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Archive for the ‘Employment Law Blog – GA’ Category

Georgia Revamps Lactation Break Law for Private Employers and Creates a New One for Public Employers

Posted on: September 22nd, 2020

By: Tim Boughey

The Georgia state legislature recently weighed in on the issue of lactation breaks by passing “Charlotte’s Law.”  Before August 5, 2020, Georgia employers largely followed the federal Fair Labor Standards Act’s lactation break requirements to provide an employee with a reasonable amount of unpaid break time and a space to express milk as frequently as needed by the nursing mother, for up to one year following the birth of the employee’s child. The former Georgia lactation law (O.C.G.A. § 34-1-6) did not require much more than the FLSA – so it took a back burner to the federal requirements.

Now, Georgia public and private employers need to do more and comply with “Charlotte’s Law,” which is more robust than the FLSA in its requirements.  In short, Charlotte’s law requires most Georgia employers to provide reasonable break time to working mothers who desire to express breast milk at their worksite during working hours in a safe location near the employee’s workspace. Like the FLSA, restrooms do not satisfy the “safe location” requirement. Unlike the FLSA, Georgia’s law applies to all employees, requires PAID break time and includes no one-year time limit on granting of lactation breaks.  Charlotte’s Law requires employers to pay the employee at the employee’s regular rate for the lactation break. If an employee is salaried, employers cannot require employees to use paid leave for such breaks or reduce their salary because of the breaks.

The amended O.C.G.A. § 34-1-6 now applies to Georgia private employers with one or more employees. The law does create an undue hardship exemption for employers with fewer than 50 employees where compliance would cause significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the business.

For employers with teleworking or traveling employees, Charlotte’s Law does not require a paid lactation break for any employee working away from their worksite. But employers should continue to follow federal requirements.

Notably, Charlotte’s Law also created O.C.G.A. § 45-1-7, which applies the same rules to public employers, except public sector employers can avoid liability for making reasonable efforts to comply with Charlotte’s Law.

Here is the final legislation: http://www.legis.ga.gov/Legislation/20192020/195281.pdf.

If you have questions or would like more information, please contact Timothy Boughey at [email protected].

U.S. Department of Education Announces Temporary Halting of Wage Garnishments

Posted on: March 30th, 2020

By: Jeffrey A. Hord

On March 25, 2020, the Department of Education (DOE) announced that it will temporarily halt seizing wages and/or withholding tax refunds from borrowers who have defaulted on their student loans held by the federal government.  As part of the Trump Administration’s multifaceted response to the COVID-19 national emergency, the DOE has suspended any wage garnishments and stopped all requests to the U.S. Treasury Department to withhold money from defaulted borrowers.  The directive is retroactive to March 13, 2020, and will last for a period of at least sixty (60) days.  The DOE also instructed private collection agencies to stop all “proactive collection activities,” including making phone calls to borrowers and issuing collection letters and billing statements.

Employers who are responsible for properly processing wage garnishments should take note of this announcement.  In its official press release, the DOE emphasized that, while borrowers whose paychecks were being garnished will now be entitled to their full wage, it is the responsibility of the employer to make the necessary change to the employee’s paycheck:

“The Department must rely on employers to make the change to borrowers’ paychecks, so it will monitor employers’ compliance with the request to stop wage garnishment. Borrowers whose wages continue to be garnished after March 13 should contact their employers’ human resources department.”

While the directive unambiguously prohibits “new” wage garnishments, Social Security offsets, and collection actions, the DOE’s announcement leaves some room for doubt as to whether garnishments and offsets put into effect prior to March 13, 2020 are similarly impacted.  However, in a contemporaneous set of FAQ published on the DOE’s official Federal Student Aid website, the Department seemed to clearly signal its intent:

If your wages continue to be garnished after the president’s March 13, 2020, announcement, you should contact your employer’s human resources department. If DOE receives funds from your paycheck that should have been stopped as a result of the March 13 announcement, we will refund your garnished wages.

The good news for employers who make payments towards their employees’ outstanding student loans as a benefit of employment is that they can now do so tax-free until January 1, 2021, for up to $5,250 annually.

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis.  On April 2, we will discuss the impact of Coronavirus on law enforcement.  Click here to register.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients. Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the Coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments. For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER: The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19. The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement. We can only give legal advice to clients. Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG. An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest. As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such. We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

COVID-19 Prompts Georgia to Adopt Emergency Rules on Unemployment that Penalize Employer Non-Compliance

Posted on: March 23rd, 2020

By: Andrew Kim

In response to COVID-19, on March 16, 2020, the Georgia Department of Labor adopted emergency rules making it a requirement for employers affected by COVID-19 to file partial unemployment claims on behalf of their employees. Barring subsequent action from the Georgia Department of Labor, these emergency rules will remain in effect for 120 days.

Emergency Rule: Mandatory Filing for Employers

Emergency Rule 300-2-4-0.5, containing Rule 300-2-4-.09(1), requires employers affected by COVID-19 to file partial unemployment claims on behalf of their employees.  For Partial Unemployment Claims filed on or after March 15, 2020, Employers must do the following:

  • File all partial unemployment claims online via the Georgia Department of Labor’s Employer Portal;
  • File partial claims with respect to any week during which an employee works less than full-time due to a partial or total company shutdown caused by the COVID-19 public health emergency.

For any violation of these requirements, the employer must pay the Commissioner the full amount of benefits paid to the employee.

Excluded Employees

Based on the Georgia Department of Labor’s guidance, employers do not need to submit partial claims for employees who:

  • Will be paid for the temporary layoff period (e.g., paid salary, paid sick leave, paid vacation or paid family leave);
  • Are or were on scheduled leave prior to the layoff period (e.g., leave of absence or medical leave);
  • Were employed a temporary agency and are currently working at your place of business;
  • Were employed in another state in the last 18 months (those employees should be directed to apply for unemployment benefits online);
  • Were employed with the federal government or on active military service in the last 18 months (those employees should be directed to apply for unemployment benefits online).

Filing Partial Claims Online

 

To file a partial claim online, an Employer must be a registered user that has administrator or user privileges permitting them to submit partial claims through the Employer Portal.  Employers who are registered but are not permitted to file partial claims are directed to contact their Employer Portal administrator for assistance. Employers that are not registered on the Employer Portal must establish an Employer Administrator Account.

Steps to file partial claim on the Employer Portal:

  • Log into the Employer Portal
  • Select the employer account number under Registered Account
  • Select the File Partial Claims link under Common Links
  • Follow the on-screen instructions

Considerations When Filing:

The Georgia Department of Labor provides several points to consider when filing:

  • Employers must file a partial claim for each pay period. A week of partial unemployment consists of an employer’s established pay period week.
  • Once a pay period is established, it should remain the same.
  • Accurately report the employee’s name, social security number (SSN), and date of birth. They must match the Social Security Administration’s records.
  • There must be seven (7) days between payment week ending dates.
  • Do NOT submit claims until after the week ending date on the claim. The Georgia Department of Labor (GDOL) cannot accept claims filed prior to the week ending date on the claim.
  • Report any vacation pay, holiday pay, and/or earnings during the week in which it was earned, NOT during the week it was paid to the employee.
  • Report any additional income employees are receiving to the GDOL, except Social Security benefits, jury duty income, and pay for weekend military reserve duty.

Emergency Rule: Waiver of Work Search Requirements

Emergency rule 300-2-0.4, containing Rule 300-2-4-02., has waived all work search requirements for claims filed on or after March 14, 2020. This rule remains in effect until either the Governor declares the Public Health State of Emergency over or 120 days from the adoption of the emergency rule.

Additional information: 

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues every day for the next week. We will discuss the impact of Coronavirus for companies in general, but also for business in insurance, healthcare, California specific issues, cybersecurity, and tort. Click here to register.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients. Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the Coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments. For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER: The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19. The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement. We can only give legal advice to clients. Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG. An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest. As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce educational content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such. We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.** 

NLRB Finally Issues Its Long-Awaited Joint Employer Rule

Posted on: March 3rd, 2020

By: Justin Boron

In a pivotal move that could constrain collective bargaining among multiple businesses, the National Labor Relations Board (“NLRB”) last week issued its final rule for the joint employer test. It is the final step before the rule becomes effective on April 27, 2020.

The NLRB uses the joint employer test to determine whether a business is an “employer” subject to the NLRA.  And it answers the questions of whether a business is required to bargain with a union representing employees that it doesn’t directly employ and whether it can be liable for unfair labor practices that it did not itself apply.

To be a joint employer under the final rule, a business must possess and exercise substantial direct and immediate control over one or more essential terms and conditions of employment of another employer’s employees. The essential terms of employment include: wages, benefits, hours of work, hiring, discharge, discipline, supervision, and direction.

The final rule would restore the standard that pre-existed the 2015 Browning-Ferris decision.  Practically, it would allow businesses to organize their contractual relationships with further clarity and would minimize the chance of a business being forced to bargain with a unionized workforce at a partner business with which it has a relationship.  To learn more, check out the NLRB’s fact sheet here. https://tinyurl.com/vfqfxz5.

The Department of Labor also issued its final rule for the “joint employer” analysis, which goes into effect on March 16, 2020.  To learn more about this rule, check out our previous blog post. https://tinyurl.com/r7ez27j.

If you have questions or would like more information, please contact Justin Boron at [email protected].

Federal Court Temporarily Enjoins California’s Ban On Mandatory Arbitration Agreements

Posted on: January 7th, 2020

By: Brad Adler

Employers will recall that California passed a law in October, 2019 (AB 51) that would limit the ability of employers to require mandatory arbitration of certain statutory employment claims as of January 1, 2020.  Specifically, AB 51 provided that employers could no longer require, as a condition of employment, that a job applicant or employee arbitrate any alleged violation of the California Fair Employment and Housing Act or the California Labor Code.  After AB 51 was passed, a coalition of business groups led by the U.S. Chamber of Commerce filed a lawsuit seeking to block AB 51 from taking effect.

On December 30, 2019, Judge Kimberly Mueller of the Eastern District of California granted a temporary restraining order in response to that lawsuit, which effectively blocks AB 51 from going into effect until the Court holds a preliminary injunction hearing on January 10, 2020.  At the January 10 hearing, the Court will decide whether to grant a preliminary injunction that would block implementation of AB 51 until the case is fully resolved.  As a result of the Court’s temporary restraining order, at least as of right now, it still is lawful to continue requiring employees to sign arbitration agreements.  But please be aware that the lawsuit challenging AB 51 is moving quickly so employers with California employees should continue to monitor this lawsuit.

If you have any questions or would like more information, please contact Brad Adler at [email protected].