The Buckley Brown Blog

Employers can terminate employees for any reason, except for illegal grounds, in “at-will employment” states such as Georgia.  However, whether an employee is entitled to unemployment benefits is a separate question. 

In general, employees who are terminated without cause (through no fault of their own) are entitled to unemployment benefits.  But employees are not entitled to unemployment benefits when fired “for cause.”   Therefore, employers should be sure to document the bases of for-cause terminations to successfully defend claims for unemployment benefits. 

Common reasons for terminating employees to disqualify them for unemployment benefits are listed below.  Suggestions for employers to successfully defend a claim for unemployment benefits as set forth under the Georgia Department of Labor Rules Chapter 300-2-9 also are included:

1.            Absenteeism or Tardiness

                Absenteeism or tardiness can significantly interrupt a company’s business and is a valid reason for terminating an employee “for-cause.”  Prior to doing so, an employer should be able to answer the following questions in the affirmative and, if possible, have documentation of the action taken:

·         Does the employer have a policy on absenteeism and tardiness?

·         Has the policy been communicated to the employee?

·         Has the employee been absent or tardy on prior occasions (prior to the occasion leading to the termination)?

·         Does the employer have a policy on notifying employees of problems with absenteeism or tardiness?

·         Has the employee been warned/notified about his/her problems with absenteeism or tardiness?

In addition to the above, the Commissioner of Labor also will consider the reasons for and the frequency of the absenteeism or tardiness to determine whether an employee was at fault in the discharge.

2.            Violation of Rules, Orders, Instructions, or Failure to Discharge Duties

                Employees who fail to follow rules or orders or to complete the job for which they were hired can not only hurt a company’s business, but also can affect company morale leading to additional problems.  This is a valid reason for terminating an employee “for cause.”  In terminating an employee for this reason, employers must be able to answer and document the following questions:

·         Were the rules, orders, instructions or duties clearly communicated to the employees prior to the incident leading to the termination?  If yes, how?  (It is best to have all expectations in writing.)

·         Did the employee violate the rules, orders, instructions, or duties?  (It is best to be able to point to a specific provision.)

·         Did the employee fail to discharge the duties for which the employee was hired?  (It is important to be able to identify the tasks with specificity.)

·         Was the violation or the failure to discharge the employee’s duties a result of the employee’s fault, intentional conduct, conscious neglect, or misconduct?

·         What was the extent of the violation or failure to discharge duties?

·         How severe was the impact of the violation or failure to discharge duties on the employer’s business?

3.            Property Loss or Damage

                While loss of or damage to property may be a valid reason to terminate an employee regardless of whether unemployment benefits will be owed, the employee’s unemployment benefits only will be disqualified when the loss or damage was the result of the employee’s intentional conduct and exceeded $2,000.00.

4.            Intentional Conduct Resulting in Bodily Injury

                An employee will not be entitled to unemployment benefits when the employee’s intentional conduct causes bodily injury to the employer, other employees, customers, patients, bystanders, or the eventual consumer of products.  The key factor in this analysis is whether the action was intentional; if it was not, the employee will be entitled to unemployment benefits.  Additionally, the Commissioner of Labor will consider the extent of the physical harm resulting from the conduct, the foreseeability of the injury, and other aggravating or mitigating circumstances, including whether the employee was warned about the conduct.  Further, employers must take a strict stand on terminating employees whose intentional conduct results in bodily injury because this action can lead to civil liability. 

5.            Physical Fights or Threatening Behavior

                As with intentional conduct resulting in bodily injury, it is important that employers have a zero tolerance policy with regard to physical fights or threatening behavior as this too can subject the employer to civil liability.  If an employee engages in physical fights or threatening behavior that is intentional and occurs on the employer’s premises or while the employee was working, the employee will not be eligible for unemployment benefits.  Additionally, the following questions should be considered and addressed:

·         Did the employee use a weapon?

·         Was anyone injured?

·         Was the employee provoked or threatened?

·         Had the employee been involved in fighting on the employer’s premises on prior occasions?  If so, had the employee been warned about fighting?

6.            Falsification of Employer Records

                Falsification of records by an employee, while difficult to detect, can be the basis for terminating  an employee “for cause.”  An employee who is terminated for falsifying information will not be entitled to unemployment benefits if the omission/misstatement was intentional and/or if the omission/misstatement was material.

                Keeping the above factors and issues in mind will help employers successful defend claims by terminated employees for unemployment benefits.  Of course, other considerations frequently factor into a decision to terminate an employee.  By no means should an employer retain a “problem” employee to avoid paying unemployment benefits; however, employees can never legally be terminated on the basis of race, sex, religion, color, or national origin. 

                The attorneys at Buckley Brown are available to assist you in defending unemployment claims and advising and defending other employment law claims.

 For more information, please contact Tim Buckley at (404) 633-9230.

On May 27, 2008, the United States Supreme Court ruled that race retaliation claims are allowable under 42 U.S.C. § 1981.  See CBOCS West, Inc. v. Humphries, __ S.Ct. ___, 2008 WL 2167860 (May 27, 2008).  While lower circuit courts have held § 1981 allows retaliation claims, this is the first decision from the U.S. Supreme Court on the issue.  This ruling will have a significant effect on the area of employment litigation because it conclusively establishes that individuals may bring claims of retaliation against employers under § 1981. 

As we explained in our February 29, 2008, blog, this decision is important because it allows employees to circumvent the strict time requirements of Title VII and confirms employers may be subject to retaliation claims, even if the employee did not follow the administrative procedures required by Title VII.  In Georgia, this means employers must watch for retaliation claims for two years from the alleged retaliatory action rather than only watching for an EEOC Charge within 180 days after the alleged retaliatory action and a lawsuit within 90 days after the issuance of a right-to-sue letter from the EEOC. 

The attorneys at Buckley Brown are available to assist you in preventing and defending retaliation and other employment discrimination claims, under both Georgia and federal law.

For more information, please contact T.K. Haff at (404) 633-9230.

Employers should keep their employees’ personnel file information private from those who have no reason to have the information, including statements related to terminations.  Such statements may constitute defamation, according to the Supreme Court of Georgia in the case of Scouten v. Amerisave Mortgage Corp., 283 Ga. 72 (2008).  

In Scouten, the Court held that the complaint sufficiently stated a claim for defamation, including the required element of publication, where a former employee alleged that defamatory statements relating to his termination were disseminated to coworkers who had no need for access to employee’s private personnel information. The court explained that to recover for oral defamation or slander, one must prove (1) the making of a slanderous statement; and (2) publication of the slander to anyone other than the person slandered.

The Scouten Court explained that when a communication is intra-corporate or between members of unincorporated groups or associations, there is no publication if the alleged defamatory statements are stated to those who have the duty or authority for the information. However, the intra-corporate exception to publication does not apply to defamatory statements disseminated to employees who have no reason to receive the information. 

For more information, please contact Tim Buckley at (404) 633-9230.

The United States Supreme Court is considering whether race retaliation claims are allowable under 42 U.S.C. § 1981.  The Supreme Court’s answer to CBOCS West, Inc. v. Humphries, Docket No. 06-1431, argued before the Court last week, could dramatically affect employment litigation. 

Currently, several federal statutes provide protection from racial discrimination.  The most well-known, Title VII of the Civil Rights Act of 1964, explicitly prohibits certain employers from retaliating against an employee who makes a claim for racial discrimination.  In contrast, while the federal statute at issue in CBOCS West, (§ 1981), protects individuals from racial discrimination, it does not explicitly permit retaliation claims.  Nevertheless, many federal courts have allowed individuals to bring retaliation claims under 42 U.S.C. § 1981.   

The differences between Title VII and § 1981 are significant.  Title VII imposes strict time requirements on employees asserting a retaliation claim.  For instance, a Georgia employee must report the alleged retaliation within 180 days of the discriminatory or retaliatory action with the EEOC and must file a lawsuit within 90 days of receiving a right to sue letter from the EEOC.  Additionally, only private employers, state and local governments, and education institutions that employ 15 or more individuals are subject to Title VII.  Finally, Title VII limits the amount of damages that can be awarded based on the employer’s size.  However, 42 U.S.C. § 1981 is not so restrictive.  Employees have several years to file a claim under 42 U.S.C. § 1981, it applies to all employers regardless of their size, and it does not limit the amount of damages that can be awarded.  Because it eliminates some of the limits of Title VII, § 1981 is an attractive provision for employees to use as a basis for a retaliation claim.   

The employer’s argument in CBOSC West is that retaliation claims should not be allowed under § 1981 because they were not explicitly included.  The employer also claims that allowing retaliation claims under § 1981 erodes the limitations of Title VII.  The employee contends that § 1981 is a broad protection of race-based discrimination, including retaliation, and that Title VII was meant to supplement § 1981.  At oral argument, the Court seemed concerned about the lack of explicit language in § 1981 allowing retaliation claims, leading some to speculate that the Court may prohibit retaliation claims under § 1981. 

The Court’s opinion should be published in a few months. 

The attorneys at Buckley Brown are available to assist you in preventing and defending retaliation and other employment discrimination claims.

For more information, please contact T.K. Haff at (404) 633-9230.

In a First Amendment Retaliation Case, an employee argues retaliation by an employer based on an employer’s action that is likely to harm the employee’s use of constitutionally protected speech. To prevail, the plaintiff must prove: (1) his speech was on a matter of public concern; (2) his First Amendment interest in engaging in the speech outweighs his employer’s interest in prohibiting the speech; and (3) his speech played a “substantial part” in the adverse employment decision. Speech is a matter of public concern when the employee speaks as a citizen, not an employee fulfilling official duties. If a person speaks as an employee, then there is no claim for First Amendment Retaliation. Garcetti v. Ceballos, __ U.S. ___, 126 S.Ct. 1951 (2006). Speech is made in fulfillment of official duties when it is made as part of the plaintiff’s role as an employee. Unprotected speech includes a district attorney’s memo criticizing the use of an affidavit to secure evidence, and a financial aid counselor’s reporting on fraudulent management and use of federal financial aid funds. It appears that a First Amendment Retaliation Claim will be successful only when the speech is outside the areas of the employee’s job responsibilities completely or when the statements are made in a public forum. Battle v. Board of Regents for the State of Ga., 468 F.3d 755 (11^th Cir. 2006); Springer v. City of Atlanta, WL 2246188 (N.D.Ga., 2006).

For more information, please contact Denny Brown at (404) 974 - 4571.