preferences, beliefs, and practices pertaining thereto.” Familial status refers to a person who lives with one or more minor children, whereas parental status “means being a parent, step-parent, adoptive parent, guardian, foster parent or custodian of a minor child or children.” Neither of these classifications applies to persons, single or married, without children. On the other hand, “domestic relationship status” encompasses the presence or absence of any relationship status, whether between persons of the same or opposite sexes. 2. Retaliation In addition to outlawing discrimination based on a protected category, employers may not retaliate against any individual for exercising his or her rights under this ordinance. Employers also may not “intimidate, harass, retaliate, obstruct, or discriminate” against an individual because he or she has complied with any of the Atlanta anti-discrimination ordinances. The ordinance further prohibits employers from aiding, abetting, inciting, compelling, or coercing others to discriminate in employment, public accommodation, or the sale or rental of housing. 3. Exceptions Despite the above prohibitions, the ordinance permits an employer to hire, refer, classify, or train an employee on the basis of his or her religion, sex, and disability, if sex, religion, or physical/mental ability “is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise, provided that in the case of a disability, the employer...has made reasonable accommodation to the full extent required by the Americans With Disabilities Act.” Note that in Atlanta, unlike with the federal statutes, national origin may not be the basis for a bona fide occupational qualification. 13

4. Enforcement In order to establish an unlawful employment complaint, an employee need only prove that one of the protected categories was a motivating factor behind the employer’s action. Persons believing they have been unlawfully discriminated against may file a verified complaint with the city’s Human Relations Commission (“Commission”) within 180 days of the discriminatory event. The complaint is then investigated by the director of the Mayor’s office of constituent services who reports his or her findings to the Commission. Based on this report the Commission may conduct further investigation, dismiss the complaint, or attempt to eliminate the discriminatory practice through conference, conciliation, or persuasion. In the event of conciliation, the commission will serve a conciliation agreement upon the employer. If the employer agrees to the proposed agreement or fails to object in writing within 15 days of receiving the agreement, the Commission may formally enter into the conciliation agreement. Notwithstanding, the complaining employee may also object to the conciliation agreement. If the employee objects, the Commission may hold a hearing on the complaint. However, where the Commission finds the conciliation agreement to be in the public interest, it “may either dismiss the objections as being without substance or may hold a hearing limited to the objections of the complainant.” In the event of a hearing and a finding of discrimination, the Mayor and the appropriate department of city government must respond to the Commission’s findings within 30 days. The Mayor may respond to a finding of employment discrimination by issuing a cease-and-desist letter or determining whether due cause exists to revoke the employer’s professional or business license(s) or municipal contract(s). Within one year of a conciliation agreement or hearing, the Commission must investigate the employer to ensure that it is complying with the terms of the agreement or recommendations. An aggrieved person may commence action in Atlanta Municipal Court, in addition to, or in lieu of the above procedure. However, if the aggrieved person has already obtained a settlement or conciliation agreement from the Commission, enforcement of the settlement or agreement is the only remedy available in the Atlanta Municipal Court proceedings.M. The Augusta-Richmond County Equal Opportunity Policy The Augusta-Richmond County equal opportunity policy states that the Augusta-Richmond County government will encourage the meaningful involvement in its operations of all citizens of Augusta- Richmond County, particularly those who are minorities or members of traditionally disadvantaged groups. The government will provide equal employment opportunities to all persons regardless of race, sex, religion, gender, creed, color, or national origin. The Augusta-Richmond County government is also committed to ensuring the participation of all minorities, including African-Americans, women, and small businesses in providing goods and services to the government. However, unlike the Atlanta antidiscrimination ordinances, the Augusta-Richmond County equal opportunity policy does not provide for a private right of action to aggrieved individuals.14 Georgia Employment Law Handbook

Chapter 3: Federal DiscriminationStatutes Applicable in Georgia

The following is a brief summary of major federal employment statutes. These summaries are not intendedto substitute for legal advice, and statutes and case law should be reviewed for a full understanding of thedetails of these laws.A. Title VII of the Civil Rights Act of 1964 (“Title VII”)1. Coverage and Requirements for Compliance Under Title VII Title VII covers all private employers and state and local governments that employ 15 or more individuals, labor organizations, and employment agencies that employ 15 or more individuals. Title VII makes it unlawful to discriminate against applicants and employees on the basis of their race, color, sex, religion, or national origin. Title VII prohibits discrimination in a number of areas of employment, including (i) hiring and firing; (ii) compensation, (iii) assignment or classification of employees; (iv) transfer, promotion, layoff, or recall; (v) job advertisements; (vi) recruitment; (vii) testing; (viii) use of company facilities; (ix) training and apprenticeship programs; (x) fringe benefits; (xi) pay, retirement plans, and disability leave; and (xii) other terms and conditions of employment. Discriminatory practices under Title VII also include (i) harassment on the basis of race, color, religion, sex, or national origin; (ii) retaliation against an individual for filing a charge of discrimination, participating in an investigation of alleged discrimination, or opposing discriminatory policies or practices; (iii) employment decisions based on stereotypes or assumptions about the abilities, traits, or performance of individuals of a certain sex, race, religion, or ethnic group; and (iv) denying employment opportunities to a person because of marriage to, or association with, an individual of a particular race, religion, or national origin. Finally, Title VII requires that employers post notices to all employees advising them of the rights available under Title VII. Such notices must be accessible, as needed, to persons with visual or other disabilities that affect reading. The law is enforced by the Equal Employment Opportunity Commission (“EEOC”), which can file litigation in federal court. Private individuals who file a charge of discrimination with the EEOC within 180 days of a discriminatory event and comply with administrative prerequisites may file lawsuits to enforce their rights. 2. Categories Protected Under Title VII a. Race and Color A principal focus of Title VII is the prohibition against discrimination on the basis of race and color. Employment decisions motivated by race or color are generally illegal, except in the rare instances where race or color is a bona fide occupational qualification. Further, reliance on racial stereotypes can render an employment decision unlawful. In addition, basing an employment decision on a facially neutral factor or condition that disproportionately affects a particular race may, under certain circumstances, be prohibited under a disparate impact theory if the use of that criteria adversely affects a particular race. Discrimination on the basis of color may include some types of discrimination between individuals of the same race. b. National Origin Discrimination Under Title VII’s prohibition against national origin discrimination, it is illegal to discriminate against an individual because of birthplace, ancestry, culture, or linguistic characteristics common to a specific ethnic group. A rule requiring that employees speak only English on the job may violate Title VII unless an employer shows that the requirement is necessary for conducting the business. Title VII’s prohibition of national origin discrimination overlaps broadly with the Immigration Reform and Control Act of 1986 (“IRCA”), which requires employers to assure that they hire employees who are legally authorized to work in the United States. An employer who requests employment verification only for individuals of a particular national origin or individuals who appear to be or sound foreign may violate both Title VII and IRCA; verification must be obtained from new hires.16 Georgia Employment Law Handbook

c. Religious Accommodation RequirementUnder Title VII, an employer is not permitted to discriminate against an individual because of his orher religion. Title VII also requires employers to reasonably accommodate the religious beliefs andpractices of an employee or prospective employee. Title VII’s definition of religious beliefs extends toall aspects of an employee’s religious observance and practice. Accommodation of religious beliefsand practices is not required, however, if the employer demonstrates that to do so would impose“undue hardship.” Such undue hardship may exist, for example, when the employee’s work duringan absence for religious observance cannot be performed by another employee of substantiallysimilar qualifications.d. Sex DiscriminationTitle VII prohibits harassment on the basis of sex, as well as on the basis of other prohibitedcriteria. Sexual harassment includes unwelcome sexual advances, requests for sexual favors, andother verbal or physical conduct of a sexual nature. There are two types of sexual harassment:quid pro quo and hostile environment. Quid pro quo sexual harassment occurs when a supervisoror manager makes a job benefit contingent on the exchange of sexual favors or a job detrimentcontingent on an individual’s refusal of sexual advances. Employers will be held vicariously liable forthe conduct of supervisors who commit quid pro quo sexual harassment. Hostile work environmentsexual harassment occurs when a supervisor or manager, a nonsupervisory co-worker, or a thirdparty in the workplace engages in sexually related conduct toward an employee that is so severe orpervasive that it alters the terms and conditions of employment. In the case of hostile environmentsexual harassment created by a manager or supervisor, when no tangible employment action(for example, discharge or denial of a promotion) is taken, an employer may avoid liability when ittakes prompt, reasonable steps to prevent and correct the harassing behavior. Such steps includeimplementing and enforcing an antiharassment policy, training supervisors and managers, andconducting prompt investigations of and taking remedial action against perpetrators of sexualharassment. If the hostile environment is created by a non-supervisory co-worker or a third party(such as a vendor or customer), an employer will be liable if it knew or should have known of theharassing conduct and failed to take prompt, remedial action to correct it.The prohibition on sex discrimination has recently been administratively extended to discriminationbased on a person’s gender identity or transsexualism. In 2012, the Equal Employment OpportunityCommission (“EEOC”), the agency that enforces Title VII, unanimously held that discriminatingagainst an employee or applicant on the basis of that individual’s gender identity, change of sex,and/or transgender status violates the prohibition on sex discrimination contained in Title VII. Whilethe EEOC’s decision is only directly binding on federal agencies at this time, private employerswill likely feel the impact as the EEOC will accept and investigate all charge of transgenderdiscrimination made by employees of federal, state, and private employers.e. Pregnancy Discrimination Act of 1978 (“PDA”)The Pregnancy Discrimination Act (“PDA”) amended Title VII in 1978 to extend its prohibition ofdiscrimination on the basis of sex to include discrimination based on pregnancy, childbirth, andrelated medical conditions. Under the PDA, pregnancy, childbirth, and related medical conditionsmust be treated in the same way as other temporary illnesses or conditions.In UAW v. Johnson Controls, Inc., the Supreme Court ruled that the fetal-protection program ofthe employer in that case was discriminatory. Any employer considering a fetal-protection programshould review this decision. 17

B. Title I of the Americans with Disabilities Act of 1990 (“ADA”)1. Introduction The ADA prohibits private, state, and municipal employers that employ 15 or more employees, labor organizations, and employment agencies from discriminating against otherwise qualified individuals with a disability who can perform the essential functions of a job, with or without a reasonable accommodation that does not impose an undue hardship on the employer. The ADA also prohibits discrimination against individuals, whether disabled or not, because of their relationship to or association with a person with a disability. The ADA prohibits disability discrimination in the same broad aspects of employment that apply to Title VII, as enumerated in A.1. above, and otherwise broadly prohibits disability discrimination in public services, transportation, and public accommodations. An individual with a “disability” under the ADA is a person who has a physical or mental impairment that “substantially limits” one or more “major life activities,” has a record of such an impairment, or is “regarded as” having such an impairment. “Major life activities” include activities that an average person can perform with little or no difficulty such as walking, breathing, seeing, hearing, speaking, learning, and working. The ADA Amendments Act of 2008 (“ADAAA”) retained the ADA’s basic definition of “disability” but redefined terms in each prong of the definition so as to broaden the ADA’s coverage. The ADAAA: (i) expands the definition of “major life activities” to include “major bodily functions;” (ii) redefines who is “regarded as” having a disability to include those individuals with an actual or perceived impairment; (iii) directs that the term “substantially limits” be construed in favor of expansive coverage; (iv) specifies that “disability” includes any impairment that is episodic or in remission if it would substantially limit a major life activity when active; and (v) prohibits consideration of the ameliorative effects of “mitigating measures” when assessing whether an impairment substantially limits a person’s major life activities. Major bodily functions include functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.2. “Qualified Individual with a Disability” A qualified individual with a disability is someone who satisfies the skill, experience, education, and other job-related requirements of the position held or desired, and who, with or without reasonable accommodation, can perform the essential functions of that position.3. “Reasonable Accommodation” Employers are required to reasonably accommodate qualified individuals with a disability. Reasonable accommodation may include, but is not limited to, making existing facilities used by employees readily accessible to and usable by persons with disabilities; job restructuring; modification of work schedules; providing additional unpaid leave; reassignment to a vacant position; acquiring or modifying equipment or devices; adjusting or modifying examinations, training materials, or policies; and providing qualified readers or interpreters. Reasonable accommodation may be necessary to apply for a job, to perform job functions, or to enjoy the benefits and privileges of employment that are enjoyed by people without disabilities. An employer is not required to lower production standards to make an accommodation. An employer is also not generally obligated to provide personal use items such as eyeglasses or hearing aids.4. “Undue Hardship” An employer is required to make a reasonable accommodation to a qualified individual with a disability unless doing so would impose an undue hardship on the operation of the employer’s business. Undue hardship means an action that requires significant difficulty or expense when considered in relation to factors such as a business’s size, financial resources, and the nature and structure of its operation.18 Georgia Employment Law Handbook

5. Prohibited Inquiries and Examinations Before making an offer of employment, an employer may not ask job applicants about the existence, nature, or severity of a disability. Applicants may be asked about their ability to perform job functions. A job offer may be conditioned on the results of a medical examination, but only if the examination is required for all entering employees in the same job category. Medical examinations of employees must be job-related and consistent with business necessity.6. Drug and Alcohol Use Employees and applicants currently engaging in the illegal use of drugs are not protected by the ADA when an employer acts on the basis of such use. Tests for illegal use of drugs are not considered medical examinations and, therefore, are not subject to the ADA’s restrictions on medical examinations. Employers may hold individuals who are illegally using drugs and individuals with alcoholism to the same standards of performance as other employees, including prohibitions against using or being under the influence of drugs or alcohol at work.C. Civil Rights Act of 1991 The Civil Rights Act of 1991 amended various civil rights laws, including Title VII, the ADA, and 42 U.S.C. § 1981. Among the most significant features of the 1991 Act are the changes it made to the remedial and enforcement provisions of Title VII and the ADA. The 1991 Act authorized the award of compensatory and punitive damages to individuals who have been subjected to intentional discrimination, and claimants seeking such damages are entitled to a jury trial. Under the Act, depending on the size of the employer, the sum of compensatory and punitive damages is capped at various prescribed levels: (1) $50,000 for employers with 100 or fewer employees; (2) $100,000 for employers with 101 to 200 employees; (3) $200,000 for employers with 201 to 500 employees, and (4) $300,000 for employers with more than 500 employees. However, a backpay award is not limited by the cap on compensatory and punitive damages. For claims brought under the ADA, employers who act in “good faith” (as defined by the ADA) when providing a reasonable accommodation will not be liable for compensatory and punitive damages in connection with an unlawful failure to accommodate a disability. The 1991 Act also contains restrictions on the use of employment tests by specifically prohibiting the adjustment of scores, using different cut-off scores, or otherwise altering the results of test scores on the basis of race, color, religion, sex, or national origin.D. 42 U.S.C. Section 1981 Section 1981, also known as the Civil Rights Act of 1866, prohibits discrimination on the basis of race in making and enforcing contracts, including employment contracts. The Civil Rights Act of 1991 amended Section 1981 such that it now operates generally to prohibit intentional race discrimination in employment.E. Age Discrimination in Employment Act of 1967 (“ADEA”) The ADEA prohibits employers, labor organizations, and employment agencies that employ 20 or more individuals from discriminating on the basis of age against applicants and employees who are forty years of age or older. The ADEA prohibits discrimination in the same employment areas covered under Title VII, as enumerated above in Section I.A.1. The Act also prohibits discrimination on the basis of age by apprenticeship programs, including joint labor-management apprenticeship programs, and the denial of benefits to older employees. An employer may reduce benefits based on age only if the cost of providing the reduced benefits to older workers is the same as the cost of providing benefits to younger workers. The ADEA also specifically prohibits statements of age preference and limitations in job notices and advertisements. An age limit may be specified only in the rare circumstance where age has been proven to be a bona fide occupational qualification or “BFOQ.” The Supreme Court held in General Dynamics Land Sys., Inc. v. Cline, that the statute did not prohibit “reverse age discrimination.” That is, employers are permitted to favor older workers over relatively younger ones. 19

F. The Rehabilitation Act of 1973 The Rehabilitation Act of 1973 (“Rehabilitation Act”) preceded the Americans with Disabilities Act (“ADA”) and consists of several sections covering disability discrimination. For private employers, the major sections of the Rehabilitation Act are Section 503 and Section 504. Both sections protect qualified individuals who have a disability, who have a record of a disability, or who are regarded as having a disability. In the context of employment, an individual is “qualified” if he or she is capable of performing a particular job with or without reasonable accommodations. An employer is not required to accommodate an individual’s disability if it would result in an undue hardship for the employer. Individuals currently engaging in the illegal use of drugs are not “individuals with a disability” and are not protected by the Rehabilitation Act or the ADA against adverse employment actions based on their current, illegal drug use. Section 503 of the Rehabilitation Act requires federal contractors to take affirmative action to employ and promote qualified individuals with disabilities. Specifically, Section 503 applies to any employer with a federal contract or subcontract in excess of $10,000 for the purchase, sale, or use of personal property or nonpersonal services, including construction. Regulations promulgated to enforce Section 503 provide specific steps that employers must follow to ensure that they are complying with Section 503’s affirmative action requirement. If an employer has a federal contract or subcontract of $50,000 or more and has 50 or more employees, it must establish an affirmative action plan in writing. In March 2014, revised regulations setting forth the affirmative action obligations under Section 503 went into effect, imposing new data-collection requirements, establishing a seven- percent utilization goal for employees with disabilities, and requiring covered contractors to invite applicants with disabilities to self-identify as such at both the pre- and post-offer stages of the hiring process. Section 503 is enforced by the Office of Federal Contract Compliance Programs, and private causes of action are not available to aggrieved individuals under Section 503. If an employer violates Section 503, its contract with the federal government may be cancelled, terminated, or suspended, the employer may be debarred from future contracts, and the employer may be liable to the aggrieved individual for back pay. Section 504 of the Rehabilitation Act applies to any program or activity that receives federal funds. Section 504 prohibits the recipients of federal funds from excluding or denying a qualified individual with a disability an equal opportunity to receive program benefits and services, including employment. To be “qualified” for participation in a federally funded program, an individual must meet all of the program’s requirements. In effect, therefore, employers who receive federal funds cannot deny employment opportunities to qualified individuals with a disability on the basis of the disability. Section 504 is enforced by the particular federal agency that has provided the federal funds, but aggrieved individuals also have a private cause of action under Section 504.G. Genetic Information Nondiscrimination Act of 20081. Coverage and Requirements for Compliance under GINA The Genetic Information Nondiscrimination Act (“GINA”) applies to employers with 15 or more employees, state and local governments, labor organizations, and employment agencies. Title II of GINA makes it unlawful to discriminate against an individual on the basis of genetic information in regard to hiring, discharge, compensation, or terms, conditions, or privileges of employment. Under Title II of GINA, it is also illegal to harass a person because of his or her genetic information. GINA also makes it illegal to fire, demote, harass, or otherwise retaliate against an applicant or employee for filing a charge of discrimination, participating in a discrimination proceeding (such as a discrimination investigation or lawsuit), or otherwise opposing discrimination. “Genetic information” is defined as information about (i) an individual’s genetic tests; (ii) the genetic tests of that individual’s family members; (iii) the manifestation of a disease or disorder in family members of the individual (family medical history); (iv) an individual’s request for, or receipt of, genetic services, or the participation in clinical research that includes genetic information by the individual or a family member of the individual; (v) genetic information of a fetus carried by an individual or family member; and (vi) genetic information of any embryo legally held by the individual or family member using an assisted reproductive technology.20 Georgia Employment Law Handbook

Individuals wishing to assert claims of discrimination under GINA must file a charge of discrimination within 180 days of the alleged discriminatory event. The claimant filing the charge may not file a lawsuit under Title II of GINA until he or she receives a “right to sue” notice from the EEOC.2. Acquisition of Genetic Information and Exceptions GINA prohibits covered employers from requesting, requiring, or purchasing genetic information relating to their employees and applicants. An employer will not be in violation of GINA’s prohibitions as long as its acquisition of the information falls into one of six narrow exceptions: (i) the employer inadvertently requests or requires genetic information about the individual or the individual’s family member, such as through a casual conversation or as part of documentation provided to support a request for a reasonable accommodation, so long as the request was lawful; (ii) the information is obtained as part of an employer-offered health or genetic services program, such as a voluntary wellness program; (iii) the information is obtained as part of an employer’s lawful request for medical information to comply with the certification provisions of the Family and Medical Leave Act (“FMLA”) or similar state laws; (iv) the employer acquires genetic information from documents that are commercially and publicly available for review or purchase; (v) the employer acquires genetic information for use in the genetic monitoring of the biological effects of toxic substances in the workplace; or (vi) the employer conducts DNA analysis for law enforcement as a forensic laboratory or for purposes of human remains identification, where the employee’s genetic information is used to detect sample contamination.3. Confidentiality Under GINA, it is also unlawful for a covered employer to disclose genetic information about applicants or employees. An employer that possesses genetic information about its employees must treat the information as a confidential medical record. Accordingly, it must maintain such information on forms and in medical files that are separate from personnel files.H. Fair Labor Standards Act (“FLSA”) The FLSA governs minimum wage, overtime pay, and child labor requirements for employees engaged in interstate commerce and for employees employed by an enterprise affecting interstate commerce. In general, the law applies to most employees for work done for most employers, although there are certain exceptions for certain industries and locations. The minimum wage requirements of the FLSA are intended to guarantee a minimum standard of living necessary for health, efficiency, and general well-being. Since July 24, 2009, the minimum wage under the FLSA has been $7.25 per hour. States are free to require employers to pay a higher minimum wage. The FLSA’s overtime provisions require that each employee be paid an overtime wage of 1.5 times the “regular” hourly rate of the employee for all hours worked over 40 in any workweek, unless the employee is considered “exempt” from overtime. This requirement can be met either by the standard 1.5 times method or by the fixed wage for fluctuating work week method if certain conditions are met. Employees who work in executive, professional, computer professional, or administrative capacities, or as outside salespersons are exempt from the overtime provisions of the FLSA. These exemptions are subject to detailed tests. Certain employees of motor carriers may also be exempt from the overtime provisions of the FLSA. Several other overtime exemptions are available under the FLSA. Employees who are not paid in compliance with the law may complain to the U.S. Department of Labor or can file a lawsuit in federal court to recover unpaid wages, attorneys’ fees, and liquidated damages. The FLSA prohibits employers from retaliating against employees who file claims under the FLSA. In addition to the foregoing remedies available in a civil lawsuit, the FLSA provides for criminal penalties (including fines and imprisonment), which are most often used for repeat offenders. The FLSA’s child labor provisions restrict the employment of children in certain industries and occupations based on their age. The FLSA generally imposes a minimum age of 16 years for most industries, although there are exceptions and further limitations. Some special provisions exist for 21

children working for parents and relatives on family farms. Often, work certificates may be required to employ youths during the school year.I. Equal Pay Act of 1963 (“EPA”) The EPA, which was enacted as an amendment to the FLSA, covers all employees who are covered by the FLSA. Virtually all employers are subject to the provisions of this Act. The EPA prohibits discrimination on the basis of sex in the payment of wages or benefits, when men and women perform equal work of equal skill, effort, and responsibility in the same establishment for the same employer under similar working conditions. A violation of the EPA may also occur when an employer pays a different wage to a person who worked in the same job before or after an employee of the opposite sex. An employer can avoid liability only by proving by a preponderance of the evidence that the pay differential is justified by one of the four exceptions in the EPA. The first three exceptions apply to differences in pay based on a seniority system, a merit system, or an incentive system. The fourth exception allows an employer to justify pay differentials based on “any other factor other than sex.” The employer’s burden is a heavy one. On the other hand, pay differentials based on factors other than sex are not unlawful. Where an improper pay differential does exist, the EPA does not permit an employer to reduce wages of any employee to comply with the Act or retaliate against any employee for attempting to enforce the provisions of the Act.J. Family and Medical Leave Act (“FMLA”) Georgia does not have a family and medical leave law, so employers in this state need look only at federal law to determine their statutory obligations with respect to leaves taken for family and medical reasons. The federal Family and Medical Leave Act (“FMLA”) applies to private employers with 50 or more employees and to all federal, state, and local public agencies. The benefits of the FMLA are available to employees who have worked a total of at least 12 months for the employer, who have provided at least 1,250 hours of service during the 12 months before the start of a family or medical leave, and who work at or report to a worksite at which or within 75 miles of which the employer employs 50 or more employees. The FMLA provides an entitlement of up to 12 weeks of job-protected, unpaid leave during any 12-month period for the following reasons: the birth or care of the employee’s newborn child; the placement of a child with the employee for adoption or foster care; to care for a spouse, child, or parent with a serious health condition; the employee’s own serious health condition; or any qualifying exigency arising from the employee’s spouse, child, or parent being on active duty or ordered to active duty in the armed forces for deployment outside the United States. The FMLA provides an entitlement to up to 26 weeks of job-protected, unpaid leave in a single 12-month period to care for a U.S. service member or veteran who is a family member and who has a serious injury or illness incurred or aggravated in the line of duty while on active military duty. For purposes of leave to care for a service member or veteran with a serious injury or illness, “family member” is defined as the employee’s parent, spouse, or child or other relative to whom the employee is the next of kin. During periods of FMLA leave, an employer must maintain group health benefits that the employee was receiving at the time leave began at the same level and in the same manner as if the employee had continued to work. Under most circumstances, an employee may elect, or the employer may require, the use of any accrued paid leave (e.g., vacation, sick, or personal leave) for periods of unpaid FMLA leave. FMLA leave may be taken in one continuous block of time, or it may be taken in separate blocks of time on an intermittent or reduced-schedule basis. Taking intermittent or reduced-schedule leave for the placement of a child with the employee for adoption or foster care or for the birth and care of a healthy newborn child is subject to approval by the employer. FMLA leave relating to a serious health condition (including pregnancy-related disability) or a serious military- service-related injury or illness may be taken on an intermittent or reduced-schedule basis when leave in that form is medically necessary, regardless of the employer’s approval.22 Georgia Employment Law Handbook

When leave is foreseeable, an employee must provide the employer with at least 30 days’ notice of the need for leave. If the leave is not foreseeable that far in advance, notice must be given as soon as practicable. An employer may require medical certification of a serious health condition or a serious injury or illness from a health care provider and, during the leave, may require periodic reports of the employee’s status and intent to return to work, as well as a “fitness-for-duty” certification upon return to work in appropriate situations. An employee who returns from FMLA leave is entitled to be restored to the same job or to an equivalent position with equivalent pay, benefits, and responsibilities. The employee is not entitled to accrue benefits during periods of unpaid FMLA leave. Employers are prohibited from discriminating against or interfering with employees who take or request FMLA leave. Employers are required to post a notice in the workplace that outlines the basic provisions of the FMLA and are subject to a civil monetary penalty for willfully failing to post such notice. Employers are also required to give an employee who requests an FMLA leave a written notice indicating whether the employee is eligible for FMLA leave and setting forth their rights and obligations under the FMLA. An employer must also give an employee who requests a leave that may be covered by the FMLA a notice indicating whether the leave is designated as FMLA leave. Although the failure to provide these individual notices does not result in a civil monetary penalty, it can lead to employer liability for interfering with FMLA rights. Employees may file complaints with the U.S. Department of Labor alleging violations of the FMLA. The Secretary of Labor may then file suit to ensure compliance and recover damages if a complaint cannot be resolved administratively. Employees may also file civil lawsuits without the involvement of the Department of Labor to correct violations and recover damages. In addition to the FMLA, some states have family and medical leave statutes, and nothing in the FMLA supersedes a provision of state law that is more beneficial to the employee. Georgia does not have such a statute. However, in the public sector, the Georgia State Personnel Board has adopted rules requiring state executive-branch agencies (other than authorities, public corporations, and the Board of Regents of the University System of Georgia) to comply with the federal Family and Medical Leave Act.K. Occupational Safety and Health Act of 1970 (“OSHA” Antiretaliation Provision) This provision applies to any employer engaged in a “business affecting commerce,” and provides that such employer cannot discharge or otherwise discriminate against any employee who exercises his or her rights under OSHA, or files an OSHA complaint.L. Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (“VEVRAA”) This law requires employers with federal contracts or subcontracts of $100,000 or more to take affirmative action to hire and promote qualified covered veterans. Covered veterans include disabled veterans, recently separated veterans, veterans who received an Armed Forces Services Medal pursuant to Executive Order 12985, and veterans who served on active duty during a war or in a campaign or expedition for which a campaign badge has been authorized.M. Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) Both a federal law and a Georgia law apply to employees who serve in the military. The federal act, USERRA, applies to persons who perform voluntary or involuntary duty in the “uniformed services” of the United States. These services include the Army, Navy, Marine Corps, Air Force, Coast Guard, and Public Health Service commissioned corps, as well as the reserve components of each of these services. Federal training or service in the Army National Guard and Air National Guard also gives rise to rights under USERRA. Uniformed service includes active duty, active duty for training, inactive duty training (such as drills), and initial active duty training, as well as the period for which a person is absent from a position of employment for the purpose of an examination to determine fitness to perform any such duty. 23

USERRA entitles employees who have been absent from work for service in the uniformed services to job restoration rights if they meet the following eligibility criteria: • The person must have held a civilian nontemporary job; • The person must have given notice to the employer that he or she was leaving the job for service in the uniformed services; • The period of service must not have exceeded five years (although many exceptions to this five- year limitation exist); • The person must have been released from service under honorable conditions; and • The person must have reported back to the civilian job in a timely manner or have submitted a timely application for reemployment. Job restoration rights are based on the duration of military service rather than the type of military duty performed, such as active duty for training or inactive duty. USERRA also prohibits employers from discriminating against eligible employees because of their military service and from discharging a reinstated veteran without cause for a period after restoration of employment. The period depends on the length of service. If an employee served more than 180 days, the period is one year; if the employee served less than 181 days but more than 30 days, the period is 6 months. Additionally, USERRA guarantees reemployed persons pension plan benefits that accrued during military service and provides health benefits continuation for service members and their families during military service for up to 18 months. Although USERRA does preempt state laws providing lesser rights or imposing additional eligibility criteria, it does not preempt state laws providing greater or additional rights. Indeed, Georgia has a military leave law that is more generous than federal law. It requires an employer to reinstate an employee who has left work to perform military service if the employee applies for reemployment within 90 days of being relieved from military service, regardless of the length of service. If, however, an employee leaves employment to attend National Guard assemblies or annual training or to attend service schools conducted by the United States armed forces for a period not exceeding six months, the employee must apply for reemployment within ten days after completion of the military service. The Georgia military leave law applies to service in the various branches of the United States armed forced and also to service in state “militia” units.N. National Labor Relations Act (“NLRA”) This Act applies to private employers in most industries affecting interstate commerce. It prohibits discrimination against employees who engage or decline to engage in concerted activities protected by the NLRA. The NLRA protects employees who join a union or ask others to join; band together collectively for “mutual aid and protection” (whether or not a union is involved); seek to deal on a group basis with the employer about working conditions; and engage in other concerted activities for the purpose of negotiating more favorable employment terms. The NLRA broadly covers collective action by employees whether or not any formal union represents the workers. The NLRA also prohibits employers from interrogating employees about union-related actions, making threats to dissuade them from engaging in such actions, making promises to induce them to abandon these activities, and spying upon employees to find out about their union-related activities. The NLRA provides a procedure for a union to obtain a government-supervised election to certify the union to represent employees as their bargaining agent with the employer and also provides a procedure that employees may follow if they wish to decertify a union as their bargaining agent. The NLRA also provides rules that govern collective bargaining with a union, as well as rules that bar certain misconduct by unions towards disfavored employees and employers. In addition, the NLRA contains rules against kickbacks, graft, or corruption by unions and companies in the negotiation of union contracts, as well as provisions that allow employees to sue unions under certain circumstances when the union failed to represent them fairly (as well as to sue companies that24 Georgia Employment Law Handbook

breach the provisions of a union contract under certain circumstances when the union has breached its duty of fair representation). There also are provisions to enforce arbitration provisions in union contracts and to prevent mid-contract strikes over arbitrable subjects. The NLRA is administered by the National Labor Relations Board (“NLRB”). Charges of unfair labor practices must be filed with the NLRB within six months of the alleged unlawful act. If the NLRB finds a violation after conducting a hearing, the NLRB can order reinstatement, backpay, and other relief designed to “make the employee whole.” In a few situations, such as suits to enjoin illegal strikes, direct access to the courts is permitted without resort to the NLRB. Some employers do not think of the NLRA and NLRB as a concern unless they have unions representing their workforces or trying to do so. However, the NLRA applies to covered employers regardless of whether a union is in the picture, and a number of recent NLRB decisions have applied the NLRA to the policies and practices of nonunionized employers. The NLRA prohibits almost all private employers, not just those with unions, from interfering with or penalizing protected concerted activity, including employee discussions about wages and working conditions. The NLRB has applied this principle to find several types of employer rules illegal, at least where broadly worded, even when the rules have not been enforced against any employee. For example, the NLRB has found the following to be illegal in certain situations where not properly worded: • Certain policies restricting employee social media communication have been found to be unfair labor practices. Certain social media communications between employees in which the employees complain about the employer can be considered protected discussions of working conditions under some circumstances, and prohibiting such discussions or penalizing employees for them can be illegal. • Certain policies that prohibited a discourteous or inappropriate attitude have been found to be unfair labor practices. • Certain policies prohibiting employees from engaging in activity that could harm the image or reputation of the employer have been found to be unfair labor practices. • Prohibiting “gossip” was found to be an unfair labor practice in one case. • Certain limitations on photographing the employer’s premises have been found to be unfair labor practices. Similarly, the NLRB has decided that directing employees involved in an internal investigation not to talk about the investigation may, in some circumstances, also violate the rights of the employee. These NLRB rulings do not ban all efforts to enforce appropriate behavior in the workplace. Although the wording can be critical, it is typically overbroad language, no matter how well intended, that has resulted in findings of illegality. However, these rulings demonstrate that even non-union employers need to make sure to comply with certain parts of the NLRA.O. Worker Adjustment and Retraining Notification (“WARN”) Act The WARN Act applies to “any business enterprise” employing 100 or more employees, excluding employees who have worked less than six months and those who work an average of less than twenty hours per week. The Act requires an employer to give employees who are reasonably expected to suffer employment loss 60 days’ notice of any (1) plant closing that affects 50 or more workers at a single site in a 30-day period, or (2) mass layoff at a single site during any 30-day period (i) resulting in an employment loss for 50 to 499 employees if this number comprises at least 33% of non-part-time employees at the site, or (ii) resulting in an employment loss for at least 500 non-part-time employees. In certain situations, the 30-day period for aggregating employment losses is expanded to a 90-day period. Employees who suffer employment loss have a private right of action in federal court for WARN violations. Employers must provide notification of the mass layoff or plant closing to unions and local and state authorities. 25

P. Federal Contractors and Subcontractors In addition to federal antidiscrimination and other employment-related laws of general application discussed elsewhere, Congress and the Presidents, past and present, have used their governmental procurement powers to require businesses that wish to do business with or receive funds from the federal government to comply with a dizzying array of additional obligations that impact far more businesses than those who contract directly with federal agencies. These federal contractor obligations derive from one Presidential Executive Order and two statutes enacted by Congress: • Executive Order 11246 (“E. O. 11246”), which prohibits discrimination on the basis of race, color, sex, sexual orientation, gender identity, religion, and national origin and requires affirmative action to employ and advance minorities and females in employment. Effective April 8, 2015, sexual orientation and gender identity were added as protected categories. The Executive Order has the same force and effect as a law enacted by Congress. • Section 503 of the Rehabilitation Act (“Rehabilitation Act”), which prohibits discrimination on the basis of a disability and requires affirmative action to employ and advance in employment individuals with disabilities. • The Vietnam Era Veterans Readjustment Assistance Act (“VEVRAA”), which prohibits discrimination on the basis of protected veteran status and requires affirmative action to employ and advance in employment protected veterans. All three laws apply not just to companies with direct government contracts (sometimes referred to as “prime contractors”), but also to those companies (referred to as “subcontractors”) that supply the prime contractor with goods, property, or services that are necessary, in whole or in part, to the prime contractor’s performance of its government contract. They also apply to an endless number of downstream suppliers whose goods and services are necessary, in turn, for the each subcontracting party’s performance of its contract(s) with the prime contractor or subcontractor above it. Each covered contractor or subcontractor must notify its respective suppliers and vendors of services of its covered status and require their compliance with these same obligations as a condition of doing business with it, rippling the obligations down to the lowest business in the chain. Once a company becomes a covered federal contractor or subcontractor by virtue of any single contract or purchase order, it must comply with the federal contractor requirements at all of its locations and with respect to all of its employees, even those not engaged in the performance of the government contract or subcontract. These three laws are enforced by a unit within the Department of Labor known as the Office of Federal Contract Compliance Programs (“OFCCP”), which has the power to adopt implementing regulations and enforce compliance. Private causes of action are not available to aggrieved individuals under any of these laws. However, the OFCCP has the power and obligation to investigate complaints filed by individuals and to conduct extensive audits to assess a contractor’s compliance with these regulations. If an employer violates any of these laws or regulations and is found to be in noncompliance, the OFCCP seeks to remedy the violations through conciliation with the contractor. The employer may be liable to the aggrieved individuals for back pay and other equitable remedies similar to those available under Title VII. Contractors who are found to have committed egregious violations or fail to come into voluntary compliance can have their contracts with the federal government cancelled, terminated, or suspended, and the employer may be debarred from future contracts not only with the federal government, but also with all covered federal contractors and subcontractors. Basic coverage is triggered by a single contract or purchase order that equals or exceeds the threshold dollar amounts specified in each law. In addition, a second level of coverage, requiring a written affirmative action plan, is triggered if the contractor has 50 or more employees and a contract above a certain amount.26 Georgia Employment Law Handbook

1. Executive Order 11246E. O. 11246 applies to any contract or purchase order for $10,000 or more of goods or services,including construction, or to any contract/purchase order for indefinite quantities which equals atleast $10,000 during any 12-month period. There are two levels of coverage under the implementingregulations. If the contract is “covered,” the company must comply with the Executive Order “EEOClause” in the contract. This clause contains a series of commitments and obligations to ensurethat applicants and employees are not discriminated against on the basis of race, color, sex, sexualorientation, gender identity, religion, or national origin, such as a requirement to adopt policies andprovide notices to applicants, employees, and affected unions of the contractor’s commitment tonondiscrimination. In addition, if the contractor has a single contract of at least $50,000 and 50or more employees, it must develop a written affirmative action program (AAP) for minorities andfemales at each of its work locations. The written AAP consists of a series of actions to ensurethat the contractor’s policies and practices are not inhibiting the employment and advancementof minorities and females. The contractor must also analyze its workforce using specified dataand statistical methods to determine if it is employing minorities and females in the proportion thatsupposedly would be expected in a discrimination-free environment, and when deficiencies areidentified, the contractor must establish percentage placement goals to remedy the underutilizationover time. As part of this process, the contractor must analyze its hiring, promotion, termination, andcompensation data to ensure that there are no indicators of discrimination and must correct anydeficiencies that are found. Extensive records must also be created and retained to evidence thecontractor’s compliance with the regulatory requirements.2. The Rehabilitation Act of 1973The Rehabilitation Act, which preceded the Americans with Disabilities Act (“ADA”), consists ofseveral sections covering disability discrimination. For private employers, the major sections of theRehabilitation Act are Section 503 and Section 504. Both sections protect qualified individuals whohave a disability, who have a record of a disability, or who are regarded as having a disability, usingthe same rules that apply under the ADA. In the context of employment, an individual is “qualified”if he or she is capable of performing a particular job with or without reasonable accommodation. Anemployer is not required to provide a particular accommodation for an individual’s disability if it wouldresult in an undue hardship for the employer. Individuals currently engaging in the illegal use ofdrugs are not “individuals with a disability” and are not protected by the Rehabilitation Act or the ADAagainst adverse employment actions based on their current, illegal drug use.Section 503 of the Rehabilitation Act requires federal contractors not to discriminate against qualifiedindividuals with disabilities in hiring and employment and, where applicable, to take affirmative actionto employ and promote qualified individuals with disabilities. Section 503 applies to any employerwith a federal contract or subcontract in excess of $10,000 for the purchase, sale, or use of personalproperty or nonpersonal services, including construction. Regulations promulgated to enforceSection 503, like E. O. 11246, have two levels of requirements. First, all covered contractors mustcomply with the Section 503 EEO Clause in the contract, which contains commitments with respectto similar disabilities to those in the Executive Order EEO Clause. Second, if an employer has asingle federal contract or subcontract of $50,000 or more and has 50 or more employees, it mustdevelop a written affirmative action plan for individuals with disabilities at each of its establishments.In March 2014, revised regulations setting forth the affirmative action obligations under Section 503went into effect, imposing new data-collection requirements, mandating the adoption of a seven-percent hiring and utilization goal for employees with disabilities, and requiring covered contractorsto invite applicants with disabilities to self-identify themselves as disabled at both the pre- and post-offer stages of the hiring process.Section 504 of the Rehabilitation Act applies to any program or activity that receives federalfunds. Section 504 prohibits the recipients of federal funds from excluding or denying a qualifiedindividual with a disability an equal opportunity to receive program benefits and services, includingemployment. To be “qualified” for participation in a federally funded program, an individual must meetall of the program’s requirements. In effect, therefore, employers who receive federal funds cannotdeny employment opportunities to qualified individuals with a disability on the basis of the disability. 27

Section 504 is enforced by the particular federal agency that has provided the federal funds, but aggrieved individuals also have a private cause of action under Section 504. 3. The Vietnam Era Veterans Readjustment Assistance Act of 1974 (“VEVRAA”) This law requires employers with federal contracts or subcontracts of $100,000 or more to take affirmative action to hire and promote qualified protected veterans. Despite the name of the law, Vietnam veterans are no longer expressly covered by the statute due to amendments to the law over the years. The current protected veteran categories consist of the following: “Disabled Veteran,” “Recently Separated Veteran,” “Active Duty Wartime or Campaign Badge Veteran,” and “Armed Forces Services Medal Veteran.” A “disabled veteran” is one of the following: • a veteran of the U.S. Military, ground, naval, or air service who is entitled to compensation (or who, but for the receipt of military retired pay, would be entitled to compensation) under laws administered by the Secretary of Veterans Affairs; or • a person who was discharged or released from active duty because of a service-connected disability. A “recently separated veteran” means any veteran during the three-year period beginning on the date of such veteran’s discharge or release from active duty in the U.S. military, ground, naval, or air service. An “active duty wartime or campaign badge veteran” means a veteran who served on active duty in the U.S. military, ground, naval, or air service during a war or in a campaign or expedition for which a campaign badge has been authorized under the laws administered by the Department of Defense. An “Armed Forces service medal veteran” means a veteran who, while serving on active duty in the U.S. military, ground, naval, or air service, participated in a United States military operation for which an Armed Forces service medal was awarded pursuant to Executive Order 12985. All covered contractors must comply with the contractors EEO Clause relating to protected veterans. It is similar to the other EEO clauses, with the additional obligation that contractors must list all employment openings existing at the time of the execution of a covered government contract or subcontract and arising during the performance of the contract or subcontract with the state workforce agency job bank or with the local employment service delivery system where the opening occurs, so that the agency can provide priority referrals of protected veterans for job vacancies. The term “all employment openings” includes all positions, both full-time and part-time, except: executive or senior management positions, positions that will be filled from within the Company’s organization, positions lasting three days or less, and positions filled outside of the United States and its territories. In addition, if the contractor has 50 or more employees, it must develop a written AAP for protected veterans at each of its work locations. The implementing regulations, which were completely revised effective April 14, 2014, require contractors to invite applicants both pre- and post-offer to self- identify their veteran status, to ask their current employees to do the same, and to keep records of this information for a long period. Contractors also have to ensure that their policies and practices do not promote discrimination against qualified veterans, set hiring/utilization goals for protected veterans, annually analyze the results, and take corrective action if good faith efforts fail to achieve the listed objectives.28 Georgia Employment Law Handbook

Chapter 4: E-Verify

The Georgia Illegal Immigration Reform and Enforcement Act of 2011 requires that all Georgiaemployers with more than 10 employees (employed to work at 35 hours per week) enroll in and use theE-Verify system to check the eligibility of new hires to work in the United States. Georgia counties andmunicipalities are prohibited from issuing or renewing a business license, occupational tax certificate,or other document required to operate a business unless the business provides evidence that it is usingE-Verify as required by this law or that the E-Verify provisions of the law do not apply to it. This evidencetakes the form of a standardized affidavit.Executive Order 12989 requires that certain federal contractors and subcontractors participate in E-Verify.Generally, this applies to contracts with federal agencies entered into after September 8, 2009 with avalue in excess of $100,000 that are to be performed at least in part in the United States. The period ofperformance must be at least 120 days, and the mandate does not apply to contracts that are solely forcommercially off-the-shelf items. Federal contracts will normally contain an E-Verify provision, and thecontractors are in turn required to place such a provision in their subcontracts.E-Verify does not take the place of the requirement for completing I-9 Forms for new hires. E-Verify is afree on-line federal service that verifies an individual’s identity and eligibility to work in the United Statesby comparing information supplied by an employee on the I-9 Form to information in federal governmentdatabases.When the employer uses the E-Verify system, and the employee information does not match governmentrecords, the employer receives a “Tentative Nonconfirmation” notice. The employer must notify theemployee of this development as soon as possible and provide the employee with a “Notice to Employeeof Tentative Nonconfirmation” that is generated by E-Verify. The employee must be given the opportunity tocontest the notice, and the employer and employee should sign and date it, with the employee receiving acopy. The Tentative Nonconfirmation Notice must be filed in the employer’s records with the employee’s I-9Form.If the employee does not contest the Tentative Nonconfirmation Notice, the employee may be terminated.If the employee does contest the Tentative Nonconfirmation Notice, the employer must provide a “ReferralLetter” generated by E-Verify. The employer and employee sign and date the Referral Letter and theemployee is to receive a copy. This must also be filed with the I-9 Form. In these circumstances, theemployer must instruct the employee to contact the Social Security Administration or Department ofHomeland Security, as appropriate, within eight federal government working days. However, the employeris not permitted to terminate the employee while the contest procedure is ongoing. If the employer receivesa Notice of Final Nonconfirmation from E-Verify, the employee may be terminated at that point.E-Verify is to be utilized after a job offer is made and accepted. It may not be used selectively to single out“suspicious” employees, but must rather be used for all new hires. Except where otherwise required byexecutive order for federal contractors, it is to be used for new hires and not current employees.Georgia employers participating in E-Verify must post both English and Spanish versions of E-Verifynotices in the workplace.30 Georgia Employment Law Handbook

Chapter 5:Jury Service

A. Overview It is unlawful for a Georgia employer “to discharge, discipline, or otherwise penalize” an employee who misses work “for the purpose of attending a judicial proceeding in response to a subpoena, summons for jury duty, or other court order of process which requires the attendance of the employee at the judicial proceeding.” The protections of the statute also apply to parents’ attendance at their children’s juvenile court proceeding, where their attendance is required. Moreover, because the primary purpose of the statute is to protect Georgia employees, the Georgia Attorney General has decided that this prohibition applies to all judicial proceedings, whether or not they take place within the State of Georgia. The statute does not apply, however, when the summoned employee is charged with a crime.B. “Penalize” The statute does not define the word “penalize.” Nonetheless, the Georgia Attorney General, in considering the statute, has said that because “penalize” is used in addition to discharge and discipline, its meaning is separate from those words; thus, the Attorney General has issued an opinion stating that an employee would be unlawfully penalized if he or she suffers any financial loss by serving on jury duty. Although the Attorney General Opinion refers only to absences for jury duty service, it arguably applies to attendance at all other judicial proceedings because the statute is not limited to jury duty. The Georgia Attorney General takes the position that employers must compensate their employees for time away for work attending a covered judicial proceeding. The employer may offset an employee’s normal salary by the amount the employee is compensated for attending the judicial proceeding; otherwise the employee would receive an extra financial reward for attending the judicial proceedings that is not contemplated by the statute.C. Notice The statute does not prohibit an employer from requiring that employees provide reasonable advance notice of their “expected absence or delay in reporting to work in order to attend a judicial proceeding.” There is nothing in the statute, however, explicitly authorizing an employer to take action against an employee who fails to comply with any notice procedure the employer has adopted. No court in the State of Georgia has considered the issue.D. Civil Action An employee has a civil cause of action against any employer or agent of such employer that violates the judicial proceeding statute. If an employer or its agent is found to have violated the statute, the violating party is liable to the employee “for all actual damages” suffered as a result of the violation, as well as “all reasonable attorney’s fees incurred by the employee in asserting a successful claim under” the statute.32 Georgia Employment Law Handbook

Chapter 6:Voting Leave

A. Overview Georgia employers must permit employees “necessary time off” to vote in “municipal, county, state, or federal political party primar[ies] or election[s].” Voting leave need only be provided to employees that are qualified and registered to vote in the particular election or primary on the day of such primary or election. Moreover, employees whose work hours begin at least two hours after the polls open or end at least two hours before the polls close are not entitled to voting leave.B. Notice Voting leave need only be granted to employees who provide reasonable notice of the need for time off to vote. However, the statute does not define what constitutes reasonable notice.C. Time Requirements The “necessary time off” provided to voting employees need not exceed two hours. In addition, an employer may dictate the time period during which the employee is allowed to vote.D. Compensation There is no requirement that employers compensate employees for voting leave. The federal Fair Labor Standards Act, however, would preclude employers from making a deduction for a partial-day voting leave absence from the salary of an executive, administrative, or professional employee who is exempt from the minimum wage and overtime provisions of that law.34 Georgia Employment Law Handbook

Chapter 7:Military Leave

Georgia has a military leave law that, in some respects, is more generous to employees than a similarfederal law, the Uniformed Services Employment and Reemployment Rights Act (USERRA). The rightsof an employee who leaves employment or is absent from work to perform military service varies,depending on whether the employment is with a private-sector employer or with the state or a localgovernmental unit. The Georgia military leave law applies to service in the various branches of theUnited States armed forces and also to service in state “militia” units.Private-sector employers must reinstate an employee who has left employment (other than a temporaryjob) to perform military service if the employee applies for reemployment within 90 days of beingrelieved from military service, regardless of the length of service. Such employee must be reinstatedto the position left or a position of like seniority, status, and pay. If a private-sector employee leavesemployment to attend National Guard assemblies or annual training or to attend service schoolsconducted by the United States armed forces for a period not exceeding six months, the employee mustapply for reemployment within ten days after completion of the military service. Such employee mustbe restored to employment without loss of seniority and, during the absence for military purposes, isentitled to participate in insurance or other benefits pursuant to the same rules the employer applies toemployees on furlough or leave of absence.In the public sector, nontemporary employees of the state or a unit of local government who aremembers of the National Guard or any reserve force or reserve component of the United States armedforces are entitled to the continuation of their full pay for up to eighteen days of military leave duringany one federal fiscal year when they are ordered to perform military duty (including attendance ata military service school) by either the state or the federal government. If the Governor of Georgiadeclares an emergency and orders any state or local government employee to perform military duty asa member of the National Guard, that employee is entitled to the payment of his or her full pay for up tothirty days of military leave in any one fiscal year. Once a state or local government employee exhauststhe entitlement to full pay under these provisions, the employer may pay the employee the differencebetween his or her government pay and his or her military pay for the remainder of the military leave.State or local government employees who are voluntary members of any force of the organized militia orany reserve force or reserve component of the United States armed forces are entitled to attend militaryservice school for periods up to six months in a four year period. State or local government employeeswho are absent from work to perform ordered military duty or to attend military service school cannotbe subjected to any loss or diminution of time, service, increment, vacation, holiday privileges, or anyother right or privilege and cannot be retaliated against when returning to employment because of suchabsence. While on ordered military duty as a member of the National Guard or a reserve unit, a stateor local government employee is entitled to all benefits of the pension or retirement system of whichhe or she is a member (except for accidental disability retirement and accidental death benefits) andshall have up to five years after release from ordered military duty to make required contributions to thepension or retirement system if such contributions were not made during the employee’s military leave.These provisions do not apply to state or local government employees who are drafted or otherwiseinvoluntarily inducted into the National Guard or a reserve unit. With respect to reemployment rightsfor its employees following military service, the state follows requirements consistent with the federalUniformed Services Employment and Reemployment Rights Act.36 Georgia Employment Law Handbook

Chapter 8:Common Day of Rest

Under Georgia’s Common Day of Rest Act, any employer that operates its business on Saturdays orSundays, the state’s designated days of rest, must make “all reasonable accommodations” to allowemployees whose habitual day of worship falls on a work day to meet their religious, social, and physicalneeds. Employers engaged in the “healing arts,” religious organizations, charitable organizations,government agencies, and agricultural operations are exempt from this statute. The Common Day ofRest Act provides no remedies for violations and does not expressly create a right to sue on behalf ofaggrieved employees.By its terms, the Common Day of Rest Act requires covered employers to reasonably accommodateemployees who are scheduled to work on their Saturday or Sunday Sabbath. The Act does not elaborateon this obligation, however, and no court has ever interpreted it. Under the federal religious discriminationlaw, Title VII of the Civil Rights Act of 1964, employers with fifteen or more employees are required toprovide reasonable accommodations, short of undue hardship, for the religious beliefs and practices ofemployees, and that obligation has often been invoked, with varying degrees of success, by employeesseeking to be excused from scheduled work on their Sabbath. Unlike the Georgia Common Day of RestAct, Title VII of the Civil Rights Act of 1964 provides express administrative and judicial remedies for anemployer’s unlawful failure to accommodate an employee’s request to be excused from work on his or herSabbath.38 Georgia Employment Law Handbook

Chapter 9:Wage Payment Statute

A. How Often Must Georgia Employers Pay Employees? In Georgia, employers who employ workers in manual, mechanical, or clerical occupations (except officials, superintendents, or other heads or subheads of a department) must pay such workers in at least two equal pay periods each month. An employer may choose the days of the month on which wages will be paid, but they must pay the full amount of wages or earnings due for the period for which the payment is made. The statute does not set forth a penalty for violations of the statute; thus, the consequences to an employer, if any, for failure to comply are unclear.B. Deductions from Wages Employers may deduct union dues, fees, and assessments with the authorization of the employee. However, employers should exercise caution when making any deductions from an employee’s wages, as improper deductions can cause the employer to inadvertently violate the Fair Labor Standards Act.40 Georgia Employment Law Handbook

Chapter 10:Direct Deposit

Georgia employers may pay their employees via direct deposit, but the prior consent of the employee isrequired. Additionally, full payments must be made at the employee’s financial institution of choice, and theemployee must not incur any additional fees.Of course, it is important that employers look beyond whether they can pay employees via direct depositto ensure that their systems and policies comply with all applicable state and federal laws. For instance,federal law prevents an employer from requiring that an employee establish an account at a particularfinancial institution as a condition of employment. Employers must also be mindful of state wage paymentlaws, such as those dictating how frequently employees must be paid and what payroll deductions areallowed. (See Chapter 8).42 Georgia Employment Law Handbook

Chapter 11:Record-Keeping and Posters

A. Record-Keeping Under Georgia law, all employers, with limited exceptions, must keep an accurate record of the name, address, and occupation of each person employed by the employer, the daily and weekly hours of each such person, and the wages paid during each pay period to each such person. These records must be kept on file for at least one year after the date of the record. Employers are prohibited from making or causing to be made any false entries in the records.B. Required State Posters The Georgia Department of Labor and the Georgia Board of Workers’ Compensation are authorized to require employers to post certain notices and posters in the workplace. All required notices and posters must be placed in conspicuous places that are readily accessible by employees. Currently, employers are required to post the following Georgia notices and posters: 1. Equal Pay for Equal Work The “Equal Pay for Equal Work” poster informs employees about their rights under Georgia’s statute prohibiting sex discrimination in employment. The “Equal Pay for Equal Work” poster is published in form DOL-4107 and is available at http://www.dol.state.ga.us/pdf/forms/ dol4107.pdf. 2. Unemployment Insurance for Employees The “Unemployment Insurance for Employees” poster informs employees of their rights to unemployment benefits and how to file for benefits. The poster is published in form DOL-810 and is available at http://www.dol.state.ga.us/pdf/forms/dol810.pdf. 3. Employer Vacation The “Employer Vacation” poster informs employees that they are not entitled to benefits for time when they are on paid vacation, unpaid vacation, or an employee-requested leave of absence requested. The poster is published as form DOL-154 and is available at http://www.dol.state.ga.us/ pdf/ forms/dol154.pdf. 4. Bill of Rights for the Injured Worker The “Bill of Rights for the Injured Worker” poster informs employees about their rights and responsibilities under Georgia’s workers’ compensation statute. The notice must be printed on pink, legal-size paper. The poster is published as WC-BOR and is available at http://sbwc.georgia.gov/ sites/sbwc.georgia.gov/files/bor.pdf. 5. Panel of Physicians, Conformed Panel of Physicians, and WC/MCO Panel of Physicians The “Panel of Physicians”, “Conformed Panel of Physicians”, and “WC/MCO Panel of Physicians” informs employees of their rights to receive medical care for occupational injuries. Under Georgia’s workers’ compensation statute, employers must provide employees injured on the job with medical care that is reasonably required and likely to restore the employee to suitable employment. Pursuant to State Board of Workers’ Compensation Rule 201, employers can satisfy this obligation by maintaining a list of at least six non-associated physicians and at least one minority physician, maintaining a list known as a “conformed panel of physicians,” or by contracting with a workers’ compensation managed care organization. The notice posted by employers must identify the specific plan used by the employer and must be printed on pink, legal-size paper. If the employer is using a “Panel of Physicians,” it must post the “Panel of Physicians” poster, form WC-P1, which is available at http://sbwc.georgia.gov/sites/ sbwc.georgia.gov/files/imported/SBWC/Files/wc_p1.pdf. Similarly, the “Conformed Panel of Physicians” poster is published as form WC-P2 and is available at http:// sbwc.georgia.gov/sites/sbwc.georgia.gov/files/imported/SBWC/Files/wc_p2.pdf. If the employer chooses to use a workers’ compensation managed care organization (“WC/MCO”), it must post the “WC/MCO Panel of Physicians” poster, form WC-P3, which is available at http://sbwc.georgia.gov/ sites/sbwc.georgia.gov/files/imported/SBWC/Files/wc_p3.pdf).44 Georgia Employment Law Handbook

C. Required Federal Posters In addition to the posters and notices required by the Georgia Department of Labor and State Board of Workers’ Compensation, federal laws require employers to post the following posters and notices. 1. Employee Rights Under the Fair Labor Standards Act The “Employee Rights Under the Fair Labor Standards Act” poster informs employees of their rights under the Fair Labor Standards Act (“FLSA”). Specifically, it states the federal minimum wage and explains the FLSA’s overtime, youth employment, and tip credit requirements. All employers of employees covered by the FLSA must post the notice. Employers may alter or modify the notice regarding the overtime requirements to explain that some employees are exempt from the overtime requirements. The “Employee Rights Under the Fair Labor Standards Act” poster is available at http://www.dol.gov/whd/regs/compliance/posters/ minwagep.pdf. 2. Your Rights Under the Family and Medical Leave Act The “Your Rights Under the Family and Medical Leave Act” poster explains employees’ rights under the Family and Medical Leave Act (“FMLA”). Specifically, it explains which employees are eligible, protected reasons for taking leave, and unlawful employer practices. If a significant portion of the employer’s workforce is not proficient in English, the employer must provide the poster in the languages in which the employees are proficient. The “Your Rights Under the Family and Medical Leave Act” poster is available at http://www.dol.gov/whd/regs/ compliance/posters/fmlaen.pdf. 3. Job Safety and Health: It’s the Law The “Job Safety and Health: It’s the Law” poster informs employees about their rights and obligations under the Occupational Safety and Health Act. The poster is published as form OSHA 3165 and is available at https://www.osha.gov/Publications/osha3165low-res.pdf. 4. Equal Employment Opportunity Is the Law The “Equal Employment Opportunity Is the Law” poster informs employees of private-sector employers about their rights under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, the Age Discrimination in Employment Act of 1967, and the Equal Pay Act of 1963. The poster also informs employees of employers holding federal contracts or subcontracts about their rights regarding race, color, religion, sex, national origin, disability, and military service discrimination and affirmative action. All employers who are covered by the federal nondiscrimination and equal employment opportunity laws are required to post the notice. The poster is published as form OFCCP EEP and is available at http://www.dol.gov/ofccp/regs/compliance/posters/pdf/eeopost. pdf. 5. Employee Rights on Government Contracts The “Employee Rights on Government Contracts” poster informs employees of the minimum wage and fringe benefits they are entitled to under their employer’s contract with the federal government. Only employers with federal service contracts exceeding $2,500 are required to post the notice. The poster is available at http://www.dol.gov/whd/regs/compliance/ posters/govc.pdf. 6. Employee Polygraph Protection Act The “Employee Polygraph Protection Act” poster informs employees that employers are generally prohibited from using lie detector tests during pre-employment screening or during the course of employment. Any employer engaged in or affecting commerce or in the production of goods for commerce must post the notice. The poster is available at http://www.dol.gov/whd/ regs/compliance/ posters/eppac.pdf. 45

7. E-Verify Georgia employers participating in E-Verify must post both English and Spanish versions of the E-Verify notices in the workplace. 8. Genetic Information Nondiscrimination Act Employers are required to post and keep posted on their premises, in conspicuous places where employees are employed, a notice of the rights provided to them under the Genetic Information Nondiscrimination Act. The EEOC has amended the “Equal Employment Opportunity Is the Law” poster to inform employees that employers are generally prohibited from discriminating based on genetic information. The poster is available at http://www1.eeoc.gov/employers/ upload/eeoc_self_ print_poster.pdf.46 Georgia Employment Law Handbook

Chapter 12:Garnishment

A. Overview If you receive a summons of garnishment naming as the defendant one of your employees, you must respond properly or you, the garnishee, will become liable for your employee’s debt. (If you owe the defendant anything as an independent contractor or on account or for any other non- employment reason, you must also respond properly to the garnishment as to that, but that is not covered here.) As to the defendant as an employee, the summons of garnishment requires you to withhold a certain portion of the defendant’s compensation, including wages, salary, commissions, and bonuses. There are two types of Georgia garnishment actions: regular garnishments, which you answer only once per summons by filing an answer between thirty and forty-five days after being served; and continuing garnishments, which require the garnishee to file answers over an extended period if the defendant is employed – an initial answer no later than forty-five days after service and additional answers during the remainder of the 179-day garnishment period. In Georgia, the amount of compensation (it is different for other amounts owed) that is subject to the garnishment depends on whether the garnishment is for alimony or the support of a dependent of the defendant (a “support garnishment”) or for any obligation other than alimony or the support of a dependent of the defendant (a “nonsupport garnishment”). In the case of a nonsupport garnishment, the amount of compensation subject to garnishment is the lesser of (a) 25% of a defendant’s weekly disposable earnings or (b) the amount by which the defendant’s weekly disposable earnings exceed thirty times the federal minimum wage. With respect to support garnishments, the amount subject to garnishment is 50% of the defendant’s weekly disposable earnings. “Disposable earnings” are “that part of the earnings of an individual remaining after the deduction from those earnings of the amounts required by law to be withheld.” Voluntary payroll deductions are included in disposable earnings. Funds or benefits from pension and retirement programs and IRAs are exempt from nonsupport garnishments until they are paid to an employee or beneficiary; funds or benefits from pension and retirement programs and IRAs are not exempt from support garnishments.B. Procedure To garnish a defendant’s wages, a creditor serves a summons of garnishment on an authorized representative of the garnishee. In the case of a summons of regular garnishment, the garnishee must file an answer no sooner than thirty days and no later than forty-five days after being served, reporting all of the defendant’s money or property that is subject to garnishment, and to the extent some or all of the defendant’s money subject to garnishment was earned as wages, the garnishee must state when it was earned and whether it was earned as daily, monthly, or weekly wages. A form for the garnishee’s answer is provided along with the summons of garnishment. If the defendant identified in a summons of regular garnishment is not employed by the garnishee and the garnishee does not otherwise have any of the defendant’s money or property, the garnishee must file an answer so advising the court. If you answer at some point in time after thirty days (you are allowed up to forty-five days), the amount that becomes subject to garnishment after thirty days but before you answer must be included. With a regular garnishment, after filing the answer, no further withholding or answers are necessary unless another summons of garnishment is received. At one time, a business was required to hire an attorney to answer a garnishment. However, on February 8, 2012, HB 683 went into effect and changed this ruling. Under the current law, employers may use a Georgia-licensed attorney, their own in-house staff (including human resources, payroll, and other non-attorney staff), or other third-party vendors to handle responses to summonses of garnishment in Georgia. While the current law allows companies to file their own answers, it also requires that, if a traverse or claim is filed against the company’s answer, a Georgia- licensed attorney must respond to any traverse or claim and represent the company in any further proceedings. In addition, HB 683 doubles the amount employers may deduct to recover their actual expenses, including attorneys’ fees, incurred to prepare and file answers of garnishment.48 Georgia Employment Law Handbook

Unlike a regular garnishment that requires a single answer between thirty and forty-five days after it is served, a continuing garnishment obligates an employer to file periodic answers to report what money and property of defendant is subject to garnishment for the period covered by each answer. A garnishee that receives a summons of continuing garnishment must file an initial answer no later than forty-five days after being served, and thereafter must file additional answers at least every forty-five days during the remainder of the 179-to-195-day period. A garnishee’s final answer to a summons of continuing garnishment must be filed no sooner than 179 days after and no later than 195 days after service. If the defendant named in the summons of continuing garnishment is not employed by the garnishee on the date of service, the garnishee must timely file an answer so advising the court, but the garnishee does not have to wait any time prior to filing this answer. A garnishee that answers that the defendant is not employed by it has no obligation to file further answers. Similarly, if a defendant’s employment relationship with the garnishee ends while a continuing garnishment is in effect, the employer must file an answer stating that the employment relationship no longer exists and the date upon which it ended, but thereafter has no further answering obligations. Concurrently with filing any answer of garnishment, a garnishee must serve plaintiff or plaintiff’s counsel with a copy of all answers it files with the court by mailing a copy of the answer to plaintiff or plaintiff’s counsel at the address identified in the summons of garnishment. All money and property admitted in a garnishee’s answer as being subject to garnishment should be delivered to the Court with the answer. Where the employer has received multiple summonses for the same employee, each answer filed must state that the money or property is being delivered to the court subject to the claims of all the cases and must include the case numbers for all cases. If a garnishee cannot determine whether certain funds are subject to garnishment, or how to satisfy multiple garnishments and levies on a single defendant, the garnishee must so state on the face of its answer and provide the facts the court would need to make a ruling thereon. Legal advice is usually needed when matters become complicated. If a garnishee fails to comply with all applicable answer requirements and deadlines, the court may enter a default judgment against the garnishee for the full amount the defendant owes the plaintiff. If a default judgment is entered against the garnishee, the garnishee has sixty days from the date it receives notice of the default judgment to file a motion asking the court to modify the judgment to the amount that should have been paid during the garnishment period, plus court costs and a $50 statutory penalty. It is very important for an employer that has received notice that a default judgment has been entered against it in a garnishment case to seek legal help promptly, or it may lose an opportunity to have the amount of the judgment reduced. If an employer receives a “traverse” of its answer of garnishment, it should seek legal advice promptly. A traverse claims that the answer is untrue and may, if the traverse has merit, subject the employer to continuing or additional liability even if it has already answered the garnishment.C. Retaliation Georgia law prohibits employers from “discharg[ing] any employee by reason of the fact that his earnings have been subjected to garnishment for any one indebtedness, even though more than one summons of garnishment may be served upon such employer with respect to the indebtedness.” 49

Chapter 13:Unemployment Compensation