COVID-19 Resource Center

August 12, 2021

HIRING DO’s AND DON’Ts FOR PRIVATE EMPLOYERS IN GEORGIA

Prudent employers stay apprised of hiring policies, procedures, and protocol to remain legally compliant.  This article specifically discusses Georgia state laws for private employers.  All employers must remain aware of applicable federal laws.

To begin, private employers in Georgia must evaluate job applications for compliance with state laws.  Employment applications for a business with fifteen (15) or more employees that ask applicants to disclose race or ethnicity must provide “multiracial” as an option, and the designation “other” shall not be included on the application.  O.C.G.A. § 34-1-5 (2021).  Employers with one (1) or more employees must note on employment applications that smoking is illegal in all enclosed places of employment per state law. O.C.G.A. § 31-12A-5 (2021).  Employers with fifteen (15) or more employees must ensure that their applications do not indicate a preference for non-disabled employees; however, employers may make job-related inquiries about the “existence of [a] disability of an applicant for employment and about the extent to which that disability has been overcome by treatment, medication, appliances, or other rehabilitation.”  O.C.G.A. § 34-6A-4 (2021); Id. § 34-6A-3.

Private employers must also remain aware of Georgia laws regulating job references and background checks.  Any employer “engaged in business” is permitted to disclose information to a potential employer, including the employee or former employee’s job performance, an illegal act committee by the employee, and an ability or lack of ability to carry out duties of the job.  O.C.G.A. § 34-1-4 (2021).  Next, employers may obtain a criminal background check from the Georgia Crime Information Center for an applicant or employee if the employer provides fingerprints of the applicant or employee, as well as a signed consent form indicating the applicant or employee’s name, date of birth, address, and social security number.  O.C.G.A. § 35-5-34 (2021).  An executive order from 2015 prohibits state employers from using criminal records as an automatic disqualification from employment, but this does not apply to private employers.  Implementing “Ban the Box” Hiring Policies (February 23, 2015).  Thus, private employers may take adverse employment action against an applicant or employee with an unfavorable criminal record so long as the employer informs the applicant or employee as to the reason for the decision.  O.C.G.A. § 35-5-34 (2021).  Moreover, special rules apply for specific types of private employers.  For example, facilities such as nursing homes and home health agencies may not employ an applicant who appears on a registry check.  O.C.G.A. § 31-7-354 (2021).  Child care learning centers may not employ an applicant unless the applicant has a comprehensive satisfactory records check or had an unsatisfactory records check reversed.  O.C.G.A. § 20-1A-35 (2021).

There are also several areas that Georgia state law does not regulate in regard to private employment background checks.  For example, state law does not prohibit employers from running credit checks on applicants or employees.  Further, state law imposes no restrictions on an employer’s ability to check an applicant or employee’s social media sites.  Lastly, state law does not prohibit employment discrimination based on unemployment status.

Finally, private employers must consider pre-employment inquiries and testing.  In Georgia, private employers do not need a mandatory drug testing policy; however, employers may choose to implement a drug-free workplace program (DFWP) certified by the Georgia State Board of Workers’ Compensation.  Furthermore, private employers with ten (10) or more employees must use the federal work authorization program to verify employee eligibility for work in the United States.  O.C.G.A. § 30-60-6 (2021).

Private employers in Georgia should evaluate their hiring policies, procedures, and protocol for compliance with state law.  If there is a discrepancy between federal and state law, employers should follow federal law.

If you are in need of assistance in updating your hiring policies, procedures, and protocol, please contact one of the attorneys in our Employment Law Group at EmploymentLaw@c-wlaw.com or 1-888-488-2638.