GEORGIA: An Introduction to Georgia

Continuing into 2023, Georgia employers are still grappling with the new environment informed by COVID protocols, the war for talent and supply chain demands – a trifecta that has significantly increased the number of Georgia employers moving to remote and hybrid workforces. While the remote work trend has allowed employers to hire talent from all over the country, the benefit comes at a cost: Georgia employers are faced with navigating a multitude of state and local laws in which their remote workers sit. Many of these state and local laws, like those in California, Massachusetts and New York City, are complex and employee friendly – a far cry from the lack of state-specific employment laws Georgia employers have generally enjoyed. We highlight a few of these laws below (although they are only a start; many other areas, like family leave and paid sick time, need to be considered as well). Finally, moving beyond state and local laws, we would be remiss not to mention in this 2023 overview, the potential of Georgia’s non-compete law being undermined entirely by the currently pending federal rule that seeks to ban employee non-compete agreements.

Pay Transparency 

Although Georgia is not one of them (and perhaps never will be), certain states and localities have implemented pay transparency laws (including California, Colorado, Washington and New York City). These laws generally require employers to include pay range information in job listings, and the laws generally define a “job listing” broadly, essentially including any means of communicating that a position is open. Notably, these laws impact Georgia employers advertising remote jobs that could be performed anywhere (including a location with a pay transparency law). A remote job may fall within the scope of these state-specific laws when certain minimal triggering criteria are met (in Colorado, for example, having a single employee in the state subjects an employer to the Colorado pay transparency law, C.R.S.A. § 8-5-101(5)) – even if the employer is generally located outside of the state in question and even if the employer has no specific, upfront expectation of hiring remote workers in the state. Where these laws apply, failing to post the pay range information on the job listing may result in a violation that could cost the employer thousands, or tens of thousands, of dollars per occurrence. Further complicating the pay transparency issue is that an employer’s compliance with these statutes poses its own challenge: the creation of internal concerns about pay equity, potentially triggering the need for employers to conduct pay equity audits.

Reimbursement for Remote Worker Business Expenses

With more workers in states outside of Georgia, Georgia employers are facing reimbursement requests from their remote workers for items like cell phone/internet plans, computers, printers, office furniture or supplies. While nothing in Georgia would require such reimbursement, several other states and at least one large city have general employee reimbursement laws that either have been, or could be, applied to remote worker expenses (eg, California, Illinois, Indiana, New York, South Dakota and Seattle (Washington)). California’s general employee reimbursement statute has been the most expansively applied to remote workers to date. That said, even California’s law is not absolute, resulting in litigation over remote employee reimbursement issues. While California is the focal point of such litigation activity, the other jurisdictions’ general reimbursement statutes are similar to California’s statute, meaning these other jurisdictions may likewise start applying their statutes more regularly to remote worker scenarios.

Workplace Safety 

Gun laws are another area that are state specific, although this is one area where Georgia remains active in its state legislation. Most recently (in 2022), Georgia passed a law making it legal for Georgia gun owners to carry concealed handguns in public without a license (O.C.G.A. §§ 16-11-125.1, -126). Importantly, however, private Georgia employers can continue to implement rules banning weapons on their premises if the employer is the property owner or in control of the premises through a lease, rental agreement, licensing agreement, contractor or any other agreement to control access to private property (O.C.G.A. § 16-11-126). Implementing such rules may be attractive to employers considering available statistics. According to The Violence Project, current or former workplaces were the most common sites for mass shootings. Sharon Shahid & Megan Duzor, History of Mass Shooters, VOA News (June 1, 2021). The US Bureau of Labor Statistics recently reported there were 392 workplace homicides and 37,060 non-fatal workplace injuries intentionally inflicted by another in 2020. US Bureau of Labor Statistics, Workplace Violence: Homicides and Nonfatal Intentional Injuries By Another Person in 2020, TED: The Economics Daily (November 21, 2022). Employers wishing to enforce gun restrictions should consider comprehensive no-tolerance policies in their employee handbook and posting signs noting the prohibition of guns and other weapons near workplace entry points.

Non-compete Agreements 

Although still often referred to as the “new” non-compete law, Georgia’s Restrictive Covenant Act has been in place since 2011, the purpose of which was to make non-competes easier to enforce. That Act could be turned on its head, however, if the Federal Trade Commission’s (FTC) new proposed rule on non-competes were to be implemented. The proposed rule, issued on January 5, 2023, would ban any employer from having a non-compete with a worker and require employers to rescind all existing non-compete provisions within 180 days after the publication of a final rule. Unlike some federal employment laws, the FTC’s proposed rule would apply to any employer, regardless of the employer’s size (the only exception being the limited entities exempt from coverage under the Federal Trade Commission Act). Further broadening its scope is the proposed rule’s definition of a non-compete: It provides two examples of de fact non-compete clauses that include a non-disclosure agreement so broad it “effectively precludes the worker from working in the same field after the conclusion of the worker’s employment with the employer”, or a provision that requires a separated employee to repay training costs not reasonably related to the costs the employer incurred (Non-Compete Clause Rule, 88 Fed. Reg. 3482, 3535 (proposed Jan. 5, 2023) (to be codified at 16 C.F.R. pt. 910)). Of course, the proposed rule has a long road ahead of it. Even if the FTC issues a final rule after the public comment period concludes, the rule is subject to further government review, and, like we saw with the proposed COVID vaccination mandate rules, challenges via litigation are likely inevitable. Further, even if the rule were eventually implemented, it would likely be more limited in scope than the currently proposed rule. Regardless, any final rule would most likely threaten application of the Georgia Restrictive Covenant Act. Accordingly, Georgia employers with strong opinions about employee non-competes may consider submitting a comment to the FTC (as of the date of this article, the public comment period is scheduled to close on March 20, 2023).

(This summary is simply an overview. Employers in the state must remain vigilant about nationwide developments impacting their workforces.)