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Human Resource Management II: Employer and Employee Duties and Rights

R. Read Gignilliat, Attorney, Elarbee Thompson
Last Updated: February 21, 2018
Human resource management encompasses a wide variety of issues relating to the relationship between an employer and its employees. These issues can present many challenges for the employer, particularly in the public sector. This chapter familiarizes elected city officials with certain legal and practical considerations associated with many of the more significant human resource management issues that Georgia municipal employers face: ensuring that the city’s practices regarding discharge and discipline, leaves of absence, compensation, and benefits are consistent with applicable federal and state laws.
 

At-Will Employment


Any discussion of employer and employee duties and rights with respect to discharge and discipline requires consideration of Georgia’s “at-will” employment rule. It is generally understood that Georgia is a so-called “at-will” state, but confusion often exists as to what that means in the context of municipal employment (O.C.G.A. § 34-7-1). Generally speaking, in an at-will employment relationship, either the employer or the employee may terminate the relationship with or without notice and/or with or without cause. Unlike the employee, however, the employer is subject to the implied caveat that it may not terminate even an at-will employment relationship for unlawful reasons (e.g., for violating federal civil rights legislation prohibiting certain forms of discrimination or retaliation) (Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1187 (11th Cir. 1984)). In Georgia, municipal employment relationships are at-will unless the city has imposed some substantive restriction or limitation on its right to terminate or otherwise alter the employment relationship. There is no uniformly applied term to describe an employment relationship that is not at-will. However, a public employee who is not at-will is regarded as having a property interest in his/her continued employment which triggers the due process clauses of both the United States and Georgia Constitutions.

In the private sector, any self-imposed substantive restriction or limitation on the employer’s right to terminate the employment relationship is generally limited to an employment agreement. For municipal employers, however, there are numerous additional ways by which such a restriction or limitation may be imposed, including by charter, local legislation, ordinance, resolution, personnel policies and procedures, employee handbook, or any other means establishing a mutual understanding (Nolin v. Douglas County, 903 F.2d 1546 (11th Cir. 1990); Hunter v. City of Warner Robins, 842 F. Supp. 1460, 1466 (N.D.Ga. 1994)). A restriction or limitation is substantive if it precludes termination or alteration of the employment relationship unless certain conditions or circumstances exist, with common examples being requirements that the termination be supported by cause, good cause, just cause, merit reasons, etc. By contrast, restrictions or limitations which are merely procedural are insufficient to alter a city’s status as an at-will employer. Common examples are requirements that a department head obtain the prior approval of the city manager, that the employee be given a certain amount of notice prior to the effective date of the termination, or that the employee be permitted to grieve or appeal the decision.
 

Due Process: Property Interests in Employment


When the employment relationship is not at-will, a municipal employee is considered to have a property interest in his/her continued employment which triggers the protections of due process (Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972); Warren v. Crawford, 927 F.2d 559 (11th Cir. 1991)). In this context, due process can be viewed as a procedural means to ensure that the substantive restrictions or limitations on the employer’s right to terminate or otherwise alter the employment relationship (e.g., demotions, suspensions without pay, etc.) are satisfied. It accomplishes this by requiring the employer to provide the employee with (1) notice of the grounds for the proposed termination and (2) an opportunity to be heard; i.e., to respond to these grounds (Marcelin v. City of West Palm Beach, 417 Fed. Appx. 848 (11th Cir. 2011); Camden County v. Haddock, 271 Ga. 664 (1999); Board of Commissioners of Effingham County v. Farmer, 228 Ga. App. 819 (1997)).

The “notice” component of due process requires that the employee be made aware of the allegations against him in sufficient detail to enable him/her to understand and provide a reasonable response. It also requires that the employee be made aware of the adverse action or range of adverse actions he/she is potentially facing (e.g., “up to and including termination”), essentially so that he/she will know how much significance to attach to the situation.

The “opportunity to be heard” component of due process is far more involved, in that it requires an actual evidentiary hearing to be conducted before a neutral hearing officer or panel. At the hearing, the municipal employer bears the burden of proof, which it must satisfy through the presentation of sworn witness testimony and other evidence supporting the grounds for the employee’s termination. The employee, who is entitled to be represented by an attorney at his/her own expense, has the right to cross-examine the employer’s witnesses and otherwise challenge the employer’s evidence, as well as to present his/her own witnesses and evidence (Brownlee v. Williams, 233 Ga. 548 (1975)).

Historically, due process required that the evidentiary hearing be conducted on a “pre-deprivation” basis; i.e., before the employee is terminated. In the modern era, however, the courts have recognized that public employers often need to effectuate the termination before it can reasonably arrange for and conduct an evidentiary hearing. For this reason, employers are permitted to conduct a highly abbreviated, informal hearing on a pre-deprivation basis, provided that a full evidentiary hearing is thereafter conducted on a post-deprivation basis.

When municipal employers opt to use this two-hearing model for providing due process to their employees who possess property interests in their employment, the pre-deprivation hearing need only afford the employee the opportunity to respond to the allegations against him/her and the proposed adverse action. There is no burden of proof, nor is there any presentation of witness testimony or other evidence. Moreover, while the city official who conducts the abbreviated, informal pre-deprivation hearing should refrain from making a decision until after the hearing, he/she need not be entirely neutral (i.e., he/she may be the official who initiated the disciplinary proceedings).

The evidentiary hearing—whether conducted on a pre-deprivation basis (i.e., the one-hearing model) or on a post-deprivation basis (i.e., the two-hearing model)—must be “meaningful” in a constitutional sense. This means that it must be conducted within a reasonable time (e.g., not so quickly that the employee does not have sufficient time to prepare or retain an attorney, but not so late that witnesses’ memories have faded or the employee has had to relocate to find employment) (Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985)). This also means that the employee must be provided with copies of or access to the employer’s evidence, including the names of the employer’s witnesses and a general description of their proposed testimony. Because due process does not impose a reciprocal requirement on the employee, many cities elect to impose such a requirement on the employee through the appeal procedure.

Finally, where the evidentiary hearing provided to the employee by the municipal employer qualifies as judicial or quasi-judicial, Georgia law authorizes the employee to seek judicial review of the post-hearing decision in the superior court via writ of certiorari (O.C.G.A. § 5-4-1 et seq.). Such proceedings must be commenced within 30 days of the decision. The superior court reviews the factual findings underlying the decision pursuant to a highly deferential “substantial evidence” standard, while legal conclusions are subject to a de novo review. The superior court may uphold the decision, reverse the decision, or remand the matter for further proceedings.
 

Due Process: Liberty Interests and Name-Clearing Hearings


Whether or not they are at-will employees or possess property interests in their continued employment, all municipal employees possess liberty interests in their future employability which, under certain circumstances, entitle them to some amount of due process in connection with the termination of their employment (Campbell v. Pierce County, 741 F. 2d 1342 (11th Cir. 1984)).

As discussed in the preceding paragraphs, in the context of a property interest, the purpose of a due process hearing is to protect an employee from an unjustified or unwarranted deprivation of his/her right to continued employment. In the context of a liberty interest, however, the purpose of a due process hearing is to protect the employee’s professional reputation and/or ability to find future employment. Accordingly, liberty interest hearings are often referred to as “name clearing hearings.”

Name clearing hearings are designed to guard against the imposition of unwarranted stigma on a public employee. In this context, “stigma” has been described by the courts as: damage to an employee’s professional reputation or good name that adversely affects his/her ability to secure subsequent employment in his/her chosen field or as a limitation or disability imposed on an employee which forecloses or restricts his/her ability to take advantage of other employment opportunities.

A city employee’s liberty interest is implicated whenever he/she is discharged for reasons that might impose such stigma. Reasons for discharge that have been held to be stigmatizing include drug use, sexual harassment, theft, dishonesty, and falsifying records. Reasons for discharge that have been held not to be stigmatizing include unsatisfactory performance, failure to cooperate with co‑workers, inability to get along with co‑workers, and bad judgment.

The concept of constitutional “meaningfulness” applies to name clearing hearings as well. However, because of the different purposes behind the hearings designed to protect property and liberty interests, the hearings have different procedural requirements. In particular, the name clearing hearing is more informal than the property interest hearing and need only afford the employee a meaningful opportunity to refute the charges against him by argument, witness testimony or other evidence. Moreover, to be meaningful, the name clearing hearing must be conducted publicly (Campbell v. Pierce County, 741 F. 2d 1342 (11th Cir. 1984); Waters v. Buckner, 699 F. Supp. 900 (N.D.Ga. 1988), aff'd, 889 F. 2d 274 (11th Cir. 1989)).

Unlike a property interest hearing, the name clearing hearing is not designed to allow the employee an opportunity to appeal or otherwise challenge the propriety of the city’s decision to terminate his/her employment. The city bears no burden of proof at a name clearing hearing and need not justify its decision. Furthermore, while the employee is ordinarily entitled to notice of the charges against him/her prior to the name clearing hearing, there is no requirement that he/she be furnished with a witness list or other evidence relied upon by the employer in reaching the discharge decision. The employee is of course free to request these materials from the city—to the extent they exist—via the Open Records Act prior to the hearing.

While a property interest hearing must be conducted before a hearing officer(s) authorized to reverse the employment decision in question, a name clearing hearing need only be presided over by a city official(s) with sufficient standing within the city to bring an appropriate level of dignity to the proceeding. Moreover, while the need for a neutral hearing officer(s) is not as compelling for a name clearing hearing as it is for a property interest hearing, it is in the city’s best interest not to use a hearing officer(s) who is (or who appears to be) hostile to the employee.

The name clearing hearing must be conducted at a meaningful time; however, it need not be conducted on a pre-deprivation basis (Campbell v. Pierce County, 741 F. 2d 1342 (11th Cir. 1984)). Furthermore, the city need not initiate the name clearing hearing; rather, it is sufficient that the city simply notify the employee of his/her right to request such a hearing. To this end, it is advisable to notify the employee in writing of his/her right to request the name clearing hearing and to establish a time limitation (e.g., five business days) for the request. It is generally recognized that the employee has the right to be represented by an attorney at the name clearing hearing (at his/her own expense).

Where the employee is not an “at‑will” employee and is therefore entitled to a property interest hearing, the two hearings (property interest and name clearing) can be combined. Where this is done, the employee should be notified in advance and in writing that the property interest hearing will also serve as a name clearing hearing (Harrison v. Wille, 132 F. 3d 679 (11th Cir. 1998)).
 

Exceptions to the At-Will Employment Rule


While the Georgia courts have, for the most part, declined to recognize any public policy-based or other judicially-created exceptions to the state’s employment at-will rule, municipal employers should remain mindful of the following legislatively-created exceptions (state and federal) that limit or restrict a city’s right to terminate the employment relationship or which otherwise regulate that relationship.
 

Georgia Whistleblower Act


Breaking with over two centuries of tradition, the Georgia Whistleblower Act (GWA) represents the first and only time in its history that the Georgia Legislature has established an employment-related cause of action for damages (O.C.G.A. § 45-1-4, as amended in 2005 and 2007). The GWA applies to all cities that receive state funds, regardless of the amount received or the size or revenue base of the city (O.C.G.A. § 45-1-4(a)(4)). Further, the GWA has been held to operate as a complete waiver of sovereign immunity, meaning that cities are liable for all damages awarded under the GWA in excess of any applicable insurance coverage (Colon v. Fulton County, 294 Ga. 93, 751 S.E. 2d 307 (2013)). Prior to this holding, a public employer’s waiver of sovereign immunity in GWA cases was, as in other cases, only to the extent it carried liability insurance (O.C.G.A. § 36-33-1(a); compare Mims v. Clanton, 215 Ga. App. 665, 452 S.E. 2d 169 (1994)). Even the municipal ante-litem notice statute has been held inapplicable to GWA claims (West v. City of Albany, 300 Ga. 743, 797 S.E. 2d 809 (2017)).

The GWA prohibits public employers from retaliating against an employee who discloses “a violation of or non-compliance with a law, rule, or regulation to either a supervisor or a government agency, unless the disclosure was made with knowledge that the disclosure was false or with reckless disregard for its truth or falsity.” The GWA also makes it illegal for public employers to “retaliate against an employee for objecting to, or refusing to participate in, any activity … that the public employee has reasonable cause to believe is in violation of or non-compliance with a law, rule, or regulation” (O.C.G.A. § 45-1-4(d)(2) et seq.). The GWA defines retaliation as “discharge, suspension, or demotion [or] any other adverse employment action taken … against a public employee in the terms or conditions of employment for [engaging in protected activity under the Act]” (O.C.G.A. § 45-1-4(a)(5)).

To qualify as protected activity under the GWA, a disclosure must be made either to a federal, state, or local government agency or to a “supervisor,” which the Act broadly defines as including any individual given authority to: (1) “direct and control the work performance of the affected public employee,” (2) “take corrective action regarding a violation of or noncompliance with a law, rule, or regulation of which the public employee complains,” or (3) “receive complaints regarding a violation of or noncompliance with a law, rule, or regulation” (O.C.G.A. § 45-1-4(a)(6)).

Claims under the GWA must be asserted within one year of the employee’s discovery of the alleged retaliation or within three years of the occurrence of the alleged retaliation, whichever is earlier (O.C.G.A. § 45-1-4(e)(1)). In addition to the aforementioned compensatory damages, relief available under the Act includes lost wages and benefits, attorney’s fees and other expenses of litigation, and reinstatement (O.C.G.A. § 45-1-4(e)(2), (f)).


The First Amendment and Freedom of Speech


Unlike private sector employers, a city as a governmental entity is subject to the First Amendment, which is often implicated by personnel decisions. Furthermore, not unlike the liberty interests discussed above, all city employees have First Amendment rights, regardless of whether they are employed at-will or possess property interests in their continued employment.

While careful to acknowledge that an individual does not surrender his/her constitutional rights by accepting employment with a governmental entity, the courts have also recognized that the government—when acting as an employer—does have an interest in maintaining an efficient, productive, and safe workplace which necessitates some regulation of its employee’s speech and expression. Consequently, when evaluating First Amendment challenges to terminations or other adverse employment actions, the courts often find themselves attempting to strike a proper balance between the government’s interests as an employer and the employee’s interests in the speech or expression in question (Alves v. Board of Regents, 804 F.3d 1149 (11th Cir. 2015)).

In resolving such challenges, the court will initially consider whether the employee was acting in his capacity as an employee or as a private citizen when he engaged in the speech or expression in question and will also examine the speech or expression to determine whether it addresses a matter of public concern. With regard to the former inquiry, “[w]hen public employees make statements pursuant to their official duties, [they] are not speaking as citizens … and the [First Amendment] does not insulate their communications from employer discipline” (Garcetti v. Ceballos, 547 U.S. 410, 421 (2006)). With regard to the latter, whether speech or expression addresses a matter of public concern turns on its content (e.g., whether it related to any matter of political, social, or other concern to the community, whether it was a subject of legitimate news interest, or whether it was a subject of general interest, value, or concern to the public), as well as on the form it took and the context in which it occurred (Connick v. Myers, 461 U.S. 138 (1983)). If either of these inquiries is answered in the negative, then the employee’s First Amendment challenge will normally fail.

If the court determines that the speech or conduct in question was made by the employee acting in his capacity as a private citizen and that it addressed a matter of public concern, it will then balance the employee’s interest in engaging in the speech or conduct against the governmental employer’s interests in maintaining an efficient, productive, and safe workplace (Pickering v. Bd. of Educ., 391 U.S. 563 (1968)). Relevant considerations include: (a) whether the speech or expression disrupted (or threatened to disrupt) important working relationships; (b) whether it interfered (or threatened to interfere) with internal operations; (c) whether it undermined (or threatened to undermine) leadership’s authority; (d) whether it caused (or had the potential to cause) internal disciplinary problems; (e) whether it affected (or threatened to affect) morale; or (f) whether it damaged (or threatened to damage) public confidence in the employer (Connick v. Myers, 461 U.S. 138 (1983); Anderson v. Burke County, 239 F. 3d 1216 (11th Cir. 2001); Waters v. Chaffin, 684 F. 2d 833 (11th Cir. 1982)). Through its evaluation of these and similar factors, the court will reach a determination as to whether the reasons underlying the adverse employment action are sufficiently compelling as to justify the infringement upon the employee’s First Amendment rights.
 

The First Amendment and Freedom of Association


Although the types of associations protected by the First Amendment can vary greatly, ranging from membership in a labor union to more intimate associations such as marriage or friendships, the association most commonly at issue when an adverse employment action is challenged on freedom of association grounds is political affiliation (i.e., an employee’s political beliefs, membership in a political party, support for or opposition to a political candidate, or political activities such as attending campaign rallies, meetings or events, handing out fliers, etc.) (Elrod v. Burns, 427 U.S. 347 (1976); Buckley v. Valeo, 424 U.S. 1 (1976); Rodriguez v. Doral, 863 F. 3d 1343 (11th Cir. 2017)).

Provided that the employee’s political associations are not manifested in the form of political activity while on duty, in uniform, on city-owned premises, while using city vehicles, copy machines, computers, email, or other equipment, systems, or supplies, they generally cannot form the basis for an adverse employment action without violating the First Amendment. An exception exists, however, when the employee holds a high-level, policy-making position or is considered a confidential employee; i.e., a position as to which political loyalty is necessary to perform its essential functions or as to which political confidences will be shared (Branti v. Finkel, 445 U.S. 507 (1980); Elrod v. Burns, 427 U.S. 347 (1976); Rodriguez v. Doral, 863 F. 3d 1343 (11th Cir. 2017); McKinley v. Kaplan, 262 F.3d 1146 (11th Cir. 2001); McCabe v. Sharrett, 12 F.3d 1558 (11th Cir. 1994)).
 

Title VII of the Civil Rights Act of 1964


Title VII is the first of a series of modern federal civil rights laws specifically enacted to regulate all facets of the employment relationship. Title VII makes it unlawful for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his/her compensation, terms, conditions, or privileges of employment because of his/her race, color, religion, sex, or national origin (42 U.S.C. § 2000e-2). For purposes of Title VII, harassment—including the creation and maintenance of a hostile work environment—is a form of discrimination if because of one of these protected classifications (Meritor Savings Bank v. Vinson, 477 U.S. 57, 63-69 (1986)).

The Pregnancy Discrimination Act of 1978 amended Title VII to clarify that the term “sex” includes pregnancy and pregnancy-related conditions (42 U.S.C. § 2000e(k)). As previously noted, recent court decisions have held that the term also encompasses transgender status/gender identity, although the 11th Circuit has reached a contrary conclusion with regard to sexual orientation (Evans v. Georgia Regional Hospital, 850 F. 3d 1248 (11th Cir. 2017)).

Title VII is applicable to private and public sector employers alike; however, nearly every type of claim based on intentional discrimination or harassment that can be asserted pursuant to Title VII can also be asserted pursuant to Section 1983 as a violation of the U.S. Constitution, typically the Equal Protection Clause of the 14th Amendment (Whiting v. Jackson State Univ., 616 F.2d 116 (5th Cir. 1980)). Thus, unlike private sector employers, cities are subject to parallel claims for alleged discrimination or harassment under Section 1983. Such claims differ from Title VII claims in many critical ways, including that, in addition to the city itself, they may be asserted against individual city officials and employees and that damages awards under Section 1983 are not subject to the caps imposed by Congress of similar awards under Title VII (Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991); 42 U.S.C. § 1981a(b)(3)).

In view of the foregoing, cities and their officials and employees have an added incentive to prohibit and eradicate unlawful discrimination, including harassment, from the municipal workplace. At a minimum, this requires the adoption and distribution of a policy prohibiting unlawful discrimination and harassment, as well as periodic training to ensure that all officials and employees understand what the policy prohibits. Furthermore, the city must take steps to ensure that any discrimination or harassment that does occur in the workplace is discovered, which requires the implementation of an effective reporting procedure, encouraging employees to report potential violations, and training supervisors and managers in detecting and investigating potential violations. Finally, where it is determined that unlawful discrimination or harassment has occurred, the city must take prompt remedial action to prevent recurrence and address the needs of the victim. Cities that are unable to establish adherence to a strong prevent/detect/remedy policy face potentially substantial exposure under Title VII and Section 1983 (Faragher v. City of Boca Raton, 524 U.S. 775 (1988)).

Finally, like all subsequent federal civil rights legislation, Title VII prohibits retaliation against employees who oppose any alleged violations of the statute or who participate in any proceedings under the statute (42 U.S.C. § 2000e-3(a)).
 

Sex Discrimination


While Georgia has never enacted legislation truly analogous to Title VII, the state's Sex Discrimination in Employment Act (SDEA) does provide some overlap by prohibiting wage payment practices that discriminate on the basis of sex (O.C.G.A. § 34-5-1 et seq.). In particular, not unlike the federal Equal Pay Act, SDEA bars employers from compensating employees of one sex at a rate less than that paid to employees of the opposite sex for “equal work in jobs which require equal skill, effort, and responsibility and which are performed under similar working conditions, except where such payment is made pursuant to: (1) a seniority system; (2) a merit system; (3) a system which measures earnings by quantity or quality of production; or (4) a differential based on any other factor other than sex” (O.C.G.A. § 34-5-3(a)). SDEA also makes it unlawful to discharge or otherwise retaliate against any covered employee because he/she has complained to the employer or any other person, commenced any proceeding under SDEA, or testified or is expected to testify in any such proceeding (O.C.G.A. § 34-5-3(c)). In many instances, retaliation under SDEA would also be actionable under the Georgia Whistleblower Act.
 

Age Discrimination


The federal Age Discrimination in Employment Act of 1967 protects people who are 40 years old or older from discrimination because of age. Employ­ers may not discharge, fail or refuse to hire, or otherwise discriminate against any individual with respect to compensation, terms or conditions, or privileges of employment because such person is 40 years of age or older unless there is a bona fide occupational qualification based on age (29 U.S.C. § 621 et seq.). While the relief available under the two statutes varies greatly, the protection afforded covered individuals under the ADEA is otherwise analogous to Title VII.

A critical difference between the ADEA and Title VII is that cities (and their officials and employees) generally are not subject to parallel age discrimination claims brought pursuant to Section 1983. While some courts have held that, unlike Title VII, Congress intended for the ADEA to preempt such claims under Section 1983, others have noted that age-based classifications simply do not typically run afoul of the Equal Protection Clause (Duva v. Board of Regents, 654 Fed. Appx. 451 (11th Cir. 2016)). The prudent municipal employer nonetheless will incorporate age discrimination and harassment into the policy and training aspects of the aforementioned prevent-detect-remedy policy.

While Georgia law does not provide a cause of action for age discrimination, the legislature has not ignored the subject altogether. In this regard, state law prohibits any entity from refusing to hire, employ, or license any individual, or to bar or discharge any individual from employment, solely because of age unless the reasonable demands of the position require such a distinction. The individual must be “qualified physically, mentally, and by training and experience to perform satisfactorily the labor assigned to him or for which he applies” (O.C.G.A. § 34-1-2). The statute protects individuals who are from age 40 to age 70.
 

Disability Discrimination


In the same vein as Title VII and the ADEA, the federal Americans with Disabilities Act (ADA) prohibits discrimination by employers against qualified individuals with disabilities in virtually all aspects of employment, including the application process, hiring, ad­vancement, termination, compensation, and training (42 U.S.C. § 12101).

Among other things, the ADA prohibits pre-employment inquiries into a person’s disability status (42 U.S.C. § 12112(d)(2)(A)). A city may require a medical examination after tendering an offer of employment and before the applicant begins work, and may condition the offer on the results of the examination (provided all entering employees in the same job category are subjected to the same requirement). The ADA also requires a city to provide “reason­able accommodation” of an otherwise qualified person with a disability, unless the employer can show that it would constitute an undue hardship (O.C.G.A. § 12112(b)(5)(A)).

Georgia law addresses the rights of disabled employees as well. The Georgia Equal Employment for Persons with Disabilities Code (previously the “Georgia Equal Employment for the Handicapped Code”) covers employers, including cities, employing 15 or more individuals (O.C.G.A. § 34‑6A‑2). This statute prohibits cities and other covered employers from discriminating against any person with a disability with respect to wages, rates of pay, hours, or other terms and conditions of employment because of such person’s disability, unless the disability restricts that person’s ability to perform the particular job or occupation

There are several critical differences between the ADA and Georgia Equal Employment for Persons with Disabilities Code. For instance, the Georgia statute’s definition of “disabled person” is narrower than that of its federal counterpart, in that it excludes some physical and mental disorders or conditions included in the ADA. In addition, in stark contrast to the ADA, the Georgia law does not require any accommodation of an individual’s disability. To the contrary, the statute prohibits discrimination based on disability, “unless such disability restricts that individual’s ability to engage in the particular job or occupation for which he or she is eligible,” and specifically states that it shall not be construed to prohibit the rejection of an applicant because he or she has a disability that interferes with the ability to perform the assigned job duties adequately (O.C.G.A. § 34 6A 4(a); O.C.G.A. § 34‑6A‑3(b)). Because the requirements of the ADA and State law are concurrent, however, prudent cities will focus their compliance efforts on the ADA’s definitions, requirements, and prohibitions.

Finally, the ADA is analogous to the ADEA with respect to the threat of a parallel disability discrimination claim under Section 1983 seeking to impose individual liability against city officials or employees and/or to recover damages in excess of statutorily-established maximums. In this regard, the Supreme Court has held that classifications based on disability rarely trigger scrutiny under the Equal Protection Clause, while the majority view is that claims based on alleged violations of the ADA or the federal Rehabilitation Act must be brought under those statutes rather than via Section 1983 (City of Cleburne v. Cleburne Learning Center, 473 U.S. 432 (1985); Holbrook v. City of Alpharetta, 112 F. 3d 1522 (11th Cir. 1997)). As with the ADEA, however, the prudent municipal employer will include disability discrimination and harassment in the policy and training aspects of its prevent-detect-remedy policy.
 

Garnishment of Wages/Bankruptcy


Under Georgia law, city employees may not be terminated solely based on a single garnishment of their wages (O.C.G.A. § 18-4-7). This protection is expressly for a single garnishment, however, and is not extended to multiple garnishments. The federal Consumer Credit Protection Act contains a similar prohibition, while the federal Bankruptcy Act prohibits municipal employers from terminating or otherwise discriminating against an employee for having filed a bankruptcy petition (15 U.S.C. § 1674(a); 11 U.S.C. § 525).
 

Time Off to Vote/Jury Duty/Witness Subpoena


All Georgia employers, including cities, are required to permit their employees to take time off to vote in any federal, state, or local political election (O.C.G.A. § 21-2-404). To qualify for this statutory protection, the employee must be a registered and qualified voter and must provide the employer with reasonable notice of his/her desire to take time off to vote. The employee is not entitled to take such leave if his/her hours of work begin at least two hours after the polls open or end at least two hours before they close. The employee may take no more than two hours, and the employer may specify the time. Although no court has addressed the issue, the Attorney General has determined that the time off must be with pay (1989 Ga. Op. Atty. Gen. 129). Note, however, that such time would not have to be treated by the city as time worked for overtime purposes.

Employees are also entitled to time off for jury duty and to attend court proceedings when their attendance is compelled by valid subpoena or other court order. This statute does not apply to an employee whose court attendance is because he/she has been charged with a crime (O.C.G.A. § 34-1-3).
 

Breastfeeding


Georgia law recognizes that babies have a right to breast-feed and that, in furtherance of this right, a mother may breast-feed her baby in any location, where the mother is otherwise authorized to be, provided the mother acts in a discreet and modest way (O.C.G.A. § 31-1-9).

Another Georgia statute further promotes the interests of breast-feeding mothers by providing that an employer may provide reasonable unpaid break time each day to an employee who needs to express breast milk for her infant child (O.C.G.A. § 34-1-6). While the statute does not make such break time mandatory, a recent amendment to the federal Fair Labor Standards Act (FLSA) does. In particular, this amendment requires employers to provide “reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time such employee has need to express the milk” (29 U.S.C. § 207(r)(1)(A)). The FLSA also requires employers to provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk (29 U.S.C. § 207(r)(1)(B); see also O.C.G.A. § 34-1-6(b)).

Finally, because lactation is a pregnancy-related medical condition, the EEOC has taken the position that less favorable treatment of an employee due to her need to breastfeed or express milk may raise an inference of pregnancy discrimination. According to the EEOC, “an employee must have the same freedom to address such lactation-related needs that she and her co-workers would have to address other similarly limiting medical conditions. For example, if an employer allows employees to change their schedules or use sick leave for routine doctor appointments and to address non-incapacitating medical conditions, then it must allow female employees to change their schedules or use sick leave for lactation-related needs under similar circumstances.”
 

Blood Donation


Municipal employees are permitted up to eight hours of paid leave in each calendar year for the purpose of donating blood, while those who donate blood platelets or granulocytes are permitted up to sixteen hours of paid leave (O.C.G.A. § 45-20-30).
 

Family Medical Leave Act


Under the federal Family and Medical Leave Act (FMLA), eligible employees are entitled to 12 weeks (or 26 weeks under certain circumstances) of unpaid leave for specified qualifying events (29 U.S.C. § 2612). While all public employers, including cities, are covered by the FMLA regardless of size, not all city employees are eligible for FMLA leave. In fact, many cities throughout Georgia, despite being covered by the Act, have no employees actually eligible for FMLA leave. In this regard, to be eligible for leave, an employee must have been employed by the city for at least 12 months (which do not have to be consecutive), must have worked for at least 1,250 hours in the 12-month period immediately preceding the date on which the requested FMLA leave is to begin, and must be employed by a city that has at least 50 employees at (or within 75 miles of) the office or another location where the employee works (29 U.S.C. § 2611(2)).

An FMLA-eligible employee can take up to 12 weeks of FMLA leave (1) to care for a newborn child; (2) to have a child placed with the employee for adoption or foster care; (3) to care for his/her spouse, child, or parent with a serious health condition; (4) for his/her own serious health condition; and (5) for any “qualifying exigency” arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on active duty (29 U.S.C. § 2612(a)(1)). In addition, an eligible employee can take up to 26 weeks of FMLA leave to care for a covered service member with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the service member (29 U.S.C. § 2612(a)(3)). A city is also required to maintain the employee’s health benefits as if the employee were continuously employed during the leave period (29 U.S.C. § 2614(c)).

FMLA-eligible employees do not have to take the entire leave at once. Moreover, eligible employees may take leave under the FMLA intermittently or on a reduced leave schedule for his/her own serious health condition or that of his/her family member, or for a qualifying exigency (29 U.S.C. § 2612(b)(1)).

FMLA leave is generally unpaid; however, a city may require an employee to utilize accrued paid leave (vacation or sick leave) concurrently with his/her FMLA leave (29 U.S.C. § 2612(d)).

When an FMLA-eligible employee returns from FMLA leave, the city is required to restore him/her to the same position he/she held when the FMLA leave began or to an equivalent position with equivalent benefits and pay (29 U.S.C. § 2614(a)). An exception to the restoration requirement exists in the case of a “key employee” if the city can demonstrate that holding the position open would cause it substantial and grievous economic injury. For this exception to apply, the employee must be FLSA exempt and among the highest paid ten percent of all employees within 75 miles of his/her worksite. The key employee must be notified upon commencement of the leave that he/she will not be restored at the end of the FMLA leave (29 U.S.C. § 2614(b); 29 C.F.R. §§ 825.217-219).

Because cities with no FMLA-eligible employees are still covered by the FMLA, they must comply with the posting requirements of the Act. In particular, all cities are required to post a notice explaining the provisions of the FMLA and providing information regarding the procedures for filing complaints for alleged violations of the FMLA. The notice must be conspicuously posted where it can be seen by both employees and applicants. When a city’s workforce is comprised of a significant portion of non-English speaking employees, it must provide the notice in a language in which the employees are literate (29 U.S.C. § 2619(a); 29 C.F.R. § 825.300(a)(4)).

As a final note, cities should be aware that an employee who is unable to return to work upon expiration of his/her FMLA leave may nevertheless be entitled to additional leave as a reasonable accommodation under the federal Americans with Disabilities Act (ADA)—even if the employee has exhausted any and all other forms of leave available to him/her.
 

Military Leaves of Absence


Under the federal Uniformed Services Employment and Re-employment Rights Act (USERRA), upon the satisfaction of certain basic eligibility requirements, city employees are entitled to a leave of absence for military service and to return to their positions (or a position of like seniority, status and pay) following completion of their military service (38 U.S.C. § 4312). There is no differentiation between voluntary and involuntary military orders for purposes of USERRA (38 U.S.C. §§ 4303(13), 4312(h)). While USERRA does not apply to “state” military duty or governor call-ups of National Guard members, Georgia law provides employment protection for those persons engaged in the performance of ordered military duty that is comparable or sometimes greater to that provided by the federal law (20 C.F.R. § 1002.57(b); O.C.G.A. § 38-2-280).

Under USERRA, all written or verbal orders are considered valid when issued by competent military authority. Advance notice must be provided to the city either orally or in writing by the employee, unless precluded by military necessity. Failure to provide timely notice may result in a denial of the protections of the law (38 U.S.C. §§ 4303(8), 4312(a), (b), (h)).

A city cannot require an employee to apply for a military leave of absence or otherwise submit official documentation for prior approval of a military leave of absence, nor does it have the right to deny military leave, so long as the employee has not exceeded the five years of cumulative service provided under federal law. A city does have the right, however, to request such documentation to establish an employee’s basic eligibility for protection under the law after periods of military leave of absence for more than 30 days (38 U.S.C. § 4312(c), (e), (f)(3)(A), (h)).

While USERRA does not require a city to pay an employee while on military leave of absence, Georgia law requires that city employees be paid their salary (or other compensation) for periods of military leave, or while going to and returning from such leave, for a period not exceeding a total of 18 days in a federal fiscal year. Furthermore, if the Governor declares an emergency, and a city employee is ordered to active duty as a member of the National Guard, the employee must be paid his/her salary (or other compensation) for a period not exceeding 30 days in a federal fiscal year (O.C.G.A. § 38-2-279(e)). Employees cannot be required to use vacation or other personal leave for military service, but may, at his/her request, be permitted to use any such leave that accrued before the beginning of the military service instead of unpaid leave (38 U.S.C. § 4316(d)).

An employee generally does not accrue vacation or sick leave while on military leave of absence; however, USERRA entitles such employees to the same benefits provided to employees on other types of unpaid leave (38 U.S.C. § 4316(b)). Thus, for example, if a city provides continued health, life or disability insurance to employees on other types of unpaid leave, then these same benefits must be provided to employees on military leave. Furthermore, for absences of less than 30 days, health insurance benefits must be continued as if the employee has not been absent. For absences of 31 days or more, coverage stops unless the employee elects to pay for COBRA-like coverage (for a period of up to 18 months) (38 U.S.C. § 4317(a)(2)). Regardless of whether such continuation coverage is elected, health insurance must be reinstated the day an employee is reinstated with no waiting period (38 U.S.C. § 4317(b)(1)).

Pension plans, if tied to seniority, are given separate detailed treatment under federal law. There is no requirement under the law for a city to continue pension contributions while the employee is away from work (although it may choose to offer this benefit). Upon re-employment, the employee must be treated as not having incurred a break in service with the city maintaining a pension plan and military service must be considered service with a city for vesting and benefit accrual purposes. A reemployed veteran has three times the length of service (not to exceed five years) to make payments, and the city is liable to fund any resulting obligation of the plan within the same time frame (38 U.S.C. § 4318).
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