Employment Contract & Tort
Georgia is an “employment-at-will” state. This means that in the absence of an enforceable employment contract or violation of federal law or any anti-discrimination laws, employees in Georgia can be terminated at will. The rule is that an employment relationship, for an employee who was hired for an indefinite period of time, may be terminated at will by either party for a good reason, bad reason, or no reason at all. In fact, in Georgia, an employer’s policies and handbooks, and oral promises, do not create any exception to the “at will” doctrine. There are, however, certain contract and tort claims in Georgia that may provide recourse for employees who are unfairly terminated.
The primary types of employment contracts are:
A non-compete agreement, or a covenant not to compete, is an agreement under which the employee agrees not to enter into or begin a similar profession or job in competition against his or her employer.
A non-solicitation agreement is different from a non-compete. A non-solicitation agreement or provision restricts employees from soliciting customers or clients from their employer, rather than restricting the employee’s business activities after leaving employment with the employer. Also, unlike non-compete agreements, non-solicitation agreements do not have to place a geographic limitation on the employee, if the agreement is limited to the clients that the employee worked with while employed.
A confidentiality agreement, or non-disclosure agreement (NDA) is common in most employment contracts. A confidentiality agreement prevents an employee from sharing or using confidential information of the employer’s. Confidentiality agreements are usually in effect for the duration of an employee’s employment, and for a period of time after employment ends. Confidential information typically includes things such as proprietary information, trade secrets, customers lists, and strategic plans.
Commission, Bonus, and Other Agreements
Some employers enter into employment contracts with employees that establish the length of employment, compensation (including commissions and bonuses), and other benefits and permit termination only under specific conditions. If an employee has an enforceable employment contract and the employer violates its terms, she or he may pursue a breach of contract claim in Georgia. Where covered by contract, an employee may be entitled to recover post-termination commissions and/or bonuses.
In addition to contract claims, Georgia law recognizes several types of tort claims that employees may assert against their employer, or former employer, under certain circumstances.
Georgia law protects individuals from interference by third parties where the interference has been malicious, without any privilege or legal right, and results in the loss of a job and financial injury. When these claims succeed, it is usually because the person against whom the case is brought exceeded any authority he or she may have had in the workplace and acted maliciously out of some self-interest.
Intentional Infliction of Emotional Distress
Georgia law protects employees from intentional infliction of emotional distress. The proof necessary to succeed on such a claim, however, makes such claims difficult to prevail on. There must be proof that the employer is responsible for the conduct causing the distress and the conduct must have been extreme and outrageous. This means that the conduct must have been so insulting as to humiliate or scare someone to such an extreme as to go beyond all possible bounds of decency and to be regarded as atrocious, and utterly intolerable in a civilized community. Courts in Georgia have recognized a few employment circumstances that rise to this level. For example, such cases may include instances where there is a pattern of continuing behavior, such as harassment or where there is a retaliatory motive for the behavior. A bad performance review, rude or discourteous conduct, a demotion or termination, offensive language, stress, or other unpleasant workplace conditions typically are not sufficient to prove a claim for intentional infliction of emotional distress. In addition, an employee must show that he or she suffered severe emotional distress, which typically requires evidence of physical symptoms and/or medical evidence.
There are two types of defamation in Georgia: (1) libel, which involves false and malicious statements made in print, writing, pictures or signs that cause injury to one’s reputation; and (2) slander, which is oral or verbal statements made to another. In the employment setting, such claims are difficult because to be successful, a defamatory statement must be published to a third-party. If allegedly defamatory statements are merely made internally within the company where an employee works, they are almost always subject to the “intra-corporate privilege.” The means that the statements are not deemed to have been published to a third-party, as long as the persons who overhead the statements had a reason to know the information.
Georgia recognizes a number of different types of negligence claims that may be asserted against an employer where the harm is foreseeable; although, it must always be shown that the employer is responsible, either because it directed and approved of the conduct or ratified an employee’s actions. Some claims include negligent hiring and retention (where the employer knows or should have known an employee was not suited for the particular job). Georgia law requires that employers exercise ordinary care in the selection and retention of employees. Some other negligence claims that may be asserted against employers are claims for negligent training and negligent supervision.
Invasion of Privacy
Georgia law also recognizes several claims for invasion of privacy, such as: intrusion upon an employee’s seclusion or solitude, or private affairs; public disclosure of embarrassing private facts; publicity that places the employee in a false light in the public eye; and appropriation, for the employer’s advantage, of an employee’s name or likeness. Invasion of privacy claims are often complicated by employer’s policies that inform employees of a lack of privacy in the workplace and that internal disclosure of private facts may not be considered sufficient publication especially where made to individuals with a need to know.
In Georgia, false imprisonment is the unlawful detention of a person that deprives him or her of their personal liberty. The restraint must be against the employee’s will and be accomplished by either force or fear and may occur by actual physical restraint or by words or threats that produce a reasonable fear that physical force will be used against the employee. However, if an employee agrees to the restraint, for instance by remaining in a room in order to answer questions in the course of an investigation in order to discipline or to avoid termination, then courts have recognized that there is no imprisonment.
If you need more information about a possible employment claim, please contact Moeller Barbaree’s Atlanta attorneys for a free consultation at 404-692-5543, or use our convenient email form.