Georgia Code, Volume 26, 2012 Supplement

2012·13.8 MB·English

by  State of Georgia

OFFICIAL CODE OF GEORGIA
ANNOTATED
2012 Supplement
IncludingActs ofthe 2012 Regular Session ofthe General Assembly
Prepared by
The Code Revision Commission
The Office ofLegislative Counsel
and
The Editorial StaffofLexisNexis®
Published Under Authority ofthe State of Georgia
Volume 26
2008 Edition
Title 34. Labor and Industrial Relations
IncludingAnnotations to the Georgia Reports
and the GeorgiaAppeals Reports
Place in Pocket of Corresponding Volume of
Main Set
LexisNexis®
Charlottesville, Virginia
Copyright© 2009—2012
BY
The State of Georgia
All rights reserved.
ISBN 978-0-327-11074-3 (set)
ISBN 978-1-4224-4790-1
5014629
(Pub.41805)
THIS SUPPLEMENT CONTAINS
Statutes:
All laws specifically codified by the General Assembly ofthe State of
Georgia through the 2012 Regular Session ofthe General Assembly.
Annotations ofJudicial Decisions:
Case annotations reflecting decisions posted to LexisNexis® through
March 30, 2012. These annotations will appear in the following tradi-
tional reporter sources: Georgia Reports; Georgia Appeals Reports;
Southeastern Reporter; Supreme Court Reporter; Federal Reporter;
Federal Supplement; Federal Rules Decisions; Lawyers' Edition;
United States Reports; and Bankruptcy Reporter.
Annotations ofAttorney General Opinions:
Constructions ofthe Official Code ofGeorgiaAnnotated, prior Codes
ofGeorgia, Georgia Laws, the Constitution ofGeorgia, and the Consti-
tution of the United States by the Attorney General of the State of
Georgia posted to LexisNexis® through March 30, 2012.
OtherAnnotations:
References to:
Emory Bankruptcy Developments Journal.
Emory International Law Review.
Emory Law Journal.
Georgia Journal ofInternational and Comparative Law.
Georgia Law Review.
Georgia State University Law Review.
Mercer Law Review.
Georgia State Bar Journal.
Georgia Journal ofIntellectual Property Law.
American Jurisprudence, Second Edition.
American Jurisprudence, Pleading and Practice.
American Jurisprudence, ProofofFacts.
American Jurisprudence, Trials.
Corpus Juris Secundum.
Uniform Laws Annotated.
American Law Reports, First through Sixth Series.
American Law Reports, Federal.
Tables:
In Volume 41, a Table Eleven-A comparing provisions of the 1976
Constitution ofGeorgia to the 1983 Constitution ofGeorgia and a Table
Eleven-B comparing provisions of the 1983 Constitution of Georgia to
the 1976 Constitution ofGeorgia.
An updated version of Table Fifteen which reflects legislation
through the 2012 Regular Session ofthe General Assembly.
ill
Indices:
A cumulative replacement index to laws codified in the 2012 supple-
ment pamphlets and in the bound volumes ofthe Code.
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IV
TITLE 34
LABOR AND INDUSTRML RELATIONS
Chap.
1. General Provisions, 34-1-1 through 34-1-7.
2. Department ofLabor, 34-2-1 through 34-2-14.
8. Employment Security, 34-8-1 through 34-8-280.
9. Workers' Compensation, 34-9-1 through 34-9-421.
11 through 13. Reserved.
14. Georgia Workforce Investment Board, 34-14-1 through
34-14-5.
15. Reserved.
Appendix
Rules and Regulations ofthe State Board ofWorkers' Compensation.
CHAPTER
1
GENERAL PROVISIONS
Sec.
34-1-1. Redesignated.
34-1-1. Redesignated.
Reserved by Ga. L. 2012, p. 1144, § 7/SB 446, effective May 2, 2012.
—
Editor'snotes. Ga. L. 2012, p. 1144, ignated former Code Section 34-1-1 as
§ 6/SB 446, effective May 2, 2012, redes- present Code Section 25-15-110.
34-1-3. Discrimination against employee for attending a judi-
cial proceeding in response to a court order or process;
exception to applicability of Code section.
JUDICIAL DECISIONS
Employ—er failed to comply with ance, which was defined as: an employee
statute. Attendance rules in an em- wasnotanamedpartyintheproceedings,
ployer's handbook did not comply with and an employee was accompanying a
O.C.G.A. § 34-1-3 because the rules minor child or stepchild who has been
stated somewhat confusingly that an em- subpoenaed to testify as a witness; the
ployee was only protected for work ab- statute's protection is not limited to em-
sences due to a court required appear- ployees accompanying a minor child sub-
2012 Supp. 1
34-1-3 LABORAND INDUSTRIAL RELATIONS 34-2-6
poenaed to testify. Thomas v. HL-A Co., ingtomanagementthattheemployeewas
313 Ga. App. 94, 720 S.E.2d 648 (2011).— statutorilyentitledtobeexcusedsincethe
Sufficientevidenceofretaliation. employeewas attendingcourtpursuantto
Trial court erred in granting a former awitnesssubpoena;theemployerfailedto
employer's motion for summaryjudgment come forward with competent evidence
inaformeremployee'sactionallegingthat showing a proper reason for the termina-
the employer improperly termmated the ^ion, and the subpoena commanding the
f^^lTol f y^iol^tio^ .of OC.G.A employee to appear in court was facially
§ 34-l-3(a)^ for attending ajuvemle court ^^^^^ Thomas v HL-A Co., 313 Ga. App.
proceeding because the employee pre- g^ ^20 S E 2d 648 (2011)
sentedcompetentcircumstantial evidence ' ., , .' V xt n ^^^ ^ ^^•
from which a jury could infer that the ,^?'*f^l '^J'irQ^o^?^'^^^'
employeewasfiredinretahationforargu- ^^^' ^^^ S.E.2d 863 (2008).
34-1-7. Definitions; application for temporary restraining order
and injunction; requirements; hearing; notice and ser-
vice; notification of law enforcement agencies.
—
Lawreviews. Forarticle, "Georgia's EmployersAfterAll,"see 14(No. 7)Ga. St.
'Bring Your Gun to Work' Law May Not B.J. 12 (2009).
Have the Firepower to Trouble Georgia
CHAPTER
2
DEPARTMENT OF LABOR
Sec.
34-2-6. Specific powers and duties of
Commissioner.
34-2-6. Specific powers and duties of Commissioner.
(a) In addition to such other duties and powers as may be conferred
upon him by law, the Commissioner of Labor shall have the power,
jurisdiction, and authority:
(1) To superintend the enforcement ofall labor laws in the State of
Georgia, the enforcement of which is not otherwise specifically
provided for, and all rules and regulations made pursuant to this
title;
(2) To make or cause to be made all necessary inspections in order
to see that all laws and the rules made pursuant thereto which the
department has the duty, power, and authority to enforce are
promptly and effectively carried out;
(3) To make investigations, collect and compile statistical informa-
tion, and report upon the conditions oflabor generally and upon all
matters relating to the enforcement and effect ofthis chapter and of
the rules issued thereunder;
2 2012 Supp.
34-2-6 DEPARTMENT OF LABOR 34-2-6
(4) To make and promulgate such rules or changes in rules as he
may deem advisable for the prevention ofaccidents or the prevention
ofindustrial or occupational diseases in every employment orplace of
employment, and such rules or changes in rules for the construction,
repair, and maintenance of places of employment, places of public
assembly, and public buildings as he may deem advisable, to render
them safe. The Commissioner may appoint committees composed of
employers, employees, and experts to suggest rules or changes
therein;
(5) To do all in his power to promote the voluntary arbitration,
mediation, and conciliation of disputes between employers and em-
ployees and to avoid strikes, picketing, lockouts, boycotts, blacklist-
ing, discriminations, and legal proceedings in matters of employ-
ment. In pursuance of this duty, the Commissioner may appoint
temporary boards ofarbitration, provide necessary expenses ofsuch
boards, order reasonable compensation not exceeding $15.00 per day
for each member engaged in such arbitration, prescribe rules for such
arbitration boards, conduct investigations and hearings, publish in
print or electronically reports and advertisements, and do all things
convenient and necessary to accomplish the purpose ofthis chapter.
The Commissioner may designate a mediator and may, from time to
time, detail employees or persons not in the department to act as his
assistants for the purpose ofexecuting such provisions. Employees of
the Department ofLabor shall act on temporaryboards without extra
compensation. Nothingin this Code section or in this chapter shall be
construed to prohibit or limit in any way employees'rights to bargain
collectively;
(6) To supervise the business ofprivate employment agencies and
employment intelligence bureaus and as frequently as may be
necessary to examine into the condition of each such agency or
bureau;
(7) To exercise jurisdiction over such person, firm, or corporation
acting as an emigrant agent or agency, hereinafter referred to as
emigrant agent. As used in this paragraph, the term "emigrant
agent"means any person who shall solicit or attempt to procure labor
in this state to be employed beyond the limits of this state. The
Commissioner shall require each emigrant agent to make application
for license to do business, such application to be endorsed by two
taxpayers and accompanied by a bond of $1,000.00 for the faithful
performance ofduty and the payment ofsuch tax as may be required
by law; each emigrant agent must secure annually a license to do
business. Each emigrant agent shall make a daily report to the
Commissioner showingthe names, addresses, and number ofpersons
carried out ofthe state, the points to which they have been carried,
2012 Supp. 3
34-2-6 LABORAND INDUSTRIAL RELATIONS 34-2-6
the nature and character of work secured for them, the pay to be
received by them, and the fee charged them or to be collected and
from whom. The emigrant agent shall show clearly by whom em-
ployed, ifpaid a salary, or from whom he receives a commission, and
how much. The Commissioner shall inspect the office and work of
each emigrant agent as often as may be necessary; and if any
emigrant agent shall be found to be violating the law it shall be the
duty of the Commissioner immediately to proceed to have such
person presented to the proper authorities for prosecution and to
cancel the license to do business;
(8) To post or have posted at his discretion in a conspicuous place
in all state employment agencies throughout the state, the "Help
Wanted" advertisements from the Sunday editions ofthe two news-
papers with the largest circulation in each of the cities of Detroit,
Michigan; Chicago, Illinois; St. Louis, Missouri; NewYork, NewYork;
Pittsburgh, Pennsylvania; Baltimore, Maryland; Washington, D.C.;
Los Angeles, California; and San Francisco, California, so that
persons making application for employment through such agencies,
but unable to find employment in this state, may see what employ-
ment is available elsewhere. It shall be the further duty of the
Commissioner of Labor to assist, in any way possible, any person
making application for employment in the securing of a position in
some other state ifemployment is not available in Georgia for such a
person; and
(9) To initiate and continue to operate an ongoing educational
assistance program to include high school through graduate levels for
qualified Department ofLabor personnel.
(b) Upon a formal determination that a debt or obligation ofa former
employer who is no longer in business in the State of Georgia to the
Department ofLabor of$300.00 orless is uncollectable, orthatthe costs
of collection would equal or exceed the amount due such department,
the Commissioner of Labor shall execute and transmit to the state
accounting officer a certification which includes the following: a reca-
pitulation of the efforts made to collect the debt or obligation; an
estimate of the costs to pursue collection of the debt or obligation
administratively or judicially; such other information as may be re-
quired by the procedure developed by the Commissioner of Labor and
that complies with policies prescribed by the state accounting officer;
and a statement that further collection effort would be detrimental to
the financial interests of the state. The certification shall be made
under oath or affirmation and shall be sent to the state accounting
officer at such times as shall be prescribed in the procedure developed
by the Commissioner of Labor and the state accounting officer. Upon
receipt ofthe certification, the state accounting officer shall be autho-
4 2012 Supp.
34-2-6 LABOR ORGANIZATIONS, ETC. 34-6-6
rized to approve the removal of such uncollectable amounts from the
financial records ofthe Department ofLabor. (Ga. L. 1911, p. 133, §§ 2,
5; Ga. L. 1917, p. 88, § 1; Ga. L. 1920, p. 118, §§ 1, 2; Ga. L. 1931, p. 7,
§ 108; Code 1933, § 54-110; Ga. L. 1937, p. 230, § 9; Ga. L. 1945, p.
487, § 1; Ga. L. 1950, p. 9, § 3; Ga. L. 1958, p. 380, § 1; Ga. L. 1959, p.
283, § 7; Ga. L. 1974, p. 567, § 20; Ga. L. 1992, p. 1029, § 1; Ga. L.
2005, p. 694, § 32/HB 293; Ga. L. 2010, p. 838, § 10/SB 388.)
The 2010 amendment, effective June cally"inthe second sentence ofparagraph
3, 2010, inserted "in print or electroni- (a)(5).
34-2-10. Employer's duty with respect to provision of safe em-
ployment generally.
CHAPTER
6
LABOR ORGANIZATIONS AND LABOR RELATIONS
ARTICLE
1
GENERAL PROVISIONS
34-6-2. Use of force or threats to compel continuance in or
departure from employment.
RESEARCH REFERENCES
—
ALR. Increase, or promise of in- as unfair labor practice under state labor
creaseorwithholdingofincrease,ofwages relations acts, 34ALR6th 327.
34-6-6. Use of force or threats to compel or prevent labor
organization membership or to compel orprevent strike
participation.
RESEARCH REFERENCES
—
ALR. Increase, or promise of in- as unfair labor practice under state labor
creaseorwithholdingofincrease,ofwages relations acts, 34ALR6th 327.
2012 Supp.
T.34, C.6, A.2 LABORAND INDUSTRIAL RELATIONS 34-6-22
ARTICLE 2
MEMBERSHIP IN LABOR ORGANIZATIONS
34-6-21. Membership in or resignation from labor organization
as condition ofemployment or continuation ofemploy-
ment.
JUDICIAL DECISIONS
— —
No private right of action. Be- jected. Nothingshoweddefendantem-
cause O.C.G.A. § 34-6-21 did not provide ployer was directly involved in removing
a private remedy and was only a state- union workers from a preferred worker
mentofpublicpolicybythe State ofGeor- list; thus, a breach ofcontract claim filed
gia, plaintiff temporary Mexican farm by plaintiff temporary Mexican farm
workers' claim that the defendant em- workers,premisedonanimmigrationcon-
ployer discriminated against union mem- veyanceorder'spromisetocomplywithall
bers in recruiting and hiring the workers employment-related law, which included
in violation of O.C.G.A. § 34-6-21 failed. O.C.G.A. § 34-6-21, failed. Ramos-
R6a0m6oCsV-0B8a9r,ri2e0n1t0osU.S.vD.ist.BLlEaXndI,S 229N2o1. UB.aSr.riDeinstto.sLVE.XBIlSan2d2,92No1.(S6.0D6.CGVa0.8M9a,r.201120,
(S.D. Ga. Mar. 12, 2010).
Claim ofMexican farm workers re- 2010).
34-6-22. Payment to labor organization of fee or assessment as
condition of employment.
JUDICIAL DECISIONS
—
No violation of statute. When a andinthewakeofasettlementbeforethe
union operated a hiring hall where both National Labor Relations Board, the
members and nonmembers could obtain union chargedmembers andnonmembers
referrals for temporary work, the union's the same fee. Perryv. Int'l Longshoremen
charging of a referral fee did not violate Ass'n Local No. 1414, 295 Ga. App. 799,
O.C.G.A. § 34-6-22. The payment of the 673 S.E.2d 302 (2009).
fee was not a condition of employment,
2012 Supp.