Articles Posted in Employment

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Yes, you as a worker in the United States have a right to work and be free from unlawful discrimination, even in the state of Georgia. Workers’ rights are governed by the Equal Employment Opportunity Commission (EEOC). While Georgia is a right to work state, this does not mean that the right to work status trumps the worker’s right to work without being subject to unlawful discrimination. Importantly, this right applies to immigrants, who are protected from employment discrimination by laws that are enforced by the EEOC.

The EEOC protects workers from unlawful discrimination and/or harassment based on their race, color, sex, religion, national origin, age, or physical or mental disability. To be subject to EEOC enforcement, employers must employ 15 or more employees (20 or more for age-based discrimination). There are many examples of unlawful discrimination in the work place that stem from a person’s national origin. For instance, the law prohibits discrimination based on a person associating with people of a national origin such as attending a specific place of worship, or because a worker’s spouse attends such a place of worship.

Another example would be unlawful discrimination based on a worker’s accent. Treating workers differently because they have a foreign accent is legal only if their accent materially interferes with being able to do the job properly. Generally speaking, if a person has a foreign accent, but is able to speak in English and be understood, they cannot be legally discriminated against by their employer. In the same vein, employer rules requiring that employees speak only english in the work place is generally considered unlawful by the EEOC unless the employer can show that it is justified for a compelling business reason.

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Most people seem to know that Georgia is an “at-will” employment state and that an employer can fire you for any reason at all. While this is true, the backdrop to this is that an employer can fire you for any reason at all, so long as that reason is not unlawful. What would constitute and unlawful reason? Well for starters, the U.S. Equal Employment Opportunity Commission (the “EEOC”) prohibits discrimination in the workplace based on age, disability, gender, national origin, pregnancy, race or color, retaliation, sexual harassment. While this list is not exhaustive, what is clear is that, even in a state like Georgia which has very little state-law protection for workers, the federal laws prohibit employers from discriminating against workers in the workplace. This prohibition against discrimination applies to all stages of the work process, from hiring, promotions, and firing.

Because Georgia goes out of its way to promote itself as an employer friendly state (mostly to attract businesses), some of the worst discrimination takes place here because employers mistakenly believe that our workers have little protection from this type of abuse. However, this is a mistake that employers who discriminate against their workers make at their own peril because the federal laws that protect all workers are alive and well, in Georgia and in any other state in the United States.

Age discrimination involves treating an applicant or employee less favorably because of his or her age. The Age Discrimination in Employment Act (ADEA) forbids age discrimination against people who are 40 years old or older. Disability discrimination occurs when an employer or other covered entity treats a qualified individual with a disability who is an employee or applicant unfavorably because he or she has a disability. Harassment is unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older, see above), disability or genetic information. Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Anti-discrimination laws also prohibit harassment against individuals in retaliation for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or lawsuit under the EEOC laws; or opposing employment practices that they reasonably believe discriminate against individuals, in violation of these laws. National origin discrimination involves treating workers  unfavorably because they are from a particular country or part of the world, because of ethnicity or accent, or because they appear to be of a certain ethnic background (even if they are not). Pregnancy discrimination involves treating a woman in the workforce unfavorably because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. Race discrimination involves treating a worker unfavorably because he or she is of a certain race or because of personal characteristics associated with race (such as hair texture, skin color, or certain facial features). Color discrimination involves treating someone unfavorably because of the color of their skin. The EEO laws prohibit punishing job applicants or employees for asserting their rights to be free from employment discrimination including harassment.  Asserting these rights is called “protected activity,” and it can take many forms. It is unlawful to harass a person because of that person’s sex. Harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.

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The City of Atlanta has an entire section in its municipal code relating to tree protection. Thomas Coffin used to be the Senior Arborist for the city. Then he reported that some of the arborists were not adhering to the ordinance, and found himself without a job

Mr. Coffin settled with the City of Atlanta today for $165,000 in damages, as well as attorneys fees and a consent order allowing the city to vest his pension rights. Coffin’s case is an example of whistleblowing. All too frequently, employees witness co-workers or supervisors engaged in activities that are harmful or unlawful. Reporting that activity is commonly known as whistle blowing. Frequently, those employees fear retaliation if they report what they’ve seen.
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On November 2, 2010, Georgia voters approved a constitutional amendment which allows for much stricter constraints of trade for Georgia workers. The new law allows Georgia courts to “blue pencil” restrictive covenants in employment contracts. In other words, no matter how onerous and restrictive an employer writes a non-compete clause or non-solicitation clause, it will now be enforced to the extent that the law allows. This changes the current law which calls for the entire restrictive covenant to be held unenforceable, if any portions of it were beyond the scope of what was permissible (either overly broad in time, geography or scope).

The new law is suspect because the drafters of Georgia House Bill 173 stated it would be effective on November 3, 2010. However, the Georgia Constitution states that the new laws such as this one must take effect on January 1 of the following year.
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Effective January 1, 2009, the Americans with Disabilities Act (“ADA”) was amended to broaden the number of workers who are protected by the ADA. Under the ADA, workers are “disabled” if they suffer from (1) an impairment that substantially limits one or more major life activities; (2) possess a record of such impairment; or (3) are regarded as having such an impairment.

While this definition has not changed, the amendment instructs the Courts to take a broader construction of this definition, which, in turn, should include more American workers who suffers from impairments. In addition, the amendment instructs the Courts to broaden the definition of “major life activity,” which, once again, should result in more Americans who suffer from significant impairments being protected under the ADA.

The amendments seem to be coordinated to broaden the number of workers covered by the ADA. A welcome relief in these trying economic times. Georgia workers should benefit from this relief, as every Georgia worker is entitled to safe and humane working conditions.