There is a time-honored tradition in many households on Thanksgiving for everyone at the dinner table to tell one thing about which they are particularly thankful. I wanted to take this opportunity to thank my readers for their interest in my blog posts. I have made over 130 posts since starting this blog in June 2012. Hopefully, most of them have been of interest and helpful to my readers.
As noted on my Feedback/Suggestions page, this blog is an ongoing process and if you have any suggestions for topics of interest that you would like me to discuss or any constructive criticism that you would like to make about Georgia Agency Resource, please feel free to use the Comment box below to let me know what you think. So far, I have not received very many such comments. In the spirit of the season, I have chosen to believe that is because I have discussed topics of interest to Georgia insurance agents in a way that provides value to them in running their agencies. If that is not so, please let me know what I need to do to make that true.
BEST WISHES FOR A HAPPY THANKSGIVING FOR YOU AND YOUR FAMILY.
Last week I wrote about the laws that govern the firing of an employee and what steps an employer should take to protect itself from claims by a fired employee under the federal employment discrimination laws. Please see that post to determine whether your company is subject to those federal laws. If so, once you have decided to fire an employee, you should meet with him or her in private and have another management level person present to act as a witness. The meeting should be kept as short as possible and the employer should avoid getting into a discussion with the employee over the validity of the reason for their firing. After the meeting, what was said and done by the participants should be documented in a memo to the employee’s personnel file.
In deciding what reasons to give, the employer should keep in mind that it may be required to prove them if the employee decides to file a complaint with the Equal Employment Opportunity Commission. One reason is enough and it should be the most important and easily provable (i.e., best documented) one, but the employer should make it clear that other reasons also exist so as not to be limited to the reason given in its defense of any claim the employee may make. In order to avoid the possibility of a lawsuit by terminated employees, many employers offer to pay severance benefits in exchange for the employee signing a general release of all claims against the employer. To be enforceable, the employee must be given something of value that they are not otherwise entitled to receive and for the release of age discrimination claims, certain specific language must be included in the release document.
As noted in last week’s post, even those employers who are not subject to the federal employment discrimination laws would do well to follow the above employment termination procedure. If possible, before the employee leaves the employer’s premises, all employers should make sure that the terminated employee has returned all property belonging to the employer and the employer should take whatever steps are necessary to make sure that the employee no longer has access to its computer system and the ability to post items on its website or social media platforms.
At the termination meeting or as soon afterwards as possible, the employee should be given a completed and signed Separation Notice on the form required by the Georgia Department of Labor. That form requires the employer to, among other things, state the reason for the termination of the employee. That reason should be consistent with what the employee was told. In order for the employee to be denied the right to receive unemployment compensation, the reason on the form must be the knowing and intentional violation of an employer’s rule, order, or instruction and the employee must have known ahead of time that such a violation could result in the termination of their employment. This is a very heavy burden to meet and is made all the more difficult by the presumption in favor of granting unemployment benefits wherever possible.
Even if the employer has no objection to the terminated employee receiving unemployment benefits, it should respond to any written requests from the Georgia Department of Labor for information related to the employee’s claim for such benefits. Under a federal law that became effective in October 2013, if an employer fails to adequately and timely respond to such an information request for three separate unemployment benefit claims during any calendar year, they will be automatically charged for any subsequent benefit claims paid during that year, even if the payment of such claims is later reversed on appeal or an overpayment of benefits occurs.
I have gotten some calls recently on the Free Legal Service Program that I run for the Independent Insurance Agents of Georgia about how an employer should approach the firing of an employee. Many of my readers are probably aware that Georgia is an “at will” employment state. What this means is that, absent any agreement to the contrary, an employer is free to fire an employee at any time for any or no reason and an employee is free to quit his or her job at any time for any or no reason.
The above rule applies almost without qualification (there are limited state statutory exceptions to the rule and termination of employment for the assertion of rights under the Fair Labor Standards Act, the National Labor Relations Act, and the Occupational Safety and Health Act is prohibited for all employers subject to those acts) to any employer who has less than 15 employees of any kind (full-time, part-time, temporary, or seasonal) for 33 or more weeks out of the current and immediately preceding calendar years. If an employer has 15 or more employees for 20 or more calendar weeks in either the current or immediately preceding calendar year, they are covered by the federal employment discrimination laws. Those laws prohibit the taking of “adverse employment actions” based on race, color, sex, religion, national origin, pregnancy, and disability. Employers with 20 or more employees during either of the above time periods are also prohibited from taking such action based on the age of an employee.
For those employers who are subject to the federal employment discrimination laws, it is essential that there be a reason unrelated to the characteristics protected by federal law for their termination of an employee. Otherwise, the employee will be free to claim that they were fired because of such a characteristic. In addition to having a reason, the existence of that reason must be documented. Otherwise, it becomes a swearing contest between the employer and employee over why the termination occurred. This means that the employer should note in the employee’s personnel file any instances of improper conduct or failure to satisfactorily perform duties and should have and document meetings with the employee to discuss those problems and tell the employee what must be done to correct them. At these meetings, the employee should be informed of the consequences of their failure to satisfactorily correct the problems discussed, especially if one of those consequences is the termination of their employment.
By creating the above paper trail, an employer will be well-positioned to defend against any claim by the employee that they were fired for an illegal reason under the federal employment discrimination laws. Even employers who do not have to worry about those laws should follow the above procedure in terminating employees because it demonstrates fairness and a commitment on the part of the employer to do what it can to help its employees succeed in their jobs. That in turn should lead to increased employee morale and productivity.
It’s that time of year again. The general election voting day in Georgia is tomorrow, November 4. I reminded my readers in May that the same rules for giving employees time off to vote for general elections also apply to primary elections. If the experts are right, after tomorrow’s vote, we will have one or more run-off elections to look forward to in Georgia to which the following rules will also apply.
Georgia law requires an employer to give their employees up to two hours off to exercise their right to vote in any type of election. However, the law only applies if the employee’s normal working hours begin less than two hours before the polls open or end less than two hours before the polls close. Thus, if the employee’s normal working hours are 9 am to 5 pm, they are not entitled to receive time off to vote, if the polls open at 7 am or earlier and close at 7 pm or later, which is the case in most elections held in Georgia.
For those employers who are required to give their employee’s time off to vote, the employee is required to give the employer “reasonable notice” of their desire to take such time off, and the employer can specify the hours during which the employee can take that time off. If the employee is nonexempt (i.e., must be paid overtime for any hours worked in excess of 40 during any one work week), the employer does not have to pay the employee for the time taken off to vote. If the employee is exempt, the employer can not reduce their pay for the time taken off to vote, but may require the employee to use any paid time off available to the employee, if that paid time off is normally accounted for in increments that small.
All the experts are predicting very close races for the governor’s office and the U.S. Senate, which means that in those races, at least, every vote will count. All employers should encourage their employees to vote and should vote themselves, if they have not already done so.