Employees Can Bring Guns to Work in Georgia—But Who is Liable if They Use Them? The Georgia Supreme Court Says the Employer May Be Liable.

By Kathleen Jennings (kjj@wimlaw.com)

The Georgia Supreme Court just complicated the issue of employee possession of guns in the workplace for Georgia employers. In Lucas v. Beckman Coulter, Inc., (Georgia Supreme Court Case No., No. S17G0541, 3/5/18), the Georgia Supreme Court held that OCGA § 16-11-135 (e) , which is part of the Business Security and Employee Privacy Act, (also affectionately known as the “Bring Your Guns to Work Law”) does not grant immunity “from firearm-related tort liability” to an employer who was sued for liability for the allegedly negligent acts of its employee under the theory of respondeat superior, and for the employer’s alleged negligent supervision.

The case involved an employee, Jeremy Wilson, who accidentally shot another employee, Claude Lucas, with his handgun while they were out on a customer call. Wilson normally kept his handgun in his car, but he took it with him on the customer call when he heard that there were a number of thefts from vehicles in the customer’s parking lot. The company had a policy prohibiting employees from transporting firearms while on company business.

At the time of the shooting, OCGA § 16-11-135 (e) read as follows:

No employer, property owner, or property owner’s agent shall be held liable in any criminal or civil action for damages resulting from or arising out of an occurrence involving the transportation, storage, possession, or use of a firearm, including, but not limited to, the theft of a firearm from an employee’s automobile, pursuant to this Code section unless such employer commits a criminal act involving the use of a firearm or unless the employer knew that the person using such firearm would commit such criminal act on the employer’s premises. Nothing contained in this Code section shall create a new duty on the part of the employer, property owner, or property owner’s agent. An employee at will shall have no greater interest in employment created by this Code section and shall remain an employee at will.

The trial court and the Court of Appeals found that this provision insulated the company from liability for Wilson’s shooting. The Georgia Supreme Court, however, disagreed. It held that this Code section does not immunize an employer for all damages arising out of an employee’s transportation, storage, possession, or use of a firearm. Instead, it held that “the intent of subsection (e) is to exempt employers from liability that might arise by complying with the Code section’s prohibition against maintaining a policy of searching an employee’s own vehicle (or those of guests) on the employer’s parking lot or its prohibition against conditioning employment on an employee’s agreement not to bring firearms into the parking lot in the employee’s own vehicle, even when they are locked out of sight by an employee who possesses a weapons carry license.” In other words, this statute insulates an employer from liability only for actions taken to comply with the law’s intent to allow employees to keep firearms in their locked vehicles free of the threat of a search or losing their job. That’s a big difference.

Bottom line: OCGA § 16-11-135 (e) does not give employers blanket immunity from liability for torts committed by their employees with guns.

Pro tip: In light of this new decision, Georgia employers should review their policies and practices regarding employee possession of guns in the workplace. Georgia law provides that employers cannot prohibit employees from bringing guns to work as long as the employees leave them locked in their private vehicles in the parking lot. However, private property owners in Georgia can prohibit people from bringing firearms onto their property. Keep in mind that the employee in this case was not on the employer’s premises but was out on company business, so those situations need to be addressed as well.

And remember: a written policy is no good unless the employer actually enforces it.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

Do You Know the Effect of the New Tax Law on the Tax Deductibility of Harassment Settlements?

By Kathleen Jennings (kjj@wimlaw.com)

I am not a tax lawyer, but I do need to concern myself with the general tax consequences of settlements of litigation that I handle on behalf of our clients. So I was fascinated to learn of in a little-known provision of the Tax Cuts and Jobs Act of 2017, a/k/a the new Tax Law (which was signed into law on December 22, 2017), that changes the tax consequences to employers of settlements in sexual harassment and sexual abuse cases. What does the New Tax Law change? It now prohibits tax deductions to companies for sexual harassment settlements that are confidential.

Under Section 13307 of the Tax Cuts and Jobs Act, employers no longer receive a business deduction for “(1) any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement, or (2) attorney’s fees related to such a settlement.” In plain English, this means that if an employer requires an employee to sign a nondisclosure agreement as a condition of a sexual harassment settlement, or the settlement agreement contains a confidentiality provision, then the employer cannot claim the settlement payment, nor the corresponding attorney’s fees as a business deduction. This provision applies to amounts paid or incurred after December 22, 2017.

Because the New Tax Law was hastily put together without anything in the way of public hearings, there are issues that will need to be resolved, such as:

  • What constitutes a “confidentiality provision?”
  • Can the parties separate out portions of a settlement payable to sexual harassment from those payable to other allegations to minimize the tax consequences?
  • Is the bar on deducting attorney’s fees “related to such a settlement or payment” to be read literally as meaning that only the fees relating to the settlement process are not deductible — as opposed to the fees incurred in all other aspects of the litigation that came before settlement?

One big question is whether this change in the tax law will act as a disincentive to employers to settle harassment cases. Companies may now balance the costs (including attorneys’ fees) of a trial (which will be tax deductible) against the lost tax deduction of a confidential settlement.

In all, this new law appears to be a heavy-handed approach to the recent publicity regarding sexual harassment and abuse and the #MeToo movement. Most of the time, companies insist upon confidentiality of settlements of harassment and other employment claims not to cover up bad behavior, but to prevent other employees and former employees from showing up to the company’s door with their hands out for money. And confidentiality benefits those employees who do not want to attract a bunch of newfound friends and relatives who also have their hands out for money.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

 

 

An Expensive Lesson in Religious Discrimination

By Kathleen Jennings (kjj@wimlaw.com)

A press release issued by the EEOC caught my eye this week because it involved the settlement of a lawsuit that would have been so easy to avoid. According to the press release, XPO Last Mile, Inc., a logistics company that specializes in the delivery of items such as office furniture, home furnishings and fitness equipment, will pay $94,541 and furnish significant relief to settle a federal religious discrimination lawsuit. What did this company do that resulted in the payment of an over $94,000 settlement? It rescinded a job offer to a Jewish employee who could not work on Rosh Hashanah.

According to the EEOC’s suit, XPO Last Mile’s operations manager offered an applicant a dispatcher/customer service position at its Elkridge, Md., office and told him his start date would be on Oct. 3, 2016. When the applicant told the operations manager he could not start work then because he celebrated the Jewish holiday Rosh Hashanah on that date, the operations manager replied that he thought it would be acceptable for the applicant to start on Oct. 4. Later that evening, however, the market vice president called and told the applicant that the company would not give him a religious accommodation.

The EEOC filed suit and alleged that XPO Last Mile violated federal law when it revoked its offer of employment because the applicant was unable to work on Rosh Hashanah due to his religious beliefs.

How could the company have avoided this lawsuit and the payment of an over $94,000 settlement? It should have given the employee the ability to not work on his religious holiday without the risk of losing his job. Even though he was newly hired, the employee was entitled to an accommodation of his sincerely held religious beliefs unless it would pose an undue hardship to the employer. It is hard to imagine that moving this guy’s start date one day due to a religious holiday would have been an undue hardship for the company. More likely, someone who is not well-versed in federal employment law got bent out of shape because a new hire was already “asking for a day off.” That person, and the company, have learned an expensive lesson.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

Religious Accommodation: What is Reasonable? The Tenth Circuit Rejects the EEOC’s Proposed Standard.

By Kathleen Jennings (kjj@wimlaw.com)

This week, the Tenth Circuit Court of Appeals issued a decision in a case that involves workers who cannot work on certain days for religious reasons, and how an employer should go about accommodating such religious practices. The case, Tabura v. Kellogg USA, 10th Cir., No. 16-4135 (January 17, 2018), was filed by two Kellogg USA workers, who are Seventh-day Adventists, who said they were fired for not working Saturday shifts. The accommodation offered by Kellogg was a policy that allowed them to swap shifts with other workers. However, Kellogg assessed disciplinary points against any employee who missed part or all of a scheduled work day without taking paid time off or trading shifts with another employee. The plaintiffs were unable to find workers who would swap shifts with them, and eventually, they were terminated for missing too much work.

The lower court granted summary judgment in favor of Kellogg, and the Tenth Circuit reversed.

The case caught the attention of the EEOC, and the EEOC filed a brief in support of the plaintiffs. In its brief, the EEOC argued that the accommodation offered by Kellogg was not reasonable, and it further argued that to be reasonable, an accommodation must “eliminate” the conflict between the employee’s religious practice and his work requirements. The Court rejected the EEOC’s proposed rule, finding instead that the question of whether an accommodation is reasonable must be made on a case-by-case basis, grounded on the specific facts presented by a particular situation. The Tenth Circuit remanded the case back to the district court because it was unclear whether Kellogg satisfied its obligation to accommodate the workers’ religious practices due to the disputed facts surrounding the difficulty the plaintiffs had in arranging voluntary swaps with other, qualified employees.

The takeaway: Title VII requires that an employer, short of undue hardship, make reasonable accommodations to the religious needs of its employees. “Accommodate . . . means . . . allowing the plaintiff to engage in her religious practice despite the employer’s normal rules to the contrary.” EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2032 (2015). This is not a “one size fits all” rule. Ultimately, reasonableness is a fact-specific determination.
Relevant factors may include the type of workplace, the nature of the employee’s duties, the identifiable cost of the accommodation in relation to the size and operating costs of the employer, and the number of employees who will in fact need a particular accommodation.

Some common methods of religious accommodation in the workplace include the following:

  • Scheduling Changes, Voluntary Substitutes, and Shift Swaps
  • Changing an employee’s job tasks or providing a lateral transfer
  • Making an exception to dress and grooming rules
  • Use of the work facility for a religious observance
  • Accommodations relating to payment of union dues or agency fees
  • Accommodating prayer, proselytizing, and other forms of religious expression

Ultimately, the determination of whether and how an employer can accommodate an employee’s sincerely held religious beliefs requires the balancing of many factors. We recommend that these decisions be made in consultation with qualified employment counsel.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

 

 

Has Your State’s Minimum Wage Gone Up in 2018?

By Kathleen Jennings (kjj@wimlaw.com)

2018 has brought an increase in the minimum wage in some states and municipalities. (Georgia is not one of those states, however.) Below are the states that have increased their minimum wage, and , in some cases, the tipped minimum wage, in 2018:

Old Old New for 2018 New for 2018
State Categories Minimum Wage Tipped Minimum Wage Minimum Wage Tipped Minimum Wage
Alaska $9.80 $9.84
Arizona $10.00 $7.00 $10.50 $7.50
California
(26 or more employees) $10.50 $11.00
(25 or fewer employees) $10.00 $10.50
Colorado $9.30 $6.28 $10.20 $7.18
Florida $8.10 $5.08 $8.25 $5.23
Hawaii $9.25 $8.50 $10.10 $9.35
Maine $9.00 $5.00 $10.00 $5.00
Michigan $8.90 $3.38 $9.25 $3.52
Minnesota
(Large employer (annual gross revenue of $500,000 or more)) $9.50 $9.65
(Small employer (annual gross revenue of less than $500,000)) $7.75 $7.87
Missouri $7.70 $3.85 $7.85 $3.925
Montana $8.15 $8.30
New Jersey $8.44 $6.31 $8.60 $6.47
New York
(NYC – more than 10 employees) $11.00 $7.50* $13.00 $8.70
(NYC – 10 or fewer employees) $10.50 $7.50 $12.00 $8.00
(Nassau, Suffolk, & Westchester Counties) $10.00 $7.50 $11.00 $7.50
(The rest of the State) $9.70 $7.50 $10.40 $7.50
Ohio $8.15 $4.08 $8.30 $4.15
Rhode Island $9.60 $3.89 $10.10 $3.89
South Dakota $8.65 $4.325 $8.85 $4.425
Vermont $10.00 $5.00 $10.50 $5.25
Washington $11.00 $11.50

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

OSHA Workplace Inspections Increase Slightly in 2017

OSHA

By Kathleen Jennings (kjj@wimlaw.com)

In fiscal 2017, Occupational Safety and Health Administration inspectors finished 32,396 inspections, according to agency data.  This is a slight increase from the 31,948 inspections completed in fiscal 2016 (which was the fewest inspections OSHA conducted in 20 years). In contrast, in both fiscal 2011 and 2012, OSHA conducted 40,600 inspections each year. So, while we saw a slight increase in the number of OSHA inspections this year, the overall number is still well below the peak Obama administration years.

What makes this slight increase in the number of OSHA inspections surprising is that OSHA has had to decrease its staff numbers due to a decline in its budget.  What seems to be happening is that OSHA has been concentrating its resources on the types of inspections that had the most impact, in terms of preventing fatalities, severe injuries, and work illnesses.

The industry that saw the greatest increase in inspections was construction, up 9% from 2016.  This may be due, in part, to a resurgence of construction in the economic recovery.

Due to a new fine structure, average fines were up in 2017.  The average fiscal 2017 fines were $65,228 for a willful violation, up 57 percent; $11,359 for a repeat violation, up 30 percent; and $3,553, for a serious violation, up 48 percent.

We expect to see a similar pattern for 2018.

We wish everyone a safe New Year!

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters.   She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.