Appendix

Cross references. - Tendering of teachers' contracts on annual basis, § 20-2-211 .

Eye-protection devices for individuals participating in chemical or industrial courses of instruction, § 20-9-1 .

Affording employees time off to vote, § 21-2-404 .

Collective bargaining rights of members of municipal fire departments, T. 25, C. 5.

Prohibition against retaliation against employees of nursing home for reporting abuse or neglect of residents, §§ 31-8-60 , 31-8-87 .

Authority of Department of Public Health to issue orders to prevent industrial, commercial, or business practices which constitute hazard to health and safety of employees or general public, § 31-12-8 .

Duty of persons possessing or using source of ionizing radiation to maintain records showing radiation exposure of all individuals for whom personnel monitoring may be required by the Department of Community Health and Department of Natural Resources, § 31-13-9 .

Duty of employer to reemploy employee upon discharge of employee from military service, § 38-2-280 .

Regulation of child labor, T. 39, C. 2.

Strikes by state employees, § 45-19-1 et seq.

Law reviews. - For article, "Migratory Labor: Some Legal, Economic and Social Aspects," see 3 Mercer L. Rev. 278 (1952). For annual Eleventh Circuit survey of labor law, see 42 Mercer L. Rev. 1497 (1991). For survey of 1995 Eleventh Circuit cases on labor law, see 47 Mercer L. Rev. 891 (1996). For note, "Position of Labor in Georgia," see 1 Mercer L. Rev. 289 (1950).

RESEARCH REFERENCES

ALR. - Effect of National Labor Relations Act to exclude state action, 174 A.L.R. 1051 .

Validity of state statutory provisions for arbitration of labor disputes, as against the objection of delegation of legislative power without setting up adequate standards to guide the administrative agency, 9 A.L.R.2d 871.

Rights and liabilities as between employer and employee with respect to general bonus or profit sharing plan, 81 A.L.R.2d 1066.

Who are supervisors for purposes of bargaining-unit determination in state public employment labor relations, 96 A.L.R.3d 723.

Liability for discharge of at-will employee for in-plant complaints or efforts relating to working conditions affecting health or safety, 35 A.L.R.4th 1031.

Right to jury trial in action for retaliatory discharge from employment, 52 A.L.R.4th 1141.

Excessiveness or inadequacy of punitive damages in cases not involving personal injury or death, 14 A.L.R.5th 242.

Employer's duty to furnish wage information to employees' representative under National Labor Relations Act, 112 A.L.R. Fed. 81.

CHAPTER 1 GENERAL PROVISIONS

Sec.

34-1-1. Redesignated.

Reserved by Ga. L. 2012, p. 1144, § 7/SB 446, effective May 2, 2012.

Editor's notes. - Ga. L. 2012, p. 1144, § 6/SB 446, effective May 2, 2012, redesignated former Code Section 34-1-1 as present Code Section 25-15-110.

34-1-2. Prohibition of age discrimination in employment.

  1. No person, firm, association, or corporation carrying on or conducting within this state any business requiring the employment of labor shall refuse to hire, employ, or license nor shall such person, firm, association, or corporation bar or discharge from employment any individual between the ages of 40 and 70 years, solely upon the ground of age, when the reasonable demands of the position do not require such an age distinction, provided that such individual is qualified physically, mentally, and by training and experience to perform satisfactorily the labor assigned to him or for which he applies. Nothing in this Code section shall affect the retirement policy or system of any employer where such policy or system is not merely a subterfuge to evade the purposes of this Code section. When the retirement or insurance benefit program of any employer shall prohibit the employment of any person because of excessive age, such person shall have the authority, as a condition of employment, to waive the right to participate in any such program and receive any benefits therefrom. Nothing in this Code section shall be construed to prohibit compulsory retirement of any employee who has attained 65 years of age but not 70 years of age and who, for the two-year period immediately before retirement, is employed in a bona fide executive or a high policy-making position, if such employee is entitled to an immediate nonforfeitable annual retirement benefit from a pension, profit-sharing, savings, or deferred compensation plan, or any combination of such plans, of the employer of such employee, which equals, in the aggregate, at least $27,000.00.
  2. Any person or corporation who violates any provision of subsection (a) of this Code section shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than $100.00 nor more than $250.00.

    (Ga. L. 1971, p. 384, §§ 1, 2; Ga. L. 1981, p. 636, § 1.)

Cross references. - Equal protection, U.S. Const., amend. 14 and Ga. Const. 1983, Art. I, Sec. I, Para. II.

Discrimination in public employment on basis of age, race, sex, § 45-19-20 et seq.

Compulsory retirement of pilots engaged in conducting vessels to and from ports, § 52-6-53 .

Law reviews. - For annual Eleventh Circuit survey of employment discrimination, see 42 Mercer L. Rev. 1381 (1991). For survey of 1995 Eleventh Circuit cases on employment discrimination, see 47 Mercer L. Rev. 797 (1996). For annual Eleventh Circuit survey of employment discrimination, see 56 Mercer L. Rev. 1233 (2005). For note, "Employer Beware: Changing the Landscape of Employment Discrimination Claims at the Summary Judgment Stage," see 68 Mercer L. Rev. 1145 (2017).

JUDICIAL DECISIONS

No private cause of action. - Penal statutes in Georgia, such as O.C.G.A. § 34-1-2 , do not give rise to a private cause of action for the conduct proscribed. Calhoun v. Federal Nat'l Mtg. Ass'n, 823 F.2d 451 (11th Cir. 1987), cert. denied, 484 U.S. 1078, 108 S. Ct. 1058 , 98 L. Ed. 2 d 1019 (1988); Suber v. Bulloch County Bd. of Educ., 722 F. Supp. 736 (S.D. Ga. 1989).

At-will employee may not sue in tort under O.C.G.A. § 51-1-6 or O.C.G.A. § 51-1-8 for wrongful discharge based upon age discrimination. Reilly v. Alcan Aluminum Corp., 272 Ga. 279 , 528 S.E.2d 238 (2000).

Provisions of O.C.G.A. §§ 51-1-6 and 51-1-8 do not create a civil action for age discrimination for an employee-at-will based upon a violation of either O.C.G.A. § 34-1-2 or the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. Reilly v. Alcan Aluminum Corp., 221 F.3d 1170 (11th Cir. 2000).

Cited in Spencer v. Moore Bus. Forms, Inc., 87 F.R.D. 118 (N.D. Ga. 1980); Bruce v. S & H Riggers & Erectors, Inc., 732 F. Supp. 1172 (N.D. Ga. 1990).

RESEARCH REFERENCES

Am. Jur. 2d. - 45A Am. Jur. 2d, Job Discrimination, §§ 18, 19. 45B Am. Jur. 2d, Job Discrimination, §§ 703, 1225 et seq.

Discrimination - Under Age Discrimination in Employment Act, 10 POF2d 1.

Age as Bona Fide Occupational Qualification Under ADEA, 15 POF2d 481.

Proof of Discrimination Under Age Discrimination in Employment Act, 44 POF3d 79.

Contingent Worker's Protection Under Federal Anti-Discrimination Statutes, 57 POF3d 75.

Age Discrimination in Employment under ADEA, 75 Am. Jur. Trials 363.

C.J.S. - 14A C.J.S., Civil Rights, § 287 et seq. 51 C.J.S., Labor Relations, § 10.

ALR. - Recovery of damages as remedy for wrongful discrimination under state or local civil rights provisions, 85 A.L.R.3d 351.

Liability of employer, supervisor, or manager for intentionally or recklessly causing employee emotional distress, 52 A.L.R.4th 853.

Award of front pay under state job discrimination statutes, 74 A.L.R.4th 746.

Application of state law to age discrimination in employment, 51 A.L.R.5th 1.

Availability and scope of punitive damages under state employment discrimination law, 81 A.L.R.5th 367.

Individual liability of supervisors, managers, officers or co-employees for discriminatory actions under state Civil Rights Act, 83 A.L.R.5th 1.

Circumstances which warrant finding of constructive discharge in cases under Age Discrimination in Employment Act (29 USC § 621 et seq.), 93 A.L.R. Fed. 10.

Who, other than specifically excluded persons, is "employee" under § 4(a)(1) of Age Discrimination in Employment Act of 1967 (29 U.S.C.S. § 623(a)(1)), 125 A.L.R. Fed. 273.

Employee's retention of benefits received in consideration of promise not to enforce claims under Age Discrimination in Employment Act as ratification of otherwise invalid or voidable waiver under § 7(f)(1) of act (29 U.S.C.S. § 626(f)(1)), 128 A.L.R. Fed. 577.

Application of Age Discrimination in Employment Act (29 U.S.C.S. § 621 et seq.) to religious institutions, 136 A.L.R. Fed 487.

Who is "employer" within meaning of Age Discrimination in Employment Act of 1967 (29 U.S.C.S. § 621 et seq.), 137 A.L.R. Fed 551.

Award of compensatory damages under 42 U.S.C.A. § 1981a for violation of Title VII of Civil Rights Act of 1964, 154 A.L.R. Fed. 347.

What constitutes direct evidence of age discrimination in action under age discrimination in employment act (29 U.S.C.A. § 621 et seq.) - Post-Price Waterhouse cases, 155 A.L.R. Fed. 283.

Propriety of treating separate entities as one for determining number of employees required by Title VII of Civil Rights Act of 1964 (42 U.S.C.A. § 2000e(b)) for action against "employer", 160 A.L.R. Fed. 441.

What constitutes willful violation under age discrimination in employment act (29 U.S.C.A. § 626 et seq.) entitling victim to liquidate damages, 165 A.L.R. Fed. 1

Disparate impact claims under Age Discrimination Act of 1967, 29 U.S.C.A. § 621 et seq., 186 A.L.R. Fed. 1

Discrimination against younger persons in favor of older persons (reverse age discrimination), 6 A.L.R.7th 7.

34-1-3. Discrimination against employee for attending a judicial proceeding in response to a court order or process; exception to applicability of Code section.

  1. It shall be unlawful for any employer or the agent of such employer to discharge, discipline, or otherwise penalize an employee because the employee is absent from his or her employment for the purpose of attending a judicial proceeding in response to a subpoena, summons for jury duty, or other court order or process which requires the attendance of the employee at the judicial proceeding. It shall be unlawful for any employer or the agent of such employer to threaten to take or communicate an intention of taking any action declared to be unlawful by this subsection.
  2. Any employer or agent of such employer who violates subsection (a) of this Code section shall be liable to the injured employee for all actual damages thereby suffered by the employee and for reasonable attorney's fees incurred by the employee in asserting a successful claim under this Code section.
  3. This Code section shall not apply to an employee who is charged with a crime, nor shall it prohibit an employer from requiring an employee to abide by regulations requiring reasonable notification to an employer of the employee's expected absence or delay in reporting to work in order to attend a judicial proceeding. (Code 1981, § 34-1-3 , enacted by Ga. L. 1987, p. 1156, § 1; Ga. L. 1990, p. 590, § 2.)

Cross references. - Right to trial by jury, Ga. Const. 1983, Art. I, Sec. I, Para. XI.

Exemptions from jury duty, § 15-12-1 et seq. and § 38-2-276 .

Selection of jurors, § 15-12-40 et seq.

Jury leave for teachers, § 20-2-870 et seq.

Law reviews. - For survey article on labor and employment law for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 303 (2003).

JUDICIAL DECISIONS

Employer failed to comply with statute. - Attendance rules in an employer's handbook did not comply with O.C.G.A. § 34-1-3 because the rules stated somewhat confusingly that an employee was only protected for work absences due to a court required appearance, which was defined as: an employee was not a named party in the proceedings, and an employee was accompanying a minor child or stepchild who has been subpoenaed to testify as a witness; the statute's protection is not limited to employees accompanying a minor child subpoenaed to testify. Thomas v. HL-A Co., 313 Ga. App. 94 , 720 S.E.2d 648 (2011).

Juvenile court proceedings. - As it was undisputed that the particular reason the employee was terminated was that the employee was absent from work while attending juvenile court proceedings, that termination was in violation of O.C.G.A. § 34-1-3 . Glover v. Scott, 210 Ga. App. 25 , 435 S.E.2d 250 (1993).

Sufficient evidence of retaliation. - Trial court erred in granting a former employer's motion for summary judgment in a former employee's action alleging that the employer improperly terminated the employee in violation of O.C.G.A. § 34-1-3(a) for attending a juvenile court proceeding because the employee presented competent circumstantial evidence from which a jury could infer that the employee was fired in retaliation for arguing to management that the employee was statutorily entitled to be excused since the employee was attending court pursuant to a witness subpoena; the employer failed to come forward with competent evidence showing a proper reason for the termination, and the subpoena commanding the employee to appear in court was facially valid. Thomas v. HL-A Co., 313 Ga. App. 94 , 720 S.E.2d 648 (2011).

Cited in In re Hadaway, 290 Ga. App. 453 , 659 S.E.2d 863 (2008).

OPINIONS OF THE ATTORNEY GENERAL

Criminal offense not created. - O.C.G.A. § 34-1-3 does not create a separate criminal offense; however, a violation can be grounds for contempt of court. 1995 Op. Att'y Gen. No. 95-13.

Employee is entitled to pay while serving jury duty. - An employee is entitled to be paid the employee's salary while missing work to serve on jury duty. 1989 Op. Att'y Gen. No. 89-55.

Judicial proceedings in other states. - "Judicial proceeding" as used in subsection (a) of O.C.G.A. § 34-1-3 includes judicial proceedings in other states; therefore, a person employed in Georgia who has been penalized for being absent from work for the purpose of attending a judicial proceeding in another state in response to a jury summons from a court in that other state has a civil cause of action against the employer. 1995 Op. Att'y Gen. No. 95-13.

RESEARCH REFERENCES

ALR. - Protection of debtor from acts of discrimination by private entity under § 525(b) of Bankruptcy Code of 1978 (11 USCS § 525(b)), 105 A.L.R. Fed. 555.

34-1-4. Employer immunity for disclosure of information regarding job performance.

  1. As used in this Code section, the term:
    1. "Employee" means any person who is employed by an employer described in paragraph (2) of this subsection.
    2. "Employer" means any individual engaged in a business, corporation, S-corporation, limited liability company, partnership, limited liability partnership, sole proprietorship, association, or government entity.
  2. An employer as defined in subsection (a) of this Code section or any person employed by an employer and designated as the employer's representative who discloses factual information concerning an employee's or former employee's job performance, any act committed by such employee which would constitute a violation of the laws of this state if such act occurred in this state, or ability or lack of ability to carry out the duties of such job to a prospective employer of such employee or former employee upon request of the prospective employer or of the person seeking employment is presumed to be acting in good faith unless lack of good faith is shown by a preponderance of the evidence, unless the information was disclosed in violation of a nondisclosure agreement or the information disclosed was otherwise considered confidential according to applicable federal, state, or local statute, rule, or regulation. (Code 1981, § 34-1-4 , enacted by Ga. L. 1993, p. 1056, § 1; Ga. L. 1995, p. 982, § 1; Ga. L. 1996, p. 748, § 1; Ga. L. 2001, p. 4, § 34.)

Law reviews. - For note on 1993 enactment of this Code section, see 10 Ga. St. U.L. Rev. 146 (1993). For review of 1996 labor and industrial relations legislation, see 13 Ga. St. U.L. Rev. 224 (1996).

34-1-5. "Multiracial" classification required on forms.

  1. As used in this Code section, the term "multiracial" means having parents of different races.
  2. All written forms, applications, questionnaires, and other written documents or materials produced by or for or used by any person, firm, association, or corporation conducting business within this state requiring the employment of labor which request information on the racial or ethnic identification of an employee and which contain a list of racial and ethnic classifications from which such employee must select one shall include among their choices the classification "multiracial."
  3. No such written document or computer software described in subsection (b) of this Code section shall bear the designation "other" as a racial or ethnic classification after July 1, 1994, unless such document was printed and in stock before July 1, 1994.
  4. The failure of any person, firm, or corporation to comply with the provisions of this Code section shall not be construed to create any civil cause of action. (Code 1981, § 34-1-5 , enacted by Ga. L. 1994, p. 1360, § 3; Ga. L. 1998, p. 128, § 34.)

Editor's notes. - Ga. L. 1994, p. 1360, § 4, not codified by the General Assembly, provides that the provisions of the Act apply to those forms, applications, questionnaires, and other written documents printed or typed or otherwise originating after July 1, 1994; provided, however, that all documents printed and in stock on July 1, 1994, which bear the racial designation "other" shall be used and the stock depleted prior to reordering under the provisions of the Act even if the date occurs after July 1, 1994.

Cross references. - Multiracial classification on forms, §§ 20-2-2041 , 50-18-135 .

34-1-6. Employer obligation to provide time for women to express breast milk for infant child.

  1. As used in this Code section, the term "employer" means any person or entity that employs one or more employees and shall include the state and its political subdivisions.
  2. An employer may provide reasonable unpaid break time each day to an employee who needs to express breast milk for her infant child. The employer may make reasonable efforts to provide a room or other location (in close proximity to the work area), other than a toilet stall, where the employee can express her milk in privacy. The break time shall, if possible, run concurrently with any break time already provided to the employee. An employer is not required to provide break time under this Code section if to do so would unduly disrupt the operations of the employer. (Code 1981, § 34-1-6 , enacted by Ga. L. 1999, p. 464, § 2.)

Cross references. - Breast-feeding of baby, § 31-1-9 .

Newborn baby and mother protection act, § 33-24-58 .

34-1-7. Definitions; application for temporary restraining order and injunction; requirements; hearing; notice and service; notification of law enforcement agencies.

  1. As used in this Code section, the term:
    1. "Course of conduct" means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose including following or stalking an employee to or from the place of work; entering the workplace of an employee; following an employee during hours of employment; telephone calls to an employee; and correspondence with an employee including, but not limited to, the use of the public or private mails, interoffice mail, facsimile, or computer e-mail.
    2. "Credible threat of violence" means a knowing and willful statement or course of conduct which would cause a reasonable person to believe that he or she is under threat of death or serious bodily injury, and which is intended to, and which actually causes, a person to believe that he or she is under threat of death or serious bodily injury, and which serves no legitimate purpose.
    3. "Employer" means any person or entity that employs one or more employees and shall include the State of Georgia and its political subdivisions and instrumentalities.
    4. "Unlawful violence" means assault, battery, or stalking, as prohibited by Code Section 16-5-20, 16-5-21, 16-5-23, 16-5-23.1, 16-5-24, 16-5-90, or 16-5-91, but shall not include lawful acts of self-defense or defense of others.
  2. Any employer whose employee has suffered unlawful violence or a credible threat of violence from any individual, which can reasonably be construed to have been carried out at the employee's workplace, may seek a temporary restraining order and an injunction on behalf of the employer prohibiting further unlawful violence or threats of violence by that individual at the employee's workplace or while the employee is acting within the course and scope of employment with the employer. Nothing in this Code section shall be construed as authorizing a court to issue a temporary restraining order or injunction prohibiting speech or other activities that are protected by the Constitution of this state or the United States.
    1. Except for proceedings involving a nonresident respondent, the superior court of the county where the respondent resides shall have jurisdiction over all proceedings under this Code section.
    2. For proceedings under this Code section involving a nonresident respondent, the superior court where the petitioner's workplace is located shall have jurisdiction, where the act involving unlawful violence or a credible threat of unlawful violence meets the elements for personal jurisdiction provided for under paragraph (2) or (3) of Code Section 9-10-91.
  3. Upon filing a petition with the court for an injunction pursuant to this Code section, the petitioner may obtain a temporary restraining order if the petitioner also files an affidavit which, to the satisfaction of the court, shows reasonable proof that an employee has suffered unlawful violence or a credible threat of violence by the respondent and that great or irreparable harm shall result to an employee if such an injunction is not granted. The affidavit shall further show that the petitioner has conducted a reasonable investigation into the underlying facts which are the subject of the petition. A temporary restraining order granted under this Code section shall remain in effect, at the court's discretion, for a period not to exceed 15 days, unless otherwise modified or terminated by the court.
  4. Within ten days of filing of the petition under this Code section or as soon as practical thereafter, but in no case later than 30 days after the filing of the petition, a hearing shall be held on the petition for the injunction. In the event a hearing cannot be scheduled within the county where the case is pending within the 30 day period, the same shall be scheduled and heard within any other county of the circuit. The respondent may file a response which explains, excuses, justifies, or denies the alleged unlawful violence or credible threat of violence or may file a cross-complaint under this Code section. At the hearing, the judge shall receive any testimony that is relevant and may make an independent inquiry. If the judge finds by clear and convincing evidence that the respondent engaged in unlawful violence or made a credible threat of violence, an injunction shall issue prohibiting further unlawful violence or threats of violence at the employee's workplace or while the employee is acting within the course and scope of employment with the employer. An injunction issued pursuant to this Code section shall have a duration of not more than three years. At any time within the three months before the expiration of the injunction, the petitioner may apply for a renewal of the injunction by filing a new petition for an injunction pursuant to this Code section.
  5. Upon the filing of a petition for an injunction pursuant to this Code section, the respondent shall be personally served with a copy of the petition, temporary restraining order, if any, and notice of hearing on the petition.
  6. The court shall order the petitioner or the attorney for the petitioner to deliver a copy of each temporary restraining order or injunction, or modification or termination thereof, granted under this Code section, by the close of the business day on which the order was granted, to the law enforcement agencies within the court's discretion as are requested by the petitioner. Each appropriate law enforcement agency shall make available information as to the existence and current status of these orders to law enforcement officers responding to the scene of reported unlawful violence or a credible threat of violence.
  7. Nothing in this Code section shall be construed as expanding, diminishing, altering, or modifying the duty, if any, of an employer to provide a safe workplace for employees and other persons. (Code 1981, § 34-1-7 , enacted by Ga. L. 2000, p. 1081, § 1.)

Cross references. - Temporary restraining and protective orders, § 17-17-16 .

Law reviews. - For article, "Labor and Employment Law," see 53 Mercer L. Rev. 349 (2001). For article, "Georgia's 'Bring Your Gun to Work' Law May Not Have the Firepower to Trouble Georgia Employers After All," see 14 (No. 7) Ga. St. B. J. 12 (2009).

JUDICIAL DECISIONS

Cited in Mattox v. Yellow Freight Sys., Inc., 243 Ga. App. 894 , 534 S.E.2d 561 (2000).

RESEARCH REFERENCES

Am. Jur. 2d. - 27 Am. Jur. 2d, Employment Relationship, §§ 261 et seq., 323 et seq.

C.J.S. - 30 C.J.S. Employers' Liability for Injuries to Employees, §§ 55 et seq., 214 et seq.

34-1-8. Veterans' preference employment policy; use not a violation.

  1. As used in this Code section, the term:
    1. "Employer" means any person engaged in business and having one or more employees, but does not include the federal government, state, or any political subdivision of the state.
    2. "Veteran" means an individual who served on active duty in the armed forces of the United States and was honorably discharged from such service.
    3. "Veterans' preference employment policy" means any employer's policy of preference in hiring, promoting, or retaining a veteran over any other qualified applicant or employee.
  2. Any employer may create and use a veterans' preference employment policy, which shall be in writing and applied uniformly to employment decisions regarding hiring, promotion, or retention during a reduction in force.
  3. An employer's use of a veterans' preference employment policy as provided for in this Code section shall not constitute a violation of any local or state equal employment opportunity law. (Code 1981, § 34-1-8 , enacted by Ga. L. 2015, p. 620, § 2/HB 443.)

Effective date. - This Code section became effective July 1, 2015.

Editor's notes. - Ga. L. 2015, p. 620, § 1/HB 443, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Voluntary Veterans' Preference Employment Policy Act.'"

Administrative Rules and Regulations. - Veterans' preference, Official Compilation of the Rules and Regulations of the State of Georgia, Rules of the State Personnel Board, § 478-1-.18.

34-1-9. Franchisee nor franchisee's employee shall be deemed to be employee of franchisor; applicability.

  1. As used in this Code section, the terms "franchisee" and "franchisor" shall have the same meanings as provided in 16 C.F.R. Section 436.1 as such existed on August 26, 2015.
  2. Notwithstanding any order issued by the federal government or any agreement entered into with the federal government by a franchisor or a franchisee, neither a franchisee nor a franchisee's employee shall be deemed to be an employee of the franchisor for any purpose.
  3. This Code section shall not apply to Chapter 9 of this title. (Code 1981, § 34-1-9 , enacted by Ga. L. 2016, p. 616, § 2/SB 277.)

Effective date. - This Code section became effective January 1, 2017.

Editor's notes. - Ga. L. 2016, p. 616, § 1/SB 277, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Protecting Georgia Small Businesses Act.'"

Law reviews. - For annual survey of labor and employment law, see 68 Mercer L. Rev. 151 (2016).

34-1-10. Use of sick leave for care of immediate family members.

  1. As used in this Code section, the term:
    1. "Employee" means an individual who works for salary, wages, or other remuneration for an employer for at least 30 hours per week.
    2. "Employee stock ownership plan" shall have the same meaning as provided in Section 4975(e)(7) of the Internal Revenue Code, 26 U.S.C. Section 4975(e)(7).
    3. "Employer" means any individual or entity that employs 25 or more employees and shall include the State of Georgia and its political subdivisions and instrumentalities.
    4. "Immediate family member" means an employee's child, spouse, grandchild, grandparent, or parent or any dependents as shown in the employee's most recent tax return.
    5. "Sick leave" means time away from work by an employee, due to his or her own incapacity, illness, or injury, for which the employee receives his or her regular salary, wages, or other remuneration. The term "sick leave" shall not include paid short-term or long-term disability.
  2. An employer that provides sick leave shall allow an employee to use such sick leave for the care of an immediate family member; provided, however, that nothing in this Code section shall be construed to require an employer to offer sick leave or to require an employer to allow an employee to use more than five days of earned sick leave per calendar year for the care of an immediate family member.
  3. An employee shall not be entitled to use sick leave under this Code section until that leave has been earned. Any employee who uses such sick leave shall comply with the terms of the employer's employee sick leave policy.
  4. Nothing in this Code section shall be construed to create a new cause of action against an employer.
  5. This Code section shall not apply to any employer that offers to their employees an employee stock ownership plan.
  6. This Code section shall be repealed in its entirety on July 1, 2020, unless extended by an Act of the General Assembly. (Code 1981, § 34-1-10 , enacted by Ga. L. 2017, p. 524, § 1/SB 201.)

Effective date. - This Code section became effective July 1, 2017.

Law reviews. - For article on the 2017 enactment of this Code section, see 34 Ga. St. U.L. Rev. 219 (2017). For annual survey on labor and employment law, see 69 Mercer L. Rev. 141 (2017).

CHAPTER 2 DEPARTMENT OF LABOR

Sec.

Editor's notes. - By resolution (Ga. L. 1988, p. 337), the General Assembly designated the offices of the Department of Labor located in Albany, Georgia as the "A.W. 'Al' Holloway Labor Building."

RESEARCH REFERENCES

ALR. - Enforcement of labor board's order against employer's successors, assigns, or the like, 46 A.L.R.2d 592.

34-2-1. Creation of Department of Labor.

There is created and established a separate and independent administrative agency to be known as the Department of Labor.

(Ga. L. 1931, p. 7, § 101; Code 1933, § 54-101; Ga. L. 1937, p. 230, § 3.)

JUDICIAL DECISIONS

Cited in Georgia Department of Labor v. RTT Associates, Inc., 299 Ga. 78 , 786 S.E.2d 840 (2016).

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, §§ 1, 3, 7.

C.J.S. - 51A C.J.S., Labor Relations, § 692. 67 C.J.S., Officers and Public Employees, § 18. 81A C.J.S., States, § 264.

34-2-2. Definitions.

As used in this chapter, the term:

  1. "Employer" includes every person, firm, corporation, partnership, stock association, agent, manager, representative, or foreman, or other persons having control or custody of any place of employment or of any employees, except agricultural and domestic labor and those employers having less than eight employees. Naval stores producers shall be classified as agricultural, except where otherwise classified by federal laws.
  2. "Safe" or "safety" as applied to any employment or place of employment shall include conditions and methods of sanitation and hygiene reasonably necessary for the protection of the life, health, safety, and welfare of employees.

    (Ga. L. 1937, p. 230, §§ 1, 10.)

JUDICIAL DECISIONS

Cited in Stanley v. Sims, 185 Ga. 518 , 195 S.E. 439 (1937); Martin v. United States Fid. & Guar. Co., 58 Ga. App. 59 , 197 S.E. 660 (1938).

RESEARCH REFERENCES

Am. Jur. 2d. - 48 Am. Jur. 2d, Labor and Labor Relations, § 15 et seq. 27 Am. Jur. 2d, Employment Relationship, § 1 et seq.

C.J.S. - 51 C.J.S., Labor Relations, § 65.

ALR. - When has employer "repeatedly" violated Occupational Safety and Health Act within meaning of § 17(a) of Act (29 U.S.C.A. § 666(a)), 151 A.L.R. Fed. 1

34-2-3. Election, term of office, compensation, removal, and duties of Commissioner of Labor.

  1. The Department of Labor shall be under the direction and supervision of a commissioner to be known as the Commissioner of Labor. The Commissioner shall devote his full time to the duties of his office and shall not hold any other office during his term of office.
  2. The Commissioner shall be elected by those persons entitled to vote for the members of the General Assembly, and his term shall be for four years.
  3. The Commissioner of Labor shall be compensated in the amount provided for in Code Section 45-7-4, payable in semimonthly installments, and shall receive such travel expenses and allowances as are provided for in Code Section 45-7-20; provided, however, that pursuant to Code Section 45-7-4, the Commissioner shall in addition thereto be entitled to receive necessary and actual expenses incurred by him in the performance of his duties as administrator of Chapter 8 of this title.
  4. The Commissioner may be removed by the Governor for neglect of duty or malfeasance in office, provided that written charges are served upon the Commissioner at least ten days prior to a hearing thereon before the Governor and the constitutional officers of this state, and provided, further, that a majority shall find that the Commissioner is guilty of the charges preferred under this chapter, but for no other cause.
  5. The Commissioner shall have charge of the administration and enforcement of all laws, rules, and regulations which it is the duty of the department to administer and enforce except as provided in Chapter 9 of this title and shall direct all inspections and investigations except as otherwise provided.

    (Ga. L. 1911, p. 133, §§ 1-7; Ga. L. 1913, p. 82, §§ 1-3; Ga. L. 1919, p. 278, § 1; Ga. L. 1922, p. 77, § 1; Ga. L. 1925, p. 141, § 1; Ga. L. 1931, p. 7, §§ 101-106, 109; Code 1933, §§ 54-105, 54-106, 54-107, 54-108; Ga. L. 1937, p. 230, § 4; Ga. L. 1941, p. 240, § 2; Ga. L. 1943, p. 170, § 1; Ga. L. 1947, p. 673, § 1; Ga. L. 1953, Jan.-Feb. Sess., p. 613, §§ 1-6; Ga. L. 1961, p. 185, §§ 1, 2; Ga. L. 1984, p. 1152, § 3.)

Cross references. - Further provisions as to qualifications of Commissioner of Labor, Ga. Const. 1983, Art. V, Sec. III, Para. II.

Vacating of office upon permanent physical or mental disability of holder of office, Ga. Const. 1983, Art. V, Sec. IV.

JUDICIAL DECISIONS

Cited in Stanley v. Sims, 185 Ga. 518 , 195 S.E. 439 (1937); State Bd. of Educ. v. Board of Pub. Educ., 186 Ga. 783 , 199 S.E. 641 (1938).

OPINIONS OF THE ATTORNEY GENERAL

Provision for removal of Commissioner unconstitutional. - Subsection (d) of O.C.G.A. § 34-2-3 authorizing proceedings to remove the Commissioner of Labor for neglect of duty or malfeasance in office is unconstitutional. 1983 Op. Att'y Gen. No. 83-68.

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, §§ 1 et seq., 14 et seq., 137 et seq., 169 et seq.

C.J.S. - 67 C.J.S., Officers and Public Employees, §§ 2 et seq., 47, 227 et seq., 275 et seq. 81A C.J.S., States, § 264.

ALR. - Conclusiveness of governor's decision in removing or suspending officers, 92 A.L.R. 998 .

34-2-4. Establishment by Commissioner of divisions within Department of Labor; appointment, fixing of salaries and duties, and removal of employees.

  1. The Commissioner of Labor may establish within the Department of Labor such divisions as he may deem necessary for the exercise of the powers and the performance of the duties of the department, except as otherwise provided.
  2. The Commissioner is authorized and empowered to appoint a secretary, the heads of all divisions, and such other employees as may be needed and to assign them their duties and fix their annual salaries; provided, however, that no appointment shall be made whereby the aggregate salaries of the appointees are in excess of the amount appropriated by the General Assembly for salaries within the Department of Labor. The Commissioner may remove from office any officer or employee in the department, upon notice and hearing, for neglect of duty or malfeasance in office.

    (Ga. L. 1937, p. 230, § 8; Ga. L. 1950, p. 9, § 2; Ga. L. 1975, p. 198, § 1.)

OPINIONS OF THE ATTORNEY GENERAL

Commissioner's power to remove personnel. - The provision in Ga. L. 1937, p. 230, § 8 (see now O.C.G.A. § 34-2-4(b) ) providing for the commissioner's removing from office any officer or employee in the department has been repealed by the former Merit System Act. 1945-47 Op. Att'y Gen. p. 355.

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, §§ 19, 169 et seq., 173 et seq., 241 et seq.

C.J.S. - 67 C.J.S., Officers and Public Employees, §§ 17, 228 et seq.

34-2-5. Office of Department of Labor to be maintained by Commissioner; payment of office expenses; lease or rental of unused office space.

  1. The Commissioner of Labor shall keep and maintain the office of the Department of Labor in the City of Atlanta, Georgia, and shall be provided with suitable rooms, necessary furniture, stationery, books, periodicals, maps, instruments, and other necessary supplies, the expense thereof to be paid by the state in the same manner as other similar expenses are paid. In connection with the maintenance of the office of the Department of Labor, the Commissioner with the approval of the State Properties Commission is authorized and empowered to lease or rent and to negotiate, execute, and administer any necessary lease or rental agreement for office or other space in the custody of, but not occupied by, the Department of Labor and is further authorized to utilize the Department of Administrative Services as his agent in carrying out the provisions of this subsection.
  2. Notwithstanding any other provisions of law, the Commissioner is authorized to retain all funds derived from lease, rental, or similar payments received from tenants, occupants, or other users of office or other space for the sole purpose of maintenance of such office or other space. Such funds shall not be considered taxes, fees, or assessments within the meaning of Article VII, Section III, Paragraph II(a) of the Constitution of the State of Georgia, provided that nothing in this subsection shall be construed so as to allow the Commissioner to retain any funds required by the Constitution of Georgia to be paid into the state treasury.

    (Ga. L. 1911, p. 133, § 1; Ga. L. 1931, p. 7, § 109; Code 1933, § 54-109; Ga. L. 1937, p. 230, § 7; Ga. L. 1987, p. 1007, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 231.

34-2-6. Specific powers and duties of Commissioner.

  1. In addition to such other duties and powers as may be conferred upon him by law, the Commissioner of Labor shall have the power, jurisdiction, and authority:
    1. To superintend the enforcement of all labor laws in the State of Georgia, the enforcement of which is not otherwise specifically provided for, and all rules and regulations made pursuant to this title;
    2. To make or cause to be made all necessary inspections in order to see that all laws and the rules made pursuant thereto which the department has the duty, power, and authority to enforce are promptly and effectively carried out;
    3. To make investigations, collect and compile statistical information, and report upon the conditions of labor generally and upon all matters relating to the enforcement and effect of this chapter and of the rules issued thereunder;
    4. To make and promulgate such rules or changes in rules as he may deem advisable for the prevention of accidents or the prevention of industrial or occupational diseases in every employment or place of employment, and such rules or changes in rules for the construction, repair, and maintenance of places of employment, places of public assembly, and public buildings as he may deem advisable, to render them safe. The Commissioner may appoint committees composed of employers, employees, and experts to suggest rules or changes therein;
    5. To do all in his power to promote the voluntary arbitration, mediation, and conciliation of disputes between employers and employees and to avoid strikes, picketing, lockouts, boycotts, blacklisting, discriminations, and legal proceedings in matters of employment. In pursuance of this duty, the Commissioner may appoint temporary boards of arbitration, provide necessary expenses of such boards, order reasonable compensation not exceeding $15.00 per day for each member engaged in such arbitration, prescribe rules for such arbitration boards, conduct investigations and hearings, publish in print or electronically reports and advertisements, and do all things convenient and necessary to accomplish the purpose of this chapter. The Commissioner may designate a mediator and may, from time to time, detail employees or persons not in the department to act as his assistants for the purpose of executing such provisions. Employees of the Department of Labor shall act on temporary boards without extra compensation. Nothing in this Code section or in this chapter shall be construed to prohibit or limit in any way employees' rights to bargain collectively;
    6. To supervise the business of private employment agencies and employment intelligence bureaus and as frequently as may be necessary to examine into the condition of each such agency or bureau;
    7. To exercise jurisdiction over such person, firm, or corporation acting as an emigrant agent or agency, hereinafter referred to as emigrant agent. As used in this paragraph, the term "emigrant agent" means any person who shall solicit or attempt to procure labor in this state to be employed beyond the limits of this state. The Commissioner shall require each emigrant agent to make application for license to do business, such application to be endorsed by two taxpayers and accompanied by a bond of $1,000.00 for the faithful performance of duty and the payment of such tax as may be required by law; each emigrant agent must secure annually a license to do business. Each emigrant agent shall make a daily report to the Commissioner showing the names, addresses, and number of persons carried out of the state, the points to which they have been carried, the nature and character of work secured for them, the pay to be received by them, and the fee charged them or to be collected and from whom. The emigrant agent shall show clearly by whom employed, if paid a salary, or from whom he receives a commission, and how much. The Commissioner shall inspect the office and work of each emigrant agent as often as may be necessary; and if any emigrant agent shall be found to be violating the law it shall be the duty of the Commissioner immediately to proceed to have such person presented to the proper authorities for prosecution and to cancel the license to do business;
    8. To post or have posted at his discretion in a conspicuous place in all state employment agencies throughout the state, the "Help Wanted" advertisements from the Sunday editions of the two newspapers with the largest circulation in each of the cities of Detroit, Michigan; Chicago, Illinois; St. Louis, Missouri; New York, New York; Pittsburgh, Pennsylvania; Baltimore, Maryland; Washington, D.C.; Los Angeles, California; and San Francisco, California, so that persons making application for employment through such agencies, but unable to find employment in this state, may see what employment is available elsewhere. It shall be the further duty of the Commissioner of Labor to assist, in any way possible, any person making application for employment in the securing of a position in some other state if employment is not available in Georgia for such a person; and
    9. To initiate and continue to operate an ongoing educational assistance program to include high school through graduate levels for qualified Department of Labor personnel.
  2. Upon a formal determination that a debt or obligation of a former employer who is no longer in business in the State of Georgia to the Department of Labor of $300.00 or less is uncollectable, or that the costs of collection would equal or exceed the amount due such department, the Commissioner of Labor shall execute and transmit to the state accounting officer a certification which includes the following: a recapitulation of the efforts made to collect the debt or obligation; an estimate of the costs to pursue collection of the debt or obligation administratively or judicially; such other information as may be required by the procedure developed by the Commissioner of Labor and that complies with policies prescribed by the state accounting officer; and a statement that further collection effort would be detrimental to the financial interests of the state. The certification shall be made under oath or affirmation and shall be sent to the state accounting officer at such times as shall be prescribed in the procedure developed by the Commissioner of Labor and the state accounting officer. Upon receipt of the certification, the state accounting officer shall be authorized to approve the removal of such uncollectable amounts from the financial records of the Department of Labor.

    (Ga. L. 1911, p. 133, §§ 2, 5; Ga. L. 1917, p. 88, § 1; Ga. L. 1920, p. 118, §§ 1, 2; Ga. L. 1931, p. 7, § 108; Code 1933, § 54-110; Ga. L. 1937, p. 230, § 9; Ga. L. 1945, p. 487, § 1; Ga. L. 1950, p. 9, § 3; Ga. L. 1958, p. 380, § 1; Ga. L. 1959, p. 283, § 7; Ga. L. 1974, p. 567, § 20; Ga. L. 1992, p. 1029, § 1; Ga. L. 2005, p. 694, § 32/HB 293; Ga. L. 2010, p. 838, § 10/SB 388.)

Cross references. - Duty of Commissioner to enforce laws pertaining to installations of glass in public buildings and other public places, § 8-2-90 et seq.

Arbitration generally, T. 9, C. 9.

RESEARCH REFERENCES

Am. Jur. 2d. - 27 Am. Jur. 2d, Employment Agencies, §§ 3, 8. 63C Am. Jur. 2d, Public Officers and Employees, § 241 et seq.

C.J.S. - 51 C.J.S., Labor Relations, § 45. 51B C.J.S., Labor Relations, § 1071. 67 C.J.S., Officers and Public Employees, §§ 8, 9.

ALR. - Collective labor agreements, 95 A.L.R. 10 .

Specific performance or injunction as proper remedy for breach of collective bargaining agreement, 156 A.L.R. 652 .

Closed shops and closed unions, 160 A.L.R. 918 .

Construction and effect of termination and automatic renewal provisions in collective bargaining agreements, 17 A.L.R.2d 754.

Right of individual employee to enforce collective labor agreement against employer, 18 A.L.R.2d 352.

Construction and effect of vacation pay clause in collective labor agreement, 30 A.L.R.2d 351.

Enforcement of labor board's order against employer's successors, assigns, or the like, 46 A.L.R.2d 592.

Construction and application of provisions of general arbitration statutes excluding from their operation contracts for labor or personal services, 64 A.L.R.2d 1336.

Vacation pay rights of employee not hired under collective labor agreement, 33 A.L.R.4th 264.

34-2-7. Promulgation, review, amendment, and repeal of rules and regulations by Commissioner generally.

The Commissioner shall comply with the requirements of Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," in the promulgation, adoption, review, amendment, and repeal of all rules and regulations of the department.

34-2-8. Variations from rules of Commissioner; keeping of index of variations.

If there are practical difficulties or unnecessary hardships in carrying out a rule of the Commissioner of Labor, the Commissioner, after public hearing, may make a variation from such requirements if the spirit of the rule and law is observed. Any person affected by such rule, or his agent, may petition the Commissioner for such variation, stating the grounds therefor. The Commissioner shall fix a day for the hearing on such petition and shall give reasonable notice thereof to the petitioner. A properly kept index of all variations shall be kept in the office of the Department of Labor and shall be open to public inspection.

(Ga. L. 1937, p. 230, § 13; Ga. L. 1945, p. 487, § 4.)

RESEARCH REFERENCES

Am. Jur. 2d. - 2 Am. Jur. 2d, Administrative Law, § 55 et seq.

C.J.S. - 73 C.J.S., Public Administrative Law and Procedure, §§ 217, 218.

34-2-9. Preparation by Commissioner of annual report and recommendations.

The Commissioner of Labor shall annually, on or before January 1, compile a report covering the activities of the Department of Labor, accompanied by recommendations with reference to such changes in the law, applying to and affecting industrial labor conditions, as the Commissioner may deem advisable. Such report shall be kept in the Commissioner's office and shall be available for public inspection during regular business hours. Copies of the report or portions thereof shall be made available on request.

(Ga. L. 1911, p. 133, § 6; Code 1933, § 54-113; Ga. L. 1937, p. 230, § 19; Ga. L. 1978, p. 9, § 1.)

34-2-10. Employer's duty with respect to provision of safe employment generally.

  1. Every employer shall furnish employment which shall be reasonably safe for the employees therein, shall furnish and use safety devices and safeguards, shall adopt and use methods and processes reasonably adequate to render such an employment and place of employment safe, and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees.
  2. Every employer and every owner of a place of employment, place of public assembly, or public building, now or hereafter constructed, shall so construct, repair, and maintain such facility as to render it reasonably safe.

    (Ga. L. 1937, p. 230, § 10.)

Cross references. - Safety and weight support requirements for scaffolding and staging design, § 25-15-110 .

Liability of employers for injuries to employees generally, § 34-7-20 et seq.

Law reviews. - For annual survey on insurance law, see 64 Mercer L. Rev. 151 (2012).

JUDICIAL DECISIONS

Employer, not union, obligated to provide safe workplace. - Common law places the duty to provide a safe workplace on an employer not on a union. By O.C.G.A. § 34-2-10 , it is also true in Georgia. Skipper v. Hoff & Assocs., 684 F. Supp. 707 (S.D. Ga. 1987).

Master is to make effort to furnish safe place. - Fixed standard of the law that the master shall furnish a safe place for the servant to work does not impose an absolute duty to furnish a safe place, but the duty is placed upon the master to make an effort to do so. Smith v. Ammons, 228 Ga. 855 , 188 S.E.2d 866 (1972).

Master is held to only ordinary care in furnishing servant reasonably safe place to work. Smith v. Ammons, 228 Ga. 855 , 188 S.E.2d 866 (1972).

Jury charge on ordinary care. - It is a misdirection to charge the jury in language the effect of which is to subject the master to more extensive obligations than those indicated by the phrase "ordinary care" or its equivalents. Smith v. Ammons, 228 Ga. 855 , 188 S.E.2d 866 (1972).

Claim brought in employment discrimination case. - The district court adopted the magistrate judge's recommendation in a case brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq., in which (1) an employee alleged tangible employment action sexual harassment, a sexually hostile work environment, retaliation, and state law claims; (2) a magistrate judge found that an employee's claim for negligent failure to provide a safe working environment arose out of O.C.G.A. § 34-2-10(a) ; (3) the magistrate judge noted that the employee had provided no citation to any case law that permitted such a claim to be raised on the facts in the present case; and (4) the employee had not filed any objection to the magistrate judge's recommendation that the claim be dismissed. Orquiola v. Nat'l City Mortg. Co., 510 F. Supp. 2d 1134 (N.D. Ga. Jan. 16, 2007).

Employer not responsible for an employee's suicide. - Trial court properly granted summary judgment to an employer because the evidence failed to show that the employer was responsible for creating a situation which led to an employee's suicide; therefore, the employer had no duty to make a reasonable effort to render aide for the employee's emotional well-being and avoid any further harm. When a regional manager for the employer went to the office where the employee worked to investigate fictitious loans which were discovered in an audit, the employee, who was alleged to have participated in the loans, talked to the manager about the situation, asked if the employee could step outside to smoke a cigarette and make a phone call, left the premises, drove home, and committed suicide. McCrary v. Middle Ga. Mgmt. Servs., 315 Ga. App. 247 , 726 S.E.2d 740 (2012).

Cited in Horton v. Ammons, 125 Ga. App. 69 , 186 S.E.2d 469 (1971); Sams v. United Food & Com. Workers Int'l Union, 866 F.2d 1380 (11th Cir. 1989); Englehart v. Oki Am., Inc., 209 Ga. App. 151 , 433 S.E.2d 331 (1993).

RESEARCH REFERENCES

Am. Jur. 2d. - 27 Am. Jur. 2d, Employment Relationship, §§ 179 et seq., 239. 61 Am. Jur. 2d, Plant and Job Safety - OSHA and State Laws, § 1 et seq.

ALR. - Duty of master providing machine of standard make and in common use to equip same with safety device or guard, 36 A.L.R. 1477 .

Liability of contractee and contractor inter se with respect to injuries sustained while the stipulated work is in course of performance, 44 A.L.R. 891 .

Duty of employer to furnish tools or appliances to be used in effecting rescues, 50 A.L.R. 372 .

Duty of owner of premises to furnish independent contractor or his employee a safe place of work, where contract is for repairs, 31 A.L.R.2d 1375.

Liability of master for injury or death of servant on master's premises where injury occurred outside working hours, 76 A.L.R.2d 1215.

Shipowner's liability for injury caused to seaman or longshoreman by cargo or its stowage, 90 A.L.R.2d 710.

Employer's liability to employee for failure to provide work environment free from tobacco smoke, 63 A.L.R.4th 1021.

Tort liability for window washer's injury or death, 69 A.L.R.4th 207.

Liability for retaliation against at-will employee for public complaints or efforts relating to health or safety, 75 A.L.R.4th 13.

When has employer "repeatedly" violated Occupational Safety and Health Act within meaning of § 17(a) of Act (29 U.S.C.A. § 666(a)), 151 A.L.R. Fed. 1

What constitutes "willful" violation for purposes of § 17(a) or (e) of Occupational Safety and Health Act of 1970 (29 U.S.C.A. § 666(a) or § 666(e)), 161 A.L.R. Fed. 561.

34-2-11. Employer's duty to keep records.

Every employer shall keep a true and accurate record of the name, address, and occupation of each person employed by him, and of the daily and weekly hours worked by each such person and of the wages paid during each pay period to each such person. Such records shall be kept on file for at least one year after the date of the record. No employer shall make or cause to be made any false entries in any such record.

(Ga. L. 1937, p. 230, § 16.)

Cross references. - Employer's records of hours worked by and wages paid to employees, § 34-4-4 .

Duty of employers to maintain records to indicate compliance with minimum wage law, § 34-4-5 .

Record-keeping duties of employers under workers' compensation law, § 34-9-12 .

RESEARCH REFERENCES

Am. Jur. 2d. - 48B Am. Jur. 2d, Labor and Labor Relations, § 3168 et seq.

C.J.S. - 51B C.J.S., Labor Relations, §§ 1221 et seq., 1376, 1377.

ALR. - Defamation: loss of employer's qualified privilege to publish employee's work record or qualifications, 24 A.L.R.4th 144.

Validity and construction of statute giving employee the right to review and comment upon personnel record maintained by the employer, 64 A.L.R.4th 619.

34-2-12. Duty of Attorney General and district attorneys to prosecute violations of those laws enforced by Commissioner.

It shall be the duty of the Attorney General of the state and the district attorneys of their respective judicial circuits, upon request of the Commissioner of Labor or any of his authorized representatives, to prosecute any violation of the law which is made the duty of the Commissioner to enforce.

(Ga. L. 1937, p. 230, § 17.)

RESEARCH REFERENCES

Am. Jur. 2d. - 2 Am. Jur. 2d, Administrative Law, § 6 et seq.

C.J.S. - 73A C.J.S., Public Administrative Law and Procedure, § 575 et seq.

ALR. - Enforcement of labor board's order against employer's successors, assigns, or the like, 46 A.L.R.2d 592.

34-2-13. Penalties for violations of chapter and for false statements under oath.

  1. Any employer or owner who violates or fails or refuses to comply with any provision of this chapter within the time prescribed or any judgment or decree made by any court in connection with the provisions of this chapter for which no penalty has been otherwise provided shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished for each such offense by a fine of not less than $20.00 nor more than $200.00, by imprisonment not to exceed six months, or by both such fine and imprisonment.
  2. Any person who shall knowingly testify falsely, under oath, or shall knowingly make, give, or produce any false statements or false evidence, under oath, to the Commissioner of Labor or his authorized representatives commits the offense of perjury.

    (Ga. L. 1937, p. 230, § 18; Ga. L. 1975, p. 198, § 3.)

Cross references. - Offense of perjury generally, § 16-10-70 .

JUDICIAL DECISIONS

Ga. L. 1937, p. 230, § 18 (see now O.C.G.A. § 34-2-13 ) is a penal section and must be strictly construed. Plummer v. State, 90 Ga. App. 773 , 84 S.E.2d 202 (1954).

Employer's false statements do not support at-will employee's wrongful discharge claim. - Although a discharged at-will city employee's claims that the employer falsified the separation notice and conspired to deceive the Department of Labor for purposes of denying the employee unemployment compensation benefits could possibly have implicated the criminal provisions of O.C.G.A. §§ 34-2-13(b) and 34-8-256(b) , there was nothing in those statutes that authorized a wrongful discharge claim on that basis. Reid v. City of Albany, 276 Ga. App. 171 , 622 S.E.2d 875 (2005).

34-2-14. Authorization to establish and administer pretrial intervention programs.

The Georgia Department of Labor shall have the authorization to enter into agreements with district attorneys and solicitors-general of the several judicial circuits of this state for the purpose of establishing pretrial intervention programs in such judicial circuits. The Georgia Department of Labor shall be authorized to administer all such programs pursuant to said agreement.

(Ga. L. 1982, p. 1093, § 2; Code 1981, § 34-2-15, enacted by Ga. L. 1982, p. 1093, § 4; Code 1981, § 34-2-14 , as redesignated by Ga. L. 1985, p. 708, § 3; Ga. L. 1996, p. 748, § 18.)

Editor's notes. - Ga. L. 1985, p. 708, § 3, repealed former Code Section 34-2-14 (Ga. L. 1982, p. 1093, §§ 1, 3), relating to creation of the Correctional Services Division within the Georgia Department of Labor, and redesignated former Code Section 34-2-15 as this Code section.

OPINIONS OF THE ATTORNEY GENERAL

Dismissal of charges against person completing program. - If an indictment or accusation has been filed against a person who successfully completes a pretrial diversion program, consent of the court is required before the criminal charge can be dismissed. If the person completes the pretrial diversion program prior to the filing of an indictment or accusation, consent of the court is not required. 1988 Op. Att'y Gen. No. U88-25.

CHAPTER 3 HOURS OF LABOR IN FACTORIES

Sec.

RESEARCH REFERENCES

ALR. - What is a "manufacturing establishment" within meaning of regulatory statutes, 96 A.L.R. 1351 .

Judicial questions regarding Federal Fair Labor Standards Act (Wage and Hours Act) and state acts in conformity therewith, 130 A.L.R. 272 ; 132 A.L.R. 1443 .

Provision of Fair Labor Standards Act for increased compensation for overtime, 140 A.L.R. 1263 ; 152 A.L.R. 1030 ; 169 A.L.R. 1307 .

Power under Fair Labor Standards Act to prohibit homework, 155 A.L.R. 782 .

What is a "factory" within statutes relating to safety and health of employees, 163 A.L.R. 447 .

Construction of provision of Fair Labor Standards Act (29 U.S.C. § 215(a)(3)) forbidding reprisals against any employee who has filed complaint, or the like, under the Act, 93 A.L.R.2d 610.

What constitutes "amusement or recreational establishment" within meaning of seasonal amusement exemption from Fair Labor Standards Act (29 USC § 213(a)(3)), 88 A.L.R. Fed. 880.

Employee's protection under § 15(a)(3) of Fair Labor Standards Act (29 USC § 215(a)(3)), 101 A.L.R. Fed. 220.

34-3-1. Hours of labor in cotton or woolen manufacturing establishments.

The hours of labor required of all persons employed in all cotton or woolen manufacturing establishments in this state, except engineers, firefighters, watchmen, mechanics, teamsters, yard employees, clerical force, and all help that may be needed to clean up and make necessary repairs or changes in or of machinery, shall not exceed ten hours per day; or the same may be regulated by employers, so that the number of hours shall not in the aggregate exceed 60 hours per week, provided that nothing contained in this Code section shall be construed to prevent any of the aforesaid employees from working such time as may be necessary to make up lost time, not to exceed ten days, caused by accidents or other unavoidable circumstances.

(Ga. L. 1889, p. 163, § 1; Civil Code 1895, § 2615; Civil Code 1910, § 3137; Ga. L. 1911, p. 65, § 1; Code 1933, § 54-201; Ga. L. 1983, p. 3, § 25; Ga. L. 2002, p. 660, § 4; Ga. L. 2002, p. 1259, § 11.)

OPINIONS OF THE ATTORNEY GENERAL

Legislature intended to remedy unreasonable hours. - The evil sought to be remedied by the legislature was the unreasonable hours of service of employees working in cotton and woolen manufacturing establishments. 1945-47 Op. Att'y Gen. p. 354.

This section could not be of force in industry engaged in interstate commerce, since subsequent federal statutes have been enacted which in law supersede state statutes. 1945-47 Op. Att'y Gen. p. 354.

Application of section. - Whether workers and fixers in textile factories are within the maximum hours provisions of the state law depends upon whether their work is a necessary part of the day's operation, and not merely incidental thereto. 1945-47 Op. Att'y Gen. p. 354.

RESEARCH REFERENCES

Am. Jur. 2d. - 48B Am. Jur. 2d, Labor and Labor Relations, §§ 2925, 2926.

ALR. - What employers are within "hours of labor" statutes, 16 A.L.R. 537 .

Constitutionality of statutes limiting hours of labor in private industry, 90 A.L.R. 814 .

Waiver of statutory right to minimum wage or benefit of regulation as to hours of labor, 102 A.L.R. 842 ; 129 A.L.R. 1145 .

34-3-2. Effect of contracts requiring more than 40 hours of work per week.

All contracts which require employees of cotton or woolen manufacturing establishments to work more than 40 hours per week shall be null and void.

(Ga. L. 1889, p. 163, § 2; Civil Code 1895, § 2616; Civil Code 1910, § 3138; Code 1933, § 54-202.)

RESEARCH REFERENCES

Am. Jur. 2d. - 17A Am. Jur. 2d, Contracts, §§ 162, 229 et seq. 48B Am. Jur. 2d, Labor and Labor Relations, § 3034 et seq.

C.J.S. - 17A C.J.S., Contracts, § 261 et seq.

34-3-3. Actions for violations of chapter; disposition of amount recovered.

Any person with whom a contract violative of this chapter is made or any person having knowledge thereof may institute an action against such cotton or woolen manufacturing establishment; and the amount recovered as a fine shall inure to the benefit of the board of education of the county in which the violation shall have occurred.

(Ga. L. 1889, p. 163, § 4; Civil Code 1895, § 2618; Civil Code 1910, § 3140; Code 1933, § 54-204.)

RESEARCH REFERENCES

Am. Jur. 2d. - 1 Am. Jur. 2d, Actions, § 114 et seq. 36 Am. Jur. 2d, Forfeitures and Penalties, § 75.

C.J.S. - 1A C.J.S., Actions, § 31 et seq. 36A C.J.S., Fines, §§ 2, 19. 51B C.J.S., Labor Relations, § 1221 et seq. 70 C.J.S., Penalties, § 23.

34-3-4. Penalties for violations of chapter.

Any cotton or woolen manufacturing establishment that makes any contract in violation of Code Section 34-3-1 shall be subject to a fine of not less than $20.00 and not more than $500.00 for each and every such violation.

(Ga. L. 1889, p. 163, § 3; Civil Code 1895, § 2617; Civil Code 1910, § 3139; Code 1933, § 54-203.)

CHAPTER 4 MINIMUM WAGE LAW

Sec.

OPINIONS OF THE ATTORNEY GENERAL

Exemptions. - The Georgia minimum wage law does not exempt charitable foundations which are exempt from federal tax, nor does it exempt amusement and recreational establishments which are exempted under the federal Fair Labor Standards Act, 29 U.S.C. § 201 et seq. 1970 Op. Att'y Gen. No. U70-126.

RESEARCH REFERENCES

ALR. - Servant's right to compensation for extra work or overtime, 25 A.L.R. 218 ; 107 A.L.R. 705 .

Construction and application of statute or ordinance relating to wages of persons employed on public work, 93 A.L.R. 1249 .

Judicial questions regarding Federal Fair Labor Standards Act (Wage and Hours Act) and state acts in conformity therewith, 130 A.L.R. 272 ; 132 A.L.R. 1443 .

Provision of Fair Labor Standards Act for increased compensation for overtime, 140 A.L.R. 1263 ; 152 A.L.R. 1030 ; 169 A.L.R. 1307 .

Validity, construction, and effect of statutory or contractual provision in, government construction contract referring to Secretary of Labor questions respecting wage rates or classification of employees of contractor, 163 A.L.R. 1300 .

Nonprofit charitable institutions as within operation of labor statutes, 26 A.L.R.2d 1020.

Validity of minimum wage statutes relating to private employment, 39 A.L.R.2d 740.

Validity of statute, ordinance, or charter provision requiring that workmen on public work be paid the prevailing or current rate of wages, 18 A.L.R.3d 944.

What entitles or projects are "public" for purposes of state statutes requiring payment of prevailing wages on public projects, 5 A.L.R.5th 470.

Who is "employee," "workman," or the like, of contractor subject to state statute requiring payment of prevailing wages on public works projects, 5 A.L.R.5th 513.

International Union of Operating Engineers, Local 18 v. Dan Wannemacher Masonry Co., 5 A.L.R.5th 1106.

What are "prevailing wages," or the like, for purposes of state statute requiring payment of prevailing wages on public works projects, 7 A.L.R.5th 400.

Employers subject to state statutes requiring payment of prevailing wages on public works projects, 7 A.L.R.5th 444.

What projects involve work subject to state statutes requiring payment of prevailing wages on public works projects, 10 A.L.R.5th 337.

Employees' private right of action to enforce state statute requiring payment of prevailing wages on public works projects, 10 A.L.R.5th 360.

What constitutes "amusement or recreational establishment" within meaning of seasonal amusement exemption from Fair Labor Standards Act (29 USC § 213(a)(3)), 88 A.L.R. Fed. 880.

Employee's protection under § 15(a)(3) of Fair Labor Standards Act (29 USC § 215(a)(3)), 101 A.L.R. Fed. 220.

What constitutes "preschool" for purposes of § 3(s)(l)(b) of Fair Labor Standards Act (29 USCS § 203(s)(l)(b)), providing that preschools are subject to wage and hour provisions of act, 131 A.L.R. Fed. 207.

34-4-1. Short title.

This chapter shall be known and may be cited as the "Georgia Minimum Wage Law."

(Ga. L. 1970, p. 153, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 48B Am. Jur. 2d, Labor and Labor Relations, §§ 2980 et seq., 2996.

ALR. - Increase, or promise of increase, or withholding of increase, of wages as unfair labor practice under National Labor Relations Act, 137 A.L.R. Fed 333.

Who is "employee employed in agriculture" and therefore exempt from overtime provisions of Fair Labor Standards Act by § 13 (b)(12) of Act (29 U.S.C.A. § 213(b)(12)), 162 A.L.R. Fed. 575.

34-4-2. Administration and enforcement of chapter by Commissioner of Labor.

The Commissioner of Labor shall administer and enforce this chapter and may make rules and regulations for such administration.

(Ga. L. 1970, p. 153, § 3.)

OPINIONS OF THE ATTORNEY GENERAL

Commissioner of Labor has responsibility, authority, and is empowered to enforce provisions of Ga. L. 1970, p. 153 (see now O.C.G.A. Ch. 4, T. 34). 1970 Op. Att'y Gen. No. 70-184.

RESEARCH REFERENCES

C.J.S. - 51B C.J.S., Labor Relations, §§ 1229, 1380 et seq.

34-4-3. Amount of minimum wage to be paid by employers; employers and employees covered by chapter.

  1. Except as otherwise provided in this Code section, every employer, whether a person, firm, or corporation, shall pay to all covered employees a minimum wage which shall be not less than $5.15 per hour for each hour worked in the employment of such employer.
  2. This chapter shall not apply with respect to:
    1. Any employer that has sales of $40,000.00 per year or less;
    2. Any employer having five employees or less;
    3. Any employer of domestic employees;
    4. Any employer who is a farm owner, sharecropper, or land renter;
    5. Any employee whose compensation consists wholly or partially of gratuities;
    6. Any employee who is a high school or college student;
    7. Any individual who is employed as a newspaper carrier; or
    8. Any individual who is employed by a nonprofit child-caring institution or long-term care facility serving children or mentally disabled adults who are enrolled in such institution and reside in residential facilities of the institution, if such employee resides in such facilities, receives without cost board and lodging from such institution, and is compensated on a cash basis at an annual rate of not less than $10,000.00.
  3. This chapter shall not apply to any employer who is subject to the minimum wage provisions of any act of Congress as to employees covered thereby if such act of Congress provides for a minimum wage which is greater than the minimum wage which is provided for in this Code section.

    (Ga. L. 1970, p. 153, §§ 2, 6-8; Ga. L. 1984, p. 1324, § 1; Ga. L. 2001, p. 201, § 1.)

Law reviews. - For note on the 2001 amendment to this Code section, see 18 Ga. St. U.L. Rev. 183 (2001).

JUDICIAL DECISIONS

Ordinance strengthening minimum wage law. - There is no unconstitutional conflict between the state minimum wage law as codified in this section and a city ordinance, which requires payment of the prescribed Davis-Bacon Act wage scale in construction projects in excess of $10,000.00, when the ordinance does not detract from or hinder the operation of that section, but rather it augments and strengthens it. City of Atlanta v. Associated Bldrs. & Contractors, 240 Ga. 655 , 242 S.E.2d 139 (1978).

Employee not "covered". - Employee that fell under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., exemption was not effectively "covered" by the Act for purposes of O.C.G.A. § 34-4-3(c) analysis, thereby prohibiting that employee from receiving minimum wage compensation under the Georgia Minimum Wage Law (GMWL), O.C.G.A. § 34-4-1 et seq. Anderson v. Southern Home Care Services, Inc., 298 Ga. 175 , 780 S.E.2d 339 (2015).

Individual whose employment consisted of providing in-home personal support services was not prohibited from receiving minimum wage compensation under the Georgia Minimum Wage Law, O.C.G.A. § 34-4-1 , et seq., pursuant to the "domestic employees" exception articulated in O.C.G.A. § 34-4-3(b)(3). Anderson v. Southern Home Care Services, Inc., 298 Ga. 175 , 780 S.E.2d 339 (2015).

Cited in City of Atlanta v. Associated Bldrs. & Contractors, 143 Ga. App. 115 , 237 S.E.2d 601 (1977).

RESEARCH REFERENCES

Am. Jur. 2d. - 48B Am. Jur. 2d, Labor and Labor Relations, §§ 2741, 2960.

C.J.S. - 51B C.J.S., Labor Relations, §§ 1218 et seq., 1234 et seq., 1302 et seq.

ALR. - Waiver of statutory right to minimum wage or benefit of regulation as to hours of labor, 102 A.L.R. 842 ; 129 A.L.R. 1145 .

Employee's or agent's acceptance of bonus, gratuity, or other personal benefit from one with whom he deals on employer's or principal's account as affecting his right to recover wages, salary, or commissions, 102 A.L.R. 1115 .

Waiver or loss of statutory right to minimum wage or benefit of regulation as to hours of labor, 128 A.L.R. 1145 .

Validity of statute, or administrative regulation thereunder, which in effect guarantees to part-time employees minimum wages regardless of the time of their actual employment, 143 A.L.R. 1086 .

Validity of statute or regulation in respect of tips, 147 A.L.R. 1039 .

Nonprofit charitable institutions as within operation of labor statutes, 26 A.L.R.2d 1020.

Validity of minimum wage statutes relating to private employment, 39 A.L.R.2d 740.

Who is employed in "professional capacity" within exemptions from minimum wage and maximum hours provisions of Fair Labor Standards Act, 72 A.L.R.2d 1156, 77 A.L.R. Fed. 681.

Who is executive, administrator, supervisor, or the like, under exemption for such employees from state minimum wage and overtime pay statutes, 85 A.L.R.4th 519.

Who is employed in "executive capacity" within exemption, under 29 USCS § 213(a)(l), from minimum wage and maximum hours provisions of Fair Labor Standards Act (29 USCS § 201 et seq.), 131 A.L.R. Fed. 1

Who is "employee employed in agriculture" and therefore exempt from overtime provisions of Fair Labor Standards Act by § 13 (b)(12) of Act (29 U.S.C.A. § 213(b)(12)), 162 A.L.R. Fed. 575.

Tips as wages for purposes of state wage laws, 61 A.L.R. 6 th 61.

34-4-3.1. Wages and employment benefits by local government entities.

  1. As used in this Code section, the term:
    1. "Employee" means any individual employed by an employer.
    2. "Employer" means any person or entity that employs one or more employees.
    3. "Employment benefits" means anything of value that an employee may receive from an employer in addition to wages and salary. This term includes, but is not limited to, any health benefits; disability benefits; death benefits; group accidental death and dismemberment benefits; paid days off for holidays, sick leave, vacation, and personal necessity; additional pay based on schedule changes; retirement benefits; and profit-sharing benefits.
    4. "Local government entity" means a county, municipal corporation, consolidated government, authority, board of education, or other local public board, body, or commission.
    5. "Person" means an individual, partnership, association, corporation, business trust, legal representative, or any other organized group of persons.
    6. "Wage or employment benefit mandate" means any requirement adopted by a local government entity which requires an employer to pay any or all of its employees a wage rate or provide employment benefits not otherwise required under this Code or federal law.
    1. Any and all wage or employment benefit mandates adopted by any local government entity are hereby preempted.
    2. No local government entity may adopt, maintain, or enforce by charter, ordinance, purchase agreement, contract, regulation, rule, or resolution, either directly or indirectly, a wage or employment benefit mandate.
    3. Any local government entity may offer its own employees employment benefits.
  2. No local government entity may through its purchasing or contracting procedures seek to control or affect the wages or employment benefits provided by its vendors, contractors, service providers, or other parties doing business with the local government entity. A local government entity shall not through the use of evaluation factors, qualification of bidders, or otherwise award preferences on the basis of wages or employment benefits provided by its vendors, contractors, service providers, or other parties doing business with the local government entity. (Code 1981, § 34-4-3.1 , enacted by Ga. L. 2004, p. 377, § 2; Ga. L. 2005, p. 450, § 1/HB 59; Ga. L. 2017, p. 570, § 1/HB 243.)

The 2017 amendment, effective July 1, 2017, inserted "additional pay based on schedule changes;" near the end of the second sentence of paragraph (a)(3).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2004, "benefits;" was substituted for "benefits," five times and "necessity;" was substituted for "necessity," in paragraph (a)(3).

Editor's notes. - Ga. L. 2004, p. 377, § 1, not codified by the General Assembly, provides that: "The General Assembly finds and declares that:

"(1) Economic stability and growth are among the most important factors affecting the general welfare of the people of this state, and that economic stability and growth are therefore among the most important matters for which the General Assembly is responsible;

"(2) Mandated wage rates and employment benefits comprise a major cost component for private enterprises and are among the chief factors affecting the economic stability and growth of this state;

"(3) Local variations in mandated wage rates and employment benefits threaten many businesses with a loss of employees to areas which require higher mandated wage rates and employment benefits, threaten many other businesses with the loss of patrons to areas which allow lower mandated wage rates and employment benefits, and are therefore detrimental to the business environment of the state and to the citizens, businesses, and governments of the various political subdivisions as well as local labor markets;

"(4) In order for businesses to remain competitive and yet attract and retain the highest possible caliber of employees, private enterprises in this state must be allowed to function in a uniform environment with respect to mandated wage rates and employment benefits; and

"(5) Legislated wage and employment benefit disparity between local government entities of this state creates an anticompetitive marketplace that fosters job and business relocation."

Law reviews. - For annual survey of labor and employment law, see 56 Mercer L. Rev. 291 (2004). For annual survey of labor and employment law, see 57 Mercer L. Rev. 251 (2005). For article on 2005 amendment of this Code section, see 22 Ga. St. U.L. Rev. 177 (2005).

RESEARCH REFERENCES

Am. Jur. 2d. - 27 Am. Jur. 2d, Employment Relationship, § 68 et seq.

C.J.S. - 63 C.J.S., Municipal Corporations, § 863 et seq.

34-4-4. Authority of Commissioner to grant exemptions from operation of chapter.

  1. The Commissioner of Labor is authorized to grant exemptions to certain categories of organizations and businesses for the purpose of exempting them from the operation of this chapter. The exemptions so granted shall be based upon considerations of the value of allowing certain classes of persons to be employed at rates below the minimum rate because of overriding considerations of public policy to allow employment of certain  persons with disabilities and others who cannot otherwise compete effectively in the labor market.
  2. The Commissioner of Labor is authorized to conduct investigations and compile information as to the reasons for granting exemptions to certain organizations and businesses pursuant to subsection (a) of this Code section. The Commissioner is required to maintain a list of such exemptions, along with the records of the investigations conducted and the basis for the granting of such exemptions, which list and records shall be a public record.

    (Ga. L. 1970, p. 153, § 7; Ga. L. 1992, p. 6, § 34; Ga. L. 1995, p. 1302, § 16.)

34-4-5. Employer's records of hours worked by and wages paid to employees.

Every employer subject to this chapter or any regulation pursuant thereto shall maintain records showing the hours worked by each employee and the wages paid to him and shall furnish to the Commissioner upon demand a sworn statement of the hours worked and wages paid to each person in his or its employment covered by this chapter. The records covering such hours and payments shall be open to inspection by the Commissioner, his deputy, or any authorized agent of the department at any reasonable time. Each employer subject to this chapter shall post copies of any regulation or order issued pursuant to its provisions in a conspicuous place in an area frequented by his employees.

(Ga. L. 1970, p. 153, § 4.)

Cross references. - Duty of employers to keep records generally, § 34-2-11 .

OPINIONS OF THE ATTORNEY GENERAL

Commissioner of Labor has responsibility, authority, and is empowered to enforce provisions of minimum wage law (see now O.C.G.A. Ch. 4, T. 34). 1970 Op. Att'y Gen. No. 70-184.

RESEARCH REFERENCES

Am. Jur. 2d. - 48B Am. Jur. 2d, Labor and Labor Relations, § 3168 et seq.

C.J.S. - 51A C.J.S., Labor Relations, §§ 833, 834. 51B C.J.S., Labor Relations, § 1376 et seq.

34-4-6. Action to recover difference where employee paid less than minimum wage.

If any employer pays any employee a lesser amount than the minimum wage provided in this chapter, the employee, at any time within three years, may bring a civil action in superior court for the recovery of the difference between the amount paid and the minimum wage provided in this chapter, plus an additional amount equal to the original claim, which shall be allowed as liquidated damages, together with costs and such reasonable attorney's fees as may be allowed by the court. No contract or agreement between any employer and his employees nor any acceptance of a lesser wage by any employee shall bar the action.

(Ga. L. 1970, p. 153, § 5.)

Cross references. - Time limitation on actions to recover wages, overtime and damages generally, § 9-3-22 .

JUDICIAL DECISIONS

Arbitration. - Under the Supremacy Clause, § 2 of the Federal Arbitration Act, 9 U.S.C.A. § 2, pre-empts O.C.G.A. § 34-4-6 and the employee employed under contract requiring arbitration of any claims or disputes cannot bring action under the Georgia statute for unpaid wages. Haluska v. RAF Fin. Corp., 875 F. Supp. 825 (N.D. Ga. 1994).

Cited in Equitable Life Assurance Soc'y of United States v. Studenic, 77 F.3d 412 (11th Cir. 1996).

RESEARCH REFERENCES

Am. Jur. 2d. - 48B Am. Jur. 2d, Labor and Labor Relations, § 3220.

C.J.S. - 51B C.J.S., Labor Relations, § 1413 et seq.

ALR. - Validity of statutory provision for attorney's fees, 11 A.L.R. 884 ; 90 A.L.R. 530 .

Construction and application of statute providing for attorney's fees in action to recover for wages, 115 A.L.R. 250 .

Right of employee of public contractor to maintain action against latter based upon statutory obligation as to rate of wages or upon provisions in that regard in the contract between contractor and the public, 144 A.L.R. 1035 .

Right to recover under Fair Labor Standards Act minimum wages, compensation for overtime, or liquidated damages for nonpayment thereof as affected by waiver, release, compromise, offer of compromise, tender, or full payment, 167 A.L.R. 218 .

Effect of fraud to toll the period for bringing action prescribed in statute creating the right of action, 15 A.L.R.2d 500; 48 A.L.R.4th 1094.

Validity, and applicability to causes of action not already barred, of a statute enlarging limitation period, 79 A.L.R.2d 1080.

What constitutes "trial," "final trial," or "final hearing" under statute authorizing allowance of attorneys' fees as costs on such proceeding, 100 A.L.R.2d 397.

Settlement negotiations as estopping reliance on statute of limitations, 39 A.L.R.3d 127.

Validity of statute allowing attorney's fee to successful claimant but not to defendant, or vice-versa, 73 A.L.R.3d 515.

Fraud as extending statutory limitations period for contesting will or its probate, 48 A.L.R.4th 1094.

CHAPTER 5 SEX DISCRIMINATION IN EMPLOYMENT

Sec.

Cross references. - Equal protection, U.S. Const., amend. 14 and Ga. Const. 1983, Art. I, Sec. I, Para. II.

Discrimination in public employment on basis of sex, age, race, § 45-19-20 et seq.

Law reviews. - For annual eleventh circuit survey of employment discrimination, see 42 Mercer L. Rev. 1381 (1991). For survey of 1995 Eleventh Circuit cases on employment discrimination, see 47 Mercer L. Rev. 797 (1996). For article, "Compliance Requires Inspection: The Failure of Gender Equal Pay Efforts in the United States," see 68 Mercer L. Rev. 445 (2017). For note, "Workin' 9:00-5:00 for Nine Months: Assessing Pregnancy Discrimination Laws in Georgia," see 33 Ga. St. U.L. Rev. 771 (2017). For note, "Employer Beware: Changing the Landscape of Employment Discrimination Claims at the Summary Judgment Stage," see 68 Mercer L. Rev. 1145 (2017). For comment, "Blurred Lines: Sexual Orientation and Gender Nonconformity in Title VII," see 64 Emory L. J. 911 (2015).

RESEARCH REFERENCES

Sex Discrimination in Employment - Promotion Practices, 12 POF2d 645.

Sex Discrimination - Sexual Harassment Creating a Hostile Work Environment, 50 POF2d 127.

Damages for Sexual Assault, 15 POF3d 259.

Employment Handicap Discrimination Based on Gender Dysphoria (Transsexualism), 25 POF3d 415.

Sex Discrimination in Employment Promotion Decisions, 46 POF3d 1.

Employer's Liability for Same-Sex Harassment, 61 POF3d 1.

Sexual Harassment in Employment, 33 Am. Jur. Trials 257.

Sex Discrimination Based Upon Sexual Stereotyping, 53 Am. Jur. Trials 299.

Workplace Sexual Harassment: Quid Pro Quo, 62 Am. Jur. Trials 235.

Taking the Deposition of the Sexual Harassment Plaintiff, 65 Am. Jur. Trials 65.

Sexual Harassment Damages and Remedies, 73 Am. Jur. Trials 1.

C.J.S. - 30 C.J.S. Employers' Liability for Injuries to Employees, § 237.

ALR. - Validity, construction, and application of statute designed to prevent discrimination between male and female employees as regards wages or other conditions of work, 130 A.L.R. 436 ; 7 A.L.R. Fed. 707.

Validity, construction, and effect of statutory or contractual provision in government construction contract referring to Secretary of Labor questions respecting wage rates or classification of employees of contractor, 163 A.L.R. 1300 .

On-the-job sexual harassment as violation of state civil rights law, 18 A.L.R.4th 328.

Discipline or discharge for sexual conduct as violative of state fair employment laws, 47 A.L.R.4th 863.

Liability of employer, supervisor, or manager for intentionally or recklessly causing employee emotional distress, 52 A.L.R.4th 853.

Construction and Application of Provisions of Equal Pay Act of 1963 (29 USCS § 206(d)) Prohibiting Wage Discrimination on Basis of Sex, 7 A.L.R. Fed. 707.

Employee's protection under § 15(a)(3) of Fair Labor Standards Act (29 USC § 215(a)(3)), 101 A.L.R. Fed. 220.

When is supervisor's hostile environment sexual harassment under Title VII of Civil Rights Act of 1964 (42 U.S.C.A. § 2000e et seq.) imputable to employer, 157 A.L.R. Fed. 1

34-5-1. Declaration of public policy regarding discriminatory wage practices based on sex.

The General Assembly declares that the practice of discriminating on the basis of sex by paying wages to employees of one sex at a lesser rate than the rate paid to employees of the opposite sex for comparable work in jobs which require the same, or essentially the same, knowledge, skill, effort, and responsibility unjustly discriminates against the person receiving the lesser rate; leads to low worker morale, high turnover, and frequent labor unrest; discourages workers paid at the lesser wage rates from training for higher level jobs; curtails employment opportunities; decreases mobility of workers and increases labor costs; impairs purchasing power and threatens the maintenance of an adequate standard of living by such workers and their families; prevents optimum utilization of the labor resources available to the state; threatens the well-being of citizens of this state; and adversely affects the general welfare. It is declared to be the policy of the State of Georgia to eliminate, as rapidly as possible, by exercise of the police power of this state, discriminatory wage practices based on sex.

(Ga. L. 1966, p. 582, § 1.)

JUDICIAL DECISIONS

Applicability. - Because a former employee alleged sexual harassment under O.C.G.A. § 34-5-1 by a manager, who made sexual overtures to the employee, the defendants were granted summary judgment because § 34-5-1 offered relief only for sex discrimination regarding wage practices. Johnson v. Shoney's, Inc., F. Supp. 2d (M.D. Ga. Aug. 18, 2005).

RESEARCH REFERENCES

Am. Jur. 2d. - 45A Am. Jur. 2d, Job Discrimination, §§ 134 et seq., 661, 662.

C.J.S. - 14 C.J.S., Civil Rights, §§ 19 et seq., 72, 79, 103, 104, 121.

ALR. - Constitutionally of "civil rights" legislation by state, 49 A.L.R. 505 .

Recovery of damages for emotional distress resulting from discrimination because of sex or marital status, 61 A.L.R.3d 944.

Application of state law to sex discrimination in employment, 87 A.L.R.3d 93.

What constitutes employment discrimination on the basis of "marital status" for purposes of state civil rights laws, 44 A.L.R.4th 1044.

Validity, construction, and application of state enactment, order, or regulation expressly prohibiting sexual orientation discrimination, 82 A.L.R.5th 1.

Individual liability of supervisors, managers, officers or co-employees for discriminatory actions under state Civil Rights Act, 83 A.L.R.5th 1.

When is supervisor's or co-employee's hostile environment sexual harassment imputable to employer under state law, 94 A.L.R.5th 1.

Discrimination against pregnant employee as violation of state fair employment laws, 99 A.L.R.5th 1.

Application of state statutes regulating claims of hostile work environment or sexual harassment based on sexual, romantic, or paramour favoritism, 92 A.L.R.6th 121.

Discrimination on basis of person's transsexual status as violation of state or local law, 96 A.L.R.6th 189.

Conduct of plaintiff as defense in action for employment discrimination based on sexual harassment under federal civil rights statutes, 145 A.L.R. Fed. 459.

What constitutes reverse or majority gender discrimination against males violative of federal constitution or statutes - public employment cases, 153 A.L.R. Fed. 609.

Award of compensatory damages under 42 U.S.C.A. § 1981a for violation of Title VII of Civil Rights Act of 1964, 154 A.L.R. Fed. 347.

Propriety of treating separate entities as one for determining number of employees required by Title VII of Civil Rights Act of 1964 (42 U.S.C.A. § 2000e(b)) for action against "employer", 160 A.L.R. Fed. 441.

Liability of employer, under Title VII of Civil Rights Act of 1964 (42 U.S.C.A. § 2000e et seq.) for sexual harassment of employee by customer, client, or patron, 163 A.L.R. Fed. 445.

Discrimination on basis of person's transgender or transsexual status as violation of federal law, 84 A.L.R. Fed. 2d 1.

Identity of commenter and relationship of remark to employment decision as determinants of relevance of stray remark or comment in Title VII action for sex discrimination, 4 A.L.R. Fed. 3d 7.

Stray remark or comment involving male plaintiffs in Title VII action for sex discrimination, 4 A.L.R. Fed. 3d 8.

Stray remark or comment toward female plaintiffs regarding pregnancy, child-rearing, and related references in Title VII action for sex discrimination, 6 A.L.R. Fed. 3d 3.

Stray remark or comment involving general references toward female plaintiffs in Title VII action for sex discrimination, 7 A.L.R. Fed. 3d 2.

Stray remark or comment involving overt sexual references toward female plaintiffs in Title VII action for sex discrimination, 9 A.L.R. Fed. 3d 5.

34-5-2. Definitions.

As used in this chapter, the term:

  1. "Commissioner" means the Commissioner of Labor of the State of Georgia.
  2. "Employ" means to permit to work.
  3. "Employee" means any individual employed by an employer, other than domestic or agricultural employees, and includes individuals employed by the state or any of its political subdivisions, including public bodies.
  4. "Employer" means any person employing ten or more employees and acting directly or indirectly in the interest of an employer in relation to an employee. The term "employer," as used in this chapter, means an employer who is engaged in intrastate commerce.
  5. "Occupation" means any industry, trade, business or branch thereof, or any employment or class of employment.
  6. "Person" means one or more individuals, partnerships, corporations, legal representatives, trustees, trustees in bankruptcy, or voluntary associations.
  7. "Wage rate" means all compensation for employment, including payment in kind and amounts paid by employers for employee benefits.

    (Ga. L. 1966, p. 582, § 2; Ga. L. 1968, p. 1392, §§ 1, 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 48 Am. Jur. 2d, Labor and Labor Relations, § 881.

C.J.S. - 51 C.J.S., Labor Relations, §§ 6 et seq., 65. 51B C.J.S., Labor Relations, §§ 1364, 1365.

ALR. - What constitutes reverse or majority gender discrimination against males violative of federal constitution or statutes - public employment cases, 153 A.L.R. Fed. 609.

34-5-3. Prohibition of discriminatory wage differentials; penalty for discharge of or discrimination against complainant.

  1. No employer having employees subject to any provisions of this chapter shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment 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. An employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with this subsection, reduce the wage rate of any employee.
  2. It shall also be unlawful for any person to cause or attempt to cause an employer to discriminate against any employee in violation of this chapter.
  3. It shall be unlawful for any person to discharge or in any other manner discriminate against any employee covered by this chapter because such employee has made a complaint to his employer or any other person or has instituted or caused to be instituted any proceeding under or related to this chapter or has testified or is about to testify in any such proceedings. Any person who violates any provision of this Code section shall, upon conviction thereof, be punished by a fine not to exceed $100.00.

    (Ga. L. 1966, p. 582, §§ 3, 8.)

RESEARCH REFERENCES

Am. Jur. 2d. - 45B Am. Jur. 2d, Job Discrimination, § 931 et seq. 48 Am. Jur. 2d, Labor and Labor Relations, § 881.

C.J.S. - 14 C.J.S., Civil Rights, §§ 19 et seq., 72, 79, 103 et seq., 281, 299. 51B C.J.S., Labor Relations, § 1532.

ALR. - Collective bargaining agreement discriminating against certain employees as infringement of their rights, 172 A.L.R. 1351 .

Recovery of damages for emotional distress resulting from discrimination because of sex or marital status, 61 A.L.R.3d 944.

Recovery of damages as remedy for wrongful discrimination under state or local civil rights provisions, 85 A.L.R.3d 351.

Application of state law to sex discrimination in employment, 87 A.L.R.3d 93.

What constitutes employment discrimination on the basis of "marital status" for purposes of state civil rights laws, 44 A.L.R.4th 1044.

Availability and scope of punitive damages under state employment discrimination law, 81 A.L.R.5th 367.

Punitive damages in actions for violations of Title VII of the Civil Rights Act of 1964 (42 U.S.C.A. § 1981a; 42 U.S.C.A. § 2000e et seq.), 150 A.L.R. Fed. 601.

Award of compensatory damages under 42 U.S.C.A. § 1981a for violation of Title VII of Civil Rights Act of 1964, 154 A.L.R. Fed. 347.

What constitutes reverse or majority gender discrimination against males violative of federal constitution or statutes - private employment cases, 162 A.L.R. Fed. 273.

Stray remark or comment involving overt sexual references toward female plaintiffs in Title VII action for sex discrimination, 9 A.L.R. Fed. 3d 5.

Stray remark or comment involving general references toward female plaintiffs in Title VII action for sex discrimination, 7 A.L.R. Fed. 3d 2.

Stray remark or comment toward female plaintiffs regarding pregnancy, child-rearing, and related references in Title VII action for sex discrimination, 6 A.L.R. Fed. 3d 3.

Identity of commenter and relationship of remark to employment decision as determinants of relevance of stray remark or comment in Title VII action for sex discrimination, 4 A.L.R. Fed. 3d 7.

Stray remark or comment involving male plaintiffs in Title VII action for sex discrimination, 4 A.L.R. Fed. 3d 8.

34-5-4. Powers and authority of Commissioner under chapter.

  1. The Commissioner shall have the power and it shall be his duty to carry out this chapter; and for this purpose the Commissioner or his authorized representative shall have the power to:
    1. Assist any employer to ensure that all employees are receiving comparable pay for comparable work in jobs which require comparable skill, effort, and responsibility;
    2. Assist any employer so that the character of the work and operations on which persons are employed can be compared, to question such persons, and to obtain such other information as is reasonably necessary for the administration and enforcement of this chapter; and
    3. Eliminate pay practices unlawful under this chapter by informal methods of conference, conciliation, and persuasion.
  2. The Commissioner is authorized to request witnesses to appear and to produce pertinent records for examination by the Commissioner or his authorized representative in the county of the place of business of the employer and such witnesses shall be paid the same fees as are allowed witnesses attending the superior courts of this state. In the event of failure of a person to attend, testify, or produce records voluntarily, the Commissioner may make application to the superior court of the county in which the business is located and, after notice and hearing, the court, in its discretion, and upon proper cause shown, may issue an order requiring the person to appear before the Commissioner or his authorized representative and testify or produce records as requested by the Commissioner.
  3. The Commissioner shall have the authority to issue such rules and regulations appropriate to the carrying out of this chapter.

    (Ga. L. 1968, p. 1392, § 3.)

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 241 et seq.

C.J.S. - 14A C.J.S., Civil Rights, § 724 et seq. 51B C.J.S., Labor Relations, § 1531. 67 C.J.S., Officers and Public Employees, §§ 8, 9.

34-5-5. Collection of unpaid wages by aggrieved employee; attorney's fee; when action may be commenced.

  1. Any employer who violates Code Section 34-5-3 shall be liable to the employee affected in the amount of his unpaid wages. An action to recover such liability may be maintained in any court of competent jurisdiction by the aggrieved employee. The court in such action shall, in cases of violation, in addition to any judgment awarded to plaintiff, allow costs of the action and a reasonable attorney's fee not to exceed 25 percent of the judgment to be paid by the defendant.
  2. Court action under this Code section may be commenced no later than one year after the cause of action accrues.

    (Ga. L. 1966, p. 582, §§ 4, 5.)

Cross references. - Time limitation on actions to recover wages, overtime, or other benefits generally, § 9-3-22 .

RESEARCH REFERENCES

Am. Jur. 2d. - 51 Am. Jur. 2d, Limitation of Actions, §§ 33 et seq., 41 et seq.

C.J.S. - 14A C.J.S., Civil Rights, §§ 335 et seq., 749 et seq., 756 et seq. 51B C.J.S., Labor Relations, § 1232. 54 C.J.S., Limitations of Actions, §§ 119, 120.

ALR. - Validity of statutory provision for attorney's fees, 90 A.L.R. 530 .

Effect of fraud to toll the period for bringing action prescribed in statute creating the right of action, 15 A.L.R.2d 500; 48 A.L.R.4th 1094.

What constitutes "trial," "final trial," or "final hearing" under statute authorizing allowance of attorneys' fees as costs on such proceeding, 100 A.L.R.2d 397.

Settlement negotiations as estopping reliance on statute of limitations, 39 A.L.R.3d 127.

Validity of statute allowing attorney's fee to successful claimant but not to defendant, or vice-versa, 73 A.L.R.3d 515.

Recovery of damages as remedy for wrongful discrimination under state or local civil rights provisions, 85 A.L.R.3d 351.

Requiring apology as "affirmative action" or other form of redress under State Civil Rights Act, 85 A.L.R.3d 402.

Fraud as extending statutory limitations period for contesting will or its probate, 48 A.L.R.4th 1094.

Award of front pay under state job discrimination statutes, 74 A.L.R.4th 746.

Availability and scope of punitive damages under state employment discrimination law, 81 A.L.R.5th 367.

Right of prevailing defendant to recover attorney's fees under § 706(k) of Civil Rights Act of 1964 (42 U.S.C.S. § 2000e-5 (k)), 134 A.L.R. Fed. 161.

Factors or conditions in employment discrimination cases said to justify increase in attorney's fees awarded under § 706(k) of Civil Rights Act of 1964 (42 U.S.C.S. § 2000e-5(k)), 140 A.L.R. Fed. 301; 151 A.L.R. Fed. 77.

Punitive damages in actions for violations of Title VII of the Civil Rights Act of 1964 (42 U.S.C.A. § 1981a; 42 U.S.C.A. §§ 2000e et seq.), 150 A.L.R. Fed. 601.

Award of compensatory damages under 42 U.S.C.A. § 1981a for violation of Title VII of Civil Rights Act of 1964, 154 A.L.R. Fed. 347.

34-5-6. Arbitration of disputes between employers and employees; appointment of arbitrators.

In the event any dispute should arise between any employer and employee covered by this chapter in relation to any subject matter which is covered by this chapter, either of the parties shall have the right to request arbitration of the dispute. The party requesting arbitration shall file written notice of his request with the opposite party by either registered or certified mail or statutory overnight delivery. Within 30 days after receipt of such notice, the other party shall either accept or reject the arbitration offer. If the offer is accepted, the employer and the employee shall each select and appoint one arbitrator within ten days after acceptance. The arbitrators so selected shall then select a county adjoining the county in which the business of the employer is located and in which the dispute arose and the judge of the superior court or the senior judge thereof in terms of length of service on the bench of the judicial circuit in which such selected county shall be located shall appoint a third arbitrator who shall act as the chairman of the arbitration committee. The arbitration committee shall meet at such time as shall be fixed by the chairman and, after giving notice of the hearing to the parties concerned and affording them an opportunity to appear and be heard on the matters in dispute, shall proceed to resolve all matters contained within the request for arbitration. The decision of the arbitration committee shall be binding upon the parties affected, except that either party may appeal such decision to any court of competent jurisdiction within 30 days from publication of the decision.

(Ga. L. 1966, p. 582, § 6; Ga. L. 2000, p. 1589, § 3.)

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the 2000 amendment is applicable to notices delivered on or after July 1, 2000.

Cross references. - Arbitration generally, T. 9, C. 9.

RESEARCH REFERENCES

Am. Jur. 2d. - 48B Am. Jur. 2d, Labor and Labor Relations, § 2435 et seq.

C.J.S. - 6 C.J.S., Arbitration, § 4 et seq. 14A C.J.S., Civil Rights, § 722 et seq. 51A C.J.S., Labor Relations, § 615.

ALR. - Construction and application of provisions of general arbitration statutes excluding from their operation contracts for labor or personal services, 64 A.L.R.2d 1336.

Construction and application of seniority provisions in labor relations agreements, 90 A.L.R.2d 975.

Validity and construction of labor contract provision modifying or destroying seniority rights under prior contract, 90 A.L.R.2d 1003.

Waiver of, or estoppel to assert, substantive right or right to arbitrate as question for court or arbitrator, 26 A.L.R.3d 604.

Libel and slander: privileged nature of communications made in course of grievance or arbitration procedure provided for by collective bargaining agreement, 60 A.L.R.3d 1041.

34-5-7. Posting of law by employers.

Every employer subject to this chapter shall keep an abstract or copy of this chapter posted in a conspicuous place in or about the premises wherein any employee is employed. Employers shall be furnished copies or abstracts of this chapter by the state upon request and without charge.

(Ga. L. 1966, p. 582, § 7.)

RESEARCH REFERENCES

C.J.S. - 51A C.J.S., Labor Relations, § 738. 82 C.J.S., Statutes, § 59.

CHAPTER 6 LABOR ORGANIZATIONS AND LABOR RELATIONS

General Provisions.

Membership in Labor Organizations.

Law reviews. - For article discussing right of Georgia public employees to organize into labor unions, bargain collectively, and engage in concerted activity, see 4 Ga. L. Rev. 110 (1969). For comment, "Tragedy of the Commonality: A Substantive Right to Collective Action in Employment Disputes," see 67 Emory L.J. 157 (2017).

JUDICIAL DECISIONS

Cited in Rainwater v. Trimble, 207 Ga. 306 , 61 S.E.2d 420 (1950); Looper v. Georgia, S. & Fla. Ry., 213 Ga. 279 , 99 S.E.2d 101 (1957); Gresham Park Community Org. v. Howell, 652 F.2d 1227 (5th Cir. 1981).

OPINIONS OF THE ATTORNEY GENERAL

State employees' right to join organizations. - A state employee has the right, either individually or collectively, to express or communicate complaints or opinions relating to state employment, including freedom to enter into organizations created for like purposes; the only limitation upon such activities of state employees would be to prevent their striking, or otherwise interfering with proper performance of the duties of state employment, or obstructing access to or egress from state property. 1969 Op. Att'y Gen. No. 69-379.

Power of Department of Transportation. - The Department of Transportation has no power to take steps to prevent labor activity short of strikes and other obstructions to the performance of the duties of employment. 1969 Op. Att'y Gen. No. 69-379.

RESEARCH REFERENCES

Am. Jur. 2d. - 48 Am. Jur. 2d, Labor and Labor Relations, § 1 et seq.

C.J.S. - 51 C.J.S., Labor Relations, § 43 et seq.

ALR. - Liability of labor union or its members, for circulating false statements with respect to industrial disputes, 1 A.L.R. 1149 .

Collective labor agreements, 95 A.L.R. 10 .

Validity of trade union's classification of members, 97 A.L.R. 609 .

Constitutionality, construction, and application of statute denouncing offense of interfering with or molesting mechanic or laborer, 123 A.L.R. 316 .

Elimination or reduction of use of machinery or mechanical devices in order to maintain or increase employment as a proper labor objective, 136 A.L.R. 282 .

Mandamus to compel reinstatement of suspended or expelled members of labor union, 141 A.L.R. 617 .

Controversy within labor union regarding seniority rights as subject of litigation in civil courts, 142 A.L.R. 1055 .

What amounts to "collective bargaining" within National Labor Relations Act, 147 A.L.R. 7 .

Construction and application of provisions of collective bargaining agreement respecting loss of time or pay of employees in consequence of interruption or suspension of employers' business or operations, 167 A.L.R. 992 .

Constitutionality and construction of statutes respecting political contributions or other political activities by labor organizations, 167 A.L.R. 1465 .

Jurisdictional dispute between labor unions as "labor dispute" within anti-injunction statutes, 170 A.L.R. 1096 .

Units for collective bargaining, 174 A.L.R. 1275 .

Severability of provisions in collective bargaining labor contracts, 14 A.L.R.2d 846.

Right of individual employee to enforce collective labor agreement against employer, 18 A.L.R.2d 352.

Spontaneous or informal activity of employees as that of "labor organization" or as "concerted activities" within protection of Labor Relations Act, 19 A.L.R.2d 566; 75 A.L.R. Fed. 262.

Withdrawal of a local labor union or part of its membership from the parent organization or from a general association as affecting property rights, 23 A.L.R.2d 1209.

Matters arbitrable under arbitration provisions of collective labor contract, 24 A.L.R.2d 752.

Continuance or termination of labor union's status or authority as bargaining agent, 42 A.L.R.2d 1415.

Substitution of independent contractor for employees as violation of collective labor contract, 57 A.L.R.2d 1399.

Stock purchase or stock bonus plan as within provision of federal labor relations acts requiring employer to bargain collectively, 58 A.L.R.2d 843.

Liability of labor union or its officers or members for wrongful suspension or expulsion of member, 74 A.L.R.2d 783.

Exhaustion of remedies within labor union as condition of resort to civil courts by expelled or suspended member, 87 A.L.R.2d 1099.

Civil actions involving union welfare funds subject to § 302 of the Taft-Hartley Act, 88 A.L.R.2d 493.

Validity and construction of "right-to-work" laws, 92 A.L.R.2d 598.

Who may intervene in action between union and union member, 93 A.L.R.2d 1037.

Prevailing union member's right to recover attorneys' fees in action against union or union officers, 9 A.L.R.3d 1045.

Manner of marking ballot as affecting validity of employee's vote in elections under labor relations act, 11 A.L.R.3d 818.

Right of labor union to enforce in the courts fine validly imposed upon member, 13 A.L.R.3d 1004.

Validity and construction of § 501 of Landrum-Griffin Act (29 U.S.C. § 501) dealing with fiduciary responsibilities of officers of labor organizations, 15 A.L.R.3d 939; 85 A.L.R. Fed. 803; 107 A.L.R. Fed. 448; 114 A.L.R. Fed. 417.

Right of labor union to exclude applicants for membership and remedies of applicant so excluded, 33 A.L.R.3d 1305.

Bargainable or negotiable issues in state public employment labor relations, 84 A.L.R.3d 242.

Union security arrangements in state public employment, 95 A.L.R.3d 1102.

Labor union's liability to member for defamation, 100 A.L.R.3d 546.

Failure to pursue or exhaust remedies under union contract as affecting employee's right of state civil action for retaliatory discharge, 32 A.L.R.4th 350.

State criminal prosecutions of union officer or member for specific physical threats to employer's property or person, in connection with labor dispute - modern cases, 43 A.L.R.4th 1141.

Right to jury trial in action for retaliatory discharge from employment, 52 A.L.R.4th 1141.

Procedural rights of union members in union disciplinary proceedings - modern state cases, 79 A.L.R.4th 941.

When is subsequent business operation bound by existing collective bargaining agreement between labor union and predecessor employer, 88 A.L.R. Fed. 89.

Requirements for obtaining court approval or rejection of collective bargaining agreement by debtor in possession or trustee in bankruptcy under 11 USC § 1113(b) and (c), 89 A.L.R. Fed. 299.

Pre-emption, by § 301(a) of Labor-Management Relations Act of 1947 (29 USC § 185(a)), of employee's state-law action for infliction of emotional distress, 101 A.L.R. Fed. 395.

Suits by union members against union officers under 29 USC § 501(b), 114 A.L.R. Fed. 417.

ARTICLE 1 GENERAL PROVISIONS

Law reviews. - For comment on Gossett v. Atlantic Steel Co., 102 Ga. App. 23 , 115 S.E.2d 613 (1960), regarding liability of employer to third parties for injury inflicted by strikers, see 12 Mercer L. Rev. 419 (1961).

JUDICIAL DECISIONS

Cited in Pedigo v. Celanese Corp. of Am., 205 Ga. 392 , 54 S.E.2d 252 (1949).

RESEARCH REFERENCES

ALR. - Liability of labor union or its members, for circulating false statements with respect to industrial disputes, 1 A.L.R. 1149 .

What amounts to a strike within "strike clause" of a bond or other contract, 11 A.L.R. 1004 .

Discharge of, or refusal to reinstate, an employee as justification for strike, 12 A.L.R. 1059 .

Lawfulness of strike to compel collective bargaining, 20 A.L.R. 1513 .

Liability of labor organization for inducting breach of contract to furnish or accept material, 29 A.L.R. 562 .

The boycott as a weapon in industrial disputes, 32 A.L.R. 779 ; 116 A.L.R. 484 .

Strike benefits, 47 A.L.R. 282 .

Losses covered by insurance against strikes, lockouts, or other labor disputes, 52 A.L.R. 162 .

Right of union to refuse to work on materials produced or transported by nonunion labor, 54 A.L.R. 806 .

Right of labor union to refuse to work on materials produced or transported by nonunion labor, 54 A.L.R. 806 .

Third party's right to force settlement in labor dispute, 63 A.L.R. 179 .

Sympathetic strikes, 83 A.L.R. 458 .

Validity and effect of statutes restricting remedy by injunction in industrial disputes, 97 A.L.R. 1333 .

Validity of statute or ordinance against picketing, 130 A.L.R. 1303 .

Injunction against picketing per se, where past picketing has been accompanied by violence or other improper conduct, 132 A.L.R. 1218 .

Picketing or other conduct to enforce demand for maintaining or servicing plant or apparatus by union labor, 136 A.L.R. 1456 .

National Labor Relations Act: sit-down strike, violence, or similar misconduct during strike as affecting employer's right to discharge employee or employee's right to be reinstated after strike, 155 A.L.R. 885 ; 45 A.L.R.2d 887.

Right of employer to injunction against picketing or boycott by labor union to enforce a demand compliance with which employer would constitute an unfair labor practice, 162 A.L.R. 1438 .

What amounts to seizure and holding of employer's plant, equipment, machinery, or other property within statutory exception to inhibition on injunctions in labor disputes, 163 A.L.R. 668 .

Liability of labor union or its members to contractee for their refusal to perform work for contractor with whom they have a closed shop agreement, 172 A.L.R. 1274 .

Relief against union activities as affected by the fact that owner of business operates without outside help or is doing part of the work, 2 A.L.R.2d 1196, 13 A.L.R.2d 642; 13 A.L.R.2d 642.

Collective bargaining agreement as restricting right to strike or picket, 2 A.L.R.2d 1278.

Inviting or soliciting return of striking employees to work as unfair labor practice, 4 A.L.R.2d 1356.

Legality of, and injunction against, peaceful picketing as affected by employer's lack of opportunity to negotiate with union or employees, 11 A.L.R.2d 1069.

Picketing of place of business by persons not employed therein, 11 A.L.R.2d 1274.

Legality of, and injunction against, peaceful picketing to force employees to join union or to compel employer to enter into a contract which would in effect compel them to do so, in the absence of a dispute between employer and employees as to terms or conditions of employment, 11 A.L.R.2d 1338.

Interferences with production by concerted action of employees, short of formal strike, as affected by labor relations act, 25 A.L.R.2d 315.

Construction and application of provisions of Unemployment Compensation or Social Security Acts regarding disqualification for benefits because of labor disputes or strikes, 28 A.L.R.2d 287; 60 A.L.R.3d 1; 60 A.L.R.3d 11; 61 A.L.R.3d 686; 61 A.L.R.3d 693; 61 A.L.R.3d 729; 61 A.L.R.3d 746; 62 A.L.R.3d 304; 62 A.L.R.3d 314; 62 A.L.R.3d 375; 62 A.L.R.3d 380; 62 A.L.R.3d 429; 62 A.L.R.3d 437; 63 A.L.R.3d 88.

Discharge of employee who refused to cross picket line as unfair labor practice, 31 A.L.R.2d 519.

Validity and construction of statutes regulating or prohibiting coercive action by labor unions in jurisdictional disputes, 33 A.L.R.2d 340.

Picketing, by employees of a plant where labor dispute exists, at another plant of employer where there is no labor dispute, 37 A.L.R.2d 687.

Rights and remedies of workmen blacklisted by labor union, 46 A.L.R.2d 1124.

Discontinuance or suspension by employer of all or part of his operations, or lockout of employees, as unfair labor practice, 20 A.L.R.3d 403.

Consumer picketing to protest products, prices, or services, 62 A.L.R.3d 227.

What constitutes participation or direct interest in, or financing of, labor dispute or strike within disqualification provisions of unemployment compensation acts, 62 A.L.R.3d 314.

Refusal of nonstriking employee to cross picket line as justifying denial of unemployment compensation benefits, 62 A.L.R.3d 380.

34-6-1. Requirement of notice by labor organization before strike; penalty.

  1. As used in this Code section, the term:
    1. "Labor organization" means any labor union or any organization or agency or employee representation, committee, or plan in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.
    2. "Local" means any local agency or branch or dues or assessment collecting unit or affiliate of a labor organization. A labor organization shall also be a local when it collects dues or assessments directly from its members and not through the medium of a branch or another local.
  2. No labor organization and no local shall call or cause any strike, slowdown, or stoppage of work in this state until after 30 days' written notice is given by the labor organization or local to the employer, stating the intention to call the strike, slowdown, or stoppage of work and giving the reasons therefor.
  3. Nothing in this Code section shall apply to any labor organization or local in a seasonal industry such as the ladies' garment, hat and millinery, and men's clothing industry, nor shall any provision of this Code section apply to labor unions of railroad employees operating under the Railway Labor Act.
  4. Any person violating any of the provisions of this Code section shall be guilty of a misdemeanor.

    (Ga. L. 1941, p. 515, §§ 1-4, 8.)

Cross references. - Punishment for misdemeanors generally, § 17-10-3 .

U.S. Code. - The Railway Labor Act, referred to in subsection (c) of this Code section, is codified as 45 U.S.C. § 151 et seq.

JUDICIAL DECISIONS

Exemptions. - Seasonal industries exempted from the operation of the statute prohibiting strikes without 30 days written notice can only properly be taken to include such seasonal industries as are made so by natural causes, and mere peaks and lulls in consumer demand with respect to a given industry cannot properly be said to so distinguish it. Local Union, Div. No. 1362 v. Howard Bus Lines, 202 Ga. 430 , 43 S.E.2d 523 (1947).

County board of realtors. - County board of realtors was not a "labor organization" within the meaning of the right-to-work statutes. Nixon v. Gwinnett County Bd. of Realtors, Inc., 249 Ga. 862 , 295 S.E.2d 78 (1982).

Cited in Melton v. City of Atlanta, 324 F. Supp. 315 (N.D. Ga. 1971).

RESEARCH REFERENCES

Am. Jur. 2d. - 48 Am. Jur. 2d, Labor and Labor Relations, § 552. 48B Am. Jur. 2d, Labor and Labor Relations, §§ 2532 et seq., 2561 et seq., 2624 et seq.

C.J.S. - 51 C.J.S., Labor Relations, §§ 46 et seq., 60, 74 et seq., 82, 177. 51A C.J.S., Labor Relations, § 457.

ALR. - Employment of union members at less than union rates, or otherwise in violation of rules of union, as justification for calling strike, 66 A.L.R. 1085 .

Suit between labor organizations or members thereof as involving a labor dispute within anti-injunction statutes, 138 A.L.R. 287 ; 170 A.L.R. 1096 .

Employee committee or similar group as "labor organization" under the National Labor Relations Act (29 U.S.C.S. §§ 151 et seq.), 19 A.L.R.2d 566; 75 A.L.R. Fed. 262.

Interferences with production by concerted action of employees, short of formal strike, as affected by labor relations acts, 25 A.L.R.2d 315.

Applicability of Norris-La Guardia Act and similar state statutes to injunction action by private complainant, 29 A.L.R.2d 323.

Right of labor union to strike, picket, or impose boycott to compel payment by employer of fine or other penalty, 32 A.L.R.2d 342.

Continuance or termination of labor union's status or authority as bargaining agent, 42 A.L.R.2d 1415.

Stock purchase or stock bonus plan as within provision of federal labor relations acts requiring employer to bargain collectively, 58 A.L.R.2d 843.

Measure and elements of damages recoverable against union for breach of no-strike provision in collective bargaining agreement, 92 A.L.R.2d 1232.

Procedural rights of union members in union disciplinary proceedings - modern state cases, 79 A.L.R.4th 941.

Employer's duty to furnish information regarding financial status to employees' representative under National Labor Relations Act, 106 A.L.R. Fed. 694.

Reasonableness of qualifications for union office under § 401(c) of Labor-Management Reporting and Disclosure Act (29 U.S.C.A. § 481(c)), 147 A.L.R. Fed. 389.

34-6-2. Use of force or threats to compel continuance in or departure from employment.

It shall be unlawful for any person, acting alone or in concert with one or more other persons, by the use of force, intimidation, violence, or threats thereof to prevent or attempt to prevent any individual from leaving or continuing in the employment of or from accepting or refusing employment by any employer or from entering or leaving any place of employment of such employer.

(Ga. L. 1947, p. 620, § 1.)

Cross references. - Freedom of assembly, Ga. Const. 1983, Art. I, Sec. I, Para. IX.

Law reviews. - For article, "State Court Injunctions in Labor Disputes," see 10 Ga. St. B. J. 559 (1974).

JUDICIAL DECISIONS

Picketing not violative of statute. - Picketing by a single picket posted on the highway in front of the employer's business, bearing a placard which stated that the employer was unfair to the labor union, who did no more than walk slowly back and forth on the public highway, and was guilty of no violence, intimidation, or other misconduct, did not violate this section. The court did not err in denying the prayer of the employer for an interlocutory injunction to prohibit the picketing. Hallman v. Painters Dist. Council No. 38, 203 Ga. 175 , 45 S.E.2d 414 (1947).

Cited in Cain v. Phillips, 211 Ga. 806 , 89 S.E.2d 163 (1955); International Longshoremen's Ass'n v. Georgia Ports Auth., 217 Ga. 712 , 124 S.E.2d 733 (1962); NAACP v. Overstreet, 221 Ga. 16 , 142 S.E.2d 816 (1965); Fleming v. Terminal Transp. Co., 222 Ga. 583 , 151 S.E.2d 137 (1966); Sams v. Olah, 225 Ga. 497 , 169 S.E.2d 790 (1969).

RESEARCH REFERENCES

Am. Jur. 2d. - 44B Am. Jur. 2d, Interference, § 44. 48A Am. Jur. 2d, Labor and Labor Relations, §§ 1106, 1660, 1664, 1635, 1673 et seq.

C.J.S. - 51 C.J.S., Labor Relations, § 12. 51A C.J.S., Labor Relations, §§ 448 et seq., 516 et seq., 527, 564 et seq., 701.

ALR. - The boycott as a weapon in industrial disputes, 32 A.L.R. 779 ; 116 A.L.R. 484 .

Parades by strikers, 47 A.L.R. 753 .

Constitutionality, construction, and application of statute denouncing offense of interfering with or molesting mechanic or laborer, 123 A.L.R. 316 .

Rights in union label, shop card, or other insignia denoting union shop or workmanship, 42 A.L.R.2d 709.

Discontinuance or suspension by employer of all or part of his operations, or lockout of employees, as unfair labor practice, 20 A.L.R.3d 403.

Application of Garmon preemption doctrine by state courts - Construction and transportation industries, 110 A.L.R.5th 111.

"Mass discharge" of employees as evidence of unfair labor practice under § 8 (a)(1) and (3) of National Labor Relations Act (29 U.S.C.S. § 158(a)(1), (3)), 137 A.L.R. Fed 445.

Increase, or promise of increase or withholding of increase, of wages as unfair labor practice under state labor relations acts, 34 A.L.R.6th 327.

34-6-3. Unlawful assemblages near site of labor dispute.

It shall be unlawful for any person, acting in concert with one or more other persons, to assemble at or near any place where a labor dispute exists and by force, intimidation, violence, or threats thereof to prevent or attempt to prevent any person from engaging in any lawful vocation or for any person acting either by himself, or as a member of any group or organization or acting in concert with one or more other persons to promote, encourage, or aid any such unlawful assemblage.

(Ga. L. 1947, p. 620, § 2.)

Cross references. - Freedom of assembly, Ga. Const. 1983, Art. I, Sec. I, Para. IX.

Law reviews. - For article, "State Court Injunctions in Labor Disputes," see 10 Ga. St. B. J. 559 (1974).

JUDICIAL DECISIONS

Staging locations for pickets upheld. - Trial court's order placing conditions on the use of a staging location for pickets, designed to control the potential for violence and traffic impediments, was held not to be an abuse of discretion. Union Camp Corp. v. Savannah Bldg. Trades Council, 257 Ga. 518 , 361 S.E.2d 178 (1987).

Cited in Fleming v. Terminal Transp. Co., 222 Ga. 583 , 151 S.E.2d 137 (1966).

RESEARCH REFERENCES

Am. Jur. 2d. - 44B Am. Jur. 2d, Interference, § 44. 48B Am. Jur. 2d, Labor and Labor Relations, § 2580 et seq.

C.J.S. - 51A C.J.S., Labor Relations, §§ 445, 464, 468 et seq.

ALR. - The boycott as a weapon in industrial disputes, 32 A.L.R. 779 ; 116 A.L.R. 484 .

Parades by strikers, 47 A.L.R. 753 .

Validity of statute or ordinance against picketing, 125 A.L.R. 963 ; 130 A.L.R. 1303 .

Right of labor union to strike, picket, or impose boycott to compel payment by employer of fine or other penalty, 32 A.L.R.2d 342.

Liability, under statute, of labor union or its membership for torts committed in connection with primary labor activities - state cases, 85 A.L.R.4th 979.

Construction of Freedom of Speech and Assembly Provisions of § 101(a)(2) of Labor-Management Reporting and Disclosure Act of 1959 (29 U.S.C.S. § 411(a)(2)), included in Bill of Rights of Member of Labor Organizations, 143 A.L.R. Fed. 1

34-6-4. Interference with lawful exercise of business activity.

It shall be unlawful for any person, acting alone or in concert with one or more other persons, by the use of force, intimidation, violence, or threats thereof to prevent or attempt to prevent any employer from lawfully engaging or continuing to engage in any proper and lawful business activity; from properly, lawfully, or peaceably using or enjoying his property used or useful in the conduct of such business; from acquiring materials or supplies for the purposes of such business; or from disposing of the goods, wares, or products of such business. It shall further be unlawful to prevent or attempt to prevent any carrier or other person from supplying or delivering materials or supplies to any such employer or from receiving or accepting delivery on the premises of such business of the goods, wares, or products of such business.

(Ga. L. 1947, p. 620, § 5.)

Cross references. - Freedom of assembly, Ga. Const. 1983, Art. I, Sec. I, Para. IX.

Law reviews. - For article, "State Court Injunctions in Labor Disputes," see 10 Ga. St. B. J. 559 (1974).

JUDICIAL DECISIONS

Cited in Brown Transp. Corp. v. Truck Drivers & Helpers Local 728, 218 Ga. 581 , 129 S.E.2d 767 (1963); Fleming v. Terminal Transp. Co., 222 Ga. 583 , 151 S.E.2d 137 (1966).

RESEARCH REFERENCES

Am. Jur. 2d. - 44B Am. Jur. 2d, Interference, §§ 1, 4, 6, 48. 48 Am. Jur. 2d, Labor and Labor Relations, § 538. 74 Am. Jur. 2d, Torts, §§ 40, 41.

C.J.S. - 51A C.J.S., Labor Relations, §§ 387 et seq., 445, 448, 449 et seq. 86 C.J.S., Torts, § 42 et seq.

ALR. - The boycott as a weapon in industrial disputes, 16 A.L.R. 230 ; 27 A.L.R. 651 ; 32 A.L.R. 779 ; 116 A.L.R. 484 .

Liability of labor organization for inducing breach of contract to furnish or accept material, 29 A.L.R. 562 .

Right of union to refuse to work on materials produced or transported by nonunion labor, 52 A.L.R. 1144 ; 54 A.L.R. 806 .

Constitutionality, construction, and application of statute denouncing offense of interfering with or molesting mechanic or laborer, 123 A.L.R. 316 .

Right of labor union to publicize that commodity is nonunion-made, or that competing commodity is union-made, 131 A.L.R. 1068 .

Constitutionality of statute respecting employer's control of or interference with political affiliations or activities of employees, 166 A.L.R. 707 .

Applicability of Norris-La Guardia Act and similar state statutes to injunction action by private complainant, 29 A.L.R.2d 323.

Right of labor union to strike, picket, or impose boycott to compel payment by employer of fine or other penalty, 32 A.L.R.2d 342.

Rights and remedies of workmen blacklisted by labor union, 46 A.L.R.2d 1124.

Liability, under statute, of labor union or its membership for torts committed in connection with primary labor activities - state cases, 85 A.L.R.4th 979.

34-6-5. Interference with public ways of travel, transportation, or conveyance by mass picketing near site of labor dispute.

It shall be unlawful for any person to engage in mass picketing at or near any place where a labor dispute exists in such number or manner as to obstruct or interfere with or constitute a threat to obstruct or interfere with the entrance to or egress from any place of employment or the free and uninterrupted use of public roads, streets, highways, railroads, airports, or other ways of travel, transportation, or conveyance.

(Ga. L. 1947, p. 620, § 3.)

Cross references. - Freedom of assembly, Ga. Const. 1983, Art. I, Sec. I, Para. IX.

Obstruction of, encroachment upon, or injuring public roads generally, § 32-6-1 .

Law reviews. - For article, "State Court Injunctions in Labor Disputes," see 10 Ga. St. B. J. 559 (1974).

JUDICIAL DECISIONS

Staging location for pickets permitted. - Trial court's order placing conditions on the use of a staging location for pickets, designed to control the potential for violence and traffic impediments, was held not to be an abuse of discretion. Union Camp Corp. v. Savannah Bldg. Trades Council, 257 Ga. 518 , 361 S.E.2d 178 (1987).

Cited in Fleming v. Terminal Transp. Co., 222 Ga. 583 , 151 S.E.2d 137 (1966).

RESEARCH REFERENCES

Am. Jur. 2d. - 48 Am. Jur. 2d, Labor and Labor Relations, § 552 et seq.

C.J.S. - 51A C.J.S., Labor Relations, §§ 462 et seq., 467 et seq.

ALR. - Validity of statute or ordinance against picketing, 35 A.L.R. 1200 ; 108 A.L.R. 1119 ; 122 A.L.R. 1043 ; 125 A.L.R. 963 ; 130 A.L.R. 1303 .

Parades by strikers, 47 A.L.R. 753 .

Violation of injunction against unlawful picketing as affecting allowable scope of subsequent injunction, 73 A.L.R. 677 .

Lawfulness of, or right to enjoin, picketing as affected by considerations relating to practical termination or inability to attain object of labor dispute, 122 A.L.R. 1292 .

Legality of, and injunction against, peaceable picketing by labor union, of plant whose employees are represented by another union as statutory bargaining agent, 166 A.L.R. 185 .

Right of third party in area picketed during labor dispute, who has no connection with the dispute, to relief against such picketing, 15 A.L.R.2d 1396.

Applicability of Norris-La Guardia Act and similar state statutes to injunction action by private complainant, 29 A.L.R.2d 323.

Right of labor union to strike, picket, or impose boycott to compel payment by employer of fine or other penalty, 32 A.L.R.2d 342.

Nonlabor picketing or boycott, 93 A.L.R.2d 1284.

Legality of peaceful labor picketing on private property, 10 A.L.R.3d 846.

34-6-6. Use of force or threats to compel or prevent labor organization membership or to compel or prevent strike participation.

It shall be unlawful for any person, acting alone or in concert with one or more other persons, to compel or attempt to compel any person to join or refrain from joining any labor organization or to strike or refrain from striking against his will by any threatened or actual interference with his person, immediate family, or physical property or by any threatened or actual interference with the pursuit of lawful employment by such person or by his immediate family.

(Ga. L. 1947, p. 620, § 4.)

Cross references. - Freedom of assembly, Ga. Const. 1983, Art. I, Sec. I, Para. IX.

Law reviews. - For comment on Woodard v. Collier, 210 Ga. 239 , 78 S.E.2d 526 (1953), see 17 Ga. B. J. 128 (1954). For comment on Curry v. Construction & Gen. Laborers Union Local 438, 217 Ga. 512 , 123 S.E.2d 653 (1962), see 14 Mercer L. Rev. 456 (1963).

JUDICIAL DECISIONS

Infringement upon individual's rights. - It is unlawful to infringe upon an individual's employment rights either because the individual is or is not a member of a union. International Bhd. of Elec. Workers v. Briscoe, 143 Ga. App. 417 , 239 S.E.2d 38 (1977).

Constitutional guarantee. - Peaceful picketing is authorized under the constitutional guarantee of free speech. It is not unlawful unless it is for an illegal purpose. Curry v. Construction & Gen. Laborers Union Local 438, 217 Ga. 512 , 123 S.E.2d 653 (1962), commented on in 14 Mercer L. Rev. 456 (1963).

Interference with right to picket. - Right to peacefully picket cannot be interfered with by courts unless it is for an unlawful purpose. Woodard v. Collier, 210 Ga. 239 , 78 S.E.2d 526 (1953), commented on in 17 Ga. B.J. 128 (1954).

Picketing for unlawful purpose. - Actions of picketers constituted picketing for an unlawful purpose when evidence demanded a finding that a picket was placed on the job for the purpose of forcing the employer to employ only union labor, or else be unable to comply with the terms of the employer's contract due to the refusal of the members of other unions employed in the work to cross the picket line. International Longshoremen's Ass'n v. Georgia Ports Auth., 217 Ga. 712 , 124 S.E.2d 733 (1962), cert. denied, 370 U.S. 922, 82 S. Ct. 1561 , 8 L. Ed. 2 d 503 (1962).

Picketing for the purpose of forcing an employer to employ only union labor, or be unable to comply with the terms of the employer's contract because of the refusal of the members of other unions employed in the work to cross the picket line, and thereby slow the project to a virtual standstill, is for an unlawful purpose. Powers v. Courson, 213 Ga. 20 , 96 S.E.2d 577 (1957); Curry v. Construction & Gen. Laborers Union Local 438, 217 Ga. 512 , 123 S.E.2d 653 (1962), reversed on other grounds, 371 U.S. 542, 83 S. Ct. 531 , 9 L. Ed. 2 d 514 (1963), commented on in 14 Mercer L. Rev. 456 (1963).

Injunction. - If picketing is for an unlawful purpose it can and should be enjoined. Woodard v. Collier, 210 Ga. 239 , 78 S.E.2d 526 (1953), commented on in 17 Ga. B.J. 128 (1954).

Right to work law violation under state law. - In a state which has a "right to work" law, such as the one provided for in this section the right to work is a state-conferred right, and a violation of this right creates a cause of action which arises under state law rather than under the Taft-Hartley Act, 29 U.S.C. § 141 et seq. McDowell v. Clement Bros. Co., 260 F. Supp. 817 (N.D. Ga. 1966).

State court jurisdiction. - State court has no jurisdiction to issue an injunction or to adjudicate a controversy which lies within the exclusive powers of the National Labor Relations Board. Local 438 Constr. & Gen. Laborers' Union v. Curry, 371 U.S. 542, 83 S. Ct. 531 , 9 L. Ed. 2 d 514 (1963).

Cited in Cook v. Huckabee Transp. Corp., 215 Ga. 9 , 108 S.E.2d 710 (1959); International Longshoremen's Ass'n v. Georgia Ports Auth., 217 Ga. 712 , 124 S.E.2d 733 (1962); Brown Transp. Corp. v. Truck Drivers & Helpers Local 728, 218 Ga. 581 , 129 S.E.2d 767 (1963); Local 225 United Bhd. of Carpenters v. Briggs, 218 Ga. 742 , 130 S.E.2d 707 (1963); Carpenters Local Union No. 3024 v. United Bhd. of Carpenters, 220 Ga. 596 , 140 S.E.2d 876 (1965); NAACP v. Overstreet, 221 Ga. 16 , 142 S.E.2d 816 (1965); Fleming v. Terminal Transp. Co., 222 Ga. 583 , 151 S.E.2d 137 (1966); Hudgens v. Retail, Whsle. & Dep't Store Local 315, 133 Ga. App. 329 , 210 S.E.2d 821 (1974); Nixon v. Gwinnett County Bd. of Realtors, Inc., 249 Ga. 862 , 295 S.E.2d 78 (1982).

RESEARCH REFERENCES

Am. Jur. 2d. - 48A Am. Jur. 2d, Labor and Labor Relations, §§ 1527 et seq., 1593 et seq., 1653 et seq., 1716 et seq.

C.J.S. - 51 C.J.S., Labor Relations, §§ 12, 13, 89 et seq. 51A C.J.S., Labor Relations, §§ 447 et seq., 450, 518, 524, 782, 783.

ALR. - Validity and construction of contract by labor unions to continue salary or wages in whole or part or pay benefits if other party loses employment or position because of joining union, 114 A.L.R. 1300 ; 125 A.L.R. 1260 .

Constitutionality, construction, and application of statute denouncing offense of interfering with or molesting mechanic or laborer, 123 A.L.R. 316 .

Unfair labor practice, within National Labor Relations Act or similar state statute, predicated upon expressions of opinion or statements by employer concerning labor unions, 146 A.L.R. 1024 .

Unfair labor practice, within National Labor Relations Act or similar state statute, predicated upon statements or acts by employees not expressly authorized by employer, 146 A.L.R. 1062 .

Closed shops and closed unions, 160 A.L.R. 918 .

Inviting or soliciting return of striking employees to work as unfair labor practice, 4 A.L.R.2d 1356.

Right of union rival of collective bargaining agent union to act for individual employee or group of employees as regards grievances, 9 A.L.R.2d 696.

Applicability of Norris-La Guardia Act and similar state statutes to injunction action by private complainant, 29 A.L.R.2d 323.

Validity and construction of statutes regulating or prohibiting coercive action by labor unions in jurisdictional disputes, 33 A.L.R.2d 340.

Rights in union label, shop card, or other insignia denoting union shop or workmanship, 42 A.L.R.2d 709.

Discontinuance or suspension by employer of all or part of his operations, or lockout of employees, as unfair labor practice, 20 A.L.R.3d 403.

Peaceful picketing of private residence, 42 A.L.R.3d 1353.

Procedural rights of union members in union disciplinary proceedings - modern state cases, 79 A.L.R.4th 941.

Construction of Freedom of Speech and Assembly Provisions of § 101(a)(2) of Labor-Management Reporting and Disclosure Act of 1959 (29 U.S.C.S. § 411(a)(2)), included in Bill of Rights of Member of Labor Organizations, 143 A.L.R. Fed. 1

Job placement of returning strikers as unfair labor practice under § 8(a) of National Labor Relations Act (29 U.S.C.A. § 158(a)), 145 A.L.R. Fed. 619.

Increase, or promise of increase or withholding of increase, of wages as unfair labor practice under state labor relations acts, 34 A.L.R.6th 327.

34-6-7. Penalty for unlawful picketing and for unlawful interference with employment or business activity.

Any person who violates any provision of Code Sections 34-6-2 through 34-6-6 shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished as provided in Code Section 17-10-3.

(Ga. L. 1947, p. 620, § 6.)

Cross references. - Freedom of assembly, Ga. Const. 1983, Art. I, Sec. I, Para. IX.

34-6-8. Payment of charges by carriers or shippers for movement of motor vehicles to or by rail facilities; receipt by labor organizations of such payments; penalties.

  1. As used in this Code section, the term "labor organization" means any organization of any kind or any agency or employee representation committee or plan in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.
  2. It shall be unlawful for any carrier or shipper of property or any association of carriers or shippers to agree to pay or to pay to or for the benefit of a labor organization, directly or indirectly, any charge by reason of the placing upon, delivery to, or movement by rail or by railroad car of a motor vehicle, trailer, or container which is also capable of being moved or propelled upon the highways.
  3. It shall be unlawful for any labor organization to accept or receive from any carrier or shipper of property, or any association of such carriers or shippers, any payment described in subsection (b) of this Code section.
  4. Any corporation, association, organization, or person who agrees to pay, or who does pay, or who agrees to receive, or who does receive, any payment described in subsection (b) of this Code section shall be guilty of a misdemeanor. Each act of violation and each day during which such an agreement remains in effect shall constitute a separate and distinct offense.

    (Ga. L. 1962, p. 448, §§ 1-4.)

Cross references. - Punishment for misdemeanors generally, § 17-10-3 .

RESEARCH REFERENCES

Am. Jur. 2d. - 48 Am. Jur. 2d, Labor and Labor Relations, § 34 et seq.

C.J.S. - 51 C.J.S., Labor Relations, §§ 69 et seq., 92. 51A C.J.S., Labor Relations, §§ 340 et seq., 522, 556 et seq.

ARTICLE 2 MEMBERSHIP IN LABOR ORGANIZATIONS

Law reviews. - For article, "State Court Injunctions in Labor Disputes," see 10 Ga. St. B. J. 559 (1974). For article, "Georgia's Right-to-Work Laws: Their Meaning and Effect," see 13 Ga. St. B. J. 164 (1977).

RESEARCH REFERENCES

ALR. - Attempt to unionize employees under contract not to join union, as wrong to employer, 26 A.L.R. 158 ; 63 A.L.R. 198 .

Validity of stipulation in contract of employment against connection with labor union or employers' association, and power of Legislature to prohibit such contract, 68 A.L.R. 1267 .

Validity and construction of contract by labor unions to continue salary or wages in whole or part or pay benefits if other party loses employment or position because of joining union, 114 A.L.R. 1300 ; 125 A.L.R. 1260 .

Validity, construction, and application of statute or ordinance regarding solicitation of persons to join an organization or society or to pay membership fees or dues, 144 A.L.R. 1346 ; 167 A.L.R. 697 ; 167 A.L.R. 697 .

Disproportionate treatment of union and nonunion workers, or of workers belonging to different unions, as factor in determining charge of unfair labor practices under National Labor Relations Act, 153 A.L.R. 841 .

Notice of meeting of voluntary association, 167 A.L.R. 1233 .

What constitutes "financial or other support" within 29 U.S.C. § 158(a)(2) making such support of a union an unfair labor practice, 10 A.L.R.2d 861.

Effect of Taft-Hartley Act exclusion of supervisors as employees under National Labor Relations Act, 40 A.L.R.2d 415.

Unfair labor practices: discrimination between union members and nonmembers as to wage increases, vacations, and the like, 41 A.L.R.2d 654.

34-6-20. Definitions.

As used in this article, the term:

  1. "Employee" includes any employee and shall not be limited to the employees of a particular employer.
  2. "Employer" includes any person acting in the interest of an employer, directly or indirectly, but shall not include the United States, a state or any political subdivision thereof, any person subject to the Railway Labor Act, as amended, any person employed by a transit authority subject to the provisions and requirements of Section 13(c) of the Federal Transit Act, 49 U.S.C. Section 5333(b), any labor organization (other than when acting as an employer), or anyone acting in the capacity of officer or agent of such labor organization.
  3. "Employment" means employment by an employer.
  4. "Federal labor laws" means the National Labor Relations Act and the Labor Management Relations Act, as amended by federal administrative regulations relating to labor and management or employee and employer issues, and the United States Constitution as amended and as construed by the federal courts.
  5. "Governmental body" means the State of Georgia or any local government or its subdivisions, including but not limited to cities, municipalities, counties, and any public body, agency, board, commission or other governmental, quasi-governmental, or quasi-public body, or like capacity of local government or its subdivision.
  6. "Labor organization" means any organization of any kind or any agency or employee representation committee or plan in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.

    (Ga. L. 1947, p. 616, § 1; Ga. L. 2013, p. 623, § 1/HB 361.)

Editor's notes. - Ga. L. 2013, p. 623, § 6/HB 361, not codified by the General Assembly, provides for severability.

U.S. Code. - The Railway Labor Act, referred to in paragraph (2) of this Code section, is codified as 45 U.S.C. § 151 et seq.

Law reviews. - For article on the 2013 amendment of this Code section, see 30 Ga. St. U.L. Rev. 191 (2013).

JUDICIAL DECISIONS

County board of realtors. - County board of realtors was not a "labor organization" within the meaning of the right-to-work statutes. Nixon v. Gwinnett County Bd. of Realtors, Inc., 249 Ga. 862 , 295 S.E.2d 78 (1982).

OPINIONS OF THE ATTORNEY GENERAL

American Nurses Association. - The prohibition against requiring membership in a labor organization is not applicable to the American Nurses Association. 1965-66 Op. Att'y Gen. No. 66-67.

RESEARCH REFERENCES

Am. Jur. 2d. - 48 Am. Jur. 2d, Labor and Labor Relations, §§ 1, 15 et seq. 35 et seq. 27 Am. Jur. 2d, Employment Relationship, § 1.

C.J.S. - 51 C.J.S., Labor Relations, §§ 6, 65, 69 et seq., 92.

ALR. - Validity, construction, and application of state right-to-work provisions, 105 A.L.R.5th 243.

34-6-20.1. Statement of rights under federal law.

The rights protected under federal labor laws include, but are not limited to:

  1. An employer's or employee's right to express views in favor of or contrary to unionization and any other labor relations issues to the full extent allowed by the First Amendment of the United States Constitution and Section 8(c) of the National Labor Relations Act;
  2. An employee's right to participate in, and an employer's right to demand, a secret ballot election under federal law, including, without limitation, the full procedural protections afforded by such laws for defining the unit, conducting the election campaign and election, and making any challenges or objections thereto; and
  3. An employer's right to:
    1. Oppose the recognition of a labor organization based solely on reviewing authorization cards absent a secret ballot election conducted in accordance with federal labor laws;
    2. Refuse to release sensitive and private employee information beyond the requirements of federal labor laws;
    3. Maintain the confidentiality of employee information to the maximum extent allowed by federal labor laws; and
    4. Restrict access to its property or business to the maximum extent allowed by federal labor laws. (Code 1981, § 34-6-20.1 , enacted by Ga. L. 2013, p. 623, § 2/HB 361.)

Editor's notes. - Ga. L. 2013, p. 623, § 6/HB 361, not codified by the General Assembly, provides for severability.

U.S. Code. - Section 8(c) of the National Labor Relations Act, referred to in this Code section, is codified as 29 U.S.C. § 158(c).

Law reviews. - For article on the 2013 enactment of this Code section, see 30 Ga. St. U.L. Rev. 191 (2013).

34-6-21. Membership in or resignation from labor organization as condition of employment or continuation of employment; application of federal law.

  1. No individual shall be required as a condition of employment or continuance of employment to be or remain a member or an affiliate of a labor organization or to resign from or to refrain from membership in or affiliation with a labor organization.
  2. No governmental body may pass any law, ordinance, or regulation or impose any contractual, zoning, permitting, licensing, or other condition that requires any employer or employee to waive statutory rights under federal labor laws.
  3. No governmental body may pass any law, ordinance, or regulation that would require, in whole or in part, an employer or multiple employer association to accept or otherwise agree to any provisions that are mandatory or nonmandatory subjects of collective bargaining under federal labor laws, including, but not limited to, any limitations on an employer's or multiple employer association's right to engage in collective bargaining with a labor organization, to lock out employees, or to operate during a work stoppage; provided, however, that the foregoing shall not invalidate or otherwise restrict the application of federal labor laws.
  4. No employer or labor organization shall be forced to enter into any agreement, contract, understanding, or practice, written or oral, implied or expressed, that subverts the established process by which employees may make informed and free decisions regarding representation and collective bargaining rights provided for by federal labor laws.

    (Ga. L. 1947, p. 616, § 2; Ga. L. 2013, p. 623, § 3/HB 361.)

Editor's notes. - Ga. L. 2013, p. 623, § 6/HB 361, not codified by the General Assembly, provides for severability.

Law reviews. - For article discussing right of Georgia public employees to organize into labor unions, bargain collectively, and engage in concerted activity, see 4 Ga. L. Rev. 110 (1969). For article suggesting that Georgia's prohibition against closed shops may be an incentive for establishment of non-Georgia business enterprises in the state, see 27 Mercer L. Rev. 629 (1976). For article on the 2013 amendment of this Code section, see 30 Ga. St. U.L. Rev. 191 (2013). For note advocating reassessment of state authority towards injunctions in labor disputes, see 18 Mercer L. Rev. 461 (1967).

JUDICIAL DECISIONS

Remedy for discharged employees is action for damages. - When employees have been wrongfully, but finally, discharged by the employer, the remedy available to the employees so discharged is an action for damages; a mandatory injunction will not be granted against the completed acts of discharge. Sandt v. Mason, 208 Ga. 541 , 67 S.E.2d 767 (1951).

Upon general rules of law. - If employees, in violation of this section were wrongfully discharged, their right to damages, if any, would rest upon the general rules of law of Georgia. Sandt v. Mason, 208 Ga. 541 , 67 S.E.2d 767 (1951).

Amount of damages. - When petitioners were employed on a week-to-week basis, being paid weekly, and their discharge was based on their affiliation with a labor union and contrary to the pronouncement of this section, the most that the petitioners could collect in damages would be the full term of their employment (one week). Sandt v. Mason, 208 Ga. 541 , 67 S.E.2d 767 (1951).

Right to work law violation under state law. - In a state which has a "right to work" law, such as the one provided for in this section, the right to work is a state-conferred right, and a violation of this right creates a cause of action which arises under state law rather than under the Taft-Hartley Act, 29 U.S.C. § 141 et seq. McDowell v. Clement Bros. Co., 260 F. Supp. 817 (N.D. Ga. 1966).

No private right of action. - Because O.C.G.A. § 34-6-21 did not provide a private remedy and was only a statement of public policy by the State of Georgia, the plaintiff temporary Mexican farm workers' claim that the defendant employer discriminated against union members in recruiting and hiring the workers in violation of O.C.G.A. § 34-6-21 failed. Ramos-Barrientos v. Bland, 728 F. Supp. 2d 1360 (S.D. Ga. 2010).

Claim of Mexican farm workers rejected. - Nothing showed the defendant employer was directly involved in removing union workers from a preferred worker list; thus, a breach of contract claim filed by the plaintiff temporary Mexican farm workers, premised on an immigration conveyance order's promise to comply with all employment-related law, which included O.C.G.A. § 34-6-21 , failed. Ramos-Barrientos v. Bland, 728 F. Supp. 2d 1360 (S.D. Ga. 2010).

Cited in Carpenters Local Union No. 3024 v. United Bhd. of Carpenters, 220 Ga. 596 , 140 S.E.2d 876 (1965); Martell v. Atlanta Biltmore Hotel Corp., 114 Ga. App. 646 , 152 S.E.2d 579 (1966); Stein Printing Co. v. Atlanta Typographical Union 48, 329 F. Supp. 754 (N.D. Ga. 1971); Nixon v. Gwinnett County Bd. of Realtors, Inc., 249 Ga. 862 , 295 S.E.2d 78 (1982).

OPINIONS OF THE ATTORNEY GENERAL

Union shop agreement. - A union shop is not legal in Georgia. 1952-53 Op. Att'y Gen. p. 124.

A union shop agreement between a railroad and a union is enforceable in Georgia in light of the amendment to the federal Railway Labor Act, 45 U.S.C. § 151 et seq., authorizing union shop agreements notwithstanding any state right to work law. 1970 Op. Att'y Gen. No. 70-12.

RESEARCH REFERENCES

Am. Jur. 2d. - 48 Am. Jur. 2d, Labor and Labor Relations, §§ 1059, 1086. 48A Am. Jur. 2d, Labor and Labor Relations, § 2232 et seq.

C.J.S. - 51 C.J.S., Labor Relations, § 13. 51A C.J.S., Labor Relations, § 549.

ALR. - Who are entitled to benefit of statutes giving right to combine, 166 A.L.R. 161 .

Rights in union label, shop card, or other insignia denoting union shop or workmanship, 42 A.L.R.2d 709.

Labor relations acts: discharge of employee as reprisal or retaliation for union organizational activities, 83 A.L.R.2d 532.

Validity, construction, and application of state right-to-work provisions, 105 A.L.R.5th 243.

Damages for allegedly wrongful interference with employment rights as received "on account of personal injuries," so as to be excludible from income tax under 26 USC § 104(a)(2), 106 A.L.R. Fed. 321.

34-6-22. Payment to labor organization of fee or assessment as condition of employment.

No individual shall be required as a condition of employment or continuance of employment to pay any fee, assessment, or other sum of money whatsoever to a labor organization.

(Ga. L. 1947, p. 616, § 3.)

JUDICIAL DECISIONS

Right to work law violation under state law. - In a state which has a "right to work" law, such as the one provided for in Ga. L. 1947, p. 616, § 3 (see now O.C.G.A. § 34-6-22 ), the right to work is a state-conferred right, and a violation of this right creates a cause of action which arises under state law rather than under the Taft-Hartley Act, 29 U.S.C. § 141 et seq. McDowell v. Clement Bros. Co., 260 F. Supp. 817 (N.D. Ga. 1966).

No violation of statute. - When a union operated a hiring hall where both members and nonmembers could obtain referrals for temporary work, the union's charging of a referral fee did not violate O.C.G.A. § 34-6-22 . The payment of the fee was not a condition of employment, and in the wake of a settlement before the National Labor Relations Board, the union charged members and nonmembers the same fee. Perry v. Int'l Longshoremen Ass'n Local No. 1414, 295 Ga. App. 799 , 673 S.E.2d 302 (2009).

Cited in Sandt v. Mason, 208 Ga. 541 , 67 S.E.2d 767 (1951); Carpenters Local Union No. 3024 v. United Bhd. of Carpenters, 220 Ga. 596 , 140 S.E.2d 876 (1965); Nixon v. Gwinnett County Bd. of Realtors, Inc., 249 Ga. 862 , 295 S.E.2d 78 (1982).

OPINIONS OF THE ATTORNEY GENERAL

Union shop agreement. - A union shop agreement between a railroad and a union is enforceable in Georgia in light of the amendment to the federal Railway Labor Act, 45 U.S.C. § 151 et seq., authorizing union shop agreements notwithstanding any state right to work law. 1970 Op. Att'y Gen. No. 70-12.

RESEARCH REFERENCES

Am. Jur. 2d. - 48A Am. Jur. 2d, Labor and Labor Relations, §§ 1655 et seq., 1671.

C.J.S. - 51 C.J.S., Labor Relations, § 110 et seq.

ALR. - Closed shops and closed unions, 160 A.L.R. 918 .

Refusal of member of labor union to pay assessment imposed by it for purposes of promoting or defeating contemplated legislation as ground for suspension or expulsion, 175 A.L.R. 397 .

Rights in union label, shop card, or other insignia denoting union shop or workmanship, 42 A.L.R.2d 709.

Procedural rights of union members in union disciplinary proceedings - modern state cases, 79 A.L.R.4th 941.

Validity, construction, and application of state right-to-work provisions, 105 A.L.R.5th 243.

34-6-23. Contracts contrary to public policy.

Any provision in a contract between an employer and a labor organization which requires as a condition of employment or continuance of employment that any individual be or remain a member or an affiliate of a labor organization or that any individual pay any fee, assessment, or other sum of money whatsoever to a labor organization is declared to be contrary to the public policy of this state; and any such provision in any such contract heretofore or hereafter made shall be absolutely void.

(Ga. L. 1947, p. 616, § 4.)

JUDICIAL DECISIONS

Right to work law violation under state law. - In a state which has a "right to work" law, such as the one provided for in this section, the right to work is a state-conferred right; and a violation of this right creates a cause of action which arises under state law rather than under the Taft-Hartley Act, 29 U.S.C. § 141 et seq. McDowell v. Clement Bros. Co., 260 F. Supp. 817 (N.D. Ga. 1966).

Cited in Sandt v. Mason, 208 Ga. 541 , 67 S.E.2d 767 (1951); NLRB v. Atlanta Coca-Cola Bottling Co., 293 F.2d 300 (5th Cir. 1961); Stein Printing Co. v. Atlanta Typographical Union 48, 329 F. Supp. 754 (N.D. Ga. 1971).

OPINIONS OF THE ATTORNEY GENERAL

Union shop agreement. - A union shop agreement between a railroad and a union is enforceable in Georgia in light of the amendment to the federal Railway Labor Act, 45 U.S.C. § 151 et seq., authorizing union shop agreements notwithstanding any state right to work law. 1970 Op. Att'y Gen. No. 70-12.

RESEARCH REFERENCES

Am. Jur. 2d. - 48 Am. Jur. 2d, Labor and Labor Relations, §§ 10, 11.

C.J.S. - 51 C.J.S., Labor Relations, §§ 12, 101 et seq. 51A C.J.S., Labor Relations, §§ 311, 321 et seq.

ALR. - Validity and effect of statutes restricting remedy by injunction in industrial disputes, 35 A.L.R. 460 ; 97 A.L.R. 1333 ; 106 A.L.R. 361 ; 120 A.L.R. 316 ; 124 A.L.R. 751 ; 127 A.L.R. 868 ; 150 A.L.R. 819 .

Closed shops and closed unions, 160 A.L.R. 918 .

Collective bargaining agreement discriminating against certain employees as infringement of their rights, 172 A.L.R. 1351 .

Refusal of member of labor union to pay assessment imposed by it for purposes of promoting or defeating contemplated legislation as ground for suspension or expulsion, 175 A.L.R. 397 .

Right of union rival of collective bargaining agent union to act for individual employee or group of employees as regards grievances, 9 A.L.R.2d 696.

Legality of, and injunction against, peaceful picketing to force employees to join union or to compel employer to enter into a contract which would in effect compel them to do so, in the absence of a dispute between employer and employees as to terms or conditions of employment, 11 A.L.R.2d 1338.

Rights in union label, shop card, or other insignia denoting union shop or workmanship, 42 A.L.R.2d 709.

34-6-24. Contracts requiring membership in or payments to labor organizations as condition of employment.

It shall be unlawful for any employer to contract with any labor organization and for any labor organization to contract with any employer so as to require as a condition of employment or continuance of employment that any individual be or remain a member of a labor organization or that any individual pay any fee, assessment, or other sum of money whatsoever to a labor organization.

(Ga. L. 1947, p. 616, § 5.)

JUDICIAL DECISIONS

Right to work law violation under state law. - In a state which has a "right to work" law, such as the one provided for in this section, the right to work is a state-conferred right, and a violation of this right creates a cause of action which arises under state law rather than under the Taft-Hartley Act, 29 U.S.C. § 141 et seq. McDowell v. Clement Bros. Co., 260 F. Supp. 817 (N.D. Ga. 1966).

Cited in Sandt v. Mason, 208 Ga. 541 , 67 S.E.2d 767 (1951); Carpenters Local Union No. 3024 v. United Bhd. of Carpenters, 220 Ga. 596 , 140 S.E.2d 876 (1965); Stein Printing Co. v. Atlanta Typographical Union 48, 329 F. Supp. 754 (N.D. Ga. 1971); Local 926, Int'l Union of Operating Eng'rs v. Jones, 460 U.S. 669, 103 S. Ct. 1453 , 75 L. Ed. 2 d 368 (1983).

OPINIONS OF THE ATTORNEY GENERAL

Union shop agreement. - A union shop agreement between a railroad and a union is enforceable in Georgia in light of the amendment to the federal Railway Labor Act, 45 U.S.C. § 151 et seq., authorizing union shop agreements notwithstanding any state right to work law. 1970 Op. Att'y Gen. No. 70-12.

RESEARCH REFERENCES

Am. Jur. 2d. - 48 Am. Jur. 2d, Labor and Labor Relations, §§ 10, 11.

C.J.S. - 51 C.J.S., Labor Relations, §§ 12, 110 et seq. 51A C.J.S., Labor Relations, §§ 316, 327 et seq., 347 et seq.

ALR. - Collective bargaining agreement discriminating against certain employees as infringement of their rights, 172 A.L.R. 1351 .

34-6-25. Deductions from employees' earnings of fees of labor organizations; exceptions.

  1. No employer shall deduct from the wages or other earnings of any employee any fee, assessment, or other sum of money whatsoever to be held for or to be paid over to a labor organization except on the written authorization of the employee. Such authorization may be revoked at any time at the request of the employee.
  2. Nothing in this Code section shall be construed to impair any contract, agreement, or collective bargaining agreement in existence prior to July 1, 2013.
  3. This Code section shall not apply to any collective bargaining agreement entered into pursuant to the Railway Labor Act, as amended, or to any professional association whose membership is exclusively composed of educators, law enforcement officers, or firefighters not engaged or engaging in contracting or collective bargaining.

    (Ga. L. 1947, p. 616, § 6; Ga. L. 2013, p. 623, § 4/HB 361.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2013, "to July 1, 2013" was substituted for "to the effective date of this Code section" at the end of subsection (b).

Editor's notes. - Ga. L. 2013, p. 623, § 6/HB 361, not codified by the General Assembly, provides for severability.

Law reviews. - For article on the 2013 amendment of this Code section, see 30 Ga. St. U.L. Rev. 191 (2013).

JUDICIAL DECISIONS

Period of irrevocability. - Authorization for a deduction of union dues is irrevocable for not more than one year, as set forth under federal law. SeaPak v. Industrial Employees, Div. of Nat'l Maritime Union, 300 F. Supp. 1197 (S.D. Ga. 1969), aff'd, 423 F.2d 1229 (5th Cir. 1970), 400 U.S. 985, 91 S. Ct. 452 , 27 L. Ed. 2 d 434 (1971).

Compulsory unionism. - Checkoff authorizations irrevocable for year after date do not amount to compulsory unionism as to employees who wish to withdraw from membership prior to that time. SeaPak v. Industrial Employees, Div. of Nat'l Maritime Union, 300 F. Supp. 1197 (S.D. Ga. 1969), aff'd, 423 F.2d 1229 (5th Cir. 1970), 400 U.S. 985, 91 S. Ct. 452 , 27 L. Ed. 2 d 434 (1971).

Cited in Sandt v. Mason, 208 Ga. 541 , 67 S.E.2d 767 (1951); Martell v. Atlanta Biltmore Hotel Corp., 114 Ga. App. 646 , 152 S.E.2d 579 (1966); McDowell v. Clement Bros. Co., 260 F. Supp. 817 (N.D. Ga. 1966).

OPINIONS OF THE ATTORNEY GENERAL

Union shop agreement. - A union shop agreement between a railroad and a union is enforceable in Georgia in light of the amendment to the federal Railway Labor Act, 45 U.S.C. § 151 et seq., authorizing union shop agreements notwithstanding any state right to work law. 1970 Op. Att'y Gen. No. 70-12.

RESEARCH REFERENCES

Am. Jur. 2d. - 48 Am. Jur. 2d, Labor and Labor Relations, § 15.

C.J.S. - 51 C.J.S., Labor Relations, § 110 et seq. 51A C.J.S., Labor Relations, §§ 351, 399 et seq.

ALR. - Constitutionality, construction, and application of statute prohibiting employer from deducting from wages of employees dues or assessments payable to labor organization, or otherwise assisting in collection thereof, 108 A.L.R. 1133 .

Deduction or collection of labor union dues from wages of employees, 135 A.L.R. 507 .

Contract provisions for deduction of union dues from wages of employees and their payment to union as within statute prohibiting or regulating assignment of future earnings or wages, 14 A.L.R.2d 177.

34-6-26. Contracts allowing deductions from employees' earnings of fees of labor organizations.

  1. It shall be unlawful for any employer to contract with any labor organization and for any labor organization to contract with any employer for the deduction of any fee, assessment, or other sum of money whatsoever from the wages or other earnings of an employee to be held for or to be paid over to a labor organization except upon the condition to be embodied in such contract that such deduction will be made only on the written authorization of the employee. Such authorization may be revoked at any time at the request of the employee.
  2. Nothing in this Code section shall be construed to impair any contract, agreement, or collective bargaining agreement in existence prior to July 1, 2013.

    (Ga. L. 1947, p. 616, § 7; Ga. L. 2013, p. 623, § 5/HB 361.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2013, "to July 1, 2013" was substituted for "to the effective date of this Code section" at the end of subsection (b).

Editor's notes. - Ga. L. 2013, p. 623, § 6/HB 361, not codified by the General Assembly, provides for severability.

Law reviews. - For article on the 2013 amendment of this Code section, see 30 Ga. St. U.L. Rev. 191 (2013).

JUDICIAL DECISIONS

Cited in Sandt v. Mason, 208 Ga. 541 , 67 S.E.2d 767 (1951); McDowell v. Clement Bros. Co., 260 F. Supp. 817 (N.D. Ga. 1966).

OPINIONS OF THE ATTORNEY GENERAL

Union shop agreement. - A union shop agreement between a railroad and a union is enforceable in Georgia in light of the amendment to the federal Railway Labor Act, 45 U.S.C. § 151 et seq., authorizing union shop agreements notwithstanding any state right to work law. 1970 Op. Att'y Gen. No. 70-12.

RESEARCH REFERENCES

Am. Jur. 2d. - 48 Am. Jur. 2d, Labor and Labor Relations, § 15.

C.J.S. - 51 C.J.S., Labor Relations, § 110 et seq. 51A C.J.S., Labor Relations, §§ 351, 361, 362, 399 et seq.

ALR. - Contract provisions for deduction of union dues from wages of employees and their payment to union as within statute prohibiting or regulating assignment of future earnings or wages, 14 A.L.R.2d 177.

Rights in union label, shop card, or other insignia denoting union shop or workmanship, 42 A.L.R.2d 709.

34-6-27. Injunctive relief where contracts made unlawful by article; application for injunction; assessment of court costs.

The remedy of injunction, in addition to any other available remedy, is given to any individual whose employment is affected, or may be affected, by any contract which is declared in whole or in part to be void by any provision of this article. The application for injunction may be filed in any court of appropriate jurisdiction, and service shall be made upon the parties in the manner now or hereafter provided by law. In any such proceeding, the plaintiff shall be entitled to his costs and reasonable attorneys' fees and shall recover actual damages sustained by him. The court shall assess such costs, attorneys' fees, and damages between the parties to the contract under equitable rules and principles.

(Ga. L. 1947, p. 616, § 8.)

Law reviews. - For note advocating reassessment of state authority towards injunctions in labor disputes, see 18 Mercer L. Rev. 461 (1967).

JUDICIAL DECISIONS

Penalties and remedies. - Neither the remedy of injunction provided in Ga. L. 1947, p. 616, § 8 (see now O.C.G.A. § 34-6-27 ) nor the declaration that certain acts in Ga. L. 1947, p. 616, § 9 (see now O.C.G.A. § 34-6-28 ) shall amount to a misdemeanor was made applicable to Ga. L. 1947, p. 616, § 2 (see now O.C.G.A. § 34-6-21 ). Sandt v. Mason, 208 Ga. 541 , 67 S.E.2d 767 (1951).

RESEARCH REFERENCES

Am. Jur. 2d. - 48 Am. Jur. 2d, Labor and Labor Relations, §§ 13, 20.

C.J.S. - 51B C.J.S., Labor Relations, § 1018.

ALR. - Validity and effect of statutes restricting remedy by injunction in industrial disputes, 35 A.L.R. 460 ; 97 A.L.R. 1333 ; 106 A.L.R. 361 ; 120 A.L.R. 316 ; 124 A.L.R. 751 ; 127 A.L.R. 868 ; 150 A.L.R. 819 .

Right to injunction in labor dispute as affected by misconduct of complainant, 66 A.L.R. 1090 .

Right of member to recover against or enjoin union where, without fault on his part, he has been damaged by its act, not specifically directed against him, 117 A.L.R. 823 .

What amounts to seizure and holding of employer's plant, equipment, machinery, or other property within statutory exception to inhibition on injunctions in labor disputes, 163 A.L.R. 668 .

Refusal of member of labor union to pay assessment imposed by it for purposes of promoting or defeating contemplated legislation as ground for suspension or expulsion, 175 A.L.R. 397 .

Legality of, and injunction against, peaceful picketing as affected by employer's lack of opportunity to negotiate with union or employees, 11 A.L.R.2d 1069.

Applicability of Norris-La Guardia Act and similar state statutes to injunction action by private complainant, 29 A.L.R.2d 323.

Applicability of Norris-La Guardia Act and similar state statutes to injunction action by governmental unit or agency, 29 A.L.R.2d 431.

State's power to enjoin violation of collective labor contract as affected by federal labor relations acts, 32 A.L.R.2d 829.

State court's power to enjoin picketing as affected by Labor Management Relations Act, 32 A.L.R.2d 1026.

Amount of attorneys' compensation, 57 A.L.R.3d 475; 57 A.L.R.3d 550; 57 A.L.R.3d 584; 58 A.L.R.3d 201; 58 A.L.R.3d 317; 17 A.L.R.5th 366; 23 A.L.R.5th 241.

Procedural rights of union members in union disciplinary proceedings - modern state cases, 79 A.L.R.4th 941.

Excessiveness or adequacy of attorneys' fees in matters involving real estate - modern cases, 10 A.L.R.5th 448.

What circumstances are sufficient to warrant granting of injunctive relief under "boys market" exception to operation of anti-injunction provisions of Norris-LaGuerdia Act, 66 A.L.R. Fed. 11.

Calculations of attorneys' fees under Federal Tort Claims Act - 28 USCS § 2678, 86 A.L.R. Fed. 866.

34-6-28. Penalty for violations of Code Sections 34-6-24 through 34-6-26.

Any employer or labor organization and any person acting for an employer or labor organization who violates any of the provisions of Code Section 34-6-24, 34-6-25, or 34-6-26 shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished as provided in Code Section 17-10-3.

(Ga. L. 1947, p. 616, § 9.)

JUDICIAL DECISIONS

Penalties and remedies. - Neither the remedy of injunction provided in Ga. L. 1947, p. 616, § 8 (see now O.C.G.A. § 34-6-27 ) nor the declaration that certain acts in Ga. L. 1947, p. 616, § 9 (see now O.C.G.A. § 34-6-28 ) shall amount to a misdemeanor was made applicable to Ga. L. 1947, p. 616, § 2 (see now O.C.G.A. § 34-6-21 ). Sandt v. Mason, 208 Ga. 541 , 67 S.E.2d 767 (1951).

RESEARCH REFERENCES

ALR. - Deduction or collection of labor union dues from wages of employees, 135 A.L.R. 507 .

Interferences with production by concerted action of employees, short of formal strike, as affected by labor relations acts, 25 A.L.R.2d 315.

Rights and remedies of workmen blacklisted by labor union, 46 A.L.R.2d 1124.

Validity and construction of "right-to-work" laws, 92 A.L.R.2d 598.

CHAPTER 6A EQUAL EMPLOYMENT FOR PERSONS WITH DISABILITIES

Sec.

Editor's notes. - The intent of this chapter was expressed in Ga. L. 1981, p. 1803, § 1, as follows: "It is the intent of the General Assembly to guarantee to handicapped individuals the fullest participation in the social and economic life of the state and to guarantee their right to engage in remunerative employment. The right to lawful employment, without discrimination because of handicap, where the reasonable demands of the position do not require such a distinction, is hereby recognized as and declared to be the right of all the people of this state and it is the policy of this state to protect such rights."

Law reviews. - For annual eleventh circuit survey of employment discrimination, see 42 Mercer L. Rev. 1381 (1991). For survey of 1995 Eleventh Circuit cases on employment discrimination, see 47 Mercer L. Rev. 797 (1996). For note, "Employer Beware: Changing the Landscape of Employment Discrimination Claims at the Summary Judgment Stage," see 68 Mercer L. Rev. 1145 (2017).

RESEARCH REFERENCES

Discrimination Against the Obese, 36 POF2d 249.

Proof of Discriminatory Termination of HIV-Positive Employee, 26 POF3d 341.

Defense of Claim Under the Americans With Disabilities Act, 42 POF3d 1.

Employment Discrimination of the Basis of Mental Disability Under the Americans with Disabilities Act, 49 POF3d 1.

Employment Discrimination Action under Federal Civil Rights Acts, 21 Am. Jur. Trials 1.

Defense of Claim Brought Under the Americans with Disabilities Act, 49 Am. Jur. Trials 171.

Disability Discrimination Based on Dyslexia in Employment Actions Under the Americans with Disabilities Act, 74 Am. Jur. Trials 255.

ALR. - Accommodation requirement under state legislation forbidding job discrimination on account of handicap, 76 A.L.R.4th 310.

Handicap as job disqualification under state legislation forbidding job discrimination on account of handicap, 78 A.L.R.4th 265.

What constitutes handicap under state legislation forbidding job discrimination on account of handicap, 82 A.L.R.4th 26.

Employee's protection under § 15(a)(3) of Fair Labor Standards Act (29 USC § 215(a)(3)), 101 A.L.R. Fed. 220.

34-6A-1. Short title.

This chapter shall be known and may be cited as the "Georgia Equal Employment for Persons With Disabilities Code."

(Code 1933, § 66-501, enacted by Ga. L. 1981, p. 1803, § 2; Ga. L. 1995, p. 1302, § 4.)

Law reviews. - For survey of 1987 Eleventh Circuit cases on constitutional law - civil, see 39 Mercer L. Rev. 1169 (1988).

JUDICIAL DECISIONS

Cited in Humphreys v. Riverside Mfg. Co., 169 Ga. App. 18 , 311 S.E.2d 223 (1983); Johnson v. Kut Kwick Corp., 620 F. Supp. 748 (S.D. Ga. 1984); Veal v. Memorial Hosp., 894 F. Supp. 448 (M.D. Ga. 1995).

RESEARCH REFERENCES

ALR. - Visual impairment as handicap or disability under state employment discrimination law, 77 A.L.R.5th 595.

Who is "qualified individual" under Americans with Disabilities Act provisions defining and extending protection against employment discrimination to qualified individual with disability (42 U.S.C.A. §§ 12111(8), 12112(a)), 146 A.L.R. Fed. 1

What constitutes federal financial assistance for purposes of § 504 of Rehabilitation Act (29 U.S.C.A. § 794), which prohibits any program or activity receiving federal financial assistance from discriminating on basis of disability, 147 A.L.R. Fed. 205.

Action under Americans with Disabilities Act (42 U.S.C.A. § 12101 et seq.) to remedy alleged harassment or hostile work environment, 162 A.L.R. Fed. 603.

What constitutes employment discrimination by public entity in violation of Americans with Disabilities Act (ADA), 42 U.S.C.A. § 12132, 164 A.L.R. Fed. 433.

34-6A-2. Definitions.

As used in this chapter, the term:

  1. "Disability" means any condition or characteristic that renders a person an individual with disabilities but shall not include addiction to any drug or illegal or federally controlled substance nor addiction to the use of alcohol.
  2. "Employer" means a person or governmental unit or officer in this state having in his, her, or its employ 15 or more individuals or any person acting as an agent of an employer.
  3. "Individual with disabilities" means any person who has a physical or mental impairment which substantially limits one or more of such person's major life activities and who has a record of such impairment. The term "individual with disabilities" shall not include any person who is addicted to the use of any drug or illegal or federally controlled substance nor addiction to the use of alcohol.
  4. "Labor organization" means an organization of any kind; agents of such organization; an agency or employee representation committee, group, association, or plan in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours, or other terms or conditions of employment; or a conference, general committee, joint or system board, or joint council so engaged which is subordinate to a national or international labor organization.
  5. "Major life activities" means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.
  6. "Persons" means one or more individuals, partnerships, this state, municipalities or other political subdivisions within the state, associations, labor organizations, or corporations.
  7. "Physical or mental impairment" means:
    1. Any physiological disorder or condition or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, or endocrine; or
    2. Intellectual disabilities and specific learning disabilities.
  8. "Substantially limits" means that the impairment so affects a person as to create a likelihood that such person will experience difficulty in securing, retaining, or advancing in employment because of a disability.
  9. "Unfair employment practice" means an act that is prohibited under this chapter.

    (Code 1933, § 66-502, enacted by Ga. L. 1981, p. 1803, § 2; Ga. L. 1982, p. 3, § 34; Ga. L. 1995, p. 1302, § 4; Ga. L. 2015, p. 385, § 4-16/HB 252.)

The 2015 amendment, effective July 1, 2015, substituted "Intellectual disabilities" for "Mental retardation" at the beginning of subparagraph (7)(B).

Code Commission notes. - Pursuant to § 28-9-5 , in 1988, hyphens were deleted in paragraphs (2) and (3).

Editor's notes. - Ga. L. 2015, p. 385, § 1-1/HB 252, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'J. Calvin Hill, Jr., Act.' "

Ga. L. 2015, p. 385, § 4-16/HB 252, purported to amend this Code section by substituting "mental retardation" for "intellectual disabilities"; however, "intellectual" was capitalized due to appearing at the beginning of subparagraph (7)(B).

JUDICIAL DECISIONS

Handicapped individual illustrated. - Employee's sensitivity to pipe smoke of employer's vice president was not an impairment that affected the employee's ability generally to secure employment and the employee did not meet the definition of "handicapped individual" under O.C.G.A. § 34-6A-2 . Hennly v. Richardson, 264 Ga. 355 , 444 S.E.2d 317 (1994).

Claustrophobia and depression. - Trial court correctly concluded that the plaintiff's conditions of claustrophobia and depression did not constitute a "handicap" within the meaning of the Georgia Equal Employment for the Handicapped Code (GEEHC). The statute clearly and unambiguously manifests the General Assembly's intent to exclude emotional and mental disorders of that type from the coverage of the GEEHC by limiting the definition of mental impairment to any physiological disorder or condition or anatomical loss affecting certain body systems or mental retardation and specific learning disabilities. Bowers v. Estep, 204 Ga. App. 615 , 420 S.E.2d 336 , cert. denied, 204 Ga. App. 921 , 420 S.E.2d 336 (1992).

RESEARCH REFERENCES

ALR. - Who is "individual with handicaps" under Rehabilitation Act of 1973 (29 USCS §§ 701 et seq.), 97 A.L.R. Fed. 40.

34-6A-3. Inquiries by employer as to existence of disability; employment decisions based on disability.

  1. Nothing in this chapter shall be construed to prevent an employer from making any job related inquiry about the existence of the disability of an applicant for employment and about the extent to which that disability has been overcome by treatment, medication, appliances, or other rehabilitation.
  2. Nothing in this chapter shall be construed to prohibit the rejection of an applicant for employment on the basis of:
    1. A disability which interferes with a person's ability to perform assigned job duties adequately; or
    2. Any communicable disease, either carried by or afflicting the applicant.
  3. Nothing in this chapter shall be construed to prevent or otherwise make illegal any employment decision affecting any person where such decision is based upon an employer's good faith reliance upon a professional opinion rendered by a licensed physician, rehabilitation specialist, psychologist, physical therapist, dentist, or other similar licensed health care professional concerning that person.

    (Code 1933, § 66-503, enacted by Ga. L. 1981, p. 1803, § 2; Ga. L. 1995, p. 1302, § 4.)

Cross references. - Policy of state with regard to employment of the disabled by state or political subdivisions, § 30-1-2 .

Access to and use of public buildings and facilities by the handicapped, T. 30, C. 3.

JUDICIAL DECISIONS

Good faith. - Employer proved it acted in good faith when it relied on a doctor's opinion regarding a diabetic warehouse employee's ability to work, when the employer's affidavit stated that the decision to terminate the employee was not based on any personal animosity towards the employee but was made "only" out of concern for potential safety problems posed by the employee's medical condition. Spicer v. Martin-Brower Co., 177 Ga. App. 197 , 338 S.E.2d 773 (1985).

Employer may rely on licensed physician's professional recommendation. - Summary judgment for an employer was affirmed when the employer submitted evidence tending to establish without dispute both that its employment decision was made in reliance upon the professional recommendation of a licensed physician and that its preference of that physician's opinion over the contrary opinion of the employee's personal physician was based upon safety concerns rather than upon an unlawful, discriminatory motive. Daugherty v. Metropolitan Atlanta Rapid Transit Auth., 187 Ga. App. 864 , 371 S.E.2d 677 (1988).

RESEARCH REFERENCES

C.J.S. - 14 C.J.S., Civil Rights, §§ 109, 110.

ALR. - Construction and application of § 102(d) of Americans with Disabilities Act (42 U.S.C.A. § 12112(d)) pertaining to medical examinations and inquiries, 159 A.L.R. Fed. 89.

34-6A-4. Prohibited discriminatory activities.

  1. No employer shall fail or refuse to hire nor shall any employer discharge or discriminate against any individual with disabilities with respect to wages, rates of pay, hours, or other terms and conditions of employment because of such person's disability unless such disability restricts that individual's ability to engage in the particular job or occupation for which he or she is eligible; nor shall any employer limit, segregate, or classify individuals with disabilities in any way which would deprive or tend to deprive any individual with disabilities of employment opportunities or otherwise affect employee status because of such person's disability, unless such disability constitutes a bona fide and necessary reason for such limitation, segregation, or classification. This subsection shall not be construed to require any employer to modify his or her physical facilities or grounds in any way or exercise a higher degree of caution for an individual with disabilities than for any person who is not an individual with disabilities, nor shall this subsection be construed to prohibit otherwise lawful employment practices or requirements merely because such practices or requirements affect a greater proportion of individuals with disabilities than individuals without disabilities within the area from which the employer customarily hires his or her employees.
  2. No employment agency, placement service, training school or center, or labor organization shall fail or refuse to refer for employment or otherwise discriminate against individuals because of their disability.
  3. No labor organization shall exclude or expel from its membership or otherwise discriminate against individuals because of their disability; nor shall a labor organization limit, segregate, or classify its membership or classify or fail or refuse to refer for employment any individual with disabilities in any way which would deprive or tend to deprive any individual with disabilities of employment opportunities, would otherwise affect such person's employee status or employment applicant status, or would adversely affect such person's wages, hours, or conditions of employment because of such person's disability.
  4. No employer, labor organization, or joint labor-management committee controlling apprenticeship programs or other training or retraining, including on-the-job training programs, shall discriminate against any individual because of such individual's disability, in the admission to or the employment in any program established to provide apprenticeship or other training.
  5. It is discrimination for an employer to print or publish or cause to be printed or published a notice or advertisement relating to employment by such employer, which advertisement or notice indicates any preference, limitation, specification, or discrimination based on disability, except that such a notice or advertisement may indicate a limitation or specification based upon disability if the criteria is job related.

    (Code 1933, § 66-504, enacted by Ga. L. 1981, p. 1803, § 2; Ga. L. 1989, p. 14, § 34; Ga. L. 1995, p. 1302, § 4.)

Cross references. - Policy of state with regard to employment of the disabled by state or political subdivisions, § 30-1-2 .

Access to and use of public buildings and facilities by the handicapped, T. 30, C. 3.

Code Commission notes. - Pursuant to § 28-9-5 , in 1989, "opportunities" was substituted for "opportunties" in subsection (c).

JUDICIAL DECISIONS

Opportunity by employee to select job. - O.C.G.A. § 34-6A-4 does not impose on an employer a duty to provide a handicapped employee with the opportunity to select a job which the employee would be able to perform. Dugger v. Delta Air Lines, 173 Ga. App. 16 , 325 S.E.2d 394 (1984), cert. denied, 471 U.S. 1103, 105 S. Ct. 2330 , 85 L. Ed. 2 d 847 (1985).

Rebuttal of presumption of unlawful discrimination. - Presumption of discrimination arising from a handicapped employee's prima facie case of disparate treatment is rebutted when the employer proffers nondiscriminatory reasons for an employment decision; therefore, an employee is not entitled to a verdict as a matter of law simply by establishing a prima facie case, but must prove that a proffered reason is not the true reason for an employment decision. Shaw v. W.M. Wrigley, Jr., Co., 183 Ga. App. 699 , 359 S.E.2d 723 (1987).

Cited in Garrett v. K-Mart Corp., 197 Ga. App. 374 , 398 S.E.2d 302 (1990).

RESEARCH REFERENCES

C.J.S. - 14 C.J.S., Civil Rights, §§ 92, 98, 108.

ALR. - Handicap as job disqualification under state legislation forbidding job discrimination on account of handicap, 78 A.L.R.4th 265.

Discrimination "because of handicap" or "on the basis of handicap" under state statutes prohibiting job discrimination on account of handicap, 81 A.L.R.4th 144.

Visual impairment as handicap or disability under state employment discrimination law, 77 A.L.R.5th 595.

When must specialized equipment or other workplace modifications be provided to qualified disabled employee or applicant as reasonable accommodation, 125 A.L.R. Fed. 629.

When must employer offer qualified disabled employee or applicant opportunity to change employee's workplace or work at home as means of fulfilling reasonable accommodation requirement, 133 A.L.R. Fed. 521.

When does job restructuring constitute reasonable accommodation of qualified disabled employee or applicant, 142 A.L.R. Fed 311.

Who is "qualified individual" under Americans with Disabilities Act provisions defining and extending protection against employment discrimination to qualified individual with disability (42 U.S.C.A. §§ 12111(8), 12112(a)), 146 A.L.R. Fed. 1

When is individual regarded as having or perceived to have, impairment within meaning of Americans with Disabilities Act (42 U.S.C.A. § 12102(2)(c)), 148 A.L.R. Fed. 305.

Propriety of treating separate entities as one for determining number of employees required by Title VII of Civil Rights Act of 1964 (42 U.S.C.A. § 2000e(b)) for action against "employer", 160 A.L.R. Fed. 441.

Action under Americans with Disabilities Act (42 U.S.C.A. §§ 12101 et seq.), to remedy alleged harassment or hostile work environment, 162 A.L.R. Fed. 603.

What constitutes employment discrimination by public entity in violation of Americans with Disabilities Act (ADA), 42 U.S.C.A. § 12132, 164 A.L.R. Fed. 433.

Validity, construction, and application of Americans with Disabilities Act (42 U.S.C.A. § 12112(b)(5)(A)) and Rehabilitation Act (29 U.S.C.A. § 791) reasonable accommodation requirements to employee's request to work from home or to change location of employment, 77 A.L.R. Fed. 2d 187.

34-6A-5. Retaliation by employers against employees; labor organization members.

No employer shall discharge, expel, refuse to hire, or otherwise discriminate against any person or applicant for employment because such person has opposed any practice made an unfair employment practice by this chapter or because such person has filed a charge, testified, assisted, or participated in any manner in an investigation, action, proceeding, or hearing under this chapter; nor shall any employment agency discriminate against any person; nor shall a labor organization discriminate against any member or applicant for membership for such reasons.

(Code 1933, § 66-505, enacted by Ga. L. 1981, p. 1803, § 2; Ga. L. 1995, p. 1302, § 4.)

RESEARCH REFERENCES

C.J.S. - 14 C.J.S., Civil Rights, §§ 92, 98, 108.

ALR. - Who has "participated" in investigation proceeding or hearing and is thereby protected from retaliation under § 704(a) of Title VII of Civil Rights Act of 1964 (42 U.S.C.A. § 2000e-3(a)), 149 A.L.R. Fed. 431.

34-6A-6. Actions against persons engaged in unfair employment practices; remedies, court costs, and attorneys' fees.

  1. Any individual with disabilities who is aggrieved by an unfair employment practice against such individual may institute a civil action against the persons engaged in such prohibited conduct. Such action may be brought in any court of record in this state having jurisdiction over the defendant and shall be brought within 180 days after the alleged prohibited conduct occurred. However, no person shall be a party plaintiff to any such action unless such person gives his or her consent in writing and such consent is filed with the court in which the action is brought.
  2. The court may grant as relief, as it deems appropriate, any permanent or temporary injunction, temporary restraining order, or other order, including but not limited to hiring, reinstatement, or upgrading of employees; admission or restoration of the aggrieved individual to union membership; admission to or participation in a guidance program, apprenticeship training program, on-the-job training program, or other occupational training or retraining program; and the utilization of training related criteria in the admission of individuals to such training programs and job related criteria for employment. The court may award to the plaintiff back pay. The court may award court costs and reasonable attorneys' fees to the prevailing party.

    (Code 1933, § 66-506, enacted by Ga. L. 1981, p. 1803, § 2; Ga. L. 1995, p. 1302, § 4.)

JUDICIAL DECISIONS

Application to claims under federal statute. - Although the specific claim of alleged wrongful termination for being HIV positive was one of employment discrimination to which O.C.G.A. § 34-6A-6(a) would have applied, the federal characterization of claims brought under 29 U.S.C. § 794 as "injuries to the person" makes O.C.G.A. § 9-3-33 , the statute of limitations for personal injury, the most analogous. Henrickson v. Sammons, 263 Ga. 331 , 434 S.E.2d 51 (1993).

Action filed more than 180 days after firing untimely. - Employee's filing of an action to recover damages for being terminated as a result of a handicap was untimely because it was not filed within 180 days of the date the employee was given oral notice of the employee's termination although the written notice was not received by mail until later. Humphreys v. Riverside Mfg. Co., 169 Ga. App. 18 , 311 S.E.2d 223 (1983).

Employee's complaint filed 182 days after the refusal of the employer to accept the employee back to work following an AIDS related illness was properly dismissed because it was time barred. Beck v. Interstate Brands Corp., 953 F.2d 1275 (11th Cir. 1992).

Dismissed employee had no constitutional right to trial by jury on the employee's claim for back pay under O.C.G.A. Ch. 6A, T. 34. Smith v. Milliken & Co., 189 Ga. App. 897 , 377 S.E.2d 916 (1989).

Failure to comply with company policy regarding absence from work. - That handicapped employees may be expected to have more medically-related work absences than non-handicapped employees was no excuse for a handicapped employee's failure to have complied with a company policy requiring that all employees, as a condition of their continued employment, keep their employer currently informed as to an absence from work. Kut-Kwick Corp. v. Johnson, 189 Ga. App. 500 , 376 S.E.2d 399 (1988), cert. denied, 189 Ga. App. 912 , 376 S.E.2d 399 (1989).

Assignment of a visually impaired teacher to a school more distant than the one to which the teacher had been assigned previously did not violate O.C.G.A. Ch. 6A, T. 34, when the teacher produced no evidence to show the teacher was treated any differently from any able-bodied employee and the teacher testified to being unwilling to move from the teacher's apartment to one closer to the teacher's new school and that the teacher would not consider taking public transportation. Allen v. Bergman, 198 Ga. App. 57 , 400 S.E.2d 347 (1990), cert. denied, 198 Ga. App. 897 , 400 S.E.2d 347 (1991).

Cited in Veal v. Memorial Hosp., 894 F. Supp. 448 (M.D. Ga. 1995).

RESEARCH REFERENCES

C.J.S. - 14A C.J.S., Civil Rights, § 722 et seq.

ALR. - Award of front pay under state job discrimination statutes, 74 A.L.R.4th 746.

Damages and other relief under state legislation forbidding job discrimination on account of handicap, 78 A.L.R.4th 435.

Right to jury trial in action under state civil rights law, 12 A.L.R.5th 508.

Individual liability of supervisors, managers, officers or co-employees for discriminatory actions under state Civil Rights Act, 83 A.L.R.5th 1.

Right of prevailing plaintiffs to recover attorneys' fees under § 706(k) of Civil Rights Act of 1964 (42 U.S.C.S. § 2000e5(k)), 132 A.L.R. Fed. 345.

Right of prevailing defendant to recover attorney's fees under § 706(k) of Civil Rights Act of 1964 (42 U.S.C.S. § 2000e-5 (k)), 134 A.L.R. Fed 161.

Reductions to back pay awards under Title VII of Civil Rights Act of 1964 (42 U.S.C.S. § 2000e et seq.), 135 A.L.R. Fed 1.

Period of time covered by back pay award under Title VII of Civil Rights Act of 1964 (42 U.S.C.S. § 2000e et seq.), 137 A.L.R. Fed 1.

Allowance and rates of interest on backpay award under Title VII of Civil Rights Act of 1964 (42 U.S.C.S. § 2000e et seq.), 138 A.L.R. Fed 1.

Factors or conditions in employment discrimination cases said to justify increase in attorney's fees awarded under § 706(k) of Civil Rights Act of 1964 (42 U.S.C.S. § 2000e-5(k)), 140 A.L.R. Fed 301; 151 A.L.R. Fed. 77.

Availability of nominal damages in action under Title VII of Civil Rights Act of 1964 (42 U.S.C.S. § 2000e et seq.), 143 A.L.R. Fed. 269.

Availability of damages under § 504 of the Rehabilitation Act (29 U.S.C.A. § 794) in actions against persons or entities other than federal government or agencies thereof, 145 A.L.R. Fed. 353.

Additions to back pay awards under Title VII of Civil Rights Act of 1964 (42 U.S.C.A. § 2000e et seq.), 146 A.L.R. Fed. 403.

Punitive damages in actions for violations of Title VII of the Civil Rights Act of 1964 (42 U.S.C.A. § 1981a; 42 U.S.C.A. § 2000e et seq.), 150 A.L.R. Fed. 601.

Award of compensatory damages under 42 U.S.C.A. § 1981a for violation of Title VII of Civil Rights Act of 1964, 154 A.L.R. Fed. 347.

Propriety of treating separate entities as one for determining number of employees required by Title VII of Civil Rights Act of 1964 (42 U.S.C.A. § 2000e(b)) for action against "employer", 160 A.L.R. Fed. 441.

CHAPTER 7 EMPLOYMENT GENERALLY; EMPLOYER'S LIABILITY

General Provisions.

W AGES GENERALLY .

P ROFESSIONAL EMPLOYER ORGANIZATIONS .

Employer's Liability for Injuries Generally.

Employer's Liability for Injuries to Railroad Employees.

Cross references. - Employer's duty to keep records, § 34-2-11 .

RESEARCH REFERENCES

ALR. - Vacation and sick pay and other fringe benefits as within mechanic's lien statute, 20 A.L.R.4th 1268.

Employee's protection under § 15(a)(3) of Fair Labor Standards Act (29 USC § 215(a)(3)), 101 A.L.R. Fed. 220.

Pre-emption, by § 301(a) of Labor-Management Relations Act of 1947 (29 USC § 185(a)), of employee's state-law action for infliction of emotional distress, 101 A.L.R. Fed. 395.

ARTICLE 1 GENERAL PROVISIONS

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2017, the Part 1 and Part 2 designations were added in this article.

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Basis of master/servant relationship. - Relationship of master and servant arises out of a contract of employment expressed or implied between a master or employer upon the one hand, and the servant upon the other hand. Small v. Nu Grape Co. of Am., 46 Ga. App. 306 , 167 S.E. 607 (1933).

Characteristics of masters. - Master has a superior choice, control, and direction of the servant, and whose will the servant represents not merely in the ultimate results of the work but in the details. Small v. Nu Grape Co. of Am., 46 Ga. App. 306 , 167 S.E. 607 (1933).

Characteristics of servants. - Servant is a person employed to labor for the pleasure or the interest of another. Small v. Nu Grape Co. of Am., 46 Ga. App. 306 , 167 S.E. 607 (1933).

Work of servant generally related to manual service. - Agency relates to business transactions, while the work of a servant relates to manual service. Headrick v. Fordham, 154 Ga. App. 415 , 268 S.E.2d 753 (1980).

Test to determine relationship of parties. - Charge of the court to the jury to the effect that, if a used car lot owner retained the right to direct or control the time or manner of executing the work of a salesman and had the right to discharge the salesman and to determine at any time the arrangement between them, their relationship would be that of employer and employee or that of master and servant; but that, if the dealer did not have these rights, then the relationship between the dealer and the salesman would be another relationship, "such as the relationship of independent contractor and principal," was an accurate statement of the law. Hamilton v. Pulaski County, 86 Ga. App. 705 , 72 S.E.2d 487 (1952).

Crucial test to be applied in determining whether the relationship of the parties under a contract for the performance of labor is that of master and servant, or that of employer and independent contractor, lies in whether the contract gives, or the employer assumes, the right to control the time, manner and method of executing the work, as distinguished from the right merely to require certain definite results in conformity to the contract. Federated Mut. Implement & Hdwe. Ins. Co. v. Elliott, 88 Ga. App. 266 , 76 S.E.2d 568 (1953).

Specialization. - Specialization alone is not an infallible test in determining whether one is a servant or an independent contractor. Federated Mut. Implement & Hdwe. Ins. Co. v. Elliott, 88 Ga. App. 266 , 76 S.E.2d 568 (1953).

Servant's Detour from Duties

Servant's detour and return. - Although a servant may have made a temporary departure from the service of a master, and in so doing may for the time have severed the relationship of master and servant, yet, when the object of the servant's departure has been accomplished and the servant has resumed the discharge of the duties to the master, the responsibility of the master for the acts of the servant reattaches. Atlanta Furn. Co. v. Walker, 51 Ga. App. 781 , 181 S.E. 498 (1935).

If a servant whose duty is to drive a truck and to make delivery of an article of merchandise at a designated place makes a temporary departure from the service of a master on a mission of the servant's own, but resumes the servant's duties and has a wreck, the servant's negligence is the negligence of the master. Atlanta Furn. Co. v. Walker, 51 Ga. App. 781 , 181 S.E. 498 (1935).

Employee's Rights After Termination of Employment

Competition with former employer. - After termination of employment, an employee normally is free to engage in competition with a former employer and to solicit the employer's customers, in the absence of an agreement to the contrary. Southeast Consultants, Inc. v. McCrary Eng'r Corp., 246 Ga. 503 , 273 S.E.2d 112 (1980).

Person may take skill, knowledge, and information. - Person who leaves the employment of another has a right to take with the person all the skill the person has acquired, all the knowledge the person has obtained, and all the information that the person has received, so long as nothing is taken that is the property of the employer. Southeast Consultants, Inc. v. McCrary Eng'r Corp., 246 Ga. 503 , 273 S.E.2d 112 (1980).

Employer's property. - Trade secrets are the property of the employer and cannot be taken or used by the employee for the employee's own benefit, but knowledge on the part of the employee concerning the names and addresses of customers is not the property of the employer. Southeast Consultants, Inc. v. McCrary Eng'r Corp., 246 Ga. 503 , 273 S.E.2d 112 (1980).

RESEARCH REFERENCES

ALR. - Distribution of employees' relief fund on discontinuance of business or dissolution, 1 A.L.R. 629 .

Master's responsibility for injury to or death of servant during labor dispute, 1 A.L.R. 673 .

Wrongful discharge of servant - doctrine of "constructive service," 8 A.L.R. 338 ; 17 A.L.R. 629 .

Validity and enforceability of restrictive covenants in contracts of employment, 9 A.L.R. 1456 ; 20 A.L.R. 861 ; 29 A.L.R. 1331 ; 52 A.L.R. 1362 ; 67 A.L.R. 1002 ; 98 A.L.R. 963 .

Employer's right to earnings or profits made by employee, 13 A.L.R. 905 ; 71 A.L.R. 933 .

Liability of master for injury to one whom servant, in violation of instructions, permits to ride on vehicle, 14 A.L.R. 145 ; 62 A.L.R. 1167 ; 74 A.L.R. 163 .

Statute prescribing damages for forcibly ejecting or excluding one from possession of real property as applying to possession held by one as servant or employee, 14 A.L.R. 808 .

Right to inventions as between employer and employee, 16 A.L.R. 1177 ; 32 A.L.R. 1027 ; 44 A.L.R. 593 ; 85 A.L.R. 1512 ; 153 A.L.R. 983 ; 61 A.L.R.2d 356.

Liability of employer for injuries inflicted by automobile while being driven by or for salesman or collector, 17 A.L.R. 621 ; 29 A.L.R. 470 ; 54 A.L.R. 627 ; 107 A.L.R. 419 .

General discussion of the nature of the relationship of employer and independent contractor, 19 A.L.R. 226 .

Circumstances under which the existence of the relationship of employer and independent contractor is predicable, 19 A.L.R. 1168 .

Right of employee to bonus as affected by termination of employment before bonus becomes payable, 28 A.L.R. 346 .

Liability of employer for acts or omissions of independent contractor in respect of positive duties of former arising from or incidental to contractual relationships, 29 A.L.R. 736 .

Implied promise of employer to pay royalty for use of patented article invented by employee, 32 A.L.R. 1045 .

Nature and extent of master's duty under contract to furnish medical aid to servant, 33 A.L.R. 1191 .

Workmen's Compensation Act as affecting master's duty and liability under contract to furnish medical treatment to employees, 33 A.L.R. 1204 .

One doing work under a cost plus contract as an independent contractor, or a servant or an agent, 55 A.L.R. 291 .

One in general employment of contractee, but who at time of accident was assisting or cooperating with, an independent contractor, as employee of former or latter for the time, 55 A.L.R. 1263 .

Liability for refusal to give, or because of reasons assigned in, clearance card, service letter, or other statement of reasons for termination of employment, 57 A.L.R. 1073 .

Salesman employed on a percentage or commission basis as a servant or an independent contractor, 61 A.L.R. 223 .

Constitutionality of statute relating to purchase of capital stock by employees of corporation, 63 A.L.R. 841 .

One transporting children to or from school as independent contractor, 66 A.L.R. 724 .

Employer's right to earnings or profits made by employee, 71 A.L.R. 933 .

Employer's offer to take back employee wrongfully discharged as affecting former's liability, 72 A.L.R. 1049 .

Right of employer to have former employee deliver up information obtained during the employment, 93 A.L.R. 1323 .

Rights and liabilities with respect to private pensions as between employer and employee, 96 A.L.R. 1093 .

Relationship of employer and employee between parties to contract not relating to employment itself, as creating presumption of fraud, 100 A.L.R. 875 .

Employee's or agent's acceptance of bonus, gratuity, or other personal benefit from one with whom he deals on employer's or principal's account as affecting his right to recover wages, salary, or commissions, 102 A.L.R. 1115 .

When cause of action between master and servant deemed to be upon a liability created by statute within contemplation of statute of limitations, 104 A.L.R. 462 .

Oral contract of employment terminable by either party at will as within statute of frauds relating to contracts not to be performed within year, 104 A.L.R. 1006 .

Grounds for discharge of servant or agent existing during lifetime of employer, but unknown to him, as available to his executor or administrator, 109 A.L.R. 474 .

One soliciting subscriptions for newspaper, magazine, or book, on commission basis as an independent contractor or employee, 126 A.L.R. 1120 .

Status as employee or servant as affected by misrepresentations in obtaining employment, 136 A.L.R. 1124 .

Provision of Fair Labor Standards Act for increased compensation for overtime, 140 A.L.R. 1263 ; 152 A.L.R. 1030 ; 169 A.L.R. 1307 .

Bylaw of corporation authorizing removal of officer, agent, or employee at any time, as affecting contract of employment for a specified period, 145 A.L.R. 312 .

Application and effect of "shop right rule" or license giving employer limited rights in employees' inventions and discoveries, 61 A.L.R.2d 356.

Construction and application of provision of contract for compensation of employee upon dismissal or discharge, 147 A.L.R. 151 ; 40 A.L.R.2d 1044.

Validity of statute or regulation in respect of tips, 147 A.L.R. 1039 .

Constitutionality, construction, and application of statutes prohibiting agreements to refund wages under employment contracts ("kickback" agreements), 149 A.L.R. 495 .

Enforceability of restrictive covenant, ancillary to employment contract, as affected by duration of restriction, 41 A.L.R.2d 15.

Pleading mitigation of damages, or the like, in employee's action for breach of employment contract, 41 A.L.R.2d 955.

Eviction of employee or threat thereof from housing furnished by employer as constituting unlawful coercion or unfair labor practice, 48 A.L.R.2d 995.

Right of employer, liable for wrongful discharge or retirement, to reduce or mitigate damages by amount of social security or retirement benefits received by employee, 48 A.L.R.2d 1293.

Assignability of statutory claim against employer for nonpayment of wages, 48 A.L.R.2d 1385.

Application and effect of "shop right rule" or license giving employer limited rights in employees' inventions and discoveries, 61 A.L.R.2d 356.

Liability of employer for agreed advances or drawing account which exceed commissions or share of profits earned, 95 A.L.R.2d 504.

Provision in employment contract requiring written notice before instituting action, 4 A.L.R.3d 439.

Pre-employment conduct as ground for discharge of civil service employee having permanent status, 4 A.L.R.3d 488.

Who is "employee" under employee stock-option plan or contract, 57 A.L.R.3d 787.

Validity and construction of contractual restrictions on right of medical practitioner to practice, incident to employment agreement, 62 A.L.R.3d 1014.

Liability of member of unincorporated association for tortious acts of association's nonmember agent or employee, 62 A.L.R.3d 1165.

Reduction in rank or authority or change of duties as breach of employment contract, 63 A.L.R.3d 539.

Liability of charitable organization under respondeat superior doctrine for tort of unpaid volunteer, 82 A.L.R.3d 1213.

Exchange of labor by farmers as creating employment relationship for liability insurance purposes, 89 A.L.R.3d 834.

Vacation pay rights of private employees not covered by collective labor contract, 33 A.L.R.4th 264.

Sufficiency of notice of modification in terms of compensation of at-will employee who continues performance to bind employee, 69 A.L.R.4th 1145.

PART 1 W AGES GENERALLY

34-7-1. Determination of term of employment; manner of termination of indefinite hiring.

If a contract of employment provides that wages are payable at a stipulated period, the presumption shall arise that the hiring is for such period, provided that, if anything else in the contract indicates that the hiring was for a longer term, the mere reservation of wages for a lesser time will not control. An indefinite hiring may be terminated at will by either party.

(Civil Code 1895, § 2614; Civil Code 1910, § 3133; Code 1933, § 66-101.)

History of section. - This section is derived from the decision in Magarahan v. Wright, 83 Ga. 773 , 10 S.E. 584 (1889).

Law reviews. - For survey article on contracts - Employment at Will, see 34 Mercer L. Rev. 86 (1982). For article, "The Decline of Assent: At-Will Employment As a Case Study of the Breakdown of Private Law Theory," see 20 Ga. L. Rev. 323 (1986). For annual survey of law of torts, see 38 Mercer L. Rev. 351 (1986). For annual survey of workers' compensation, see 38 Mercer L. Rev. 431 (1986). For article, "'Sometime the Road Less Traveled is Less Traveled for a Reason': The Need For Change in Georgia's Employment-at-Will Doctrine and Refusal to Adopt the Public Policy Exception," see 35 Ga. L. Rev. 1021 (2001). For article, "Labor and Employment Law," see 53 Mercer L. Rev. 349 (2001). For survey article on labor and employment law for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 303 (2003). For annual survey of labor and employment law, see 56 Mercer L. Rev. 291 (2004). For annual survey of labor and employment law, see 57 Mercer L. Rev. 251 (2005). For annual survey of labor and employment law, see 58 Mercer L. Rev. 211 (2006). For survey article on labor and employment law, see 59 Mercer L. Rev. 233 (2007). For survey article on labor and employment law, see 60 Mercer L. Rev. 217 (2008). For annual survey of labor and employment law, see 61 Mercer L. Rev. 213 (2009). For article, "The Public Policy Exception to Employment At-Will: Time to Retire a Noble Warrior?," see 61 Mercer L. Rev. 551 (2010). For annual survey of law on labor and employment law, see 62 Mercer L. Rev. 181 (2010). For annual survey on labor and employment law, see 64 Mercer L. Rev. 173 (2012). For article, "Employment Discrimination," see 64 Mercer L. Rev. 891 (2013). For annual survey on labor and employment law, see 65 Mercer L. Rev. 157 (2013). For annual survey on labor and employment law, see 66 Mercer L. Rev. 121 (2014). For annual survey on labor and employment law, see 67 Mercer L. Rev. 91 (2015). For annual survey on labor and employment law, see 69 Mercer L. Rev. 141 (2017).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Employment for indefinite period is terminable at will of either party. - Employee under a contract of hiring indefinite in its duration may lawfully be discharged at the will of an employer with no cause of action for breach of contract. Lambert v. Georgia Power Co., 181 Ga. 624 , 183 S.E. 814 (1936); Snyder v. Savannah Union Station Co., 85 Ga. App. 851 , 70 S.E.2d 382 (1952).

Indefinite hiring may be terminated at will by either party, and a rule of the employer that an employee will be discharged if the employee's wages are garnished by a creditor does not alter the situation. Elliott v. Delta Air Lines, 116 Ga. App. 36 , 156 S.E.2d 656 (1967).

In the absence of a controlling contract between the parties, employment for an indefinite period - a "permanent job" - is terminable at the will of either party, and a discharge in such circumstances affords no cause of action for breach of contract. Land v. Delta Air Lines, 130 Ga. App. 321 , 203 S.E.2d 316 (1973).

Contract for permanent employment is a contract to continue indefinitely, and is terminable at any time by either of the parties. Ely v. Stratoflex, Inc., 132 Ga. App. 569 , 208 S.E.2d 583 (1974).

Executory contract of service for no fixed period of time is obviously too indefinite to be capable of enforcement, and it is only by a fiction that the courts are enabled to hold that an engagement at a fixed salary per month, but with no stipulation as to its duration, is a legally binding contract for one month's employment at the agreed wage; but the employment, after the expiration of the first month, being indefinite as to its duration, may be terminated at the will of either party. Floyd v. Lamar Ferrell Chevrolet, Inc., 159 Ga. App. 756 , 285 S.E.2d 218 (1981).

Indefinite hiring may be terminated at will by either party, with or without cause, and there is no cause of action against an employer for an alleged wrongful termination. Meeks v. Pfizer, Inc., 166 Ga. App. 815 , 305 S.E.2d 497 (1983); Stanford v. Paul W. Heard & Co., 240 Ga. App. 869 , 525 S.E.2d 419 (1999).

In Georgia, an "at will" employee may be removed with or without cause, and regardless of motive. Morast v. Lance, 631 F. Supp. 474 (N.D. Ga. 1986), aff'd, 807 F.2d 926 (11th Cir. 1987).

No executory obligations are created. - If the contract in a dispute over failure to promote on basis of seniority was for an indefinite term and was terminable at will, no claim for failure to promote can be maintained as it is the general rule that a hiring indefinite as to time is terminable at the will of either party and creates no executory obligations. Murphine v. Hospital Auth., 151 Ga. App. 722 , 261 S.E.2d 457 (1979).

Ante litem notice not required for suit under Whistleblower Act. - City employee who filed suit under the Georgia Whistleblower Act, O.C.G.A. § 45-1-4 , seeking money damages, among other remedies, was not required to provide written notice of the employee's claim within six months of the alleged retaliation under the municipal ante litem notice statute, O.C.G.A. § 36-33-5 , because the claim was not a negligence claim. West v. City of Albany, 300 Ga. 743 , 797 S.E.2d 809 (2017).

Effect of procedural default. - By deeming claims of wrongful termination and slander as admitted due to a defendant's default in the action for failing to answer, a trial court erred by precluding the defendant from offering evidence to contradict those claims at a hearing on damages since the well-pled allegations of the complaint failed to establish that the plaintiff was anything other than an at-will employee, as no employment contract was alleged; therefore, the plaintiff's complaint failed to state a claim for wrongful termination. Fink v. Dodd, 286 Ga. App. 363 , 649 S.E.2d 359 (2007).

If no terms of contract of employment are set out, the petition must be construed as alleging that the employee was working under a contract terminable at the will of the employer. Elliott v. Delta Air Lines, 116 Ga. App. 36 , 156 S.E.2d 656 (1967).

Oral contract for indefinite period. - Oral contract of employment for an indefinite period of time is terminable at will and is not inhibited by the statute of frauds. Guinn v. Conwood Corp., 185 Ga. App. 41 , 363 S.E.2d 271 (1987), cert. denied, 185 Ga. App. 910 , 363 S.E.2d 271 (1988).

Oral executory promises relating to an employment contract for an indefinite period could not be enforced because the underlying employment contract, being terminable at will, was unenforceable. Marshall v. W.E. Marshall, 189 Ga. App. 510 , 376 S.E.2d 393 (1988), cert. denied, 189 Ga. App. 913 , 376 S.E.2d 393 (1989).

There was no exception to this section. Goodroe v. Georgia Power Co., 148 Ga. App. 193 , 251 S.E.2d 51 (1978).

"Franchised contractual relationship," when it consists of an oral agreement for an indefinite period, is terminable at will. Arford v. Blalock, 199 Ga. App. 434 , 405 S.E.2d 698 (1991), cert. denied, 199 Ga. App. 906 , 405 S.E.2d 698 (1991), aff'd sub nom., Wilensky v. Blalock, 262 Ga. 95 , 414 S.E.2d 1 (1992), overruled on other grounds Jordan v. Moses, 291 Ga. 39 , 727 S.E.2d 460 (2012).

Section was inapplicable and did not bar a chief executive officer's (CEO) breach of fiduciary duty claim as the CEO had a contract for a definite term. Tidikis v. Network for Med. Communs. & Research, LLC, 274 Ga. App. 807 , 619 S.E.2d 481 (2005).

If employment contract unenforceable, fraud claim inapplicable. - Although fraud may not generally be predicated on statements which are promissory in nature as to future acts or events, it can be predicated on such representations when there is a present intention not to perform or a present knowledge that the future event will not occur, but such an exception has no application when the promises upon which the plaintiff relies for establishing fraud are unenforceable because the underlying employment contract, being terminable at will, is unenforceable. Taylor v. Amisub, Inc., 186 Ga. App. 834 , 368 S.E.2d 791 (1988).

Executive promises pertaining to employment unenforceable. - Employee whose employment was for an indefinite term, and for that reason was terminable at the will of the employer, had no cause of action for the employer's alleged failure to honor the terms of the employee's employment contract under the doctrine of promissory estoppel. The doctrine of promissory estoppel codified at O.C.G.A. § 13-3-44(a) has no application to enforce executory promises pertaining to employment for an indefinite term. Also, any promises upon which the employee relied to show misrepresentation were unenforceable because the employee's underlying employment contract, being terminable at will, was unenforceable. Johnson v. Metropolitan Atlanta Rapid Transit Auth., 207 Ga. App. 869 , 429 S.E.2d 285 (1993).

Property interest. - At-will employee typically does not have a reasonable expectation of continued employment sufficient to form a protectable property interest. However, a property interest does arise whenever a public employee can be terminated only for cause. Wofford v. Glynn Brunswick Mem. Hosp., 864 F.2d 117 (11th Cir. 1989); Nolin v. Douglas County, 903 F.2d 1546 (11th Cir. 1990), overruled on other grounds, 32 F.3d 1521 (11th Cir. 1994), overruled in part on other grounds, McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994), cert. denied, McKinney v. Osceola County Bd. of County Comm'rs, 513 U.S. 1110, 115 S. Ct. 898 , 130 L. Ed. 2 d 783 (1995).

Deputy sheriffs in a county that had not adopted a civil service program were employees at will and lacked a property interest in their employment. Zimmerman v. Cherokee County, 925 F. Supp. 777 (N.D. Ga. 1995).

Employees of federal credit unions are not public employees within the meaning of O.C.G.A. § 34-7-1 . Robins Fed. Credit Union v. Brand, 234 Ga. App. 519 , 507 S.E.2d 185 (1998).

Age discrimination. - At-will employee may not sue in tort under O.C.G.A. § 51-1-6 or § 51-1-8 for wrongful discharge based upon age discrimination. Reilly v. Alcan Aluminum Corp., 272 Ga. 279 , 528 S.E.2d 238 (2000).

Provisions of O.C.G.A. §§ 51-1-6 and 51-1-8 do not create a civil action for age discrimination for an employee-at-will based upon a violation of either O.C.G.A. § 34-1-2 or the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. Reilly v. Alcan Aluminum Corp., 221 F.3d 1170 (11th Cir. 2000).

Summary judgment. - Whether employment contract was created is genuine issue of material fact which would make the grant of summary judgment erroneous under O.C.G.A. § 34-7-1 . Floyd v. Lamar Ferrell Chevrolet, Inc., 159 Ga. App. 756 , 285 S.E.2d 218 (1981).

Cited in Odom v. Bush, 125 Ga. 184 , 53 S.E. 1013 (1906); Bentley v. Smith, 3 Ga. App. 242 , 59 S.E. 720 (1907); Phillips Lumber Co. v. Smith, 7 Ga. App. 222 , 66 S.E. 623 (1909); Webb v. McCranie, 12 Ga. App. 269 , 77 S.E. 175 (1913); Foundation Co. v. Brannen, 25 Ga. App. 120 , 102 S.E. 833 (1920); Davidson v. Citizens' Bank & Trust, 46 Ga. App. 78 , 166 S.E. 775 (1932); Smith v. Chicopee Mfg. Corp., 56 Ga. App. 294 , 192 S.E. 481 (1937); Bailey v. Nashville, Chattanooga & St. Louis Ry., 60 Ga. App. 142 , 3 S.E.2d 112 (1939); Crow v. Southern Ry., 66 Ga. App. 608 , 18 S.E.2d 690 (1942); Fellton v. Orkin Exterminating Co., 92 Ga. App. 186 , 88 S.E.2d 463 (1955); Campbell v. Carroll, 121 Ga. App. 497 , 174 S.E.2d 375 (1970); Alexander-Seewald Co. v. Questa, 121 Ga. App. 611 , 175 S.E.2d 92 (1970); Stegall v. S.S. Kresge Co., 128 Ga. App. 679 , 197 S.E.2d 737 (1973); Lowe v. Royal Crown Cola Co., 132 Ga. App. 37 , 207 S.E.2d 620 (1974); Kingsbury v. Exxon Co., U.S.A., 136 Ga. App. 146 , 220 S.E.2d 481 (1975); Rhodes v. Levitz Furn. Co., 136 Ga. App. 514 , 221 S.E.2d 687 (1975); Hill v. Delta Air Lines, 143 Ga. App. 103 , 237 S.E.2d 597 (1977); West v. First Nat'l Bank, 145 Ga. App. 808 , 245 S.E.2d 46 (1978); Wright v. Great Lakes Dredge & Dock Co., 156 Ga. App. 537 , 275 S.E.2d 89 (1980); White v. I.T.T., 718 F.2d 994 (11th Cir. 1983); Taliaferro v. S & A Restaurant Corp., 172 Ga. App. 399 , 323 S.E.2d 271 (1984); Anderberg v. Georgia Elec. Membership Corp., 175 Ga. App. 14 , 332 S.E.2d 326 (1985); Morast v. Lance, 807 F.2d 926 (11th Cir. 1987); Alston v. Brown Transp. Corp., 182 Ga. App. 632 , 356 S.E.2d 517 (1987); Thomason v. Mitsubishi Elec. Sales Am., Inc., 701 F. Supp. 1563 (N.D. Ga. 1988); Warren v. Crawford, 927 F.2d 559 (11th Cir. 1991); Burton v. John Thurmond Constr. Co., 201 Ga. App. 10 , 410 S.E.2d 137 (1991); Johnson v. Hames Contracting, Inc., 208 Ga. App. 664 , 431 S.E.2d 455 (1993); Golden v. National Serv. Indus., 210 Ga. App. 53 , 435 S.E.2d 270 (1993); Jones v. Destiny Indus., Inc., 226 Ga. App. 6 , 485 S.E.2d 225 (1997); Hiers v. ChoicePoint Servs., 270 Ga. App. 128 , 606 S.E.2d 29 (2004).

Period of Employment

Presumption of hiring for period stipulated for payment of wages. - Unless there is something to the contrary in an express contract of employment, a provision merely for the payment of wages at a stipulated period raises the presumption that the hiring was for that period. National Manufacture & Stores Corp. v. Dekle, 48 Ga. App. 515 , 173 S.E. 408 (1934).

Person who has been previously employed by the year or other fixed interval who is permitted to continue in the employment after the period limited by the original employment has expired will, in the absence of anything to show a contrary intention, be presumed to be employed until the close of the current interval, and upon the same terms. Such a presumed renovation of the contract from the period at which the former expired is held to arise from implied consent of the parties, and in consequence of their not having signified their intention that the agreement should terminate at the period stipulated. Whether the first hiring has its duration fixed by express or implied contract, if it be fixed in either way, the term (if not longer than one year) admits of duplication by tacit as well as express agreement. National Manufacture & Stores Corp. v. Dekle, 48 Ga. App. 515 , 173 S.E. 408 (1934).

Fact that wages are payable weekly raises presumption that contract of hiring was by week. Sandt v. Mason, 208 Ga. 541 , 67 S.E.2d 767 (1951).

Offer of employment at so much per month will, in the absence of anything further indicating the period of employment intended, be treated as meaning employment for a term of one month. Floyd v. Lamar Ferrell Chevrolet, Inc., 159 Ga. App. 756 , 285 S.E.2d 218 (1981).

Appellant's allegations that appellant was employed by appellee for an indefinite period at a fixed monthly wage sets forth a legally binding contract for one month's employment at the agreed wage, breach of which prior to the end of the first month is actionable. Floyd v. Lamar Ferrell Chevrolet, Inc., 159 Ga. App. 756 , 285 S.E.2d 218 (1981).

If the presumption under O.C.G.A. § 34-7-1 is to arise, the employment contract must provide that the "wages are payable at a stipulated period." Therefore, an annual salary provision in an employment contract will not establish the presumption unless the employee is also paid on an annual basis. If the employee is paid on a weekly, bi-monthly or monthly basis, the statement of an annual salary will not create a binding one-year contract. Tipton v. Canadian Imperial Bank of Commerce, 872 F.2d 1491 (11th Cir. 1989).

Hiring period on basis of annual salary. - Documents referring to an employee's annual salary do not give rise to a presumption that the employee is hired on a quarterly basis. American Std., Inc. v. Jessee, 150 Ga. App. 663 , 258 S.E.2d 240 (1979).

Reference to an employee's annual salary in a written agreement merely establishes the total amount of the employee's salary during a 12-month period and does not establish a pay period requiring application of the presumption under O.C.G.A. § 34-7-1 . Fortenberry v. Haverty Furn. Cos., 176 Ga. App. 360 , 335 S.E.2d 460 (1985); Ikemiya v. Shibamota Am., Inc., 213 Ga. App. 271 , 444 S.E.2d 351 (1994).

Period of employment deemed indefinite. - Promise to employ a person until the employer becomes insolvent is an offer of employment for an indefinite term and is insufficient to support a cause of action for breach of an employment contract. Barker v. CTC Sales Corp., 199 Ga. App. 742 , 406 S.E.2d 88 (1991), cert. denied, 199 Ga. App. 905 , 406 S.E.2d 88 (1991).

Minimum period of employment specified in contract. - When an employment contract specified that the term of employment was to be "for a period of not less than three years," the contract was not terminable at will prior to the expiration of that three year period. Wojcik v. Lewis, 204 Ga. App. 301 , 419 S.E.2d 135 (1992).

If a definite minimum contract period has been established by the contract of employment, only such minimum employment period falls outside the employment at will and any future contract period comes under the employment at will. Schuck v. Blue Cross & Blue Shield of Ga., Inc., 244 Ga. App. 147 , 534 S.E.2d 533 (2000).

Although an employment contract set up a two-week pay period, that provision did not define the employment term because the contract specifically stated that it "will run from October 10th, 1994 through January 10th, 1995," a three month period. Mail Adver. Sys. v. Shroka, 249 Ga. App. 484 , 548 S.E.2d 461 (2001).

Breach of promise not to fire. - Trial court did not err in finding that the terminated employees did not state a claim upon which relief could be granted for their claim that they were wrongfully discharged based on the businesses' alleged breach of a promise-not-to-fire, as the terminated employees did not show that Georgia law recognized a "freedom of contract" public policy exception to the general rule of at-will employment in Georgia that dictated that an employee was not hired for a specific period of employment and could be terminated for any or no reason. Balmer v. Elan Corp., 261 Ga. App. 543 , 583 S.E.2d 131 (2003), aff'd, 278 Ga. 227 , 599 S.E.2d 158 (2004).

Ambiguity. - When an ambiguity in a contract as to the contemplated duration of a subcontractor's services remained even after application of applicable statutory rules of construction, construction of the contract was for the jury rather than the trial court. Lineberger v. Williams, 195 Ga. App. 186 , 393 S.E.2d 23 (1990).

Discharge
1. In General

Employer may discharge employee without liability. - When a plaintiff's employment is terminable at will, the employer, with or without cause and regardless of its motives, may discharge the employee without liability. Clark v. Prentice-Hall, Inc., 141 Ga. App. 419 , 233 S.E.2d 496 (1977); Grace v. Roan, 145 Ga. App. 776 , 245 S.E.2d 17 (1978); Taylor v. Foremost-McKesson, Inc., 656 F.2d 1029 (5th Cir. 1981); Hall v. Answering Serv., Inc., 161 Ga. App. 874 , 289 S.E.2d 533 (1982).

Trial court's dismissal of a city employee's wrongful discharge action was proper because the complaint failed to state a claim upon which relief could be granted; the employee was an at-will employee and, pursuant to O.C.G.A. § 34-7-1 and as a matter of law, the employee could not assert a wrongful discharge claim. Reid v. City of Albany, 276 Ga. App. 171 , 622 S.E.2d 875 (2005).

No actionable conspiracy out of exercising right to discharge employee. - Granting that the allegations of the plaintiff are sufficient to sustain the conclusion of conspiracy, there could be no actionable conspiracy growing out of the exercise, in a lawful manner, of the legal right to discharge the plaintiff. Clark v. Prentice-Hall, Inc., 141 Ga. App. 419 , 233 S.E.2d 496 (1977).

No actionable conspiracy arises from the authorized exercise of a legal right to discharge. Meeks v. Pfizer, Inc., 166 Ga. App. 815 , 305 S.E.2d 497 (1983).

Absent a racial or other motive in violation of public policy, an employer may discharge an at will employee for any reason or no reason. Phinazee v. Interstate Nationalease, Inc., 237 Ga. App. 39 , 514 S.E.2d 843 (1999).

Oral promise not to fire not enforceable. - Noting that Georgia courts have refused to acknowledge any exceptions not encompassed by the employment at-will statute, O.C.G.A. § 34-7-1 , a court applied the well-settled doctrines of Georgia law and held that an employer's oral promise not to fire employees for cooperating with government inspection did not modify the terms of their at-will employment relationship and did not create an enforceable contract. Balmer v. Elan Corp., 278 Ga. 227 , 599 S.E.2d 158 (2004).

Impermissible discharge on grounds of public policy. - At-will employee cannot maintain a successful wrongful discharge suit against an employer on grounds of public policy. Jellico v. Effingham County, 221 Ga. App. 252 , 471 S.E.2d 36 (1996).

2. Illustrative Cases

Employment terminable at will. - Appellant's employment was terminable at will and the evidence clearly shows that appellant was discharged by one who had the authority to do so, appellant's lengthy allegations as to improper motive for firing are legally irrelevant and present no genuine issues of material fact. Hall v. Answering Serv., Inc., 161 Ga. App. 874 , 289 S.E.2d 533 (1982).

As an at-will employee terminable with or without cause pursuant to O.C.G.A. § 34-7-1 , a plaintiff employee had no enforceable employment contract rights with which to interfere and, thus, had no basis for a claim that the defendant president tortuously interfered with the employee's employment for an insurance company. Culpepper v. Thompson, 254 Ga. App. 569 , 562 S.E.2d 837 (2002).

Because under Georgia law, absent contractual or statutory exception, employment is terminable at will by either party, pursuant to O.C.G.A. § 34-7-1 , an employee of a state university was an at-will employee with no reasonable expectation in continued employment that would give rise to a property interest; therefore, because the employee did not have an identifiable property interest in the employment, the employee could not prevail on a claim for denial of procedural due process. Braswell v. Bd. of Regents of the Univ. Sys. of Ga., 369 F. Supp. 2d 1362 (N.D. Ga. Apr. 26, 2005).

Despite the fact that a teacher's contract provided for a yearly salary, such only referred to the pay system and any presumption that such contract was for one year was rebutted by the next sentence of the contract that, "should employment be terminated prior to the end of the school year, the termination pay will be prorated on the number of days worked." Taylor v. Calvary Baptist Temple, 279 Ga. App. 71 , 630 S.E.2d 604 (2006).

City employee was an at-will employee because the record did not show that the employee was hired for a definite term of employment, and the city's personnel policies and practices were legally insufficient to create an implied contract for a definite term of employment. Goddard v. City of Albany, 285 Ga. 882 , 684 S.E.2d 635 (2009).

In a former employer's suit to enforce noncompetition and nonsolicitation clauses, summary judgment was properly granted in favor of the employer on a former employee's wrongful termination claim; as an at-will employee, pursuant to O.C.G.A. § 34-7-1 , the employee had no claim for wrongful termination. H&R Block Eastern Enters. v. Morris, 606 F.3d 1285 (11th Cir. 2010).

Probationary period. - When contract between parties provided that first year of employment was a probationary period, and terms of contract did not specify duration of employment, employer had right to discharge employee without cause. Gunn v. Hawaiian Airlines, 162 Ga. App. 474 , 291 S.E.2d 779 (1982).

Promise of lifetime employment unenforceable. - Employment in Georgia is generally considered to be at will, and a trial court properly dismissed an employee's breach of contract suit based on a termination of employment; since an alleged promise of lifetime employment was unenforceable, the employee's claim of fraud could not have been predicated on that alleged promise. Jenkins v. Georgia Dep't of Corr., 279 Ga. App. 160 , 630 S.E.2d 654 (2006).

Employee's investigations into company activities. - O.C.G.A. § 34-7-1 will not allow action for wrongful discharge by a terminable-at-will employee, despite allegations by the employee that the employee's discharge was caused by the employee's investigations into possibly criminal company activities. Taylor v. Foremost-McKesson, Inc., 656 F.2d 1029 (5th Cir. 1981).

Oral contract between attorney and client. - Trial court's denial of a client's summary judgment motion was reversed as the oral contract between an attorney and the client was unenforceable in that: (1) there was no definition of what was to be considered the ultimate or logical conclusion of any given case assigned to the attorney, nor were there standards for determining if the attorney "didn't do the job"; (2) there was no stated duration of the agreement, and the public policy of Georgia was clear that, absent a definite term of employment, the contract was terminable at will under O.C.G.A. § 34-7-1 ; and (3) the attorney's claimed damages, the attorney's hourly rate times the number of hours it would have taken the attorney to bring each case to its ultimate or logical conclusion, were speculative and not objectively ascertainable from the oral contract. Ga. Farm Bureau Mut. Ins. Co. v. Croley, 263 Ga. App. 659 , 588 S.E.2d 840 (2003).

Exercising workers' compensation rights. - There is no public policy exception to an employer's right to discharge an employee at will when the right is exercised in retaliation for the employee's assertion of the employee's rights under the Workers' Compensation Act. Evans v. Bibb Co., 178 Ga. App. 139 , 342 S.E.2d 484 (1986).

Termination due to application for disability benefits. - Even if an employer's decision to separate an employee from the employee's employment was prompted by the employee's application for full-time disability benefits, this would not give rise to a cause of action for wrongful termination. Bendix Corp. v. Flowers, 174 Ga. App. 620 , 330 S.E.2d 769 (1985).

Termination due to pregnancy. - Summary judgment for employer was affirmed in former at-will employee's action for "wrongful discharge" allegedly based on employee's pregnancy, as there was no existing "public policy" exception for termination of at-will employees because of gender in general or pregnancy in specific. Borden v. Johnson, 196 Ga. App. 288 , 395 S.E.2d 628 (1990).

Discharge for violations of employment directive. - When an employee manual provided that dismissal "shall result from a serious infraction of a company rule involving misconduct such as . . .", it was neither the intent nor the effect of the manual to limit terminations to infractions listed but rather the list of infractions was for illustrative purposes only so that the employee had notice of the types of offenses which the company believed were of such a serious nature that termination would be warranted. Swanson v. Lockheed Aircraft Corp., 181 Ga. App. 876 , 354 S.E.2d 204 (1987).

Company handbook. - Even if company handbook was considered to be a contract, as it was for no specific term, employees remained as at will and their employment was terminable at will. Jackson v. Nationwide Credit, Inc., 206 Ga. App. 810 , 426 S.E.2d 630 (1992).

Negligent hiring and retention claim. - Employee's claim of negligent hiring and retention could not be used to circumvent the employment-at-will doctrine since the employment was for an indefinite period and was terminable at the will of either party to the employment relationship. Dong v. Shepeard Community Blood Ctr., 240 Ga. App. 137 , 522 S.E.2d 720 (1999).

Violation of termination procedures. - The fact that an at-will employee had notice of certain policies and procedures regarding discipline and termination of employees which the employee alleges were not followed in the employee's discharge would not give rise to an action for wrongful termination. Garmon v. Health Group of Atlanta, Inc., 183 Ga. App. 587 , 359 S.E.2d 450 (1987).

Evidence of wrongful discharge. - Evidence that a former fellow employee, who did not have the absolute right to discharge without consulting superiors, attempted to suborn perjury from an employee, asking the employee to lie at a deposition hearing with reference to a lawsuit then in progress involving the employer, and thereafter threatened the employee that "he would never expect to get anything out of this company again," and that subsequently the employee was terminated, supported the liability of that fellow employee for wrongful discharge. Troy v. Interfinancial, Inc., 171 Ga. App. 763 , 320 S.E.2d 872 (1984).

President of limited liability company with contract. - Trial court erred in entering a judgment on the pleadings for a limited liability company, its founder, and a corporation, as O.C.G.A. § 34-7-1 did not bar the president's breach of fiduciary duty claim since the president had a contract for a definite term; further, the founders were bound by the contract, which contained a clause purporting to establish a fiduciary relationship. Tidikis v. Network for Med. Communs. & Research, LLC, 274 Ga. App. 807 , 619 S.E.2d 481 (2005).

Recovery for Discharge

Employee's suit on contract for compensation due. - Parol agreement in a contract to begin in praesenti for an indefinite period, terminable at will, was not inhibited by the statute of frauds; and when an employee sued on the contract for the amount of compensation due the employee, based upon services actually performed by the employee up to the time of the employee's discharge, and not for damages or for compensation for services not performed or for any breach of contract, it was not necessary that the employee sue on a quantum meruit for services actually performed. Brazzeal v. Commercial Cas. Ins. Co., 51 Ga. App. 471 , 180 S.E. 853 (1935).

When there is a contract of employment and the employee thereunder sues on the contract for the amount of compensation due the employee, based upon services actually performed by the employee up to the time of the employee's discharge, and not for damages or for compensation for services not performed or for any breach of contract, the contract is conclusive on the matter and it is not necessary that the plaintiff sue on a quantum meruit for services actually performed. Van Houten v. Standard Fed. Sav. & Loan Ass'n, 93 Ga. App. 774 , 92 S.E.2d 731 (1956).

Oral contract of employment at will for an indefinite time, even though it may not be performed within one year, is not within the statute of frauds; and when the employee has actually performed services thereunder the employee may recover of the employer the compensation due the employee for the services rendered. Trade City G.M.C., Inc. v. May, 154 Ga. App. 371 , 268 S.E.2d 421 (1980).

Trial court did not err by granting summary judgment to the defendant, a former employer, on the plaintiff's claims that the plaintiff was wrongfully terminated, that the plaintiff was entitled to one year's salary, that the plaintiff was entitled to participate in the profit sharing plan, or that the plaintiff was entitled to purchase stock in the company, when the record was clear that the plaintiff had no contract for a stated period. The mere reference to the position's annual salary is not sufficient to invoke the presumption set forth in O.C.G.A. § 34-7-1 . Foreman v. Eastern Foods, Inc., 195 Ga. App. 332 , 393 S.E.2d 695 (1990).

Damages for wrongful discharge. - When an employee is wrongfully discharged before the end of the employee's term and elects to sue for a breach of the contract of employment, the employee may do so immediately and claim any special injury which the employee may have sustained in consequence of the breach; in such an action the measure of damages is the actual loss from the breach of the contract, and, in estimating the amount, all facts down to the time of the trial may be considered. Sandt v. Mason, 208 Ga. 541 , 67 S.E.2d 767 (1951).

No right of action for federal credit union employees. - Federal credit union employees had no right of action for wrongful termination since they had no vested property right under federal law, and there was no state law public exception to the at-will doctrine. Robins Fed. Credit Union v. Brand, 234 Ga. App. 519 , 507 S.E.2d 185 (1998).

OPINIONS OF THE ATTORNEY GENERAL

Length of notice or compensation. - Georgia law does not provide for a specific length of time or compensation when an employee is discharged; the length of notice or compensation when discharged would depend entirely upon the agreement or contract between the employer and employee. 1948-49 Op. Att'y Gen. p. 242.

The length of employment, wages therefor and termination of employment depends entirely upon the contract between parties. 1948-49 Op. Att'y Gen. p. 242.

RESEARCH REFERENCES

Am. Jur. 2d. - 27 Am. Jur. 2d, Employment Relationship, §§ 8 et seq., 26 et seq.

Defending Wrongful Discharge Cases, 36 Am. Jur. Trials 419.

ALR. - Constitutionality of law regulating right to tips as between master and servant, 3 A.L.R. 310 .

Duration of contract of hiring which specifies no term, but fixes compensation at a certain amount per day, week, month, or year, 11 A.L.R. 469 ; 100 A.L.R. 834 ; 161 A.L.R. 706 .

Payment as condonation preventing discharge of servant for breach of duty, 44 A.L.R. 532 .

Injunction against discharge of employee, 44 A.L.R. 1443 .

Negligence or incompetency as a ground for discharge of an employee, 49 A.L.R. 472 .

Changes in personnel or conditions of business as justification for termination of contract of employment, 59 A.L.R. 294 .

Expenses incurred in seeking or in obtaining other employment as element of damages in an action for wrongful discharge of employee, 84 A.L.R. 171 .

Specification in employment contract of grounds or causes of discharge as exclusive of other grounds or causes, 100 A.L.R. 507 .

Servant's right to compensation for extra work or overtime, 107 A.L.R. 705 .

Operation of negative or restrictive covenant in contract of employment for a specific period, as extended by continuance in the employment after the expiration of that period, 163 A.L.R. 405 .

Validity, construction, and effect of statutory or contractual provision in, government construction contract referring to Secretary of Labor questions respecting wage rates or classification of employees of contractor, 163 A.L.R. 1300 .

Right of employer to terminate contract because of employee's illness or physical incapacity, 21 A.L.R.2d 1247.

Oral contract for personal services so long as employee is able to continue in work, to do satisfactory work, or the like, as within statute of frauds relating to contracts not to be performed within year, 28 A.L.R.2d 878.

Power of corporate officer or agent to hire employees for life, 28 A.L.R.2d 929.

Discharge from private employment on ground of political views or conduct, 51 A.L.R.2d 742; 29 A.L.R.4th 287, 38 A.L.R.5th 39.

What law governs employee's right to damages for wrongful discharge, 61 A.L.R.2d 917.

Employer's damages for breach of employment contract by employee's terminating employment, 61 A.L.R.2d 1008.

Recovery of damages by employee wrongfully discharged before expiration of time period fixed in employment contract as embracing entire term of contract or as limited to those damages sustained up to time of trial, 91 A.L.R.2d 682.

Termination by principal of distributorship contract containing no express provision for termination, 19 A.L.R.3d 196.

Employer's termination of professional athlete's services as constituting breach of employment contract, 57 A.L.R.3d 257.

Validity and duration of contract purporting to be for permanent employment, 60 A.L.R.3d 226.

Right of corporation to discharge employee who asserts rights as stockholder, 84 A.L.R.3d 1107.

Modern status as to duration of employment where contract specifies no term but fixes daily or longer compensation, 93 A.L.R.3d 659.

Liability for discharging at-will employee for refusing to participate in, or for disclosing, unlawful or unethical acts of employer or coemployees, 9 A.L.R.4th 329.

Discharge from employment on ground of political views or conduct as affecting right to unemployment compensation, 29 A.L.R.4th 287, 38 A.L.R.5th 39.

Judicial review of termination of pastor's employment by local church or temple, 31 A.L.R.4th 851.

Recovery for discharge from employment in retaliation for filing workers' compensation claim, 32 A.L.R.4th 1221.

Right to discharge allegedly "at-will" employee as affected by employer's promulgation of employment policies as to discharge, 33 A.L.R.4th 120.

Damages recoverable for wrongful discharge of at-will employee, 44 A.L.R.4th 1131.

Liability for retaliation against at-will employee for public complaints or efforts relating to health or safety, 75 A.L.R.4th 13.

Liability for discharge of at-will employee for refusal to submit to drug testing, 79 A.L.R.4th 105.

Effectiveness of employer's disclaimer of representations in personnel manual or employee handbook altering at-will employment relationship, 17 A.L.R.5th 1.

Pre-emption by workers' compensation statute of employee's remedy under state "whistleblower" statute, 20 A.L.R.5th 677.

Pre-emption of wrongful discharge cause of action by civil rights laws, 21 A.L.R.5th 1.

Liability for breach of employment severance agreement, 27 A.L.R.5th 1.

After-acquired evidence of employee's misconduct as barring or limiting recovery in action for wrongful discharge, 34 A.L.R.5th 699.

Liability for discharge of employee from private employment on ground of political views or conduct, 38 A.L.R.5th 39.

Wrongful discharge based on public policy derived from professional ethics codes, 52 A.L.R. 5 th 405.

Negligent discharge of employee, 53 A.L.R.5th 219.

Wrongful discharge based on employer's fraternization policy, 71 A.L.R.5th 257.

Federal pre-emption of whistleblower's state-law action for wrongful retaliation, 99 A.L.R. Fed. 775.

34-7-2. Payment of wages by lawful money, checks, or credit transfer; selection of payment dates by employer.

  1. As used in this Code section, the term "payroll card account" means an account that is directly or indirectly established through a person, firm, or corporation employing wageworkers or other employees and to which electronic fund transfers of the wages or salary of such employees are made on a recurring basis, whether the account is operated or managed by such person, firm, or corporation or a third-party payroll processor, a depository institution, or any other person.
  2. Every person, firm, or corporation, including steam and electric railroads, but not including farming, sawmill, and turpentine industries, employing skilled or unskilled wageworkers in manual, mechanical, or clerical labor, including all employees except officials, superintendents, or other heads or subheads of departments who may be employed by the month or year at stipulated salaries, shall make wage and salary payments to such employees or to their authorized representatives (1) by lawful money of the United States, (2) by check, (3) with the consent of the employee, by authorization of electronic credit transfer to his or her account with a bank, trust company, or other financial institution authorized by the United States or one of the several states to receive deposits in the United States, or (4) by credit to a payroll card account. Such payments shall be made on such dates during the month as may be decided upon by such person, firm, or corporation; provided, however, that the dates so selected shall be such that the month will be divided into at least two equal periods; and provided, further, that the payments made on each such date shall in every case correspond to the full net amount of wages or earnings due the employees for the period for which the payment is made.
  3. A person, firm, or corporation that elects pursuant to subsection (b) of this Code section to make wage and salary payments by using credit to a payroll card account shall provide the employee with each of the following:
    1. A written explanation of any fees associated with the payroll card account offered to the employee. For all employees employed on the date a person, firm, or corporation elects to make such wage and salary payments by using credit to a payroll card account, such written explanation shall be provided at least 30 days prior to the date such payroll card account is to become available. For any employee hired after the date of such election, the written explanation shall be provided at the time of hiring. A form shall be provided simultaneously with the written explanation of fees allowing employees to opt out of receiving such payments as credit to a payroll card account as provided in paragraphs (2) and (3) of this subsection. Such form shall also be made generally available to employees;
    2. The ability to opt out of receiving such payments as credit to a payroll card account by submitting in writing a request for a check; and
    3. The ability to opt out of receiving such payments as credit to a payroll card account by providing the proper designation and authorization for an electronic credit transfer.

      (Ga. L. 1919, p. 388, § 1; Code 1933, § 66-102; Ga. L. 1973, p. 672, § 1; Ga. L. 1982, p. 3, § 34; Ga. L. 1984, p. 22, § 34; Ga. L. 2015, p. 596, § 1/SB 88.)

The 2015 amendment, effective May 5, 2015, designated the existing provisions of this Code section as subsection (b); added subsections (a) and (c); and, in the middle of the first sentence of subsection (b), substituted "subheads of departments" for "subheads of department", deleted "or" following "(2) by check", substituted "authorization of electronic credit transfer to his or her account" for "authorization of credit transfer to his account", and, at the end of the first sentence, added ", or (4) by credit to a payroll card account."

Law reviews. - For annual survey of labor and employment law, see 57 Mercer L. Rev. 251 (2005). For article, "Georgia's 'Bring Your Gun to Work' Law May Not Have the Firepower to Trouble Georgia Employers After All," see 14 (No. 7) Ga. St. B. J. 12 (2009). For comment criticizing Messenger v. State, 209 Ga. 340 , 72 S.E.2d 460 (1952), see 4 Mercer L. Rev. 371 (1953).

JUDICIAL DECISIONS

Liability for violations of wage payment provisions. - Consultant employed by a labor pool was not an "employer" under Georgia law and, therefore, was not subject to liability for violations of O.C.G.A. §§ 34-7-2 and 34-7-3 . Sakas v. Settle Down Enters., Inc., 90 F. Supp. 2d 1267 (N.D. Ga. 2000).

Action claiming forfeiture based on clause in incentive contract. - Trial court properly granted judgment on the pleadings to companies in a former employee's action alleging violations of O.C.G.A. § 34-7-2 because the employee did not file an action claiming that a forfeiture clause in a stock incentive plan constituted a violation of wage requirements within the relevant two-year statute of limitations provided by O.C.G.A. § 9-3-22 , and the action was therefore time barred. Milhollin v. Salomon Smith Barney, Inc., 272 Ga. App. 267 , 612 S.E.2d 72 (2005).

Cited in Shirley v. State, 208 Ga. 614 , 68 S.E.2d 597 (1952).

RESEARCH REFERENCES

Am. Jur. 2d. - 27 Am. Jur. 2d, Employment Relationship, § 55 et seq.

ALR. - Right of employee to bonus as affected by termination of employment before bonus becomes payable, 28 A.L.R. 346 .

Corporation's payment of bonus to officers or employees, 88 A.L.R. 751 ; 164 A.L.R. 1125 .

Employee's or agent's acceptance of bonus, gratuity, or other personal benefit from one with whom he deals on employer's or principal's account as affecting his right to recover wages, salary, or commissions, 102 A.L.R. 1115 .

Statutes prescribing medium of payment of wages or salary as prohibiting compensation by corporate stock or other interest in business, 137 A.L.R. 846 .

Validity, construction, and effect of statutory or contractual provision in, government construction contract referring to Secretary of Labor questions respecting wage rates or classification of employees of contractor, 163 A.L.R. 1300 .

Validity, construction, and effect of state laws requiring payment of wages on resignation of employee immediately or within specified period, 11 A.L.R.5th 715.

Validity, construction, and effect of state laws requiring payment of wages on discharge of employee immediately or within specified period, 18 A.L.R.5th 577.

Employer's liability to employee or agent for injury or death resulting from assault or criminal attack by third person, 40 A.L.R.5th 1.

34-7-3. Requirements where wages paid by written instrument; effect of protest or dishonor.

  1. Any order, check, draft, note, or other instrument issued in payment of wages or salary due or to become due must be negotiable and payable in cash, on demand, without discount, at some established place of business in the United States, the name and address of which must appear on the instrument. At the time of issuance of such instrument and for a reasonable time thereafter (which must be at least 30 days), the maker or drawer must have sufficient funds or credit or an arrangement or understanding with the drawee as to its payment.
  2. Where an instrument described in this Code section is protested or dishonored, the notice or memorandum of protest or dishonor is admissible as proof of presentation, nonpayment, and protest and is presumptive evidence of knowledge of insufficiency of funds or credit with the drawee.

    (Code 1933, § 66-102.1, enacted by Ga. L. 1973, p. 672, § 2.)

Cross references. - Negotiable instruments generally, Art. 3, T. 11.

JUDICIAL DECISIONS

Liability for violations of wage payment provisions. - Consultant employed by a labor pool was not an "employer" under Georgia law and, therefore, was not subject to liability for violations of O.C.G.A. §§ 34-7-2 and 34-7-3 . Sakas v. Settle Down Enters., Inc., 90 F. Supp. 2d 1267 (N.D. Ga. 2000).

RESEARCH REFERENCES

ALR. - Validity, construction, and effect of statutory or contractual provision in, government construction contract referring to Secretary of Labor questions respecting wage rates or classification of employees of contractor, 163 A.L.R. 1300 .

Validity, construction, and effect of state laws requiring payment of wages on resignation of employee immediately or within specified period, 11 A.L.R.5th 715.

Validity, construction, and effect of state laws requiring payment of wages on discharge of employee immediately or within specified period, 18 A.L.R.5th 577.

34-7-4. Payment of outstanding wages to beneficiary; payment as release from claims to funds or claims against employer.

    1. Upon the death of any person who was employed by any political subdivision of the state or by any railroad company or other corporation, individual, or partnership doing business in this state, if the deceased employee had wages or other moneys due from such employer, it shall be lawful for such employer to pay all of such sums if they do not exceed $2,500.00, or to pay the sum of $2,500.00 if such sums exceed $2,500.00 or upon the death of any person who was employed by the state, if the deceased employee had wages or other moneys due from the state, it shall be lawful for the state to pay all of such sums, as follows:
      1. In the absence of a beneficiary designated in writing by the employee, then to the employee's surviving spouse;
      2. In the absence of a beneficiary designated in writing by the employee and where the employee left no surviving spouse but left a surviving minor child or children, then to the duly qualified guardian of the minor child or children without any administration upon the estate of the employee; or
      3. Where a beneficiary has been designated in writing by the employee to receive such sums and such beneficiary is under no legal incapacity to prevent him from receiving such sums, then to such beneficiary, or, if such beneficiary is under such legal incapacity, then to his duly qualified guardian.

        Such funds to the amount of $2,500.00 shall be exempt from any and all process of garnishment.

    2. It shall be the responsibility of the employee to provide and the responsibility of the employer to request the name and current address of the employee's spouse or, if there is no spouse, the name and current address of each minor child of the employee. If the employee, at his election, designates a beneficiary to receive such sums, such designation shall be in writing, shall include the name and address of such beneficiary, and shall be signed by the employee. The employer shall inform the employee that any sums payable under this Code section may be paid pursuant to the designation made by the employee to a beneficiary, or to the employee's spouse, or to the employee's minor child or children as provided in this Code section and shall request the employee to furnish and keep any such information and designation current. The employer shall not be subject to any penalty for failure to inform and request that the employee furnish such information and designation, or for the failure of the employer to pay such sums in accordance with the provisions of this Code section.
  1. Any employer described in subsection (a) of this Code section may pay over any sums due under subsection (a) of this Code section upon the demand of such designated beneficiary or guardian thereof, or, if no such beneficiary is designated, then upon the demand of the surviving spouse, or, if in the absence of such designated beneficiary and where there is no surviving spouse, upon the demand of the minor child or children or the guardian thereof.
  2. The paying over of any sums due as permitted under subsections (a) and (b) of this Code section to the proper party or parties as set forth in this Code section shall operate as a release from all claims to such sums or as a release from all claims against the state, political subdivision thereof, railroad company, or other corporate, partnership, or individual employer by the estate of the employee, the creditors thereof, the surviving spouse or minor child or children or the guardian thereof, or any other person.

    (Ga. L. 1898, p. 91, § 1; Ga. L. 1901, p. 60, §§ 1-3; Civil Code 1910, §§ 3134, 3135, 3136; Ga. L. 1915, p. 21, § 1; Code 1933, §§ 66-103, 66-104, 66-105; Ga. L. 1958, p. 641, § 1; Ga. L. 1963, p. 434, § 1; Ga. L. 1975, p. 1191, § 1; Ga. L. 1981, p. 639, § 1; Ga. L. 1983, p. 659, § 1.)

Law reviews. - For article discussing nonjudicial settlement of a decedent's estate, see 6 Ga. L. Rev. 74 (1971).

JUDICIAL DECISIONS

Cited in Sanders v. State, 151 Ga. App. 590 , 260 S.E.2d 504 (1979).

OPINIONS OF THE ATTORNEY GENERAL

Payment to executor in representative capacity. - While payment to the surviving spouse or guardian of a minor child is permissible, it is not recommended; payment should be made to the executor in the executor's representative capacity in order that the estate be administered in a more orderly fashion. 1965-66 Op. Att'y Gen. No. 66-208.

Surviving spouse in state hospital. - Earnings due a deceased state employee are payable to a widow if less than $2,500.00 even though the widow is in a state hospital. 1962 Op. Att'y Gen. p. 459.

Power of attorney. - In the absence of a contractual relationship or authorizing legislation, a state agency may not properly honor a power of attorney authorizing collection by the state employee's credit union of the unpaid wages due a terminated state employee in satisfaction of the unpaid balance on the employee's loan; however, should the employee die before the loan's repayment, the unpaid compensation due the employee, not to exceed $2,500.00, may be paid to the employee's surviving spouse or minor children. 1976 Op. Att'y Gen. No. 76-18.

Cap on payment owed to deceased employee. - There is no longer a cap on the amount of accrued but unpaid wages, or other sums owing a deceased employee, which the Board of Regents may, at its option, pay directly to the surviving spouse of the deceased employee under O.C.G.A. § 34-7-4 . 1986 Op. Att'y Gen. No. 86-41.

RESEARCH REFERENCES

ALR. - Right of employee to bonus as affected by termination of employment before bonus becomes payable, 28 A.L.R. 346 .

Constitutionality of retroactive statute providing compensation for death in service of state, 28 A.L.R. 1100 ; 126 A.L.R. 102 .

Scope and effect of statutory provision extending debtors' exemptions to claims, or proceeds of claims, for personal injuries or death, 62 A.L.R. 1004 ; 116 A.L.R. 1481 .

Income tax: employer's payment to widow of employee as taxable income of widow, 95 A.L.R.2d 520.

Rights in survival benefits under public pension or retirement plan as between designated beneficiary and heirs, legatees, or personal representative of deceased employee, 5 A.L.R.3d 644.

What constitutes duress rendering employee's release of employer or former employer subject to avoidance, 30 A.L.R.4th 294.

34-7-5. Redemption of checks or other written evidences of indebtedness for wages.

Any corporation or person doing business of any kind in this state who shall issue checks or written evidences of indebtedness for the wages of laborers shall redeem at full value, in cash, such written evidences of indebtedness on demand and presentation to the proper person on the regular monthly payday; and, if there shall be no regular monthly payday, then such written evidences shall be redeemed upon demand and presentation on any regular business day after 30 days from the issuance thereof. For every failure to redeem such evidences of indebtedness, such corporation or person shall be liable to the owner thereof in the sum of $10.00, to be recovered by suit, unless the corporation or person shall, upon the trial, prove insolvency or actual inability to redeem at the time of demand and presentation.

(Ga. L. 1888, p. 48, § 1; Civil Code 1895, § 1871; Civil Code 1910, § 2235; Code 1933, § 66-106; Ga. L. 1998, p. 128, § 34.)

PART 2 P ROFESSIONAL EMPLOYER ORGANIZATIONS

34-7-6. Professional employer organizations; rights, powers, and responsibilities.

  1. As used in this Code section, the term "professional employer organization" means an employee leasing company as defined in Code Section 34-8-32 that has established a coemployment relationship with another employer, pays the wages of the employees of the coemployer, reserves a right of direction and control over the employees of the coemployer, and assumes responsibility for the withholding and payment of payroll taxes of the coemployer.
  2. A professional employer organization may collect information to evaluate costs; may obtain life, accident and sickness, disability income, workers' compensation, and other types of insurance coverage; may establish retirement plans; may have other types of employee benefits; and may discuss such benefits with prospective coemployers and their employees.
  3. A coemployer of a professional employer organization shall retain sufficient direction and control over the employees involved in a coemployment relationship as is necessary to conduct its business operations and fulfill its obligations to such employees. Unless otherwise agreed in writing, such coemployer shall be considered to be the sole employer of such employees for licensing purposes, provided that nothing contained in this Code section shall be deemed to prohibit a professional employer organization and its coemployer from agreeing that the professional employer organization shall be considered to be an employer for licensing purposes. The professional employer organization shall give written notice of such an agreement to the appropriate licensing agency and to the employees involved.
  4. It is the intent of this Code section that professional employer organizations shall be considered to be employers under this title and are required to comply with the provisions of Code Sections 34-8-32 , 34-8-34 , and 34-8-172 . Professional employer organizations and their coemployer clients are entitled to exclusive remedy under Code Section 34-9-11 . (Code 1981, § 34-7-6 , enacted by Ga. L. 1999, p. 519, § 1.)

Law reviews. - For survey article on labor and employment law for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 303 (2003).

RESEARCH REFERENCES

Am. Jur. 2d. - 27 Am. Jur. 2d, Employment Relationship, § 5.

ARTICLE 2 EMPLOYER'S LIABILITY FOR INJURIES GENERALLY

Cross references. - Form of complaint for negligence under Federal Employers Liability Act, § 9-11-114 .

Protection of employees from improperly designed or erected scaffolding, staging, or other mechanical device, § 25-15-110 .

General duty of employer with respect to employment safety, § 34-2-10 .

Protection of employees from accidental contact with high-voltage lines, § 46-3-31 .

Law reviews. - For annual survey on labor and employment law, see 66 Mercer L. Rev. 121 (2014).

JUDICIAL DECISIONS

Limitation of benefits to dependents constitutional. - Because the Workers' Compensation Act's, O.C.G.A. § 34-9-1 et seq., differing treatment of dependent and non-dependent heirs is not irrational and serves the legitimate government purpose of workers' compensation, the Act's limitation on recovery by non-dependent heirs does not violate the due process or equal protection rights guaranteed by the United States Constitution. Barzey v. City of Cuthbert, 295 Ga. 641 , 763 S.E.2d 447 (2014).

Master's liability for tortious act of servant. - Master is liable for the tortious action of a servant when done within the time covered by the employment and in the prosecution of the master's business. Pratt v. Melton, 107 Ga. App. 127 , 129 S.E.2d 346 (1962), later appeal, 109 Ga. App. 781 , 137 S.E.2d 481 (1964).

Negligence of assistant employed by servant. - If a servant, who is employed to do certain work for the servant's master, employs another person to assist the servant, the master is liable for the negligence of the assistant only when the servant had authority, express or implied, to employ the servant, or when the act of the employment is ratified by the master. Hockmuth v. Perkins, 55 Ga. App. 649 , 191 S.E. 156 (1937).

Disconnected act of servant. - When a servant steps aside from an employer's business for no matter how short a time, to do an act entirely disconnected with the employer's business, the master is not liable. Pratt v. Melton, 107 Ga. App. 127 , 129 S.E.2d 346 (1962), later appeal, 109 Ga. App. 781 , 137 S.E.2d 481 (1964).

Protection of substitute for regular servant. - When a person is employed and paid by a servant as a temporary substitute, with the express or implied knowledge of the master, or with a subsequent ratification by the master, the person employed is entitled to the same protection against injury while engaged in the master's work as the regular servant for whom the person is substituting, even though the person may not be entitled to recover wages from the master. Spivey v. Lovett & Brinson, 48 Ga. App. 335 , 172 S.E. 658 (1934).

RESEARCH REFERENCES

ALR. - Loaned servant doctrine under Federal Employers' Liability or Safety Appliance Act, 1 A.L.R.2d 302.

Liability in damages for injury to or death of window washer, 17 A.L.R.2d 637.

Liability of employer for injury resulting from games or other recreational or social activities, 18 A.L.R.2d 1372.

General contractor's liability for injuries to employees of other contractors on the project, 20 A.L.R.2d 868.

Duty and liability of employer to domestic servant for personal injury or death, 49 A.L.R.2d 317.

Master's duty to care for or to furnish medical aid to servant stricken by illness or injury, 64 A.L.R.2d 1108.

Master's liability for failure to inform servant of disease or physical condition disclosed by medical examination, 69 A.L.R.2d 1213.

Liability for injury to one servicing airplane, 76 A.L.R.2d 1070.

Liability of master for injury or death of servant on master's premises where injury occurred outside working hours, 76 A.L.R.2d 1215.

Shipowner's liability to longshoreman for injuries due to aspects of unseaworthiness brought about by acts of stevedore company or latter's servants, 77 A.L.R.2d 829.

Status of gasoline and oil distributor or dealer as agent, employee, independent contractor, or independent dealer as regards responsibility for injury to person or damage to property, 83 A.L.R.2d 1282.

Validity, enforceability, and effect of provision in seamen's employment contract stipulating the maximum recovery for scheduled personal injuries, 9 A.L.R.3d 417.

Master's liability to agricultural worker injured other than by farm machinery, 9 A.L.R.3d 1061.

Liability of owner or operator of motor vehicle for injury caused thereby while it is being repaired or serviced, 15 A.L.R.3d 1387.

Master and servant: employer's liability for injury caused by food or drink purchased by employee in plant facilities, 50 A.L.R.3d 505.

Imputation of servant's or agent's contributory negligence to master or principal, 53 A.L.R.3d 664.

Liability for injury or death of participant in theatrical performance or spectacle, 67 A.L.R.3d 451.

Liability of employer, supervisor, or manager for intentionally or recklessly causing employee emotional distress, 86 A.L.R.3d 454.

Employer's right of action for loss of services or the like against third person tortiously killing or injuring employee, 4 A.L.R.4th 504.

Employer's liability for injury to babysitter in home or similar premises, 29 A.L.R.4th 304.

Liability of employer, supervisor, or manager for intentionally or recklessly causing employee emotional distress, 52 A.L.R.4th 853.

Employer's liability to employee for failure to provide work environment free from tobacco smoke, 63 A.L.R.4th 1021.

Tort liability for window washer's injury or death, 69 A.L.R.4th 207.

Employer's liability for assault, theft, or similar intentional wrong committed by employee at home or business of customer, 13 A.L.R.5th 217.

Employer's liability to employee or agent for injury or death resulting from assault or criminal attack by third person, 40 A.L.R.5th 1.

Pre-emptive effect of Occupational Safety and Health Act of 1970 (29 USC §§ 651 - 678) and standards issued thereunder, 88 A.L.R. Fed. 833.

34-7-20. Care by employer in selection of employees and in furnishing of safe machinery; employer's duty to warn.

The employer is bound to exercise ordinary care in the selection of employees and not to retain them after knowledge of incompetency; he shall use like care in furnishing machinery equal in kind to that in general use and reasonably safe for all persons who operate it with ordinary care and diligence. If there are latent defects in machinery or dangers incident to an employment, which defects or dangers the employer knows or ought to know but which are unknown to the employee, then the employer shall give the employee warning with respect thereto.

(Civil Code 1895, § 2611; Civil Code 1910, § 3130; Code 1933, § 66-301.)

History of section. - This Code section is derived from the decisions in Georgia R.R. & Banking Co. v. Nelms, 83 Ga. 70 , 9 S.E. 1049 (1889); Davis v. Augusta Factory, 92 Ga. 712 , 18 S.E. 974 (1893); May v. Smith, 92 Ga. 95 , 18 S.E. 360 (1893).

Law reviews. - For article discussing origin and construction of Georgia provisions concerning master-servant relationship, see 14 Ga. L. Rev. 239 (1980). For survey article on labor and employment law for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 303 (2003). For survey article on labor and employment law, see 59 Mercer L. Rev. 233 (2007). For survey article on labor and employment law, see 60 Mercer L. Rev. 217 (2008). For annual survey of labor and employment law, see 61 Mercer L. Rev. 213 (2009). For annual survey of law on labor and employment law, see 62 Mercer L. Rev. 181 (2010). For annual survey on labor and employment law, see 64 Mercer L. Rev. 173 (2012). For annual survey on labor and employment law, see 65 Mercer L. Rev. 157 (2013). For annual survey on labor and employment law, see 66 Mercer L. Rev. 121 (2014). For annual survey on labor and employment law, see 67 Mercer L. Rev. 91 (2015). For annual survey on commercial transportation, see 69 Mercer L. Rev. 41 (2017). For annual survey on labor and employment law, see 69 Mercer L. Rev. 141 (2017). For note, "Publicly Funded Private Security: A Critical Examination of Georgia Law Pertaining to the Private Employment of Off-Duty Police Officers," see 51 Ga. L. Rev. 879 (2017). For comment criticizing Parry v. Davison-Paxon, 87 Ga. App. 51 , 73 S.E.2d 59 (1952), see 4 Mercer L. Rev. 368 (1953).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Duties of master. - As to place, appliances, instrumentalities, and fellow servants, the law places upon the master a personal or positive, sometimes called nondelegable, duty to provide for the employer's servant. Atkinson v. Empire Printing & Box Co., 76 Ga. App. 206 , 45 S.E.2d 280 (1947).

Nondelegable duty. - Duty required by this section is nondelegable. Southern Ry. v. Roberts, 206 F.2d 508 (5th Cir. 1953).

Restatement of common law. - This section restated common-law care required of a master to a servant. Scott v. Crescent Tool Co., 306 F. Supp. 884 (N.D. Ga. 1969).

Workers' Compensation Act provides exclusive remedy. - Employee could not bring a separate action against the employer independent of the exclusivity provisions of the Workers' Compensation Act (O.C.G.A. Ch. 9, T. 34) on the ground that the employer concealed work place hazards in violation of O.C.G.A. § 34-7-20 , since the Act makes no statutory exception to the exclusive remedy provisions. Dugger v. Miller Brewing Co., 199 Ga. App. 850 , 406 S.E.2d 484 (1991), cert. denied, 199 Ga. App. 905 , 406 S.E.2d 484 (1991).

Duty of care inapplicable to selection of independent contractors. - Statutory duty to exercise ordinary care in the selection of employees applies, by definition, to employees and not to those hired as independent contractors. Mason v. Gracey, 189 Ga. App. 150 , 375 S.E.2d 283 (1988).

Contractee/contractor relationship. - Contractee has the right to rely on the presumption that a contractor will discharge the legal duties owing to the contractor's employee. Hodge v. United States, 310 F. Supp. 1090 (M.D. Ga. 1969), aff'd, 424 F.2d 545 (5th Cir. 1970).

Employer's safety officer shares employer's statutory immunity. - In a contract with a subcontractor, as a person who was designated as the safety officer had the duty to supervise and inspect only in the person's capacity as the employer's representative but was not a party to the contract, the person shared statutory tort immunity under the Workers' Compensation Act (O.C.G.A. § 34-9-11 ) with the employer. Pardue v. Ruiz, 263 Ga. 146 , 429 S.E.2d 912 (1993).

Stating cause of action. - In suits for injuries arising from the negligence of the employer in failing to comply with the duties imposed by this section, the employee's petition in order to set forth a cause of action must set out issuable facts constituting not only negligence on the part of the employer, causing the injuries, but also due care on the part of the employee; and it must also appear from the allegations that the injured employee did not know, and had no equal means of knowing, all that which is charged as negligence to the employer, and by the exercise of ordinary care could not have known. A.F. King & Son v. Simmons, 107 Ga. App. 628 , 131 S.E.2d 214 (1963).

Injury as natural and probable consequence of negligence. - Injury to a servant must be the natural and probable consequence of an employer's negligence; such a consequence as, under the surrounding circumstances of the case, might and ought to have been foreseen by the wrongdoer as likely to flow from the wrongdoer's act. Alford v. Zeigler, 65 Ga. App. 294 , 16 S.E.2d 69 (1941).

Equal means of knowing danger. - In a suit by a servant for an injury arising from the negligence of the master in failing to furnish proper machinery or appliances or a safe place of work, the servant, to be entitled to recover, must show, among other things, that the servant did not have equal means with the master of knowing of the danger. Abercrombie v. Ivey, 59 Ga. App. 296 , 200 S.E. 551 (1938).

Action brought under this section was one for negligence on the part of the master, and when it appears from the evidence that the servant has equal means with the master of knowing of the defects in machinery and the dangers of employment, and the danger is as obvious to the servant as it is to the master, the servant is not entitled to recovery, notwithstanding any assurances of safety by the master. Swails v. Carpenter, 112 Ga. App. 117 , 144 S.E.2d 182 (1965).

Violation not negligence per se. - Provisions of this section were too general and abstract for their violation by a master or employer to constitute negligence per se. A.F. King & Son v. Simmons, 107 Ga. App. 628 , 131 S.E.2d 214 (1963).

Limited liability. - Liability of a master to a servant for negligence is strictly limited. Bray v. Westinghouse Elec. Corp., 102 Ga. App. 803 , 117 S.E.2d 919 (1960).

Assumption of risk. - Employee does not ordinarily assume the risk of negligence by an employer. Louisville & N.R.R. v. Crapps, 62 Ga. App. 437 , 8 S.E.2d 413 (1940).

Provision of that section of former Code 1933, § 66-403 (see now O.C.G.A. § 34-7-43 ) which abolished the defense of the assumption of risk when there had been a violation by the common carrier of any statute enacted for the safety of the employees had reference to statutes specifically applicable to the operations and equipment of such carriers and was not intended to, and cannot properly, apply to the provisions of former Code 1933, § 66-301 (see now O.C.G.A. § 34-7-20 ). Southern Ry. v. Roberts, 206 F.2d 508 (5th Cir. 1953).

Employee has no absolute right of recovery but assumes ordinary risks of the employee's employment. Scott v. Crescent Tool Co., 306 F. Supp. 884 (N.D. Ga. 1969).

Denial of the employer's motion for summary judgment was reversed because any alleged defects in the tractor tire or in removing the tire were known to the employee who attempted to remove the tire on the employee's own, spent hours attempting to do so, encountering difficulty, and used various methods and tools to remove the tire before the employee apparently finally did so using a tool not provided by the employer. Smith v. Found, 343 Ga. App. 816 , 806 S.E.2d 287 (2017).

Standing in front of tractor operated by inexperienced driver. - Employee who sued employer for personal injuries should have been aware that standing in front of a large farming tractor, parked on an incline, while a person wholly inexperienced in operating the machinery started the tractor and "eased" the clutch out, was dangerous and was not entitled to recover against the employer as a matter of law. Clayton v. Larisey, 190 Ga. App. 512 , 379 S.E.2d 789 (1989).

Negligent hiring and retention claim. - Employee's claim of negligent hiring and retention could not be used to circumvent the employment-at-will doctrine since the employment was for an indefinite period and was terminable at the will of either party to the employment relationship. Dong v. Shepeard Community Blood Ctr., 240 Ga. App. 137 , 522 S.E.2d 720 (1999).

Because an employee's discrimination and retaliation claims against an employer failed on summary judgment, the derivative claim of negligent retention under O.C.G.A. § 34-7-20 also could not be sustained. Ekokotu v. Boyle, F.3d (11th Cir. Sept. 24, 2008)(Unpublished).

A Plaintiff former employee's negligent retention claim against the defendant former employer failed because it was derivative of the meritless harassment claims, which had failed under the subjective prong of the analysis as the conduct was relatively infrequent with only a few dozen comments or actions over 11 months, and rude and boorish behavior fell short of describing severe and pervasive harassment. Guthrie v. Waffle House, Inc., F.3d (11th Cir. Feb. 3, 2012)(Unpublished).

Former employee failed to establish negligent retention and hiring claim because there was no evidence that could lead a reasonable trier of fact to believe the employer was aware of any employees' past or prior conduct that would lead the employer to believe the employee could be harassed by the employee's supervisor and/or coworkers. Madrid v. Homeland Sec. Solutions Inc., 141 F. Supp. 3d 1351 (M.D. Ga. 2015).

Employment of minor. - Child under age 14 assumes only such ordinary risks of employment as the child is capable of appreciating and understanding, and a master who, personally or through an authorized agent, directs such a child to do an act which, if performed according to the means and method provided by the master, would be attended with danger, owes the duty of warning the child of the dangers incident to its performance, and in doing so must take into consideration the child's incapacity to appreciate and understand danger. The duty incumbent upon the child is to exercise due care according to the child's age and the child's own actual capacity, rather than the ordinary care exacted by the general rule of every prudent person. Moore v. Ross, 41 Ga. App. 509 , 153 S.E. 575 (1930).

Since a minor 12 years of age does not as a matter of law possess the capacity to appreciate and apprehend dangers which are ordinarily patent and obvious to adult persons, an adult person, in ordering a minor of that age as a servant to work at a place and under circumstances when the minor is exposed to a danger which is patent and obvious to the employer, may in so employing the minor, be guilty of negligence. Jordan v. Batayias, 53 Ga. App. 538 , 186 S.E. 451 (1936).

Detour from duties. - Servant may not wander at will to out of the way or dangerous places on premises, or use parts for purposes wholly disconnected from, and in no way pertaining to, the business in hand or the objects of the servant's employment; and if in doing so the servant is injured, the liability of the master is no greater than it would be to a mere licensee. Austin v. Henry Grady Hotel Co., 58 Ga. App. 861 , 200 S.E. 466 (1938).

Duty owed to volunteers. - One who, without any employment whatever, but at the request of a servant who has no authority to employ other servants, voluntarily undertakes to perform service for a master, is a mere volunteer; and the master does not owe the servant any duty, except not to injure the servant willfully and wantonly after the servant's peril is discovered. Callaham v. Carlson, 85 Ga. App. 4 , 67 S.E.2d 726 (1951).

Action for damages against employer. - If the workers' compensation law does not apply to an "occupational disease" caused by injuries which are not the result of an accident and are not compensable under the provisions of the chapter, the employee may maintain an ordinary or common-law action for damages against the employer, provided a cause of action exists in the employee's favor under the law relating to the liability of a master, independently of the Workmen's Compensation Act (see now O.C.G.A. § 34-9-1 et seq.). Covington v. Berkeley Granite Corp., 182 Ga. 235 , 184 S.E. 871 , answer conformed to, 53 Ga. App. 269 , 185 S.E. 386 (1936).

When a fast-food restaurant cashier struck a customer, then got into a fight with the customer, customer's premises liability claim against the restaurant failed; restaurant did not have knowledge that the cashier would engage in such conduct because the cashier had indicated in a job application that the cashier had not been convicted of a felony, and during three months that the cashier worked at the restaurant prior to the altercation, there was no evidence that the cashier ever argued with, much less struck, customers. Dowdell v. Krystal Co., 291 Ga. App. 469 , 662 S.E.2d 150 (2008), cert. denied, 2008 Ga. LEXIS 787 (Ga. 2008).

Questions for jury resolution. - Ordinarily, what constitutes ordinary care, or the lack of it, whether a servant assumed a risk which caused the injury, and similar questions, are mixed issues of law and fact peculiarly for jury resolution, and to some extent must be based on inferences to be drawn from the evidence. Jones v. Aaron, 124 Ga. App. 738 , 186 S.E.2d 132 (1971).

Cited in King Mfg. Co. v. Walton, 1 Ga. App. 403 , 58 S.E. 115 (1907); King v. Seaboard Air-Line Ry., 1 Ga. App. 88 , 58 S.E. 252 (1907); Southern States Portland Cement Co. v. Helms, 2 Ga. App. 308 , 58 S.E. 524 (1907); Seaboard Air-Line Ry. v. Chapman, 4 Ga. App. 706 , 62 S.E. 488 (1908); Brown v. Rome Mach. & Foundry Co., 5 Ga. App. 142 , 62 S.E. 720 (1908); Hubbard v. Macon Ry. & Light Co., 5 Ga. App. 223 , 62 S.E. 1018 (1908); Southern Bell Tel. & Tel. Co. v. Covington, 139 Ga. 566 , 77 S.E. 382 (1913); Rome Scale Mfg. Co. v. Harvey, 15 Ga. App. 381 , 83 S.E. 434 (1914); Whitehurst v. Standard Oil Co., 8 F.2d 728 (5th Cir. 1925); Flippin v. Central of Ga. Ry., 35 Ga. App. 243 , 132 S.E. 918 (1926); Fulton Bakery, Inc. v. Williams, 37 Ga. App. 780 , 141 S.E. 922 (1928); Southern Ry. v. Jenkins, 39 Ga. App. 585 , 147 S.E. 800 (1929); Tanner v. Louisville & N.R.R., 45 Ga. App. 734 , 165 S.E. 761 (1932); Brannan v. City of Brunswick, 49 Ga. App. 62 , 174 S.E. 186 (1934); Estridge v. Hanna, 55 Ga. App. 159 , 189 S.E. 364 (1936); Paul v. Georgia R.R. & Banking Co., 60 Ga. App. 461 , 4 S.E.2d 99 (1939); Story v. Crouch Lumber Co., 61 Ga. App. 210 , 6 S.E.2d 86 (1939); Kidd v. Williamson, 61 Ga. App. 890 , 8 S.E.2d 590 (1940); Davis v. Georgia Coating Clay Co., 63 Ga. App. 265 , 11 S.E.2d 60 (1940); Daugherty v. Summerall, 64 Ga. App. 638 , 13 S.E.2d 705 (1941); Harris v. Price, 95 Ga. App. 521 , 98 S.E.2d 118 (1957); Martin v. Henson, 95 Ga. App. 715 , 99 S.E.2d 251 (1957); Milam v. Miss Ga. Dairies, Inc., 118 Ga. App. 791 , 165 S.E.2d 463 (1968); Webb v. Standard Oil Co., 414 F.2d 320 (5th Cir. 1969); Taylor v. Bolton, 121 Ga. App. 141 , 173 S.E.2d 96 (1970); Dodd v. Clary, 135 Ga. App. 296 , 217 S.E.2d 397 (1975); Barnes v. Allen Kane's Major Dodge, Inc., 148 Ga. App. 332 , 250 S.E.2d 876 (1978); Butler v. Shirah, 154 Ga. App. 111 , 267 S.E.2d 647 (1980); Ray v. Edwards, 557 F. Supp. 664 (N.D. Ga. 1982); Cherry v. Kelly Servs., Inc., 171 Ga. App. 235 , 319 S.E.2d 463 (1984); Patterson v. Southeastern Newspapers, Inc., 243 Ga. App. 241 , 533 S.E.2d 119 (2000); McCrary v. Middle Ga. Mgmt. Servs., 315 Ga. App. 247 , 726 S.E.2d 740 (2012); Barzey v. City of Cuthbert, 295 Ga. 641 , 763 S.E.2d 447 (2014).

Selection of Employees

Competency of employees. - The word "competent" should be given a comprehensive interpretation and include within its range of meaning all that "is essential to make up a reasonably safe person, considering the nature of the work, and the general safety of those who are required to associate with such person in the common general employment." Swift Mfg. Co. v. Phillips, 8 Ga. App. 425 , 69 S.E. 585 (1910).

Selection of incompetent servants is an act of negligence as will authorize a cause of action in favor of any person who is injured as the direct and proximate result thereof. Elrod v. Ogles, 78 Ga. App. 396 , 50 S.E.2d 791 (1948); Parry v. Davison-Paxon Co., 87 Ga. App. 51 , 73 S.E.2d 59 (1952). For comment, see 4 Mercer L. Rev. 368 (1953).

Employer's degree of care. - Master is not required to anticipate that a servant may be negligent, and to warn the servant of dangers which may arise from the possible negligence of others. Crown Cotton Mills v. McNally, 123 Ga. 35 , 51 S.E. 13 (1905).

As the liability of the master depends on the exercise of ordinary care it is necessary to determine a standard, and the well established rule is that the master must exercise such care as every prudent person would exercise under the circumstances. This criterion, as to what would be done under the circumstances, varies according to the time, place, and conditions. Otis Elevator Co. v. Rogers, 159 Ga. 53 , 125 S.E. 60 (1924).

Means a master could have been reasonably expected to take in order to prevent the driver of the master's automobile from causing a collision by improperly driving the automobile in the master's absence was the use of ordinary care in selecting the driver. Roberts v. Ethridge, 73 Ga. App. 400 , 36 S.E.2d 883 (1946).

Inasmuch as negligence was the basis of the master's liability for injuries to the master's employees, recovery may be had only when the master failed to exercise ordinary care in the selection and retention of servants and this rule was further qualified and restricted by this section. Southern Ry. v. Roberts, 206 F.2d 508 (5th Cir. 1953).

Duty of a master to select and retain only competent servants is not absolute, but is to be measured by knowledge, actual or constructive, of the probable results of the master's conduct. Likewise, when a servant has knowledge, or has an equal opportunity with the master to acquire knowledge, of the incompetency of servant's fellow servant there can be no recovery; in such a case the servant will be said to have "waived" the negligence of the master. Southern Ry. v. Roberts, 206 F.2d 508 (5th Cir. 1953).

Nothing in the record showed that the hospital failed to exercise ordinary care in the hiring process or in its retention of the alleged sexual molester; therefore, summary judgment was properly granted in favor of the hospital. Bunn-Penn v. Southern Regional Medical Corp., 227 Ga. App. 291 , 488 S.E.2d 747 (1997).

Trial court properly granted summary judgment to the health center on the patient's claim that it was responsible for the negligent hiring/retention of the mental health assistant who allegedly raped the patient, as the health center showed that it exercised ordinary care not to hire a person who posed a reasonably foreseeable risk of inflicting harm on others by hiring a professional investigation service to do a background check on the mental health assistant; as a result of that background check, the service advised the health center that the mental health assistant had not been involved in criminal activity and the patient did not show that the health center otherwise knew that the mental health assistant posed a risk of harm to its patients. Munroe v. Universal Health Servs., Inc., 277 Ga. 861 , 596 S.E.2d 604 (2004).

Because the screening protocols used by the defendant hospital and the hospital's officials in hiring a substance abuse counselor sufficiently satisfied the standard of care for hiring under O.C.G.A. § 34-7-20 in that an outside firms' criminal background check revealed no criminal activity, a drug screen showed no evidence of drug use, and no negative information was received upon attempts to contact prior employers, a claim of negligent hiring by the plaintiff patients, who alleged the counselor sexually harassed the plaintiffs, failed. Doe v. Fulton-DeKalb Hosp. Auth., 628 F.3d 1325 (11th Cir. 2010).

Jury question was presented as to a driver's claim for negligent hiring of a police officer because the city could have learned of a previous similar incident of drunkenness and belligerence if the city had contacted the officer's supervisor at the officer's prior employment as required by city operating procedures. Graham v. City of Duluth, 328 Ga. App. 496 , 759 S.E.2d 645 (2014).

Leaving servant in dangerous emergency. - There is a plain breach of the master's nondelegable duty when the master leaves the servant in a dangerous emergency through the lack of an adequacy of helpers. Sparta Oil Mill v. Russell, 6 Ga. App. 293 , 65 S.E. 37 (1909).

Inadequacy of fellow servant and misrepresentation by master. - See Beard v. Georgia Mfg. Co., 8 Ga. App. 618 , 70 S.E. 57 (1911).

Psychological testing of employees. - When an employee has absolutely no background of prior criminal or dangerous propensities and, during the employee's employment for a substantial number of years, the employee has had a good work record without a single complaint from customers, the employer may not be found negligent in hiring and retaining such an employee because of a failure to require such an employee to submit to psychological testing or interviews. Southern Bell Tel. & Tel. Co. v. Sharara, 167 Ga. App. 665 , 307 S.E.2d 129 (1983).

Presumption that master's duty is discharged. - It is always presumed that the master has discharged the master's duties to the servant, and this includes the duty to provide a sufficient force of competent workmen as well as all the other personal duties of the master. Baxley v. Satilla Mfg. Co., 114 Ga. 720 , 40 S.E. 730 (1902).

When liability arises. - Liability of a master arises because of the omission of the duty to provide competent fellow servants, and not because the negligence of the latter is, in law, imputable to the master. Ingram v. Hilton & Dodge Lumber Co., 108 Ga. 194 , 33 S.E. 961 (1899); Corcoran v. Merchants & Miners Transp. Co., 1 Ga. App. 741 , 57 S.E. 962 (1907), later appeal, 4 Ga. App. 654 , 62 S.E. 130 (1908); Strickland v. Foughner, 63 Ga. App. 805 , 12 S.E.2d 371 (1940).

Proof of employer's negligence. - Injured servant must show the following facts: (1) that the fellow servant was incompetent; (2) that the injury complained of resulted directly or proximately from such incompetency; (3) either (a) that the master knew of such incompetency, or (b) that by the exercise of ordinary care the master could have known of it; (4) that the injured servant did not know of such incompetency; (5) that by the exercise of ordinary care the injured servant could not have known of it; and (6) the servant did not have equal means with the master of acquiring knowledge of such fact. Camilla Cotton Oil & Fertilizer Co. v. Walker, 21 Ga. App. 603 , 94 S.E. 855 (1918); Strickland v. Foughner, 63 Ga. App. 805 , 12 S.E.2d 371 (1940).

Before recovery can be had against a master for negligently employing an incompetent fellow servant it must appear that the master knew, or by the exercise of due diligence should have known, of the incompetency at the time of the employment; or else that the master negligently retained such fellow servant after the master was fairly chargeable with knowledge of such incompetency. Strickland v. Foughner, 63 Ga. App. 805 , 12 S.E.2d 371 (1940).

Summary judgment was granted to the defendant employer on the plaintiff employee's claim for negligent retention under O.C.G.A. § 34-7-20 because the plaintiff did not present evidence to create a genuine issue of material fact as to whether the defendant negligently retained the defendant's manager. Ekokotu v. Fed. Express Corp., F.3d (11th Cir. Jan. 19, 2011), cert. denied, 132 S. Ct. 420 , 181 L. Ed. 2 d 260 (U.S. 2011)(Unpublished).

Trial court properly directed a verdict in favor of a hotel in a guest's suit against the hotel for negligent hiring and retention of a massage therapist, who allegedly sexually assaulted the guest, because the guest did not introduce evidence to show that the hotel knew or reasonably should have known that the massage therapist had a tendency to engage in behavior relevant to the guest's injuries. Tomsic v. Marriott Int'l, Inc., 321 Ga. App. 374 , 739 S.E.2d 521 (2013).

Employer's knowledge of discrimination. - School district was not liable under O.C.G.A. § 34-7-20 because there was no evidence to show that the district knew or should have known about the discriminatory tendencies of a superintendent as the employee did not inform the school board of the alleged discrimination until three days before the employee was terminated, nor was there evidence of complaints by other individuals. Palmer v. Stewart County Sch. Dist., F. Supp. 2d (M.D. Ga. June 17, 2005).

Sexual harassment. - Court affirmed a district court's grant of summary judgment to an employer and a supervisor on two employees' O.C.G.A. § 34-7-20 claims of negligent hiring and retention of the supervisor, who allegedly sexually harassed the two employees; the employer was not put on notice of the supervisor's alleged propensity for sexual harassment by previous complaints that the supervisor stared at people and touched a co-worker's thigh, as such behavior was not considered to be sexual harassment, nor was there any evidence that these incidents were sexual in nature. Herron v. Morton, F.3d (11th Cir. Sept. 28, 2005)(Unpublished).

Servant's degree of care. - Servant cannot recover if by the exercise of ordinary care the servant could have known of the incompetency. Strickland v. Foughner, 63 Ga. App. 805 , 12 S.E.2d 371 (1940).

Speeding as indicating competency of employee. - Trial court erred in granting an employer's motion for summary judgment in a widow's action to recover for the damages a driver sustained when the driver's car crashed into a tractor-trailer an employee had parked on the side of the road because a jury had to resolve the issues of whether the employee's moving violations, speeding, indicated that the employee would be an incompetent driver and whether the employer failed to exercise reasonable care in hiring and retaining the employee. Coe v. Carroll & Carroll, Inc., 308 Ga. App. 777 , 709 S.E.2d 324 (2011).

Impact of failure of federal discrimination suit. - After an employee's federal national origin discrimination and retaliation claims failed, the employee's derivative state law claim of negligent retention and supervision failed because the contested conduct did not amount to a substantive violation of the federal statute. Ekokotu v. Fed. Express Corp., F.3d (11th Cir. July 15, 2013)(Unpublished).

Jury charge distinguishing negligence and incompetency. - In a case so requiring, the distinction between the negligence of a competent servant and the unskillfulness of an incompetent servant should be clearly pointed out to the jury. Ingram v. Hilton & Dodge Lumber Co., 108 Ga. 194 , 33 S.E. 961 (1899).

Safety of Place of Work

Applicability of Workers' Compensation Act. - When an employer and employee are under the provisions of the Workers' Compensation Act, a claim by the employee that the employer failed to furnish the employee with a safe place to work, even if wilfully done, is encompassed within the Act. Garrett v. K-Mart Corp., 197 Ga. App. 374 , 398 S.E.2d 302 (1990).

Master's duty to insure safety. - Among the nonassignable duties of the master is that of providing the servant a reasonably safe place to work. Chenall v. Palmer Brick Co., 117 Ga. 106 , 43 S.E. 443 (1903); Colley v. Southern Cotton Oil Co., 120 Ga. 258 , 47 S.E. 932 (1904); Turner v. Seville Gin & Whse. Co., 127 Ga. 555 , 56 S.E. 739 (1907); Eagle & Phenix Mills v. Johnson, 131 Ga. 44 , 61 S.E. 990 (1908); International Cotton Mills v. Webb, 22 Ga. App. 309 , 96 S.E. 16 (1918).

Master is bound to make reasonable provision for the protection of the servant against dangers to which the servant is exposed while engaged in the work the servant is employed to perform. Chenall v. Palmer Brick Co., 117 Ga. 106 , 43 S.E. 443 (1903); Jackson v. Merchants & Miners Transp. Co., 118 Ga. 651 , 45 S.E. 254 (1903); Colley v. Southern Cotton Oil Co., 120 Ga. 258 , 47 S.E. 932 (1904).

Duty of the master to furnish a safe place for the servant to work is not absolute and unqualified. Some kinds of work are necessarily attended with dangers against which the master cannot by any degree of diligence provide. In such case the law does not require of the master impossibilities; but if, by exercising ordinary care, the master can make safe the place wherein the servant is to labor, it is the master's duty to do so. Merchants & Miners Transp. Co. v. Jackson, 120 Ga. 211 , 47 S.E. 522 (1904); Otis Elevator Co. v. Rogers, 159 Ga. 53 , 125 S.E. 60 (1924).

It is a master's duty to exercise ordinary and reasonable care to furnish a safe place to work. Whitehurst v. Standard Oil Co., 8 F.2d 728 (5th Cir. 1925); Holman v. American Auto. Ins. Co., 201 Ga. 454 , 39 S.E.2d 850 (1946); Owensby v. Jones, 109 Ga. App. 398 , 136 S.E.2d 451 (1964).

Master is under an absolute duty to a servant to furnish the servant a safe working place and to warn of unusual or newly developed dangers which arise in the course of the employment and which are likely to escape an ordinarily prudent servant's knowledge under the circumstances. The servant may, without creating an imputation of personal negligence, rely upon the master's performance of these duties until such time as the servant shall discover, or in the exercise of ordinary diligence should discover, that there has been a failure in this respect upon the master's part. Simowitz v. Register, 60 Ga. App. 180 , 3 S.E.2d 231 (1939).

Employer is not the insurer of an employees' safety and is bound only to the exercise of reasonable care in this connection. Carter v. Callaway, 87 Ga. App. 754 , 75 S.E.2d 187 (1953).

Master's specific duty of care. - Master's specific duty to furnish a safe place to work relates to the equipment of houses, plants and other similar structures, though, of course, it is a general duty of the master, as to all times and all places, not to expose the servant to an extraordinary hazard, of which the master has knowledge, actual or constructive, and of which the servant is ignorant, and could not by ordinary diligence acquire knowledge. Atkinson v. Empire Printing & Box Co., 76 Ga. App. 206 , 45 S.E.2d 280 (1947).

Latent defects. - Under this section "if there are latent defects in the construction of the place of work which are, or in the exercise of ordinary care could be, known to the master, and which are unknown to the servant, it is the duty of the master to warn the servant thereof." Crown Cotton Mills v. McNally, 123 Ga. 35 , 51 S.E. 13 (1905); Southern Cotton Oil Co. v. Horton, 22 Ga. App. 155 , 95 S.E. 765 (1918).

Master's duty of inspection. - When the presence of the defect in the premises is latent, the master is held to a higher standard of conduct than the servant, since the master owes to the servant the duty of inspection; if its presence is hidden, the master would be bound to discover the fact sooner than the servant, because the duty of inspection rests upon the master and not upon the servant. Nashville, C. & St. L. Ry. v. Hilderbrand, 48 Ga. App. 140 , 172 S.E. 87 (1933).

Places to which duty applies. - Duty of the master to furnish a safe place to work is usually applied to a permanent place, or one which is quasi-permanent. It does not apply to such places as are constantly shifting and being transformed as a direct result of the servant's labor, and when the work in its progress necessarily changes the character for safety of the place in which it is performed as it progresses. Upchurch v. Culpepper, 17 Ga. App. 577 , 87 S.E. 834 (1916).

The general rule in regard to the duty of the master to furnish a safe place to work is not rendered inapplicable merely because the servant was engaged in construction work, and that at the time of the injury the object being constructed was in an unfinished state, to some extent changing from day to day. If it were otherwise, it would be difficult to find a case in which a servant was engaged in performing labor for a master and the rule would apply. Practically all labor normally tends to change the condition of the thing labored upon; otherwise it would be useless. Terry Shipbuilding Corp. v. Griffian, 153 Ga. 390 , 112 S.E. 374 (1922); Tufts v. Threlkeld, 31 Ga. App. 452 , 121 S.E. 120 (1923).

Church members. - Summary judgment was not proper when a question of fact remained regarding member's competence to undertake a project and the evidence presented a question of fact as to whether a church negligently created a hazard on the property which precipitated a member's injuries. Piney Grove Baptist Church v. Goss, 255 Ga. App. 380 , 565 S.E.2d 569 (2002).

Buildings. - Master is not obligated to keep a building, which the master's servants are employed in erecting, in a safe condition at every moment of their work, so far as its safety depends on the due performance of that work by them and their fellow servants. Byrd v. Thompson, 146 Ga. 300 , 91 S.E. 100 (1916).

City sewers. - City acting under authority of its charter in the repairing or construction of sewers is bound to the same rule of diligence as to providing a reasonably safe place for its employees to work that applies in the case of a private contractor. City of Atlanta v. Trussell, 21 Ga. App. 340 , 94 S.E. 649 (1917).

Platforms and scaffolds. - Master is not, under the master's general duty of respecting the servant's safety, held to the same quantum of care in the erection of platforms and scaffolds intended only for temporary use as the master is in the building and maintenance of more permanent structures. Riverside Mills v. Brooks, 6 Ga. App. 67 , 64 S.E. 282 (1909); Dunn & Bro. v. Morris, 132 Ga. 440 , 64 S.E. 321 (1909).

Servant's reliance upon performance of duty. - Pursuant to the provisions of this section, a servant can rely upon the performance of the duty of furnishing a safe place in which to work. Danger arising from an unsafe place is not included within the risks assumed by the servant. International Cotton Mills v. Carroll, 22 Ga. App. 26 , 95 S.E. 472 (1918); Southern Cotton Oil Co. v. Horton, 22 Ga. App. 155 , 95 S.E. 765 (1918); Tufts v. Threlkeld, 31 Ga. App. 452 , 121 S.E. 120 (1923).

Servant has the right to assume that the servant's master has performed the duty of furnishing the servant with a safe place to work, and is under no obligation to inspect the same in order to discover latent defects not open to ordinary observation; a danger arising from an unsafe place is not included among the risks assumed by the servant and the duty of inspection rests upon the master and not upon the servant. Nashville, C. & St. L. Ry. v. Hilderbrand, 48 Ga. App. 140 , 172 S.E. 87 (1933); Dessau v. Achord, 50 Ga. App. 426 , 178 S.E. 396 (1935).

Servant can rely upon the performance of the duty of furnishing a safe place in which to work; danger arising from an unsafe place is not included within the risks assumed by the servant. Middlebrooks v. Atlanta Metallic Casket Co., 63 Ga. App. 620 , 11 S.E.2d 682 (1940).

Duty of servant. - A servant is bound to observe open and obvious dangers such as would be disclosed by the exercise of ordinary care. Nashville, C. & St. L. Ry. v. Hilderbrand, 48 Ga. App. 140 , 172 S.E. 87 (1933).

A servant or an employee is not required to make a special inspection of the condition of the working place furnished to the servant, but if, by exercising ordinary care, the servant can discover the condition of it, it is the servant's duty to do so. Spivey v. Lovett & Brinson, 48 Ga. App. 335 , 172 S.E. 658 (1934).

Servant must exercise like care in discovering defects therein. Carter v. Callaway, 87 Ga. App. 754 , 75 S.E.2d 187 (1953).

Evidence. - When no facts were alleged to show that the defendant had knowledge that the dog on the premises was vicious, or that it would be unsafe for the employee to work in the house with the dog present, the employee failed to set out a cause of action because of the failure to allege facts showing the defendant knew, or should have known of the danger. Hays v. Anchors, 71 Ga. App. 280 , 30 S.E.2d 646 (1944).

Jury charge. - Charge to the jury which omits to qualify the word "safe" by "reasonably" is inaccurate, but will not constitute reversible error if the evidence is clear and convincing. Eagle & Phenix Mills v. Moncrief, 17 Ga. App. 10 , 86 S.E. 260 (1915).

Safety of Tools and Machinery

Care of master in general. - Master is not an insurer with reference to character of machinery. Merchants & Miners Transp. Co. v. Jackson, 120 Ga. 211 , 47 S.E. 522 (1904).

It is not incumbent upon the master to procure the best and safest machinery which can be made. It is sufficient if the machinery is of a kind in general use, and reasonably safe for all persons who operate it with ordinary care and diligence. Vinson v. Willingham Cotton Mills, 2 Ga. App. 53 , 58 S.E. 413 (1907); Belk v. Lee Roy Myers Co., 17 Ga. App. 684 , 87 S.E. 1089 (1916).

Master is bound to exercise ordinary care in furnishing machinery and appliances equal to those in general use, and reasonably safe for all persons who operate them with ordinary care and diligence in furtherance of the purposes for which such instrumentalities are intended and if the proximate cause of an injury consists in the failure of the master to perform the duty thus actually devolving upon the master, the master is liable to the injured servant, provided the servant, by the exercise of ordinary care, could not have prevented the injury personally. Walters v. Berry Schools, 40 Ga. App. 751 , 151 S.E. 544 (1930).

While an employer is required to exercise ordinary care to furnish a safe place to work, the employer is not required to furnish the newest, safest, or best tools or methods of operation, or adopt extraordinary or unusual safeguards against risks and dangers. Hollingsworth v. Thomas, 148 Ga. App. 38 , 250 S.E.2d 791 (1978).

Purposes for which machinery obtained. - Ordinary diligence requires a master to furnish to the master's servant appliances reasonably suited for the uses intended, but the law does not exact of the master the extraordinary diligence which would be demanded if it were required that instrumentalities intended for one use should be safe and suitable for every unintended use to which they might be casually or unexpectedly applied. Babcock Bros. Lumber Co. v. Johnson, 120 Ga. 1030 , 48 S.E. 438 (1904).

Appliances used for other than intended purpose. - If the master requires a servant to use or knows that the servant will necessarily use, an appliance originally intended for another purpose, the servant will thereby be held responsible, as if the instrumentality had originally been intended for such new use. Babcock Bros. Lumber Co. v. Johnson, 120 Ga. 1030 , 48 S.E. 438 (1904).

Defective tools. - This section was now applicable in cases of injuries arising from defective tools. Williams v. Garbutt Lumber Co., 132 Ga. 221 , 64 S.E. 65 (1909).

It is actionable negligence for a master to order a servant to work with an unsafe instrumentality, and an assurance of safety, coupled with the order, not only aggravates the master's negligence, but also relieves the servant from the assumption of the risk; the assurance of safety likewise makes the question of the servant's contributory negligence one for solution by the jury, unless the danger is so obvious that to undertake to encounter it amounts to plain rashness. Atlanta, Birmingham & Coast R.R. v. King, 55 Ga. App. 1 , 189 S.E. 580 (1936).

Negligent inspection or maintenance of appliances. - Among the absolute duties of the master is that of making inspections for the discovery of defects and dangers in those instrumentalities within the range of which the servant is likely to come in the discharge of the servant's duties; hence, by law, the master ought to know of such defects as a reasonable inspection would disclose. Moore v. Dublin Cotton Mills, 127 Ga. 609 , 56 S.E. 839 , 10 L.R.A. (n.s.) 772 (1907); Southern States Portland Cement Co. v. Helms, 2 Ga. App. 308 , 58 S.E. 524 (1907), later appeal, 6 Ga. App. 153 , 64 S.E. 494 (1909); Southern Bell Tel. & Tel. Co. v. Shamos, 12 Ga. App. 463 , 77 S.E. 312 (1913); Spencer v. Lauer & Harper Co., 14 Ga. App. 35 , 81 S.E. 387 (1913).

If the appliance actually furnished, even though not legally required, is or becomes dangerous for use by the servant, and by its own positive act, as distinguished from a harmless failure to act or function, injures the servant, the master will become liable for negligent inspection or maintenance, under recognized principles of the common law applicable in such cases. Southern Ry. v. Goree, 54 Ga. App. 134 , 187 S.E. 297 (1936), later appeal, 57 Ga. App. 63 , 194 S.E. 609 (1937).

A master owes a servant the duty of inspection. Rogers v. Bragg, 117 Ga. App. 295 , 160 S.E.2d 217 (1968).

Employee's knowledge of defect. - In a farm employee's action for negligence against an employer, there was no basis for a recovery under O.C.G.A. § 34-7-20 , when the evidence was uncontroverted that the employee had equal knowledge with the employer of a defect in the "power takeoff" of the tractor, the employee's claim was barred by the plain language of O.C.G.A. § 34-7-23 and the trial court erred in giving a separate instruction on the liability for furnishing defective machinery which was not adjusted to the evidence. Strickland v. Howard, 214 Ga. App. 307 , 447 S.E.2d 637 (1994).

Inspection for latent defects. - When defects in machinery or appliances are such as to deceive human judgment, the master as well as the servant stands excused for a failure to discover them. Baxley v. Satilla Mfg. Co., 114 Ga. 720 , 40 S.E. 730 (1902); Holland v. McRae Oil & Fertilizer Co., 134 Ga. 678 , 68 S.E. 555 (1910).

Master who, after purchasing a permanent structure or plant for a particular business, puts a servant to work therein or thereon, is not liable to such servant for injuries sustained by reason of a latent defect therein, if the master has exercised ordinary and reasonable care to detect the latent defect and has failed to discover it. Atlantic & Birmingham R.R. v. Reynolds, 117 Ga. 47 , 43 S.E. 456 (1903).

Master would be negligent, under this section, not to warn the servant of a latent defect, if the master knew, or by the exercise of ordinary care, could have known of its existence. Lawrenceville Oil Mill v. Walton, 143 Ga. 259 , 84 S.E. 584 (1915).

In the case of the latent defects which are discoverable by proper inspection, the master is necessarily held to a higher standard of conduct than the servant, since the master owes to the servant the duty of inspection. Owensby v. Jones, 109 Ga. App. 398 , 136 S.E.2d 451 (1964).

Principle regarding latent defects is applicable also in the relationship of employer to independent contractor. Seagraves v. Abco Mfg. Co., 118 Ga. App. 414 , 164 S.E.2d 242 (1968), later appeal, 121 Ga. App. 224 , 173 S.E.2d 416 (1970).

In a case of latent defects (those which are only discoverable by proper inspection) the master is necessarily held to a higher standard of conduct than the servant, since the master owes to the servant the duty of inspection. Harris v. Strickland, 204 Ga. App. 889 , 421 S.E.2d 91 (1992).

Trial court erred in giving the charge on the "equal means" of the plaintiff's child of knowing of the alleged defect in the tractor seat when there was no evidence that the plaintiff's child had actual knowledge of the allegedly defective tractor seat. There was no evidence that inspecting the tractor was part of the assigned duties of the plaintiff's child. Harris v. Strickland, 204 Ga. App. 889 , 421 S.E.2d 91 (1992).

Loose bolt as latent defect. - Looseness of the bolt attaching a seat to a mower frame which allowed it to slip out and thus permitted the seat to fall off was a latent defect. Chastain v. Fuqua Indus., Inc., 156 Ga. App. 719 , 275 S.E.2d 679 (1980).

Latent defect not in machinery itself. - When the evidence does not show a latent defect in the machinery itself, but the evidence was sufficient to support appellees' theory that there was a latent defect in the manner in which the machinery was installed, or in the appellants' failure to install a warning device on the machinery, the trial court did not err in giving a jury charge under this section. McClurd v. Reddick, 135 Ga. App. 136 , 217 S.E.2d 163 (1975).

Newly developed dangers. - Master is under an absolute duty to the servant to warn the servant of any unusual or newly developed changes which arise in the course of the employment and which are likely to escape an ordinary prudent servant's knowledge under the circumstances. Southern Cotton-Oil Co. v. Gladman, 1 Ga. App. 259 , 58 S.E. 249 (1907).

Machinery to be repaired. - When a master employed a servant not to work with machinery, but to repair it when defective or out of order, the provisions of this section did not apply to the machinery to be repaired. Green v. Babcock Bros. Lumber Co., 130 Ga. 469 , 60 S.E. 1062 (1908).

Liability of master due to third person. - If the master uses the instrumentality in the master's business, and so deals with it as to practically adopt it as the master's own, the master becomes, relative to a servant injured, the owner, and is under the same duty to the servant as an owner would be. Central of Ga. Ry. v. McClifford, 120 Ga. 90 , 47 S.E. 590 (1904); Southern Bell Tel. & Tel. Co. v. Covington, 139 Ga. 566 , 77 S.E. 382 (1913).

Inspection by servant. - Servant is under no obligation to inspect appliances to discover concealed dangers which would not be disclosed by superficial observation. Southern States Portland Cement Co. v. Helms, 2 Ga. App. 308 , 58 S.E. 524 (1907), later appeal, 6 Ga. App. 153 , 64 S.E. 494 (1909); Decatur Lumber Co. v. Fulton, 26 Ga. App. 499 , 106 S.E. 609 (1921); Alford v. Zeigler, 65 Ga. App. 294 , 16 S.E.2d 69 (1941).

Not only is it true that the duty of inspecting for defects which would not be disclosed by superficial observation is not primarily imposed upon a servant who is employed merely to operate a machine or to see that it is operated, except when the injured employee is an inspector, the master's means of knowledge of latent defects in the machinery furnished are primarily to be considered as greater than those of the servant. Decatur Lumber Co. v. Fulton, 26 Ga. App. 499 , 106 S.E. 609 (1921).

Instruction of servants. - Purpose of instruction by the master to inexperienced servants is to inform them of the danger. Crown Cotton Mills v. McNally, 123 Ga. 35 , 51 S.E. 13 (1905).

Instruction of servants is the nonassignable duty of the master. Moore v. Dublin Cotton Mills, 127 Ga. 609 , 56 S.E. 839 , 10 L.R.A. (n.s.) 772 (1907).

Master is bound to instruct inexperienced servants, without reference to their age, in the operation of machinery and appliances with which they are not acquainted. Moore v. Dublin Cotton Mills, 127 Ga. 609 , 56 S.E. 839 , 10 L.R.A. (n.s.) 772 (1907).

Servant's standard of care. - If a danger is obvious and as easily known to the servant as to the master, the latter will not be liable for a failure to warn. Crown Cotton Mills v. McNally, 123 Ga. 35 , 51 S.E. 13 (1905); Hendrix v. Vale Royal Mfg. Co., 134 Ga. 712 , 68 S.E. 483 (1910); Tufts v. Threlkeld, 31 Ga. App. 452 , 121 S.E. 120 (1923).

When a peril is obvious or so patent as to be readily understood by the employee by the reasonable use of the employee's senses, having in view the employee's age, intelligence, and experience, the employee will not be heard to say that the employee did not realize or appreciate it. Atlanta, Birmingham & Coast R.R. v. King, 55 Ga. App. 1 , 189 S.E. 580 (1936).

If the danger from the continued use of a defective tool or instrument is so obvious or apparent that an ordinarily prudent person would not continue to use the instrument, a servant, although the servant may have received assurances of safety from the master, may not continue its use and hold the master liable for ensuing injury, as the use by the servant of an obviously dangerous instrument amounts to the failure to use ordinary care to avoid the consequences of the master's negligence. Atlanta, Birmingham & Coast R.R. v. King, 55 Ga. App. 1 , 189 S.E. 580 (1936).

Compliance with master's specific command. - Servant is bound to obey a master's order unless the command includes a violation of the law, or the act required is so obviously dangerous that no person of ordinary prudence would undertake to perform it and when the master personally gives the order and the servant obeys it, and is injured as a consequence thereof, of course, the master is liable. Padgett v. Southern Ry., 48 Ga. App. 214 , 172 S.E. 597 (1934).

Whether or not a master is negligent in ordering a servant to work under dangerous and hazardous conditions may depend upon the capacity of the servant, due to the servant's age or otherwise, known to the master, to appreciate the danger of the conditions of the employment. Jordan v. Batayias, 53 Ga. App. 538 , 186 S.E. 451 (1936).

If an order was negligent and the servant knew of the peril of complying with it, or if the servant had equal means with the master of knowing of the peril, or by the exercise of ordinary care might have known thereof, then the servant could not recover for an injury received in complying with the order. Abercrombie v. Ivey, 59 Ga. App. 296 , 200 S.E. 551 (1938).

In an action for injuries to a servant resulting from the servant's compliance with a direct and specific command of the master given with reference to an instrumentality by which the master's work is to be performed, the danger or risk incurred by the servant is not assumed by virtue of the employment, unless it involves a violation of law or the act required is so obviously dangerous that no person of ordinary prudence would undertake to perform it. Louisville & N.R.R. v. Crapps, 62 Ga. App. 437 , 8 S.E.2d 413 (1940).

If a servant points out a danger and the master orders the servant to pursue a dangerous activity anyway, the master is liable for any injury which results. Webb v. Standard Oil Co., 451 F.2d 284 (5th Cir. 1971).

Master's assurance of safety. - When the master says, "it is safe," the law will construe these words as such a warranty that a breach of it will release the servant from the assumption of the risk. Dessau v. Achord, 50 Ga. App. 426 , 178 S.E. 396 (1935).

Employee, in using a defective appliance furnished the servant by the master, does not necessarily assume the risk when the servant is assured by the master that the appliance is in a safe and proper condition for use. Louisville & N.R.R. v. Crapps, 62 Ga. App. 437 , 8 S.E.2d 413 (1940).

When the master commanded the servant to proceed with work which the master knew was dangerous with the assurance to the servant that it was not dangerous, such act on the part of the master relieved the servant of the implied agreement of assumption of risk as to the particular activity warranted as safe, and the master cannot set up as a defense the assumption of risk set forth in former Code 1933, § 66-303 (see now O.C.G.A. § 34-7-23 ). Swails v. Carpenter, 112 Ga. App. 117 , 144 S.E.2d 182 (1965).

Servant cannot reasonably rely on a master's "assurances" that a hazardous condition will be corrected, and a servant must bear the loss from any injury resulting from obvious dangers, despite the fact that the servant's actions were sanctioned by the master. Webb v. Standard Oil Co., 451 F.2d 284 (5th Cir. 1971).

Assumption of risk. - When a servant for 20 years voluntarily undertook the duty of climbing a ladder which the servant described as a very dangerous activity and knew to be risky, the employer is not liable despite the employer's assurances to the servant that the ladder's dangerous condition would be repaired, since the servant assumed the risk. Webb v. Standard Oil Co., 451 F.2d 284 (5th Cir. 1971).

Suspension of assumption of risk. - Fault or "assumption of risk" implied from a servant's knowledge that a tool, instrument, appliance, piece of machinery, or place of work is defective or dangerous is suspended by the master's promise to repair, made in response to the servant's complaint, so that if the servant is induced by such promise to continue at work, the servant may recover for any injury which the servant sustains by reason of such defect within a reasonable time after the making of the promise. Atlanta, Birmingham & Coast R.R. v. King, 55 Ga. App. 1 , 189 S.E. 580 (1936).

Abrogation of assumption of risk. - While ordinarily the law reads into contracts of employment an agreement on the servant's part to assume the known risks of the employment so far as the servant has the capacity to realize and comprehend them, this implication may be abrogated by an express or implied agreement to the contrary; if the servant complains to the master that the instrumentality appears to be dangerous, and thereupon the master commands the servant to proceed with the work and assures the servant there is no danger, the law implies a quasi-new agreement whereby the master relieves the servant of the servant's former assumption of the risk and places responsibility for the ensuing injury upon the master. Atlanta, Birmingham & Coast R.R. v. King, 55 Ga. App. 1 , 189 S.E. 580 (1936).

When a servant complained to the master that the instrumentality supplied by the master for the servant to accomplish the servant's assigned task appeared to be dangerous, and thereupon the master commanded the servant to proceed with the work, and assured the servant there was no danger, then, unless the danger was so obvious and manifest that no prudent person would expose himself thereto, the law implied a quasi-new agreement whereby the master relieves the servant from the servant's former assumption of risk under former Code 1933, § 66-303 (see now O.C.G.A. § 34-7-23 ) and placed responsibility for resulting injuries upon the master. Alford v. Zeigler, 65 Ga. App. 294 , 16 S.E.2d 69 (1941).

Employee's appreciation of danger bars action. - If a servant's knowledge of danger is equal to that of the master, a nonsuit is proper. Central of Ga. Ry. v. Henderson, 6 Ga. App. 459 , 65 S.E. 297 (1909).

Although an employee may have had knowledge, as of a physical fact, of the defective condition of a tool, appliance or place, by reason of which the employee has sustained an injury, it by no means follows that the employee must have appreciated the danger to which the employee was exposed thereby; if this is shown to have been the case, the employee's right of recovery is not defeated, for it is an appreciation of the danger, not mere knowledge of the defect by which the danger is threatened, that bars the employee's action. Atlanta, Birmingham & Coast R.R. v. King, 55 Ga. App. 1 , 189 S.E. 580 (1936); Simowitz v. Register, 60 Ga. App. 180 , 3 S.E.2d 231 (1939).

It is the employee's appreciation of the danger, not mere knowledge of the defect by which the danger is threatened, that bars the employee's action. When, however, a peril is obvious or so patent as to be readily understood by the employee by the reasonable use of the employee's senses, having in view the employee's age, intelligence, and experience, the employee will not be heard to say that the employee did not realize or appreciate it. Simowitz v. Register, 60 Ga. App. 180 , 3 S.E.2d 231 (1939).

Pleadings. - Deficiency may be sufficiently alleged by stating that the particular contrivance was so constructed or maintained that it gave forth a result which it was designed to prevent, and which such contrivances, as they are usually constructed and maintained, do prevent. Alford v. Zeigler, 65 Ga. App. 294 , 16 S.E.2d 69 (1941).

Defect may be described by showing that a machine was in a condition that produced certain definitely described results, which a machine not defective would not and should not produce. It is not necessary to describe minutely or particularly the physical appearance of the parts alleged to be defective. Alford v. Zeigler, 65 Ga. App. 294 , 16 S.E.2d 69 (1941).

Motion to dismiss. - When in a suit for personal injuries it is manifest from the allegations of the plaintiff's petition that the plaintiff had at least equal opportunities with the master (the defendant) of discovering the defective condition of an appliance from which the injuries complained of resulted, a general demurrer (now motion to dismiss) to the petition was properly sustained. Lee v. Atlantic C.L.R.R., 125 Ga. 655 , 54 S.E. 678 (1906).

Jury question as to master's liability. - It was for the jury to determine whether, under the alleged misrepresentations and commands of the alter ego of the master, given to the servant with reference to the manner and instrumentality by which the master's work was to be done, and under the master's assurance of safety given to the servant, the injury sustained by the servant resulted from the alleged negligent misrepresentations and commands by the master; and, if so, whether the servant, in acting upon the misrepresentations and obeying the commands, was exercising ordinary care for the servant's own protection. Padgett v. Southern Ry., 48 Ga. App. 214 , 172 S.E. 597 (1934).

Safety of Materials and Danger of Disease

Employee's knowledge. - Employee is not presumed to have knowledge of the hidden dangers requiring scientific knowledge to fully appreciate, or to assume risk thereof; unless the employee is warned or undertakes the work with such knowledge, the employee is not as a matter of law chargeable therewith. Middlebrooks v. Atlanta Metallic Casket Co., 63 Ga. App. 620 , 11 S.E.2d 682 (1940).

Master's duty to warn. - Master is conclusively presumed to have knowledge of the nature of the constituents and general characteristics of the substances and things used in the master's business, which frequently makes the knowledge implied against the master superior to that implied against the servant as to things used in connection with the master's business. Having such knowledge, the master is under a duty to warn the servant of the dangers involved. Genesco, Inc. v. Greeson, 105 Ga. App. 798 , 125 S.E.2d 786 (1962).

When there are dangers incident to the employment, unknown to the servant, of which the master knows or ought to know, the master is under a duty to give warning thereof. Rogers v. Bragg, 117 Ga. App. 295 , 160 S.E.2d 217 (1968).

Duty to warn of disease. - Master must warn a servant of the conditions under which the servant is employed which are liable to engender disease, and must furnish suitable protection from such danger, provided that the master is in a position to have greater knowledge of the danger than the servant. Middlebrooks v. Atlanta Metallic Casket Co., 63 Ga. App. 620 , 11 S.E.2d 682 (1940).

Employer's liability for disease. - Although the defendant hospital was not an insurer of the safety of its employees, it had the duty to use reasonable care to protect them against the dangers of employment which might reasonably be expected to produce disease, and would be liable to the plaintiff employee for a disease contracted in the course of employment, when the disease was brought about by the negligence of the employer. Thigpen v. Executive Comm. of Baptist Convention, 114 Ga. App. 839 , 152 S.E.2d 920 (1966); Miss Ga. Dairies, Inc. v. McLarty, 114 Ga. App. 259 , 150 S.E.2d 725 (1966).

Assumption of skill. - Under the "assumption of skill" doctrine, whereunder the master's technical or scientific knowledge of the master's business makes the knowledge implied to the master superior to that implied against the servant as to matters in connection with the business, the master is under a duty to warn the servant of the dangers involved. Thigpen v. Executive Comm. of Baptist Convention, 114 Ga. App. 839 , 152 S.E.2d 920 (1966).

Servant's Torts

Employer's liability for servant's tort. - In determining the liability of a master for the negligent or willful acts of a servant, the test of liability is not whether the act was done during the existence of the employment, but whether it was done within the scope of the actual transaction of the master's business for accomplishing the ends of the servant's employment. Gomez v. Great Atl. & Pac. Tea Co., 48 Ga. App. 398 , 172 S.E. 750 (1934).

When a servant departs from the prosecution of the servant's business and commits a tort while acting without the scope of the servant's authority, the person employing the servant may still be liable if the person failed to exercise due care in the selection of the servant. Pope v. Seaboard Air Line R.R., 88 Ga. App. 557 , 77 S.E.2d 55 (1953).

Servant's independent voluntary act. - If a servant steps aside from the master's business, for however short a time, to do an act outside the scope of and not in furtherance of the work of the servant's employment, and injury results to another from such independent voluntary act, the servant may be liable, but the master is not. Gomez v. Great Atl. & Pac. Tea Co., 48 Ga. App. 398 , 172 S.E. 750 (1934).

When a servant, while engaged in the line of the servant's duties for the servant's master, commits an assault and battery upon another because of a personal quarrel or some provocation previously existing or suddenly arising, and disconnected with and not pertaining to the business of the master then in the process of transaction, the master is not liable. Gomez v. Great Atl. & Pac. Tea Co., 48 Ga. App. 398 , 172 S.E. 750 (1934).

Negligent retention of hospital nurse. - In a patient's suit against a hospital arising out of a rape by a nurse, summary judgment was proper on the patient's negligent hiring claim, but the patient's negligent retention and premises liability claims were supported by evidence of past sexual assaults at the hospital, including one incident of inappropriate touching by the nurse. Little-Thomas v. Select Specialty Hospital-Augusta, Inc., 333 Ga. App. 362 , 773 S.E.2d 480 (2015).

Jury question as to scope of employment. - Except in plain and palpable cases, it is for the jury to decide the question whether the servant was acting within the scope of and in furtherance of the servant's employment when the servant committed the tortious act in question. Gomez v. Great Atl. & Pac. Tea Co., 48 Ga. App. 398 , 172 S.E. 750 (1934).

RESEARCH REFERENCES

Am. Jur. 2d. - 27 Am. Jur. 2d, Employment Relationship, §§ 189 et seq., 217 et seq., 241 et seq., 333 et seq.

C.J.S. - 30 C.J.S. Employers' Liability for Injuries to Employees, §§ 39 et seq., 71 et seq.

ALR. - Duty to warn servant of danger of cleaning, adjusting or repairing machinery while in motion, 3 A.L.R. 1035 .

Duty of master to warn servant against occupational disease, 6 A.L.R. 355 ; 105 A.L.R. 80 .

Negligence of master toward fellow servant in employing a servant who is physically deficient, 11 A.L.R. 783 .

What is embraced by words "works," "ways," "equipment," "machinery," etc., in employers' liability acts, 23 A.L.R. 716 .

Duty and liability of master to servant injured by horse belonging to master, 26 A.L.R. 871 ; 42 A.L.R. 226 ; 60 A.L.R. 468 .

Liability of master to common-law employee for injury inflicted by instrumentality of master used by another employee in sport, 30 A.L.R. 693 .

Duty of master providing machine of standard make and in common use to equip same with safety device or guard, 36 A.L.R. 1477 .

Master's duty to servant to prevent continuance of dangerous sports, 40 A.L.R. 1333 .

Liability of independent contractors for injuries to third persons by defects in completed work, 41 A.L.R. 8 ; 123 A.L.R. 1197 .

Recovery by commission salesman given exclusive territory where employer breaches contract of employment, 41 A.L.R. 1175 .

Liability of contractee and contractor inter se with respect to injuries sustained while the stipulated work is in course of performance, 44 A.L.R. 891 .

Liability of the contractee for injuries sustained by the contractor's servants in the course of the stipulated work, 44 A.L.R. 932 .

Liability of master for injuries to servant from exposure to weather conditions, 52 A.L.R. 904 .

Employer's promise to remedy defect in instrumentality as affecting defense of assumption of risk or contributory negligence, 61 A.L.R. 901 .

Liability of employer for consequences of vaccination or other bodily operation to which employee is subjected, 62 A.L.R. 195 .

Liability of master for injuries inflicted on one servant by another by use, maliciously or in sport, of compressed-air device, 62 A.L.R. 1433 .

Right, as against vehicle owner, of one not in his general employment injured while assisting in remedying conditions due to accident to automobile or truck on highway, 72 A.L.R. 1283 .

Statute denying to employer defense of assumption of risk as affecting simple tool rule, 91 A.L.R. 786 .

Inadequacy of appliance for purpose contemplated by Safety Appliance Act as proximate cause of and ground of liability for injury to employee who was using it for another purpose, 96 A.L.R. 1138 .

Inference of master and servant relationship and scope of authority in action for negligent injury from fact that person whose acts or statements are relied upon was apparently performing services for defendant upon latter's premises, 112 A.L.R. 337 .

Responsibility for injury or damage by or to W.P.A. worker or other workman employed as a means of reducing unemployment, 120 A.L.R. 1148 .

Employer's compliance with specific legal standard prescribed by or pursuant to statute for equipment, structure, or material, as defense to charge of negligence, 159 A.L.R. 870 .

Liability of railroad for injury to alighting trainman as a result of condition of track or right of way, 172 A.L.R. 594 .

Liability of employer for injury to employee due to his physical unfitness for the work to which he was assigned, 175 A.L.R. 982 .

Liability in damages for injury to or death of window washer, 17 A.L.R.2d 637.

Duty of owner of premises to furnish independent contractor or his employee a safe place of work, where contract is for repairs, 31 A.L.R.2d 1375.

Liability of employer, other than carrier, for a personal assault upon customer, patron, or other invitee, 34 A.L.R.2d 372.

Failure to furnish assistance to employee as affecting employer's liability for injury or death of employee, 36 A.L.R.2d 8.

Duty of railroad company to prevent injury of employee due to surface condition of yard, 57 A.L.R.2d 493.

Master's liability for servant's injury or death caused in whole or in part by act of God, 62 A.L.R.2d 796.

Master's liability to servant injured by farm machinery, 67 A.L.R.2d 1120.

Master's liability for servant's condition or injury resulting in dermatitis, 74 A.L.R.2d 1029.

Hammer as simple tool within simple tool doctrine, 81 A.L.R.2d 965.

Shipowner's liability for injury caused to seaman or longshoreman by cargo or its stowage, 90 A.L.R.2d 710.

Master's liability to agricultural worker injured other than by farm machinery, 9 A.L.R.3d 1061.

Private person's duty and liability for failure to protect another against criminal attack by third person, 10 A.L.R.3d 619.

Physician's duties and liabilities to person examined pursuant to physician's contract with such person's prospective or actual employer or insurer, 10 A.L.R.3d 1071.

Liability of travel agents for injuries on tour, 53 A.L.R.3d 1310.

Liability for injury or death of participant in theatrical performance or spectacle, 67 A.L.R.3d 451.

Tort liability for window washer's injury or death, 69 A.L.R.4th 207.

Liability of travel publication, travel agent, or similar party for personal injury or death of traveler, 2 A.L.R.5th 396.

What constitutes "agricultural" or "farm" labor within social-security or unemployment-compensation acts, 60 A.L.R.5th 459.

Who is "employer" for purposes of Occupational Safety and Health Act (29 U.S.C.A. § 651 et seq.), 153 A.L.R. Fed. 303.

Technological feasibility as factor affecting validity of, or obligation of compliance with, standards established under Occupational Safety and Health Act (29 U.S.C.A. §§ 651 et seq.), 72 A.L.R. Fed. 2d 461.

34-7-21. Liability of employer for coemployees' negligence.

With the exception of railroad companies, the employer shall not be liable to one employee for injuries arising from the negligence or misconduct of other employees about the same business.

(Code 1863, § 2180; Code 1868, § 2176; Code 1873, § 2202; Code 1882, § 2202; Civil Code 1895, § 2610; Civil Code 1910, § 3129; Code 1933, § 66-304.)

History of section. - This Code section is derived from the decisions in Seudder v. Woodbridge, 1 Ga. 195 (1846) and Henderson v. Walker, 55 Ga. 481 (1875).

Cross references. - Liability of principal for injuries to agent by other agents generally, § 10-6-39 .

Liability of employer for torts of employee engaged in independent business and not subject to immediate direction and control of employer, § 51-2-4 .

Law reviews. - For article, "Sexual Harassment Claims Under Georgia Law," see 6 Ga. St. B. J. 16 (2000).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

In general. - Cornerstone of the fellow servant rule is that a fellow employee's negligence must be the sole cause of an injury. Alterman v. Jinks, 122 Ga. App. 859 , 179 S.E.2d 92 (1970).

Fellow servant rule is a species of the assumption of risk. Alterman v. Jinks, 122 Ga. App. 859 , 179 S.E.2d 92 (1970).

Fellow servant rule is an exception or departure from the respondeat superior rule. Alterman v. Jinks, 122 Ga. App. 859 , 179 S.E.2d 92 (1970).

Master must be free from negligence before the application of the fellow servant doctrine comes into play. Alterman v. Jinks, 122 Ga. App. 859 , 179 S.E.2d 92 (1970).

Railroad's liability. - Both under the laws of this state, and of the United States, the railroad company is liable for an injury caused to one of its servants as the result of the negligence of a fellow servant, while engaged in the performance of the duties of employment. Southern Ry. v. Heaton, 61 Ga. App. 386 , 6 S.E.2d 339 (1939).

Availability of rule as defense. - General rule is that the fellow servant rule is available as a defense whenever the negligent servant did the act complained of in the servant's capacity of a servant or employee and was not representing the master in the discharge of nondelegable duties. Roberts v. Ethridge, 73 Ga. App. 400 , 36 S.E.2d 883 (1946).

Cited in Brush Elec. Light & Power Co. v. Wells, 110 Ga. 192 , 35 S.E. 365 (1900); Baxley v. Satilla Mfg. Co., 114 Ga. 720 , 40 S.E. 730 (1902); Cedartown Cotton Co. v. Hanson, 118 Ga. 176 , 44 S.E. 992 (1903); Colley v. Southern Cotton Oil Co., 120 Ga. 258 , 47 S.E. 932 (1904); Babcock Bros. Lumber Co. v. Johnson, 120 Ga. 1030 , 48 S.E. 438 (1904); Lay v. Nashville, Chattanooga & St. Louis Ry., 131 Ga. 345 , 62 S.E. 189 (1908); Georgia Coal & Iron Co. v. Bradford, 131 Ga. 289 , 62 S.E. 193 , 127 Am. St. R. 228 (1908); Roland v. Tift, 131 Ga. 683 , 63 S.E. 133 , 20 L.R.A. (n.s.) 354 (1908); Stevens v. Bunn, 6 Ga. App. 315 , 64 S.E. 1002 (1909); Whitfield v. Louisville & Nashville R.R., 7 Ga. App. 268 , 66 S.E. 973 (1910); Fraser v. Smith & Kelly Co., 136 Ga. 18 , 70 S.E. 792 (1911); Donaldson v. Marsh Cypress Co., 9 Ga. App. 267 , 70 S.E. 1121 (1911); Winn v. Fulton Bag & Cotton Mills, 15 Ga. App. 33 , 82 S.E. 586 (1914); Lamb v. Floyd, 148 Ga. 357 , 96 S.E. 877 , 1 A.L.R. 1172 (1918); Falla v. Pine Granite Co., 22 Ga. App. 651 , 97 S.E. 114 (1918); Odum v. Edgar Bros. Co., 25 Ga. App. 144 , 103 S.E. 183 (1920); Walters v. Berry Schools, 40 Ga. App. 751 , 151 S.E. 544 (1930); Southern Ry. v. Perdue, 171 Ga. 134 , 154 S.E. 793 (1930); Salter v. Nugent, 50 Ga. App. 187 , 177 S.E. 513 (1934); Gartrell v. Russell, 51 Ga. App. 519 , 180 S.E. 860 (1935); Morrison v. Lewis, 58 Ga. App. 677 , 199 S.E. 782 (1938); Hopkins v. Barron, 61 Ga. App. 168 , 6 S.E.2d 96 (1939); Jackson v. Thompson, 77 Ga. App. 367 , 48 S.E.2d 903 (1948); Hamilton Turpentine Co. v. Johnson, 93 Ga. App. 544 , 92 S.E.2d 235 (1956); Martin v. Henson, 95 Ga. App. 715 , 99 S.E.2d 251 (1957); Lacy v. Ferrence, 117 Ga. App. 139 , 159 S.E.2d 479 (1968); Wiley v. Georgia Power Co., 134 Ga. App. 187 , 213 S.E.2d 550 (1975).

Master's Liability

Elements of proof. - It is incumbent upon the injured servant to show the following facts: (1) that the fellow servant was incompetent; (2) that the injury complained of resulted directly or proximately from such incompetency; (3) either (a) that the master knew of such incompetency, or (b) that by the exercise of ordinary care the master could have known of it; (4) that the injured servant did not know of such incompetency; (5) that by the exercise of ordinary care the injured servant could not have known of it; and (6) the servant did not have equal means with the master of acquiring knowledge of such fact. Strickland v. Foughner, 68 Ga. App. 805 , 12 S.E.2d 371 (1940).

Master is liable if the master selects an incompetent servant and there is a master-servant relationship. Alterman v. Jinks, 122 Ga. App. 859 , 179 S.E.2d 92 (1970).

Master's representative. - Master is not bound to indemnify one servant for injuries caused by the negligence of another servant in the same common employment as the injured servant, unless the negligent servant was the master's representative. Atkinson v. Empire Printing & Box Co., 76 Ga. App. 206 , 45 S.E.2d 280 (1947).

Acts authorized by master. - Acts of a person authorized by the master to perform a duty the master owes to a servant are the acts of the master personally insofar as they pertain to that duty; and when the servant is injured by reason of a failure to perform it, the master cannot escape liability by setting up that the duty devolved upon a fellow servant of the person injured. Corcoran v. Merchants & Miners Transp. Co., 1 Ga. App. 741 , 57 S.E. 962 (1907), later appeal, 4 Ga. App. 654 , 62 S.E. 130 (1908).

Liability for own or vice principal's negligence. - While the master is not ordinarily liable for the negligence of a fellow servant, the master is liable for the master's own negligence or that of the master's vice principal acting for the master. Maxwell v. Harrell, 115 Ga. App. 97 , 153 S.E.2d 653 (1967).

Fellow servant doctrine does not protect an employer from being charged with direct liability for its own negligence in hiring or retaining an employee with knowledge that the employee's presence or the manner in which the employee performs the duties poses a danger to co-employees. Lindsey v. Winn Dixie Stores, Inc., 186 Ga. App. 867 , 368 S.E.2d 813 (1988); Hardee's Food Sys. v. Evans, 197 Ga. App. 5 , 397 S.E.2d 474 (1990).

Negligence in use of furnished appliances. - When safe appliances are furnished, and an injury to a servant is plainly attributable solely to the negligence of fellow servants in the manner of using them or the servant failing to use them, the master is not chargeable therewith. Henderson v. Ocean S.S. Co., 15 Ga. App. 790 , 84 S.E. 230 (1915).

Liability for superintendent and foreperson's negligence. - Master is not liable for the negligence of the master's superintendent and foreperson, when the alleged negligence of the superintendent and foreperson did not consist in a violation or omission of any nonassignable duty of the master, or the issuance of any command given as such a vice principal, but lay solely in the master's removal of the master's hands, without warning to the servant, from a ladder which the master was holding in place and on which the servant had mounted, and in thus causing the ladder to fall. Haynie v. Foremost Dairies, Inc., 54 Ga. App. 369 , 187 S.E. 907 (1936).

Liability for volunteer. - Legal liability results only from a breach of legal duty which implies the existence of some legal relationship. One who, without any employment whatever, but at the request of a servant who has no authority to employ other servants, voluntarily undertakes to perform service for a master is a mere volunteer, and the master does not owe the servant any duty, except not to injure the servant willfully and wantonly after the servant's peril is discovered. Barber v. Rich's, Inc., 92 Ga. App. 880 , 90 S.E.2d 666 (1955).

When the defendant's servant had no authority to employ the plaintiff-customer to assist servant in the manner alleged, the plaintiff became the servant of the defendant's servant when the plaintiff assisted the servant of the master and since in this capacity the plaintiff was not the servant or invitee of the defendant, plaintiff could not recover for injuries received. Barber v. Rich's, Inc., 92 Ga. App. 880 , 90 S.E.2d 666 (1955).

Knowledge of fellow servant's incompetence. - If a plaintiff knew that the plaintiff's fellow servants, about whose conduct the plaintiff is complaining, were retained after the plaintiff had notified the employer of their incompetence, the plaintiff should not have engaged in the same service with them any more than the plaintiff should work with a defective tool given to the plaintiff by an employer. Atkinson v. Empire Printing & Box Co., 76 Ga. App. 206 , 45 S.E.2d 280 (1947).

Pleadings. - When a petition shows that the sole proximate cause of the alleged injuries to the plaintiff's spouse was the negligence of a fellow servant, it is not error to sustain the general demurrer (now motion to dismiss) of the defendant corporation-master to dismiss the action as to it. Bray v. Westinghouse Elec. Corp., 102 Ga. App. 803 , 117 S.E.2d 919 (1960).

Fellow Servants

Definition of fellow servants. - Two persons subject to control and direction by the same general master in the same common object are fellow servants, and if one is injured by the negligence of the other, the master, save when by statute otherwise provided, is not liable, although the negligent servant has the right to direct the work of the other. Hamby v. Union Paper-Mills Co., 110 Ga. 1 , 35 S.E. 297 (1900).

Employees of a common master, engaged in labor for the furtherance of the general purpose of the business in which they contract to serve, are fellow servants within the purview of this section. Georgia Coal & Iron Co. v. Bradford, 131 Ga. 289 , 62 S.E. 193 , 127 Am. St. R. 228 (1908); Foundation Co. v. Gobay, 24 Ga. App. 494 , 101 S.E. 392 (1919).

In determining whether certain servants are fellow servants it is necessary to decide whether the servants were "about the same business," or were "engaged in the common pursuit." Holliday v. Merchants & Miners Transp. Co., 161 Ga. 949 , 132 S.E. 210 (1926).

Convicts. - Convicts, whose service was compulsory, were not fellow servants within the meaning of this section. Hall County v. Loggins, 110 Ga. App. 432 , 138 S.E.2d 699 (1964).

Vice Principal

Determination of vice principal by duties. - It is not the grade, title, or position in the service that determines whether a person is the vice principal of the master or a fellow servant, but it is the duty which the person performs toward the other servants. Moore v. Dublin Cotton Mills, 127 Ga. 609 , 56 S.E. 839 , 10 L.R.A. (n.s.) 772 (1907); Haynie v. Foremost Dairies, Inc., 54 Ga. App. 369 , 187 S.E. 907 (1936).

Term "vice principal," as used in the fellow servant law, has been defined as including any servant who represents the master in the discharge of those personal or absolute duties which every master owes to the master's servants, such duties being often referred to as the nonassignable duties of a master. Moore v. Dublin Cotton Mills, 127 Ga. 609 , 56 S.E. 839 , 10 L.R.A. (n.s.) 772 (1907).

Workman engaged on the same job with others, although the workman may have the direction of it, is not a vice principal of the master, but is a mere fellow servant, unless the workman is performing nondelegable, or nonassignable, duties of the master and therefore a servant injured by the workman could recover against their employer. Miller v. Fulton, 111 Ga. App. 849 , 143 S.E.2d 578 (1965).

Workman directing labor. - Workman, although the workman may direct labor performed, "is not a vice principal of the master, but stands on the footing of a mere fellow servant." Moore v. Ross, 41 Ga. App. 509 , 153 S.E. 575 (1930).

General superintendent. - Workman engaged in the same job with two or three others, and having the direction of it, is not a general superintendent of a corporation so as to bind it as such, but stands on the footing of a mere fellow servant. McDonald v. Eagle & Phenix Mfg. Co., 67 Ga. 761 (1881); Shepherd v. Southern Pine Co., 118 Ga. 292 , 45 S.E. 220 (1903).

Authority to employ other servants. - In Moseley v. Schofield's Sons Co., 123 Ga. 197 , 51 S.E. 309 (1905), it was held that one who had authority to employ laborers, and was in charge of the work is a vice principal. Ingram v. Hilton & Dodge Lumber Co., 125 Ga. 658 , 54 S.E. 648 (1906).

Provider of unsafe instrumentalities. - Under the allegations as made in the petition in International Cotton Mills v. Webb, 22 Ga. App. 309 , 96 S.E. 16 (1918), the one who furnishes the alleged defective and unsafe instrumentality to the employee, and who assured the employee that it might be safely used, occupied the position of vice principal to the master. Stevens v. Bibb Mfg. Co., 16 Ga. App. 793 , 86 S.E. 445 (1915).

Vice principal assuming status of servant. - Whenever the vice principal of a master in fact enters upon the discharge of duties which relate solely to the ordinary work and functions of a servant, the vice principal will, independently of the title or position, be presumed to have assumed the status of a mere servant, with the result that when the vice principal thus acts the master is not liable for the vice principal's acts of negligence whereby another servant is injured. Haynie v. Foremost Dairies, Inc., 54 Ga. App. 369 , 187 S.E. 907 (1936).

Foreperson assuming status of servant. - While doing a servant's work engaged solely in executing the ordinary details of labor in connection with another servant, a foreperson who in other respects stands in the place of the master is a fellow servant, and the foreperson's negligence therein will not render the master liable to the other servant, except when the master is a railroad company. McGovern v. Columbus Mfg. Co., 80 Ga. 227 , 5 S.E. 492 (1887); Wallace v. Kimball Co., 20 Ga. App. 617 , 93 S.E. 260 (1917).

Assumption of authority. - Fellow servant without the master's knowledge cannot, by an assumption of authority, convert oneself into a vice principal or alter ego of the master. Hilton & Dodge Lumber Co. v. Ingram, 119 Ga. 652 , 46 S.E. 895 , 100 Am. St. R. 204 (1904); Chenall v. Palmer Brick Co., 125 Ga. 671 , 54 S.E. 663 (1906).

RESEARCH REFERENCES

Am. Jur. 2d. - 27 Am. Jur. 2d, Employment Relationship, § 322 et seq.

C.J.S. - 30 C.J.S., Employers' Liability for Injuries to employees, § 214 et seq.

ALR. - Liability of master to common-law employee for injury inflicted by instrumentality of master used by another employee in sport, 30 A.L.R. 693 .

Master's duty to servant to prevent continuance of dangerous sports, 40 A.L.R. 1333 .

Liability of employer for consequences of vaccination or other bodily operation to which employee is subjected, 62 A.L.R. 195 .

Liability of master for injuries inflicted on one servant by another by use, maliciously or in sport, of compressed-air device, 62 A.L.R. 1433 .

Workmen's compensation: rights and remedies where employee was injured by a third person's negligence, 67 A.L.R. 249 ; 88 A.L.R. 665 ; 106 A.L.R. 1040 .

Assumption of risk of overstrain consequent upon failure of other employee to lift his share, 74 A.L.R. 157 .

Servant's liability to master for negligent or other wrongful injury to person or property of master or of third person for which master is responsible, 110 A.L.R. 831 .

Right of employer sued for tort of employee to implead the latter, 5 A.L.R.3d 871.

Subrogation of employer's liability insurer to employer's right of indemnity against negligent employee, 53 A.L.R.3d 631.

34-7-22. Contracts exempting employer from liability are null and void.

All contracts between employer and employee made in consideration of employment, whereby the employer is exempted from liability to the employee arising from the negligence of the employer or his employees, as such liability is fixed by law, shall be null and void, as against public policy.

(Ga. L. 1895, p. 97, § 1; Civil Code 1895, § 2613; Civil Code 1910, § 3132; Code 1933, § 66-302.)

Cross references. - Contracts which contravene public policy generally, § 13-8-2 .

JUDICIAL DECISIONS

Contracts for benefits in case of injury. - Contract between an employee and a master, or another acting in the latter's interest, by the terms of which the employee when physically injured, whether as a result of the employee's own negligence or not, or when sick, is to receive pecuniary and other valuable benefits, and which stipulates that the employee's voluntary acceptance of any of such benefits in case of injury is to operate as a release of the master from all liability on account thereof, is not contrary to public policy. Petty v. Brunswick & W. Ry., 109 Ga. 666 , 35 S.E. 82 (1900); Houser v. Savannah Elec. Co., 9 Ga. App. 766 , 72 S.E. 276 (1911).

No application to contractor. - In a suit brought by an independent contractor against a billboard owner seeking to recover for injuries that the contractor sustained upon falling from the owner's billboard, O.C.G.A. § 34-7-22 did not apply to preclude the application of a waiver paragraph in a contract between the parties because the facts were undisputed that the contractor was an independent contractor, not an employee of the owner. Holmes v. Clear Channel Outdoor, Inc., 298 Ga. App. 178 , 679 S.E.2d 745 (2009).

Cited in New v. Southern Ry., 116 Ga. 147 , 42 S.E. 391 , 59 L.R.A. 115 (1902); Brown v. Five Points Parking Ctr., 121 Ga. App. 819 , 175 S.E.2d 901 (1970).

RESEARCH REFERENCES

Am. Jur. 2d. - 27 Am. Jur. 2d, Employment Relationship, §§ 199, 200.

ALR. - Validity of contract providing that acceptance of benefits from relief association shall bar action against employer, 12 A.L.R. 477 .

Personal liability of servant or agent to third person for injuries caused by the performance or nonperformance of his duties to his employer, 20 A.L.R. 97 ; 99 A.L.R. 408 ; 96 A.L.R.2d 208.

Constitutionality of statute relating to release of, or contract of employment for the enforcement of, claims for personal injuries or death, or invalidating contracts exonerating an employer from liability in respect of injury to employee, 84 A.L.R. 1297 .

Personal liability of auctioneer to owner or mortgagee for conversion, 96 A.L.R.2d 208.

Provision in employment contract requiring written notice before instituting action, 4 A.L.R.3d 439.

Validity, enforceability, and effect of provision in seamen's employment contract stipulating the maximum recovery for scheduled personal injuries, 9 A.L.R.3d 417.

What constitutes duress by employer or former employer vitiating employee's release of employer from claims arising out of employment, 30 A.L.R.4th 294.

34-7-23. Assumption of risk by employees; requirements for recovery of damages.

An employee assumes the ordinary risks of his employment and is bound to exercise his own skill and diligence to protect himself. In actions for injuries arising from the negligence of the employer in failing to comply with the duties imposed by Code Section 34-7-20, in order that the employee may recover, it must appear that the employer knew or ought to have known of the incompetency of the other employee or of the defects or danger in the machinery supplied; and it must also appear that the employee injured did not know and had not equal means of knowing such fact and by the exercise of ordinary care could not have known thereof.

(Civil Code 1895, § 2612; Civil Code 1910, § 3131; Code 1933, § 66-303; Ga. L. 1998, p. 128, § 34.)

History of section. - This Code section is derived from the decisions in McDonald v. Eagle & Phenix Mfg. Co., 68 Ga. 839 (1882); Georgia R.R. & Banking Co. v. Nelms, 83 Ga. 70 , 9 S.E. 1049 (1889); Davis v. Augusta Factory, 92 Ga. 712 , 18 S.E. 974 (1893).

Law reviews. - For article discussing origin and construction of Georgia provisions concerning master-servant relationship, see 14 Ga. L. Rev. 239 (1980).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Definition of assumption of risk. - Assumption of risk is a term of the contract of employment, express or implied from the circumstances of the employment, by which the servant agrees that dangers of injury obviously incident to the discharge of the servants' duty shall be at the servants' risk. Prather v. Richmond & D.R.R., 80 Ga. 427 , 9 S.E. 530 , 12 Am. St. R. 263 (1888); East Tennessee, V. & Ga. Ry. v. Reynolds, 93 Ga. 570 , 20 S.E. 70 (1894); Worlds v. Georgia R.R., 99 Ga. 283 , 25 S.E. 646 (1896); Plunkett v. Central of Ga. Ry., 105 Ga. 203 , 30 S.E. 728 (1898).

As a general proposition, risk not caused by the master's negligent act or omission is assumed by the servant. Neary v. Georgia Pub. Serv. Co., 27 Ga. App. 238 , 107 S.E. 893 , cert. denied, 27 Ga. App. 836 (1921).

Employee does not ordinarily assume the risks of negligence of the employer. Louisville & N.R.R. v. Crapps, 62 Ga. App. 437 , 8 S.E.2d 413 (1940).

Knowledge of risk. - Assumption of risk is predicated on knowledge, actual or constructive. A servant does not assume a risk about which the servant did not know or was not bound to know. Western & A.R.R. v. Morgan, 40 Ga. App. 611 , 150 S.E. 850 (1929).

Employee is not presumed to have knowledge of hidden dangers requiring scientific knowledge to fully appreciate or to assume the risk thereof; unless the employee is warned or undertakes the work with such knowledge, the employee is not as a matter of law chargeable therewith. Middlebrooks v. Atlanta Metallic Casket Co., 63 Ga. App. 620 , 11 S.E.2d 682 (1940).

Equal means of knowing of danger. - In a suit by a servant for an injury arising from the negligence of the master in failing to furnish proper machinery or appliances or a safe place of work, the servant, to be entitled to recover, must show, among other things, that the servant did not have equal means with the master of knowing of the danger. Abercrombie v. Ivey, 59 Ga. App. 296 , 200 S.E. 551 (1938).

Master's knowledge of employee's appreciation of danger. - Whether the master is negligent in ordering a servant to work under dangerous and hazardous conditions may depend upon the capacity of the servant, due to the servant's age or otherwise, known to the master, to appreciate the danger of the conditions of the employment. Jordan v. Batayias, 53 Ga. App. 538 , 186 S.E. 451 (1936).

Nature of risks assumed. - When a peril is obvious or so patent as to be readily understood by the employee by the reasonable use of the employee's senses, having in view the employee's age, intelligence, and experience, the employee will not be heard to say that the employee did not realize or appreciate it. Atlanta, Birmingham & Coast R.R. v. King, 55 Ga. App. 1 , 189 S.E. 580 (1936).

When one enters the service of another, one impliedly assumes the usual and ordinary risks incident to the employment about which one is engaged; and in discharging the duties which one has undertaken to perform, one is bound to take notice of the ordinary and familiar laws of nature applicable to the subject to which one's employment relates. Hollingsworth v. Thomas, 148 Ga. App. 38 , 250 S.E.2d 791 (1978).

Denial of the employer's motion for summary judgment was reversed because any alleged defects in the tractor tire or in removing the tire were known to the employee who attempted to remove the tire on the employee's own, spent hours attempting to do so, encountering difficulty, and used various methods and tools to remove the tire before the employee apparently finally did so using a tool not provided by the employer. Smith v. Found, 343 Ga. App. 816 , 806 S.E.2d 287 (2017).

Obvious risks. - Obvious risks incident to employment are assumed by the servant in the servant's contract of employment. Howard v. Central of Ga. Ry., 138 Ga. 537 , 75 S.E. 624 (1912); International Cotton Mills v. Carroll, 22 Ga. App. 26 , 95 S.E. 472 (1918).

Standing in front of tractor operated by inexperienced driver. - Employee who sued employer for personal injuries should have been aware that standing in front of a large farming tractor, parked on an incline, while a person wholly inexperienced in operating the machinery started the tractor and "eased" the clutch out, was dangerous and was not entitled to recover against an employer as a matter of law. Clayton v. Larisey, 190 Ga. App. 512 , 379 S.E.2d 789 (1989).

Ordinary and extraordinary risks. - Ordinary risks are usually described as being those incident to the business, and do not imply the result of the master's negligence. The expression "extraordinary risks" is generally used to describe the risk arising from the negligence of the master, and they are generally held not to be assumed unless known or obvious. Emanuel v. Georgia & F. Ry., 142 Ga. 543 , 83 S.E. 230 (1914); Simowitz v. Register, 60 Ga. App. 180 , 3 S.E.2d 231 (1939); Roberts v. Ethridge, 73 Ga. App. 400 , 36 S.E.2d 883 (1946).

Waiver of assumption of risk. - Assumption of risk is a contractual incident of employment; being a contractual implication, it may be vitiated by express agreement or by a repugnant implication arising from particular transactions or communications between the parties. Seagraves v. Abco Mfg. Co., 118 Ga. App. 414 , 164 S.E.2d 242 (1968), later appeal, 121 Ga. App. 224 , 173 S.E.2d 416 (1970).

Minor's assumption of risk. - Children under the age of 14 are not to be considered as having assumed the risks of ordinarily patent, obvious and known dangers not within the scope of their capacity to appreciate and avoid. Eagle & Phenix Mills v. Moncrief, 17 Ga. App. 10 , 86 S.E. 260 (1915). See also King v. Seaboard Air-Line Ry., 1 Ga. App. 88 , 58 S.E. 252 (1907).

Child under the age of 14 assumes only such ordinary risks of employment as the child is capable of appreciating and understanding, and a master who, personally or through an authorized agent, directs such a child to do an act which, if performed according to the means and method provided by the master, would be attended with danger, owes the duty of warning the child of the dangers incident to its performance, and in doing so must take into consideration the child's incapacity to appreciate and understand danger. The duty incumbent upon the child is to exercise due care according to the child's age and the child's own actual capacity, rather than the ordinary care exacted by the general rule of every prudent person. Moore v. Ross, 41 Ga. App. 509 , 153 S.E. 575 (1930).

Since a minor 12 years of age does not as a matter of law possess the capacity to appreciate and apprehend dangers which are ordinarily patent and obvious to adults, an adult, in ordering a minor of that age as a servant to work at a place and under circumstances in which the minor is exposed to a danger which is patent and obvious to the employer, may in so employing the minor, be guilty of negligence. Jordan v. Batayias, 53 Ga. App. 538 , 186 S.E. 451 (1936).

Fellow servant rule. - Fellow servant rule is a species of the assumption of risk rule. Alterman v. Jinks, 122 Ga. App. 859 , 179 S.E.2d 92 (1970).

Fellow servant rule is an exception or departure from the respondeat superior rule. Alterman v. Jinks, 122 Ga. App. 859 , 179 S.E.2d 92 (1970).

Cornerstone of the fellow servant rule is that a fellow employee's negligence must be the sole cause of an injury. Alterman v. Jinks, 122 Ga. App. 859 , 179 S.E.2d 92 (1970).

Master must be free from negligence before application of the fellow servant doctrine comes into play. Alterman v. Jinks, 122 Ga. App. 859 , 179 S.E.2d 92 (1970).

Duties of master. - A master must warn a servant of the conditions under which the servant is employed which are liable to engender disease, and must furnish suitable protection from such danger, provided that the master is in a position to have greater knowledge of the danger than the servant. Middlebrooks v. Atlanta Metallic Casket Co., 63 Ga. App. 620 , 11 S.E.2d 682 (1940).

As to place, appliances, instrumentalities, and fellow servants, the law places upon the master a personal or positive, sometimes called nondelegable, duty to provide for the master's servant. Atkinson v. Empire Printing & Box Co., 76 Ga. App. 206 , 45 S.E.2d 280 (1947).

Reasonable care by master. - Prima facie, a servant does not assume risks which may be obviated by the master's exercise of reasonable care. King v. Seaboard Air-Line Ry., 1 Ga. App. 88 , 58 S.E. 252 (1907).

Liability of master. - Liability of the master to a servant for negligence is strictly limited. Bray v. Westinghouse Elec. Corp., 102 Ga. App. 803 , 117 S.E.2d 919 (1960).

Assumption of skill. - Master is charged with the knowledge of the usual and ordinary dangers to which the master is exposing the employees, and is bound to know the normal condition of the master's premises, and to know of the nature of the constituents and general characteristics of the substances used in the master's business, so that the master can give directions for the conduct thereof with ordinary safety to the master's servants performing the work with ordinary care, and particularly is the master chargeable with knowledge of risks ascertainable only through a knowledge of scientific facts which an uneducated person is not presumed to know; the doctrine that imputes this knowledge to the master is called the "assumption of skill" and for the purpose of determining this knowledge the law has a standard which does not vary with the actual capacity of the particular master, and consequently the master's ignorance is no excuse for a failure to warn. Middlebrooks v. Atlanta Metallic Casket Co., 63 Ga. App. 620 , 11 S.E.2d 682 (1940).

Employee's injury. - Injury to a servant must be the natural and probable consequence of the employer's negligence; such a consequence as, under the surrounding circumstances of the case, might and ought to have been foreseen by the wrongdoer as likely to flow from the wrongdoer's act. Alford v. Zeigler, 65 Ga. App. 294 , 16 S.E.2d 69 (1941).

Action for master's negligence. - Action brought under former Code 1933, § 66-301 (see now O.C.G.A. § 34-7-20 ) was one for negligence on the part of the master, and when it appeared from the evidence that the servant had equal means with the master of knowing of the defects in machinery and the dangers of employment, and the danger was as obvious to the servant as it was to the master, the servant was not entitled to recovery, notwithstanding any assurances of safety by the master. Swails v. Carpenter, 112 Ga. App. 117 , 144 S.E.2d 182 (1965).

In suits for injuries arising from the negligence of the employer in failing to comply with the duties imposed by this section, the employee's petition in order to set forth a cause of action must set out issuable facts constituting not only negligence on the part of the employer, causing the injuries, but also due care on the part of the employee; and it must appear from the allegations that the injured employee did not know, and had no equal means of knowing, all that which is charged as negligence to the employer, and by the exercise of ordinary care could not have known. Bowers v. Louisville & N.R.R., 33 Ga. App. 692 , 127 S.E. 667 (1925); Flippin v. Central of Ga. Ry., 35 Ga. App. 243 , 132 S.E. 918 (1926); Clark v. Western & A.R.R., 41 Ga. App. 317 , 152 S.E. 847 (1930); Holman v. American Auto. Ins. Co., 201 Ga. 454 , 39 S.E.2d 850 (1946); Elrod v. Ogles, 78 Ga. App. 376 , 50 S.E.2d 791 (1948); A.F. King & Son v. Simmons, 107 Ga. App. 628 , 131 S.E.2d 214 (1963); Owensby v. Jones, 109 Ga. App. 398 , 136 S.E.2d 451 (1964).

Questions for jury resolution. - Ordinarily, what constitutes ordinary care, or the lack of it, whether a servant assumed a risk which caused the injury, and similar questions, are mixed issues of law and fact peculiarly for jury resolution, and to some extent must be based on inferences to be drawn from the evidence. Jones v. Aaron, 124 Ga. App. 738 , 186 S.E.2d 132 (1971).

Cited in Nobel v. Jones, 103 Ga. 584 , 30 S.E. 535 (1898); Western & A.R.R. v. Bradford, 113 Ga. 276 , 38 S.E. 823 (1901); Evans v. Mills, 119 Ga. 448 , 46 S.E. 674 (1904); Seaboard Air-Line Ry. v. Pierce, 120 Ga. 230 , 47 S.E. 581 (1904); Babcock Bros. Lumber Co. v. Johnson, 120 Ga. 1030 , 48 S.E. 438 (1904); Crown Cotton Mills v. McNally, 127 Ga. 404 , 56 S.E. 452 (1907); Turner v. Seville Gin & Whse. Co., 127 Ga. 555 , 56 S.E. 739 (1907); Atlanta & B. Air-Line Ry. v. McManus, 1 Ga. App. 302 , 58 S.E. 258 (1907); Cedartown Cotton & Export Co. v. Miles, 2 Ga. App. 79 , 58 S.E. 289 (1907); Southern States Portland Cement Co. v. Helms, 2 Ga. App. 308 , 58 S.E. 524 (1907); Short v. Cherokee Mfg. Co., 3 Ga. App. 377 , 59 S.E. 1115 (1908); Freeman v. Savannah Elec. Co., 130 Ga. 449 , 60 S.E. 1042 (1908); Hobbs v. Small, 4 Ga. App. 627 , 62 S.E. 91 (1908); Taylor v. Virginia-Carolina Chem. Co., 4 Ga. App. 705 , 62 S.E. 470 (1908); Brown v. Rome Mach. & Foundry Co., 5 Ga. App. 142 , 62 S.E. 720 (1908); Roland v. Tift, 131 Ga. 683 , 63 S.E. 133 , 20 L.R.A. (n.s.) 354 (1908); Holland v. Durham Coal & Coke Co., 131 Ga. 715 , 63 S.E. 290 (1908); Williams v. Garbutt Lumber Co., 132 Ga. 221 , 64 S.E. 65 (1909); Redding v. Central Ga. Tel. Co., 6 Ga. App. 831 , 65 S.E. 1068 (1909); Smith v. Southern Ry., 8 Ga. App. 822 , 70 S.E. 192 (1911); Mills v. Bartow Lumber Co., 9 Ga. App. 171 , 70 S.E. 983 (1911); Elliott v. Tifton Mill & Gin Co., 12 Ga. App. 498 , 77 S.E. 667 (1913); Spencer v. Lauer & Harper Co., 14 Ga. App. 35 , 81 S.E. 387 (1913); Lawrenceville Oil Mill v. Walton, 143 Ga. 259 , 84 S.E. 584 (1915); Green v. Brinson Ry., 16 Ga. App. 639 , 85 S.E. 931 (1915); Young v. Stuart Lumber Co., 17 Ga. App. 410 , 87 S.E. 149 (1915); Williams v. Southern Ry., 144 Ga. 565 , 87 S.E. 771 (1916); Niblett v. LaGrange Mills, 18 Ga. App. 173 , 88 S.E. 1009 (1916); Kirbo v. Southern Ry., 18 Ga. App. 187 , 89 S.E. 179 (1916); Rush v. Southern Ry., 19 Ga. App. 521 , 91 S.E. 898 (1917); City of Atlanta v. Hagan, 20 Ga. App. 822 , 93 S.E. 541 (1917); Charleston & W.C. Ry. v. Patton, 22 Ga. App. 554 , 96 S.E. 504 (1918); Decatur Lumber Co. v. Fulton, 26 Ga. App. 499 , 106 S.E. 609 (1921); Central of Ga. Ry. v. Lindsey, 28 Ga. App. 198 , 110 S.E. 636 (1922); Wood v. Pynetree Paper Co., 29 Ga. App. 81 , 114 S.E. 83 (1923); Newman v. Griffin Foundry & Mach. Co., 38 Ga. App. 518 , 144 S.E. 386 (1928); Atlanta, Birmingham & Coast R.R. v. Mullis, 43 Ga. App. 692 , 159 S.E. 893 (1931); Tanner v. Louisville & N.R.R., 45 Ga. App. 734 , 165 S.E. 761 (1932); Gartrell v. Russell, 51 Ga. App. 519 , 180 S.E. 860 (1935); Story v. Crouch Lumber Co., 61 Ga. App. 210 , 6 S.E.2d 86 (1939); Kidd v. Williamson, 61 Ga. App. 890 , 8 S.E.2d 590 (1940); Ray v. Western & A.R.R., 62 Ga. App. 609 , 9 S.E.2d 92 (1940); Daugherty v. Summerall, 64 Ga. App. 638 , 13 S.E.2d 705 (1941); Jackson v. Thompson, 77 Ga. App. 367 , 48 S.E.2d 903 (1948); Evans v. Carroll, 85 Ga. App. 227 , 68 S.E.2d 608 (1952); Howerdd v. Whitaker, 87 Ga. App. 850 , 75 S.E.2d 572 (1953); Hanson v. Atlanta Lodge No. 78 B.P.O. Elks, Inc., 88 Ga. App. 116 , 76 S.E.2d 77 (1953); Harris v. Price, 95 Ga. App. 521 , 98 S.E.2d 118 (1957); Bray v. Westinghouse Elec. Corp., 102 Ga. App. 803 , 117 S.E.2d 919 (1960); Henry v. Adams, 111 Ga. App. 297 , 141 S.E.2d 603 (1965); Thigpen v. Executive Comm. of Baptist Convention, 114 Ga. App. 839 , 152 S.E.2d 920 (1966); Taff v. Harris, 118 Ga. App. 611 , 164 S.E.2d 881 (1968); Webb v. Standard Oil Co., 414 F.2d 320 (5th Cir. 1969); Taylor v. Bolton, 121 Ga. App. 141 , 173 S.E.2d 96 (1970); Mathis-Akins Concrete Block Co. v. Tucker, 127 Ga. App. 699 , 194 S.E.2d 604 (1972); Murray Chevrolet Co. v. Godwin, 129 Ga. App. 153 , 199 S.E.2d 117 (1973); Dodd v. Clary, 135 Ga. App. 296 , 217 S.E.2d 397 (1975); Butler v. Shirah, 154 Ga. App. 111 , 267 S.E.2d 647 (1980).

Competency of Employees

Selection and retention of competent servants. - Duty of the master to select and retain only competent servants is not absolute, but is to be measured by knowledge, actual or constructive, of the probable results of the master's conduct. Likewise, when a servant has knowledge, or has an equal opportunity with the master to acquire knowledge, of the incompetency of a fellow servant there can be no recovery; in such a case the servant will be said to have "waived" the negligence of the master. Southern Ry. v. Roberts, 206 F.2d 508 (5th Cir. 1953).

Knowledge of fellow servants' incompetence. - If the plaintiff knew that the plaintiff's fellow servants, about whose conduct the plaintiff is complaining, were retained after the plaintiff notified the employer of their incompetence, the plaintiff should not have engaged in the same service with them any more than the plaintiff should work with a defective tool given to the plaintiff by an employer. Atkinson v. Empire Printing & Box Co., 76 Ga. App. 206 , 45 S.E.2d 280 (1947).

Safety of Place of Work

Master's duty. - Master is under an absolute duty to a servant to furnish the servant a safe working place and to warn of unusual or newly developed dangers which arise in the course of the employment and which are likely to escape an ordinarily prudent servant's knowledge under the circumstances. The servant may, without creating an imputation of negligence against oneself, rely upon the master's performance of these duties until such time as the servant shall discover, or in the exercise of ordinary diligence should discover, that there has been a failure in this respect upon the master's part. Simowitz v. Register, 60 Ga. App. 180 , 3 S.E.2d 231 (1939).

Duty to furnish a safe place to work relates to the equipment of houses, plants and other similar structures, though, of course, it is a general duty of the master, as to all times and all places, not to expose the master's servant to an extraordinary hazard, of which the master has knowledge, actual or constructive, and of which the servant is ignorant, and could not by ordinary diligence acquire knowledge. Atkinson v. Empire Printing & Box Co., 76 Ga. App. 206 , 45 S.E.2d 280 (1947).

Knowledge that fumes or dust poisonous. - Master must take into account the properties of such substances as the master employs for the purposes of the master's business and the operation of familiar physical laws upon these substances, and the master is chargeable with knowledge of the fact that fumes or dust given off by various substances used in industrial processes are poisonous to persons who inhale them. Middlebrooks v. Atlanta Metallic Casket Co., 63 Ga. App. 620 , 11 S.E.2d 682 (1940).

Employer's duty not abated because of construction, renovation. - It is the duty of the employer to provide its employees with a safe workplace and to warn them of any unusual conditions that may exist, or of any conditions of which employees may have no knowledge, and this duty is not abated when construction or renovation is being done at the workplace; indeed, it might be argued that the employer's duty is enhanced in such situations, inasmuch as it would have knowledge which the ordinary employee might not possess. Church v. SMS Enters., 186 Ga. App. 791 , 368 S.E.2d 554 (1988).

Assumption of risk. - Dangers arising from an unsafe place are not included within the risks assumed by the servant. Nashville, C. & St. L. Ry. v. Hilderbrand, 48 Ga. App. 140 , 172 S.E. 87 (1933); Middlebrooks v. Atlanta Metallic Casket Co., 63 Ga. App. 620 , 11 S.E.2d 682 (1940); Owensby v. Jones, 109 Ga. App. 398 , 136 S.E.2d 451 (1964).

Inspections by servant. - Servant or employee is not required to make a special inspection to see the condition of the place furnished to the servant, but if, by exercising ordinary care, the servant can discover the condition of it, it is the servant's duty to do so. Spivey v. Lovett & Brinson, 48 Ga. App. 335 , 172 S.E. 658 (1934); Hopkins v. Barron, 61 Ga. App. 168 , 6 S.E.2d 96 (1939).

Safety of Tools and Machinery

Employee's duty of care. - Adult employee is to exercise ordinary care to protect oneself from being injured by defective or dangerous machinery; the employee is to exercise that degree of care which might reasonably be expected of an ordinarily prudent person under like circumstances. Georgia Cotton Oil Co. v. Jackson, 112 Ga. 620 , 37 S.E. 873 (1901).

Inspection by employee. - Servant is under no obligation to inspect appliances to discover concealed dangers which would not be disclosed by superficial observation. Alford v. Zeigler, 65 Ga. App. 294 , 16 S.E.2d 69 (1941).

Employee is under no duty to inspect a ladder supplied by an employer to discover defects which would not be discernible by mere observation. A.F. King & Son v. Simmons, 107 Ga. App. 628 , 131 S.E.2d 214 (1963).

Employee's knowledge of defect. - In a farm employee's action for negligence against an employer, there was no basis for a recovery for furnishing defective machinery under O.C.G.A. § 34-7-20 , when the evidence was uncontroverted that the employee had equal knowledge with the employer of a defect in the "power takeoff" of the tractor, the employee's claim was barred by the plain language of O.C.G.A. § 34-7-23 and the trial court erred in giving a separate instruction on the liability for furnishing defective machinery which was not adjusted to the evidence. Strickland v. Howard, 214 Ga. App. 307 , 447 S.E.2d 637 (1994).

Latent defects. - Though a servant is bound to observe open and obvious dangers such as would be disclosed by the exercise of ordinary care, the servant has the right to assume that the master has performed the duty of furnishing the servant with a safe place to work and is under no obligation to inspect the work place in order to discover latent defects not open to ordinary observation. Owensby v. Jones, 109 Ga. App. 398 , 136 S.E.2d 451 (1964).

In a case of latent defects - those which are discoverable by proper inspection - the master is necessarily held to a higher standard of conduct than the servant, since the master owes to the servant the duty of inspection. Nashville, C. & St. L. Ry. v. Hilderbrand, 48 Ga. App. 140 , 172 S.E. 87 (1933); Owensby v. Jones, 109 Ga. App. 398 , 136 S.E.2d 451 (1964).

Nature of risks assumed. - If the danger from the continued use of a defective tool or instrument is so obvious or apparent that an ordinarily prudent person would not continue to use the instrument, a servant, although the servant may have received assurances of safety from the master, may not continue its use and hold the master liable for ensuing injury, as the use by the servant of an obviously dangerous instrument amounts to the failure to use ordinary care to avoid the consequences of the master's negligence. Atlanta, Birmingham & Coast R.R. v. King, 55 Ga. App. 1 , 189 S.E. 580 (1936).

Adult servant of ordinary intelligence will be held to be affected with knowledge of a manifest risk or danger incident to the doing of a particular thing in the operation of a machine, during the servant's employment, although the servant may be inexperienced as to such operation and though the master may have failed to instruct the servant in respect thereto. Self v. West, 82 Ga. App. 708 , 62 S.E.2d 424 (1950).

Compliance with master's order. - It is actionable negligence for a master to order a servant to work with an unsafe instrumentality, and an assurance of safety, coupled with the order, not only aggravates the master's negligence, but also relieves the servant from the assumption of the risk; the assurance of safety likewise makes the question of the servant's contributory negligence one for solution by the jury, unless the danger be so obvious that to undertake to encounter it amounts to plain rashness. Atlanta, Birmingham & Coast R.R. v. King, 55 Ga. App. 1 , 189 S.E. 580 (1936).

In an action for injuries to a servant resulting from the servant's compliance with a direct and specific command of the master given with reference to an instrumentality by which the master's work is to be performed, the danger or risk incurred by the servant is not assumed by virtue of the employment, unless it involves a violation of law or the act required is so obviously dangerous that no person of ordinary prudence would undertake to perform it. Louisville & N.R.R. v. Crapps, 62 Ga. App. 437 , 8 S.E.2d 413 (1940).

If a servant points out a danger and the master orders the servant to pursue the dangerous activity anyway, the master is liable for any injury which results. Webb v. Standard Oil Co., 451 F.2d 284 (5th Cir. 1971).

Abrogation of servant's assumption of risk. - While ordinarily the law reads into contracts of employment an agreement on the servant's part to assume the known risks of the employment so far as the servant has the capacity to realize and comprehend them, yet this implication may be abrogated by an express or implied agreement to the contrary; if the servant complains to the master that the instrumentality appears to be dangerous, and thereupon the master commands the servant to proceed with the work and assures the servant there is no danger the law implies a quasi new agreement whereby the master relieves the servant of the servant's former assumption of the risk and places responsibility for the ensuing injury upon the master. Bush v. West Yellow Pine Co., 2 Ga. App. 295 , 58 S.E. 529 (1907); Massee & Felton Lumber Co. v. Ivey, 12 Ga. App. 583 , 77 S.E. 1130 (1913); Atlanta, Birmingham & Coast R.R. v. King, 55 Ga. App. 1 , 189 S.E. 580 (1936); Alford v. Zeigler, 65 Ga. App. 294 , 16 S.E.2d 69 (1941); Borochoff v. Fowler, 98 Ga. App. 411 , 105 S.E.2d 764 (1958), later appeal, 104 Ga. App. 401 , 122 S.E.2d 157 (1961), rev'd on other grounds sub nom. Southern Wire & Iron, Inc. v. Fowler, 217 Ga. 727 , 124 S.E.2d 738 (1962).

When the master commanded the servant to proceed with work which the master knows is dangerous with the assurance to the servant that it was not dangerous, such an act on the part of the master relieved the servant of the implied agreement of assumption of risk as to the particular activity warranted as safe, and the master cannot set up as a defense the assumption of risk set forth in this section. Swails v. Carpenter, 112 Ga. App. 117 , 144 S.E.2d 182 (1965).

If one engaged to perform a service doubts the safety of performing the service but thereafter proceeds with the work in reliance on the employer's assurance that there is no danger, then unless the danger is so obvious that no prudent person would expose oneself to it, the law implies a new quasi-agreement superseding the assumption of risk and placing responsibility for the resulting injuries on the employer. Seagraves v. Abco Mfg. Co., 118 Ga. App. 414 , 164 S.E.2d 242 (1968), later appeal, 121 Ga. App. 224 , 173 S.E.2d 416 (1970).

Reliance on promises to rectify danger. - Fault or "assumption of risk" implied from a servant's knowledge that a tool, instrument, appliance, piece of machinery, or place of work is defective or dangerous is suspended by the master's promise to repair, made in response to the servant's complaint, so that if the servant is induced by such promise to continue at work the servant may recover for any injury which the servant sustains by reason of such defect within a reasonable time after the making of the promise. Atlanta, Birmingham & Coast R.R. v. King, 55 Ga. App. 1 , 189 S.E. 580 (1936).

If a servant having a right to abandon the service because it is dangerous, refrains from doing so in consequence of assurances that the danger shall be removed, the duty to remove the danger is manifest and imperative, and the master is not in the exercise of ordinary care unless or until the master makes the assurances good, and moreover, the assurances remove all ground for the argument that the servant by continuing the employment, engages to assume its risks. Atlanta, Birmingham & Coast R.R. v. King, 55 Ga. App. 1 , 189 S.E. 580 (1936).

Employee's appreciation of danger. - When a servant with knowledge of a dangerous condition proceeds with the performance of the servant's duties for a reasonable time, relying upon a promise by the master to rectify such condition, the servant will not be held to have assumed the risk of injury from such dangerous situation or instrumentality, unless it should appear that the danger was so patent that no person of ordinary prudence would carry on work under such conditions and circumstances. Baker v. Augusta Veneer Co., 44 Ga. App. 383 , 161 S.E. 676 (1931).

Although an employee may have had knowledge, as of a physical fact, of the defective condition of a tool, appliance or place, by reason of which an employee has sustained an injury, it by no means follows that the employee must have appreciated the danger to which the employee was exposed thereby; if this is shown to have been the case, the employee's right of recovery is not defeated, for it is an appreciation of the danger, not mere knowledge of the defect by which the danger is threatened, that bars the employee's action. Atlanta, Birmingham & Coast R.R. v. King, 55 Ga. App. 1 , 189 S.E. 580 (1936); Simowitz v. Register, 60 Ga. App. 180 , 3 S.E.2d 231 (1939).

It is the employee's appreciation of the danger, not mere knowledge of the defect by which the danger is threatened, that bars the employee's action. When, however, a peril is obvious or so patent as to be readily understood by the employee by the reasonable use of the employee's senses, having in view the employee's age, intelligence, and experience, the employee will not be heard to say that the employee did not realize or appreciate it. Simowitz v. Register, 60 Ga. App. 180 , 3 S.E.2d 231 (1939).

If a servant cannot reasonably rely on a master's "assurances" that a hazardous condition will be corrected, the servant must bear the loss from any injury resulting from obvious dangers, despite the fact that the servant's actions were sanctioned by the master. Webb v. Standard Oil Co., 451 F.2d 284 (5th Cir. 1971).

When a servant voluntarily undertook climbing a ladder for 20 years, which the servant described as a very dangerous activity and which the servant knew to be risky, the employer is not liable, despite the assurances to the servant that the ladder's dangerous condition would be repaired, since the servant assumed the risk. Webb v. Standard Oil Co., 451 F.2d 284 (5th Cir. 1971).

Pleadings. - Deficiency may be sufficiently alleged by stating that the particular contrivance was so constructed or maintained that it gave forth a result which it was designed to prevent, and which such contrivances, as they are usually constructed and maintained, do prevent. Alford v. Zeigler, 65 Ga. App. 294 , 16 S.E.2d 69 (1941).

Defect may be described by showing that the machine was in a condition that produced certain definitely described results, which a machine not defective would not and should not produce. It is not necessary to describe minutely or particularly the physical appearance of the parts alleged to be defective. Alford v. Zeigler, 65 Ga. App. 294 , 16 S.E.2d 69 (1941).

In an action for damages resulting from bodily injury by an employee against an employer it must be shown either that the danger was not equally apparent to both parties but rested within the superior knowledge of the master, or that, if the servant was following a direct order which appeared to be dangerous but was yet not so obviously dangerous that no reasonably prudent person would undertake to perform it, the servant remonstrated and the master, by thereafter assuring the servant that there was no danger, in effect relieved the servant from the servant's former assumption of risk and the responsibility for resulting personal injuries. Palmer v. Webb, 109 Ga. App. 44 , 135 S.E.2d 73 (1964).

RESEARCH REFERENCES

Am. Jur. 2d. - 27 Am. Jur. 2d, Employment Relationship, § 293 et seq.

C.J.S. - 30 C.J.S. Employers' Liability for Injuries to Employees, § 274 et seq.

ALR. - Duty of master to warn servant against occupational disease, 6 A.L.R. 355 ; 105 A.L.R. 80 .

Contributory negligence or assumption of risk in disobeying rules or directions of master under counter directions by superior, 23 A.L.R. 315 .

Duty of master providing machine of standard make and in common use to equip same with safety device or guard, 36 A.L.R. 1477 .

Master's duty to servant to prevent continuance of dangerous sports, 40 A.L.R. 1333 .

Duty and liability of master to servant injured by draft animal belonging to master, 42 A.L.R. 226 ; 60 A.L.R. 468 .

Liability of contractee and contractor inter se with respect to injuries sustained while the stipulated work is in course of performance, 44 A.L.R. 891 .

Liability of master for injuries to servant from exposure to weather conditions, 52 A.L.R. 904 .

Employer's promise to remedy defect in instrumentality as affecting defense of assumption of risk or contributory negligence, 61 A.L.R. 901 .

Liability of employer for consequences of vaccination or other bodily operation to which employee is subjected, 62 A.L.R. 195 .

Liability of master for injuries inflicted on one servant by another by use, maliciously or in sport, of compressed-air device, 62 A.L.R. 1433 .

Assumption of risk, under Federal Employers' Liability Act, of excessive speed or failure to give engine signals, 71 A.L.R. 459 .

Assumption of risk of overstrain consequent upon failure of other employee to lift his share, 74 A.L.R. 157 .

Statute denying to employer defense of assumption of risk as affecting simple tool rule, 91 A.L.R. 786 .

Inadequacy of appliance for purpose contemplated by Safety Appliance Act as proximate cause of and ground of liability for injury to employee who was using it for another purpose, 96 A.L.R. 1138 .

Construction and application of 1939 amendment of Federal Employers' Liability Act regarding assumption of risk, 143 A.L.R. 978 .

Liability of railroad for injury to alighting trainman as a result of condition of track or right of way, 172 A.L.R. 594 .

Liability of employer for injury to employee due to his physical unfitness for the work to which he was assigned, 175 A.L.R. 982 .

Defenses of fellow servant and assumption of risk in actions involving injury or death of member of airplane crew, ground crew, or mechanic, 13 A.L.R.2d 1137.

Liability in damages for injury to or death of window washer, 17 A.L.R.2d 637.

Contributory negligence, assumption of risk, or related defenses as available in action based on automobile guest statute or similar common law rule, 44 A.L.R.2d 1342.

Liability of proprietor of store, office, or similar business premises for injury from fall on floor made slippery by tracked-in or spilled water, oil, mud, snow, and the like, 62 A.L.R.2d 6.

Master's liability to servant injured by farm machinery, 67 A.L.R.2d 1120.

Master's liability for servant's condition or injury resulting in dermatitis, 74 A.L.R.2d 1029.

Hammer as simple tool within simple tool doctrine, 81 A.L.R.2d 965.

Shipowner's liability for injury caused to seaman or longshoreman by cargo or its stowage, 90 A.L.R.2d 710.

Master's liability to agricultural worker injured other than by farm machinery, 9 A.L.R.3d 1061.

Premises liability: proceeding in the dark on inside steps or stairs as contributory negligence, 25 A.L.R.3d 446.

Tort liability for window washer's injury or death, 69 A.L.R.4th 207.

Employer's liability to employee or agent for injury or death resulting from assault or criminal attack by third person, 40 A.L.R.5th 1.

ARTICLE 3 EMPLOYER'S LIABILITY FOR INJURIES TO RAILROAD EMPLOYEES

Cross references. - Applicability of general workers' compensation law to railroad common carriers, § 34-9-2 .

Liability of railroad companies for damages generally, § 46-8-290 et seq.

Law reviews. - For article, "Actions for Wrongful Death in Georgia: Part One," see 19 Ga. B. J. 277 (1957). For article, "Actions for Wrongful Death in Georgia: Part Two," see 19 Ga. B. J. 439 (1957). For article, "Actions for Wrongful Death in Georgia: Part Two," section two, see 20 Ga. B. J. 152 (1957).

JUDICIAL DECISIONS

When this article governs. - In a suit brought by an employee of a railway company for damages for personal injury, when the evidence fails to show that the employee was engaged in interstate commerce at the time the employee was injured, O.C.G.A. Art. 3, Ch. 7, T. 34, the Georgia Employers' Liability Act, governs and not federal law. Gay v. Osteen, 56 Ga. App. 224 , 192 S.E. 539 (1937).

RESEARCH REFERENCES

C.J.S. - 30 C.J.S., Employers' Liability for Injuries to Employees, § 102 et seq.

ALR. - Constitutionality of statutes imposing absolute liability on private persons or corporations, irrespective of negligence or breach of a specific statutory duty, for injury to person or property, 53 A.L.R. 875 .

What employees are engaged in interstate commerce within the Federal Employers' Liability Act, 65 A.L.R. 613 ; 77 A.L.R. 1374 ; 90 A.L.R. 846 .

Duty of railroad toward employees in respect of telltales or other warning of low bridge or other structure over track, 79 A.L.R. 236 .

Loaned servant doctrine under Federal Employer's Liability or Safety Appliance Act, 1 A.L.R.2d 302.

Excessiveness or adequacy of awards of damages for personal injury or death in actions under Federal Employers' Liability Act (45 USC § 51 et seq.) - modern cases, 97 A.L.R. Fed. 189.

34-7-40. "Common carrier" defined.

As used in this article, the term "common carrier" shall include the receiver or receivers or other person or corporation charged with the duty of the management and operation of the business of a common carrier.

(Ga. L. 1909, p. 160, § 6; Civil Code 1910, § 2787; Code 1933, § 66-406.)

RESEARCH REFERENCES

ALR. - Persons or corporations engaged in local transportation of goods as common carriers, 18 A.L.R. 1316 .

Company engaged exclusively or mainly in furnishing switching service as carrier engaged in interstate commerce, 38 A.L.R. 1147 .

One operating bus or stage as common carrier, 42 A.L.R. 853 .

34-7-41. Liability of common carrier by railroad for personal injury or death of employee generally.

Every common carrier by railroad shall be liable in damages to any person suffering injury while he is employed by such carrier or, in case of death of such employee, to his or her personal representative, for the benefit of the surviving spouse or child or children of such employee; and if none, then of such employee's parents; and if none, then of the next of kin dependent upon such employee for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier or by reason of any defects or insufficiency, due to the carrier's negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment; provided, however, that there shall be no recovery under this Code section if the person killed or injured brought about his death or injury by his own carelessness amounting to a failure to exercise ordinary care or if he, by the exercise of ordinary care, could have avoided the consequences of the defendant's negligence. The measure of damages in case the injury results in death of the employee shall be that prescribed in Code Sections 51-4-1, 51-4-2, and 51-4-4; provided, however, that parties who may recover under this Code section, Code Sections 34-7-42 through 34-7-44, and Code Section 34-7-46 may sue and recover in their own names in the manner prescribed by Code Sections 51-4-2 and 51-4-4 in case no administrator or executor has been appointed at the time the action is filed. In case death shall result from injury to the employee, the employer shall be liable unless it, its agents, and its employees have exercised all ordinary and reasonable care and diligence, the presumption being in all cases against the employer. If death shall not result from the injury, the presumption of negligence shall be and remain as provided by law in case of injury received by an employee in the service of a railroad company.

(Ga. L. 1909, p. 160, § 1; Civil Code 1910, § 2782; Code 1933, § 66-401; Ga. L. 1986, p. 10, § 34.)

Cross references. - Liability of principal for injuries to agent by other agents generally, § 10-6-39 .

Liability of employer for torts of independent employee, § 51-2-4 .

Law reviews. - For article, "Actions for Wrongful Death in Georgia," see 9 Ga. B. J. 368 (1947). For article, "Actions for Wrongful Death in Georgia Part Three and Four," see 21 Ga. B. J. 339 (1959). For table covering actions for wrongful death in Georgia, see 10 Ga. B. J. 28 (1947).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Constitutionality of section. - Portion of this section which provided that common carriers by railroad shall be liable to the "next of kin dependent upon" an employee of the common carrier when there was no widow or spouse or child or children of such employee was not unconstitutional on the ground that it conflicted with the equal protection clause of the federal Constitution. Georgia S. & Fla. Ry. v. Adkins, 156 Ga. 826 , 120 S.E. 610 (1923).

Intended beneficiaries. - Right of action to recover for a homicide is not for the benefit of the decedent's estate, or for all of the heirs at law, but is for the benefit solely of certain designated beneficiaries named in the statutes. Cooper v. Cooper, 30 Ga. App. 710 , 119 S.E. 335 (1923).

Presumption of employer's negligence. - Presumption of negligence against the employer "in case death results from injury to the employee," created by this section, was a part of the integral right to recover, and was not alone a rule of evidence. Wallace v. Southern Ry., 10 Ga. App. 90 , 72 S.E. 606 (1911).

Action against federal receiver. - Ga. L. 1909, p. 160 (see now O.C.G.A. Art. 3, Ch. 7, T. 34) was applicable to an action brought, under authority of former Civil Code 1910, § 2788 (see now O.C.G.A. § 34-7-45 ), by an employee against a federal receiver of a railroad operated partially within the state. Atkinson v. Swords, 11 Ga. App. 167 , 74 S.E. 1093 (1912).

Cited in Wrightsville & T.R.R. v. Tompkins, 9 Ga. App. 154 , 70 S.E. 955 (1911); Georgia C. & P.R.R. v. Hines, 138 Ga. 713 , 76 S.E. 60 (1912); Massee & Felton Lumber Co. v. Georgia & F. Ry., 12 Ga. App. 436 , 77 S.E. 366 (1913); Tidwell v. Central of Ga. Ry., 140 Ga. 250 , 78 S.E. 898 (1913); Central of Ga. Ry. v. Allen, 140 Ga. 333 , 78 S.E. 1052 (1913); Southern Ry. v. Diseker, 13 Ga. App. 799 , 81 S.E. 269 (1913); Williams v. Western & A.R.R., 142 Ga. 696 , 83 S.E. 525 (1914); Central of Georgia Ry. Co. v. Bessinger, 17 Ga. App. 617 , 87 S.E. 920 (1916); Western & A.R.R. v. Smith, 144 Ga. 737 , 87 S.E. 1082 (1916); Central of Ga. Ry. v. DeLoach, 18 Ga. App. 362 , 89 S.E. 433 (1916); Western & A.R.R. v. State, 23 Ga. App. 225 , 97 S.E. 878 (1919); Sherrod v. Atlanta B. & A. Ry., 27 Ga. App. 510 , 108 S.E. 908 (1921); Dunbar v. Hines, 152 Ga. 865 , 111 S.E. 396 (1922); Davis v. Menefee, 34 Ga. App. 813 , 131 S.E. 527 (1926); Atlantic C.L.R.R. v. Solomon, 37 Ga. App. 737 , 141 S.E. 917 (1928); Threatt v. American Mut. Liab. Ins. Co., 173 Ga. 350 , 160 S.E. 379 (1931); Brooks v. Sessoms, 53 Ga. App. 453 , 186 S.E. 456 (1936); Thompson v. Watson, 186 Ga. 396 , 197 S.E. 774 (1938); Louisville & N.R.R. v. Crapps, 62 Ga. App. 437 , 8 S.E.2d 413 (1940); Southern Ry. v. Roberts, 206 F.2d 508 (5th Cir. 1953).

Damages

Recovery of diminished damages. - Injured employee is no longer required to show that the employee is free from all blame. In cases in which the negligence of the employee in some degree, less than the lack of ordinary care, contributed to the injury, the employee may recover diminished damages. Southern Ry. v. Perdue, 171 Ga. 134 , 154 S.E. 793 (1930).

Pecuniary damages. - Employee's right of action to recover damages to compensate the employee for expenses, loss of time, suffering, etc., did not survive the employee's death, but the existence of such right in the employee's lifetime did not destroy the dependent's right under the statute to recover for pecuniary damages consequent upon the death; and this section declared two distinct and independent liabilities, resting upon the common foundation of a wrongful injury, but based upon altogether different principles. Dameron v. Southern Ry., 44 Ga. App. 444 , 161 S.E. 641 (1931).

Measure of damages. - Measure of damages for a negligent homicide falling within the purview of former Civil Code 1910, § 2782 (see now O.C.G.A. § 34-7-41 ) was the "full value of the life of the deceased," which, by reference to former Civil Code 1910, § 4425 (see now O.C.G.A. § 51-4-1 ), was amplified to mean "the full value of the life of the deceased without deduction for necessary or other personal expenses of the deceased had he lived." Atkinson v. Hardaway, 10 Ga. App. 389 , 73 S.E. 556 (1912).

Pleading and Practice

Pleading under section. - Since this section gave a prior right of action to beneficiaries other than the plaintiff, the petition must negative the existence of any person who had such primary right to sue. Lamb v. Tucker, 146 Ga. 216 , 91 S.E. 66 (1916).

When right of action arises. - Right of action afforded to parents of a railroad employee for homicide of such employee does not arise until the death of the employee; consequently, the cause of action is not barred before expiration of two years from the death of the employee, even though more than two years may elapse between the time of injury which results in death. Dameron v. Southern Ry., 44 Ga. App. 444 , 161 S.E. 641 (1931).

Settlement prior to death. - Settlement by person injured, prior to the person's death, of right of action arising by reason of injury will bar recovery for subsequently resulting death. Dameron v. Southern Ry., 44 Ga. App. 444 , 161 S.E. 641 (1931).

Venue of action. - The venue of a cause of action, under this section, against a railway company for a negligent homicide was in the county in which the fatal injury was inflicted, and not in the county where the injured person may have died. The cause of action inheres in the wrong as consummated by the injury, and not in the death itself. Atkinson v. Hardaway, 10 Ga. App. 389 , 73 S.E. 556 (1912).

Prima facie case. - Plaintiff makes a prima facie case in one action, under this section, by merely showing that the decedent met death while discharging the duties of decedent's employment. Atkinson v. Hardaway, 10 Ga. App. 389 , 73 S.E. 556 (1912); Walton v. Georgia, F. & A. Ry., 12 Ga. App. 106 , 76 S.E. 1060 (1913), later appeal, 15 Ga. App. 191 , 82 S.E. 815 (1914).

In a case in which the employee is injured by a coemployee in a transaction in which the injured employee participated, the employee must, in order to make a prima facie case and change the onus, prove the fact and extent of the employee's injury and must show either that the employee was not negligent, that is, that the employee was not lacking in ordinary care for the employee's own safety and that the employee could not by the exercise of ordinary care have prevented the consequences to oneself of the negligence of a coemployee; or that the coemployee was lacking in ordinary care in doing the act by which the employee was injured. Southern Ry. v. Perdue, 171 Ga. 134 , 154 S.E. 793 (1930).

Presumption of employer's negligence. - When action was brought by the administratrix of a deceased employee, who was engaged as a car inspector of receivers operating a railroad as a common carrier, whose death was caused by being run over by an engine of the carrier, alleged to have been negligently run at an improper speed, without proper signals, and without any lookout, though it was running backward through a railroad yard where many employees were constantly at work, a presumption of negligence arose, under this section. Atkinson v. Alexander, 142 Ga. 124 , 82 S.E. 561 (1914).

In an action for the homicide of an employee of a railroad company, under this section, a presumption of negligence against the company did not arise upon a prima facie showing that the deceased met death while discharging the duties of employment. The presumption arises only upon proof that the deceased was killed by the running of the locomotives, or cars, or other machinery of the company, or from an act done by some person in its employment and service. Smith v. Southern Ry., 20 Ga. App. 609 , 93 S.E. 166 (1917).

Presumption is rebuttable. - Presumption of negligence against the employer, arising under this section, from death of a railroad employee, is not conclusive, and, if rebutted by uncontradicted and unimpeached evidence, the court should direct the verdict for the defendant. Walker v. Charleston & W.C. Ry., 8 F.2d 725 (5th Cir. 1925).

Jury charge. - Charge of the trial court to the effect that proof of injury by the operation of railroad cars makes out a prima facie case for the injured party which can only be rebutted by the employer by proof of one of three things: 1) that its officers, agents, or employees were in the exercise of ordinary care on that occasion and were not negligent; or 2) that the person killed brought about their own death or injury by carelessness amounting to a failure to exercise ordinary care; or 3) that the deceased, by the exercise of ordinary care, could have avoided the consequences of the defendant's negligence, was erroneous because the charge had the effect of telling the jury that it can weigh the presumption stated in this section against the evidence. Gainesville M.R.R. v. Floyd, 73 Ga. App. 661 , 37 S.E.2d 725 (1946).

RESEARCH REFERENCES

Am. Jur. 2d. - 32B Am. Jur. 2d, Federal Employers' Liability and Compensation Acts, § 14 et seq.

ALR. - Intoxication as affecting contributory negligence of one killed or injured at a railroad crossing, 36 A.L.R. 336 .

Employer's promise to remedy defect in instrumentality as affecting defense of assumption of risk or contributory negligence, 61 A.L.R. 901 .

Constitutionality of statute which imposes liability enforceable in an action at law upon an employer not within workmen's compensation act, for injury to or death of employee, without fault on employer's part, 129 A.L.R. 1124 .

Railroad employee injured while engaged in removing weeds, brush, etc., from roadbed or right of way, as within Federal Employers' Liability Act, 143 A.L.R. 481 .

Employer's compliance with specific legal standard prescribed by or pursuant to statute for equipment, structure, or material, as defense to charge of negligence, 159 A.L.R. 870 .

Liability of railroad for injury to alighting trainman as a result of condition of track or right of way, 172 A.L.R. 594 .

Failure of equipment required by Federal Safety Appliance Acts as constituting actionable wrong, 16 A.L.R.2d 654.

Defect in appliance or equipment as proximate cause of injury to railroad employee in repair or investigation thereof, 30 A.L.R.2d 1192.

Finding of decedent's body on or near tracks as creating presumption or inference of railroad's negligence, or as affecting burden of proof relating thereto, 40 A.L.R.2d 881.

Duty of railroad company toward employee with respect to close clearance of objects alongside tracks, 50 A.L.R.2d 674.

Duty of railroad company to prevent injury of employee due to surface condition of yard, 57 A.L.R.2d 493.

Contributory negligence of railroad employee in jumping from moving train or car to avoid collision or other injury, 58 A.L.R.2d 1232.

Master's liability for servant's injury or death caused in whole or in part by act of God, 62 A.L.R.2d 796.

Liability, because of improper loading, of railroad consignee or his employee injured while unloading car, 29 A.L.R.3d 1039.

Right of spouse to maintain action for wrongful death as affected by fact that injury resulting in death occurred before marriage, 69 A.L.R.3d 1046.

Modern development of comparative negligence doctrine having applicability to negligence actions generally, 78 A.L.R.3d 339.

Employer's liability to employee or agent for injury or death resulting from assault or criminal attack by third person, 40 A.L.R.5th 1.

34-7-42. Contributory negligence of employee.

In all actions brought against any common carrier by railroad under or by virtue of any of the provisions of this Code section, Code Section 34-7-41, 34-7-43, 34-7-44, or 34-7-46 to recover damages for personal injuries to an employee or for death of an employee where such injuries have resulted in death, the fact that the employee may have been guilty of contributory negligence, not amounting to a failure to exercise ordinary care, shall not bar a recovery; but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee; provided, however, that no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by the common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.

(Ga. L. 1909, p. 160, § 2; Civil Code 1910, § 2783; Code 1933, § 66-402.)

Cross references. - Effect of failure of plaintiff to avoid consequences of defendant's negligence generally, § 51-11-7 .

JUDICIAL DECISIONS

Constitutionality of section. - Section was constitutional. Georgia C. & P.R.R. v. Hines, 138 Ga. 713 , 76 S.E. 60 (1912).

Applicability of section. - Section referred only to cases involving the injury to or death of an employee of a common carrier by a railroad. Willis v. Jones, 89 Ga. App. 824 , 81 S.E.2d 517 (1954).

Effect of employee's contributory negligence. - Under this section, contributory negligence amounting to a failure to exercise ordinary care will absolutely bar recovery, while contributory negligence of a less degree will diminish the recovery. Seaboard Air-Line Ry. v. Hunt, 10 Ga. App. 273 , 73 S.E. 588 (1912).

Comparative negligence. - Comparative negligence doctrine denies any recovery if the plaintiff's negligence equals or exceeds the defendant's. Thus, if each party is 50 percent at fault, there can be no recovery. But should the plaintiff's negligence be 49 percent, the plaintiff is entitled to recover 51 percent of the plaintiff's damages. Southern Ry. v. Brunswick Pulp & Paper Co., 376 F. Supp. 96 (S.D. Ga. 1974).

Last clear chance doctrine. - If both the plaintiff and the defendant are negligent, the latter can be found solely liable for all the damage if the defendant had a last clear chance to avoid the injury and did not exercise ordinary care. Southern Ry. v. Brunswick Pulp & Paper Co., 376 F. Supp. 96 (S.D. Ga. 1974).

Servant's right of recovery barred. - Selection of an unsafe or a dangerous method of performing work when a reasonably safe method is apparent will bar a servant's right of recovery in the event the servant is injured. Gay v. Osteen, 56 Ga. App. 224 , 192 S.E. 539 (1937).

Erroneous charge of section. - Use of the word "may" for "shall" by the court charging this section to the jury was error. Central of Ga. Ry. v. Brown, 138 Ga. 107 , 74 S.E. 839 (1912).

Cited in Georgia R.R. v. Hunter, 12 Ga. App. 294 , 77 S.E. 176 (1913); Massee & Felton Lumber Co. v. Georgia & F. Ry., 12 Ga. App. 436 , 77 S.E. 366 (1913); Atkinson v. Boggs, 16 Ga. App. 738 , 86 S.E. 62 (1915); Louisville & N.R.R. v. Layton, 243 U.S. 617, 37 S. Ct. 456 , 61 L. Ed. 931 (1917); Central of Ga. Ry. v. Hartley, 25 Ga. App. 110 , 103 S.E. 259 (1920); Central of Ga. Ry. v. Lindsey, 28 Ga. App. 198 , 110 S.E. 636 (1922); Robinson v. State, 158 Ga. 47 , 122 S.E. 886 (1924).

RESEARCH REFERENCES

Am. Jur. 2d. - 32B Am. Jur. 2d, Federal Employers' Liability and Compensation Acts, §§ 7, 28 et seq., 69.

ALR. - Right of servant to rely upon performance by another of the duty, equally incumbent upon himself, of complying with the "blue flag rule," 8 A.L.R. 870 .

Liability for injury to window washer, 28 A.L.R. 622 .

Intoxication as affecting contributory negligence of one killed or injured at a railroad crossing, 36 A.L.R. 336 .

Employer's promise to remedy defect in instrumentality as affecting defense of assumption of risk or contributory negligence, 61 A.L.R. 901 .

Construction and effect of comparative negligence rule where there are more than one defendant, or where negligence of nonparties contributes to the injury, 92 A.L.R. 691 .

Statute abolishing or modifying contributory negligence rule in certain class of cases or situations, as denial of equal protection of the laws, 142 A.L.R. 631 .

Liability of railroad for injury to alighting trainman as a result of condition of track or right of way, 172 A.L.R. 594 .

Contributory negligence of railroad employee in jumping from moving train or car to avoid collision or other injury, 58 A.L.R.2d 1232.

Contributory negligence of adult struck by train while walking or standing beside railroad track, 63 A.L.R.2d 1226.

Comparative negligence rule where misconduct of three or more persons is involved, 8 A.L.R.3d 722.

Premises liability: proceeding in the dark across interior premises as contributory negligence, 28 A.L.R.3d 605.

Liability, because of improper loading, of railroad consignee or his employee injured while unloading car, 29 A.L.R.3d 1039.

Retrospective application of state statute substituting rule of comparative negligence for that of contributory negligence, 37 A.L.R.3d 1438.

34-7-43. Assumption of risk where employer is contributorily negligent.

In any action brought against any common carrier by railroad, under and by virtue of any of the provisions of Code Sections 34-7-41 and 34-7-42, to recover damages for injuries to or the death of any of its employees, the employee shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of the employees contributed to the injury or death of such employee.

(Ga. L. 1909, p. 160, § 3; Civil Code 1910, § 2784; Code 1933, § 66-403.)

JUDICIAL DECISIONS

Statutory construction. - Provision of former Code 1933, § 66-403 (see now O.C.G.A. § 34-7-43 ) which abolished the defense of the assumption of risk when there had been a violation by the common carrier of any statute enacted for the safety of the employee has reference to statutes specifically applicable to the operations and equipment of such carriers and was not intended to, and cannot properly, apply to the provisions of former Code 1933, § 66-301 (see now O.C.G.A. § 34-7-20 ). Southern Ry. v. Roberts, 206 F.2d 508 (5th Cir. 1953).

Assumption of risk and contributory negligence. - Assumption of risk is a matter of knowledge of the danger and intelligent acquiescence in it, while lack of ordinary care for one's own safety, or contributory negligence, is a matter of some fault or departure from the standard of reasonable conduct. Wright v. Concrete Co., 107 Ga. App. 190 , 129 S.E.2d 351 (1962).

Assumption of risk and contributory negligence may coexist, or either may exist without the other. The difference is frequently one between risks which were in fact known to the plaintiff, or so obvious that the plaintiff must be taken to have known of them, and risks which plaintiff merely might have discovered by the exercise of ordinary care. Wright v. Concrete Co., 107 Ga. App. 190 , 129 S.E.2d 351 (1962).

Cited in Massee & Felton Lumber Co. v. Georgia & F. Ry., 12 Ga. App. 436 , 77 S.E. 366 (1913); Atkinson v. Boggs, 16 Ga. App. 738 , 86 S.E. 62 (1915).

RESEARCH REFERENCES

Am. Jur. 2d. - 32B Am. Jur. 2d, Federal Employers' Liability and Compensation Acts, § 6.

ALR. - Employer's promise to remedy defect in instrumentality as affecting defense of assumption of risk or contributory negligence, 61 A.L.R. 901 .

Assumption of risk of overstrain consequent upon failure of other employee to lift his share, 74 A.L.R. 157 .

Construction and application of 1939 amendment of Federal Employers' Liability Act regarding assumption of risk, 143 A.L.R. 978 .

Liability of railroad for injury to alighting trainman as a result of condition of track or right of way, 172 A.L.R. 594 .

Liability of employer for injury to employee due to his physical unfitness for the work to which he was assigned, 175 A.L.R. 982 .

Liability, because of improper loading, of railroad consignee or his employee injured while unloading car, 29 A.L.R.3d 1039.

34-7-44. Employer exemptions from liability void; allowable setoffs.

Any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier by railroad to exempt itself from any liability created by Code Sections 34-7-41 through 34-7-43, shall, to that extent, be void; provided, however, that in any action brought against any such common carrier by railroad under or by virtue of any of such Code sections such common carrier may set off therein any sum it has contributed or paid to any insurance, relief, benefit, or indemnity that may have been paid to the injured employee or, in the event of death, to the person or persons entitled thereto on account of the injury or death for which said action is brought.

(Ga. L. 1909, p. 160, § 4; Civil Code 1910, § 2785; Code 1933, § 66-404.)

JUDICIAL DECISIONS

Constitutionality of section. - Section did not violate U.S. Const., amend. 14. Washington v. Atlantic Coast Line R.R., 136 Ga. 638 , 71 S.E. 1066 , 38 L.R.A. (n.s.) 867 (1911).

Cited in Louisville & N.R.R. v. Bradford, 135 Ga. 522 , 69 S.E. 870 (1910); Houser v. Savannah Elec. Co., 9 Ga. App. 766 , 72 S.E. 276 (1911); Massee & Felton Lumber Co. v. Georgia & F. Ry., 12 Ga. App. 436 , 77 S.E. 366 (1913).

RESEARCH REFERENCES

Am. Jur. 2d. - 32B Am. Jur. 2d, Federal Employers' Liability and Compensation Acts, §§ 8, 9.

ALR. - Independent contractor: remedial rights in respect of injuries caused by breaches of positive duties correlative to corporate franchises, 28 A.L.R. 122 .

Right of setoff as between proceeds of life insurance and indebtedness of insured to insurer, 101 A.L.R. 1517 .

Release or contract after injury as affected by provision of Federal Employers' Liability Act invalidating contract, rule, or device to exempt carrier from liability, 166 A.L.R. 648 .

Validity, construction, and effect of agreement, in connection with real-estate lease or license by railroad, for exemption from liability or for indemnification by lessee or licensee, for consequences of railroad's own negligence, 14 A.L.R.3d 446.

34-7-45. Liability of receivers, trustees, and assignees of railroad companies for coemployees' negligence; lien on railroad company income.

  1. The liability of receivers, trustees, assignees, and other like officers operating railroads in, or partially in, this state for injuries and damages to employees or their property which are caused by the negligence of coemployees shall be the same as that fixed in Code Section 34-7-41.
  2. A lien is created on the gross income of a railroad liable under Code Section 34-7-41 while in the control of any person or corporation described in subsection (a) of this Code section in favor of the injured employee superior to all other liens against the defendant under the laws of this state.

    (Ga. L. 1895, p. 103, § 1; Civil Code 1895, § 2324; Ga. L. 1896, p. 63, § 1; Civil Code 1910, § 2788; Code 1933, § 66-407.)

JUDICIAL DECISIONS

Applicability. - Georgia law (see now O.C.G.A. Art. 3, Ch. 7, T. 34) was applicable to a suit brought under authority of this section by an employee against a federal receiver of a railroad operated partially within the state. Atkinson v. Swords, 11 Ga. App. 167 , 74 S.E. 1093 (1912).

Consent of appointing court not necessary. - Section was an exception to the general rule that before an action can be maintained against a receiver appointed by the courts of Georgia, the consent of the appointing court was necessary. Bugg v. Lang, 35 Ga. App. 704 , 134 S.E. 623 (1926).

When consent of appointing court necessary. - Receiver of a corporation, without the permission of the court which appointed the receiver, cannot be sued for any acts of negligence of the corporation prior to appointment as receiver. Harrell v. Atkinson, 9 Ga. App. 150 , 70 S.E. 954 (1911).

Effect upon federal receivers. - Authority extended under federal statute for actions in state courts against federal receivers is paramount, and was in no way affected by this section. Bugg v. Lang, 35 Ga. App. 704 , 134 S.E. 623 (1926).

Lien subject to debt due United States. - A debt of the railroad to the United States has priority over a lien created by former Civil Code 1910, § 2788 (see now O.C.G.A. § 34-7-45 ). Piedmont Corp. v. Gainesville & N.W.R.R., 30 F.2d 525 (N.D. Ga. 1929).

Effect of appointment on limitations. - Running of the statute of limitations is not affected by the mere appointment of a receiver. Cain v. Seaboard Air-Line Ry., 138 Ga. 96 , 74 S.E. 764 (1912).

Cited in Youngblood v. Comer, 97 Ga. 152 , 23 S.E. 509 (1895); Barry v. McGhee, 100 Ga. 759 , 28 S.E. 455 (1897); Charleston & W.C. Ry. v. Robinson, 11 Ga. App. 492 , 75 S.E. 820 (1912); Lamb v. Floyd, 148 Ga. 357 , 96 S.E. 877 (1918); Hancock v. Miller, 28 Ga. App. 387 , 111 S.E. 80 (1922); Birmingham Trust & Sav. Co. v. Atlanta, B. & Atl. Ry., 287 F. 561 (N.D. Ga. 1923).

RESEARCH REFERENCES

ALR. - Forum non conveniens: circumstances justifying state court's refusal to take jurisdiction of Federal Employers' Liability Act proceeding, 60 A.L.R.3d 964.

34-7-46. Limitation period for institution of action.

No action shall be maintained under Code Sections 34-7-41 through 34-7-44 unless commenced within two years from the day the cause of action accrued.

(Ga. L. 1909, p. 160, § 5; Civil Code 1910, § 2786; Code 1933, § 66-405.)

Cross references. - Time limitation on actions against railroad companies for recovery of damages generally, § 46-1-2 .

Law reviews. - For article, "Statutes of Limitation: Counterproductive Complexities," see 37 Mercer L. Rev. 1 (1985).

JUDICIAL DECISIONS

Right of action arises upon employee's death. - Right of action afforded by this article (see now O.C.G.A. Art. 3, Ch. 7, T. 34) to parents of a railroad employee for homicide of such employee does not arise until the death of the employee; consequently, the cause of action is not barred before expiration of two years from the death of the employee, even though more than two years may elapse between the time of injury which results in death and death itself. Dameron v. Southern Ry., 44 Ga. App. 444 , 161 S.E. 641 (1931).

Settlement. - Settlement by a person injured, prior to the person's death, of a right of action arising by reason of an injury will bar recovery for a subsequent death. Dameron v. Southern Ry., 44 Ga. App. 444 , 161 S.E. 641 (1931).

RESEARCH REFERENCES

ALR. - Independent contractor: remedial rights in respect of injuries caused by breaches of positive duties correlative to corporate franchises, 28 A.L.R. 122 .

34-7-47. Liability of railroad company to its employees for negligence of employees of another railroad company using same track.

Where two or more chartered railroad companies whose lines terminate in the same city contract to use the same track within the corporate limits, the company owning the track shall not be responsible to its employees for injuries sustained solely by reason of the negligent use of the track by the employees of the other company.

(Civil Code 1895, § 1865; Civil Code 1910, § 2229; Code 1933, § 66-408.)

History of section. - This Code section is derived from the decision in Georgia R.R. & Banking Co. v. Friddell, 79 Ga. 489 , 7 S.E. 214 (1888).

JUDICIAL DECISIONS

Cited in Lovett v. Calloway, 69 F. Supp. 532 (N.D. Ga. 1946).

34-7-48. Recovery by employee working beyond limited hours of service.

No employee of any railroad company shall be deprived of his right to recover damages for personal injury by reason of the fact that at the time of such injury he was making a run of more than 13 hours, or making a run aggregating more than 13 hours in 24 hours, or had gone on duty after a 13 hour run, or runs aggregating 13 hours, before ten hours' rest.

(Ga. L. 1890-91, p. 186, § 1; Civil Code 1895, § 2240; Civil Code 1910, § 2693; Code 1933, § 66-410; Ga. L. 2017, p. 774, § 34/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, deleted ", as prohibited by Code Section 46-8-152" following "rest" at the end of this Code section.

RESEARCH REFERENCES

ALR. - Liability for injury to an employee as affected by expiration of statutory hours of labor before injury, 71 A.L.R. 861 .

CHAPTER 8 EMPLOYMENT SECURITY

General Provisions.

Definitions.

Administration.

Disclosure of Records.

Contributions and Payments in Lieu of Contributions.

Administrative Assessments.

Benefits.

Appeals.

Prohibited and Void Acts; Overpayments.

Unemployment Tax Amnesty.

Editor's notes. - Ga. L. 1991, p. 139, effective January 1, 1992, repealed the Code sections formerly codified at this chapter, and enacted the current chapter. The former chapter consisted of Code Sections 34-8-1 through 34-8-7.1, 34-8-8 through 34-8-19 (Article 1); 34-8-30 through 34-8-41.1, 34-8-42 through 34-8-49.1, and 34-8-50 through 34-8-53 (Article 2); 34-8-70 through 34-8-83 (Article 3); 34-8-100 through 34-8-104 (Article 4); 34-8-110 through 34-8-115 (Article 4A); 34-8-120 through 34-8-132 (Article 5); 34-8-150 through 34-8-160 (Article 6); and 34-8-170 through 34-8-177 (Article 7), and was based on Ga. L. 1937, p. 806, §§ 1-20; Ga. L. 1937-38, Ex. Sess., p. 356; Ga. L. 1941, p. 532, §§ 1-6, 8-14, 16-33, 37; Ga. L. 1943, p. 610, §§ 1-3; Ga. L. 1943, p. 612, § 1; Ga. L. 1943, p. 613, § 1; Ga. L. 1945, p. 259, § 1; Ga. L. 1945, p. 331, § 1; Ga. L. 1946, p. 532, § 7; Ga. L. 1947, p. 651, §§ 2-9; Ga. L. 1950, p. 38, §§ 2-7, 9-19; Ga. L. 1951, p. 512, §§ 2-11; Ga. L. 1953, Jan.-Feb. Sess., p. 327, §§ 2-5; Ga. L. 1955, p. 420, § 2; Ga. L. 1955, p. 553, §§ 2-9; Ga. L. 1956, p. 481, §§ 1, 3, 4, 6-10; Ga. L. 1957, p. 325, §§ 2-4; Ga. L. 1960, p. 861, §§ 2-15, 17-26; Ga. L. 1964, p. 217, § 2; Ga. L. 1964, p. 143, §§ 2, 3; Ga. L. 1966, p. 141, § 1; Ga. L. 1966, p. 526, §§ 1-11; Ga. L. 1969, p. 249, §§ 2-8; Ga. L. 1969, p. 379, § 2; Ga. L. 1971, p. 475, §§ 1-27; Ga. L. 1972, p. 1015, § 408B; Ga. L. 1972, p. 1069, § 3; Ga. L. 1972, p. 1201, §§ 1-18; Ga. L. 1972, p. 1224, §§ 2-17; Ga. L. 1973, p. 341, § 1; Ga. L. 1973, p. 729, §§ 1-24; Ga. L. 1974, p. 101, p. 9, §§ 1-4; Ga. L. 1975, p. 11, §§ 1-5; Ga. L. 1976, p. 1029, §§ 1-10, 12-18; Ga. L. 1977, p. 781, § 1; Ga. L. 1977, p. 850, §§ 1-5, 8-20; Ga. L. 1978, p. 941, § 1; Ga. L. 1978, p. 1386, §§ 1-41; Ga. L. 1980, p. 1553, § 1; Ga. L. 1980, p. 1563, § 1; Ga. L. 1980, p. 1565, §§ 1, 2-8; Ga. L. 1981, p. 390, §§ 1-18, 20; Ga. L. 1981, p. 413, §§ 1-3; Ga. L. 1982, p. 3, § 34; Ga. L. 1982, p. 1023, §§ 1-4, 6-8, 10, 11, 13, 16-34; Ga. L. 1983, p. 3, § 25; Ga. L. 1983, p. 1153, §§ 1-3, 3A, 4-6; Ga. L. 1983, p. 1592, § 1; Ga. L. 1984, p. 22, § 34; Ga. L. 1984, p. 861, §§ 1-6; Ga. L. 1985, p. 149, § 34; Ga. L. 1985, p. 536, § 1; Ga. L. 1985, p. 696, §§ 1, 2; Ga. L. 1985, p. 901, § 1; Ga. L. 1986, p. 10, § 34; Ga. L. 1986, p. 299, § 1; Ga. L. 1986, p. 415, § 1; Ga. L. 1986, p. 925, § 1; Ga. L. 1987, p. 3, § 34; Ga. L. 1987, p. 139, § 1-5; Ga. L. 1987, p. 191, § 9; Ga. L. 1987, p. 435, §§ 1, 2; Ga. L. 1988, p. 13, § 34; Ga. L. 1988, p. 939, §§ 1-7; Ga. L. 1989, p. 302, §§ 1, 2; Ga. L. 1989, p. 305, §§ 1-5; Ga. L. 1989, p. 594, § 1; Ga. L. 1990, p. 870, § 1.

Administrative Rules and Regulations. - Rules and regulations pertaining to Employment Security Law, Official Compilation of the Rules and Regulations of the State of Georgia, Rules of Georgia Department of Labor, Chapters 300-2-1 et seq.

Law reviews. - For survey article on recent developments in Georgia administrative law, see 34 Mercer L. Rev. 393 (1982). For annual survey of law on labor and employment law, see 62 Mercer L. Rev. 181 (2010). For annual survey of labor and employment law, see 68 Mercer L. Rev. 151 (2016). For note on the 2002 amendment of this chapter, see 19 Ga. St. U.L. Rev. 258 (2002).

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under Ga. L. 1937, p. 806 and former Chapter 8 of Title 34, which were repealed by Ga. L. 1991, p. 139, § 1, effective January 1, 1992, are included in the annotations for this Code section.

Constitutionality of chapter. - Former chapter was not as a whole violative of U.S. Const., amends. 9, 14. Gernatt v. Huiet, 192 Ga. 729 , 16 S.E.2d 587 (1941) (decided under Ga. L. 1937, p. 806).

Purpose of chapter. - Chapter was enacted to protect the worker in some measure from the loss, through no fault of the worker's own, of employment; that is to say, to ensure the worker against loss of a place to work. Utica Mut. Ins. Co. v. Pioda, 90 Ga. App. 593 , 83 S.E.2d 627 (1954) (decided under Ga. L. 1937, p. 806).

The Employment Security Law, O.C.G.A. Ch. 8, T. 34, contemplates an employer providing for the payment of limited benefits based on the employee's former wages, subject to specific conditions, for a limited duration; it does not contemplate that the payment of such benefits will result in an individual receiving more than the individual earned when the individual was gainfully employed. Powell v. Dougherty Christian Academy, Inc., 215 Ga. App. 551 , 451 S.E.2d 465 (1994).

Construction of chapter. - Chapter was to be liberally construed in favor of the state. Williams v. Tracy Bldrs., Inc., 94 Ga. App. 203 , 94 S.E.2d 139 (1956) (decided under Ga. L. 1937, p. 806; see O.C.G.A. Ch. 8, T. 34).

Ineligibility for unemployment compensation. - An employee who was not discharged and did not resign, but who did leave work voluntarily, is disqualified and ineligible to receive unemployment compensation under the provisions of this chapter. Huiet v. Atlanta Gas Light Co., 70 Ga. App. 233 , 28 S.E.2d 83 (1943) (decided under Ga. L. 1937, p. 806; see O.C.G.A. Ch. 8, T. 34).

When an employee is a married person living with their spouse and the employee voluntarily quits their employment without good cause connected with the employee's most recent work, solely for the purpose of joining and living with the employee's spouse, a preacher, at a distant point to which the spouse has been transferred that is too far for the employee to commute to work, the employee thereby disqualifies themselves from receiving compensation under this chapter. Huiet v. Callaway Mills, 70 Ga. App. 538 , 29 S.E.2d 106 (1944) (decided under Ga. L. 1937, p. 806; see O.C.G.A. Ch. 8, T. 34).

Coverage of chapter. - When certain fashion show directors had no territorial assignments or geographical restrictions, no prescribed number or time of hours to work, no minimum number of orders to be maintained and no prohibition against selling other companies' products or holding other employment contemporaneously with that of the plaintiff corporation, the fashion directors were not covered under this chapter. Sarah Coventry, Inc. v. Caldwell, 243 Ga. 429 , 254 S.E.2d 375 (1979) (decided under Ga. L. 1937, p. 806; see O.C.G.A. Ch. 8, T. 34).

Findings by Bureau of Unemployment Compensation. - Findings of fact by the appeals referee of the Bureau of Unemployment Compensation which are supported by evidence are conclusive and binding. Huiet v. Dayan, 69 Ga. App. 81 , 24 S.E.2d 728 (1943) (decided under Ga. L. 1937, p. 806).

Effect of unreviewed agency decisions on subsequent age discrimination action. - Unreviewed decisions of the Georgia Employment Security Agency are not granted preclusive effect in subsequent federal Age Discrimination in Employment Act lawsuits because granting such deference could cause potential plaintiffs to forego their chance at unemployment compensation for fear of jeopardizing their ADEA claims or else force employees and employers to litigate unemployment compensation claims as discrimination suits. Delgado v. Lockheed-Georgia Co., 815 F.2d 641 (11th Cir. 1987) (decided under former Chapter 8 of Title 34).

Consideration of workers' compensation. - Fact that the claimant has applied for and is receiving unemployment compensation under Ga. L. 1937, p. 806 (see now O.C.G.A. § 34-7-1 et seq.) alters nothing in finding that claimant's incapacity resulted from injuries which arose out of and in the course of claimant's employment. The claimant's application for and receipt of unemployment benefits does not estop claimant's claiming compensation under the Workers' Compensation Act or constitute an election between inconsistent remedies. The two chapters are not repugnant. While each seeks the beneficent purpose of insuring the worker from economic insecurity, the two acts seek to remedy economic insecurity stemming from two entirely different sources. Utica Mut. Ins. Co. v. Pioda, 90 Ga. App. 593 , 83 S.E.2d 627 (1954) (decided under Ga. L. 1937, p. 806; see O.C.G.A. Ch. 7, T. 34).

Cited in Ocean S.S. Co. v. Allen, 36 F. Supp. 851 (M.D. Ga. 1941); Union Dry Goods Co. v. Cook, 71 Ga. App. 708 , 32 S.E.2d 190 (1944); Phillips v. J.L. Peed Co., 78 Ga. App. 471 , 51 S.E.2d 468 (1949); Benton Rapid Express v. Redwine, 87 Ga. App. 584 , 74 S.E.2d 504 (1953); Huiet v. Rhodes, 101 Ga. App. 253 , 113 S.E.2d 487 (1960).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions decided under Ga. L. 1937, p. 806 and former Chapter 8 of Title 34, which was repealed by Ga. L. 1991, p. 139, § 1, effective January 1, 1992, are included in the annotations for this Code section.

Contributions are state taxes. - The contributions required by Ga. L. 1937, p. 806 (see now O.C.G.A. § 34-7-1 et seq.) are state taxes within the meaning of Ga. L. 1953, Jan.-Feb. Sess., p. 185, § 1 (see now O.C.G.A. § 48-2-18 ) creating the Board of Compromises and Settlements (now Board of Equalization); the board has jurisdiction and authority to settle or compromise such a tax liability according to the authority contained in the Act creating the Board of Compromises and Settlements. 1965-66 Op. Att'y Gen. No. 66-91 (decided under Ga. L. 1937, p. 806).

Administration by Employment Security Agency. - The Employment Security Agency is the proper state agency to administer the state-wide system of public employment offices in cooperation with the United States Employment Service. 1945-47 Op. Att'y Gen. p. 358 (decided under Ga. L. 1937, p. 806).

Department of Labor to be represented by Attorney General. - The Department of Labor may not employ its own general counsel or otherwise provide itself with legal advice or representation other than through the Attorney General. 1984 Op. Att'y Gen. No. 84-48 (decided under former Chapter 8 of Title 34).

Source for unemployment compensation payments. - Ga. L. 1937, p. 806 (see now O.C.G.A. § 34-7-1 et seq.) basically provides that unemployment compensation is to be paid from a fund financed by systematic accumulation of money paid by employers. 1982 Op. Att'y Gen. No. 82-35 (decided under Ga. L. 1937, p. 806).

There does not appear to be any basis in the Constitution or the Georgia State Financing and Investment Commission Act which would authorize the Employment Security Agency, Georgia Department of Labor to borrow or obtain advances from the federal unemployment account in the Unemployment Trust Fund for payment of unemployment compensation. 1982 Op. Att'y Gen. No. 82-35 (decided under Ga. L. 1937, p. 806).

RESEARCH REFERENCES

Violation of Employee Lie Detector Statute, 18 POF3d 627.

ALR. - Constitutionality of unemployment insurance legislation, 106 A.L.R. 1531 .

Judicial questions regarding Federal Social Security Act, and state legislation adopted in anticipation of or after the passage of the act to set up "state plans" contemplated by it, 108 A.L.R. 613 ; 109 A.L.R. 1346 ; 118 A.L.R. 1220 ; 121 A.L.R. 1002 .

Construction and application of state social security or Unemployment Compensation Act as affected by terms of the federal act or judicial or administrative rulings thereunder, 139 A.L.R. 892 .

Validity, construction, and application of provisions of social security or unemployment compensation acts as to employment units which are affiliated or under a common control, 142 A.L.R. 918 ; 158 A.L.R. 1237 .

Construction and application of provision of social security or unemployment compensation acts relating to exemption of corporations or institutions of a religious, charitable, or educational character, 155 A.L.R. 369 .

What amounts to presence of foreign corporation in state, so as to render it liable to action therein to recover unemployment compensation tax, 161 A.L.R. 1068 .

State banks, insurance companies, or building and loan associations, which are members of Federal reserve bank or similar Federal agency, or national banks, as within state social security or Unemployment Compensation Act, 165 A.L.R. 1250 .

Circumstances of leaving employment, availability for work, or nature of excuse for refusing re-employment as affecting right to social security or unemployment compensation, 165 A.L.R. 1382 .

Construction and application of provisions of Unemployment Compensation or Social Security Acts regarding disqualification for benefits because of labor disputes or strikes, 28 A.L.R.2d 287; 60 A.L.R.3d 1; 60 A.L.R.3d 11; 61 A.L.R.3d 686; 61 A.L.R.3d 693; 61 A.L.R.3d 729; 61 A.L.R.3d 746; 62 A.L.R.3d 304; 62 A.L.R.3d 314; 62 A.L.R.3d 375; 62 A.L.R.3d 380; 62 A.L.R.3d 429; 62 A.L.R.3d 437; 63 A.L.R.3d 88.

Professional personnel such as physicians, surgeons, dentists, lawyers, and the like, as "employees" within Social Security Act, 88 A.L.R.2d 979.

Social Security Acts: requisite of employment as affected by family relationship between alleged employer and employee, 8 A.L.R.3d 696.

Unemployment compensation: eligibility as affected by claimant's refusal to work at particular times or on particular shifts, 35 A.L.R.3d 1129; 12 A.L.R.4th 611.

Right to unemployment compensation as affected by receipt of pension, 56 A.L.R.3d 520.

Unemployment compensation: eligibility as affected by mental, nervous, or psychological disorder, 1 A.L.R.4th 802.

Employee's refusal to take lie detector test as banning unemployment compensation, 18 A.L.R.4th 307.

Propriety of telephone testimony or hearings in unemployment compensation proceedings, 90 A.L.R.4th 532.

Unemployment compensation: eligibility as affected by claimant's refusal to work at particular times or on particular shifts for domestic or family reasons, 2 A.L.R.5th 475.

Right to unemployment compensation or social security benefits of teacher or other school employee, 33 A.L.R.5th 643.

Eligibility for unemployment compensation as affected by claimant's voluntary separation or refusal to work alleging that the work is illegal or immoral, 41 A.L.R.5th 123.

ARTICLE 1 GENERAL PROVISIONS

34-8-1. Short title.

This chapter shall be known and may be cited as the "Employment Security Law."

(Code 1981, § 34-8-1 , enacted by Ga. L. 1991, p. 139, § 1.)

Editor's notes. - Ga. L. 1941, p. 229, §§ 1 through 3 ratified, approved, and confirmed an executive order and proclamation issued by the Governor on April 5, 1940, suspending the collection of unemployment compensation taxes upon certain items and from certain employers exempted by amendments to the Social Security Act approved in August, 1939.

Law reviews. - For survey article on local government law, see 34 Mercer L. Rev. 225 (1982). For annual survey of labor and employment law, see 57 Mercer L. Rev. 251 (2005).

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under Ga. L. 1937, p. 806 and former Code Section 34-8-1, which was repealed by Ga. L. 1991, p. 139, § 1, effective January 1, 1992, are included in the annotations for this Code section.

Scope of chapter. - In determining whether an individual comes within the scope of Ga. L. 1937, p. 806 (see now O.C.G.A. Ch. 8, T. 34) it is first necessary to establish that the individual in question performs services for wages. Williamson v. Modern Homes Constr. Co., 114 Ga. App. 340 , 151 S.E.2d 488 (1966) (decided under Ga. L. 1937, p. 806).

Construction and application. - Courts, as well as the administrator of the unemployment law, in construing and applying the provisions of such law must liberally construe and apply such law in light of the public policy of this state. Dalton Brick & Tile Co. v. Huiet, 102 Ga. App. 221 , 115 S.E.2d 748 (1960) (decided under Ga. L. 1937, p. 806).

Courts shall be guided by the fact that the unemployment compensation law is intended to provide some income for persons who are, without fault of their own, temporarily out of employment. Dalton Brick & Tile Co. v. Huiet, 102 Ga. App. 221 , 115 S.E.2d 748 (1960) (decided under Ga. L. 1937, p. 806).

Substitute teacher's employment was intermittent by nature and not the type of employment that Georgia's Employment Security Law was designed to encourage; consequently, the teacher was not unemployed as defined by statute as a matter of law at the time that the teacher filed a claim for unemployment benefits, and the teacher's claim for benefits was properly denied. Campbell v. Poythress, 216 Ga. App. 834 , 456 S.E.2d 110 (1995).

Rulemaking. - Under the Administrative Procedure Act the adoption of "[r]ules relating to . . . benefits by the state or of an agency" is expressly exempted by O.C.G.A. § 50-13-2(6)(I) from the strict rulemaking procedural requirements of O.C.G.A. § 50-13-4 . This includes the promulgation of policies determining eligibility for entitlement and rules for granting unemployment benefits. Caldwell v. Amoco Fabrics Co., 165 Ga. App. 674 , 302 S.E.2d 596 (1983) (decided under former § 34-8-1 ).

Cited in Huiet v. Dayan, 194 Ga. 250 , 21 S.E.2d 423 (1942); Johnson v. Huiet, 67 Ga. App. 638 , 21 S.E.2d 437 (1942); Lee v. State, 73 Ga. App. 821 , 38 S.E.2d 128 (1946); Banks v. Huiet, 111 Ga. App. 607 , 142 S.E.2d 421 (1965); Caldwell v. Atlanta Bd. of Educ., 152 Ga. App. 291 , 262 S.E.2d 573 (1979).

RESEARCH REFERENCES

ALR. - What constitutes appropriate relief for retaliatory discharge under § 11(c) of Occupational Safety and Health Act (OSHA) (29 U.S.C.S. § 660(c)), 134 A.L.R. Fed 629.

34-8-2. Declaration of public policy.

As a guide to the interpretation and application of this chapter, the public policy of this state is declared to be as follows: economic insecurity due to unemployment is a serious menace to the health, morals, and welfare of the people of this state. Involuntary unemployment is therefore a subject of general interest and concern which requires appropriate action by the General Assembly to prevent its spread and to lighten its burden which so often falls with crushing force upon the unemployed worker or the worker's family. The achievement of social security requires protection against this greatest hazard of our economic life. This can be provided by encouraging employers to provide more stable employment and by the systematic accumulation of funds during periods of employment to provide benefits for periods of unemployment, thus maintaining purchasing power and limiting the serious social consequences of poor relief assistance. The General Assembly therefore declares that in its considered judgment the public good and the general welfare of the citizens of this state require the enactment of this measure, under the police powers of the state, for the compulsory setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own.

(Code 1981, § 34-8-2 , enacted by Ga. L. 1991, p. 139, § 1.)

Law reviews. - For annual survey of law on labor and employment law, see 62 Mercer L. Rev. 181 (2010). For comment on Meakins v. Huiet, 100 Ga. App. 557 , 112 S.E.2d 167 (1959), see 11 Mercer L. Rev. 395 (1960).

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under Ga. L. 1937, p. 806 and former Code Section 34-8-2, which was repealed by Ga. L. 1991, p. 139, § 1, effective January 1, 1992, are included in the annotations for this Code section.

Constitutionality. - Fact that an employee is entitled to benefits based on employment at a hospital bears a substantial relationship to the purpose of this chapter. Compulsory contributions for employment security are, like many other taxes, payable without regard to fault; an employee's eligibility for benefits and the hospital authority's resulting liability do not offend the due process clause of Georgia's Constitution. Caldwell v. Hospital Auth., 248 Ga. 887 , 287 S.E.2d 15 (1982) (decided under Ga. L. 1937, p. 806; see O.C.G.A. Ch. 8, T. 34).

Purpose of chapter. - Purpose of this chapter is to prevent economic insecurity due to unemployment by encouraging employers to provide more stable employment and to accumulate funds to provide benefits for periods of unemployment, and for this purpose it must be liberally construed and applied. Redwine v. Wilkes, 83 Ga. App. 645 , 64 S.E.2d 101 (1951) (decided under Ga. L. 1937, p. 806; see O.C.G.A. Ch. 8, T. 34).

The purpose of this chapter is to spread and lighten the burden of unemployment by allowing involuntarily unemployed workers to collect benefits based on their work history, even though that work history may encompass a period of employment which the employee voluntarily terminated. Furthermore, that this bears a substantial relationship to the purpose of the law seems clear beyond peradventure; it does in fact spread and lighten the employee's burden of involuntary unemployment. Caldwell v. Hospital Auth., 248 Ga. 887 , 287 S.E.2d 15 (1982) (decided under Ga. L. 1937, p. 806; see O.C.G.A. Ch. 8, T. 34).

Legislative intent. - Legislative intent and purpose, that only the involuntarily unemployed whose unemployment is not the result of their own fault are entitled to compensation, is the foundation upon which the entire act rests; that intent and purpose runs irresistibly through every paragraph and sentence of the whole law and is supreme and controlling in the construction of all paragraphs and sentences. Ford Motor Co. v. Abercrombie, 207 Ga. 464 , 62 S.E.2d 209 (1950) (decided under Ga. L. 1937, p. 806).

Chapter is to be liberally construed in favor of the state. Williams v. Tracy Bldrs., Inc., 94 Ga. App. 203 , 94 S.E.2d 139 (1956) (decided under Ga. L. 1937, p. 806; see O.C.G.A. Ch. 8, T. 34).

The unmistakable legislative intent of the Employment Security Law is to pay unemployment compensation during periods of unemployment to those workers whose unemployment is involuntary and is not the result of their own fault. Caldwell v. Amoco Fabrics Co., 165 Ga. App. 674 , 302 S.E.2d 596 (1983) (decided under Ga. L. 1937, p. 806).

"Through no fault of their own" construed. - Phrase "through no fault of their own" as used in this section evidently refers to causes beyond "their" control. Huiet v. Schwob Mfg. Co., 196 Ga. 855 , 27 S.E.2d 743 (1943) (decided under Ga. L. 1937, p. 806; see O.C.G.A. § 34-8-2 ).

Good faith effort construed. - Denial of teacher unemployment compensation was reversed on appeal because the teacher's failure to pass an exam required as a condition of employment after taking the exam eight times was not due to any conscious neglect or deliberate malfeasance which would have justified disqualifying the teacher from receiving benefits. Johnson v. Butler, 323 Ga. App. 743 , 748 S.E.2d 111 (2013).

No public policy exception. - Trial court did not err in concluding that the job applicant's cause of action for fraud failed without considering whether the job applicant had an equitable claim for relief as an exception to the at-will employment doctrine because the stated purpose in enacting O.C.G.A. § 34-8-2 was to provide for the compulsory setting aside of unemployment reserves, not to create a public policy exception to the at-will employment doctrine. Poole v. In Home Health, LLC, 321 Ga. App. 674 , 742 S.E.2d 492 (2013).

Cited in Union Dry Goods Co. v. Cook, 71 Ga. App. 708 , 32 S.E.2d 190 (1944); Brumby v. Brooks, 234 Ga. 376 , 216 S.E.2d 288 (1975); Phillips v. Caldwell, 144 Ga. App. 376 , 241 S.E.2d 278 (1977); Caldwell v. Amoco Fabrics Co., 163 Ga. App. 74 , 293 S.E.2d 57 (1982); Millen v. Caldwell, 253 Ga. 112 , 317 S.E.2d 818 (1984); Department of Labor v. Baldwin County Hosp. Auth., 241 Ga. App. 119 , 526 S.E.2d 153 (1999).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions decided under Ga. L. 1937, p. 806, are included in the annotations for this Code section.

Purpose of chapter. - The award of benefits to a "substitute" or part-time teacher during intervals between the teacher's periodic services solely by virtue of the teacher's being a substitute teacher would be contrary to the basic purpose of the law, which is to enhance stable employment and lighten the burden of involuntary unemployment. 1977 Op. Att'y Gen. No. 77-45.

RESEARCH REFERENCES

Am. Jur. 2d. - 76 Am. Jur. 2d, Unemployment Compensation, § 5.

C.J.S. - 81 C.J.S., Social Security and Public Welfare, § 281 et seq.

ALR. - Constitutionality of unemployment insurance legislation, 106 A.L.R. 1531 .

Employment rights of domestic violence victims, 9 A.L.R.7th 7.

34-8-3. Right of General Assembly to amend or repeal chapter; effect.

The General Assembly reserves the right to amend or repeal all or any part of this chapter at any time; and there shall be no vested private rights of any kind against such amendment or repeal. All the rights, privileges, or immunities conferred by this chapter, or by actions taken pursuant thereto, shall exist subject to the power of the General Assembly to amend or repeal this chapter at any time.

(Code 1981, § 34-8-3 , enacted by Ga. L. 1991, p. 139, § 1.)

34-8-4. Representation by Attorney General.

In any civil action to enforce this chapter, the Commissioner, the board of review, and the state shall be represented by the Attorney General of this state.

(Code 1981, § 34-8-4 , enacted by Ga. L. 1991, p. 139, § 1; Ga. L. 1992, p. 6, § 34.)

ARTICLE 2 DEFINITIONS

34-8-20. Annual payroll; average annual payroll.

  1. As used in this chapter, the term "annual payroll" means the total amount of wages for employment paid by an employer during the 12 month period immediately preceding and ending on the computation date.
  2. As used in this chapter, the term "average annual payroll" means the average of the annual payrolls of an employer for the last three 12 month periods immediately preceding the computation date, except that for an employer whose account could have been charged with benefit payments throughout at least 12 but less than 36 consecutive calendar months immediately preceding and ending on the computation date, the term "average annual payroll" means the total amount of wages for employment paid by such employer during the 12 month period immediately preceding and ending on the computation date. (Code 1981, § 34-8-20 , enacted by Ga. L. 1991, p. 139, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 76 Am. Jur. 2d, Unemployment Compensation, §§ 14, 18, 19.

C.J.S. - 81 C.J.S., Social Security and Public Welfare, § 366 et seq.

34-8-21. Base period; alternative base period.

  1. Except as provided in subsection (b) of this Code section, as used in this chapter, the term "base period" means the first four of the last five completed calendar quarters immediately preceding the first day of an individual's benefit year; provided, however, that, in the case of a combined wage claim under Code Section 34-8-80, the base period shall be that applicable under the unemployment compensation law of the paying state.
  2. If an individual does not have sufficient wages to qualify for benefits under the definition of base period in subsection (a) of this Code section, then his or her base period shall be calculated using the last four completed quarters immediately preceding the first day of the individual's benefit year. Such base period shall be known as the "alternative base period." Applicants shall receive written notice of the alternative base period. Implementation of the alternative base period shall commence on January 1, 2003. Implementation of the alternative base period under this subsection shall be under such terms and conditions as the Commissioner may prescribe by rules and regulations. (Code 1981, § 34-8-21 , enacted by Ga. L. 1991, p. 139, § 1; Ga. L. 2002, p. 1119, § 2; Ga. L. 2004, p. 1074, § 1; Ga. L. 2009, p. 139, § 8/HB 581.)

Editor's notes. - Ga. L. 2002, p. 1119, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Employment Security and Enhancement Act of 2002.'"

Ga. L. 2009, p. 139, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Georgia Works Job Creation and Protection Act of 2009.'"

Law reviews. - For survey article on labor and employment law for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 303 (2003). For annual survey of labor and employment law, see 56 Mercer L. Rev. 291 (2004). For note on the 2002 enactment of this chapter, see 19 Ga. St. U.L. Rev. 258 (2002).

34-8-22. Benefits.

As used in this chapter, the term "benefits" means the compensation payable to an individual, as provided in this chapter, with respect to the individual's unemployment.

(Code 1981, § 34-8-22 , enacted by Ga. L. 1991, p. 139, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 76 Am. Jur. 2d, Unemployment Compensation, §§ 13, 29.

C.J.S. - 81 C.J.S., Social Security and Public Welfare, § 390 et seq.

34-8-23. Benefit year.

As used in this chapter, the term "benefit year" with respect to any individual means the one-year period beginning with the day on which a valid claim is filed. In the case of a combined wage claim pursuant to Code Section 34-8-80, the benefit year shall be that of the paying state. Benefits may only be paid during the applicable benefit year, unless there is an extended benefits period in effect as provided in Code Section 34-8-197.

(Code 1981, § 34-8-23 , enacted by Ga. L. 1991, p. 139, § 1.)

34-8-24. Bona fide in the labor market.

As used in this chapter, the term "bona fide in the labor market" means that any person claiming benefits under this chapter must be available for full-time employment, as that term is generally understood in the trade or work classification involved, without regard to prior work restrictions, provided that no individual who is otherwise eligible shall be deemed ineligible for benefits solely because the individual seeks, applies for, or accepts only part-time work, instead of full-time work, provided the individual claiming benefits worked part-time during a majority of the weeks of work in the base period and the individual is available for part-time work for at least 20 hours per week.

(Code 1981, § 34-8-24 , enacted by Ga. L. 1991, p. 139, § 1; Ga. L. 2009, p. 139, § 5/HB 581.)

Editor's notes. - Ga. L. 2009, p. 139, § 1/HB 581, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Georgia Works Job Creation and Protection Act of 2009.'"

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code Section 34-8-34, which was repealed by Ga. L. 1991, p. 139, § 1, effective January 1, 1992, are included in the annotations for this Code section.

Full-time students. - Claimant can be a full-time student and still be available for full-time continuous employment. Curry v. Tanner, 180 Ga. App. 21 , 348 S.E.2d 465 (1986) (decided under former § 34-8-34 ).

OPINIONS OF THE ATTORNEY GENERAL

Claimant with direct interest in labor dispute is disqualified from receiving unemployment benefits until that claimant completely severs the relationship with the employer involved in the dispute and reenters the labor market through an active, good faith attempt to obtain full-time, continuous employment. 1991 Op. Att'y Gen. No. 91-19.

34-8-25. Calendar quarter.

As used in this chapter, the term "calendar quarter" means the period of three consecutive calendar months ending on the dates of March 31, June 30, September 30, or December 31 of each year or such other dates as the Commissioner may by regulation prescribe.

(Code 1981, § 34-8-25 , enacted by Ga. L. 1991, p. 139, § 1.)

34-8-26. Commissioner.

As used in this chapter, the term "Commissioner" means the Commissioner of Labor.

(Code 1981, § 34-8-26 , enacted by Ga. L. 1991, p. 139, § 1.)

34-8-27. Common paymaster.

As used in this chapter, the term "common paymaster" means one of two or more related corporations which concurrently employ the same individual and which is designated to remunerate such individual for services performed for all such related corporations. Upon approval by the Commissioner, the common paymaster shall be considered the employer of such individual and shall be responsible for contributions due on wages paid. Each of the related corporations shall be considered to have paid as remuneration to such individual only the amounts actually disbursed by it to such individual and shall not be considered to have paid as remuneration to such individual amounts actually disbursed to such individual by the common paymaster.

(Code 1981, § 34-8-27 , enacted by Ga. L. 1991, p. 139, § 1.)

34-8-28. Computation date.

As used in this chapter, the term "computation date" means June 30 of each calendar year with respect to rates applicable to the succeeding calendar year for each employer whose account could have been chargeable with benefits throughout the 36 consecutive calendar month period immediately preceding and ending on the computation date.

(Code 1981, § 34-8-28 , enacted by Ga. L. 1991, p. 139, § 1.)

34-8-29. Contributions; payments in lieu of contributions.

  1. As used in this chapter, the term "contributions" means the money payments to the Unemployment Compensation Fund required by Code Sections 34-8-150 through 34-8-156.
  2. As used in this chapter, the term "payments in lieu of contributions" means the money payments to reimburse the Unemployment Compensation Fund for benefit payments charged to employers as required pursuant to Code Sections 34-8-158 through 34-8-161 . (Code 1981, § 34-8-29 , enacted by Ga. L. 1991, p. 139, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 76 Am. Jur. 2d, Unemployment Compensation, § 14 et seq.

C.J.S. - 81 C.J.S., Social Security and Public Welfare, § 194.

34-8-30. Deductible earnings.

As used in this chapter, the term "deductible earnings" means all money in excess of $30.00 each week earned by a claimant for services performed, whether or not received by such claimant. For claims filed on or after July 1, 2002, the term "deductible earnings" means all money in excess of $50.00 each week earned by a claimant for services performed, whether or not received by such claimant. Deductible earnings shall be subtracted from the weekly benefit amount of the claim.

(Code 1981, § 34-8-30 , enacted by Ga. L. 1991, p. 139, § 1; Ga. L. 2002, p. 1119, § 3.)

Editor's notes. - Ga. L. 2002, p. 1119, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Employment Security and Enhancement Act of 2002.'"

Law reviews. - For survey article on labor and employment law for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 303 (2003). For note on the 2002 enactment of this chapter, see 19 Ga. St. U.L. Rev. 258 (2002).

34-8-31. Department.

As used in this chapter, the term "department" means the Georgia Department of Labor.

(Code 1981, § 34-8-31 , enacted by Ga. L. 1991, p. 139, § 1.)

34-8-32. Employee leasing company.

  1. As used in this chapter, the term "employee leasing company" means an independently established business entity which engages in the business of providing leased employees to any other employing unit under the following conditions:
    1. Negotiates with clients or customers for such matters as time, place, type of work, working conditions, quality, and price of service;
    2. Determines assignments of individuals to its clients or customers, even if the individuals retain the right to refuse specific assignments;
    3. Sets the rate of pay of the individuals, whether or not through negotiation;
    4. Pays the individuals from its accounts; and
    5. Hires and terminates individuals who perform services for the clients or customers.
  2. Individuals performing services for an employee leasing company shall be considered employees of the employee leasing company.  The employee leasing company shall file required reports in accordance with regulations prescribed by the Commissioner and pay contributions on wages paid to such employees.
  3. Individuals who perform services for temporary help contracting firms as that term is defined in Code Section 34-8-46 shall not be considered employees of an employee leasing company. (Code 1981, § 34-8-32 , enacted by Ga. L. 1991, p. 139, § 1.)

Administrative Rules and Regulations. - Employee leasing companies, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Department of Labor, Employment Security Law, Requirements for Employees and Employers, § 300-2-7.07.

34-8-33. Employer.

  1. As used in this chapter, the term "employer" means:
    1. Any employing unit which, in either the current or preceding calendar year:
      1. Paid in any calendar quarter wages of $1,500.00 or more for service in employment; or
      2. Had in employment at least one individual, irrespective of whether the same individual was in employment on each such day, for some portion of a day in each of 20 different calendar weeks, whether or not such weeks were consecutive;
    2. Any employing unit which, within either the current or preceding calendar year, paid for domestic service, as defined in subsection (l) of Code Section 34-8-35, cash remuneration of $1,000.00 or more during any calendar quarter;
    3. Any employing unit which within either the current or preceding calendar year:
      1. Paid, during any calendar quarter, remuneration in cash of $20,000.00 or more to individuals employed in agricultural labor; or
      2. Had ten or more individuals employed in agricultural labor, regardless of whether they were employed at the same moment of time, for some portion of a day in each of 20 different calendar weeks in a calendar year.

        For the purposes of subparagraphs (A) and (B) of this paragraph, service in agricultural labor performed before January 1, 1993, by an alien admitted to the United States to perform service in agricultural labor pursuant to Sections 214(c) and 101(a)(15)(H) of the federal Immigration and Nationality Act shall not be taken into account;

    4. Any religious, charitable, educational, or other organization if the following conditions are met:
      1. The organization's employment is excluded from the Federal Unemployment Tax Act by reason of Section 3306(c)(8) of that act; and
      2. The organization had, within either the current or preceding calendar year, four or more individuals in employment for some portion of a day in each of 20 different weeks, whether or not such weeks were consecutive and regardless of whether they were employed at the same time;
    5. Any governmental entity for which service in employment as defined in subsection (h) of Code Section 34-8-35 is performed;
    6. Any employing unit which is or becomes an employer subject to this chapter within any calendar year shall be subject to this chapter during the whole of such calendar year.  Any employer subject to this chapter shall remain an employer unless liability has been terminated in accordance with Code Section 34-8-163;
    7. Any employing unit which has elected to become an employer subject to this chapter pursuant to the following:
      1. An employing unit not otherwise subject to this chapter which files with the Commissioner its written election to become an employer subject to this chapter for not less than two calendar years shall, with the written approval of the Commissioner, become an employer subject to the same extent as all other employers as of the date stated in such approval. The employer shall cease to be subject as of January 1 of any calendar year subsequent to such two calendar years only if prior to April 30 in any calendar year it has filed with the Commissioner a written notice to that effect.  However, any employing unit which has elected coverage under this Code section and subsequently becomes liable by operation of law may terminate coverage only as provided in Code Section 34-8-163; or
      2. Any employing unit for which services are performed that do not constitute employment as defined in this chapter may file with the Commissioner a written election that all such services performed by individuals in its employ in one or more distinct establishments or places of business shall be deemed to constitute employment for all purposes of this chapter. The election must be for not less than two calendar years. Upon the written approval of the Commissioner, such services shall be deemed to constitute employment subject to this chapter after the date stated in such approval.  Such services shall cease to be deemed employment as of January 1 of any calendar year subsequent to such two calendar years only if prior to April 30 in any calendar year such employing unit has filed with the Commissioner a written notice to that effect;
    8. Any employing unit which acquired the organization, trade or business, or substantially all of the assets of another which at the time of such acquisition was an employer subject to this chapter;
    9. Any employing unit which acquired the organization, trade or business, or substantially all of the assets of another employing unit, if the employment record of such employing unit subsequent to such acquisition together with the employment record of the acquired unit prior to such acquisition, both within the same calendar year, would be sufficient to meet any other definition of employer within this chapter; or
    10. Any employing unit which is not an employer by reason of any other paragraph of this Code section:
      1. For which services are performed within the state with respect to which such employing unit is liable for any federal tax against which credit may be taken for contributions paid into a state unemployment compensation fund; or
      2. Which, as a condition for full tax credit against the tax imposed by the Federal Unemployment Tax Act, is required to be covered under this chapter.
  2. Nothing in this chapter shall be construed to require identical coverage to that provided by the Federal Unemployment Tax Act, as amended, nor shall interpretations as to liability or nonliability by federal administrative agencies be binding on the department. (Code 1981, § 34-8-33 , enacted by Ga. L. 1991, p. 139, § 1.)

U.S. Code. - The Federal Unemployment Tax Act, referred to in subparagraph (a)(10)(B) and subsection (b), is codified as 26 U.S.C. §§ 3301-3311. Section 3306(c)(8) of the Act, referred to in subparagraph (a)(4)(A), is codified as 26 U.S.C. § 3306(c)(8).

Sections 214(c) and 101(a)(15)(H) of the federal Immigration and Nationality Act, referred to in paragraph (a)(3), are codified as 8 U.S.C. §§ 1184(c) and 1101(a)(15)(H), respectively.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under Ga. L. 1937, p. 806 are included in the annotations for this Code section.

Statutory definition mandatory. - In determining the meaning of the word "employment" as used in this chapter, the court is bound by the statutory definition of that word in those provisions, rather than by the common-law meaning of the master and servant relationship. Union Dry Goods Co. v. Cook, 71 Ga. App. 708 , 32 S.E.2d 190 (1944) (decided under former Ga. L. 1937, p. 806; see O.C.G.A. Ch. 8, T. 34).

"Acquire" construed. - To acquire is "to get as one's own." Williams v. Tracy Bldrs., Inc., 94 Ga. App. 203 , 94 S.E.2d 139 (1956) (decided under former Ga. L. 1937, p. 806).

Business acquisitions. - The effect of acquiring the business of another is merely to tack on to the number of computable employee-weeks of the employing unit the employee-weeks of its predecessor, which would result, for the purposes of this chapter, in charging each defendant with a sufficient number of employee-weeks to bring it within the terms of those provisions. Williams v. Tracy Bldrs., Inc., 94 Ga. App. 203 , 94 S.E.2d 139 (1956) (decided under former Ga. L. 1937, p. 806; see O.C.G.A. Ch. 8, T. 34).

Cited in Independent Gasoline Co. v. Bureau of Unemployment Comp., 190 Ga. 613 , 10 S.E.2d 58 (1940); Lewis v. Huiet, 67 Ga. App. 337 , 20 S.E.2d 201 (1942); Huiet v. Dayan, 69 Ga. App. 81 , 24 S.E.2d 728 (1943); Dunn v. Huiet, 69 Ga. App. 160 , 24 S.E.2d 868 (1943); Royal Cigar Co. v. Huiet, 195 Ga. 852 , 25 S.E.2d 810 (1943); Huiet v. Brown, 70 Ga. App. 638 , 29 S.E.2d 326 (1944); Loftis Automatic Sprinkler Co. v. Thompson, 74 Ga. App. 743 , 41 S.E.2d 323 (1947); Cartersville Candlewick, Inc. v. Huiet, 204 Ga. 609 , 50 S.E.2d 647 (1948); Williamson v. LaVonda's Hair Stylist, Inc., 114 Ga. App. 289 , 151 S.E.2d 173 (1966); Brumby v. Brooks, 234 Ga. 376 , 216 S.E.2d 288 (1975).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions decided under Ga. L. 1937, p. 806 are included in the annotations for this Code section.

Small claims court judge as employer for bailiff. - A small claims court judge of a county is the "employer," for reporting purposes under this section, for the bailiff of that small claims court. 1978 Op. Att'y Gen. No. U78-17 (decided under former Ga. L. 1937, p. 806; see O.C.G.A. § 34-8-33 ).

Justice of peace as employer for constables. - A justice of the peace is the "employer" for reporting purposes under this chapter for the constable or constables within the militia district served by the justice of the peace, except when the services of the constable are rendered outside of the constable's functions in the justice's court, in which case the county in which the constable serves is the "employer" for reporting purposes under those provisions. 1978 Op. Att'y Gen. No. 78-27 (decided under former Ga. L. 1937, p. 806; see O.C.G.A. Ch 8, T. 34).

RESEARCH REFERENCES

C.J.S. - 81 C.J.S., Social Security and Public Welfare, §§ 293, 307, 308, 322 et seq.

ALR. - What amounts to vendor-vendee or lessor-lessee relationship, as distinguished from employment or service relation, within Social Security or Unemployment Compensation Acts, 152 A.L.R. 520 ; 164 A.L.R. 1411 .

Liability of political party or its subdivision for contributions under employment compensation acts, 43 A.L.R.3d 1351.

What constitutes "agricultural" or "farm" labor within social-security or unemployment-compensation acts, 60 A.L.R.5th 459.

34-8-34. Employing unit.

As used in this chapter, the term "employing unit" means any individual, the legal representative of a deceased individual, or any type of organization, including any partnership, association, trust, estate, joint-stock company, insurance company, or corporation, whether domestic or foreign, employee leasing company, common paymaster, or the receiver, trustee in bankruptcy, trustee, or successor thereof which has or had in its employ one or more individuals performing services for it within this state. Each individual performing services within this state for any employing unit which maintains two or more separate establishments within this state shall be deemed to be employed by a single employing unit for all the purposes of this chapter. Each individual employed to perform or to assist in performing the work of any agent or employee of an employing unit shall be deemed to be employed by such employing unit for all the purposes of this chapter, whether such individual was hired or paid directly by such employing unit or by such agent or employee, provided the employing unit had actual or constructive knowledge of such work.

(Code 1981, § 34-8-34 , enacted by Ga. L. 1991, p. 139, § 1.)

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under Ga. L. 1937, p. 806 are included in the annotations for this Code section.

Warehouse owner as independent contractor or employee. - Services of a warehouse owner who, for commission based on the hundred weight of freight handled by the owner, picked up, stored and delivered freight for a common carrier, presumptively comes within the statutory definition of employment until the defendant carrier shows conjunctively that the warehouse owner has been and will continue to be free from control or direction over the performance of such services, both under the warehouse owner's contract of service, and (1) that the warehouse owner's service is either outside the usual course of the business for which such service is performed, or that the warehouse owner's service is performed outside of all the places of business of the enterprise for which such service is performed, and (2) that the warehouse owner is customarily engaged in an independently established trade, occupation, profession, or business. Benton Rapid Express v. Redwine, 87 Ga. App. 584 , 74 S.E.2d 504 (1953) (decided under former Ga. L. 1937, p. 806).

Employment of relief personnel. - While relief drivers were hired and paid directly by the owner-drivers, when a lease agreement between the owner-drivers and the defendant in fi. fa., a transport company, contemplated the employment of relief drivers, and the evidence showed without contradiction that the defendant in fi. fa. had actual knowledge of their employment, by the terms of Ga. L. 1937, p. 806 (see now O.C.G.A. § 34-8-34 ) the relief drivers were brought within the purview of other provisions of Ga. L. 1937, p. 806 (see now O.C.G.A. § 34-8-1 et seq.). Redwine v. Refrigerated Transp. Co., 90 Ga. App. 784 , 84 S.E.2d 478 (1954) (decided under former Ga. L. 1937, p. 806).

Cited in Huiet v. Dayan, 69 Ga. App. 81 , 24 S.E.2d 728 (1943); Jeffreys-McElrath Mfg. Co. v. Huiet, 196 Ga. 710 , 27 S.E.2d 385 (1943); Huiet v. Brown, 70 Ga. App. 638 , 29 S.E.2d 326 (1944); Huiet v. Brunswick Pulp & Paper Co., 74 Ga. App. 355 , 39 S.E.2d 545 (1946); Darby v. Cook, 201 Ga. 309 , 39 S.E.2d 665 (1946); Cartersville Candlewick, Inc. v. Huiet, 204 Ga. 609 , 50 S.E.2d 647 (1948); Williams v. Tracy Bldrs., Inc., 94 Ga. App. 203 , 94 S.E.2d 139 (1956).

RESEARCH REFERENCES

C.J.S. - 81 C.J.S., Social Security and Public Welfare, §§ 293, 304.

ALR. - Validity, construction, and application of provisions of Social Security or Unemployment Compensation Acts as to employment units which are affiliated or under a common control, 158 A.L.R. 1237 .

34-8-35. Employment.

  1. As used in this chapter, the term "employment" means any service, including service in interstate commerce, performed for wages or under any contract of hire, written or oral, express or implied.
  2. The term "employment" shall include an individual's entire service performed within and outside this state, if:
    1. The service is localized in this state.  Service shall be deemed to be localized within a state if:
      1. The service is performed entirely within such state; or
      2. The service is performed both within and outside the state, but the service performed outside the state is incidental to the individual's service within the state.  "Incidental service" shall include service that is temporary or transitory in nature or consists of isolated transactions;
    2. The service is not localized in any state but some of the service is performed in this state and:
      1. The base of operations or, if there is no base of operations, the place from which such service is directed or controlled is in this state; or
      2. The base of operations or place from which such service is directed or controlled is not in any state in which some part of the service is performed, but the individual's residence is in this state;
    3. The service is performed within the United States or Canada, if such service is not covered under the unemployment compensation law of any other state or Canada and the place from which the service is directed and controlled is in this state; or
    4. The service is performed outside the United States, except Canada, by an individual who is a citizen of the United States in the employ of an American employer, other than service which is deemed "employment" under subsections (d) and (e) of this Code section or the parallel provisions of another state's law, if:
      1. The employer's principal place of business is located in this state;
      2. The employer has no place of business in the United States, but:
        1. The employer is an individual who is a resident of this state;
        2. The employer is a corporation which is organized under the laws of this state; or
        3. The employer is a partnership or a trust and the number of partners or trustees who are residents of this state is greater than the number who are residents of any other state; or
      3. None of the criteria of subparagraphs (A) and (B) of this paragraph is met but the employer has elected coverage in this state or, the employer having failed to elect coverage in any state, the individual has filed a claim for benefits based on such service pursuant to this chapter.
  3. For the purposes of paragraph (4) of subsection (b) of this Code section:
    1. The term "American employer" means:
      1. An individual who is a resident of the United States;
      2. A partnership, if two-thirds or more of the partners are residents of the United States;
      3. A trust, if all the trustees are residents of the United States; or
      4. A corporation organized under the laws of the United States or of any state.
    2. The term "United States" includes the states, the District of Columbia, the Commonwealth of Puerto Rico, and the Virgin Islands.
  4. Services performed within this state but not covered under subsection (b) of this Code section shall be deemed to be employment subject to this chapter if contributions are not required and paid with respect to such services under an unemployment compensation law of any other state or of the federal government.
  5. Services not covered under subsection (b) of this Code section and performed entirely outside this state, with respect to no part of which contributions are required and paid under an unemployment compensation law of any other state or of the federal government, shall be deemed to be employment subject to this chapter if the individual performing such services is a resident of this state and the Commissioner approves the election of the employing unit for whom such services are performed that the entire service of such individual be deemed to be employment subject to this chapter.
  6. Services performed by an individual for wages shall be deemed to be employment subject to this chapter unless and until it is shown that:
      1. Such individual has been and will continue to be free from control or direction over the performance of such services, both under the individual's contract of service and in fact; and
      2. Such individual is customarily engaged in an independently established trade, occupation, profession, or business; or
    1. Such individual and the services performed for wages are the subject of an SS-8 determination by the Internal Revenue Service, which decided against employee status.
    1. The term "employment" shall include all services performed, including service in interstate commerce, by:
      1. Any officer of a corporation; or
      2. Any individual, other than an individual who is an employee under subparagraph (A) of this paragraph, who performs services for remuneration for any person:
        1. As an agent-driver or commission-driver engaged in distributing meat products, vegetable products, fruit products, bakery products, beverages other than milk, or laundry or dry-cleaning services for his or her principal; or
        2. As a traveling or city salesman, other than an agent-driver or commission-driver, engaged upon a full-time basis in the solicitation on behalf of and the transmission to his principal, except for sideline sales activities on behalf of some other person, of orders from wholesalers, retailers, contractors, or operators of hotels, restaurants, or other similar establishments for merchandise for resale or supplies for use in their business operations.
    2. For purposes of subparagraph (B) of paragraph (1) of this subsection, the term "employment" shall include services described in divisions (1)(B)(i) and (1)(B)(ii) of this subsection performed only if:
      1. The contract of service contemplates that substantially all of the services are to be performed personally by such individual;
      2. The individual does not have a substantial investment in facilities used in connection with the performance of the services other than in facilities for transportation; and
      3. The services are not in the nature of a single transaction that is not part of a continuing relationship with the person for whom the services are performed.
  7. The term "employment" shall include service performed in the employ of this state or any of its instrumentalities or any political subdivision of this state or any of its instrumentalities or any instrumentality of more than one of the foregoing or any instrumentality of any of the foregoing and one or more other states or political subdivisions, provided that such service is excluded from "employment" as defined in the Federal Unemployment Tax Act by Section 3306(c)(7) of that act and is not excluded from "employment" under paragraph (3) of subsection (j) of this Code section. Each of the governmental entities described above shall be individually liable for the payment of contributions or reimbursement for payment of benefits as provided in Code Sections 34-8-158 through 34-8-161; and each shall be individually responsible for the filing of quarterly wage summary reports as promulgated in regulations by the Commissioner and provided in Code Section 34-8-165.  For the purposes of the unemployment compensation coverage provided for by this chapter, employees of county and district health agencies established under Chapter 3 of Title 31 and employees of the community service boards established under Chapter 2 of Title 37 are deemed to be employees of this state.
  8. The term "employment" shall include service performed by an individual in the employ of a religious, charitable, educational, or other organization, but only if such organization meets the definition of employer in Code Section 34-8-33.
  9. For the purposes of subsections (h) and (i) of this Code section, the term "employment" does not apply to service performed:
    1. In the employ of:
      1. A church or convention or association of churches; or
      2. An organization which is operated primarily for religious purposes and which is operated, supervised, controlled, or principally supported by a church or convention or association of churches;
    2. By a duly ordained, commissioned, or licensed minister of a church in the exercise of his or her ministry or by a member of a religious order in the exercise of duties required by such order;
    3. In the employ of a governmental entity referred to in subsection (h) of this Code section if such service is performed by an individual in the exercise of duties:
      1. As an elected official;
      2. As a member of a legislative body or a member of the judiciary of a state or political subdivision;
      3. As a member of the state National Guard or Air National Guard; or
      4. In a position which, under or pursuant to the laws of this state, is designated as (i) a major nontenured policy-making or advisory position, or (ii) a policy-making or advisory position, the performance of the duties of which ordinarily does not require more than eight hours per week;
    4. By an individual receiving rehabilitation or remunerative work in a facility conducted for the purpose of carrying out a program of rehabilitation for individuals whose earning capacity is impaired by age or physical or mental deficiency or injury or providing remunerative work for individuals who, because of their impaired physical or mental capacity, cannot be readily absorbed in the competitive labor market;
    5. By an individual receiving work relief or work training as part of an unemployment work-relief or work-training program assisted or financed in whole or in part by any federal agency or an agency of a state or political subdivision thereof. This exclusion shall not apply to programs that provide for and require unemployment insurance coverage for the participants; or
    6. By an inmate of a custodial or penal institution.
  10. The term "employment" shall include service performed on or in connection with an American vessel or American aircraft under a contract of service which is entered into within the United States or during the performance of which and while the employee is employed on the vessel or aircraft it touches at a port in the United States, if the employee is employed on and in connection with such vessel or aircraft when outside the United States.
  11. The term "employment" shall include domestic service in a private home, local college club, or local chapter of a college fraternity or sorority, but only if the employing unit meets the definition of employer in Code Section 34-8-33.
    1. The term "employment" shall include service performed by an individual in agricultural labor, as defined in paragraph (2) of this subsection, but only if the employing unit meets the definition of employer in Code Section 34-8-33.
    2. As used in this subsection, the term "agricultural labor" means service on a farm:
      1. In the employ of any employing unit in connection with cultivating the soil or in connection with raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training, and management of livestock, bees, poultry, fur-bearing animals, and wildlife;
      2. In the employ of the owner or tenant or other operator of a farm in connection with the operation, management, conservation, improvement, or maintenance of such farm and its tools and equipment, if the major part of such service is performed on a farm;
      3. In connection with the production or harvesting of any commodity defined as an agricultural commodity in Section 15(g) of the federal Agricultural Marketing Act of 1946, as amended, or in connection with the ginning of cotton or in connection with the operation or maintenance of ditches, canals, reservoirs, or waterways not owned or operated for profit and used exclusively for supplying and storing water for farming purposes; or
      4. In handling, planting, drying, packing, packaging, processing, freezing, grading, storing, or delivering to storage or to market or to a carrier for transportation to market any agricultural or horticultural commodity, but only if such service is performed as an incident to ordinary farming operations or, in the case of fruits and vegetables, as an incident to the preparation of such fruits or vegetables for market.  This paragraph shall not be deemed to be applicable with respect to service performed in connection with commercial canning or commercial freezing or in connection with any agricultural or horticultural commodity after its delivery to a terminal market for distribution for consumption. This paragraph shall also apply to services performed in the employ of a group of operators of farms, or a cooperative organization of which such operators are members, in the performance of service prescribed in this paragraph, but only if such operators produced more than one-half of the commodity with respect to which such service is performed.
    3. As used in this subsection, the term "farm" includes:
      1. Those farms used for production of stock, dairy products, poultry, fruit, and fur-bearing animals; and
      2. Truck farms, plantations, ranches, nurseries, ranges, greenhouses, orchards, or other similar structures or tracts used primarily for the raising of agricultural or horticultural commodities.
    4. For the purposes of this subsection, any individual who is a member of a crew furnished by a crew leader to perform service in agricultural labor for any other person shall be treated as an employee of such crew leader:
      1. If such crew leader holds a valid certificate of registration under the federal Farm Labor Contractor Registration Act of 1963 or if substantially all the members of such crew operate or maintain tractors, mechanized harvesting or crop-dusting equipment, or any other mechanized equipment which is provided by such crew leader; and
      2. If such individual is not an employee of such other person within the meaning of paragraph (1) of this subsection.
    5. For the purposes of paragraph (4) of this subsection, in the case of any worker who is furnished by a crew leader to perform service in agricultural labor for any other person and who is not treated as an employee of such crew leader under this paragraph:
      1. Such other person and not the crew leader shall be treated as the employer of the worker; and
      2. Such other person shall be treated as having paid cash remuneration to the worker in an amount equal to the amount of cash remuneration paid to the worker by the crew leader, either on the worker's own behalf or on behalf of such other person, for the service in agricultural labor performed for such other person.
    6. For purposes of paragraphs (4) and (5) of this subsection, the term "crew leader" means an individual who:
      1. Furnishes workers to perform service in agricultural labor for any other person;
      2. Pays, either on such individual's own behalf or on behalf of another person, the workers so furnished for the service in agricultural labor performed by them; and
      3. Has not entered into a written agreement with such other person under which such individual is designated as an employee of such other person.
  12. The term "employment" shall not include:
    1. Service not in the course of the employer's trade or business performed in any calendar quarter by an employee, unless the cash remuneration paid for such service is $50.00 or more and such service is performed by an individual who is regularly employed by such employer to perform such service. For the purposes of this paragraph, an individual shall be deemed to be regularly employed by an employer during a calendar quarter only if:
      1. On each of some 24 days during such quarter such individual performs for such employer for some portion of the day service not in the course of the employer's trade or business; or
      2. Such individual was regularly employed, as determined under subparagraph (A) of this paragraph, by such employer in the performance of such service during the preceding calendar quarter;
    2. Service performed in the employ of a hospital, if such service is performed by a patient of a hospital;
    3. Service performed by an individual in the employ of the individual's son, daughter, or spouse and service performed by a child under the age of 21 years in the employ of his or her father or mother;
    4. Service performed in the employ of the United States government or of an instrumentality wholly owned by the United States; except that, if the Congress of the United States shall permit states to require any instrumentalities of the United States to make payments into an unemployment fund under a state unemployment compensation law or act, then, to the extent permitted by Congress and from and after the date as of which such permission becomes effective, all of the provisions of this chapter shall be applicable to such instrumentalities and to services performed by employees for such instrumentalities in the same manner, to the same extent, and on the same terms as to all other employers and employing units;
    5. Service performed in the employ of an employer, as defined by the federal Railroad Unemployment Insurance Act, or as an "employee representative," as defined by the federal Railroad Unemployment Insurance Act, and service with respect to which unemployment compensation is payable under an unemployment compensation system for maritime employees or under any other unemployment compensation system established by an act of Congress; provided, however, that the Commissioner is authorized and directed to enter into agreements with the proper agencies under such act or acts of Congress, which agreements shall become effective ten days after publication thereof in the manner provided in Code Section 34-8-71 for general rules, to provide reciprocal treatment to individuals who have, after acquiring potential rights to benefits under this chapter, acquired rights to unemployment compensation under such act or acts of Congress or who have, after acquiring potential rights to unemployment compensation under such act or acts of Congress, acquired rights to benefits under this chapter;
    6. Service performed in any calendar quarter in the employ of any organization exempt from income tax under 26 U.S.C. Section 501:
      1. The remuneration for which does not exceed $50.00; or
      2. In the employ of a school, college, or university, if such service is performed by a student who is enrolled and is regularly attending classes at such school, college, or university or by the spouse of such a student, if such spouse is advised, at the time such spouse commences to perform such service, that (i) the employment of such spouse to perform such service is provided under a program to provide financial assistance to such student by such school, college, or university and (ii) such employment will not be covered by any program of unemployment insurance;
    7. Services performed as a student nurse in the employ of a hospital or a nurses' training school by an individual who is enrolled and is regularly attending classes in a nurses' training school chartered or approved pursuant to state law; and service performed in the employ of a hospital in a clinical training program for a period of one year by an individual immediately following the completion of a four-year course in a medical school chartered or approved pursuant to state law;
    8. Service performed by an individual under the age of 18 years in the delivery or distribution of newspapers or shopping news, not including delivery or distribution to any point for subsequent delivery or distribution;
    9. Service performed by an individual for an employer as an insurance agent or as an insurance solicitor or as a licensed real estate salesperson, if all such service performed by such individual for such employer is performed for remuneration solely by way of commission;
    10. Services performed for an employer who is a common carrier of persons or property by an individual, firm, or corporation, as commission agent, in disseminating information with respect to and selling transportation of persons or property, and in maintaining facilities incidental thereto, including waiting areas, dining rooms, and rest rooms for passengers and storage space for property; provided, however, that:
      1. All such services are performed by such individual, firm, or corporation as an independent contractor for such employer and are remunerated solely by way of commissions on the sale price of such transportation;
      2. The employer exercises no general control over such commission agent but only such control as is necessary to assure compliance with its filed tariffs and with the laws of the United States and the State of Georgia and the rules and regulations of the Department of Public Safety, the Federal Motor Carrier Safety Administration, and all other regulatory bodies having jurisdiction of the premises; and
      3. Such services are not rendered in an establishment devoted primarily to use as a waiting room for the passengers or as a storage room for the property carried or to be carried by such common carrier;
    11. Service performed by an individual who is enrolled as a student at a nonprofit or public educational institution which normally maintains a regular faculty and curriculum and normally has a regularly organized body of students in attendance at the place where its educational activities are carried on, in a full-time program taken for credit at such institution, which program combines academic instruction with work experience, if such service is an integral part of such program and such institution has so certified to the employer, except that this paragraph shall not apply to service performed in a program established for or on behalf of an employer or group of employers;
    12. Service performed by an individual in or as an officer or member of the crew of a vessel while it is engaged in the catching, taking, harvesting, cultivating, or farming of any kind of fish, shellfish, crustacea, sponges, seaweed, or other aquatic forms of animal and vegetable life, including service performed by any such individual as an ordinary incident to any such activity, except:
      1. Service performed in connection with the catching or taking of salmon or halibut for commercial purposes; and
      2. Service performed on or in connection with a vessel of more than ten net tons, which tonnage shall be determined in the manner provided for determining the registered tonnage of merchant vessels under the laws of the United States;
    13. Service, other than service performed by a child under the age of 18 years in the employ of his or her father or mother, performed by an individual on a boat engaged in catching fish or other forms of aquatic animal life under an arrangement with the owner or operator of such boat pursuant to which:
      1. Such individual does not receive any cash remuneration other than as provided in subparagraph (B) of this paragraph;
      2. Such individual receives a share of the boat's catch or, in the case of a fishing operation involving more than one boat, the boats' catch of fish or other forms of aquatic animal life or a share of the proceeds from the sale of such catch; and
      3. The amount of such individual's share depends on the amount of the boat's catch or, in the case of a fishing operation involving more than one boat, the boats' catch of fish or other forms of aquatic animal life, but only if the operating crew of such boat or, in the case of a fishing operation involving more than one boat, the operating crew of each boat from which the individual receives a share is normally made up of fewer than ten individuals;
    14. Service performed in the employ of a foreign government;
    15. If the services performed during one-half or more of any pay period by an employee for the employing unit employing him or her constitute employment, all the services of such employee for such period shall be deemed to be employment; but, if the services performed during more than one-half of any such pay period by an employee for the employing unit employing him or her do not constitute employment, then none of the services of such employee for such period shall be deemed to be employment.  As used in this Code section, the term "pay period" means a period of not more than 31 consecutive days for which payment of remuneration is ordinarily made to the employee by the employing unit employing him or her.  This Code section shall not be applicable with respect to services performed in a pay period by an employee for the employing unit employing him or her where any of such service is excepted by paragraph (5) of this subsection;
    16. Services performed by an independent contract carrier for an employer who is a publisher or distributor of printed materials by an individual, firm, or corporation in transporting, assembling, delivering, or distributing printed materials and in maintaining any facilities or equipment incidental thereto, provided that:
      1. The independent contract carrier has with the employer a written contract as an independent contractor;
      2. Remuneration for the independent contract carrier is on the basis of the number of deliveries accomplished;
      3. With exception to providing the area or route which an independent contract carrier may or may not service, or providing materials or direction for the packaging or assembly of printed materials, the employer exercises no general control regarding the method of transporting, assembling, delivering, or distributing the printed materials; and
      4. The contract entered by the independent contract carrier for such services does not prohibit it from the transportation, delivery, assembly, or distribution of printed materials for more than one employer. Provided, however, that the exclusion provided in this paragraph shall not apply to any such employment on behalf of an employing unit defined in subsection (h) or (i) of this Code section;
    17. Services performed for a common carrier of property, persons, or property and persons by an individual consisting of the pickup, transportation, and delivery of property, persons, or property and persons; provided that:
      1. The individual is free to accept or reject assignments from the common carrier;
      2. Remuneration for the individual is on the basis of commissions, trips, or deliveries accomplished;
      3. Such individual personally provides the vehicle used in the pickup, transportation, and delivery of the property, persons, or property and persons;
      4. Such individual has a written contract with the common carrier;
      5. The written contract states expressly and prominently that the individual knows:
        1. Of the responsibility to pay estimated social security taxes and state and federal income taxes;
        2. That the social security tax the individual must pay is higher than the social security tax the individual would pay if he or she were an employee; and
        3. That the work is not covered by the unemployment compensation laws of Georgia; and
      6. The written contract does not prohibit such individual from the pickup, transportation, or delivery of property, persons, or property and persons for more than one common carrier or any other person or entity; or
    18. Services performed by a direct seller, provided that:
      1. Such individual:
        1. Is engaged in the trade or business of selling or soliciting the sale of consumer products, including services or other intangibles, to any buyer on a buy-sell basis, a deposit-commission basis, or any similar basis for resale by the buyer or any other person in the home or otherwise than in a permanent retail establishment; or
        2. Is engaged in the trade or business of selling or soliciting the sale of consumer products, including services or other intangibles, in the home or otherwise than in a permanent retail establishment;
      2. Substantially all the remuneration, whether or not paid in cash, for the performance of the services described in subparagraph (A) of this paragraph is directly related to sales or other output, including the performance of services, rather than to the number of hours worked; and
      3. The services performed by the individual are performed pursuant to a written contract between such individual and the person for whom the services are performed and such contract provides that the individual will not be treated as an employee for federal and state tax purposes. (Code 1981, § 34-8-35 , enacted by Ga. L. 1991, p. 139, § 1; Ga. L. 1993, p. 323, § 1; Ga. L. 1994, p. 97, § 34; Ga. L. 1994, p. 640, § 1; Ga. L. 1994, p. 1717, § 1; Ga. L. 2005, p. 1200, § 1/HB 520; Ga. L. 2006, p. 822, § 1/SB 486; Ga. L. 2007, p. 394, § 1/HB 443; Ga. L. 2012, p. 580, § 6/HB 865.)

Code Commission notes. - Pursuant to § 28-9-5 , in 1991, "this subsection" was substituted for "subsection (n) of this Code section" at the end of paragraph (n)(15).

U.S. Code. - Section 3306(c)(7) of the Federal Unemployment Tax Act, referred to in subsection (h), is codified at 26 U.S.C. § 3306(c)(7). Section 15(g) of the federal Agricultural Marketing Act of 1946, referred to in subparagraph (m)(2)(C), is codified at 12 U.S.C. § 1141j(g). The federal Farm Labor Contractor Registration Act of 1963, referred to in subparagraph (m)(4)(A), was codified at 7 U.S.C. §§ 2041-2055, before it was repealed in 1983. The federal Railroad Unemployment Insurance Act, referred to in paragraph (n)(5), is codified at 45 U.S.C. §§ 351-369.

Law reviews. - For note on 1993 amendment of this Code section, see 10 Ga. St. U.L. Rev. 152 (1993). For annual survey of labor and employment law, see 58 Mercer L. Rev. 211 (2006). For survey article on labor and employment law, see 59 Mercer L. Rev. 233 (2007). For article, "The Uber Million Dollar Question: Are Uber Drivers Employees or Independent Contractors?," see 68 Mercer L. Rev. 461 (2017).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Editor's notes. - In light of the similarity of the statutory provisions, decisions under Ga. L. 1937, p. 806 and former Code Section 34-8-40 which was repealed by Ga. L. 1991, p. 139, § 1, effective January 1, 1992, are included in the annotations for this Code section.

Constitutionality. - Subsection (o)(11) of former § 34-8-40 (see now O.C.G.A. § 34-8-35 ) did not deny equal protection in exempting independent salespersons such as real estate agents, and insurance agents and solicitors, while not exempting securities salespersons, in the absence of proof that securities salespersons were in fact similarly situated to the real estate and insurance agents who were exempted. Stuart-James Co. v. Tanner, 259 Ga. 289 , 380 S.E.2d 257 (1989) (decided under former § 34-8-40 ).

Determination of coverage. - It does not matter that the federal Employment Security Agency has construed a contract as not bringing the parties under the federal law. This chapter describes its own coverage, and the test of coverage or noncoverage is made under those provisions only. McNeel, Inc. v. Redwine, 90 Ga. App. 345 , 83 S.E.2d 33 (1954) (decided under Ga. L. 1937, p. 806; see O.C.G.A. Ch. 8, T. 34).

Establishing exemptions. - Since the requirements here are stated conjunctively and not disjunctively, all three of these elements must be established in order that an employer working an individual for wages may be exempted from this chapter. Young v. Bureau of Unemployment Comp., 63 Ga. App. 130 , 10 S.E.2d 412 (1940) (decided under Ga. L. 1937, p. 806; see O.C.G.A. Ch. 8, T. 34).

Use of statutory definition of wages. - Since former § 34-8-51 (see now O.C.G.A. § 34-8-49 ) defines "wages," and did so without reference to the status of the parties (i.e., employer-employee versus independent contractor), the statutory definition of "wages," rather than common-law principles, must be used. Sarah Coventry, Inc. v. Caldwell, 243 Ga. 429 , 254 S.E.2d 375 (1979) (decided under Ga. L. 1937, p. 806).

Test under chapter. - It makes no difference whether the relationship between the parties is one of employer-employee or the "dealers" are independent contractors. The test, and the question for decision, is whether the status between the parties falls within the meaning of employment as defined by this chapter. McNeel, Inc. v. Redwine, 90 Ga. App. 345 , 83 S.E.2d 33 (1954) (decided under Ga. L. 1937, p. 806; see O.C.G.A. Ch. 8, T. 34).

Burden of proof. - Burden of proof falls on the defendant to prove that an individual's services come within the exceptions of this section. Moore v. Williams, 95 Ga. App. 309 , 97 S.E.2d 718 (1957) (decided under Ga. L. 1937, p. 806; see O.C.G.A. § 34-8-35 ).

Cited in Huiet v. Great Atl. & Pac. Tea Co., 66 Ga. App. 602 , 18 S.E.2d 693 (1942); Royal Cigar Co. v. Huiet, 195 Ga. 852 , 25 S.E.2d 810 (1943); Brewster v. Huiet, 69 Ga. App. 593 , 26 S.E.2d 198 (1943); Huiet v. Brunswick Pulp & Paper Co., 74 Ga. App. 355 , 39 S.E.2d 545 (1946); Blackstock v. Atlanta Newspapers, Inc., 95 Ga. App. 369 , 98 S.E.2d 48 (1957); Williams v. Summerour, 98 Ga. App. 212 , 105 S.E.2d 489 (1958); Williamson v. Southern Regional Council, Inc., 223 Ga. 179 , 154 S.E.2d 21 (1967).

Services Covered

Warehouse owner's services. - Services of a warehouse owner who, for commission based on the hundred weight of freight handled by the warehouse owner, picked up, stored and delivered freight for common carrier, presumptively comes within the statutory definition of employment until the defendant carrier shows conjunctively that the warehouse owner has been and will continue to be free from control or direction over the performance of such services, both under the warehouse owner's contract of service and in fact; that the warehouse owner's service is either outside the usual course of the business for which such service is performed, or that the warehouse owner's service is performed outside of all the places of business of the enterprise for which such service is performed; and that the warehouse owner is customarily engaged in an independently established trade, occupation, profession or business. Benton Rapid Express v. Redwine, 87 Ga. App. 584 , 74 S.E.2d 504 (1953) (decided under Ga. L. 1937, p. 806).

Real estate salespeople. - Real estate salespeople working under a broker, as provided by the Act of this state regulating real estate brokers, are employees rendering services for the broker, and fall within the provision of this chapter which provides that, for such employees, the brokers shall make contributions. Babb v. Huiet, 67 Ga. App. 861 , 21 S.E.2d 663 (1942) (decided under Ga. L. 1937, p. 806; see O.C.G.A. Ch. 8, T. 34).

Book salespeople. - Exclusion for carriers of printed materials did not apply in the case of a book salesperson who was compensated on the basis of the difference between the retail price and the amount the salesperson remitted to the company, not on the basis of the number of deliveries accomplished. American Book Display v. Poythress, 223 Ga. App. 899 , 479 S.E.2d 198 (1996).

When a book salesperson was required to report to the office weekly and turn in sales receipts, the salesperson's services were not performed outside the place of business of the company. American Book Display v. Poythress, 223 Ga. App. 899 , 479 S.E.2d 198 (1996).

Taxi drivers. - When one obtains a city franchise as a common carrier under the provisions of which one operates under a firm name as a taxicab company, and owns and operates a place of business with a waiting room for patrons and telephone switchboard, including telephone relay system to inform the drivers of calls, pays all license fees, taxes, and insurance, owns all taxicabs and has them uniformly painted with the name and telephone number of the company, and reserves and exercises the right to dismiss drivers for discourtesy, reckless driving, or other causes, an arrangement between such person and the drivers whereby the drivers pay a fixed sum per diem to the company and retain all sums in excess thereof paid to them as fares (the rate of such fares being also fixed by the owner) is not a mere rental agreement, but such drivers are the employees of the company under the terms of this chapter. Redwine v. Wilkes, 83 Ga. App. 645 , 64 S.E.2d 101 (1951) (decided under Ga. L. 1937, p. 806; see O.C.G.A. Ch. 8, T. 34).

Janitorial services. - Superior court erred in reversing an administrative determination that the employer was not exempt from the payment of unemployment compensation taxes when there was sufficient evidence presented to show that the services performed by the employee were within the usual course of the employer's janitorial business, and that those services were performed at one of the designated places over which the employer could maintain some element of control. Tanner v. Brooks, 190 Ga. App. 228 , 378 S.E.2d 405 (1989) (decided under former § 34-8-40 ).

Alligator farm worker. - Definition in Employment Security Law, O.C.G.A. § 34-8-1 , of "farm laborer" was applied to that same term under the Workers' Compensation Act in order to reach the determination that when an employee for an alligator farm cleaned out the pens, the employee was caring for wildlife and thus performing "agricultural labor" pursuant to O.C.G.A. § 34-8-35(m)(2)(A), but as the employer was not a "farm" because alligators were "wildlife" and "game animals" under O.C.G.A. § 27-1-2(34) and not "livestock or fur-bearing animals" pursuant to O.C.G.A. § 34-8-35(m)(3)(A), the employer did not fall within the exemption provided by O.C.G.A. § 34-9-2(a) with respect to the employee's claim for workers' compensation benefits; the trial court erred in holding that the employer was exempted from the Workers' Compensation Act's coverage. Gill v. Prehistoric Ponds, Inc., 280 Ga. App. 629 , 634 S.E.2d 769 (2006).

Because an employer who was in the business of breeding, rearing, and slaughtering alligators to sell the meat, hides, and head was not a farm, as alligators were "wildlife," not livestock or fur-bearing animals, the employer did not fall within the exemption from coverage under the Workers' Compensation Act provided by O.C.G.A. § 34-9-2(a) . Cook v. Prehistoric Ponds, Inc., 282 Ga. App. 904 , 640 S.E.2d 383 (2006).

Exemption of services of certain commission agents. - Former provisions of this section, which exempted the services of commission agents of common carriers did not exempt the services of commission agents in general from the definition of employment, but only of those commission agents engaged in disseminating information with respect to transportation of persons or property, those engaged in selling transportation of persons or property, and those engaged in maintaining facilities incidental to the dissemination of information with respect to transportation of persons or property, or those engaged in maintaining facilities incidental to the sale of transportation of persons or property. Redwine v. Refrigerated Transp. Co., 90 Ga. App. 784 , 84 S.E.2d 478 (1954) (decided under Ga. L. 1937, p. 806; see O.C.G.A. § 34-8-35 ).

Services Not Covered

Fashion directors. - Since certain fashion directors had no territorial assignments or geographical restrictions, no prescribed number or time of hours to work, no minimum number of orders to be obtained, and no prohibition against selling other companies' products or holding other employment contemporaneously with that of the plaintiff corporation, and had to furnish their own models and sales gimmicks, if they chose to use them, and their own transportation, the fashion show directors were free from any significant control or direction over the performance of their services so as to establish employment. Sarah Coventry, Inc. v. Caldwell, 243 Ga. 429 , 254 S.E.2d 375 (1979) (decided under Ga. L. 1937, p. 806).

Employee selling other companies' products. - When an employee was free to sell the products of other companies, even of competitors of the employer company, the fact that the contract between the employee and the company recognizes this freedom, plus the fact of an intermittent and almost casual relationship between the employee and the company indicated that it was the common practice for such individuals to be "customarily engaged in an independently established trade, occupation, profession, or business." Sarah Coventry, Inc. v. Caldwell, 243 Ga. 429 , 254 S.E.2d 375 (1979) (decided under Ga. L. 1937, p. 806).

Paint salespeople. - Paint salespeople who were paid the difference between what the paint cost them and what they sold it for to the consumer were in business for themselves. When they were not required to work any number of hours in any particular day, or to see any number of persons on any one day, week, or month, or to make reports when sales were made, and had no territory designated for them, and had no employment of their time or services, they were not employees. Zachos v. Huiet, 195 Ga. 780 , 25 S.E.2d 806 (1943) (decided under Ga. L. 1937, p. 806).

Vocational placement service. - Vocational placement service is exempt from contributions to the unemployment trust fund for "field specialist" counselors. Vocational Placement Servs., Inc. v. Caldwell, 168 Ga. App. 198 , 308 S.E.2d 618 (1983) (decided under Ga. L. 1937, p. 806).

Co-pilot. - Superior court erred in affirming the decision of the Georgia Department of Labor that a limited liability company (LLC) was required to pay unemployment compensation taxes on the wages paid to a co-pilot because the co-pilot was not an employee of the LLC pursuant to the Employment Security Act, O.C.G.A. § 34-8-35(f)(1); the LLC established that the LLC lacked significant control over the co-pilot because the co-pilot was free to accept or reject offers to fly, did not have a prescribed number of hours or flights to work, could vacation whenever the co-pilot chose, and was free to fly for other companies. Sky King 101, LLC v. Thurmond, 314 Ga. App. 377 , 724 S.E.2d 412 (2012).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions decided under Ga. L. 1937, p. 806, are included in the annotations for this Code section.

Teachers. - Extending the coverage of workers' compensation to persons "in the employ of the state or any of its instrumentalities or any political subdivisions thereof," the General Assembly intended to include within its expanded scope all school teachers employed under the normal one-year teaching contract, whether or not a teacher is "tenured." 1977 Op. Att'y Gen. No. 77-45 (decided under Ga. L. 1937, p. 806).

Substitute teachers. - "Substitute teacher" is an "employee" of the local school board using the substitute teacher's services for purposes of the workers' compensation law. 1977 Op. Att'y Gen. No. 77-45 (decided under Ga. L. 1937, p. 806).

Licensed nurses in private homes. - Licensed nurses (registered professional nurses or licensed practical nurses), performing nursing services within the scope of their statutory authority, in a private home for wages, are not performing "domestic services" nor do the services constitute employment within the meaning of the law. 1980 Op. Att'y Gen. No. 80-34 (decided under Ga. L. 1937, p. 806).

RESEARCH REFERENCES

Am. Jur. 2d. - 76 Am. Jur. 2d, Unemployment Compensation, § 20 et seq.

C.J.S. - 81 C.J.S., Social Security and Public Welfare, §§ 292, 305, 332 et seq.

ALR. - One in general employment of contractee, but who at time of accident was assisting or cooperating with, an independent contractor, as employee of former or latter for the time, 55 A.L.R. 1263 .

Who is an independent contractor rather than an employee within social security acts or unemployment compensation acts, 124 A.L.R. 682 .

Industrial homeworkers as within social security, unemployment compensation, fair labor standards or workmen's compensation act, 143 A.L.R. 418 .

Who is "member of a crew" within meaning of Social Security and Unemployment Compensation Acts, 161 A.L.R. 842 .

Taxicab driver as employee of owner of cab, or independent contractor, within social security and unemployment insurance statutes, 10 A.L.R.2d 369.

Salesman on commission as within Unemployment Compensation or Social Security Acts, 29 A.L.R.2d 751.

Professional personnel such as physicians, surgeons, dentists, lawyers, and the like, as "employees" within Social Security Act, 88 A.L.R.2d 979.

Insurance agents or salesmen as within coverage of Social Security or Unemployment Compensation Acts, 39 A.L.R.3d 872.

Unemployment compensation: trucker as employee or independent contractor, 2 A.L.R.4th 1219.

Who are "agricultural laborers" exempt from coverage of National Labor Relations Act § 2(3) (29 USCS § 152(3)), 130 A.L.R. Fed. 1

34-8-36. Employment office.

As used in this chapter, the term "employment office" means a free public employment office or branch thereof operated by this state or maintained as a part of a state controlled system of public employment offices.

(Code 1981, § 34-8-36 , enacted by Ga. L. 1991, p. 139, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 27 Am. Jur. 2d, Employment Agencies, § 16.

34-8-37. Employment Security Administration Fund.

As used in this chapter, the term "Employment Security Administration Fund" means the Employment Security Administration Fund which is established by this chapter and from which administrative expenses under this chapter shall be paid.

(Code 1981, § 34-8-37 , enacted by Ga. L. 1991, p. 139, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 76 Am. Jur. 2d, Unemployment Compensation, § 14.

C.J.S. - 81 C.J.S., Social Security and Public Welfare, § 364.

34-8-38. Experience rating account.

As used in this chapter, the term "experience rating account" means the individual experience of a covered employer, as determined by factors set forth in Code Sections 34-8-150 through 34-8-157.

(Code 1981, § 34-8-38 , enacted by Ga. L. 1991, p. 139, § 1.)

34-8-39. Extended benefits.

As used in this chapter, the term "extended benefits" means benefits, including benefits payable to federal civilian employees and to ex-service personnel pursuant to 5 U.S.C. Chapter 85, payable to an individual under Code Section 34-8-197 for the weeks of unemployment in the eligibility period of the individual.

(Code 1981, § 34-8-39 , enacted by Ga. L. 1991, p. 139, § 1.)

U.S. Code. - Chapter 85 of 5 U.S.C., referred to in this Code section, consists of 5 U.S.C. §§ 8501-8525.

34-8-40. Fund.

As used in this chapter, the term "fund" means the Unemployment Compensation Fund which is established by Code Section 34-8-83 and from which all benefits provided under this chapter shall be paid.

(Code 1981, § 34-8-40 , enacted by Ga. L. 1991, p. 139, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 76 Am. Jur. 2d, Unemployment Compensation, § 14.

C.J.S. - 81 C.J.S., Social Security and Public Welfare, § 364.

34-8-41. Insured work.

As used in this chapter, the term "insured work" means employment for a liable employer.

(Code 1981, § 34-8-41 , enacted by Ga. L. 1991, p. 139, § 1.)

34-8-42. Liable employer.

As used in this chapter, the term "liable employer" means an employer who is responsible for the payment of unemployment contributions or payments in lieu of contributions or a governmental entity.

(Code 1981, § 34-8-42 , enacted by Ga. L. 1991, p. 139, § 1.)

34-8-43. Most recent employer.

  1. As used in this chapter and except as otherwise provided in subsection (b) of this Code section, the term "most recent employer" means, for claims with benefit years that begin on or after July 1, 2015, the last employer for whom an individual worked.
  2. As used in this chapter and except as otherwise provided in subsection (a) of this Code section, the term "most recent employer" means, for claims with benefit years that begin on or before June 30, 2015, the last liable employer for whom an individual worked and:
    1. The individual was separated from work for a disqualifying reason;
    2. The individual was released or separated from work under nondisqualifying conditions and earned wages of at least ten times the weekly benefit amount of the claim; or
    3. The employer files the claim for the individual by submitting such reports as authorized by the Commissioner.
  3. Where no employer in subsection (b) of this Code section meets the definition of most recent employer from the beginning of the base period to the date the claim is filed, the last liable employer for whom the individual worked shall be considered as the most recent employer for determining eligibility for benefits.
  4. Where periods of employment with the same liable employer fail, independently, to meet the definition of most recent employer in subsection (a) or (b) of this Code section, such periods of employment may be used cumulatively to determine the most recent employer and eligibility for benefits shall be determined by the reason for separation from the last employment with such employer. (Code 1981, § 34-8-43 , enacted by Ga. L. 1991, p. 139, § 1; Ga. L. 2015, p. 830, § 1/HB 117.)

The 2015 amendment, effective May 6, 2015, added subsection (a); redesignated former subsection (a) as present subsection (b); inserted ", for claims with benefit years that begin on or before June 30, 2015," in the middle of present subsection (b); deleted former subsection (b), which read: "(b) As used in this chapter, the term 'most recent employer' means, for claims with benefit years that begin on or before December 31, 1991, the last liable employer for whom an individual worked and:

"(1) From whom the individual was separated from work for a disqualifying reason; or

"(2) From whom the individual was released or separated from work under nondisqualifying conditions and earned wages equal to the lesser of $500.00 or eight times the weekly benefit amount of the claim."; and deleted "(a) or" following "subsection" near the beginning of subsection (c).

34-8-44. State.

As used in this chapter, the term "state" includes the states of the United States of America, the District of Columbia, the Commonwealth of Puerto Rico, and the Virgin Islands.

(Code 1981, § 34-8-44 , enacted by Ga. L. 1991, p. 139, § 1.)

34-8-45. Supplemental unemployment benefits.

As used in this chapter, the term "supplemental unemployment benefits" means only:

  1. Benefits which are paid to an employee because of such employee's involuntary separation from the employment of the employer, whether or not such separation is temporary, which separation results directly from a reduction in force, the discontinuance of a plant or operation, or other similar conditions; and
  2. Sickness and accident benefits subordinate to the benefits described in paragraph (1) of this Code section. (Code 1981, § 34-8-45 , enacted by Ga. L. 1991, p. 139, § 1.)

34-8-46. Temporary help contracting firm.

As used in this chapter, the term "temporary help contracting firm" means any person who is in the business of employing individuals and, for compensation from a third party, providing those individuals to perform work for the third party under the general or direct supervision of the third party. Employment with a temporary help contracting firm is characterized by a series of limited-term assignments of an employee to a third party, based on a contract between the temporary help contracting firm and the third party. A separate employment contract exists between the temporary help contracting firm and each individual it hires as an employee. Completion of an assignment for a third party by an employee employed by a temporary help contracting firm does not, in itself, terminate the employment contract between the temporary help contracting firm and the employee.

(Code 1981, § 34-8-46 , enacted by Ga. L. 1991, p. 139, § 1.)

JUDICIAL DECISIONS

Workers' compensation benefits. - Pursuant to Fed. R. Civ. P. 54(b), the court reconsidered its prior denial of summary judgment to a corporation in an employee's suit to recover for a workplace injury because the court's prior holding that tort immunity under Georgia's workers' compensation scheme attached only if the corporation exercised the greater amount of control over the employee's job duties than did a temporary help contracting firm was clearly erroneous; the corporation was entitled to summary judgment because the temporary help contracting firm paid workers' compensation benefits to the employee and such benefits were the exclusive remedy pursuant to O.C.G.A. § 34-9-11 . Lambert v. Briggs & Stratton Corp., F. Supp. 2d (S.D. Ga. Jan. 18, 2006).

In a wrongful death action, the trial court properly granted the employer summary judgment because the suit was barred by the exclusive remedies provision of the Georgia Workers' Compensation Act, O.C.G.A. § 34-9-11 , as it was undisputed that the killed worker was a temporary worker under the supervision of a staffing company and there was no evidence to demonstrate any deviation from the typical temporary staffing arrangement contemplated by O.C.G.A. § 34-8-46 . Sturgess v. OA Logistics Servs., 336 Ga. App. 134 , 784 S.E.2d 432 (2016).

Temporary help contracting firm. - Entity qualified as a temporary help contracting firm under O.C.G.A. § 34-8-46 when the entity provided its employee to a business and the employee then worked for the business under its general supervision; thus, the business was protected by the exclusivity provisions set forth in O.C.G.A. § 34-9-11 , and the employee's recovery for workplace injuries was limited to the workers' compensation benefits that the temporary help contracting firm paid. Lambert v. Briggs & Stratton Corp., F. Supp. 2d (S.D. Ga. Jan. 18, 2006).

34-8-47. Unemployed; unemployment.

For purposes of this chapter, an individual shall be deemed "unemployed" in any week during which the individual performs no services and with respect to which no wages are payable to him or her or in any week of less than full-time work if his or her deductible earnings do not equal or exceed his or her weekly benefit amount. The Commissioner shall prescribe regulations applicable to unemployed individuals and shall make such distinctions in the procedures as to total unemployment, partial unemployment of individuals attached to their regular jobs, temporary employment, and other forms of short-time work as is deemed necessary. An individual compensated solely on a commission basis shall be deemed to be unemployed only upon the termination of his or her contract of employment.

(Code 1981, § 34-8-47 , enacted by Ga. L. 1991, p. 139, § 1.)

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under Ga. L. 1937, p. 806 are included in the annotations for this Code section.

Substitute teacher was employed on an as-needed basis and was not guaranteed employment with the school system for a certain period of time. The teacher's employment with the school system was intermittent by nature and not the type of employment that the state Employment Security Law was designed to encourage. Consequently, the teacher was not unemployed as defined by statute as a matter of law at the time that the teacher filed a claim for unemployment benefits, and the teacher's claim for benefits was properly denied. Campbell v. Poythress, 216 Ga. App. 834 , 456 S.E.2d 110 (1995).

As-needed nurse who voluntarily chose part-time, intermittent employment which allowed the nurse to retain complete control over the amount of hours the nurse worked at the hospital, if the nurse chose to work at all, could not claim that the nurse was entitled to unemployment benefits during times when no work was offered. Department of Labor v. Baldwin County Hosp. Auth., 241 Ga. App. 119 , 526 S.E.2d 153 (1999).

Cited in Meakins v. Huiet, 100 Ga. App. 557 , 112 S.E.2d 167 (1959).

RESEARCH REFERENCES

Am. Jur. 2d. - 76 Am. Jur. 2d, Unemployment Compensation, §§ 20, 21.

C.J.S. - 81 C.J.S., Social Security and Public Welfare, §§ 305, 327.

ALR. - Right to unemployment compensation as affected by employee's refusal to work in areas where smoking is permitted, 14 A.L.R.4th 1234.

34-8-48. Valid claim.

As used in this chapter, the term "valid claim" means a claim filed for unemployment compensation benefits in which sufficient base period wages establish a monetary entitlement as provided in Code Section 34-8-193.

(Code 1981, § 34-8-48 , enacted by Ga. L. 1991, p. 139, § 1.)

34-8-49. Wages.

    1. As used in this chapter, the term "wages" means all remuneration for personal services, including commissions and bonuses and the cash value of all remuneration paid in any medium other than cash. The reasonable cash value of remuneration in any medium other than cash shall be estimated and determined in accordance with the rules or regulations prescribed by the Commissioner.
    2. The term "wages" also means, for the purpose of determining benefit rights of a claimant, wages payable but unpaid where the employer has been adjudicated bankrupt.
  1. The term "wages" shall not include:
    1. For the purposes of Code Section 34-8-20 and Articles 5 and 6 of this chapter, except Code Sections 34-8-156 and 34-8-157, any remuneration paid in excess of taxable wages. For purposes of this chapter, "taxable wages" means that portion of remuneration paid by an employer to each employee, subject to unemployment insurance contributions for each calendar year which does not exceed the following amounts:
      1. For the period January 1, 1976, through December 31, 1982 - $6,000.00;
      2. For the period January 1, 1983, through December 31, 1985 - $7,000.00;
      3. For the period January 1, 1986, through December 31, 1989 - $7,500.00;
      4. For the period January 1, 1990, through December 31, 2012 - $8,500.00; and
      5. January 1, 2013, and thereafter - $9,500.00;

        provided, however, that in cases of successorship of an employer, the amount of wages paid by the predecessor shall be considered for purposes of this provision as having been paid by the successor employer;

    2. The amount of any payment to or on behalf of an employee under a plan or system established by an employer which makes provision for its employees generally or for a class or classes of its employees, including any amount paid by an employer for insurance or annuities or into a fund to provide for any such payment, on account of:
      1. The termination of an employee's employment relationship because of (i) death, or (ii) retirement for disability, other than any such payment or series of payments which would have been paid to the employee or his or her dependents if the employee's employment relationship had not been so terminated;
      2. The supplementation of unemployment benefits to an individual under the terms of a written agreement, contract, trust arrangement, or other instrument.  Such payments shall not be construed to be wages or compensation for personal services under this chapter and benefit payments under this chapter shall not be denied or reduced because of the receipt of payments under such arrangements or plans;
      3. Sickness or accident disability, but, in the case of payments made to an employee or any of his or her dependents, this subparagraph shall exclude from the term "wages" only payments which are received under a workers' compensation law;
      4. Medical and hospitalization expenses in connection with sickness or accident disability;
      5. Death; or
      6. Temporary layoff, but, in the case of payments made to an employee who is temporarily laid off or to any of his or her dependents, this subparagraph shall exclude from the term "wages" only payments made out of a 100 percent vested account in the name of such employee under a pension or profit-sharing plan or trust that is qualified under Section 501(a) of the federal Internal Revenue Code of 1986;
    3. Payment by an employer without deduction from the remuneration of an employee of the tax imposed by Section 3101 of the federal Internal Revenue Code of 1986, with respect to remuneration paid to an employee for domestic service in a private home of the employer or for agricultural labor;
    4. Any remuneration paid for services by an alien, unless such alien is an individual who was lawfully admitted for permanent residence at the time such services were performed, was lawfully present for purposes of performing such services, or otherwise was permanently residing in the United States under color of law;
    5. Any remuneration paid in any medium other than cash to an employee for agricultural labor or for service not in the course of the employer's trade or business;
    6. Any payment on account of sickness or accident disability, or medical or hospitalization expenses in connection with sickness or accident disability, made by an employer to, or on behalf of, an employee after the expiration of six calendar months following the last calendar month in which the employee worked for such employer;
    7. Any payment made to, or on behalf of, an employee or his beneficiary from, under, or to a trust, annuity plan, simplified employee pension plan, annuity contract, exempt governmental deferred compensation plan, supplemental pension benefits plan or trust, or cafeteria plan, as such payments are defined under Section 3306(b)(5) of the federal Internal Revenue Code of 1986; or
    8. Any payment made by an employer to a survivor or the estate of a former employee after the calendar year in which such employee died.
  2. Any remuneration not elsewhere included in the definition of wages by this chapter, but for which services are performed within this state and for which an employing unit is liable for any federal tax against which credit may be taken for contributions paid into a state fund, shall, for the purposes of this chapter and notwithstanding any other provisions, constitute wages for employment, but only to the extent that such remuneration constitutes wages on which federal tax is payable. (Code 1981, § 34-8-49 , enacted by Ga. L. 1991, p. 139, § 1; Ga. L. 1992, p. 776, § 1; Ga. L. 2012, p. 950, § 1/HB 347.)

U.S. Code. - Sections 501(a), 3101 and 3306(b)(5) of the federal Internal Revenue Code of 1986, referred to in subparagraph (b)(2)(F) and paragraphs (b)(3) and (b)(7), respectively, are codified at 26 U.S.C. §§ 501(a), 3101 and 3306(b)(5), respectively.

Law reviews. - For article on the 2012 amendment of this Code section, see 29 Ga. St. U.L. Rev. 92 (2012).

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under Ga. L. 1937, p. 806 are included in the annotations for this Code section.

Cited in Young v. Bureau of Unemployment Comp., 63 Ga. App. 130 , 10 S.E.2d 412 (1940); Meakins v. Huiet, 100 Ga. App. 557 , 112 S.E.2d 167 (1959); National Trailer Convoy, Inc. v. Undercofler, 109 Ga. App. 703 , 137 S.E.2d 328 (1964).

RESEARCH REFERENCES

Am. Jur. 2d. - 76 Am. Jur. 2d, Unemployment Compensation, §§ 18, 19.

C.J.S. - 81 C.J.S., Social Security and Public Welfare, § 304.

ALR. - Service charges, made by hotels or restaurants and later distributed to waiters or similar employees, as "wages" upon which federal or state unemployment taxes or contributions are required to be paid, 83 A.L.R.2d 1024.

34-8-50. Week.

As used in this chapter, the term "week" means such period of seven consecutive calendar days ending at 12:00 Midnight as the Commissioner may by regulation prescribe.

(Code 1981, § 34-8-50 , enacted by Ga. L. 1991, p. 139, § 1.)

34-8-51. Weekly benefit amount.

As used in this chapter, the term "weekly benefit amount" means the dollar amount, prior to any deductions, which an individual may be entitled to receive for one week of total unemployment.

(Code 1981, § 34-8-51 , enacted by Ga. L. 1991, p. 139, § 1.)

ARTICLE 3 ADMINISTRATION

34-8-70. Duties and powers of Commissioner.

  1. It shall be the duty of the Commissioner to administer this chapter.
  2. The Commissioner shall have power and authority to adopt, amend, or rescind such rules and regulations and to employ such persons, make such expenditures, require such reports, make such investigations, and take such other action as deemed necessary or suitable to that end, and such rules and regulations shall be effective upon publication in the manner, not inconsistent with this chapter, which the Commissioner shall prescribe.
  3. The Commissioner shall determine methods of organization and procedure in accordance with this chapter and shall have an official seal, which shall be judicially noticed.
  4. Not later than February 1 of each year, the Commissioner shall submit to the Governor a report covering the administration and operation of this chapter during the preceding fiscal year and shall make such recommendations for amendments to this chapter as deemed proper. Such report shall include a balance sheet of the moneys in the fund in which there shall be provided, if possible, a reserve against the liability in the future years to pay benefits in excess of the then current contributions, which reserve shall be established by the Commissioner in accordance with accepted actuarial principles on the basis of statistics regarding employment, business activity, and other relevant factors for the longest possible period.
  5. Whenever the Commissioner believes that a change in contribution or benefit rates will become necessary to protect the solvency of the fund, the Commissioner shall promptly so inform the Governor and the General Assembly and make recommendations with respect thereto.
  6. The Commissioner shall fully cooperate with the agencies of other states and shall make every proper effort to oppose and prevent any further action which would in the Commissioner's judgment tend to effect complete or substantial federalization of state unemployment compensation funds or state employment security programs. In addition, the Commissioner may make and may cooperate with other appropriate agencies in making studies as to the practicality and probable cost of possible new state administered social security programs and the relative desirability of state, rather than federal, action in any such field.
  7. The Commissioner is authorized to enter into such cooperative agreements or contracts with appropriate officials in other states or with the United States secretary of labor for the purpose of the reciprocal collection of overpayments or delinquent contributions, penalties, interest, and costs or for such other purposes as reasonably relate to the discharge of the Commissioner's responsibilities under this chapter.
  8. Notwithstanding any other provision of this chapter, the Commissioner may recover an overpayment of benefits paid to any individual under this state or another state's unemployment benefit law or under an unemployment benefit program of the United States. (Code 1981, § 34-8-70 , enacted by Ga. L. 1991, p. 139, § 1; Ga. L. 1992, p. 6, § 34.)

Cross references. - Additional compensation of Commissioner for administering chapter, § 45-7-4(a)(9).

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under Ga. L. 1937, p. 806 are included in the annotations for this Code section.

Rulemaking. - Under the Administrative Procedure Act the adoption of "[r]ules relating to . . . benefits by the state or of an agency" is expressly exempted by O.C.G.A. § 50-13-2(6)(I) from the strict rulemaking procedural requirements of O.C.G.A. § 50-13-4 . This includes the promulgation of policies determining eligibility for entitlement and rules for granting unemployment benefits. Caldwell v. Amoco Fabrics Co., 165 Ga. App. 674 , 302 S.E.2d 596 (1983) (decided under Ga. L. 1937, p. 806).

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, §§ 8, 241 et seq. 76 Am. Jur. 2d, Unemployment Compensation, § 7.

C.J.S. - 73 C.J.S., Public Administrative Law and Procedure, § 146 et seq. 81 C.J.S., Social Security and Public Welfare, §§ 285, 286, 288 et seq.

81A C.J.S., Social Security and Public Welfare, § 484 et seq.

34-8-71. Distribution of text of chapter and other materials.

The Commissioner shall make available to the public copies of the text of this chapter, any rules or regulations promulgated pursuant to this chapter, the Commissioner's annual reports to the Governor, and any other material the Commissioner deems relevant. Such copies shall be furnished without cost, provided the request for copies is nominal and reasonable.

(Code 1981, § 34-8-71 , enacted by Ga. L. 1991, p. 139, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 2 Am. Jur. 2d, Administrative Law, §§ 1 et seq., 270, 271, 278.

C.J.S. - 73 C.J.S., Public Administrative Law and Procedure, § 248 et seq. 81A C.J.S., Social Security and Public Welfare, §§ 488, 489, 490.

34-8-72. Appointment of state and local or industry advisory councils.

The Commissioner shall appoint a State Advisory Council and may appoint local or industry advisory councils, composed in each case of an equal number of employer representatives and employee representatives who may fairly be regarded as representative because of their vocation, employment, or affiliations and of such members representing the general public as the Commissioner may designate. Such councils shall aid the Commissioner in formulating policies and discussing problems related to the administration of this chapter and in assuring impartiality and freedom from political influence in the resolution of such problems. Such advisory councils shall serve without compensation but shall be reimbursed for any necessary expenses.

(Code 1981, § 34-8-72 , enacted by Ga. L. 1991, p. 139, § 1.)

34-8-73. Department to administer chapter and programs; authority to create, and delegate powers and duties to, Employment Security Agency.

  1. The department shall administer the provisions of this chapter and all programs relating to state employment services and unemployment compensation.
  2. The Commissioner may, at his or her discretion, create an Employment Security Agency and a director of such agency within the department and may delegate in writing to such agency and director and to any subordinate official or employee such powers, duties, and responsibilities as the Commissioner deems appropriate to administer this chapter and the programs relating to state employment services and unemployment compensation. (Code 1981, § 34-8-73 , enacted by Ga. L. 1991, p. 139, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 241 et seq. 70A Am. Jur. 2d, Social Security and Medicare, §§ 21, 29.

C.J.S. - 73 C.J.S., Public Administrative Law and Procedure, § 147 et seq.

34-8-74. Appointment, compensation, powers, and duties of personnel administering chapter.

Subject to other provisions of this chapter, the Commissioner is authorized to appoint, fix the compensation of, and prescribe the duties and powers of such officers, accountants, attorneys, experts, and other persons as may be necessary in the performance of the Commissioner's duties under this chapter. The Commissioner may delegate to any such person such power and authority as deemed reasonable and proper for the effective administration of this chapter and may, in the discretion of the Commissioner, bond any persons handling moneys or signing checks under this chapter.

(Code 1981, § 34-8-74 , enacted by Ga. L. 1991, p. 139, § 1.)

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes - In light of the similarity of the statutory provisions, opinions decided under former Code Section 34-8-74, which was repealed by Ga. L. 1991, p. 139, § 1, are included in the annotations for this Code section.

Attorney General to represent Department of Labor. 1984 Op. Att'y Gen. No. 84-48 (decided under former § 34-8-74 ).

RESEARCH REFERENCES

Am. Jur. 2d. - 15A Am. Jur. 2d, Civil Service, § 23 et seq. 63C Am. Jur. 2d, Public Officers and Employees, §§ 241 et seq., 253, 262, 263, 437.

C.J.S. - 67 C.J.S., Officers and Public Employees, §§ 199, 204 et seq., 374 et seq., 421 et seq. 73 C.J.S., Public Administrative Law and Procedure, § 147 et seq. 81 C.J.S., Social Security and Public Welfare, § 480. 81A C.J.S., States, § 265.

34-8-75. Experience rating committee.

The Commissioner shall designate an experience rating committee. The committee shall be composed of one representative of employers, one representative of employees, and one representative of the department. The committee shall be constituted as a continuing committee for the purpose of conducting studies of experience rating and from time to time making recommendations to the Commissioner and the advisory council as to desirable modifications and improvements of the law, procedures, and regulations adopted in connection with the experience rating program.

(Code 1981, § 34-8-75 , enacted by Ga. L. 1991, p. 139, § 1.)

34-8-76. Duties of Commissioner to reduce and prevent unemployment.

The Commissioner, with the advice and aid of the State Advisory Council and the local or industry advisory councils, shall take all appropriate steps to reduce and prevent unemployment; to encourage and assist in the adoption of practical methods of vocational training, retraining, and vocational guidance; to investigate, recommend, advise, and assist in the establishment and operation, by municipalities, counties, school districts, and the state, of reserves for public works to be used in times of business depressions and unemployment; to promote the reemployment of unemployed workers throughout the state in every other way that may be feasible; and to these ends to carry on and publish in print or electronically the results of investigations and research studies.

(Code 1981, § 34-8-76 , enacted by Ga. L. 1991, p. 139, § 1; Ga. L. 2010, p. 838, § 10/SB 388.)

RESEARCH REFERENCES

Am. Jur. 2d. - 76 Am. Jur. 2d, Unemployment Compensation, §§ 5, 6.

C.J.S. - 81 C.J.S., Social Security and Public Welfare, § 281 et seq.

34-8-77. Creation and financing of State Employment Service; cooperation with federal agencies; authority to establish and maintain free public employment offices.

  1. The State Employment Service is established as a program administered by the department. The Commissioner shall establish and maintain free public employment offices in such number and in such places as may be necessary for the proper administration of this chapter and for the purposes of performing such duties as are within the purview of the federal Wagner-Peyser Act, 29 U.S.C. Section 49, as amended. The Commissioner is authorized to cooperate with or enter into agreements with any official or agency of the United States having powers or duties under the federal Wagner-Peyser Act and to do and perform all things necessary to secure to this state the benefits of that act in the promotion and maintenance of a system of public employment offices. The provisions of the federal Wagner-Peyser Act are accepted by this state, in conformity with Section 4 of that act, and this state will observe and comply with the requirements thereof. The Department of Labor is designated and constituted the agency of this state for the purposes of that act.
  2. For the purpose of establishing and maintaining free public employment offices, the Commissioner is authorized to enter into agreements with the Railroad Retirement Board or any other agency of the United States charged with the administration of any unemployment compensation law, with any political subdivision of this state, or with any private, nonprofit organization; and, as a part of any such agreement, the Commissioner may accept moneys, services, or quarters as a contribution. (Code 1981, § 34-8-77 , enacted by Ga. L. 1991, p. 139, § 1; Ga. L. 1995, p. 373, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 27 Am. Jur. 2d, Employment Agencies, §§ 15, 16. 63C Am. Jur. 2d, Public Officers and Employees, § 241 et seq.

C.J.S. - 73 C.J.S., Public Administrative Law and Procedure, § 147 et seq. 81A C.J.S., States, § 264.

34-8-78. Board of review; appointment, term of office, compensation, and removal of members.

  1. There shall be a Board of Review of the Department of Labor, which board shall consist of three members. Each member shall be appointed by the Governor for a term of six years. Each member shall be compensated for such member's services, which compensation shall be fixed by the Governor and paid from the Employment Security Administration Fund. The Governor may, at any time, after notice and a hearing, remove any member for cause. Vacancies shall be filled by appointment by the Governor for the unexpired term.
  2. The Governor may appoint additional alternative members of the board of review as needed to ensure the prompt and efficient review of cases by the board of review.  Those members may participate in any cases in which the other members are unable to participate.
  3. The board of review shall have the powers and authority and shall perform the functions conferred upon it by this chapter. (Code 1981, § 34-8-78 , enacted by Ga. L. 1991, p. 139, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 76 Am. Jur. 2d, Unemployment Compensation, §§ 8, 14, 85, 88.

C.J.S. - 81 C.J.S., Social Security and Public Welfare, §§ 297, 298, 377, 383 et seq.

34-8-79. State and federal cooperation in administration of chapter.

  1. In the administration of this chapter, the Commissioner shall cooperate, to the fullest extent consistent with this chapter, with the United States secretary of labor and the federal official responsible for the allocation of funds for the administration of this chapter and for making other administrative determinations within the federal province under the federal Social Security Act, as amended; shall make such reports in such form and containing such information as the United States secretary of labor and such federal official may from time to time require and shall comply with such provisions as the United States secretary of labor and such federal official may from time to time find necessary to assure the correctness and verification of such reports; and shall comply with the regulations prescribed by the United States secretary of labor and such federal official governing the expenditures of such sums as may be allotted and paid to this state under Title III of the federal Social Security Act for the purpose of assisting in the administration of this chapter.
  2. Upon request therefor, the Commissioner shall furnish to any agency of the United States charged with the administration of public works or assistance through public employment the name, address, ordinary occupation, and employment status of each recipient of benefits and such recipient's rights to further benefits under this chapter.
  3. The Commissioner may request the comptroller of the currency of the United States to cause an examination of the correctness of any return or report of any national banking association rendered pursuant to this chapter and may in connection with such request transmit any such report or return to the comptroller of the currency of the United States as provided in 26 U.S.C. Section 3305(c). (Code 1981, § 34-8-79 , enacted by Ga. L. 1991, p. 139, § 1; Ga. L. 1992, p. 6, § 34.)

U.S. Code. - Title III of the federal Social Security Act, referred to in subsection (a), is codified as 42 U.S.C. § 501 et seq.

RESEARCH REFERENCES

Am. Jur. 2d. - 2 Am. Jur. 2d, Administrative Law, § 11 et seq. 76 Am. Jur. 2d, Unemployment Compensation, §§ 1, 7.

C.J.S. - 73 C.J.S., Public Administrative Law and Procedure, § 156 et seq. 81 C.J.S., Social Security and Public Welfare, § 285 et seq.

ALR. - State banks, insurance companies, or building and loan associations, which are members of Federal Reserve Bank or similar federal agency, or national banks, as within state Social Security or Unemployment Compensation Act, 165 A.L.R. 1250 .

34-8-80. Payment of compensation under two or more state unemployment compensation laws.

  1. The Commissioner shall participate in any arrangements for the payment of compensation on the basis of combining an individual's wages and employment covered under this chapter with the individual's wages and employment covered under the unemployment compensation laws of other states, which arrangements are approved by the United States secretary of labor in consultation with the state unemployment compensation agencies as reasonably calculated to assure the prompt and full payment of compensation in such situations and which include provisions for (1) applying the base period of a single state law to a claim involving the combining of an individual's wages and employment covered under two or more state unemployment compensation laws and (2) avoiding the duplicate use of wages and employment by reason of such combining.
  2. Payments to another state's trust fund shall be deemed to be benefits for the purposes of Code Sections 34-8-83 through 34-8-86 , 34-8-150 through 34-8-161 , 34-8-191 , and 34-8-193 , provided that appropriate charges may be made to employers' accounts for benefits so payable based on wages in this state. The Commissioner is authorized to make payment to other state or federal agencies and receive payment from such other state or federal agencies, in accordance with arrangements pursuant to this Code section. (Code 1981, § 34-8-80 , enacted by Ga. L. 1991, p. 139, § 1; Ga. L. 1992, p. 6, § 34.)

OPINIONS OF THE ATTORNEY GENERAL

Editor's note - In light of the similarity of the statutory provisions, opinions decided under Ga. L. 1937, p. 806 are included in the annotations for this Code section.

Interstate arrangements. - The Commissioner of Labor may enter into arrangements with agencies of other states for the determination and payment of interstate benefit claims under the law. 1945-47 Op. Att'y Gen. p. 360 (decided under former Ga. L. 1937, p. 806).

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, States, Territories and Dependencies, §§ 7, 8. 76 Am. Jur. 2d, Unemployment Compensation, §§ 1, 6, 7.

C.J.S. - 81 C.J.S., Social Security and Public Welfare, § 281. 81A C.J.S., States, § 60 et seq.

ALR. - State banks, insurance companies, or building and loan associations, which are members of Federal Reserve Bank or similar federal agency, or national banks, as within state Social Security or Unemployment Compensation Act, 165 A.L.R. 1250 .

34-8-81. Creation of Employment Security Administration Fund; sources of money for fund; management and control of moneys.

  1. There is created a trust fund, with the Commissioner as trustee, to be known as the Employment Security Administration Fund. All moneys which are deposited or paid into this fund shall be continuously available to the Commissioner for expenditure in accordance with this chapter and shall not lapse at any time or be transferred to any other fund except as provided in this Code section and shall not be subject to Article 4 of Chapter 12 of Title 45. All moneys in this fund, except money received under Code Section 34-8-85 pursuant to Section 903 of the federal Social Security Act, as amended, which are received from the federal government or any agency thereof or which are appropriated by this state for the purposes described in Code Section 34-8-77 shall be expended solely for the purposes and in the amounts found necessary by the United States secretary of labor for the proper and efficient administration of this chapter.
  2. The fund shall consist of all moneys appropriated by this state for the purposes described in Code Section 34-8-77; all moneys received from the United States or any agency thereof, including the United States secretary of labor; all moneys, except funds appropriated pursuant to Code Section 34-8-92, received from any other source for such purpose; any moneys received from any agency of the United States or any other state as compensation for services or facilities supplied to such agency; any amounts received pursuant to any surety bond or insurance policy or from other sources for losses sustained by the Employment Security Administration Fund or by reason of damage to equipment or supplies purchased from moneys in such fund; and any proceeds realized from the sale or disposition of any such equipment or supplies which may no longer be necessary for the proper administration of this chapter.
  3. All moneys in this fund shall be deposited, administered, and disbursed in the manner and under the conditions and requirements provided under this chapter, except that moneys in this fund shall not be commingled with other state funds but shall be maintained in a separate account on the books of a depository bank. Such moneys shall be secured by the depository in which they are held to the same extent and in the same manner as required by the general depository laws of this state, and collateral pledged shall be maintained in a separate custody account. The Commissioner shall be liable on the Commissioner's official bond for the faithful performance of duties in connection with the Employment Security Administration Fund provided for under this chapter. All sums recovered on any surety bond for losses sustained by the Employment Security Administration Fund shall be deposited in the fund.
  4. Notwithstanding any provision of this Code section, all money requisitioned and deposited in this fund under Code Section 34-8-85 pursuant to Section 903 of the federal Social Security Act, as amended, shall remain part of the Unemployment Trust Fund and shall be used only in accordance with conditions specified in Code Section 34-8-85 . (Code 1981, § 34-8-81 , enacted by Ga. L. 1991, p. 139, § 1; Ga. L. 1992, p. 6, § 34.)

Code Commission notes. - Pursuant to § 28-9-5 , in 1991, "a" was inserted in the second sentence of subsection (c).

U.S. Code. - Section 903 of the federal Social Security Act, referred to in subsections (a) and (d), is codified as 42 U.S.C. § 1103.

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions decided under former Code 1933, § 54-645 and Ga. L. 1937, p. 806 are included in the annotations for this Code section.

Authority of Commissioner. - Ga. L. 1937, p. 806 (see now O.C.G.A. § 34-8-81 ) authorizes the Commissioner of Labor to determine what are proper expenditures of federal funds for employment security purposes; the Commissioner may, therefore, authorize payment of the moving expenses from those funds. 1972 Op. Att'y Gen. No. U72-53 (decided under Ga. L. 1937, p. 806).

Waiver of collateral by State Depository Board. - To the extent that former Code 1933, §§ 54-645 and 89-812 (see now O.C.G.A. §§ 34-8-81 and 45-8-13 ), or any other laws, are irreconcilably inconsistent with Ga. L. 1971, p. 553 (see now O.C.G.A. §§ 50-17-53 and 50-17-58 ), they are superseded or repealed by implication. 1971 Op. Att'y Gen. No. 71-112 (decided under former Code 1933, § 54-645).

RESEARCH REFERENCES

Am. Jur. 2d. - 27 Am. Jur. 2d, Employment Agencies, § 15. 76 Am. Jur. 2d, Unemployment Compensation, § 2.

C.J.S. - 81 C.J.S., Social Security and Public Welfare, § 364.

34-8-82. State reimbursement of Employment Security Administration Fund for moneys lost, wrongfully expended, or overexpended.

This state recognizes its obligation to replace and declares it to be the policy of this state that funds will be provided in the future and applied to the replacement of any moneys received from the United States secretary of labor or the federal official responsible for the allocation of funds for the administration of this chapter and for making other administrative determinations within the federal province under Title III of the federal Social Security Act; any unencumbered balances in the Employment Security Administration Fund as of that date; any moneys thereafter granted to this state pursuant to the provisions of the federal Wagner-Peyser Act; and any moneys made available by the state or its political subdivisions and matched by such moneys granted to this state pursuant to the provisions of the federal Wagner-Peyser Act, which the United States secretary of labor or other responsible federal official finds, because of any action or contingency, have been lost or have been expended for purposes other than or in amounts in excess of those found necessary by the United States secretary of labor or other responsible federal official. Such moneys shall be promptly replaced by moneys appropriated for such purpose from the general funds of this state to the Employment Security Administration Fund for expenditure as provided in Code Section 34-8-81. The Commissioner shall promptly report to the Governor, and the Governor to the General Assembly, the amount required for such replacement.

(Code 1981, § 34-8-82 , enacted by Ga. L. 1991, p. 139, § 1; Ga. L. 1992, p. 6, § 34.)

U.S. Code. - The federal Wagner-Peyser Act is codified as 29 U.S.C. § 49 et seq. Title III of the federal Social Security Act is codified as 42 U.S.C. § 501 et seq.

34-8-83. Establishment, composition, and administration of Unemployment Compensation Fund.

There is established as a trust fund, separate and apart from all other public funds of this state, an Unemployment Compensation Fund, which shall be administered by the Commissioner exclusively for the purposes of this chapter. The fund shall consist of:

  1. All contributions collected under this chapter;
  2. All payments in lieu of contributions collected under Code Sections 34-8-158 through 34-8-161;
  3. Interest earned upon any moneys in the fund;
  4. Any property or securities acquired through the use of moneys belonging to the fund;
  5. All earnings of such property or securities;
  6. All moneys credited to this state's account in the Unemployment Trust Fund pursuant to Section 903 and related sections of the federal Social Security Act, as amended;
  7. All moneys received from the federal government as reimbursements pursuant to Section 204 of the Federal-State Extended Unemployment Compensation Act of 1970; and
  8. All moneys received for the fund from any other source. (Code 1981, § 34-8-83 , enacted by Ga. L. 1991, p. 139, § 1.)

U.S. Code. - Section 903 of the federal Social Security Act, referred to in paragraph (6), is codified as 42 U.S.C. § 1103.

Section 204 of the Federal-State Extended Unemployment Compensation Act of 1970, referred to in paragraph (7), is noted following 26 U.S.C. § 3304.

RESEARCH REFERENCES

Am. Jur. 2d. - 76 Am. Jur. 2d, Unemployment Compensation, §§ 2, 14.

C.J.S. - 81 C.J.S., Social Security and Public Welfare, § 364.

34-8-84. Commissioner as custodian of fund; establishment of accounts within fund; deposits of money in accounts.

The Commissioner shall be custodian of the Unemployment Compensation Fund and shall administer the fund in accordance with such rules and regulations as the Commissioner shall prescribe. The Commissioner shall maintain within the fund three separate accounts: (1) a clearing account, (2) an unemployment trust fund account, and (3) a benefit account. The Commissioner shall immediately deposit all moneys payable to the fund, upon receipt thereof, in the clearing account. Refunds payable pursuant to Code Section 34-8-164 may be paid from the clearing account or the benefit account upon authorization issued by the Commissioner. After clearance thereof, all other moneys in the clearing account shall be immediately deposited with the secretary of the treasury of the United States to the credit of the account of this state in the Unemployment Trust Fund established and maintained pursuant to Section 904 of the Social Security Act, as amended, any provisions of law in this state relating to the deposit, administration, release, or disbursement of moneys in the possession or custody of this state to the contrary notwithstanding. The benefit account shall consist of all moneys requisitioned from this state's account in the Unemployment Trust Fund. Except as otherwise provided in this Code section, moneys in the clearing and benefit accounts may be deposited by the Commissioner in any bank or public depository in which general funds of the state may be deposited, but no public deposit insurance charge or premium shall be paid out of the fund; provided, however, that any charges for exchange on local bank checks in payment of contributions may be paid as expense of collection from the Employment Security Administration Fund. Such money shall be secured by the depository bank to the same extent and in the same manner as required by the general depository laws of this state; and collateral pledged for this purpose or bonds given for this purpose shall be kept separate and distinct from any collateral pledged to secure the other funds of the state. The Commissioner shall be liable on the Commissioner's official bond for the faithful performance of duties in connection with the Unemployment Compensation Fund as provided under this chapter. All sums recovered on any surety bond for losses sustained by the Unemployment Compensation Fund shall be deposited in said fund.

(Code 1981, § 34-8-84 , enacted by Ga. L. 1991, p. 139, § 1; Ga. L. 1992, p. 6, § 34.)

U.S. Code. - Section 904 of the federal Social Security Act, referred to in this Code section, is codified as 42 U.S.C. § 1104.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under Ga. L. 1937, p. 806 are included in the annotations for this Code section.

Cited in Caldwell v. Atlanta Bd. of Educ., 152 Ga. App. 291 , 262 S.E.2d 573 (1979).

RESEARCH REFERENCES

Am. Jur. 2d. - 76 Am. Jur. 2d, Unemployment Compensation, §§ 2, 8.

C.J.S. - 81 C.J.S., Social Security and Public Welfare, § 364.

81A C.J.S., Social Security and Public Welfare, § 484 et seq.

34-8-85. Withdrawals from Unemployment Trust Fund for expenditures under chapter.

Moneys shall be requisitioned from this state's account in the Unemployment Trust Fund solely for the payment of regular benefits and extended benefits and for refunds pursuant to Code Section 34-8-164 and in accordance with regulations prescribed by the Commissioner, except that moneys credited to this state's account pursuant to Section 903 of the federal Social Security Act, as amended, may be requisitioned and used exclusively as provided in paragraphs (1) through (5) of this Code section:

  1. FUNDS FOR PAYMENT OF FUTURE BENEFITS. The Commissioner shall from time to time requisition from the Unemployment Trust Fund amounts, not exceeding the amount standing in this state's account therein, as deemed necessary by the Commissioner for the payment of benefits for a reasonable future period. Upon receipt thereof, the Commissioner shall deposit the funds in the benefit account. The benefit account shall be used solely for the payment of regular benefits and extended benefits or refunds upon requisition of the Commissioner as authorized in this Code section.  Withdrawal of such funds in the benefit account shall not be subject to any provisions of law requiring specific appropriations or other formal releases of state officers of moneys in their custody.  The Commissioner's requisitions for lump sum withdrawals for the payment of individual benefit claims shall not exceed  the balance of funds in the Unemployment Trust Fund; and such requisition shall be in an amount estimated to be necessary for benefit payments for such reasonable future period as the Commissioner may by regulation prescribe. Such lump sum amounts, when received by the Commissioner, shall be immediately deposited in the benefit account maintained in the name of the Commissioner in such bank or public depository and under such conditions as the Commissioner determines necessary; provided, however, that such bank or public depository shall be one in which general funds of the state may be deposited, but no public deposit insurance charge or premium shall be paid out of the fund; provided, further, that such moneys shall be secured by the depository bank to the same extent and in the same manner as required by the general laws of this state governing depositories of state funds and that collateral pledged for this purpose or bonds given for this purpose shall be kept separate and distinct from any collateral or bonds pledged or given to secure other funds of the state. The Commissioner or a duly authorized representative of the Commissioner shall be authorized to draw and issue checks on the benefit account for the payment of individual benefit claims. Any balance of moneys requisitioned from the Unemployment Trust Fund which remains unclaimed or unpaid in the benefit account after the expiration of the period for which such sums were requisitioned shall either be deducted from estimates for and may be utilized for the payment of benefits during succeeding periods or, in the discretion of the Commissioner, shall be redeposited with the secretary of the treasury of the United States to the credit of this state's account in the Unemployment Trust Fund as provided in Code Section 34-8-84;
  2. APPROPRIATION OF ADMINISTRATION EXPENSES. Moneys credited to the account of this state in the Unemployment Trust Fund by the secretary of the treasury of the United States pursuant to Section 903 of the federal Social Security Act, as amended, may be requisitioned and used in the payment of expenses incurred for the administration of this chapter pursuant to a specific appropriation by the General Assembly, provided that the expenses are incurred and the moneys are requisitioned after the enactment of an appropriations Act which:
    1. Specifies the purposes for which such moneys are appropriated and the amount appropriated therefor; and
    2. Limits the period within which such moneys may be expended to a period ending not more than two years after the date of the enactment of the appropriations Act;
  3. LIMITATION ON WITHDRAWALS AND USE OF FUNDS. Moneys credited to the account of this state pursuant to Section 903 of the federal Social Security Act, as amended, may not be withdrawn or used except for the payment of benefits or for the payment of expenses for the administration of this chapter and of public employment offices pursuant to this Code section;
  4. RECORDS OF APPROPRIATED FUNDS. Moneys appropriated for the payment of expenses of administration pursuant to this Code section shall be requisitioned as needed for the payment of obligations incurred under such appropriation and, upon requisition, shall be deposited in the Employment Security Administration Fund, but, until expended, shall remain a part of the Unemployment Trust Fund. The Commissioner shall maintain a separate record of the deposit, obligation, expenditure, and return of funds so deposited. If any moneys so deposited are, for any reason, not to be expended for the purposes for which they were appropriated, such moneys shall be returned promptly to the secretary of the treasury of the United States for credit to this state's account in the Unemployment Trust Fund; and
  5. APPROPRIATIONS TO DEPARTMENT OF LABOR. There is authorized to be appropriated by the General Assembly to the Department of Labor any part of or all moneys credited to the account of this state in the Unemployment Trust Fund by the secretary of the treasury of the United States pursuant to Section 903 of the federal Social Security Act, as amended, and as provided in this Code section; provided, however, that notwithstanding any other provisions of this Code section to the contrary, moneys credited with respect to federal fiscal years 1999, 2000, and 2001, and moneys credited with respect to the special transfer made under Section 903(g) of said Act, shall be used solely for the administration of the unemployment insurance program in Georgia and are not subject to appropriations by the General Assembly. (Code 1981, § 34-8-85 , enacted by Ga. L. 1991, p. 139, § 1; Ga. L. 1992, p. 6, § 34; Ga. L. 1998, p. 1501, § 1; Ga. L. 2009, p. 139, § 10/HB 581.)

Editor's notes. - Ga. L. 2009, p. 139, § 1/HB 581, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Georgia Works Job Creation and Protection Act of 2009.'"

U.S. Code. - Section 903 of the federal Social Security Act, referred to throughout this Code section, is codified as 42 U.S.C. § 1103.

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes - In light of the similarity of the statutory provisions, opinions decided under Ga. L. 1937, p. 806 are included in the annotations for this Code section.

Return of deposited funds. - The Employment Security Agency may return funds deposited in the Unemployment Compensation Fund, to which it claims no entitlement, to the claimant from whom the funds were received. 1980 Op. Att'y Gen. No. 80-24 (decided under Ga. L. 1937, p. 806).

RESEARCH REFERENCES

Am. Jur. 2d. - 76 Am. Jur. 2d, Unemployment Compensation, § 2.

C.J.S. - 81 C.J.S., Social Security and Public Welfare, § 364.

81A C.J.S., Social Security and Public Welfare, § 577 et seq.

34-8-86. Management of funds upon discontinuance of Unemployment Trust Fund.

Code Sections 34-8-83 through 34-8-85, to the extent that they relate to the Unemployment Trust Fund, shall be operative only so long as such trust fund continues to exist and so long as the secretary of the treasury of the United States continues to maintain for this state a separate book account of all funds deposited therein by this state for benefit purposes, together with this state's proportionate share of the earnings of the Unemployment Trust Fund, from which no other state is permitted to make withdrawals. If and when such Unemployment Trust Fund ceases to exist or such separate book account is no longer maintained, all moneys, properties, or securities therein belonging to the Unemployment Compensation Fund of this state shall be transferred to the treasurer of the Unemployment Compensation Fund, who shall hold, invest, transfer, sell, deposit, and release such funds, properties, or securities in a manner approved by the Commissioner in accordance with this chapter; provided, however, that such funds shall be invested in the bonds or other interest-bearing obligations of the United States of America and of the State of Georgia; and provided, further, that such investment shall at all times be so made that all the assets of the fund shall always be readily convertible into cash when needed for the payment of benefits. The Commissioner, as custodian, shall have the discretionary authority to dispose of securities or other properties belonging to the Unemployment Compensation Fund.

(Code 1981, § 34-8-86 , enacted by Ga. L. 1991, p. 139, § 1; Ga. L. 1992, p. 6, § 34.)

RESEARCH REFERENCES

Am. Jur. 2d. - 76 Am. Jur. 2d, Unemployment Compensation, § 2.

C.J.S. - 81 C.J.S., Social Security and Public Welfare, § 364.

81A C.J.S., Social Security and Public Welfare, § 577 et seq.

34-8-87. Borrowing funds from United States Treasury upon depletion of Unemployment Compensation Fund.

The Commissioner is authorized to borrow funds from the United States Treasury in accordance with standards and regulations promulgated by the United States Department of Labor and pursuant to laws of the United States. Such authority is granted only to be used if and when the Unemployment Compensation Fund should be depleted; and all funds so borrowed shall be used only for the purpose of paying benefits to those persons eligible to receive such benefits.

(Code 1981, § 34-8-87 , enacted by Ga. L. 1991, p. 139, § 1.)

RESEARCH REFERENCES

C.J.S. - 81 C.J.S., Social Security and Public Welfare, § 364.

34-8-88. Necessary powers in discharge of duties.

In the discharge of the duties imposed by this chapter, the Commissioner, the chief administrative hearing officer, the members of the board of review, and any duly authorized representative of any of them shall have the power to administer oaths and affirmations, take depositions, certify to official acts, and issue subpoenas to compel the attendance of witnesses and the production of books, papers, correspondence, memoranda, and other records deemed necessary as evidence in connection with a disputed claim or the administration of this chapter.

(Code 1981, § 34-8-88 , enacted by Ga. L. 1991, p. 139, § 1.)

34-8-89. Application for order requiring persons to obey subpoena issued by Commissioner.

  1. In case of contumacy or refusal to obey a subpoena by any person, any court of this state within the jurisdiction of which the inquiry is carried on or within the jurisdiction of which said person guilty of contumacy or refusal to obey is found or resides or transacts business, upon application by the Commissioner, the board of review, the chief administrative hearing officer, or any duly authorized representative of any of them, shall have jurisdiction to issue to such person an order requiring such person to appear before the Commissioner, the board of review, the chief administrative hearing officer, or any duly authorized representative of any of them to produce evidence, if so ordered, or to give testimony regarding the matter under investigation or in question; and any failure to obey such order may be punished by the superior court as a contempt of court.
  2. Any person who shall without just cause fail or refuse to attend and testify or to answer any lawful inquiry or to produce books, papers, correspondence, memoranda, and other records, if it is in such person's power to do so, in obedience to a subpoena of the Commissioner, the board of review, the chief administrative hearing officer, or any duly authorized representative of any of them shall, upon conviction thereof, be punished by a fine of not less than $200.00, or by imprisonment for not longer than 60 days, or by both such fine and imprisonment; and each day such violation continues shall be deemed to be a separate offense. (Code 1981, § 34-8-89 , enacted by Ga. L. 1991, p. 139, § 1.)

34-8-90. Authority to lease property.

Reserved. Repealed by Ga. L. 2005, p. 100, § 16/SB 158, effective April 12, 2005.

Editor's notes. - This Code section was based on Code 1981, § 34-8-90 , enacted by Ga. L. 1991, p. 139, § 1.

34-8-91. Benefits limited to extent funds are available.

Benefits shall be deemed due and payable under this chapter only to the extent provided in this chapter and to the extent that funds are available therefor to the credit of the Unemployment Compensation Fund. Neither the state nor the Commissioner shall be liable for any amount in excess of such sums.

(Code 1981, § 34-8-91 , enacted by Ga. L. 1991, p. 139, § 1.)

34-8-92. Disposition of fines, penalties, and interest collected; amounts collected pursuant to Code Section 34-8-255 to be returned to Unemployment Compensation Fund.

  1. All fines, penalties, and interest collected under the terms of this chapter shall be paid into the state treasury. The General Assembly shall be authorized to appropriate to the Commissioner all such funds so raised and deposited in the state treasury, which shall be payable upon requisition of the Commissioner.  Such funds are to be used for the replacement of funds, as provided in Code Section 34-8-82, and for incidental expenses incurred in the administration of this chapter for which funds are not granted by the federal government through the United States secretary of labor or other agencies.
  2. Notwithstanding subsection (a) of this Code section, any amounts collected pursuant to Code Section 34-8-255 shall be returned to the Unemployment Compensation Fund to be used exclusively for the purposes of this chapter as required by federal law. (Code 1981, § 34-8-92 , enacted by Ga. L. 1991, p. 139, § 1; Ga. L. 1992, p. 6, § 34; Ga. L. 2014, p. 730, § 1/HB 714.)

Law reviews. - For article on the 2014 amendment of this Code section, see 31 Ga. St. U.L. Rev. 137 (2014).

34-8-93. Construction of chapter; severability.

  1. Any ambiguity in this chapter shall be construed in a manner consistent with federal law applicable to the unemployment compensation program.
  2. In the event any Code section, subsection, paragraph, subparagraph, sentence, clause, phrase, or provision of this chapter shall be ruled unconstitutional by any court or out of conformity with federal law by the United States secretary of labor, such provision shall be null and void and of no force and effect. The General Assembly declares that it would have passed the remaining portions of this chapter if it had known that any such part or provision of this chapter would be declared unconstitutional or out of conformity with federal law by the United States secretary of labor.  Further, the Commissioner shall have the authority to make procedurally the necessary adjustments in order to bring about conformity with federal law, pending action of the General Assembly. (Code 1981, § 34-8-93 , enacted by Ga. L. 1991, p. 139, § 1; Ga. L. 1992, p. 6, § 34.)

ARTICLE 4 DISCLOSURE OF RECORDS

34-8-120. Legislative intent.

  1. This article is intended to reconcile the free access to public records granted by Article 4 of Chapter 18 of Title 50, relating to the inspection of public records, and the discovery rights of judicial and administrative systems with the historical confidentiality of certain records of the department and the individual's right of privacy.
  2. The General Assembly recognizes that records and information held by the Department of Labor could be misused.  Therefore, it is the intent of this article to define a right of privacy and confidentiality as regards individual and employing unit records and other records maintained by the Department of Labor.  The General Assembly further recognizes that there are situations where this right of privacy and confidentiality is outweighed by other considerations.  Therefore, it is the intent of this article to define also certain exceptions to the right of privacy and confidentiality. (Code 1981, § 34-8-120 , enacted by Ga. L. 1991, p. 139, § 1.)

34-8-121. Information or records shall be private and confidential; release authorized; maintenance of records; disclosure of private and confidential information; destruction of outdated records.

  1. Any information or records concerning an individual or employing unit obtained by the department pursuant to the administration of this chapter or other federally funded programs for which the department has responsibility shall be private and confidential, except as otherwise provided in this article or by regulation. This article does not create a rule of evidence. Information or records may be released by the department when the release is required by the federal government in connection with, or as a condition of funding for, a program being administered by the department. The provisions of paragraphs (1) through (3) of subsection (a) of Code Section 34-8-125 shall not apply to such release.
    1. Each employing unit shall keep true and accurate records containing such information as the Commissioner may prescribe. Such records shall be open to inspection and be subject to being copied by the Commissioner or an authorized representative of the Commissioner at any time and as often as may be necessary. In addition to information prescribed by the Commissioner, each employer shall keep records of and report to the Commissioner quarterly the street address of each establishment, branch, outlet, or office of such employer, the nature of the operation, the number of persons employed, and the wages paid at each establishment, branch, outlet, or office.
    2. The Commissioner or an authorized representative of the Commissioner may require from any employing unit any sworn or unsworn reports deemed necessary for the effective administration of this chapter. Any member of the board of review, any administrative hearing officer, or any field representative may require from any employing unit any sworn or unsworn reports, with respect to persons employed by it, which are deemed necessary for the effective administration of this chapter.
    3. Information, statements, transcriptions of proceedings, transcriptions of recordings, electronic recordings, letters, memoranda, and other documents and reports thus obtained or obtained from any individual, claimant, employing unit, or employer pursuant to the administration of this chapter, except to the extent necessary for the proper administration and enforcement of this chapter, shall be held confidential and shall not be subject to subpoena in any civil action or proceeding, published, or open to public inspection, other than to public employees in the performance of their public duties, in any manner revealing the individual's or employing unit's identity; but any claimant, employer, or a duly authorized representative, at a hearing before an administrative hearing officer or the board of review, shall be supplied with information from such records to the extent necessary for the proper presentation of his or her claim. Any person who violates any provision of this paragraph shall upon conviction be guilty of a misdemeanor.
    4. Notwithstanding the provisions of Code Sections 50-6-9 and 50-6-29 relating to the powers of the state auditor to disclose private and confidential information or records obtained by the department pursuant to the administration of this chapter or other federally funded programs for which the department has responsibility, such private and confidential information or records may be disclosed by the state auditor only in accordance with all provisions of this article and the requirements of 20 C.F.R. 603 and, after notice and review, upon the written direction of the Commissioner issued in advance of such disclosure.
    5. On orders of the Commissioner, any records or documents received or maintained by the Commissioner under the provisions of this chapter or the rules and regulations promulgated under this chapter may be destroyed under such safeguards as will protect their confidential nature two years after the date on which such records or documents last serve any useful, legal, or administrative purpose in the administration of this chapter or in the protection of the rights of anyone. (Code 1981, § 34-8-121 , enacted by Ga. L. 1991, p. 139, § 1; Ga. L. 2009, p. 139, § 7/HB 581.)

Editor's notes. - Ga. L. 2009, p. 139, § 1/HB 581, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Georgia Works Job Creation and Protection Act of 2009.'"

Law reviews. - For note discussing administrative records and reports of public employment agencies with emphasis on the critical role of the employer, and advocating a qualified, rather than absolute, privilege placed on confidential employer reports, see 11 Mercer L. Rev. 345 (1960).

34-8-122. Communications between employer and employee, or between employer or employee and department, privileged.

  1. All letters, reports, communications, or any other matters, either oral or written, from the employer or employee to each other or to the department or any of its agents, representatives, or employees, which letters, reports, or other communications shall have been written, sent, delivered, or made in connection with the requirements of the administration of this chapter, shall be absolutely privileged and shall not be made the subject matter or basis for any action for slander or libel in any court of the State of Georgia.
  2. Any finding of fact or law, judgment, determination, conclusion, or final order made by an adjudicator, examiner, hearing officer, board of review, or any other person acting under the authority of the Commissioner with respect to this chapter shall not be admissible, binding, or conclusive in any separate or subsequent action or proceeding between a person and such person's present or previous employer brought before any court of this state or the United States or before any local, state, or federal administrative agency, regardless of whether the prior action was between the same or related parties or involved the same or similar facts; provided, however, any finding of fact or law, judgment, determination, conclusion, or final order made as described in this chapter shall be admissible in proceedings before the Commissioner. (Code 1981, § 34-8-122 , enacted by Ga. L. 1991, p. 139, § 1.)

JUDICIAL DECISIONS

Communication of reasons for discharge of employees privileged. - Hospital personnel director's communication of reasons for discharge of employees to the Georgia Department of Labor was absolutely privileged and the trial court erred in denying summary judgment to the director as to this aspect of the employees' defamation claims. Davis v. Copelan, 215 Ga. App. 754 , 452 S.E.2d 194 (1994).

Because statements by a city as an employer to the Department of Labor with respect to the discharged employee's unemployment compensation benefits were absolutely privileged, pursuant to O.C.G.A. § 34-8-122(a) , and, as such, could not be used to support an at-will employee's defamation claim. Reid v. City of Albany, 276 Ga. App. 171 , 622 S.E.2d 875 (2005).

Collateral estoppel. - Superior court's determination in an action for unemployment benefits that an employee was terminated for cause precludes that employee from relitigating the issue in a subsequent action such as one based on employment discrimination. Langton v. Department of Cor., 220 Ga. App. 445 , 469 S.E.2d 509 (1996).

Cited in Hightower v. Kendall Co., 225 Ga. App. 71 , 483 S.E.2d 294 (1997); Desmond v. Troncalli Mitsubishi, 243 Ga. App. 71 , 532 S.E.2d 463 (2000); ComSouth Teleservices, Inc. v. Liggett, 243 Ga. App. 446 , 531 S.E.2d 190 (2000); Doss v. City of Savannah, 290 Ga. App. 670 , 660 S.E.2d 457 (2008); Wright v. Brown, 336 Ga. App. 1 , 783 S.E.2d 405 (2016).

34-8-123. Commissioner's authority to adopt, amend, or rescind rules and regulations.

The Commissioner shall have the authority to adopt, amend, or rescind rules and regulations interpreting and implementing the provisions of this article. In particular, these rules shall specify the procedure to be followed to obtain information or records to which the public has access under this chapter.

(Code 1981, § 34-8-123 , enacted by Ga. L. 1991, p. 139, § 1.)

34-8-124. Access to records and information by individuals and employing units; fee for copies.

  1. An individual shall have access to all records and information concerning that individual held by the department unless the information is exempt from disclosure.  An employing unit shall have access to its own records and to any records and information relating to a benefit claim by an individual if the employing unit is the individual's chargeable employer. An employing unit shall have access to general summaries of benefit claims by individuals whose benefits are chargeable to the employing unit's experience rating or reimbursement account.
  2. Any interested party or authorized representative of such party shall be entitled to examine and, upon the payment of a reasonable fee to the department, to obtain a copy of any materials contained in such records to the extent necessary for proper presentation of the party's position at any hearing on a claim. At the Commissioner's discretion, the fee may be waived for persons for whom such payment would present a hardship. (Code 1981, § 34-8-124 , enacted by Ga. L. 1991, p. 139, § 1.)

34-8-125. Access to information or records by governmental agencies; penalty for violation.

  1. Governmental agencies, including law enforcement agencies, prosecuting agencies, and the executive branch, whether state, local, or federal, shall have access to information or records deemed private and confidential under this article if the information or records are needed by the agency for official purposes and:
    1. The agency submits an application in writing to the department for the records or information containing a statement of the official purposes for which the information or records are needed and specific identification of the records or information sought from the department;
    2. The commissioner, chief executive, or other responsible official of the requesting agency has verified the need for the specific information in writing either on the application or on a separate document; and
    3. The agency requesting access has served a copy of the application for records or information on the individual or employing unit whose records or information are sought and has provided the department with proof of service. Service shall be made in the same manner as service of process in a civil action.  The requesting agency shall include with the copy of the application a statement to the effect that the individual or employing unit may contact the public records officer of the department to state any objections to the release of the records or information.  The department shall not act upon the application of the requesting agency until at least five days after service on the concerned individual or employing unit. The department shall consider any objections raised by the concerned individual or employing unit in deciding whether the requesting agency needs the information or records for official purposes.
  2. In cases of emergency the governmental agency requesting access shall not be required to comply formally with the provisions of subsection (a) of this Code section at the time of the request if the procedures required by subsection (a) of this Code section are complied with by the requesting agency following the receipt of any records or information deemed private and confidential under this article.  An emergency is defined as a situation in which irreparable harm or damage could occur if records or information are not released immediately.
  3. The requirements of paragraph (3) of subsection (a) of this Code section shall not apply  to governmental agencies where the procedures would frustrate the investigation of possible violations of criminal laws.
  4. Governmental agencies shall have access to certain records or information, limited to such items as names, addresses, social security numbers, and general information about benefit entitlement or employer information possessed by the department, for comparison purposes with records or information possessed by the requesting agency to detect improper or fraudulent claims, to determine eligibility or entitlement to public programs, or to determine potential tax liability or employer compliance with registration and licensing requirements. In those cases the governmental agency shall not be required to comply with paragraph (3) of subsection (a) of this Code section, but the requirements of the remainder of subsection (a) of this Code section must be satisfied.
  5. Disclosure to governmental agencies of information or records obtained by the department from the federal government shall be governed by any applicable federal law or any agreement between the federal government and the department where so required by federal law.  State law shall control when federal law does not apply to the records or information.
  6. The disclosure of any records or information by a governmental agency which has obtained the records or information under this Code section is prohibited unless the disclosure is directly connected to the official purpose for which the records or information was obtained.  The willful violation of this subsection shall upon conviction constitute a misdemeanor. (Code 1981, § 34-8-125 , enacted by Ga. L. 1991, p. 139, § 1.)

Cross references. - Punishment for misdemeanors generally, § 17-10-3 .

34-8-126. Information or records available to parties to judicial or formal administrative proceedings.

Information or records deemed private and confidential under this chapter shall be available to parties to judicial or formal administrative proceedings only upon a finding by the presiding officer that the need for the information or records in the proceeding outweighs any reasons for the privacy and confidentiality of the information or records. Information or records deemed private and confidential under this chapter shall not be available in discovery proceedings unless the court in which the action has been filed has made the finding specified above. A judicial or administrative subpoena or order directed to the department must contain this finding. A subpoena for records or information held by the department may be directed to and served upon any employee of the department, but the department may specify by rule or regulation which employee shall produce the records or information in compliance with the subpoena.

(Code 1981, § 34-8-126 , enacted by Ga. L. 1991, p. 139, § 1.)

34-8-127. Disclosure of information or records when necessary to permit private parties to assist in operation of department; penalty for violations; enforcement by Attorney General.

The department shall have the right to disclose information or records deemed private and confidential under this chapter to any private person or organization when such disclosure is necessary to permit private contracting parties to assist in the operation and management of the department in instances where certain departmental functions may be delegated to private parties to increase the department's efficiency or quality of service to the public. The private persons or organizations shall use the information or records solely for the purpose for which the information was disclosed and shall be bound by the same rules of privacy and confidentiality as department employees. The misuse or unauthorized release of records or information deemed private and confidential under this article by any private person or organization to which access is permitted by this Code section shall subject the person or organization to a civil penalty of $500.00 per violation and shall also subject such person or organization to the criminal provisions specified in Code Section 34-8-125. An action to enforce this Code section shall be brought by the Attorney General. The Attorney General may recover reasonable attorneys' fees for any action brought to enforce this Code section.

(Code 1981, § 34-8-127 , enacted by Ga. L. 1991, p. 139, § 1.)

34-8-128. Disclosure of information to contracting governmental or private organizations.

Where the department contracts to provide services to other governmental or private organizations, the department may disclose to those organizations information or records deemed private and confidential which have been acquired in the performance of the department's obligations under the contracts.

(Code 1981, § 34-8-128 , enacted by Ga. L. 1991, p. 139, § 1.)

34-8-129. Disclosure of information or records when identifying information deleted.

Nothing in this article shall prevent the disclosure of information or records deemed private and confidential under this article if all details identifying an individual or employing unit are deleted or the individual and employing unit consent to the disclosure.

(Code 1981, § 34-8-129 , enacted by Ga. L. 1991, p. 139, § 1.)

34-8-130. Prevention of fraud and abuse of the Unemployment Trust Fund.

  1. To enforce the provisions of this article and to prevent fraud and abuse of the Unemployment Trust Fund, the Commissioner or his or her duly authorized representative may submit to the state revenue commissioner the names and social security numbers of any individuals who are required to report earnings to the department along with the amount of earnings such individuals have reported to the department during specified time periods. The state revenue commissioner shall compare the submitted earnings of such individuals with income reported by such individuals to the Department of Revenue and shall verify and report back to the department that the submitted earnings of each such individual are either equal to, greater than, or less than the amount of income reported by each such individual to the Department of Revenue. Furthermore, the department may submit to the state revenue commissioner the name of any employer along with the number of employees who are being reported to the department by such employer during specified time periods. The state revenue commissioner shall compare such records submitted by employers to the department with the number of employees reported by each such employer to the Department of Revenue and shall verify and report back to the department that the number of employees reported to the department is either equal to, greater than, or less than the number of employees reported to the Department of Revenue for state income tax withholding purposes for the specified time period. The department shall pay the state revenue commissioner for all costs incurred by the Department of Revenue pursuant to this subsection. No report contemplated by this subsection shall be provided by the Department of Revenue to the department without a cooperative data sharing agreement executed by the two departments that is specific to the subject matter of this subsection. Any tax information secured from the federal government by the Department of Revenue pursuant to the provisions of Section 6103 of the Internal Revenue Code shall not be disclosed by the Department of Revenue pursuant to this subsection. Any person receiving any tax information under the authority of this subsection shall be subject to the provisions of Code Section 48-7-60 and to all penalties provided under Code Section 48-7-61 for unlawful divulging of confidential tax information, as well as the penalties provided under Code Section 34-8-125.
  2. Nothing in this Code section shall prevent the Department of Revenue or any other governmental agency from having access to records or information as provided for under Code Section 34-8-125 . (Code 1981, § 34-8-130 , enacted by Ga. L. 2016, p. 545, § 1/HB 904.)

Effective date. - This Code section became effective July 1, 2016.

ARTICLE 5 CONTRIBUTIONS AND PAYMENTS IN LIEU OF CONTRIBUTIONS

Administrative Rules and Regulations. - Overpayments, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Department of Labor, Employment Security Law, Unemployment Insurance Benefit Payments, § 300-2-4-.08.

Law reviews. - For survey article on local government law, see 34 Mercer L. Rev. 225 (1982).

34-8-150. Payment of contributions by employers; deferral of de minimis amounts.

  1. Contributions shall accrue from each employer for each calendar year in which the employer is subject to this chapter with respect to wages payable for employment, except as provided in Code Sections 34-8-158 through 34-8-162. Except as otherwise provided in this Code section, such contributions shall become due and be paid before the last day of the month next following the end of the calendar quarter to which they apply, in accordance with such regulations as the Commissioner may prescribe; provided, however, that with respect to employers as defined in paragraph (2) of subsection (a) of Code Section 34-8-33, the Commissioner shall provide by regulation that such contributions shall become due and be paid on an annual basis not later than such date as shall be prescribed by resolution of the Commissioner. Such contributions shall become delinquent if not paid when due and shall not be deducted, in whole or in part, from the wages of individuals in such employer's employ.
    1. For calendar quarters beginning on or after July 1, 2009, when the combined amount of contributions under this Code section and assessments under Code Section 34-8-180 or 34-8-181 due from an employer for any calendar quarter does not exceed $5.00, such amount may be regarded as a de minimis amount with respect to that calendar quarter.
    2. Payment of such de minimis amount for such calendar quarter, otherwise due before the last day of the month next following the end of the calendar quarter, may be deferred, at the option of the employer, until the January 31 reporting date next following, if the employer:
      1. Files all quarterly wage and tax reports, including a report of such de minimis amount due;
      2. Timely pays all other amounts due; and
      3. Makes full payment of any deferred de minimis amount by the January 31 report date next following.
    3. In the event that an employer fails to comply with paragraph (2) of this subsection, any such deferred de minimis amount shall become delinquent as of the date originally due under this Code section and Code Section 34-8-165, 34-8-180, or 34-8-181, as applicable, and the employer shall be subject to all the provisions thereof.
  2. In the payment of any contributions, a fractional part of a cent shall be disregarded unless it amounts to one-half cent or more, in which case it shall be increased to one cent. (Code 1981, § 34-8-150 , enacted by Ga. L. 1991, p. 139, § 1; Ga. L. 1995, p. 781, § 1; Ga. L. 2002, p. 1084, § 1; Ga. L. 2009, p. 139, § 2/HB 581.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1996, "commissioner" was capitalized at the end of the second sentence in subsection (a).

Editor's notes. - Ga. L. 2009, p. 139, § 1/HB 581, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Georgia Works Job Creation and Protection Act of 2009.'"

Law reviews. - For annual survey of law on labor and employment law, see 62 Mercer L. Rev. 181 (2010).

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under Ga. L. 1937, p. 806 and former Code 1933, § 54-650.2 are included in the annotations for this Code section.

"Person" construed. - It is clear that the "person" referred to in former Code 1933, § 54-650.2 (see now O.C.G.A. § 34-8-168 ) is not the employer because Ga. L. 1937, p. 806 (see now O.C.G.A. § 34-8-1 et seq.) contained other provisions which, in effect, made the employer personally liable for the tax by prohibiting the employer from deducting the taxes, in whole or in part, from the wages of the employees, and by providing for collection of the unpaid taxes from the employer. Thus, if the term "person" in former Code 1933, § 54-650.2 was construed to mean the "employer," the statute would be redundant. Brumby v. Brooks, 234 Ga. 376 , 216 S.E.2d 288 (1975), later appeal, 140 Ga. App. 210 , 230 S.E.2d 359 (1976) (decided under Ga. L. 1937, p. 806 and former Code 1933, § 54-650.2)

Collection from Chapter 7 debtor. - While the debtor was the responsible person for filing the debtor's employer's unemployment returns and paying unemployment taxes to Georgia's unemployment fund, because the debtor received discharge in the debtor's Chapter 7 case, any act to collect from the debtor a debt for unemployment taxes, interest and penalties with respect to wages paid by the employer was enjoined. Shaw v. Georgia (In re Shaw), Bankr. (Bankr. N.D. Ga. Apr. 2, 2014).

Relationship to bankruptcy laws. - Debtor was entitled to judgment that any debt the debtor owed for unpaid unemployment taxes was dischargeable because taxes that O.C.G.A. § 34-8-150(a) required employers to make did not constitute "tax required to be collected or withheld" within the meaning of 11 U.S.C. § 507(a)(8)(C) and, therefore, the unemployment taxes were not excepted from discharge. Shaw v. Georgia (In re Shaw), Bankr. (Bankr. N.D. Ga. Apr. 2, 2014).

Cited in Tucker v. Caldwell, 608 F.2d 140 (5th Cir. 1979).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes - In light of the similarity of the statutory provisions, opinions decided under Ga. L. 1937, p. 806 are included in the annotations for this Code section.

Nurses acting within scope of statutory authority. - It does not appear that licensed nurses (registered professional nurses or licensed practical nurses), acting within the scope of their statutory authority, are performing "domestic services" within the meaning of this chapter. 1980 Op. Att'y Gen. No. 80-34 (decided under former Ga. L. 1937, p. 806; see O.C.G.A. Ch. 8, T. 34).

RESEARCH REFERENCES

Am. Jur. 2d. - 76 Am. Jur. 2d, Unemployment Compensation, §§ 15, 18, 19.

C.J.S. - 81 C.J.S., Social Security and Public Welfare, §§ 286 et seq., 343, 357, 358.

ALR. - Receiver as within social security and unemployment compensation acts, 143 A.L.R. 984 .

Constitutionality, construction, and application of provisions of social security or unemployment compensation acts which vary rate of employers' contributions according to period in which business has been conducted, 163 A.L.R. 1148 .

34-8-151. Rate of employer contributions.

  1. For periods prior to April 1, 1987, or after December 31, 2022, each new or newly covered employer shall pay contributions at a rate of 2.7 percent of wages paid by such employer with respect to employment during each calendar year until the employer is eligible for a rate calculation based on experience as defined in this chapter, except as provided in Code Sections 34-8-158 through 34-8-162.
  2. For periods on or after April 1, 1987, but on or before December 31, 1999, each new or newly covered employer shall pay contributions at a rate of 2.64 percent of wages paid by such employer with respect to employment during each calendar year until the employer is eligible for a rate calculation based on experience as defined in this chapter, except as provided in Code Sections 34-8-158 through 34-8-162.
  3. For periods on or after January 1, 2000, but on or before December 31, 2016, each new or newly covered employer shall pay contributions at a rate of 2.62 percent of wages paid by such employer with respect to employment during each calendar year until the employer is eligible for a rate calculation based on experience as defined in this chapter, except as provided in Code Sections 34-8-158 through 34-8-162.
  4. For periods on or after January 1, 2017, but on or before December 31, 2022, each new or newly covered employer shall pay contributions at a rate of 2.64 percent of wages paid by such employer with respect to employment during each calendar year until the employer is eligible for a rate calculation based on experience as defined in this chapter, except as provided in Code Sections 34-8-158 through 34-8-162 . (Code 1981, § 34-8-151 , enacted by Ga. L. 1991, p. 139, § 1; Ga. L. 1996, p. 693, § 1; Ga. L. 1998, p. 1501, § 2; Ga. L. 1999, p. 449, § 2; Ga. L. 1999, p. 521, § 2; Ga. L. 2005, p. 1200, § 2/HB 520; Ga. L. 2006, p. 72, § 34/SB 465; Ga. L. 2011, p. 390, § 1/HB 292; Ga. L. 2016, p. 545, § 2/HB 904.)

The 2016 amendment, effective July 1, 2016, substituted "December 31, 2022" for "December 31, 2016" near the beginning of subsection (a); and added subsection (d).

Editor's notes. - Ga. L. 1999, p. 449, § 1, and Ga. L. 1999, p. 521, § 1, not codified by the General Assembly, provide that: "This Act shall be known and may be cited as the 'Workforce Reinvestment Act of 1999.'"

Law reviews. - For annual survey of labor and employment law, see 57 Mercer L. Rev. 251 (2005). For review of 1996 labor and industrial relations legislation, see 13 Ga. St. U.L. Rev. 217 (1996).

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statuory provisions, decisions under Ga. L. 1937, p. 806 are included in the annotations for this Code section.

Cited in National Trailer Convoy, Inc. v. Undercofler, 109 Ga. App. 703 , 137 S.E.2d 328 (1964); Massey v. Thiokol Chem. Corp., 368 F. Supp. 668 (S.D. Ga. 1973).

RESEARCH REFERENCES

Am. Jur. 2d. - 76 Am. Jur. 2d, Unemployment Compensation, §§ 15, 23.

C.J.S. - 81 C.J.S., Social Security and Public Welfare, §§ 286, 361 et seq.

ALR. - Construction and application of provision in Social Security or Unemployment Compensation Acts excluding from the basis of contribution remuneration in excess of a named amount paid to employee, 159 A.L.R. 1197 .

Constitutionality, construction, and application of provisions of Social Security or Unemployment Compensation Acts which vary rate of employers' contributions according to period in which business has been conducted, 163 A.L.R. 1148 .

Unemployment compensation: right of successor in business to experience or rating of predecessor for purpose of fixing rate of contributions, 22 A.L.R.2d 673.

Service charges, made by hotels or restaurants and later distributed to waiters or similar employees, as "wages" upon which federal or state unemployment taxes or contributions are required to be paid, 83 A.L.R.2d 1024.

Part-time or intermittent workers as covered by or as eligible for benefits under State Unemployment Compensation Act, 95 A.L.R.3d 891.

34-8-152. Standard rate.

  1. The standard rate of contribution shall be 5.4 percent. The standard rate of contribution is the rate from which variations therefrom are computed as provided in Code Section 34-8-155.
  2. No employer's rate shall be reduced below the rate for new employers as specified in Code Section 34-8-151 for any calendar year, except as provided in Code Section 34-8-155 , unless and until such employer's account could have been chargeable with benefit payments throughout the 36 consecutive calendar months ending on the computation date for that calendar year. (Code 1981, § 34-8-152 , enacted by Ga. L. 1991, p. 139, § 1.)

34-8-153. Liability of succeeding employer; computation of rate of contributions; transfers between employers with substantially common ownership, management, or control; transfers made for the purpose of obtaining a lower rate of contribution; penalties for violations.

  1. Subject to the provisions of subsections (g) and (h) of this Code section, any corporation, partnership, individual, or other legal entity who acquires by purchase, merger, consolidation, or other means substantially all of the trade, business, or assets of any employer and who thereafter continues the acquired trade or business shall be deemed to be a successor to the employer from whom the trade or business was acquired. The successor shall acquire the experience rating record of the predecessor except as otherwise provided in this Code section or in the rules and regulations of the Department of Labor. If the successor is not already an employer at the time of the acquisition, the rate of contributions applicable to the predecessor shall continue to be applicable to the successor; provided, however, if the existing rate of contributions of the predecessor exceeds the new employer rate as specified in Code Section 34-8-151, the successor shall be assigned a new employer rate of contributions; in such event, the experience of the predecessor shall not be considered for purposes of rate calculations and the successor shall be otherwise treated as a new employer.
  2. Subject to the provisions of subsections (g) and (h) of this Code section, if the successor is already an employer at the time of the acquisition, the rate of contributions applicable to the successor shall continue until the end of the quarter in which the acquisition occurred. The rate of contributions applicable to the successor beginning on the first day of the quarter following the acquisition will be determined by the combined experience of the predecessor and successor as of the applicable computation date; provided, however, the experience of the predecessor shall not be combined with that of the successor for purposes of rate calculation if the predecessor's rate of contributions immediately preceding the acquisition exceeded the rate already in effect for the successor; in such event, the experience of the predecessor shall not be considered for purposes of rate calculations unless this combination of experience results in a reduction of rates.
  3. Subject to the provisions of subsections (g) and (h) of this Code section, any employing unit which acquires by any means any clearly identifiable or separable portion of the trade or business of an employer and is an employer at the time of the acquisition or becomes an employer within six months from the end of the quarter in which the acquisition is made may be deemed to be a partial successor to the employer from whom the portion of the trade or business was acquired. A portion of the predecessor's experience rating records which are attributable to the portion of trade or the business which was acquired may be transferred to the successor. Mutual consent of both parties must be given to effectuate the partial transfer. The Commissioner shall prescribe by regulation the time frame for notification to the department of partial acquisitions and the method by which the portion of the experience rating record to be transferred will be determined.
  4. Subject to the provisions of subsections (g) and (h) of this Code section, if the conditions of subsection (c) of this Code section are met and the partial successor is not already an employer at the time of the acquisition, the rate of contributions applicable to the predecessor shall be applicable to the successor. Future rates will be determined by combining the transferred portion of the predecessor's experience rating record with the successor's own experience rating record as of the applicable computation date.
  5. Subject to the provisions of subsections (g) and (h) of this Code section, if the conditions of subsection (c) of this Code section are met and the partial successor is already an employer at the time of the acquisition, the rate of contributions applicable to the successor shall continue until the end of the quarter in which the acquisition occurred. The rate of contributions applicable to the successor beginning on the first day of the quarter following the acquisition will be determined by combining the transferred portion of the predecessor's experience rating record with the successor's own experience rating record as of the applicable computation date.
  6. Nothing in this Code section shall be construed to affect liens which are created pursuant to Code Section 34-8-167.
  7. Notwithstanding any other provision of this chapter to the contrary, effective July 1, 2006:
    1. If an employer transfers its trade or business, or any portion thereof, to another employer and, at the time of the transfer, there is substantially common ownership, management, or control of the two employers then the rate of contributions attributable to the predecessor shall be transferred to the successor employer to whom such business is so transferred. The rates of contributions of both employers shall be recalculated and made effective immediately upon the date of the transfer of the trade or business.
    2. Whenever the successor is not already an employer at the time of the acquisition, the unemployment experience of the acquired business shall not be transferred to the successor if the Commissioner determines that the successor acquired the business solely or primarily for the purpose of obtaining a lower rate of contribution. Instead, the successor shall be assigned the new employer rate under Code Section 34-8-151. In determining whether the trade or business was acquired solely or primarily for the purpose of obtaining a lower rate of contributions, the Commissioner shall use objective factors which may include the following:
      1. The cost of acquiring the trade or business;
      2. Whether the successor actually continued the business enterprise of the acquired trade or business;
      3. How long the acquired trade or business was continued; and
      4. Whether or not a substantial number of new employees were hired for the performance of duties unrelated to the business activity conducted by the predecessor prior to acquisition.
    1. Any person who knowingly violates or attempts to violate subsection (g) of this Code section or any other provision of this chapter related to determining the assignment of a rate of contributions or any person who knowingly advises another person in a manner that results in a violation of such provision shall be subject to the following penalties:

      (A) If the person is an employer, then such employer shall be assigned the highest rate assignable under this chapter for the rate year during which such violation or attempted violation occurred and the three rate years immediately following that rate year; provided, however, that if:

  8. The person's business is already at the highest rate; or (ii) If the amount of increase in the rate of contributions for such person would be less than 2 percent for such year, then a penalty rate of contributions of 2 percent of taxable wages shall be imposed for such year; (B) If the person is not an employer, such person shall be subject to a civil monetary penalty of not more than $5,000.00 per violation. Any such fine collected shall be deposited in the penalty and interest account established under Code Section 34-8-92 . (2) For the purposes of this subsection, the term "knowingly" means having actual knowledge of or acting with deliberate ignorance or reckless disregard for the prohibited act or omission. (3) For the purposes of this subsection, the term "violates or attempts to violate" includes, but is not limited to, intent to evade, misrepresentation, and willful nondisclosure. (4) For the purposes of this subsection, the term "person" shall have the meaning given such term by Section 7701(a)(1) of the Internal Revenue Code of 1986, as amended. (5) In addition to the penalty imposed by paragraph (1) of this subsection, any violation of this Code section may be prosecuted as a felony under Code Section 16-10-20 . (6) The Commissioner shall establish procedures to identify the occurrence of any transfer or acquisition of a business that violates any provision of this Code section.
    1. For the purposes of this Code section and administration of the Employment Security Law, the terms "trade, business, or assets" and "trade or business" shall include:
      1. The employer's work force or any part of the employer's work force; and
      2. Any part of the employer's trade, business, or assets, whether or not clearly identifiable or separable within the meaning of subsection (c) of this Code section. Tax liability under Chapter 7 of Title 48 shall not be affected by the definitions of "trade, business, or assets" and "trade or business" in this Code section. (Code 1981, § 34-8-153 , enacted by Ga. L. 1991, p. 139, § 1; Ga. L. 1995, p. 373, § 2; Ga. L. 1997, p. 888, § 1; Ga. L. 2005, p. 1200, § 3/HB 520; Ga. L. 2006, p. 72, § 34/SB 465; Ga. L. 2008, p. 324, § 34/SB 455; Ga. L. 2017, p. 774, § 34/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, substituted "provision of this chapter" for "provision in this chapter" in subsection (g).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2005, a colon was substituted for a period at the end of paragraph (h)(1) and "monetary" was substituted for "money" in subparagraph (h)(1)(B).

Law reviews. - For annual survey of labor and employment law, see 57 Mercer L. Rev. 251 (2005). For note discussing administrative records and reports of public employment agencies with emphasis on the critical role of the employer, and advocating a qualified, rather than absolute privilege placed on confidential employer reports, see 11 Mercer L. Rev. 345 (1960).

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under Ga. L. 1937, p. 806, and former Code Section 34-8-122 are included in the annotations for this Code section.

Cited in Schwob Mfg. Co. v. Huiet, 69 Ga. App. 285 , 25 S.E.2d 149 (1943); Cartersville Candlewick, Inc. v. Huiet, 204 Ga. 609 , 50 S.E.2d 647 (1948); Phillips v. J.L. Peed Co., 78 Ga. App. 471 , 51 S.E.2d 468 (1949); Caldwell v. Hospital Auth., 248 Ga. 887 , 287 S.E.2d 15 (1982).

RESEARCH REFERENCES

Am. Jur. 2d. - 76 Am. Jur. 2d, Unemployment Compensation, §§ 16, 28.

C.J.S. - 81 C.J.S., Social Security and Public Welfare, §§ 286 et seq., 343, 344, 357 et seq., 365.

ALR. - Constitutionality, construction, and application of provisions of social security or unemployment compensation acts which vary rate of employers' contributions according to period in which business has been conducted, 163 A.L.R. 1148 .

Constitutionality, construction, and application of provision of Unemployment Compensation Act subjecting to its provisions an employer purchasing or succeeding to the business of another employer, 4 A.L.R.2d 721.

Unemployment compensation: right of successor in business to experience or rating of predecessor for purpose of fixing rate of contributions, 22 A.L.R.2d 673.

Unemployment compensation: eligibility of employee laid off according to employer's mandatory reti