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Archive for the ‘Employment Law Blog – GA’ Category

Federal Circuit Scorecard – Title VII & Sexual Orientation Discrimination

Posted on: October 13th, 2017

By: Michael M. Hill

A Georgia case is in the running to be the one the Supreme Court uses to resolve the question of whether Title VII of the Civil Rights Act of 1964 (which prohibits employment discrimination on the basis of sex and certain other characteristics) also includes discrimination on the basis of sexual orientation. The Supreme Court is widely expected to take on this issue at some point, but no one knows exactly when or which case it will be.

In Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017), a former hospital security guard alleged she was harassed and otherwise discriminated against at work because of her homosexual orientation and gender non-conformity.  While the trial court dismissed her case, the Eleventh Circuit Court of Appeals partially reversed.  The Eleventh Circuit held that Evans should be given a chance to amend her gender non-conformity claim, but it affirmed dismissal of her sexual orientation claim.

The issue, in most federal circuits, is a distinction between (1) claims of discrimination on the basis of gender stereotypes (e.g., for a woman being insufficiently feminine), which the Supreme Court has held is discrimination based on sex, and (2) claims of discrimination based on sexual orientation, which all but one federal circuit has held is not discrimination based on sex.

At present, this is how things stand now:

  • In the Seventh Circuit (which covers Illinois, Indiana, and Wisconsin), sexual orientation discrimination does violate Title VII.
  • In every other federal circuit, sexual orientation discrimination does not violate Title VII.
  • But no matter where you are, the U.S. Equal Employment Opportunity Commission (EEOC) takes the position that sexual orientation discrimination does violate Title VII.

To make matters more confusing, the full court of the Second Circuit (which covers New York, Connecticut, and Vermont) is considering whether to affirm its past position that sexual orientation is not protected by Title VII or to join the Seventh Circuit. In that case, the EEOC of course is arguing that sexual orientation is a protected category, but the U.S. Department of Justice has filed an amicus brief to argue that sexual orientation is not protected.  In the words of the Department of Justice, “the EEOC is not speaking for the United States.”

The long and short of it is that, until the Supreme Court weighs in, employers need to be mindful of the federal law as interpreted in their circuit, while also understanding that the EEOC enforces its position nationwide whether or not the local federal circuit agrees with it.

If you have any questions or would like more information, please contact Michael M. Hill at [email protected].

Whistling While You Work: Nurses’ Complaints about Internal Procedures Not Protected Under Georgia Whistleblower Act

Posted on: August 15th, 2017

By: Robyn M. Flegal

In late June 2017, the Georgia Court of Appeals held that expressions of general safety concerns do not rise to the level of activity protected by Georgia’s Whistleblower Statute – no matter how well-founded or well-intended.  The court reached its conclusion after considering a retaliation action brought by two nurses who were terminated after they voiced concerns to their supervisors about the way a Georgia healthcare provider staffed its shifts (one of the nurses raised her issues after a patient attempted suicide). The hospital, however, cited failure of the nurses to perform their assigned shifts as the reason for their terminations.

Georgia’s Whistleblower Statute prohibits public employers from (1) retaliating against a public employee for disclosing a violation of or noncompliance with a law, rule, or regulation to either a supervisor or a government agency; or (2) retaliating against a public employee for objecting to, or refusing to participate in, any activity, policy, or practice of the public employer that the public employee has reasonable cause to believe is in violation of or noncompliance with a law, rule, or regulation.

The Court decided that the trial court properly granted summary judgment to the defendant healthcare provider because the nurses’ complaints concerned only internal operating procedures. The women’s whistleblower action failed because they were unable to demonstrate that they disclosed a violation of a law, rule, or regulation to a supervisor or objected to participating in an activity they thought violated the same.

Public employers should be well aware of Georgia’s Whistleblower Statute and what constitutes protected activity thereunder. For more information, contact Robyn Flegal at [email protected].

Georgia Firefighter Standards & Training Council Issues Proposed Amendments to Rules for Cancer Insurance Coverage

Posted on: July 31st, 2017

By: Pamela F. Everett

On July 14, 2017, we published a blog regarding House Bill 146 which amended O.C.G.A. §25-3-23 to provide cancer insurance coverage to fire fighters. This Bill, which becomes effective January 1, 2018, requires that all Georgia cities, counties and private companies with legally organized fire departments purchase and maintain cancer insurance coverage for firefighters.   In this blog, we noted that the Georgia Firefighter Standards & Training Council (GFSTC) had been authorized to adopt rules and regulations as necessary to implement the provisions of this new Code section and to establish and modify the minimum requirements for all fire departments operating in Georgia.

On July 19, 2017, GFSTC issued its proposed changes to its 2016 Rules & Regulations, specifically, Section 205-1-2-.02 Minimum Requirements for Fire Departments, for comment to fire departments throughout the state.

The proposed changes are as follows:

  1. All legally organized fire departments are required to purchase and maintain coverage in compliance with O.C.G.A. §25-3-23(b);
  2. All cities and counties using Association of County Commissioners of Georgia and Georgia Municipal Association for insurance coverage are required to provide proof of insurance coverage for all personnel;
  3. All departments using other insurance carries or means of being self-insured shall provide a copy of the policy, council/commission resolution or other proof of coverage; and
  4. All GFSTC Compliance Packages must now contain a copy of an insurance certificate or other proof of coverage that complies with O.C.G.A. §25-3-23(b).

We will continue to keep you apprised of developments in this area as they occur. In the meantime, if you have any questions or would like more information, please contact Pamela Everett at [email protected] .

Georgia Passes New Sick Leave Law

Posted on: May 31st, 2017

By: Brad Adler

As spring was rolling into Atlanta, so was momentum for the Georgia legislature to pass a new sick leave law for Georgia employers. Finally, in late March, Georgia passed SB 201, which requires employers who offer sick leave to allow employees to use their sick leave to care for immediate family members. The new law only applies to employers who employ 25 or more employees (but excludes employers who offer an employee stock ownership plans) are excluded and to employees who work at least 30 hours per week.

In short, the law requires covered employers to allow up to five days of existing sick leave per year to be used by employees to care for “immediate family members,” which includes employees’ children, spouses, parents, grandchildren, grandparents, and dependents. Please note, however, that the law does not extend the amount of sick leave employees may earn or accrue, nor does it require employers to modify sick leave policies other than to allow some of that leave to be used to care for immediate family members. Practically speaking, this new leave law serves as a mini-FMLA since employees can use sick leave to care for immediate family members. But for those employers who simply have one PTO bank, this new law should not have any real impact as employees would have been able to use PTO to care for a family member prior to this law going into effect.

The law does not create a new cause of action against employers, so it is difficult to predict how violations of the law will be enforced (if enforced at all). Furthermore, the law is slated to expire after three years, unless it is renewed by the General Assembly. The law will go into effect on July 1, 2017. 

For any questions, please contact Brad Adler at [email protected].

Trump Has Opportunity to Appoint 4 Judges to Federal Bench in Georgia

Posted on: March 31st, 2017

By: Amanda M. Cash

While the national media is focused on President Trump’s appointees for positions such as Labor Secretary and the Supreme Court, Georgia employers may not realize that President Trump has the opportunity to make a direct impact on the Georgia legal scene.

There are several vacant positions on the Georgia federal bench that will likely be filled by President Trump’s nominees at some point in the future. As of March 31, the Northern District of Georgia has two vacancies, while the Middle and Southern District have one vacancy each. Like Supreme Court justices, the president nominates individuals to fill those open federal judgeships, subject to confirmation by the Senate.

Why does this matter to Georgia employers? In the unfortunate event your company is sued by a current or former employee for violations of federal employment laws, the case will likely be heard in federal court by federal judges.  Georgia employers should keep an eye on who is nominated to these vacant federal judgeships as these judges could be ruling on your case in the event you are sued by an employee. We will keep you updated as more information comes available about potential nominees. 

For any questions, please contact Amanda Cash at [email protected].