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title-34•Title 34 — Labor and Industrial Relations
Official Code of Georgia Annotated — Title 34. Labor and Industrial Relations
Snapshot of the Georgia code as mirrored by FindLaw, current as of 2024-03-28.
(a) No person, firm, association, or corporation carrying on or conducting within this state any business requiring the employment of labor shall refuse to hire, employ, or license nor shall such person, firm, association, or corporation bar or discharge from employment any individual between the ages of 40 and 70 years, solely upon the ground of age, when the reasonable demands of the position do not require such an age distinction, provided that such individual is qualified physically, mentally, and by training and experience to perform satisfactorily the labor assigned to him or for which he applies. Nothing in this Code section shall affect the retirement policy or system of any employer where such policy or system is not merely a subterfuge to evade the purposes of this Code section. When the retirement or insurance benefit program of any employer shall prohibit the employment of any person because of excessive age, such person shall have the authority, as a condition of employment, to waive the right to participate in any such program and receive any benefits therefrom. Nothing in this Code section shall be construed to prohibit compulsory retirement of any employee who has attained 65 years of age but not 70 years of age and who, for the two-year period immediately before retirement, is employed in a bona fide executive or a high policy-making position, if such employee is entitled to an immediate nonforfeitable annual retirement benefit from a pension, profit-sharing, savings, or deferred compensation plan, or any combination of such plans, of the employer of such employee, which equals, in the aggregate, at least $27,000.00.
(b) Any person or corporation who violates any provision of subsection (a) of this Code section shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than $100.00 nor more than $250.00.
(a) It shall be unlawful for any employer or the agent of such employer to discharge, discipline, or otherwise penalize an employee because the employee is absent from his or her employment for the purpose of attending a judicial proceeding in response to a subpoena, summons for jury duty, or other court order or process which requires the attendance of the employee at the judicial proceeding. It shall be unlawful for any employer or the agent of such employer to threaten to take or communicate an intention of taking any action declared to be unlawful by this subsection.
(b) Any employer or agent of such employer who violates subsection (a) of this Code section shall be liable to the injured employee for all actual damages thereby suffered by the employee and for reasonable attorney's fees incurred by the employee in asserting a successful claim under this Code section.
(c) This Code section shall not apply to an employee who is charged with a crime, nor shall it prohibit an employer from requiring an employee to abide by regulations requiring reasonable notification to an employer of the employee's expected absence or delay in reporting to work in order to attend a judicial proceeding.
(a) As used in this Code section, the term:
(1) “Employee” means any person who is employed by an employer described in paragraph (2) of this subsection.
(2) “Employer” means any individual engaged in a business, corporation, S-corporation, limited liability company, partnership, limited liability partnership, sole proprietorship, association, or government entity.
(b) An employer as defined in subsection (a) of this Code section or any person employed by an employer and designated as the employer's representative who discloses factual information concerning an employee's or former employee's job performance, any act committed by such employee which would constitute a violation of the laws of this state if such act occurred in this state, or ability or lack of ability to carry out the duties of such job to a prospective employer of such employee or former employee upon request of the prospective employer or of the person seeking employment is presumed to be acting in good faith unless lack of good faith is shown by a preponderance of the evidence, unless the information was disclosed in violation of a nondisclosure agreement or the information disclosed was otherwise considered confidential according to applicable federal, state, or local statute, rule, or regulation.
(a) As used in this Code section, the term “multiracial” means having parents of different races.
(b) All written forms, applications, questionnaires, and other written documents or materials produced by or for or used by any person, firm, association, or corporation conducting business within this state requiring the employment of labor which request information on the racial or ethnic identification of an employee and which contain a list of racial and ethnic classifications from which such employee must select one shall include among their choices the classification “multiracial.”
(c) No such written document or computer software described in subsection (b) of this Code section shall bear the designation “other” as a racial or ethnic classification after July 1, 1994, unless such document was printed and in stock before July 1, 1994.
(d) The failure of any person, firm, or corporation to comply with the provisions of this Code section shall not be construed to create any civil cause of action.
(a) As used in this Code section, the term “employer” means any person or entity that employs one or more employees; provided, however, that such term shall not include the state and its political subdivisions.
(b)(1) An employer shall provide break time of a reasonable duration to an employee who desires to express breast milk at the worksite during work hours.
(2) Any break time provided for under this Code section shall be paid at the employee's regular rate of compensation. If the employee is paid on a salary basis, the employer shall neither require the salaried employee to use paid leave during any break time nor reduce the employee's salary as a result of the salaried employee taking a break to express breast milk during the workday.
(3) No employer shall be required to provide paid break time to an employee on any day that the employee is working away from any of the employer's worksites.
(4) The employer shall provide a private location, other than a restroom, where such employee can express breast milk in privacy at the worksite.
(c) An employer that employs fewer than 50 employees shall not be subject to any requirement of this Code section that would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer's business.
(a) As used in this Code section, the term:
(1) “Course of conduct” means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose including following or stalking an employee to or from the place of work; entering the workplace of an employee; following an employee during hours of employment; telephone calls to an employee; and correspondence with an employee including, but not limited to, the use of the public or private mails, interoffice mail, facsimile, or computer e-mail.
(2) “Credible threat of violence” means a knowing and willful statement or course of conduct which would cause a reasonable person to believe that he or she is under threat of death or serious bodily injury, and which is intended to, and which actually causes, a person to believe that he or she is under threat of death or serious bodily injury, and which serves no legitimate purpose.
(3) “Employer” means any person or entity that employs one or more employees and shall include the State of Georgia and its political subdivisions and instrumentalities.
(4) “Unlawful violence” means assault, battery, or stalking, as prohibited by Code Section 16-5-20, 16-5-21, 16-5-23, 16-5-23.1, 16-5-24, 16-5-90, or 16-5-91, but shall not include lawful acts of self-defense or defense of others.
(b) Any employer whose employee has suffered unlawful violence or a credible threat of violence from any individual, which can reasonably be construed to have been carried out at the employee's workplace, may seek a temporary restraining order and an injunction on behalf of the employer prohibiting further unlawful violence or threats of violence by that individual at the employee's workplace or while the employee is acting within the course and scope of employment with the employer. Nothing in this Code section shall be construed as authorizing a court to issue a temporary restraining order or injunction prohibiting speech or other activities that are protected by the Constitution of this state or the United States.
(c)(1) Except for proceedings involving a nonresident respondent, the superior court of the county where the respondent resides shall have jurisdiction over all proceedings under this Code section.
(2) For proceedings under this Code section involving a nonresident respondent, the superior court where the petitioner's workplace is located shall have jurisdiction, where the act involving unlawful violence or a credible threat of unlawful violence meets the elements for personal jurisdiction provided for under paragraph (2) or (3) of Code Section 9-10-91.
(d) Upon filing a petition with the court for an injunction pursuant to this Code section, the petitioner may obtain a temporary restraining order if the petitioner also files an affidavit which, to the satisfaction of the court, shows reasonable proof that an employee has suffered unlawful violence or a credible threat of violence by the respondent and that great or irreparable harm shall result to an employee if such an injunction is not granted. The affidavit shall further show that the petitioner has conducted a reasonable investigation into the underlying facts which are the subject of the petition. A temporary restraining order granted under this Code section shall remain in effect, at the court's discretion, for a period not to exceed 15 days, unless otherwise modified or terminated by the court.
(e) Within ten days of filing of the petition under this Code section or as soon as practical thereafter, but in no case later than 30 days after the filing of the petition, a hearing shall be held on the petition for the injunction. In the event a hearing cannot be scheduled within the county where the case is pending within the 30 day period, the same shall be scheduled and heard within any other county of the circuit. The respondent may file a response which explains, excuses, justifies, or denies the alleged unlawful violence or credible threat of violence or may file a cross-complaint under this Code section. At the hearing, the judge shall receive any testimony that is relevant and may make an independent inquiry. If the judge finds by clear and convincing evidence that the respondent engaged in unlawful violence or made a credible threat of violence, an injunction shall issue prohibiting further unlawful violence or threats of violence at the employee's workplace or while the employee is acting within the course and scope of employment with the employer. An injunction issued pursuant to this Code section shall have a duration of not more than three years. At any time within the three months before the expiration of the injunction, the petitioner may apply for a renewal of the injunction by filing a new petition for an injunction pursuant to this Code section.
(f) Upon the filing of a petition for an injunction pursuant to this Code section, the respondent shall be personally served with a copy of the petition, temporary restraining order, if any, and notice of hearing on the petition.
(g) The court shall order the petitioner or the attorney for the petitioner to deliver a copy of each temporary restraining order or injunction, or modification or termination thereof, granted under this Code section, by the close of the business day on which the order was granted, to the law enforcement agencies within the court's discretion as are requested by the petitioner. Each appropriate law enforcement agency shall make available information as to the existence and current status of these orders to law enforcement officers responding to the scene of reported unlawful violence or a credible threat of violence.
(h) Nothing in this Code section shall be construed as expanding, diminishing, altering, or modifying the duty, if any, of an employer to provide a safe workplace for employees and other persons.
(a) As used in this Code section, the term:
(1) “Employer” means any person engaged in business and having one or more employees, but does not include the federal government, state, or any political subdivision of the state.
(2) “Veteran” means an individual who served on active duty in the armed forces of the United States and was honorably discharged from such service.
(3) “Veterans' preference employment policy” means any employer's policy of preference in hiring, promoting, or retaining a veteran over any other qualified applicant or employee.
(b) Any employer may create and use a veterans' preference employment policy, which shall be in writing and applied uniformly to employment decisions regarding hiring, promotion, or retention during a reduction in force.
(c) An employer's use of a veterans' preference employment policy as provided for in this Code section shall not constitute a violation of any local or state equal employment opportunity law.
(a) As used in this Code section, the terms “franchisee” and “franchisor” shall have the same meanings as provided in 16 C.F.R. Section 436.1 as such existed on August 26, 2015.
(b) Notwithstanding any order issued by the federal government or any agreement entered into with the federal government by a franchisor or a franchisee, neither a franchisee nor a franchisee's employee shall be deemed to be an employee of the franchisor for any purpose.
(c) This Code section shall not apply to Chapter 9 of this title.
(a) As used in this Code section, the term:
(1) “Employee” means an individual who works for salary, wages, or other remuneration for an employer for at least 30 hours per week.
(2) “Employee stock ownership plan” shall have the same meaning as provided in Section 4975(e)(7) of the Internal Revenue Code, 26 U.S.C. Section 4975(e)(7).
(3) “Employer” means any individual or entity that employs 25 or more employees and shall include the State of Georgia and its political subdivisions and instrumentalities.
(4) “Immediate family member” means an employee's child, spouse, grandchild, grandparent, or parent or any dependents as shown in the employee's most recent tax return.
(5) “Sick leave” means time away from work by an employee, due to his or her own incapacity, illness, or injury, for which the employee receives his or her regular salary, wages, or other remuneration. The term “sick leave” shall not include paid short-term or long-term disability.
(b) An employer that provides sick leave shall allow an employee to use such sick leave for the care of an immediate family member; provided, however, that nothing in this Code section shall be construed to require an employer to offer sick leave or to require an employer to allow an employee to use more than five days of earned sick leave per calendar year for the care of an immediate family member.
(c) An employee shall not be entitled to use sick leave under this Code section until that leave has been earned. Any employee who uses such sick leave shall comply with the terms of the employer's employee sick leave policy.
(d) Nothing in this Code section shall be construed to create a new cause of action against an employer.
(e) This Code section shall not apply to any employer that offers to their employees an employee stock ownership plan.
There is created and established a separate and independent administrative agency to be known as the Department of Labor.
As used in this chapter, the term:
(1) “Employer” includes every person, firm, corporation, partnership, stock association, agent, manager, representative, or foreman, or other persons having control or custody of any place of employment or of any employees, except agricultural and domestic labor and those employers having less than eight employees. Naval stores producers shall be classified as agricultural, except where otherwise classified by federal laws.
(2) “Safe” or “safety” as applied to any employment or place of employment shall include conditions and methods of sanitation and hygiene reasonably necessary for the protection of the life, health, safety, and welfare of employees.
(a) The Department of Labor shall be under the direction and supervision of a commissioner to be known as the Commissioner of Labor. The Commissioner shall devote his full time to the duties of his office and shall not hold any other office during his term of office.
(b) The Commissioner shall be elected by those persons entitled to vote for the members of the General Assembly, and his term shall be for four years.
(c) The Commissioner of Labor shall be compensated in the amount provided for in Code Section 45-7-4, payable in semimonthly installments, and shall receive such travel expenses and allowances as are provided for in Code Section 45-7-20; provided, however, that pursuant to Code Section 45-7-4, the Commissioner shall in addition thereto be entitled to receive necessary and actual expenses incurred by him in the performance of his duties as administrator of Chapter 8 of this title.
(d) The Commissioner may be removed by the Governor for neglect of duty or malfeasance in office, provided that written charges are served upon the Commissioner at least ten days prior to a hearing thereon before the Governor and the constitutional officers of this state, and provided, further, that a majority shall find that the Commissioner is guilty of the charges preferred under this chapter, but for no other cause.
(e) The Commissioner shall have charge of the administration and enforcement of all laws, rules, and regulations which it is the duty of the department to administer and enforce except as provided in Chapter 9 of this title and shall direct all inspections and investigations except as otherwise provided.
(a) The Commissioner of Labor may establish within the Department of Labor such divisions as he may deem necessary for the exercise of the powers and the performance of the duties of the department, except as otherwise provided.
(b) The Commissioner is authorized and empowered to appoint a secretary, the heads of all divisions, and such other employees as may be needed and to assign them their duties and fix their annual salaries; provided, however, that no appointment shall be made whereby the aggregate salaries of the appointees are in excess of the amount appropriated by the General Assembly for salaries within the Department of Labor. The Commissioner may remove from office any officer or employee in the department, upon notice and hearing, for neglect of duty or malfeasance in office.
(a) The Commissioner of Labor shall keep and maintain the office of the Department of Labor in the City of Atlanta, Georgia, and shall be provided with suitable rooms, necessary furniture, stationery, books, periodicals, maps, instruments, and other necessary supplies, the expense thereof to be paid by the state in the same manner as other similar expenses are paid. In connection with the maintenance of the office of the Department of Labor, the Commissioner with the approval of the State Properties Commission is authorized and empowered to lease or rent and to negotiate, execute, and administer any necessary lease or rental agreement for office or other space in the custody of, but not occupied by, the Department of Labor and is further authorized to utilize the Department of Administrative Services as his agent in carrying out the provisions of this subsection.
(b) Notwithstanding any other provisions of law, the Commissioner is authorized to retain all funds derived from lease, rental, or similar payments received from tenants, occupants, or other users of office or other space for the sole purpose of maintenance of such office or other space. Such funds shall not be considered taxes, fees, or assessments within the meaning of Article VII, Section III, Paragraph II(a) of the Constitution of the State of Georgia, provided that nothing in this subsection shall be construed so as to allow the Commissioner to retain any funds required by the Constitution of Georgia to be paid into the state treasury.
(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 of all 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 information, and report upon the conditions of labor generally and upon all matters relating to the enforcement and effect of this chapter and of the rules issued thereunder;
(4) To prescribe such rules and regulations, consistent with the terms, intent, and purposes of this title, except for Chapter 9 of this title, necessary for the proper administration and enforcement thereof;
(5) To do all in his power to promote the voluntary arbitration, mediation, and conciliation of disputes between employers and employees and to avoid strikes, picketing, lockouts, boycotts, blacklisting, discriminations, and legal proceedings in matters of employment. In pursuance of this duty, the Commissioner may appoint temporary boards of arbitration, provide necessary expenses of such 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 of this 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 of executing such provisions. Employees of the Department of Labor shall act on temporary boards without extra compensation. Nothing in 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 of private 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 of duty and the payment of such 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 showing the names, addresses, and number of persons carried out of the state, the points to which they have been carried, 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 employed, if paid 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 of the two newspapers with the largest circulation in each of the cities of Detroit, Michigan; Chicago, Illinois; St. Louis, Missouri; New York, New York; 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 employment 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 if employment 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 of Labor personnel.
(b) Upon a formal determination that a debt or obligation of a former employer who is no longer in business in the State of Georgia to the Department of Labor of $300.00 or less is uncollectable, or that the 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 recapitulation 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 required 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 of the certification, the state accounting officer shall be authorized to approve the removal of such uncollectable amounts from the financial records of the Department of Labor.
The Commissioner shall comply with the requirements of Chapter 13 of Title 50, the “Georgia Administrative Procedure Act,” in the promulgation, adoption, review, amendment, and repeal of all rules and regulations of the department.
If there are practical difficulties or unnecessary hardships in carrying out a rule of the Commissioner of Labor, the Commissioner, after public hearing, may make a variation from such requirements if the spirit of the rule and law is observed. Any person affected by such rule, or his agent, may petition the Commissioner for such variation, stating the grounds therefor. The Commissioner shall fix a day for the hearing on such petition and shall give reasonable notice thereof to the petitioner. A properly kept index of all variations shall be kept in the office of the Department of Labor and shall be open to public inspection.
The Commissioner of Labor shall annually, on or before January 1, compile a report covering the activities of the Department of Labor, accompanied by recommendations with reference to such changes in the law, applying to and affecting industrial labor conditions, as the Commissioner may deem advisable. Such report shall be kept in the Commissioner's office and shall be available for public inspection during regular business hours. Copies of the report or portions thereof shall be made available on request.
(a) Every employer shall furnish employment which shall be reasonably safe for the employees therein, shall furnish and use safety devices and safeguards, shall adopt and use methods and processes reasonably adequate to render such an employment and place of employment safe, and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees.
(b) Every employer and every owner of a place of employment, place of public assembly, or public building, now or hereafter constructed, shall so construct, repair, and maintain such facility as to render it reasonably safe.
Every employer shall keep a true and accurate record of the name, address, and occupation of each person employed by him, and of the daily and weekly hours worked by each such person and of the wages paid during each pay period to each such person. Such records shall be kept on file for at least one year after the date of the record. No employer shall make or cause to be made any false entries in any such record.
It shall be the duty of the Attorney General of the state and the district attorneys of their respective judicial circuits, upon request of the Commissioner of Labor or any of his authorized representatives, to prosecute any violation of the law which is made the duty of the Commissioner to enforce.
(a) Any employer or owner who violates or fails or refuses to comply with any provision of this chapter within the time prescribed or any judgment or decree made by any court in connection with the provisions of this chapter for which no penalty has been otherwise provided shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished for each such offense by a fine of not less than $20.00 nor more than $200.00, by imprisonment not to exceed six months, or by both such fine and imprisonment.
(b) Any person who shall knowingly testify falsely, under oath, or shall knowingly make, give, or produce any false statements or false evidence, under oath, to the Commissioner of Labor or his authorized representatives commits the offense of perjury.
The Georgia Department of Labor shall have the authorization to enter into agreements with district attorneys and solicitors-general of the several judicial circuits of this state for the purpose of establishing pretrial intervention programs in such judicial circuits. The Georgia Department of Labor shall be authorized to administer all such programs pursuant to said agreement.
(a) As used in this Code section, the term:
(1) “Criminal background check” means a search of the criminal records maintained by GCIC and the Federal Bureau of Investigation to determine whether an individual has a criminal record.
(2) “Criminal record” means any of the following:
(A) A conviction of a crime;
(B) An arrest, charge, and sentencing for a crime when:
(i) A plea of nolo contendere was entered to the charge;
(ii) First offender treatment without adjudication of guilt pursuant to the charge was granted; or
(iii) Adjudication or sentence was otherwise withheld or not entered on the charge; or
(C) An arrest and charge for a crime if the charge is pending, unless the time for prosecuting such crime has expired pursuant to Chapter 3 of Title 17.
(3) “Direct access” means having, or expecting to have, duties that involve contact with or review of certain information.
(4) “Federal return information” shall have the same meaning as provided for the term “return information” in 26 U.S.C. Section 6103.
(5) “GCIC” means the Georgia Crime Information Center established under Article 2 of Chapter 3 of Title 35.
(b) Notwithstanding any other provisions of law to the contrary, beginning July 1, 2019, the Commissioner of Labor shall have the authority to require a criminal background check of any individual employed by or performing work for the Department of Labor or applying for employment with the Department of Labor and shall require a criminal background check of any such individual with direct access to federal return information as part of his or her job duties pursuant to the following:
(1) All such individuals shall be required upon request of the Commissioner of Labor to furnish fingerprints in such form and of such quality as GCIC and the Federal Bureau of Investigation deem acceptable for submission;
(2) Upon receipt of such fingerprints, GCIC shall search its own records and promptly transmit such fingerprints to the Federal Bureau of Investigation for a search of the bureau's records. GCIC shall notify the Department of Labor in writing of any criminal record or if there is no such finding; and
(3) The Commissioner of Labor shall make a determination regarding the employment of an individual and the nature of his or her job responsibilities after reviewing the results of such individual's criminal background check.
(c) An individual who has submitted fingerprints pursuant to this Code section may request an inspection, modification, correction, or supplementation of his or her criminal record information pursuant to Code Section 35-3-37, if he or she believes such information to be inaccurate, incomplete, or misleading.
(d) The Department of Labor shall perform criminal background checks either under agreement with GCIC or contract with GCIC and the appropriate law enforcement agencies which have access to GCIC and Federal Bureau of Investigation information to have such agencies perform criminal background checks for the Department of Labor. The Department of Labor and such appropriate law enforcement agencies may charge reasonable fees for performing criminal background checks.
(e) If the Department of Labor is participating in the federal program described in subparagraph (a)(1)(F) of Code Section 35-3-33, the Georgia Bureau of Investigation and the Federal Bureau of Investigation shall be authorized to retain fingerprints obtained pursuant to this Code section for such program and the Department of Labor shall notify the individual whose fingerprints were taken of the parameters of such retention.
(f) Neither GCIC, the Commissioner of Labor, the Department of Labor, any law enforcement agency, nor the employees of the Commissioner of Labor or any such entities shall be responsible for the accuracy of information nor have any liability for defamation, invasion of privacy, negligence, or any other claim provided in connection with any dissemination of information or determination based thereon pursuant to this Code section.
(g) All information received from GCIC or the Federal Bureau of Investigation shall be privileged, shall be used exclusively for purposes of employment, and shall not be released or otherwise disclosed to any other person or agency except to any person or agency which otherwise has a legal right to inspect the employment file. All such information collected by the Department of Labor shall be maintained by the Department of Labor pursuant to applicable laws and rules or regulations of GCIC and the Federal Bureau of Investigation. Penalties for the unauthorized release or disclosure of any such information shall be as prescribed pursuant to applicable laws and rules or regulations of GCIC and the Federal Bureau of Investigation.
Unless otherwise provided by law, all legal documents to be served on the Commissioner of Labor or the Department of Labor shall be served at Georgia Department of Labor, Legal Section, Suite 600, 148 Andrew Young International Boulevard, N.E., Atlanta, Georgia 30303-1751:
(1) By certified mail or statutory overnight delivery, return receipt requested;
(2) By hand delivery; or
(3) In a manner prescribed by law for service of process.
The hours of labor required of all persons employed in all cotton or woolen manufacturing establishments in this state, except engineers, firefighters, watchmen, mechanics, teamsters, yard employees, clerical force, and all help that may be needed to clean up and make necessary repairs or changes in or of machinery, shall not exceed ten hours per day; or the same may be regulated by employers, so that the number of hours shall not in the aggregate exceed 60 hours per week, provided that nothing contained in this Code section shall be construed to prevent any of the aforesaid employees from working such time as may be necessary to make up lost time, not to exceed ten days, caused by accidents or other unavoidable circumstances.
All contracts which require employees of cotton or woolen manufacturing establishments to work more than 40 hours per week shall be null and void.
Any person with whom a contract violative of this chapter is made or any person having knowledge thereof may institute an action against such cotton or woolen manufacturing establishment; and the amount recovered as a fine shall inure to the benefit of the board of education of the county in which the violation shall have occurred.
Any cotton or woolen manufacturing establishment that makes any contract in violation of Code Section 34-3-1 shall be subject to a fine of not less than $20.00 and not more than $500.00 for each and every such violation.
This chapter shall be known and may be cited as the “Georgia Minimum Wage Law.”
The Commissioner of Labor shall administer and enforce this chapter and may make rules and regulations for such administration.
(a) Except as otherwise provided in this Code section, every employer, whether a person, firm, or corporation, shall pay to all covered employees a minimum wage which shall be not less than $5.15 per hour for each hour worked in the employment of such employer.
(b) This chapter shall not apply with respect to:
(1) Any employer that has sales of $40,000.00 per year or less;
(2) Any employer having five employees or less;
(3) Any employer of domestic employees;
(4) Any employer who is a farm owner, sharecropper, or land renter;
(5) Any employee whose compensation consists wholly or partially of gratuities;
(6) Any employee who is a high school or college student;
(7) Any individual who is employed as a newspaper carrier; or
(8) Any individual who is employed by a nonprofit child-caring institution or long-term care facility serving children or mentally disabled adults who are enrolled in such institution and reside in residential facilities of the institution, if such employee resides in such facilities, receives without cost board and lodging from such institution, and is compensated on a cash basis at an annual rate of not less than $10,000.00.
(c) This chapter shall not apply to any employer who is subject to the minimum wage provisions of any act of Congress as to employees covered thereby if such act of Congress provides for a minimum wage which is greater than the minimum wage which is provided for in this Code section.
(a) As used in this Code section, the term:
(1) “Employee” means any individual employed by an employer.
(2) “Employer” means any person or entity that employs one or more employees.
(3) “Employment benefits” means anything of value that an employee may receive from an employer in addition to wages and salary. This term includes, but is not limited to, any health benefits; disability benefits; death benefits; group accidental death and dismemberment benefits; paid days off for holidays, sick leave, vacation, and personal necessity; additional pay based on schedule changes; retirement benefits; and profit-sharing benefits.
(4) “Local government entity” means a county, municipal corporation, consolidated government, authority, board of education, or other local public board, body, or commission.
(5) “Person” means an individual, partnership, association, corporation, business trust, legal representative, or any other organized group of persons.
(6) “Wage or employment benefit mandate” means any requirement adopted by a local government entity which requires an employer to pay any or all of its employees a wage rate or provide employment benefits not otherwise required under this Code or federal law.
(b)(1) Any and all wage or employment benefit mandates adopted by any local government entity are hereby preempted.
(2) No local government entity may adopt, maintain, or enforce by charter, ordinance, purchase agreement, contract, regulation, rule, or resolution, either directly or indirectly, a wage or employment benefit mandate.
(3) Any local government entity may offer its own employees employment benefits.
(c) No local government entity may through its purchasing or contracting procedures seek to control or affect the wages or employment benefits provided by its vendors, contractors, service providers, or other parties doing business with the local government entity. A local government entity shall not through the use of evaluation factors, qualification of bidders, or otherwise award preferences on the basis of wages or employment benefits provided by its vendors, contractors, service providers, or other parties doing business with the local government entity.
(d)(1) No local government entity may adopt, maintain, or enforce by charter, ordinance, regulation, rule, or resolution the hours or scheduling that an employer is required to provide employees or otherwise regulate employee output during work hours.
(2) Any local government entity may set and regulate such hours, scheduling, and output for its own employees and for the provision of services, including, but not limited to, those related to the supplementary powers given to local governments in Article IX, Section II, Paragraph III of the Constitution of this state.
(3) Nothing in this subsection shall prohibit a local government entity from regulating or limiting the hours a business may operate.
(a) The Commissioner of Labor is authorized to grant exemptions to certain categories of organizations and businesses for the purpose of exempting them from the operation of this chapter. The exemptions so granted shall be based upon considerations of the value of allowing certain classes of persons to be employed at rates below the minimum rate because of overriding considerations of public policy to allow employment of certain persons with disabilities and others who cannot otherwise compete effectively in the labor market.
(b) The Commissioner of Labor is authorized to conduct investigations and compile information as to the reasons for granting exemptions to certain organizations and businesses pursuant to subsection (a) of this Code section. The Commissioner is required to maintain a list of such exemptions, along with the records of the investigations conducted and the basis for the granting of such exemptions, which list and records shall be a public record.
Every employer subject to this chapter or any regulation pursuant thereto shall maintain records showing the hours worked by each employee and the wages paid to him and shall furnish to the Commissioner upon demand a sworn statement of the hours worked and wages paid to each person in his or its employment covered by this chapter. The records covering such hours and payments shall be open to inspection by the Commissioner, his deputy, or any authorized agent of the department at any reasonable time. Each employer subject to this chapter shall post copies of any regulation or order issued pursuant to its provisions in a conspicuous place in an area frequented by his employees.
If any employer pays any employee a lesser amount than the minimum wage provided in this chapter, the employee, at any time within three years, may bring a civil action in superior court for the recovery of the difference between the amount paid and the minimum wage provided in this chapter, plus an additional amount equal to the original claim, which shall be allowed as liquidated damages, together with costs and such reasonable attorney's fees as may be allowed by the court. No contract or agreement between any employer and his employees nor any acceptance of a lesser wage by any employee shall bar the action.
The General Assembly declares that the practice of discriminating on the basis of sex by paying wages to employees of one sex at a lesser rate than the rate paid to employees of the opposite sex for comparable work in jobs which require the same, or essentially the same, knowledge, skill, effort, and responsibility unjustly discriminates against the person receiving the lesser rate; leads to low worker morale, high turnover, and frequent labor unrest; discourages workers paid at the lesser wage rates from training for higher level jobs; curtails employment opportunities; decreases mobility of workers and increases labor costs; impairs purchasing power and threatens the maintenance of an adequate standard of living by such workers and their families; prevents optimum utilization of the labor resources available to the state; threatens the well-being of citizens of this state; and adversely affects the general welfare. It is declared to be the policy of the State of Georgia to eliminate, as rapidly as possible, by exercise of the police power of this state, discriminatory wage practices based on sex.
As used in this chapter, the term:
(1) “Commissioner” means the Commissioner of Labor of the State of Georgia.
(2) “Employ” means to permit to work.
(3) “Employee” means any individual employed by an employer, other than domestic or agricultural employees, and includes individuals employed by the state or any of its political subdivisions, including public bodies.
(4) “Employer” means any person employing ten or more employees and acting directly or indirectly in the interest of an employer in relation to an employee. The term “employer,” as used in this chapter, means an employer who is engaged in intrastate commerce.
(5) “Occupation” means any industry, trade, business or branch thereof, or any employment or class of employment.
(6) “Person” means one or more individuals, partnerships, corporations, legal representatives, trustees, trustees in bankruptcy, or voluntary associations.
(7) “Wage rate” means all compensation for employment, including payment in kind and amounts paid by employers for employee benefits.
(a) No employer having employees subject to any provisions of this chapter shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work in jobs which require equal skill, effort, and responsibility and which are performed under similar working conditions, except where such payment is made pursuant to (1) a seniority system, (2) a merit system, (3) a system which measures earnings by quantity or quality of production, or (4) a differential based on any other factor other than sex. An employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with this subsection, reduce the wage rate of any employee.
(b) It shall also be unlawful for any person to cause or attempt to cause an employer to discriminate against any employee in violation of this chapter.
(c) It shall be unlawful for any person to discharge or in any other manner discriminate against any employee covered by this chapter because such employee has made a complaint to his employer or any other person or has instituted or caused to be instituted any proceeding under or related to this chapter or has testified or is about to testify in any such proceedings. Any person who violates any provision of this Code section shall, upon conviction thereof, be punished by a fine not to exceed $100.00.
(a) The Commissioner shall have the power and it shall be his duty to carry out this chapter; and for this purpose the Commissioner or his authorized representative shall have the power to:
(1) Assist any employer to ensure that all employees are receiving comparable pay for comparable work in jobs which require comparable skill, effort, and responsibility;
(2) Assist any employer so that the character of the work and operations on which persons are employed can be compared, to question such persons, and to obtain such other information as is reasonably necessary for the administration and enforcement of this chapter; and
(3) Eliminate pay practices unlawful under this chapter by informal methods of conference, conciliation, and persuasion.
(b) The Commissioner is authorized to request witnesses to appear and to produce pertinent records for examination by the Commissioner or his authorized representative in the county of the place of business of the employer and such witnesses shall be paid the same fees as are allowed witnesses attending the superior courts of this state. In the event of failure of a person to attend, testify, or produce records voluntarily, the Commissioner may make application to the superior court of the county in which the business is located and, after notice and hearing, the court, in its discretion, and upon proper cause shown, may issue an order requiring the person to appear before the Commissioner or his authorized representative and testify or produce records as requested by the Commissioner.
(c) The Commissioner shall have the authority to issue such rules and regulations appropriate to the carrying out of this chapter.
(a) Any employer who violates Code Section 34-5-3 shall be liable to the employee affected in the amount of his unpaid wages. An action to recover such liability may be maintained in any court of competent jurisdiction by the aggrieved employee. The court in such action shall, in cases of violation, in addition to any judgment awarded to plaintiff, allow costs of the action and a reasonable attorney's fee not to exceed 25 percent of the judgment to be paid by the defendant.
(b) Court action under this Code section may be commenced no later than one year after the cause of action accrues.
In the event any dispute should arise between any employer and employee covered by this chapter in relation to any subject matter which is covered by this chapter, either of the parties shall have the right to request arbitration of the dispute. The party requesting arbitration shall file written notice of his request with the opposite party by either registered or certified mail or statutory overnight delivery. Within 30 days after receipt of such notice, the other party shall either accept or reject the arbitration offer. If the offer is accepted, the employer and the employee shall each select and appoint one arbitrator within ten days after acceptance. The arbitrators so selected shall then select a county adjoining the county in which the business of the employer is located and in which the dispute arose and the judge of the superior court or the senior judge thereof in terms of length of service on the bench of the judicial circuit in which such selected county shall be located shall appoint a third arbitrator who shall act as the chairman of the arbitration committee. The arbitration committee shall meet at such time as shall be fixed by the chairman and, after giving notice of the hearing to the parties concerned and affording them an opportunity to appear and be heard on the matters in dispute, shall proceed to resolve all matters contained within the request for arbitration. The decision of the arbitration committee shall be binding upon the parties affected, except that either party may appeal such decision to any court of competent jurisdiction within 30 days from publication of the decision.
Every employer subject to this chapter shall keep an abstract or copy of this chapter posted in a conspicuous place in or about the premises wherein any employee is employed. Employers shall be furnished copies or abstracts of this chapter by the state upon request and without charge.
As used in this chapter, the term “sexual harassment” means sexual advances, requests for sexual favors, sexual or sex-based conduct, or any other unwelcome and offensive conduct of a sexual nature where:
(A) Submission to the conduct involved is made, implicitly or explicitly, a term or condition of work;
(B) Submission to or rejection of the conduct is used as the basis for a personnel decision affecting the individual's work; or
(C) Such conduct creates an intimidating, hostile, or offensive work environment, provided that an intimidating, hostile, or offensive work environment is not created when the conduct does not rise above the level of what a reasonable person would consider merely tactless, inconsiderate, overfamiliar, or otherwise impolite, particularly with regard to the totality of the circumstances.
(a) Any individual working for a county, municipality, or consolidated government as an employee or in a similar capacity shall have a cause of action for retaliation against the county, municipality, or consolidated government if such county, municipality, or consolidated government has discharged, suspended, demoted, or taken any other adverse action against the individual in the terms or conditions of the work relationship because the individual has:
(1) Opposed sexual harassment;
(2) Made a report or a charge, or filed any complaint related to sexual harassment;
(3) Instituted or caused to be instituted, assisted, or participated in any manner in any investigation, proceeding, hearing, or action related to sexual harassment; or
(4) Provided information, testified, or is known by the county, municipality, or consolidated government to be planning to testify in any manner in any such investigation, proceeding, hearing, or action related to sexual harassment.
(b) Such individual may institute such a civil action in accordance with the provisions of paragraph (1) of subsection (e) of Code Section 45-1-4, and a court may order any or all of the relief described in paragraph (2) of subsection (e) and subsection (f) of Code Section 45-1-4.
(c) Nothing in this Code section shall be interpreted to prohibit the county, municipality, or consolidated government from taking appropriate corrective or remedial action against any individual who it determines has engaged in or facilitated sexual harassment.
(a) As used in this Code section, the term:
(1) “Labor organization” means any labor union or any organization or agency or employee representation, committee, or plan in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.
(2) “Local” means any local agency or branch or dues or assessment collecting unit or affiliate of a labor organization. A labor organization shall also be a local when it collects dues or assessments directly from its members and not through the medium of a branch or another local.
(b) No labor organization and no local shall call or cause any strike, slowdown, or stoppage of work in this state until after 30 days' written notice is given by the labor organization or local to the employer, stating the intention to call the strike, slowdown, or stoppage of work and giving the reasons therefor.
(c) Nothing in this Code section shall apply to any labor organization or local in a seasonal industry such as the ladies' garment, hat and millinery, and men's clothing industry, nor shall any provision of this Code section apply to labor unions of railroad employees operating under the Railway Labor Act. 1
(d) Any person violating any of the provisions of this Code section shall be guilty of a misdemeanor.
1 45 U.S.C.A. § 151 et seq.
It shall be unlawful for any person, acting alone or in concert with one or more other persons, by the use of force, intimidation, violence, or threats thereof to prevent or attempt to prevent any individual from leaving or continuing in the employment of or from accepting or refusing employment by any employer or from entering or leaving any place of employment of such employer.
It shall be unlawful for any person, acting in concert with one or more other persons, to assemble at or near any place where a labor dispute exists and by force, intimidation, violence, or threats thereof to prevent or attempt to prevent any person from engaging in any lawful vocation or for any person acting either by himself, or as a member of any group or organization or acting in concert with one or more other persons to promote, encourage, or aid any such unlawful assemblage.
It shall be unlawful for any person, acting alone or in concert with one or more other persons, by the use of force, intimidation, violence, or threats thereof to prevent or attempt to prevent any employer from lawfully engaging or continuing to engage in any proper and lawful business activity; from properly, lawfully, or peaceably using or enjoying his property used or useful in the conduct of such business; from acquiring materials or supplies for the purposes of such business; or from disposing of the goods, wares, or products of such business. It shall further be unlawful to prevent or attempt to prevent any carrier or other person from supplying or delivering materials or supplies to any such employer or from receiving or accepting delivery on the premises of such business of the goods, wares, or products of such business.
It shall be unlawful for any person to engage in mass picketing at or near any place where a labor dispute exists in such number or manner as to obstruct or interfere with or constitute a threat to obstruct or interfere with the entrance to or egress from any place of employment or the free and uninterrupted use of public roads, streets, highways, railroads, airports, or other ways of travel, transportation, or conveyance.
It shall be unlawful for any person, acting alone or in concert with one or more other persons, to compel or attempt to compel any person to join or refrain from joining any labor organization or to strike or refrain from striking against his will by any threatened or actual interference with his person, immediate family, or physical property or by any threatened or actual interference with the pursuit of lawful employment by such person or by his immediate family.
Any person who violates any provision of Code Sections 34-6-2 through 34-6-6 shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished as provided in Code Section 17-10-3.
(a) As used in this Code section, the term “labor organization” means any organization of any kind or any agency or employee representation committee or plan in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.
(b) It shall be unlawful for any carrier or shipper of property or any association of carriers or shippers to agree to pay or to pay to or for the benefit of a labor organization, directly or indirectly, any charge by reason of the placing upon, delivery to, or movement by rail or by railroad car of a motor vehicle, trailer, or container which is also capable of being moved or propelled upon the highways.
(c) It shall be unlawful for any labor organization to accept or receive from any carrier or shipper of property, or any association of such carriers or shippers, any payment described in subsection (b) of this Code section.
(d) Any corporation, association, organization, or person who agrees to pay, or who does pay, or who agrees to receive, or who does receive, any payment described in subsection (b) of this Code section shall be guilty of a misdemeanor. Each act of violation and each day during which such an agreement remains in effect shall constitute a separate and distinct offense.
As used in this article, the term:
(1) “Employee” includes any employee and shall not be limited to the employees of a particular employer.
(2) “Employer” includes any person acting in the interest of an employer, directly or indirectly, but shall not include the United States, a state or any political subdivision thereof, any person subject to the Railway Labor Act, as amended, any person employed by a transit authority subject to the provisions and requirements of Section 13(c) of the Federal Transit Act, 49 U.S.C. Section 5333(b), any labor organization (other than when acting as an employer), or anyone acting in the capacity of officer or agent of such labor organization.
(3) “Employment” means employment by an employer.
(4) “Federal labor laws” means the National Labor Relations Act and the Labor Management Relations Act, as amended by federal administrative regulations relating to labor and management or employee and employer issues, and the United States Constitution as amended and as construed by the federal courts.
(5) “Governmental body” means the State of Georgia or any local government or its subdivisions, including but not limited to cities, municipalities, counties, and any public body, agency, board, commission or other governmental, quasi-governmental, or quasi-public body, or like capacity of local government or its subdivision.
(6) “Labor organization” means any organization of any kind or any agency or employee representation committee or plan in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.
The rights protected under federal labor laws include, but are not limited to:
(1) An employer's or employee's right to express views in favor of or contrary to unionization and any other labor relations issues to the full extent allowed by the First Amendment of the United States Constitution and Section 8(c) of the National Labor Relations Act;
(2) An employee's right to participate in, and an employer's right to demand, a secret ballot election under federal law, including, without limitation, the full procedural protections afforded by such laws for defining the unit, conducting the election campaign and election, and making any challenges or objections thereto; and
(3) An employer's right to:
(A) Oppose the recognition of a labor organization based solely on reviewing authorization cards absent a secret ballot election conducted in accordance with federal labor laws;
(B) Refuse to release sensitive and private employee information beyond the requirements of federal labor laws;
(C) Maintain the confidentiality of employee information to the maximum extent allowed by federal labor laws; and
(D) Restrict access to its property or business to the maximum extent allowed by federal labor laws.
(a) No individual shall be required as a condition of employment or continuance of employment to be or remain a member or an affiliate of a labor organization or to resign from or to refrain from membership in or affiliation with a labor organization.
(b) No governmental body may pass any law, ordinance, or regulation or impose any contractual, zoning, permitting, licensing, or other condition that requires any employer or employee to waive statutory rights under federal labor laws.
(c) No governmental body may pass any law, ordinance, or regulation that would require, in whole or in part, an employer or multiple employer association to accept or otherwise agree to any provisions that are mandatory or nonmandatory subjects of collective bargaining under federal labor laws, including, but not limited to, any limitations on an employer's or multiple employer association's right to engage in collective bargaining with a labor organization, to lock out employees, or to operate during a work stoppage; provided, however, that the foregoing shall not invalidate or otherwise restrict the application of federal labor laws.
(d) No employer or labor organization shall be forced to enter into any agreement, contract, understanding, or practice, written or oral, implied or expressed, that subverts the established process by which employees may make informed and free decisions regarding representation and collective bargaining rights provided for by federal labor laws.
No individual shall be required as a condition of employment or continuance of employment to pay any fee, assessment, or other sum of money whatsoever to a labor organization.
Any provision in a contract between an employer and a labor organization which requires as a condition of employment or continuance of employment that any individual be or remain a member or an affiliate of a labor organization or that any individual pay any fee, assessment, or other sum of money whatsoever to a labor organization is declared to be contrary to the public policy of this state; and any such provision in any such contract heretofore or hereafter made shall be absolutely void.
It shall be unlawful for any employer to contract with any labor organization and for any labor organization to contract with any employer so as to require as a condition of employment or continuance of employment that any individual be or remain a member of a labor organization or that any individual pay any fee, assessment, or other sum of money whatsoever to a labor organization.
(a) No employer shall deduct from the wages or other earnings of any employee any fee, assessment, or other sum of money whatsoever to be held for or to be paid over to a labor organization except on the written authorization of the employee. Such authorization may be revoked at any time at the request of the employee.
(b) Nothing in this Code section shall be construed to impair any contract, agreement, or collective bargaining agreement in existence prior to July 1, 2013.
(c) This Code section shall not apply to any collective bargaining agreement entered into pursuant to the Railway Labor Act, as amended, or to any professional association whose membership is exclusively composed of educators, law enforcement officers, or firefighters not engaged or engaging in contracting or collective bargaining.
(a) It shall be unlawful for any employer to contract with any labor organization and for any labor organization to contract with any employer for the deduction of any fee, assessment, or other sum of money whatsoever from the wages or other earnings of an employee to be held for or to be paid over to a labor organization except upon the condition to be embodied in such contract that such deduction will be made only on the written authorization of the employee. Such authorization may be revoked at any time at the request of the employee.
(b) Nothing in this Code section shall be construed to impair any contract, agreement, or collective bargaining agreement in existence prior to July 1, 2013.
The remedy of injunction, in addition to any other available remedy, is given to any individual whose employment is affected, or may be affected, by any contract which is declared in whole or in part to be void by any provision of this article. The application for injunction may be filed in any court of appropriate jurisdiction, and service shall be made upon the parties in the manner now or hereafter provided by law. In any such proceeding, the plaintiff shall be entitled to his costs and reasonable attorneys' fees and shall recover actual damages sustained by him. The court shall assess such costs, attorneys' fees, and damages between the parties to the contract under equitable rules and principles.
Any employer or labor organization and any person acting for an employer or labor organization who violates any of the provisions of Code Section 34-6-24, 34-6-25, or 34-6-26 shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished as provided in Code Section 17-10-3.
This chapter shall be known and may be cited as the “Georgia Equal Employment for Persons With Disabilities Code.”
As used in this chapter, the term:
(1) “Disability” means any condition or characteristic that renders a person an individual with disabilities but shall not include addiction to any drug or illegal or federally controlled substance nor addiction to the use of alcohol.
(2) “Employer” means a person or governmental unit or officer in this state having in his, her, or its employ 15 or more individuals or any person acting as an agent of an employer.
(3) “Individual with disabilities” means any person who has a physical or mental impairment which substantially limits one or more of such person's major life activities and who has a record of such impairment. The term “individual with disabilities” shall not include any person who is addicted to the use of any drug or illegal or federally controlled substance nor addiction to the use of alcohol.
(4) “Labor organization” means an organization of any kind; agents of such organization; an agency or employee representation committee, group, association, or plan in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours, or other terms or conditions of employment; or a conference, general committee, joint or system board, or joint council so engaged which is subordinate to a national or international labor organization.
(5) “Major life activities” means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.
(6) “Persons” means one or more individuals, partnerships, this state, municipalities or other political subdivisions within the state, associations, labor organizations, or corporations.
(7) “Physical or mental impairment” means:
(A) Any physiological disorder or condition or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, or endocrine; or
(B) Intellectual disabilities and specific learning disabilities.
(8) “Substantially limits” means that the impairment so affects a person as to create a likelihood that such person will experience difficulty in securing, retaining, or advancing in employment because of a disability.
(9) “Unfair employment practice” means an act that is prohibited under this chapter.
(a) Nothing in this chapter shall be construed to prevent an employer from making any job related inquiry about the existence of the disability of an applicant for employment and about the extent to which that disability has been overcome by treatment, medication, appliances, or other rehabilitation.
(b) Nothing in this chapter shall be construed to prohibit the rejection of an applicant for employment on the basis of:
(1) A disability which interferes with a person's ability to perform assigned job duties adequately; or
(2) Any communicable disease, either carried by or afflicting the applicant.
(c) Nothing in this chapter shall be construed to prevent or otherwise make illegal any employment decision affecting any person where such decision is based upon an employer's good faith reliance upon a professional opinion rendered by a licensed physician, rehabilitation specialist, psychologist, physical therapist, dentist, or other similar licensed health care professional concerning that person.
(a) No employer shall fail or refuse to hire nor shall any employer discharge or discriminate against any individual with disabilities with respect to wages, rates of pay, hours, or other terms and conditions of employment because of such person's disability unless such disability restricts that individual's ability to engage in the particular job or occupation for which he or she is eligible; nor shall any employer limit, segregate, or classify individuals with disabilities in any way which would deprive or tend to deprive any individual with disabilities of employment opportunities or otherwise affect employee status because of such person's disability, unless such disability constitutes a bona fide and necessary reason for such limitation, segregation, or classification. This subsection shall not be construed to require any employer to modify his or her physical facilities or grounds in any way or exercise a higher degree of caution for an individual with disabilities than for any person who is not an individual with disabilities, nor shall this subsection be construed to prohibit otherwise lawful employment practices or requirements merely because such practices or requirements affect a greater proportion of individuals with disabilities than individuals without disabilities within the area from which the employer customarily hires his or her employees.
(b) No employment agency, placement service, training school or center, or labor organization shall fail or refuse to refer for employment or otherwise discriminate against individuals because of their disability.
(c) No labor organization shall exclude or expel from its membership or otherwise discriminate against individuals because of their disability; nor shall a labor organization limit, segregate, or classify its membership or classify or fail or refuse to refer for employment any individual with disabilities in any way which would deprive or tend to deprive any individual with disabilities of employment opportunities, would otherwise affect such person's employee status or employment applicant status, or would adversely affect such person's wages, hours, or conditions of employment because of such person's disability.
(d) No employer, labor organization, or joint labor-management committee controlling apprenticeship programs or other training or retraining, including on-the-job training programs, shall discriminate against any individual because of such individual's disability, in the admission to or the employment in any program established to provide apprenticeship or other training.
(e) It is discrimination for an employer to print or publish or cause to be printed or published a notice or advertisement relating to employment by such employer, which advertisement or notice indicates any preference, limitation, specification, or discrimination based on disability, except that such a notice or advertisement may indicate a limitation or specification based upon disability if the criteria is job related.
No employer shall discharge, expel, refuse to hire, or otherwise discriminate against any person or applicant for employment because such person has opposed any practice made an unfair employment practice by this chapter or because such person has filed a charge, testified, assisted, or participated in any manner in an investigation, action, proceeding, or hearing under this chapter; nor shall any employment agency discriminate against any person; nor shall a labor organization discriminate against any member or applicant for membership for such reasons.
(a) Any individual with disabilities who is aggrieved by an unfair employment practice against such individual may institute a civil action against the persons engaged in such prohibited conduct. Such action may be brought in any court of record in this state having jurisdiction over the defendant and shall be brought within 180 days after the alleged prohibited conduct occurred. However, no person shall be a party plaintiff to any such action unless such person gives his or her consent in writing and such consent is filed with the court in which the action is brought.
(b) The court may grant as relief, as it deems appropriate, any permanent or temporary injunction, temporary restraining order, or other order, including but not limited to hiring, reinstatement, or upgrading of employees; admission or restoration of the aggrieved individual to union membership; admission to or participation in a guidance program, apprenticeship training program, on-the-job training program, or other occupational training or retraining program; and the utilization of training related criteria in the admission of individuals to such training programs and job related criteria for employment. The court may award to the plaintiff back pay. The court may award court costs and reasonable attorneys' fees to the prevailing party.
If a contract of employment provides that wages are payable at a stipulated period, the presumption shall arise that the hiring is for such period, provided that, if anything else in the contract indicates that the hiring was for a longer term, the mere reservation of wages for a lesser time will not control. An indefinite hiring may be terminated at will by either party.
(a) As used in this Code section, the term “payroll card account” means an account that is directly or indirectly established through a person, firm, or corporation employing wageworkers or other employees and to which electronic fund transfers of the wages or salary of such employees are made on a recurring basis, whether the account is operated or managed by such person, firm, or corporation or a third-party payroll processor, a depository institution, or any other person.
(b) Every person, firm, or corporation, including steam and electric railroads, but not including farming, sawmill, and turpentine industries, employing skilled or unskilled wageworkers in manual, mechanical, or clerical labor, including all employees except officials, superintendents, or other heads or subheads of departments who may be employed by the month or year at stipulated salaries, shall, upon the discretion of such person, firm, or corporation, make wage and salary payments to such employees or to their authorized representatives:
(1) By lawful money of the United States;
(2) By check;
(3) By credit to a payroll card account; or
(4) With the consent of the employee, by authorization of electronic credit transfer to his or her account with a bank, trust company, or other financial institution authorized by the United States or one of the several states to receive deposits in the United States.
Such payments shall be made on such dates during the month as may be decided upon by such person, firm, or corporation; provided, however, that the dates so selected shall be such that the month will be divided into at least two equal periods; and provided, further, that the payments made on each such date shall in every case correspond to the full net amount of wages or earnings due the employees for the period for which the payment is made.
(c) A person, firm, or corporation that elects pursuant to subsection (b) of this Code section to make wage and salary payments by using credit to a payroll card account shall provide the employee with a written explanation of any fees associated with the payroll card account offered to the employee. For all employees employed on the date a person, firm, or corporation elects to make such wage and salary payments by using credit to a payroll card account, such written explanation shall be provided at least 30 days prior to the date such payroll card account is to become available. For any employee hired after the date of such election, the written explanation shall be provided at the time of hiring.
(a) Any order, check, draft, note, or other instrument issued in payment of wages or salary due or to become due must be negotiable and payable in cash, on demand, without discount, at some established place of business in the United States, the name and address of which must appear on the instrument. At the time of issuance of such instrument and for a reasonable time thereafter (which must be at least 30 days), the maker or drawer must have sufficient funds or credit or an arrangement or understanding with the drawee as to its payment.
(b) Where an instrument described in this Code section is protested or dishonored, the notice or memorandum of protest or dishonor is admissible as proof of presentation, nonpayment, and protest and is presumptive evidence of knowledge of insufficiency of funds or credit with the drawee.
(a)(1) Upon the death of any person who was employed by any political subdivision of the state or by any railroad company or other corporation, individual, or partnership doing business in this state, if the deceased employee had wages or other moneys due from such employer, it shall be lawful for such employer to pay all of such sums if they do not exceed $2,500.00, or to pay the sum of $2,500.00 if such sums exceed $2,500.00 or upon the death of any person who was employed by the state, if the deceased employee had wages or other moneys due from the state, it shall be lawful for the state to pay all of such sums, as follows:
(A) In the absence of a beneficiary designated in writing by the employee, then to the employee's surviving spouse;
(B) In the absence of a beneficiary designated in writing by the employee and where the employee left no surviving spouse but left a surviving minor child or children, then to the duly qualified guardian of the minor child or children without any administration upon the estate of the employee; or
(C) Where a beneficiary has been designated in writing by the employee to receive such sums and such beneficiary is under no legal incapacity to prevent him from receiving such sums, then to such beneficiary, or, if such beneficiary is under such legal incapacity, then to his duly qualified guardian.
Such funds to the amount of $2,500.00 shall be exempt from any and all process of garnishment.
(2) It shall be the responsibility of the employee to provide and the responsibility of the employer to request the name and current address of the employee's spouse or, if there is no spouse, the name and current address of each minor child of the employee. If the employee, at his election, designates a beneficiary to receive such sums, such designation shall be in writing, shall include the name and address of such beneficiary, and shall be signed by the employee. The employer shall inform the employee that any sums payable under this Code section may be paid pursuant to the designation made by the employee to a beneficiary, or to the employee's spouse, or to the employee's minor child or children as provided in this Code section and shall request the employee to furnish and keep any such information and designation current. The employer shall not be subject to any penalty for failure to inform and request that the employee furnish such information and designation, or for the failure of the employer to pay such sums in accordance with the provisions of this Code section.
(b) Any employer described in subsection (a) of this Code section may pay over any sums due under subsection (a) of this Code section upon the demand of such designated beneficiary or guardian thereof, or, if no such beneficiary is designated, then upon the demand of the surviving spouse, or, if in the absence of such designated beneficiary and where there is no surviving spouse, upon the demand of the minor child or children or the guardian thereof.
(c) The paying over of any sums due as permitted under subsections (a) and (b) of this Code section to the proper party or parties as set forth in this Code section shall operate as a release from all claims to such sums or as a release from all claims against the state, political subdivision thereof, railroad company, or other corporate, partnership, or individual employer by the estate of the employee, the creditors thereof, the surviving spouse or minor child or children or the guardian thereof, or any other person.
Any corporation or person doing business of any kind in this state who shall issue checks or written evidences of indebtedness for the wages of laborers shall redeem at full value, in cash, such written evidences of indebtedness on demand and presentation to the proper person on the regular monthly payday; and, if there shall be no regular monthly payday, then such written evidences shall be redeemed upon demand and presentation on any regular business day after 30 days from the issuance thereof. For every failure to redeem such evidences of indebtedness, such corporation or person shall be liable to the owner thereof in the sum of $10.00, to be recovered by suit, unless the corporation or person shall, upon the trial, prove insolvency or actual inability to redeem at the time of demand and presentation.
(a) As used in this Code section, the term “professional employer organization” means an employee leasing company as defined in Code Section 34-8-32 that has established a coemployment relationship with another employer, pays the wages of the employees of the coemployer, reserves a right of direction and control over the employees of the coemployer, and assumes responsibility for the withholding and payment of payroll taxes of the coemployer.
(b) A professional employer organization may collect information to evaluate costs; may obtain life, accident and sickness, disability income, workers' compensation, and other types of insurance coverage; may establish retirement plans; may have other types of employee benefits; and may discuss such benefits with prospective coemployers and their employees.
(c) A coemployer of a professional employer organization shall retain sufficient direction and control over the employees involved in a coemployment relationship as is necessary to conduct its business operations and fulfill its obligations to such employees. Unless otherwise agreed in writing, such coemployer shall be considered to be the sole employer of such employees for licensing purposes, provided that nothing contained in this Code section shall be deemed to prohibit a professional employer organization and its coemployer from agreeing that the professional employer organization shall be considered to be an employer for licensing purposes. The professional employer organization shall give written notice of such an agreement to the appropriate licensing agency and to the employees involved.
(d) It is the intent of this Code section that professional employer organizations shall be considered to be employers under this title and are required to comply with the provisions of Code Sections 34-8-32, 34-8-34, and 34-8-172. Professional employer organizations and their coemployer clients are entitled to exclusive remedy under Code Section 34-9-11.
The employer is bound to exercise ordinary care in the selection of employees and not to retain them after knowledge of incompetency; he shall use like care in furnishing machinery equal in kind to that in general use and reasonably safe for all persons who operate it with ordinary care and diligence. If there are latent defects in machinery or dangers incident to an employment, which defects or dangers the employer knows or ought to know but which are unknown to the employee, then the employer shall give the employee warning with respect thereto.
With the exception of railroad companies, the employer shall not be liable to one employee for injuries arising from the negligence or misconduct of other employees about the same business.
All contracts between employer and employee made in consideration of employment, whereby the employer is exempted from liability to the employee arising from the negligence of the employer or his employees, as such liability is fixed by law, shall be null and void, as against public policy.
An employee assumes the ordinary risks of his employment and is bound to exercise his own skill and diligence to protect himself. In actions for injuries arising from the negligence of the employer in failing to comply with the duties imposed by Code Section 34-7-20, in order that the employee may recover, it must appear that the employer knew or ought to have known of the incompetency of the other employee or of the defects or danger in the machinery supplied; and it must also appear that the employee injured did not know and had not equal means of knowing such fact and by the exercise of ordinary care could not have known thereof.
As used in this article, the term “common carrier” shall include the receiver or receivers or other person or corporation charged with the duty of the management and operation of the business of a common carrier.
Every common carrier by railroad shall be liable in damages to any person suffering injury while he is employed by such carrier or, in case of death of such employee, to his or her personal representative, for the benefit of the surviving spouse or child or children of such employee; and if none, then of such employee's parents; and if none, then of the next of kin dependent upon such employee for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier or by reason of any defects or insufficiency, due to the carrier's negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment; provided, however, that there shall be no recovery under this Code section if the person killed or injured brought about his death or injury by his own carelessness amounting to a failure to exercise ordinary care or if he, by the exercise of ordinary care, could have avoided the consequences of the defendant's negligence. The measure of damages in case the injury results in death of the employee shall be that prescribed in Code Sections 51-4-1, 51-4-2, and 51-4-4; provided, however, that parties who may recover under this Code section, Code Sections 34-7-42 through 34-7-44, and Code Section 34-7-46 may sue and recover in their own names in the manner prescribed by Code Sections 51-4-2 and 51-4-4 in case no administrator or executor has been appointed at the time the action is filed. In case death shall result from injury to the employee, the employer shall be liable unless it, its agents, and its employees have exercised all ordinary and reasonable care and diligence, the presumption being in all cases against the employer. If death shall not result from the injury, the presumption of negligence shall be and remain as provided by law in case of injury received by an employee in the service of a railroad company.
In all actions brought against any common carrier by railroad under or by virtue of any of the provisions of this Code section, Code Section 34-7-41, 34-7-43, 34-7-44, or 34-7-46 to recover damages for personal injuries to an employee or for death of an employee where such injuries have resulted in death, the fact that the employee may have been guilty of contributory negligence, not amounting to a failure to exercise ordinary care, shall not bar a recovery; but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee; provided, however, that no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by the common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.
In any action brought against any common carrier by railroad, under and by virtue of any of the provisions of Code Sections 34-7-41 and 34-7-42, to recover damages for injuries to or the death of any of its employees, the employee shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of the employees contributed to the injury or death of such employee.
Any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier by railroad to exempt itself from any liability created by Code Sections 34-7-41 through 34-7-43, shall, to that extent, be void; provided, however, that in any action brought against any such common carrier by railroad under or by virtue of any of such Code sections such common carrier may set off therein any sum it has contributed or paid to any insurance, relief, benefit, or indemnity that may have been paid to the injured employee or, in the event of death, to the person or persons entitled thereto on account of the injury or death for which said action is brought.
(a) The liability of receivers, trustees, assignees, and other like officers operating railroads in, or partially in, this state for injuries and damages to employees or their property which are caused by the negligence of coemployees shall be the same as that fixed in Code Section 34-7-41.
(b) A lien is created on the gross income of a railroad liable under Code Section 34-7-41 while in the control of any person or corporation described in subsection (a) of this Code section in favor of the injured employee superior to all other liens against the defendant under the laws of this state.
No action shall be maintained under Code Sections 34-7-41 through 34-7-44 unless commenced within two years from the day the cause of action accrued.
Where two or more chartered railroad companies whose lines terminate in the same city contract to use the same track within the corporate limits, the company owning the track shall not be responsible to its employees for injuries sustained solely by reason of the negligent use of the track by the employees of the other company.
No employee of any railroad company shall be deprived of his right to recover damages for personal injury by reason of the fact that at the time of such injury he was making a run of more than 13 hours, or making a run aggregating more than 13 hours in 24 hours, or had gone on duty after a 13 hour run, or runs aggregating 13 hours, before ten hours' rest.
This chapter shall be known and may be cited as the “Employment Security Law.”
As a guide to the interpretation and application of this chapter, the public policy of this state is declared to be as follows: economic insecurity due to unemployment is a serious menace to the health, morals, and welfare of the people of this state. Involuntary unemployment is therefore a subject of general interest and concern which requires appropriate action by the General Assembly to prevent its spread and to lighten its burden which so often falls with crushing force upon the unemployed worker or the worker's family. The achievement of social security requires protection against this greatest hazard of our economic life. This can be provided by encouraging employers to provide more stable employment and by the systematic accumulation of funds during periods of employment to provide benefits for periods of unemployment, thus maintaining purchasing power and limiting the serious social consequences of poor relief assistance. The General Assembly therefore declares that in its considered judgment the public good and the general welfare of the citizens of this state require the enactment of this measure, under the police powers of the state, for the compulsory setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own.
The General Assembly reserves the right to amend or repeal all or any part of this chapter at any time; and there shall be no vested private rights of any kind against such amendment or repeal. All the rights, privileges, or immunities conferred by this chapter, or by actions taken pursuant thereto, shall exist subject to the power of the General Assembly to amend or repeal this chapter at any time.
In any civil action to enforce this chapter, the Commissioner, the board of review, and the state shall be represented by the Attorney General of this state.
(a) As used in this chapter, the term “annual payroll” means the total amount of wages for employment paid by an employer during the 12 month period immediately preceding and ending on the computation date.
(b) As used in this chapter, the term “average annual payroll” means the average of the annual payrolls of an employer for the last three 12 month periods immediately preceding the computation date, except that for an employer whose account could have been charged with benefit payments throughout at least 12 but less than 36 consecutive calendar months immediately preceding and ending on the computation date, the term “average annual payroll” means the total amount of wages for employment paid by such employer during the 12 month period immediately preceding and ending on the computation date.
(a) Except as provided in subsection (b) of this Code section, as used in this chapter, the term “base period” means the first four of the last five completed calendar quarters immediately preceding the first day of an individual's benefit year; provided, however, that, in the case of a combined wage claim under Code Section 34-8-80, the base period shall be that applicable under the unemployment compensation law of the paying state.
(b) If an individual does not have sufficient wages to qualify for benefits under the definition of base period in subsection (a) of this Code section, then his or her base period shall be calculated using the last four completed quarters immediately preceding the first day of the individual's benefit year. Such base period shall be known as the “alternative base period.” Applicants shall receive written notice of the alternative base period. Implementation of the alternative base period shall commence on January 1, 2003. Implementation of the alternative base period under this subsection shall be under such terms and conditions as the Commissioner may prescribe by rules and regulations.
As used in this chapter, the term “benefits” means the compensation payable to an individual, as provided in this chapter, with respect to the individual's unemployment.
(a) As used in this chapter, the term “benefit year” with respect to any individual means:
(1) For all valid claims filed on or before June 30, 2019, the one-year period beginning with the day on which a valid claim is filed; and
(2) For all valid claims filed on or after July 1, 2019, the 52 weeks:
(A) Beginning on the Sunday the claim is filed, if the claim is filed on a Sunday; or
(B) Beginning on the Sunday prior to the day the claim is filed, if the claim is filed on any day other than a Sunday.
(b) In the case of a combined wage claim pursuant to Code Section 34-8-80, the benefit year shall be that of the paying state.
(c) Benefits may only be paid during the applicable benefit year, unless an extended benefits period is in effect as provided in Code Section 34-8-197.
As used in this chapter, the term “bona fide in the labor market” means that any person claiming benefits under this chapter must be available for full-time employment, as that term is generally understood in the trade or work classification involved, without regard to prior work restrictions, provided that no individual who is otherwise eligible shall be deemed ineligible for benefits solely because the individual seeks, applies for, or accepts only part-time work, instead of full-time work, provided the individual claiming benefits worked part-time during a majority of the weeks of work in the base period and the individual is available for part-time work for at least 20 hours per week.
As used in this chapter, the term “calendar quarter” means the period of three consecutive calendar months ending on the dates of March 31, June 30, September 30, or December 31 of each year or such other dates as the Commissioner may by regulation prescribe.
As used in this chapter, the term “Commissioner” means the Commissioner of Labor.
As used in this chapter, the term “common paymaster” means one of two or more related corporations which concurrently employ the same individual and which is designated to remunerate such individual for services performed for all such related corporations. Upon approval by the Commissioner, the common paymaster shall be considered the employer of such individual and shall be responsible for contributions due on wages paid. Each of the related corporations shall be considered to have paid as remuneration to such individual only the amounts actually disbursed by it to such individual and shall not be considered to have paid as remuneration to such individual amounts actually disbursed to such individual by the common paymaster.
As used in this chapter, the term “computation date” means June 30 of each calendar year with respect to rates applicable to the succeeding calendar year for each employer whose account could have been chargeable with benefits throughout the 36 consecutive calendar month period immediately preceding and ending on the computation date.
(a) As used in this chapter, the term “contributions” means the money payments to the Unemployment Compensation Fund required by Code Sections 34-8-150 through 34-8-156.
(b) As used in this chapter, the term “payments in lieu of contributions” means the money payments to reimburse the Unemployment Compensation Fund for benefit payments charged to employers as required pursuant to Code Sections 34-8-158 through 34-8-161.
As used in this chapter, the term “deductible earnings” means all money earned each week by a claimant for services performed, whether or not received by such claimant, in excess of an amount established by the Commissioner as promulgated by rules and regulations. The amount established by the Commissioner shall not be less than $50.00 nor shall it exceed $300.00. Deductible earnings shall be subtracted from the weekly benefit amount of the claim.
As used in this chapter, the term “department” means the Georgia Department of Labor.
(a) As used in this chapter, the term “employee leasing company” means an independently established business entity which engages in the business of providing leased employees to any other employing unit under the following conditions:
(1) Negotiates with clients or customers for such matters as time, place, type of work, working conditions, quality, and price of service;
(2) Determines assignments of individuals to its clients or customers, even if the individuals retain the right to refuse specific assignments;
(3) Sets the rate of pay of the individuals, whether or not through negotiation;
(4) Pays the individuals from its accounts; and
(5) Hires and terminates individuals who perform services for the clients or customers.
(b) Individuals performing services for an employee leasing company shall be considered employees of the employee leasing company. The employee leasing company shall file required reports in accordance with regulations prescribed by the Commissioner and pay contributions on wages paid to such employees.
(c) Individuals who perform services for temporary help contracting firms as that term is defined in Code Section 34-8-46 shall not be considered employees of an employee leasing company.
(a) As used in this chapter, the term “employer” means:
(1) Any employing unit which, in either the current or preceding calendar year:
(A) Paid in any calendar quarter wages of $1,500.00 or more for service in employment; or
(B) Had in employment at least one individual, irrespective of whether the same individual was in employment on each such day, for some portion of a day in each of 20 different calendar weeks, whether or not such weeks were consecutive;
(2) Any employing unit which, within either the current or preceding calendar year, paid for domestic service, as defined in subsection (l) of Code Section 34-8-35, cash remuneration of $1,000.00 or more during any calendar quarter;
(3) Any employing unit which within either the current or preceding calendar year:
(A) Paid, during any calendar quarter, remuneration in cash of $20,000.00 or more to individuals employed in agricultural labor; or
(B) Had ten or more individuals employed in agricultural labor, regardless of whether they were employed at the same moment of time, for some portion of a day in each of 20 different calendar weeks in a calendar year.
For the purposes of subparagraphs (A) and (B) of this paragraph, service in agricultural labor performed before January 1, 1993, by an alien admitted to the United States to perform service in agricultural labor pursuant to Sections 214(c) and 101(a)(15)(H) of the federal Immigration and Nationality Act 1 shall not be taken into account;
(4) Any religious, charitable, educational, or other organization if the following conditions are met:
(A) The organization's employment is excluded from the Federal Unemployment Tax Act 2 by reason of Section 3306(c)(8) of that act; and
(B) The organization had, within either the current or preceding calendar year, four or more individuals in employment for some portion of a day in each of 20 different weeks, whether or not such weeks were consecutive and regardless of whether they were employed at the same time;
(5) Any governmental entity for which service in employment as defined in subsection (h) of Code Section 34-8-35 is performed;
(6) Any employing unit which is or becomes an employer subject to this chapter within any calendar year shall be subject to this chapter during the whole of such calendar year. Any employer subject to this chapter shall remain an employer unless liability has been terminated in accordance with Code Section 34-8-163;
(7) Any employing unit which has elected to become an employer subject to this chapter pursuant to the following:
(A) An employing unit not otherwise subject to this chapter which files with the Commissioner its written election to become an employer subject to this chapter for not less than two calendar years shall, with the written approval of the Commissioner, become an employer subject to the same extent as all other employers as of the date stated in such approval. The employer shall cease to be subject as of January 1 of any calendar year subsequent to such two calendar years only if prior to April 30 in any calendar year it has filed with the Commissioner a written notice to that effect. However, any employing unit which has elected coverage under this Code section and subsequently becomes liable by operation of law may terminate coverage only as provided in Code Section 34-8-163; or
(B) Any employing unit for which services are performed that do not constitute employment as defined in this chapter may file with the Commissioner a written election that all such services performed by individuals in its employ in one or more distinct establishments or places of business shall be deemed to constitute employment for all purposes of this chapter. The election must be for not less than two calendar years. Upon the written approval of the Commissioner, such services shall be deemed to constitute employment subject to this chapter after the date stated in such approval. Such services shall cease to be deemed employment as of January 1 of any calendar year subsequent to such two calendar years only if prior to April 30 in any calendar year such employing unit has filed with the Commissioner a written notice to that effect;
(8) Any employing unit which acquired the organization, trade or business, or substantially all of the assets of another which at the time of such acquisition was an employer subject to this chapter;
(9) Any employing unit which acquired the organization, trade or business, or substantially all of the assets of another employing unit, if the employment record of such employing unit subsequent to such acquisition together with the employment record of the acquired unit prior to such acquisition, both within the same calendar year, would be sufficient to meet any other definition of employer within this chapter; or
(10) Any employing unit which is not an employer by reason of any other paragraph of this Code section:
(A) For which services are performed within the state with respect to which such employing unit is liable for any federal tax against which credit may be taken for contributions paid into a state unemployment compensation fund; or
(B) Which, as a condition for full tax credit against the tax imposed by the Federal Unemployment Tax Act, is required to be covered under this chapter.
(b) Nothing in this chapter shall be construed to require identical coverage to that provided by the Federal Unemployment Tax Act, as amended, nor shall interpretations as to liability or nonliability by federal administrative agencies be binding on the department.
1 8 U.S.C.A. §§ 1184(c) and 1101(a)(15)(H).
2 26 U.S.C.A. § 3301 et seq.
As used in this chapter, the term “employing unit” means any individual, the legal representative of a deceased individual, or any type of organization, including any partnership, association, trust, estate, joint-stock company, insurance company, or corporation, whether domestic or foreign, employee leasing company, common paymaster, or the receiver, trustee in bankruptcy, trustee, or successor thereof which has or had in its employ one or more individuals performing services for it within this state. Each individual performing services within this state for any employing unit which maintains two or more separate establishments within this state shall be deemed to be employed by a single employing unit for all the purposes of this chapter. Each individual employed to perform or to assist in performing the work of any agent or employee of an employing unit shall be deemed to be employed by such employing unit for all the purposes of this chapter, whether such individual was hired or paid directly by such employing unit or by such agent or employee, provided the employing unit had actual or constructive knowledge of such work.
(a) As used in this chapter, the term “employment” means any service, including service in interstate commerce, performed for wages or under any contract of hire, written or oral, express or implied.
(b) The term “employment” shall include an individual's entire service performed within and outside this state, if:
(1) The service is localized in this state. Service shall be deemed to be localized within a state if:
(A) The service is performed entirely within such state; or
(B) The service is performed both within and outside the state, but the service performed outside the state is incidental to the individual's service within the state. “Incidental service” shall include service that is temporary or transitory in nature or consists of isolated transactions;
(2) The service is not localized in any state but some of the service is performed in this state and:
(A) The base of operations or, if there is no base of operations, the place from which such service is directed or controlled is in this state; or
(B) The base of operations or place from which such service is directed or controlled is not in any state in which some part of the service is performed, but the individual's residence is in this state;
(3) The service is performed within the United States or Canada, if such service is not covered under the unemployment compensation law of any other state or Canada and the place from which the service is directed and controlled is in this state; or
(4) The service is performed outside the United States, except Canada, by an individual who is a citizen of the United States in the employ of an American employer, other than service which is deemed “employment” under subsections (d) and (e) of this Code section or the parallel provisions of another state's law, if:
(A) The employer's principal place of business is located in this state;
(B) The employer has no place of business in the United States, but:
(i) The employer is an individual who is a resident of this state;
(ii) The employer is a corporation which is organized under the laws of this state; or
(iii) The employer is a partnership or a trust and the number of partners or trustees who are residents of this state is greater than the number who are residents of any other state; or
(C) None of the criteria of subparagraphs (A) and (B) of this paragraph is met but the employer has elected coverage in this state or, the employer having failed to elect coverage in any state, the individual has filed a claim for benefits based on such service pursuant to this chapter.
(c) For the purposes of paragraph (4) of subsection (b) of this Code section:
(1) The term “American employer” means:
(A) An individual who is a resident of the United States;
(B) A partnership, if two-thirds or more of the partners are residents of the United States;
(C) A trust, if all the trustees are residents of the United States; or
(D) A corporation organized under the laws of the United States or of any state.
(2) The term “United States” includes the states, the District of Columbia, the Commonwealth of Puerto Rico, and the Virgin Islands.
(d) Services performed within this state but not covered under subsection (b) of this Code section shall be deemed to be employment subject to this chapter if contributions are not required and paid with respect to such services under an unemployment compensation law of any other state or of the federal government.
(e) Services not covered under subsection (b) of this Code section and performed entirely outside this state, with respect to no part of which contributions are required and paid under an unemployment compensation law of any other state or of the federal government, shall be deemed to be employment subject to this chapter if the individual performing such services is a resident of this state and the Commissioner approves the election of the employing unit for whom such services are performed that the entire service of such individual be deemed to be employment subject to this chapter.
(f) Except as otherwise provided in this Code section, services performed by an individual for wages shall be deemed to be employment subject to this chapter unless and until it is shown that:
(1)(A) Such individual has been, and will continue to be, free from control or direction over the performance of such services, both under the individual's contract of service and in fact, as demonstrated by whether the individual:
(i) Is not prohibited from working for other companies or holding other employment contemporaneously;
(ii) Is free to accept or reject work assignments without consequence;
(iii) Is not prescribed minimum hours to work or, in the case of sales, does not have a minimum number of orders to be obtained;
(iv) Has the discretion to set his or her own work schedule;
(v) Receives only minimal instructions and no direct oversight or supervision regarding the services to be performed, such as the location where the services are to be performed and any requested deadlines;
(vi) When applicable, has no territorial or geographic restrictions; and
(vii) Is not required to perform, behave, or act or, alternatively, is compelled to perform, behave, or act in a manner related to the performance of services for wages which is determined by the Commissioner to demonstrate employment, in accordance with this Code section and such rules and regulations as the Commissioner may prescribe; and
(B) Such individual is customarily engaged in an independently established trade, occupation, profession, or business; or
(2) Such individual and the services performed for wages are the subject of an SS-8 determination by the Internal Revenue Service, which decided against employee status.
(g)(1) The term “employment” shall include all services performed, including service in interstate commerce, by:
(A) Any officer of a corporation; or
(B) Any individual, other than an individual who is an employee under subparagraph (A) of this paragraph, who performs services for remuneration for any person:
(i) As an agent-driver or commission-driver engaged in distributing meat products, vegetable products, fruit products, bakery products, beverages other than milk, or laundry or dry-cleaning services for his or her principal; or
(ii) As a traveling or city salesman, other than an agent-driver or commission-driver, engaged upon a full-time basis in the solicitation on behalf of and the transmission to his principal, except for sideline sales activities on behalf of some other person, of orders from wholesalers, retailers, contractors, or operators of hotels, restaurants, or other similar establishments for merchandise for resale or supplies for use in their business operations.
(2) For purposes of subparagraph (B) of paragraph (1) of this subsection, the term “employment” shall include services described in divisions (1)(B)(i) and (1)(B)(ii) of this subsection performed only if:
(A) The contract of service contemplates that substantially all of the services are to be performed personally by such individual;
(B) The individual does not have a substantial investment in facilities used in connection with the performance of the services other than in facilities for transportation; and
(C) The services are not in the nature of a single transaction that is not part of a continuing relationship with the person for whom the services are performed.
(h) The term “employment” shall include service performed in the employ of this state or any of its instrumentalities or any political subdivision of this state or any of its instrumentalities or any instrumentality of more than one of the foregoing or any instrumentality of any of the foregoing and one or more other states or political subdivisions, provided that such service is excluded from “employment” as defined in the Federal Unemployment Tax Act 1 by Section 3306(c)(7) of that act and is not excluded from “employment” under paragraph (3) of subsection (j) of this Code section. Each of the governmental entities described above shall be individually liable for the payment of contributions or reimbursement for payment of benefits as provided in Code Sections 34-8-158 through 34-8-161; and each shall be individually responsible for the filing of quarterly wage summary reports as promulgated in regulations by the Commissioner and provided in Code Section 34-8-165. For the purposes of the unemployment compensation coverage provided for by this chapter, employees of county and district health agencies established under Chapter 3 of Title 31 and employees of the community service boards established under Chapter 2 of Title 37 are deemed to be employees of this state.
(i) The term “employment” shall include service performed by an individual in the employ of a religious, charitable, educational, or other organization, but only if such organization meets the definition of employer in Code Section 34-8-33.
(j) For the purposes of subsections (h) and (i) of this Code section, the term “employment” does not apply to service performed:
(1) In the employ of:
(A) A church or convention or association of churches; or
(B) An organization which is operated primarily for religious purposes and which is operated, supervised, controlled, or principally supported by a church or convention or association of churches;
(2) By a duly ordained, commissioned, or licensed minister of a church in the exercise of his or her ministry or by a member of a religious order in the exercise of duties required by such order;
(3) In the employ of a governmental entity referred to in subsection (h) of this Code section if such service is performed by an individual in the exercise of duties:
(A) As an elected official;
(B) As a member of a legislative body or a member of the judiciary of a state or political subdivision;
(C) As a member of the state National Guard or Air National Guard; or
(D) In a position which, under or pursuant to the laws of this state, is designated as (i) a major nontenured policy-making or advisory position, or (ii) a policy-making or advisory position, the performance of the duties of which ordinarily does not require more than eight hours per week;
(4) By an individual receiving rehabilitation or remunerative work in a facility conducted for the purpose of carrying out a program of rehabilitation for individuals whose earning capacity is impaired by age or physical or mental deficiency or injury or providing remunerative work for individuals who, because of their impaired physical or mental capacity, cannot be readily absorbed in the competitive labor market;
(5) By an individual receiving work relief or work training as part of an unemployment work-relief or work-training program assisted or financed in whole or in part by any federal agency or an agency of a state or political subdivision thereof. This exclusion shall not apply to programs that provide for and require unemployment insurance coverage for the participants; or
(6) By an inmate of a custodial or penal institution.
(k) The term “employment” shall include service performed on or in connection with an American vessel or American aircraft under a contract of service which is entered into within the United States or during the performance of which and while the employee is employed on the vessel or aircraft it touches at a port in the United States, if the employee is employed on and in connection with such vessel or aircraft when outside the United States.
(l) The term “employment” shall include domestic service in a private home, local college club, or local chapter of a college fraternity or sorority, but only if the employing unit meets the definition of employer in Code Section 34-8-33.
(m)(1) The term “employment” shall include service performed by an individual in agricultural labor, as defined in paragraph (2) of this subsection, but only if the employing unit meets the definition of employer in Code Section 34-8-33.
(2) As used in this subsection, the term “agricultural labor” means service on a farm:
(A) In the employ of any employing unit in connection with cultivating the soil or in connection with raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training, and management of livestock, bees, poultry, fur-bearing animals, and wildlife;
(B) In the employ of the owner or tenant or other operator of a farm in connection with the operation, management, conservation, improvement, or maintenance of such farm and its tools and equipment, if the major part of such service is performed on a farm;
(C) In connection with the production or harvesting of any commodity defined as an agricultural commodity in Section 15(g) of the federal Agricultural Marketing Act of 1946, 2 as amended, or in connection with the ginning of cotton or in connection with the operation or maintenance of ditches, canals, reservoirs, or waterways not owned or operated for profit and used exclusively for supplying and storing water for farming purposes; or
(D) In handling, planting, drying, packing, packaging, processing, freezing, grading, storing, or delivering to storage or to market or to a carrier for transportation to market any agricultural or horticultural commodity, but only if such service is performed as an incident to ordinary farming operations or, in the case of fruits and vegetables, as an incident to the preparation of such fruits or vegetables for market. This paragraph shall not be deemed to be applicable with respect to service performed in connection with commercial canning or commercial freezing or in connection with any agricultural or horticultural commodity after its delivery to a terminal market for distribution for consumption. This paragraph shall also apply to services performed in the employ of a group of operators of farms, or a cooperative organization of which such operators are members, in the performance of service prescribed in this paragraph, but only if such operators produced more than one-half of the commodity with respect to which such service is performed.
(3) As used in this subsection, the term “farm” includes:
(A) Those farms used for production of stock, dairy products, poultry, fruit, and fur-bearing animals; and
(B) Truck farms, plantations, ranches, nurseries, ranges, greenhouses, orchards, or other similar structures or tracts used primarily for the raising of agricultural or horticultural commodities.
(4) For the purposes of this subsection, any individual who is a member of a crew furnished by a crew leader to perform service in agricultural labor for any other person shall be treated as an employee of such crew leader:
(A) If such crew leader holds a valid certificate of registration under the federal Farm Labor Contractor Registration Act of 1963 or if substantially all the members of such crew operate or maintain tractors, mechanized harvesting or crop-dusting equipment, or any other mechanized equipment which is provided by such crew leader; and
(B) If such individual is not an employee of such other person within the meaning of paragraph (1) of this subsection.
(5) For the purposes of paragraph (4) of this subsection, in the case of any worker who is furnished by a crew leader to perform service in agricultural labor for any other person and who is not treated as an employee of such crew leader under this paragraph:
(A) Such other person and not the crew leader shall be treated as the employer of the worker; and
(B) Such other person shall be treated as having paid cash remuneration to the worker in an amount equal to the amount of cash remuneration paid to the worker by the crew leader, either on the worker's own behalf or on behalf of such other person, for the service in agricultural labor performed for such other person.
(6) For purposes of paragraphs (4) and (5) of this subsection, the term “crew leader” means an individual who:
(A) Furnishes workers to perform service in agricultural labor for any other person;
(B) Pays, either on such individual's own behalf or on behalf of another person, the workers so furnished for the service in agricultural labor performed by them; and
(C) Has not entered into a written agreement with such other person under which such individual is designated as an employee of such other person.
(n) The term “employment” shall not include:
(1) Service not in the course of the employer's trade or business performed in any calendar quarter by an employee, unless the cash remuneration paid for such service is $50.00 or more and such service is performed by an individual who is regularly employed by such employer to perform such service. For the purposes of this paragraph, an individual shall be deemed to be regularly employed by an employer during a calendar quarter only if:
(A) On each of some 24 days during such quarter such individual performs for such employer for some portion of the day service not in the course of the employer's trade or business; or
(B) Such individual was regularly employed, as determined under subparagraph (A) of this paragraph, by such employer in the performance of such service during the preceding calendar quarter;
(2) Service performed in the employ of a hospital, if such service is performed by a patient of a hospital;
(3) Service performed by an individual in the employ of the individual's son, daughter, or spouse and service performed by a child under the age of 21 years in the employ of his or her father or mother;
(4) Service performed in the employ of the United States government or of an instrumentality wholly owned by the United States; except that, if the Congress of the United States shall permit states to require any instrumentalities of the United States to make payments into an unemployment fund under a state unemployment compensation law or act, then, to the extent permitted by Congress and from and after the date as of which such permission becomes effective, all of the provisions of this chapter shall be applicable to such instrumentalities and to services performed by employees for such instrumentalities in the same manner, to the same extent, and on the same terms as to all other employers and employing units;
(5) Service performed in the employ of an employer, as defined by the federal Railroad Unemployment Insurance Act, 3 or as an “employee representative,” as defined by the federal Railroad Unemployment Insurance Act, and service with respect to which unemployment compensation is payable under an unemployment compensation system for maritime employees or under any other unemployment compensation system established by an act of Congress; provided, however, that the Commissioner is authorized and directed to enter into agreements with the proper agencies under such act or acts of Congress, which agreements shall become effective ten days after publication thereof in the manner provided in Code Section 34-8-71 for general rules, to provide reciprocal treatment to individuals who have, after acquiring potential rights to benefits under this chapter, acquired rights to unemployment compensation under such act or acts of Congress or who have, after acquiring potential rights to unemployment compensation under such act or acts of Congress, acquired rights to benefits under this chapter;
(6) Service performed in any calendar quarter in the employ of any organization exempt from income tax under 26 U.S.C. Section 501:
(A) The remuneration for which does not exceed $50.00; or
(B) In the employ of a school, college, or university, if such service is performed by a student who is enrolled and is regularly attending classes at such school, college, or university or by the spouse of such a student, if such spouse is advised, at the time such spouse commences to perform such service, that (i) the employment of such spouse to perform such service is provided under a program to provide financial assistance to such student by such school, college, or university and (ii) such employment will not be covered by any program of unemployment insurance;
(7) Services performed as a student nurse in the employ of a hospital or a nurses' training school by an individual who is enrolled and is regularly attending classes in a nurses' training school chartered or approved pursuant to state law; and service performed in the employ of a hospital in a clinical training program for a period of one year by an individual immediately following the completion of a four-year course in a medical school chartered or approved pursuant to state law;
(8) Service performed by an individual under the age of 18 years in the delivery or distribution of newspapers or shopping news, not including delivery or distribution to any point for subsequent delivery or distribution;
(9) Service performed by an individual for an employer as an insurance agent or as an insurance solicitor or as a licensed real estate salesperson, if all such service performed by such individual for such employer is performed for remuneration solely by way of commission;
(10) Services performed for an employer who is a common carrier of persons or property by an individual, firm, or corporation, as commission agent, in disseminating information with respect to and selling transportation of persons or property, and in maintaining facilities incidental thereto, including waiting areas, dining rooms, and rest rooms for passengers and storage space for property; provided, however, that:
(A) All such services are performed by such individual, firm, or corporation as an independent contractor for such employer and are remunerated solely by way of commissions on the sale price of such transportation;
(B) The employer exercises no general control over such commission agent but only such control as is necessary to assure compliance with its filed tariffs and with the laws of the United States and the State of Georgia and the rules and regulations of the Department of Public Safety, the Federal Motor Carrier Safety Administration, and all other regulatory bodies having jurisdiction of the premises; and
(C) Such services are not rendered in an establishment devoted primarily to use as a waiting room for the passengers or as a storage room for the property carried or to be carried by such common carrier;
(11) Service performed by an individual who is enrolled as a student at a nonprofit or public educational institution which normally maintains a regular faculty and curriculum and normally has a regularly organized body of students in attendance at the place where its educational activities are carried on, in a full-time program taken for credit at such institution, which program combines academic instruction with work experience, if such service is an integral part of such program and such institution has so certified to the employer, except that this paragraph shall not apply to service performed in a program established for or on behalf of an employer or group of employers;
(12) Service performed by an individual in or as an officer or member of the crew of a vessel while it is engaged in the catching, taking, harvesting, cultivating, or farming of any kind of fish, shellfish, crustacea, sponges, seaweed, or other aquatic forms of animal and vegetable life, including service performed by any such individual as an ordinary incident to any such activity, except:
(A) Service performed in connection with the catching or taking of salmon or halibut for commercial purposes; and
(B) Service performed on or in connection with a vessel of more than ten net tons, which tonnage shall be determined in the manner provided for determining the registered tonnage of merchant vessels under the laws of the United States;
(13) Service, other than service performed by a child under the age of 18 years in the employ of his or her father or mother, performed by an individual on a boat engaged in catching fish or other forms of aquatic animal life under an arrangement with the owner or operator of such boat pursuant to which:
(A) Such individual does not receive any cash remuneration other than as provided in subparagraph (B) of this paragraph;
(B) Such individual receives a share of the boat's catch or, in the case of a fishing operation involving more than one boat, the boats' catch of fish or other forms of aquatic animal life or a share of the proceeds from the sale of such catch; and
(C) The amount of such individual's share depends on the amount of the boat's catch or, in the case of a fishing operation involving more than one boat, the boats' catch of fish or other forms of aquatic animal life,
but only if the operating crew of such boat or, in the case of a fishing operation involving more than one boat, the operating crew of each boat from which the individual receives a share is normally made up of fewer than ten individuals;
(14) Service performed in the employ of a foreign government;
(15) If the services performed during one-half or more of any pay period by an employee for the employing unit employing him or her constitute employment, all the services of such employee for such period shall be deemed to be employment; but, if the services performed during more than one-half of any such pay period by an employee for the employing unit employing him or her do not constitute employment, then none of the services of such employee for such period shall be deemed to be employment. As used in this Code section, the term “pay period” means a period of not more than 31 consecutive days for which payment of remuneration is ordinarily made to the employee by the employing unit employing him or her. This Code section shall not be applicable with respect to services performed in a pay period by an employee for the employing unit employing him or her where any of such service is excepted by paragraph (5) of this subsection;
(15.1)(A) Services performed by a music industry professional provided that:
(i) The services are provided by the music industry professional under contract with an individual or entity that is in compliance with said contract that expressly provides that such music industry professional:
(I) Has the ability to set his or her own hours and work schedule provided that completion dates are met; and
(II) Shall not be treated as an employee for federal and state tax purposes; and
(ii) The music industry professional customarily and regularly exercises discretion and independent judgment in the performance of the services provided for in such contract.
(B) As used in this paragraph, the term “music industry professional” means an individual engaged to render any creative, production, marketing, or distribution services related to a sound recording or musical composition. Such term shall include, but shall not be limited to, the following individuals when so engaged: a recording artist, songwriter, lyricist, composer, composition proofer, recording producer, recording director, musical engineer, musical mixer, musician, or vocalist; a music publicist; a radio promoter; or a photographer who works on recording photo shoots, album covers, or other press or publicity purposes;
(16) Services performed by an independent contract carrier for an employer who is a publisher or distributor of printed materials by an individual, firm, or corporation in transporting, assembling, delivering, or distributing printed materials and in maintaining any facilities or equipment incidental thereto, provided that:
(A) The independent contract carrier has with the employer a written contract as an independent contractor;
(B) Remuneration for the independent contract carrier is on the basis of the number of deliveries accomplished;
(C) With exception to providing the area or route which an independent contract carrier may or may not service, or providing materials or direction for the packaging or assembly of printed materials, the employer exercises no general control regarding the method of transporting, assembling, delivering, or distributing the printed materials; and
(D) The contract entered by the independent contract carrier for such services does not prohibit it from the transportation, delivery, assembly, or distribution of printed materials for more than one employer.
Provided, however, that the exclusion provided in this paragraph shall not apply to any such employment on behalf of an employing unit defined in subsection (h) or (i) of this Code section;
(16.1)(A) Services performed by or facilitated through a network company, provided that the network company has a written contract with the individual, with which said network company is in compliance, that expressly provides that the network company shall not:
(i) Unilaterally prescribe specific dates, times of day, or a minimum number of hours during which an individual is required to be logged into the network company's online enabled application or platform;
(ii) Terminate such contract for not accepting, and shall not require an individual to accept, any specific transportation service request or delivery service request for services as a condition of maintaining access to the network company's online enabled application or platform; provided, however, that such network company may require, as part of such contract, a certain percentage of transportation service requests or delivery service requests to be accepted;
(iii) Restrict an individual from performing transportation or delivery services through other network companies, except while the individual is performing services through the network company; and
(iv) Contractually restrict an individual from working in any other lawful occupation or business.
(B) As used in this paragraph, the term:
(i) “Ride share network service” shall have the same meaning as provided in Code Section 40-1-190.
(ii) “Network company” means a ride share network service or a business entity that maintains an online enabled application or platform used to facilitate delivery services in this state;
(17) Services performed for a common carrier of property, persons, or property and persons by an individual consisting of the pickup, transportation, and delivery of property, persons, or property and persons; provided that:
(A) The individual is free to accept or reject assignments from the common carrier;
(B) Remuneration for the individual is on the basis of commissions, trips, or deliveries accomplished;
(C) Such individual personally provides the vehicle used in the pickup, transportation, and delivery of the property, persons, or property and persons;
(D) Such individual has a written contract with the common carrier;
(E) The written contract states expressly and prominently that the individual knows:
(i) Of the responsibility to pay estimated social security taxes and state and federal income taxes;
(ii) That the social security tax the individual must pay is higher than the social security tax the individual would pay if he or she were an employee; and
(iii) That the work is not covered by the unemployment compensation laws of Georgia; and
(F) The written contract does not prohibit such individual from the pickup, transportation, or delivery of property, persons, or property and persons for more than one common carrier or any other person or entity; or
(18) Services performed by a direct seller, provided that:
(A) Such individual:
(i) Is engaged in the trade or business of selling or soliciting the sale of consumer products, including services or other intangibles, to any buyer on a buy-sell basis, a deposit-commission basis, or any similar basis for resale by the buyer or any other person in the home or otherwise than in a permanent retail establishment; or
(ii) Is engaged in the trade or business of selling or soliciting the sale of consumer products, including services or other intangibles, in the home or otherwise than in a permanent retail establishment;
(B) Substantially all the remuneration, whether or not paid in cash, for the performance of the services described in subparagraph (A) of this paragraph is directly related to sales or other output, including the performance of services, rather than to the number of hours worked; and
(C) The services performed by the individual are performed pursuant to a written contract between such individual and the person for whom the services are performed and such contract provides that the individual will not be treated as an employee for federal and state tax purposes.
(o) When determining whether an employing unit has properly classified an individual's service as employment, as such term is defined in this Code section, the department shall make a determination demonstrated by evidence timely submitted in response to an investigation conducted by the department. The department shall make such determination based upon the totality of the circumstances as applied to the provisions of this Code section that include and exclude certain services as employment.
(p) This Code section shall not apply to Chapter 9 of this title.
1 26 U.S.C.A. § 3301 et seq.
2 7 U.S.C.A. § 1621 et seq.
3 45 U.S.C.A. § 351 et seq.
As used in this chapter, the term “employment office” means a free public employment office or branch thereof operated by this state or maintained as a part of a state controlled system of public employment offices.
As used in this chapter, the term “Employment Security Administration Fund” means the Employment Security Administration Fund which is established by this chapter and from which administrative expenses under this chapter shall be paid.
As used in this chapter, the term “experience rating account” means the individual experience of a covered employer, as determined by factors set forth in Code Sections 34-8-150 through 34-8-157.
As used in this chapter, the term “extended benefits” means benefits, including benefits payable to federal civilian employees and to ex-service personnel pursuant to 5 U.S.C. Chapter 85, payable to an individual under Code Section 34-8-197 for the weeks of unemployment in the eligibility period of the individual.
As used in this chapter, the term “fund” means the Unemployment Compensation Fund which is established by Code Section 34-8-83 and from which all benefits provided under this chapter shall be paid.
As used in this chapter, the term “insured work” means employment for a liable employer.
As used in this chapter, the term “liable employer” means an employer who is responsible for the payment of unemployment contributions or payments in lieu of contributions or a governmental entity.
(a) As used in this chapter and except as otherwise provided in subsection (b) of this Code section, the term “most recent employer” means, for claims with benefit years that begin on or after July 1, 2015, the last employer for whom an individual worked.
(b) As used in this chapter and except as otherwise provided in subsection (a) of this Code section, the term “most recent employer” means, for claims with benefit years that begin on or before June 30, 2015, the last liable employer for whom an individual worked and:
(1) The individual was separated from work for a disqualifying reason;
(2) The individual was released or separated from work under nondisqualifying conditions and earned wages of at least ten times the weekly benefit amount of the claim; or
(3) The employer files the claim for the individual by submitting such reports as authorized by the Commissioner.
(c) Where no employer in subsection (b) of this Code section meets the definition of most recent employer from the beginning of the base period to the date the claim is filed, the last liable employer for whom the individual worked shall be considered as the most recent employer for determining eligibility for benefits.
(d) Where periods of employment with the same liable employer fail, independently, to meet the definition of most recent employer in subsection (a) or (b) of this Code section, such periods of employment may be used cumulatively to determine the most recent employer and eligibility for benefits shall be determined by the reason for separation from the last employment with such employer.
As used in this chapter, the term “state” includes the states of the United States of America, the District of Columbia, the Commonwealth of Puerto Rico, and the Virgin Islands.
As used in this chapter, the term “supplemental unemployment benefits” means only:
(1) Benefits which are paid to an employee because of such employee's involuntary separation from the employment of the employer, whether or not such separation is temporary, which separation results directly from a reduction in force, the discontinuance of a plant or operation, or other similar conditions; and
(2) Sickness and accident benefits subordinate to the benefits described in paragraph (1) of this Code section.
As used in this chapter, the term “temporary help contracting firm” means any person who is in the business of employing individuals and, for compensation from a third party, providing those individuals to perform work for the third party under the general or direct supervision of the third party. Employment with a temporary help contracting firm is characterized by a series of limited-term assignments of an employee to a third party, based on a contract between the temporary help contracting firm and the third party. A separate employment contract exists between the temporary help contracting firm and each individual it hires as an employee. Completion of an assignment for a third party by an employee employed by a temporary help contracting firm does not, in itself, terminate the employment contract between the temporary help contracting firm and the employee.
For purposes of this chapter, an individual shall be deemed “unemployed” in any week during which the individual performs no services and with respect to which no wages are payable to him or her or in any week of less than full-time work if his or her deductible earnings do not equal or exceed his or her weekly benefit amount. The Commissioner shall prescribe regulations applicable to unemployed individuals and shall make such distinctions in the procedures as to total unemployment, partial unemployment of individuals attached to their regular jobs, temporary employment, and other forms of short-time work as is deemed necessary. An individual compensated solely on a commission basis shall be deemed to be unemployed only upon the termination of his or her contract of employment.
As used in this chapter, the term “valid claim” means a claim filed for unemployment compensation benefits in which sufficient base period wages establish a monetary entitlement as provided in Code Section 34-8-193.
(a)(1) As used in this chapter, the term “wages” means all remuneration for personal services, including commissions and bonuses and the cash value of all remuneration paid in any medium other than cash. The reasonable cash value of remuneration in any medium other than cash shall be estimated and determined in accordance with the rules or regulations prescribed by the Commissioner.
(2) The term “wages” also means, for the purpose of determining benefit rights of a claimant, wages payable but unpaid where the employer has been adjudicated bankrupt.
(b) The term “wages” shall not include:
(1) For the purposes of Code Section 34-8-20 and Articles 5 and 6 of this chapter, except Code Sections 34-8-156 and 34-8-157, any remuneration paid in excess of taxable wages. For purposes of this chapter, “taxable wages” means that portion of remuneration paid by an employer to each employee, subject to unemployment insurance contributions for each calendar year which does not exceed the following amounts:
(A) For the period January 1, 1976, through December 31, 1982--$6,000.00;
(B) For the period January 1, 1983, through December 31, 1985--$7,000.00;
(C) For the period January 1, 1986, through December 31, 1989--$7,500.00;
(D) For the period January 1, 1990, through December 31, 2012--$8,500.00; and
(E) January 1, 2013, and thereafter--$9,500.00;
provided, however, that in cases of successorship of an employer, the amount of wages paid by the predecessor shall be considered for purposes of this provision as having been paid by the successor employer;
(2) The amount of any payment to or on behalf of an employee under a plan or system established by an employer which makes provision for its employees generally or for a class or classes of its employees, including any amount paid by an employer for insurance or annuities or into a fund to provide for any such payment, on account of:
(A) The termination of an employee's employment relationship because of (i) death, or (ii) retirement for disability, other than any such payment or series of payments which would have been paid to the employee or his or her dependents if the employee's employment relationship had not been so terminated;
(B) The supplementation of unemployment benefits to an individual under the terms of a written agreement, contract, trust arrangement, or other instrument. Such payments shall not be construed to be wages or compensation for personal services under this chapter and benefit payments under this chapter shall not be denied or reduced because of the receipt of payments under such arrangements or plans;
(C) Sickness or accident disability, but, in the case of payments made to an employee or any of his or her dependents, this subparagraph shall exclude from the term “wages” only payments which are received under a workers' compensation law;
(D) Medical and hospitalization expenses in connection with sickness or accident disability;
(E) Death; or
(F) Temporary layoff, but, in the case of payments made to an employee who is temporarily laid off or to any of his or her dependents, this subparagraph shall exclude from the term “wages” only payments made out of a 100 percent vested account in the name of such employee under a pension or profit-sharing plan or trust that is qualified under Section 501(a) of the federal Internal Revenue Code of 1986;
(3) Payment by an employer without deduction from the remuneration of an employee of the tax imposed by Section 3101 of the federal Internal Revenue Code of 1986, with respect to remuneration paid to an employee for domestic service in a private home of the employer or for agricultural labor;
(4) Any remuneration paid for services by an alien, unless such alien is an individual who was lawfully admitted for permanent residence at the time such services were performed, was lawfully present for purposes of performing such services, or otherwise was permanently residing in the United States under color of law;
(5) Any remuneration paid in any medium other than cash to an employee for agricultural labor or for service not in the course of the employer's trade or business;
(6) Any payment on account of sickness or accident disability, or medical or hospitalization expenses in connection with sickness or accident disability, made by an employer to, or on behalf of, an employee after the expiration of six calendar months following the last calendar month in which the employee worked for such employer;
(7) Any payment made to, or on behalf of, an employee or his beneficiary from, under, or to a trust, annuity plan, simplified employee pension plan, annuity contract, exempt governmental deferred compensation plan, supplemental pension benefits plan or trust, or cafeteria plan, as such payments are defined under Section 3306(b)(5) of the federal Internal Revenue Code of 1986; or
(8) Any payment made by an employer to a survivor or the estate of a former employee after the calendar year in which such employee died.
(c) Any remuneration not elsewhere included in the definition of wages by this chapter, but for which services are performed within this state and for which an employing unit is liable for any federal tax against which credit may be taken for contributions paid into a state fund, shall, for the purposes of this chapter and notwithstanding any other provisions, constitute wages for employment, but only to the extent that such remuneration constitutes wages on which federal tax is payable.
As used in this chapter, the term “week” means such period of seven consecutive calendar days ending at 12:00 Midnight as the Commissioner may by regulation prescribe.
As used in this chapter, the term “weekly benefit amount” means the dollar amount, prior to any deductions, which an individual may be entitled to receive for one week of total unemployment.
As used in this chapter, the term “Governor's designee” means one or more departments, boards, commissions, or agencies or the elected or appointed heads of such departments, boards, commissions, or agencies of this state selected by the Governor.
(a) It shall be the duty of the Commissioner to administer this chapter.
(b) The Commissioner shall have power and authority to adopt, amend, or rescind such rules and regulations and to employ such persons, make such expenditures, require such reports, make such investigations, and take such other action as deemed necessary or suitable to that end, and such rules and regulations shall be effective upon publication in the manner, not inconsistent with this chapter, which the Commissioner shall prescribe.
(c) The Commissioner shall determine methods of organization and procedure in accordance with this chapter and shall have an official seal, which shall be judicially noticed.
(d) Not later than February 1 of each year, the Commissioner shall submit to the Governor a report covering the administration and operation of this chapter during the preceding fiscal year and shall make such recommendations for amendments to this chapter as deemed proper. Such report shall include a balance sheet of the moneys in the fund in which there shall be provided, if possible, a reserve against the liability in the future years to pay benefits in excess of the then current contributions, which reserve shall be established by the Commissioner in accordance with accepted actuarial principles on the basis of statistics regarding employment, business activity, and other relevant factors for the longest possible period.
(e) Whenever the Commissioner believes that a change in contribution or benefit rates will become necessary to protect the solvency of the fund, the Commissioner shall promptly so inform the Governor and the General Assembly and make recommendations with respect thereto.
(f) The Commissioner shall fully cooperate with the agencies of other states and shall make every proper effort to oppose and prevent any further action which would in the Commissioner's judgment tend to effect complete or substantial federalization of state unemployment compensation funds or state employment security programs. In addition, the Commissioner may make and may cooperate with other appropriate agencies in making studies as to the practicality and probable cost of possible new state administered social security programs and the relative desirability of state, rather than federal, action in any such field.
(g) The Commissioner is authorized to enter into such cooperative agreements or contracts with appropriate officials in other states or with the United States secretary of labor for the purpose of the reciprocal collection of overpayments or delinquent contributions, penalties, interest, and costs or for such other purposes as reasonably relate to the discharge of the Commissioner's responsibilities under this chapter.
(h) Notwithstanding any other provision of this chapter, the Commissioner may recover an overpayment of benefits paid to any individual under this state or another state's unemployment benefit law or under an unemployment benefit program of the United States.
(i)(1) Notwithstanding any other provision of law, the Commissioner shall have the authority to adopt emergency rules when a state-wide emergency declared by the Governor is in effect and the General Assembly is not in session. Such rules may temporarily:
(A) Modify the maximum benefit amount for regular state benefits, not to exceed 26 times the weekly benefit amount;
(B) Suspend unemployment insurance tax filing and payment deadlines and penalties;
(C) Waive charges to employers for benefits paid;
(D) Expedite the processing of claims; and
(E) Waive work search reporting requirements, except when such waiver would create a conformity issue with federal law.
(2) Any emergency rule adopted by the Commissioner pursuant to this subsection shall expire the earlier of:
(A) A date specified by the Commissioner not to exceed 120 days from the date of the adoption of such emergency rule; or
(B) The date on which the state-wide emergency ends as declared by the Governor.
(3) Any emergency rule adopted pursuant to this subsection shall be published on the website of the department and submitted as promptly as reasonably practicable to the Governor, the Speaker of the House of Representatives, the President Pro Tempore of the Senate, and the chairpersons of the House Committee on Industry and Labor and the Senate Insurance and Labor Committee.
(4) Any rule promulgated under this Code section shall not supersede an executive order of the Governor.
The Commissioner shall make available to the public copies of the text of this chapter, any rules or regulations promulgated pursuant to this chapter, the Commissioner's annual reports to the Governor, and any other material the Commissioner deems relevant. Such copies shall be furnished without cost, provided the request for copies is nominal and reasonable.
The Commissioner shall appoint a State Advisory Council and may appoint local or industry advisory councils, composed in each case of an equal number of employer representatives and employee representatives who may fairly be regarded as representative because of their vocation, employment, or affiliations and of such members representing the general public as the Commissioner may designate. Such councils shall aid the Commissioner in formulating policies and discussing problems related to the administration of this chapter and in assuring impartiality and freedom from political influence in the resolution of such problems. Such advisory councils shall serve without compensation but shall be reimbursed for any necessary expenses.
(a) The department shall administer the provisions of this chapter and all programs relating to state employment services and unemployment compensation.
(b) The Commissioner may, at his or her discretion, create an Employment Security Agency and a director of such agency within the department and may delegate in writing to such agency and director and to any subordinate official or employee such powers, duties, and responsibilities as the Commissioner deems appropriate to administer this chapter and the programs relating to state employment services and unemployment compensation.
Subject to other provisions of this chapter, the Commissioner is authorized to appoint, fix the compensation of, and prescribe the duties and powers of such officers, accountants, attorneys, experts, and other persons as may be necessary in the performance of the Commissioner's duties under this chapter. The Commissioner may delegate to any such person such power and authority as deemed reasonable and proper for the effective administration of this chapter and may, in the discretion of the Commissioner, bond any persons handling moneys or signing checks under this chapter.
The Commissioner shall designate an experience rating committee. The committee shall be composed of one representative of employers, one representative of employees, and one representative of the department. The committee shall be constituted as a continuing committee for the purpose of conducting studies of experience rating and from time to time making recommendations to the Commissioner and the advisory council as to desirable modifications and improvements of the law, procedures, and regulations adopted in connection with the experience rating program.
The Commissioner, with the advice and aid of the State Advisory Council and the local or industry advisory councils, shall take all appropriate steps to reduce and prevent unemployment; to encourage and assist in the adoption of practical methods of vocational training, retraining, and vocational guidance; to investigate, recommend, advise, and assist in the establishment and operation, by municipalities, counties, school districts, and the state, of reserves for public works to be used in times of business depressions and unemployment; to promote the reemployment of unemployed workers throughout the state in every other way that may be feasible; and to these ends to carry on and publish in print or electronically the results of investigations and research studies.
(a) The State Employment Service is established as a program administered on behalf of the State of Georgia by the Governor's designee. The Governor's designee shall establish and maintain free public employment offices in such number and in such places as may be necessary for the proper administration of this chapter and for the purposes of the state fulfilling such duties as are within the purview of the federal Wagner-Peyser Act, 29 U.S.C. Section 49, as amended. The Governor's designee is authorized to cooperate with or enter into agreements with any official or agency of the United States having powers or duties under the federal Wagner-Peyser Act and to do and perform all things necessary to secure to this state the benefits of that act in the promotion and maintenance of a system of public employment offices. The provisions of the federal Wagner-Peyser Act are accepted by this state, in conformity with Section 4 of that act, and this state will observe and comply with the requirements thereof. The United States secretary of labor shall be notified as to the Governor's designee that shall serve as the designated and constituted agency of this state for the purposes of the federal Wagner-Peyser Act.
(b) For the purpose of establishing and maintaining free public employment offices, the Governor's designee is authorized to enter into agreements with the Railroad Retirement Board or any other agency of the United States charged with the administration of any unemployment compensation law, with the department or with any political subdivision of this state, or with any private, nonprofit organization; and, as a part of any such agreement, the Governor's designee may accept moneys, services, or quarters as a contribution.
(a) There shall be a Board of Review of the Department of Labor, which board shall consist of three members. Each member shall be appointed by the Governor for a term of six years. Each member shall be compensated for such member's services, which compensation shall be fixed by the Governor and paid from the Employment Security Administration Fund. The Governor may, at any time, after notice and a hearing, remove any member for cause. Vacancies shall be filled by appointment by the Governor for the unexpired term.
(b) The Governor may appoint additional alternative members of the board of review as needed to ensure the prompt and efficient review of cases by the board of review. Those members may participate in any cases in which the other members are unable to participate.
(c) The board of review shall have the powers and authority and shall perform the functions conferred upon it by this chapter.
(a) In the administration of this chapter, the Commissioner shall cooperate, to the fullest extent consistent with this chapter, with the United States secretary of labor and the federal official responsible for the allocation of funds for the administration of this chapter and for making other administrative determinations within the federal province under the federal Social Security Act, 1 as amended; shall make such reports in such form and containing such information as the United States secretary of labor and such federal official may from time to time require and shall comply with such provisions as the United States secretary of labor and such federal official may from time to time find necessary to assure the correctness and verification of such reports; and shall comply with the regulations prescribed by the United States secretary of labor and such federal official governing the expenditures of such sums as may be allotted and paid to this state under Title III of the federal Social Security Act 2 for the purpose of assisting in the administration of this chapter.
(b) Upon request therefor, the Commissioner shall furnish to any agency of the United States charged with the administration of public works or assistance through public employment the name, address, ordinary occupation, and employment status of each recipient of benefits and such recipient's rights to further benefits under this chapter.
(c) The Commissioner may request the comptroller of the currency of the United States to cause an examination of the correctness of any return or report of any national banking association rendered pursuant to this chapter and may in connection with such request transmit any such report or return to the comptroller of the currency of the United States as provided in 26 U.S.C. Section 3305(c).
1 42 U.S.C.A. § 301 et seq.
2 42 U.S.C.A. § 501 et seq.
(a) The Commissioner shall participate in any arrangements for the payment of compensation on the basis of combining an individual's wages and employment covered under this chapter with the individual's wages and employment covered under the unemployment compensation laws of other states, which arrangements are approved by the United States secretary of labor in consultation with the state unemployment compensation agencies as reasonably calculated to assure the prompt and full payment of compensation in such situations and which include provisions for (1) applying the base period of a single state law to a claim involving the combining of an individual's wages and employment covered under two or more state unemployment compensation laws and (2) avoiding the duplicate use of wages and employment by reason of such combining.
(b) Payments to another state's trust fund shall be deemed to be benefits for the purposes of Code Sections 34-8-83 through 34-8-86, 34-8-150 through 34-8-161, 34-8-191, and 34-8-193, provided that appropriate charges may be made to employers' accounts for benefits so payable based on wages in this state. The Commissioner is authorized to make payment to other state or federal agencies and receive payment from such other state or federal agencies, in accordance with arrangements pursuant to this Code section.
(a) There is created a trust fund, with the Commissioner as trustee, to be known as the Employment Security Administration Fund. All moneys which are deposited or paid into this fund shall be continuously available to the Commissioner for expenditure in accordance with this chapter and shall not lapse at any time or be transferred to any other fund except as provided in this Code section and shall not be subject to Article 4 of Chapter 12 of Title 45. All moneys which are deposited or paid into this fund for the purposes described in Code Section 34-8-77 shall be continuously available to the Governor's designee for expenditure in accordance with the purposes described in such Code section and shall be transferred by the Commissioner at the discretion of such Governor's designee. All moneys in this fund, except money received under Code Section 34-8-85 pursuant to Section 903 of the federal Social Security Act, as amended, which are received from the federal government or any agency thereof or which are appropriated by this state for the purposes described in Code Section 34-8-77 shall be expended solely for the purposes and in the amounts found necessary by the United States secretary of labor for the proper and efficient administration of this chapter.
(b) The fund shall consist of all moneys appropriated by this state for the purposes described in Code Section 34-8-77; all moneys received from the United States or any agency thereof, including the United States secretary of labor; all moneys, except funds appropriated pursuant to Code Section 34-8-92, received from any other source for such purpose; any moneys received from any agency of the United States or any other state as compensation for services or facilities supplied to such agency; any amounts received pursuant to any surety bond or insurance policy or from other sources for losses sustained by the Employment Security Administration Fund or by reason of damage to equipment or supplies purchased from moneys in such fund; and any proceeds realized from the sale or disposition of any such equipment or supplies which may no longer be necessary for the proper administration of this chapter.
(c) All moneys in this fund shall be deposited, administered, and disbursed in the manner and under the conditions and requirements provided under this chapter, except that moneys in this fund shall not be commingled with other state funds but shall be maintained in a separate account on the books of a depository bank. Such moneys shall be secured by the depository in which they are held to the same extent and in the same manner as required by the general depository laws of this state, and collateral pledged shall be maintained in a separate custody account. The Commissioner shall be liable on the Commissioner's official bond for the faithful performance of duties in connection with the Employment Security Administration Fund provided for under this chapter. All sums recovered on any surety bond for losses sustained by the Employment Security Administration Fund shall be deposited in the fund.
(d) Notwithstanding any provision of this Code section, all money requisitioned and deposited in this fund under Code Section 34-8-85 pursuant to Section 903 of the federal Social Security Act, as amended, shall remain part of the Unemployment Trust Fund and shall be used only in accordance with conditions specified in Code Section 34-8-85.
This state recognizes its obligation to replace and declares it to be the policy of this state that funds will be provided in the future and applied to the replacement of any moneys received from the United States secretary of labor or the federal official responsible for the allocation of funds for the administration of this chapter and for making other administrative determinations within the federal province under Title III of the federal Social Security Act; 1 any unencumbered balances in the Employment Security Administration Fund as of that date; any moneys thereafter granted to this state pursuant to the provisions of the federal Wagner-Peyser Act; 2 and any moneys made available by the state or its political subdivisions and matched by such moneys granted to this state pursuant to the provisions of the federal Wagner-Peyser Act, which the United States secretary of labor or other responsible federal official finds, because of any action or contingency, have been lost or have been expended for purposes other than or in amounts in excess of those found necessary by the United States secretary of labor or other responsible federal official. Such moneys shall be promptly replaced by moneys appropriated for such purpose from the general funds of this state to the Employment Security Administration Fund for expenditure as provided in Code Section 34-8-81. The Commissioner or the Governor's designee, as may be applicable, shall promptly report to the Governor, and the Governor to the General Assembly, the amount required for such replacement.
1 42 U.S.C.A. § 501 et seq.
2 29 U.S.C.A. § 49 et seq.
There is established as a trust fund, separate and apart from all other public funds of this state, an Unemployment Compensation Fund, which shall be administered by the Commissioner exclusively for the purposes of this chapter. The fund shall consist of:
(1) All contributions collected under this chapter;
(2) All payments in lieu of contributions collected under Code Sections 34-8-158 through 34-8-161;
(3) Interest earned upon any moneys in the fund;
(4) Any property or securities acquired through the use of moneys belonging to the fund;
(5) All earnings of such property or securities;
(6) All moneys credited to this state's account in the Unemployment Trust Fund pursuant to Section 903 and related sections of the federal Social Security Act, 1 as amended;
(7) All moneys received from the federal government as reimbursements pursuant to Section 204 of the Federal-State Extended Unemployment Compensation Act of 1970; and
(8) All moneys received for the fund from any other source.
1 42 U.S.C.A. § 1103.
The Commissioner shall be custodian of the Unemployment Compensation Fund and shall administer the fund in accordance with such rules and regulations as the Commissioner shall prescribe. The Commissioner shall maintain within the fund three separate accounts: (1) a clearing account, (2) an unemployment trust fund account, and (3) a benefit account. The Commissioner shall immediately deposit all moneys payable to the fund, upon receipt thereof, in the clearing account. Refunds payable pursuant to Code Section 34-8-164 may be paid from the clearing account or the benefit account upon authorization issued by the Commissioner. After clearance thereof, all other moneys in the clearing account shall be immediately deposited with the secretary of the treasury of the United States to the credit of the account of this state in the Unemployment Trust Fund established and maintained pursuant to Section 904 of the Social Security Act, 1 as amended, any provisions of law in this state relating to the deposit, administration, release, or disbursement of moneys in the possession or custody of this state to the contrary notwithstanding. The benefit account shall consist of all moneys requisitioned from this state's account in the Unemployment Trust Fund. Except as otherwise provided in this Code section, moneys in the clearing and benefit accounts may be deposited by the Commissioner in any bank or public depository in which general funds of the state may be deposited, but no public deposit insurance charge or premium shall be paid out of the fund; provided, however, that any charges for exchange on local bank checks in payment of contributions may be paid as expense of collection from the Employment Security Administration Fund. Such money shall be secured by the depository bank to the same extent and in the same manner as required by the general depository laws of this state; and collateral pledged for this purpose or bonds given for this purpose shall be kept separate and distinct from any collateral pledged to secure the other funds of the state. The Commissioner shall be liable on the Commissioner's official bond for the faithful performance of duties in connection with the Unemployment Compensation Fund as provided under this chapter. All sums recovered on any surety bond for losses sustained by the Unemployment Compensation Fund shall be deposited in said fund.
1 42 U.S.C.A. § 1104.
Moneys shall be requisitioned from this state's account in the Unemployment Trust Fund solely for the payment of regular benefits and extended benefits and for refunds pursuant to Code Section 34-8-164 and in accordance with regulations prescribed by the Commissioner, except that moneys credited to this state's account pursuant to Section 903 of the federal Social Security Act, 1 as amended, may be requisitioned and used exclusively as provided in paragraphs (1) through (5) of this Code section:
(1) FUNDS FOR PAYMENT OF FUTURE BENEFITS.The Commissioner shall from time to time requisition from the Unemployment Trust Fund amounts, not exceeding the amount standing in this state's account therein, as deemed necessary by the Commissioner for the payment of benefits for a reasonable future period. Upon receipt thereof, the Commissioner shall deposit the funds in the benefit account. The benefit account shall be used solely for the payment of regular benefits and extended benefits or refunds upon requisition of the Commissioner as authorized in this Code section. Withdrawal of such funds in the benefit account shall not be subject to any provisions of law requiring specific appropriations or other formal releases of state officers of moneys in their custody. The Commissioner's requisitions for lump sum withdrawals for the payment of individual benefit claims shall not exceed the balance of funds in the Unemployment Trust Fund; and such requisition shall be in an amount estimated to be necessary for benefit payments for such reasonable future period as the Commissioner may by regulation prescribe. Such lump sum amounts, when received by the Commissioner, shall be immediately deposited in the benefit account maintained in the name of the Commissioner in such bank or public depository and under such conditions as the Commissioner determines necessary; provided, however, that such bank or public depository shall be one in which general funds of the state may be deposited, but no public deposit insurance charge or premium shall be paid out of the fund; provided, further, that such moneys shall be secured by the depository bank to the same extent and in the same manner as required by the general laws of this state governing depositories of state funds and that collateral pledged for this purpose or bonds given for this purpose shall be kept separate and distinct from any collateral or bonds pledged or given to secure other funds of the state. The Commissioner or a duly authorized representative of the Commissioner shall be authorized to draw and issue checks on the benefit account for the payment of individual benefit claims. Any balance of moneys requisitioned from the Unemployment Trust Fund which remains unclaimed or unpaid in the benefit account after the expiration of the period for which such sums were requisitioned shall either be deducted from estimates for and may be utilized for the payment of benefits during succeeding periods or, in the discretion of the Commissioner, shall be redeposited with the secretary of the treasury of the United States to the credit of this state's account in the Unemployment Trust Fund as provided in Code Section 34-8-84;
(2) APPROPRIATION OF ADMINISTRATION EXPENSES.Moneys credited to the account of this state in the Unemployment Trust Fund by the secretary of the treasury of the United States pursuant to Section 903 of the federal Social Security Act, as amended, may be requisitioned and used in the payment of expenses incurred for the administration of this chapter pursuant to a specific appropriation by the General Assembly, provided that the expenses are incurred and the moneys are requisitioned after the enactment of an appropriations Act which:
(A) Specifies the purposes for which such moneys are appropriated and the amount appropriated therefor; and
(B) Limits the period within which such moneys may be expended to a period ending not more than two years after the date of the enactment of the appropriations Act;
(3) LIMITATION ON WITHDRAWALS AND USE OF FUNDS.Moneys credited to the account of this state pursuant to Section 903 of the federal Social Security Act, as amended, may not be withdrawn or used except for the payment of benefits or for the payment of expenses for the administration of this chapter and of public employment offices pursuant to this Code section;
(4) RECORDS OF APPROPRIATED FUNDS.Moneys appropriated for the payment of expenses of administration pursuant to this Code section shall be requisitioned as needed for the payment of obligations incurred under such appropriation and, upon requisition, shall be deposited in the Employment Security Administration Fund, but, until expended, shall remain a part of the Unemployment Trust Fund. The Commissioner shall maintain a separate record of the deposit, obligation, expenditure, and return of funds so deposited. If any moneys so deposited are, for any reason, not to be expended for the purposes for which they were appropriated, such moneys shall be returned promptly to the secretary of the treasury of the United States for credit to this state's account in the Unemployment Trust Fund; and
(5) APPROPRIATIONS TO DEPARTMENT OF LABOR. There is authorized to be appropriated by the General Assembly to the Department of Labor any part of or all moneys credited to the account of this state in the Unemployment Trust Fund by the secretary of the treasury of the United States pursuant to Section 903 of the federal Social Security Act, as amended, and as provided in this Code section; provided, however, that notwithstanding any other provisions of this Code section to the contrary, moneys credited with respect to federal fiscal years 1999, 2000, and 2001, and moneys credited with respect to the special transfer made under Section 903(g) of said Act, shall be used solely for the administration of the unemployment insurance program in Georgia and are not subject to appropriations by the General Assembly.
1 42 U.S.C.A. § 1103.
Code Sections 34-8-83 through 34-8-85, to the extent that they relate to the Unemployment Trust Fund, shall be operative only so long as such trust fund continues to exist and so long as the secretary of the treasury of the United States continues to maintain for this state a separate book account of all funds deposited therein by this state for benefit purposes, together with this state's proportionate share of the earnings of the Unemployment Trust Fund, from which no other state is permitted to make withdrawals. If and when such Unemployment Trust Fund ceases to exist or such separate book account is no longer maintained, all moneys, properties, or securities therein belonging to the Unemployment Compensation Fund of this state shall be transferred to the treasurer of the Unemployment Compensation Fund, who shall hold, invest, transfer, sell, deposit, and release such funds, properties, or securities in a manner approved by the Commissioner in accordance with this chapter; provided, however, that such funds shall be invested in the bonds or other interest-bearing obligations of the United States of America and of the State of Georgia; and provided, further, that such investment shall at all times be so made that all the assets of the fund shall always be readily convertible into cash when needed for the payment of benefits. The Commissioner, as custodian, shall have the discretionary authority to dispose of securities or other properties belonging to the Unemployment Compensation Fund.
The Commissioner is authorized to borrow funds from the United States Treasury in accordance with standards and regulations promulgated by the United States Department of Labor and pursuant to laws of the United States. Such authority is granted only to be used if and when the Unemployment Compensation Fund should be depleted; and all funds so borrowed shall be used only for the purpose of paying benefits to those persons eligible to receive such benefits.
In the discharge of the duties imposed by this chapter, the Commissioner, the chief administrative hearing officer, the members of the board of review, and any duly authorized representative of any of them shall have the power to administer oaths and affirmations, take depositions, certify to official acts, and issue subpoenas to compel the attendance of witnesses and the production of books, papers, correspondence, memoranda, and other records deemed necessary as evidence in connection with a disputed claim or the administration of this chapter.
(a) In case of contumacy or refusal to obey a subpoena by any person, any court of this state within the jurisdiction of which the inquiry is carried on or within the jurisdiction of which said person guilty of contumacy or refusal to obey is found or resides or transacts business, upon application by the Commissioner, the board of review, the chief administrative hearing officer, or any duly authorized representative of any of them, shall have jurisdiction to issue to such person an order requiring such person to appear before the Commissioner, the board of review, the chief administrative hearing officer, or any duly authorized representative of any of them to produce evidence, if so ordered, or to give testimony regarding the matter under investigation or in question; and any failure to obey such order may be punished by the superior court as a contempt of court.
(b) Any person who shall without just cause fail or refuse to attend and testify or to answer any lawful inquiry or to produce books, papers, correspondence, memoranda, and other records, if it is in such person's power to do so, in obedience to a subpoena of the Commissioner, the board of review, the chief administrative hearing officer, or any duly authorized representative of any of them shall, upon conviction thereof, be punished by a fine of not less than $200.00, or by imprisonment for not longer than 60 days, or by both such fine and imprisonment; and each day such violation continues shall be deemed to be a separate offense.
Benefits shall be deemed due and payable under this chapter only to the extent provided in this chapter and to the extent that funds are available therefor to the credit of the Unemployment Compensation Fund. Neither the state nor the Commissioner shall be liable for any amount in excess of such sums.
(a) All fines, penalties, and interest collected under the terms of this chapter shall be paid into the state treasury. The General Assembly shall be authorized to appropriate to the Commissioner all such funds so raised and deposited in the state treasury, which shall be payable upon requisition of the Commissioner. Such funds are to be used for the replacement of funds, as provided in Code Section 34-8-82, and for incidental expenses incurred in the administration of this chapter for which funds are not granted by the federal government through the United States secretary of labor or other agencies.
(b) Notwithstanding subsection (a) of this Code section, any amounts collected pursuant to Code Section 34-8-255 shall be returned to the Unemployment Compensation Fund to be used exclusively for the purposes of this chapter as required by federal law.
(a) Any ambiguity in this chapter shall be construed in a manner consistent with federal law applicable to the unemployment compensation program.
(b) In the event any Code section, subsection, paragraph, subparagraph, sentence, clause, phrase, or provision of this chapter shall be ruled unconstitutional by any court or out of conformity with federal law by the United States secretary of labor, such provision shall be null and void and of no force and effect. The General Assembly declares that it would have passed the remaining portions of this chapter if it had known that any such part or provision of this chapter would be declared unconstitutional or out of conformity with federal law by the United States secretary of labor. Further, the Commissioner shall have the authority to make procedurally the necessary adjustments in order to bring about conformity with federal law, pending action of the General Assembly.
(a) This article is intended to reconcile the free access to public records granted by Article 4 of Chapter 18 of Title 50, relating to the inspection of public records, and the discovery rights of judicial and administrative systems with the historical confidentiality of certain records of the department and the individual's right of privacy.
(b) The General Assembly recognizes that records and information held by the Department of Labor could be misused. Therefore, it is the intent of this article to define a right of privacy and confidentiality as regards individual and employing unit records and other records maintained by the Department of Labor. The General Assembly further recognizes that there are situations where this right of privacy and confidentiality is outweighed by other considerations. Therefore, it is the intent of this article to define also certain exceptions to the right of privacy and confidentiality.
(a) Any information or records concerning an individual or employing unit obtained by the department pursuant to the administration of this chapter or other federally funded programs for which the department has responsibility shall be private and confidential, except as otherwise provided in this article or by regulation. This article does not create a rule of evidence. Information or records may be released by the department when the release is required by the federal government in connection with, or as a condition of funding for, a program being administered by the department. The provisions of paragraphs (1) through (3) of subsection (a) of Code Section 34-8-125 shall not apply to such release.
(b)(1) Each employing unit shall keep true and accurate records containing such information as the Commissioner may prescribe. Such records shall be open to inspection and be subject to being copied by the Commissioner or an authorized representative of the Commissioner at any time and as often as may be necessary. In addition to information prescribed by the Commissioner, each employer shall keep records of and report to the Commissioner quarterly the street address of each establishment, branch, outlet, or office of such employer, the nature of the operation, the number of persons employed, and the wages paid at each establishment, branch, outlet, or office.
(2) The Commissioner or an authorized representative of the Commissioner may require from any employing unit any sworn or unsworn reports deemed necessary for the effective administration of this chapter. Any member of the board of review, any administrative hearing officer, or any field representative may require from any employing unit any sworn or unsworn reports, with respect to persons employed by it, which are deemed necessary for the effective administration of this chapter.
(3) Information, statements, transcriptions of proceedings, transcriptions of recordings, electronic recordings, letters, memoranda, and other documents and reports thus obtained or obtained from any individual, claimant, employing unit, or employer pursuant to the administration of this chapter, except to the extent necessary for the proper administration and enforcement of this chapter, shall be held confidential and shall not be subject to subpoena in any civil action or proceeding, published, or open to public inspection, other than to public employees in the performance of their public duties, in any manner revealing the individual's or employing unit's identity; but any claimant, employer, or a duly authorized representative, at a hearing before an administrative hearing officer or the board of review, shall be supplied with information from such records to the extent necessary for the proper presentation of his or her claim. Any person who violates any provision of this paragraph shall upon conviction be guilty of a misdemeanor.
(4) Notwithstanding the provisions of Code Sections 50-6-9 and 50-6-29 relating to the powers of the state auditor to disclose private and confidential information or records obtained by the department pursuant to the administration of this chapter or other federally funded programs for which the department has responsibility, such private and confidential information or records may be disclosed by the state auditor only in accordance with all provisions of this article and the requirements of 20 C.F.R. 603 and, after notice and review, upon the written direction of the Commissioner issued in advance of such disclosure.
(5) On orders of the Commissioner, any records or documents received or maintained by the Commissioner under the provisions of this chapter or the rules and regulations promulgated under this chapter may be destroyed under such safeguards as will protect their confidential nature two years after the date on which such records or documents last serve any useful, legal, or administrative purpose in the administration of this chapter or in the protection of the rights of anyone.
(a) All letters, reports, communications, or any other matters, either oral or written, from the employer or employee to each other or to the department or any of its agents, representatives, or employees, which letters, reports, or other communications shall have been written, sent, delivered, or made in connection with the requirements of the administration of this chapter, shall be absolutely privileged and shall not be made the subject matter or basis for any action for slander or libel in any court of the State of Georgia.
(b) Any finding of fact or law, judgment, determination, conclusion, or final order made by an adjudicator, examiner, hearing officer, board of review, or any other person acting under the authority of the Commissioner with respect to this chapter shall not be admissible, binding, or conclusive in any separate or subsequent action or proceeding between a person and such person's present or previous employer brought before any court of this state or the United States or before any local, state, or federal administrative agency, regardless of whether the prior action was between the same or related parties or involved the same or similar facts; provided, however, any finding of fact or law, judgment, determination, conclusion, or final order made as described in this chapter shall be admissible in proceedings before the Commissioner.
The Commissioner shall have the authority to adopt, amend, or rescind rules and regulations interpreting and implementing the provisions of this article. In particular, these rules shall specify the procedure to be followed to obtain information or records to which the public has access under this chapter.
(a) An individual shall have access to all records and information concerning that individual held by the department unless the information is exempt from disclosure. An employing unit shall have access to its own records and to any records and information relating to a benefit claim by an individual if the employing unit is the individual's chargeable employer. An employing unit shall have access to general summaries of benefit claims by individuals whose benefits are chargeable to the employing unit's experience rating or reimbursement account.
(b) Any interested party or authorized representative of such party shall be entitled to examine and, upon the payment of a reasonable fee to the department, to obtain a copy of any materials contained in such records to the extent necessary for proper presentation of the party's position at any hearing on a claim. At the Commissioner's discretion, the fee may be waived for persons for whom such payment would present a hardship.
(a) Governmental agencies, including law enforcement agencies, prosecuting agencies, and the executive branch, whether state, local, or federal, shall have access to information or records deemed private and confidential under this article if the information or records are needed by the agency for official purposes and:
(1) The agency submits an application in writing to the department for the records or information containing a statement of the official purposes for which the information or records are needed and specific identification of the records or information sought from the department;
(2) The commissioner, chief executive, or other responsible official of the requesting agency has verified the need for the specific information in writing either on the application or on a separate document; and
(3) The agency requesting access has served a copy of the application for records or information on the individual or employing unit whose records or information are sought and has provided the department with proof of service. Service shall be made in the same manner as service of process in a civil action. The requesting agency shall include with the copy of the application a statement to the effect that the individual or employing unit may contact the public records officer of the department to state any objections to the release of the records or information. The department shall not act upon the application of the requesting agency until at least five days after service on the concerned individual or employing unit. The department shall consider any objections raised by the concerned individual or employing unit in deciding whether the requesting agency needs the information or records for official purposes.
(b) In cases of emergency the governmental agency requesting access shall not be required to comply formally with the provisions of subsection (a) of this Code section at the time of the request if the procedures required by subsection (a) of this Code section are complied with by the requesting agency following the receipt of any records or information deemed private and confidential under this article. An emergency is defined as a situation in which irreparable harm or damage could occur if records or information are not released immediately.
(c) The requirements of paragraph (3) of subsection (a) of this Code section shall not apply to governmental agencies where the procedures would frustrate the investigation of possible violations of criminal laws.
(d) Governmental agencies shall have access to certain records or information, limited to such items as names, addresses, social security numbers, and general information about benefit entitlement or employer information possessed by the department, for comparison purposes with records or information possessed by the requesting agency to detect improper or fraudulent claims, to determine eligibility or entitlement to public programs, or to determine potential tax liability or employer compliance with registration and licensing requirements. In those cases the governmental agency shall not be required to comply with paragraph (3) of subsection (a) of this Code section, but the requirements of the remainder of subsection (a) of this Code section must be satisfied.
(e) Disclosure to governmental agencies of information or records obtained by the department from the federal government shall be governed by any applicable federal law or any agreement between the federal government and the department where so required by federal law. State law shall control when federal law does not apply to the records or information.
(f) The disclosure of any records or information by a governmental agency which has obtained the records or information under this Code section is prohibited unless the disclosure is directly connected to the official purpose for which the records or information was obtained. The willful violation of this subsection shall upon conviction constitute a misdemeanor.
Information or records deemed private and confidential under this chapter shall be available to parties to judicial or formal administrative proceedings only upon a finding by the presiding officer that the need for the information or records in the proceeding outweighs any reasons for the privacy and confidentiality of the information or records. Information or records deemed private and confidential under this chapter shall not be available in discovery proceedings unless the court in which the action has been filed has made the finding specified above. A judicial or administrative subpoena or order directed to the department must contain this finding. A subpoena for records or information held by the department may be directed to and served upon any employee of the department, but the department may specify by rule or regulation which employee shall produce the records or information in compliance with the subpoena.
The department shall have the right to disclose information or records deemed private and confidential under this chapter to any private person or organization when such disclosure is necessary to permit private contracting parties to assist in the operation and management of the department in instances where certain departmental functions may be delegated to private parties to increase the department's efficiency or quality of service to the public. The private persons or organizations shall use the information or records solely for the purpose for which the information was disclosed and shall be bound by the same rules of privacy and confidentiality as department employees. The misuse or unauthorized release of records or information deemed private and confidential under this article by any private person or organization to which access is permitted by this Code section shall subject the person or organization to a civil penalty of $500.00 per violation and shall also subject such person or organization to the criminal provisions specified in Code Section 34-8-125. An action to enforce this Code section shall be brought by the Attorney General. The Attorney General may recover reasonable attorneys' fees for any action brought to enforce this Code section.
Where the department contracts to provide services to other governmental or private organizations, the department may disclose to those organizations information or records deemed private and confidential which have been acquired in the performance of the department's obligations under the contracts.
Nothing in this article shall prevent the disclosure of information or records deemed private and confidential under this article if all details identifying an individual or employing unit are deleted or the individual and employing unit consent to the disclosure.
(a) To enforce the provisions of this article and to prevent fraud and abuse of the Unemployment Trust Fund, the Commissioner or his or her duly authorized representative may submit to the state revenue commissioner the names and social security numbers of any individuals who are required to report earnings to the department along with the amount of earnings such individuals have reported to the department during specified time periods. The state revenue commissioner shall compare the submitted earnings of such individuals with income reported by such individuals to the Department of Revenue and shall verify and report back to the department that the submitted earnings of each such individual are either equal to, greater than, or less than the amount of income reported by each such individual to the Department of Revenue. Furthermore, the department may submit to the state revenue commissioner the name of any employer along with the number of employees who are being reported to the department by such employer during specified time periods. The state revenue commissioner shall compare such records submitted by employers to the department with the number of employees reported by each such employer to the Department of Revenue and shall verify and report back to the department that the number of employees reported to the department is either equal to, greater than, or less than the number of employees reported to the Department of Revenue for state income tax withholding purposes for the specified time period. The department shall pay the state revenue commissioner for all costs incurred by the Department of Revenue pursuant to this subsection. No report contemplated by this subsection shall be provided by the Department of Revenue to the department without a cooperative data sharing agreement executed by the two departments that is specific to the subject matter of this subsection. Any tax information secured from the federal government by the Department of Revenue pursuant to the provisions of Section 6103 of the Internal Revenue Code shall not be disclosed by the Department of Revenue pursuant to this subsection. Any person receiving any tax information under the authority of this subsection shall be subject to the provisions of Code Section 48-7-60 and to all penalties provided under Code Section 48-7-61 for unlawful divulging of confidential tax information, as well as the penalties provided under Code Section 34-8-125.
(b) Nothing in this Code section shall prevent the Department of Revenue or any other governmental agency from having access to records or information as provided for under Code Section 34-8-125.
(a) Contributions shall accrue from each employer for each calendar year in which the employer is subject to this chapter with respect to wages payable for employment, except as provided in Code Sections 34-8-158 through 34-8-162. Except as otherwise provided in this Code section, such contributions shall become due and be paid before the last day of the month next following the end of the calendar quarter to which they apply, in accordance with such regulations as the Commissioner may prescribe; provided, however, that with respect to employers as defined in paragraph (2) of subsection (a) of Code Section 34-8-33, the Commissioner shall provide by regulation that such contributions shall become due and be paid on an annual basis not later than such date as shall be prescribed by resolution of the Commissioner. Such contributions shall become delinquent if not paid when due and shall not be deducted, in whole or in part, from the wages of individuals in such employer's employ.
(b)(1) For calendar quarters beginning on or after July 1, 2009, when the combined amount of contributions under this Code section and assessments under Code Section 34-8-180 or 34-8-181 due from an employer for any calendar quarter does not exceed $5.00, such amount may be regarded as a de minimis amount with respect to that calendar quarter.
(2) Payment of such de minimis amount for such calendar quarter, otherwise due before the last day of the month next following the end of the calendar quarter, may be deferred, at the option of the employer, until the January 31 reporting date next following, if the employer:
(A) Files all quarterly wage and tax reports, including a report of such de minimis amount due;
(B) Timely pays all other amounts due; and
(C) Makes full payment of any deferred de minimis amount by the January 31 report date next following.
(3) In the event that an employer fails to comply with paragraph (2) of this subsection, any such deferred de minimis amount shall become delinquent as of the date originally due under this Code section and Code Section 34-8-165, 34-8-180, or 34-8-181, as applicable, and the employer shall be subject to all the provisions thereof.
(c) In the payment of any contributions, a fractional part of a cent shall be disregarded unless it amounts to one-half cent or more, in which case it shall be increased to one cent.
(a) For periods prior to April 1, 1987, or after December 31, 2026, each new or newly covered employer shall pay contributions at a rate of 2.7 percent of wages paid by such employer with respect to employment during each calendar year until the employer is eligible for a rate calculation based on experience as defined in this chapter, except as provided in Code Sections 34-8-158 through 34-8-162.
(b) For periods on or after April 1, 1987, but on or before December 31, 1999, each new or newly covered employer shall pay contributions at a rate of 2.64 percent of wages paid by such employer with respect to employment during each calendar year until the employer is eligible for a rate calculation based on experience as defined in this chapter, except as provided in Code Sections 34-8-158 through 34-8-162.
(c) For periods on or after January 1, 2000, but on or before December 31, 2016, each new or newly covered employer shall pay contributions at a rate of 2.62 percent of wages paid by such employer with respect to employment during each calendar year until the employer is eligible for a rate calculation based on experience as defined in this chapter, except as provided in Code Sections 34-8-158 through 34-8-162.
(d) For periods on or after January 1, 2017, but on or before December 31, 2026, each new or newly covered employer shall pay contributions at a rate of 2.64 percent of wages paid by such employer with respect to employment during each calendar year until the employer is eligible for a rate calculation based on experience as defined in this chapter, except as provided in Code Sections 34-8-158 through 34-8-162.
(a) The standard rate of contribution shall be 5.4 percent. The standard rate of contribution is the rate from which variations therefrom are computed as provided in Code Section 34-8-155.
(b) No employer's rate shall be reduced below the rate for new employers as specified in Code Section 34-8-151 for any calendar year, except as provided in Code Section 34-8-155, unless and until such employer's account could have been chargeable with benefit payments throughout the 36 consecutive calendar months ending on the computation date for that calendar year.
(a) Subject to the provisions of subsections (g) and (h) of this Code section, any corporation, partnership, individual, or other legal entity who acquires by purchase, merger, consolidation, or other means substantially all of the trade, business, or assets of any employer and who thereafter continues the acquired trade or business shall be deemed to be a successor to the employer from whom the trade or business was acquired. The successor shall acquire the experience rating record of the predecessor except as otherwise provided in this Code section or in the rules and regulations of the Department of Labor. If the successor is not already an employer at the time of the acquisition, the rate of contributions applicable to the predecessor shall continue to be applicable to the successor; provided, however, if the existing rate of contributions of the predecessor exceeds the new employer rate as specified in Code Section 34-8-151, the successor shall be assigned a new employer rate of contributions; in such event, the experience of the predecessor shall not be considered for purposes of rate calculations and the successor shall be otherwise treated as a new employer.
(b) Subject to the provisions of subsections (g) and (h) of this Code section, if the successor is already an employer at the time of the acquisition, the rate of contributions applicable to the successor shall continue until the end of the quarter in which the acquisition occurred. The rate of contributions applicable to the successor beginning on the first day of the quarter following the acquisition will be determined by the combined experience of the predecessor and successor as of the applicable computation date; provided, however, the experience of the predecessor shall not be combined with that of the successor for purposes of rate calculation if the predecessor's rate of contributions immediately preceding the acquisition exceeded the rate already in effect for the successor; in such event, the experience of the predecessor shall not be considered for purposes of rate calculations unless this combination of experience results in a reduction of rates.
(c) Subject to the provisions of subsections (g) and (h) of this Code section, any employing unit which acquires by any means any clearly identifiable or separable portion of the trade or business of an employer and is an employer at the time of the acquisition or becomes an employer within six months from the end of the quarter in which the acquisition is made may be deemed to be a partial successor to the employer from whom the portion of the trade or business was acquired. A portion of the predecessor's experience rating records which are attributable to the portion of trade or the business which was acquired may be transferred to the successor. Mutual consent of both parties must be given to effectuate the partial transfer. The Commissioner shall prescribe by regulation the time frame for notification to the department of partial acquisitions and the method by which the portion of the experience rating record to be transferred will be determined.
(d) Subject to the provisions of subsections (g) and (h) of this Code section, if the conditions of subsection (c) of this Code section are met and the partial successor is not already an employer at the time of the acquisition, the rate of contributions applicable to the predecessor shall be applicable to the successor. Future rates will be determined by combining the transferred portion of the predecessor's experience rating record with the successor's own experience rating record as of the applicable computation date.
(e) Subject to the provisions of subsections (g) and (h) of this Code section, if the conditions of subsection (c) of this Code section are met and the partial successor is already an employer at the time of the acquisition, the rate of contributions applicable to the successor shall continue until the end of the quarter in which the acquisition occurred. The rate of contributions applicable to the successor beginning on the first day of the quarter following the acquisition will be determined by combining the transferred portion of the predecessor's experience rating record with the successor's own experience rating record as of the applicable computation date.
(f) Nothing in this Code section shall be construed to affect liens which are created pursuant to Code Section 34-8-167.
(g) Notwithstanding any other provision of this chapter to the contrary, effective July 1, 2006:
(1) If an employer transfers its trade or business, or any portion thereof, to another employer and, at the time of the transfer, there is substantially common ownership, management, or control of the two employers then the rate of contributions attributable to the predecessor shall be transferred to the successor employer to whom such business is so transferred. The rates of contributions of both employers shall be recalculated and made effective immediately upon the date of the transfer of the trade or business.
(2) Whenever the successor is not already an employer at the time of the acquisition, the unemployment experience of the acquired business shall not be transferred to the successor if the Commissioner determines that the successor acquired the business solely or primarily for the purpose of obtaining a lower rate of contribution. Instead, the successor shall be assigned the new employer rate under Code Section 34-8-151. In determining whether the trade or business was acquired solely or primarily for the purpose of obtaining a lower rate of contributions, the Commissioner shall use objective factors which may include the following:
(A) The cost of acquiring the trade or business;
(B) Whether the successor actually continued the business enterprise of the acquired trade or business;
(C) How long the acquired trade or business was continued; and
(D) Whether or not a substantial number of new employees were hired for the performance of duties unrelated to the business activity conducted by the predecessor prior to acquisition.
(h)(1) Any person who knowingly violates or attempts to violate subsection (g) of this Code section or any other provision of this chapter related to determining the assignment of a rate of contributions or any person who knowingly advises another person in a manner that results in a violation of such provision shall be subject to the following penalties:
(A) If the person is an employer, then such employer shall be assigned the highest rate assignable under this chapter for the rate year during which such violation or attempted violation occurred and the three rate years immediately following that rate year; provided, however, that if:
(i) The person's business is already at the highest rate; or
(ii) If the amount of increase in the rate of contributions for such person would be less than 2 percent for such year,
then a penalty rate of contributions of 2 percent of taxable wages shall be imposed for such year;
(B) If the person is not an employer, such person shall be subject to a civil monetary penalty of not more than $5,000.00 per violation. Any such fine collected shall be deposited in the penalty and interest account established under Code Section 34-8-92.
(2) For the purposes of this subsection, the term “knowingly” means having actual knowledge of or acting with deliberate ignorance or reckless disregard for the prohibited act or omission.
(3) For the purposes of this subsection, the term “violates or attempts to violate” includes, but is not limited to, intent to evade, misrepresentation, and willful nondisclosure.
(4) For the purposes of this subsection, the term “person” shall have the meaning given such term by Section 7701(a)(1) of the Internal Revenue Code of 1986, as amended.
(5) In addition to the penalty imposed by paragraph (1) of this subsection, any violation of this Code section may be prosecuted as a felony under Code Section 16-10-20.
(6) The Commissioner shall establish procedures to identify the occurrence of any transfer or acquisition of a business that violates any provision of this Code section.
(i) For the purposes of this Code section and administration of the Employment Security Law, the terms “trade, business, or assets” and “trade or business” shall include:
(1) The employer's work force or any part of the employer's work force; and
(2) Any part of the employer's trade, business, or assets, whether or not clearly identifiable or separable within the meaning of subsection (c) of this Code section.
Tax liability under Chapter 7 of Title 48 shall not be affected by the definitions of “trade, business, or assets” and “trade or business” in this Code section.
Except as provided in Code Section 34-8-161, the Commissioner shall maintain a separate account for each employer and shall credit such account with all the contributions paid by that employer. Nothing in this chapter shall be construed to grant any employer or individuals in the service of such employer prior claims or rights to the amounts paid by the employer into the fund.
(a) Employers shall be classified in accordance with their actual experience in the payment of contributions and with respect to benefits charged against their accounts so that contribution rates will reflect such experience. Employer rates shall be computed based on each employer's own experience rating record as of the computation date, June 30 of each year. The computed rate shall apply to taxable wages paid during the calendar year immediately following the computation date.
(b) Any employer who has failed to file all required tax and wage reports, including all such reports of all predecessor employers, by the end of the month following any computation date shall be notified by the department of such failure. If the required tax and wage reports remain unfiled 30 days following notice, the employer will not be eligible for a rate computation but shall be assigned the maximum rate allowable after application of the State-wide Reserve Ratio, if computed for such year, as provided in Code Section 34-8-156. Employers having positive reserve accounts will be assigned the maximum rate allowable for positive reserve accounts. Employers having deficit reserve accounts will be assigned the maximum rate allowable for deficit reserve accounts. Such rates shall remain effective until the end of the calendar year for which the rates have been assigned.
(c) For the periods prior to April 1, 1987, or after December 31, 2026, variations from the standard rate of contributions shall be determined in accordance with the following requirements:
(1) If, on the computation date, the total of an employer's contributions exceeds the total benefits charged to its account, its contribution rate for the following calendar year shall be determined by subtracting benefits charged from contributions and dividing the difference by the employer's average annual payroll. The resulting percentage will then be applied to the following rate table. Contributions paid by the end of the month following the computation date and contributions paid within 30 days of notice of failure to file all required tax and wage reports will be considered as having been paid on the computation date.
RATE TABLE FOR EMPLOYERS WITH POSITIVE RESERVE ACCOUNTS If the excess percentage:
| Equals or Exceeds | But Is Less Than | The Contribution Rate Is (Percent) | | --- | --- | --- | | 0.00 | 0.86 | 2.16 | | 0.86 | 1.17 | 2.08 | | 1.17 | 1.48 | 2.00 | | 1.48 | 1.79 | 1.92 | | 1.79 | 2.10 | 1.84 | | 2.10 | 2.41 | 1.76 | | 2.41 | 2.72 | 1.68 | | 2.72 | 3.04 | 1.60 | | 3.04 | 3.35 | 1.52 | | 3.35 | 3.65 | 1.44 | | 3.65 | 3.97 | 1.36 | | 3.97 | 4.29 | 1.28 | | 4.29 | 4.60 | 1.20 | | 4.60 | 4.91 | 1.12 | | 4.91 | 5.22 | 1.04 | | 5.22 | 5.53 | 0.96 | | 5.53 | 5.84 | 0.88 | | 5.84 | 6.15 | 0.80 | | 6.15 | 6.47 | 0.72 | | 6.47 | 6.77 | 0.64 | | 6.77 | 7.08 | 0.56 | | 7.08 | 7.40 | 0.48 | | 7.40 | 7.71 | 0.40 | | 7.71 | 8.02 | 0.32 | | 8.02 | 8.33 | 0.24 | | 8.33 | 8.64 | 0.16 | | 8.64 | 8.95 | 0.08 | | 8.95 and over | | 0.04 |
(2) If, on the computation date, the total of an employer's contributions is less than the total benefits charged to its account, its contribution rate for the following calendar year shall be determined by subtracting contributions from benefits charged and dividing the difference by the employer's average annual payroll. The resulting percentage will then be applied to the following rate table. Contributions paid by the end of the month following the computation date and contributions paid within 30 days of notice of failure to file all required tax and wage reports will be considered as having been paid on the computation date.
RATE TABLE FOR EMPLOYERS WITH DEFICIT RESERVE ACCOUNTS If the deficit percentage:
| Equals or Exceeds | But Is Less Than | The Contribution Rate Is (Percent) | | --- | --- | --- | | 0.0 | 0.5 | 2.2 | | 0.5 | 1.5 | 2.4 | | 1.5 | 2.5 | 2.6 | | 2.5 | 3.5 | 2.8 | | 3.5 | 4.5 | 3.0 | | 4.5 | 5.5 | 3.2 | | 5.5 | 6.5 | 3.4 | | 6.5 | 7.5 | 3.6 | | 7.5 | 8.5 | 3.8 | | 8.5 | 9.5 | 4.0 | | 9.5 | 10.5 | 4.2 | | 10.5 | 11.5 | 4.4 | | 11.5 | 12.5 | 4.6 | | 12.5 | 13.5 | 4.8 | | 13.5 | 14.5 | 5.0 | | 14.5 | 15.5 | 5.2 | | 15.5 and over | | 5.4 |
(d) For the periods on or after April 1, 1987, but on or before December 31, 1999, variations from the standard rate of contributions shall be determined in accordance with the following requirements:
(1) If, on the computation date, the total of an employer's contributions exceeds the total benefits charged to its account, its contribution rate for the following calendar year shall be determined by subtracting benefits charged from contributions and dividing the difference by the employer's average annual payroll. The resulting percentage will then be applied to the following rate table. Contributions paid by the end of the month following the computation date and contributions paid within 30 days of notice of failure to file all required tax and wage reports will be considered as having been paid on the computation date.
RATE TABLE FOR EMPLOYERS WITH POSITIVE RESERVE ACCOUNTS If the excess percentage:
| Equals or Exceeds | But Is Less Than | The Contribution Rate Is (Percent) | | --- | --- | --- | | 0.00 | 0.86 | 2.125 | | 0.86 | 1.17 | 2.043 | | 1.17 | 1.48 | 1.962 | | 1.48 | 1.79 | 1.881 | | 1.79 | 2.10 | 1.800 | | 2.10 | 2.41 | 1.725 | | 2.41 | 2.72 | 1.643 | | 2.72 | 3.04 | 1.562 | | 3.04 | 3.35 | 1.481 | | 3.35 | 3.65 | 1.400 | | 3.65 | 3.97 | 1.325 | | 3.97 | 4.29 | 1.243 | | 4.29 | 4.60 | 1.162 | | 4.60 | 4.91 | 1.081 | | 4.91 | 5.22 | 1.000 | | 5.22 | 5.53 | 0.925 | | 5.53 | 5.84 | 0.843 | | 5.84 | 6.15 | 0.762 | | 6.15 | 6.47 | 0.681 | | 6.47 | 6.77 | 0.600 | | 6.77 | 7.08 | 0.525 | | 7.08 | 7.40 | 0.443 | | 7.40 | 7.71 | 0.362 | | 7.71 | 8.02 | 0.281 | | 8.02 | 8.33 | 0.200 | | 8.33 | 8.64 | 0.125 | | 8.64 | 8.95 | 0.043 | | 8.95 and over | | 0.040 |
(2) If, on the computation date, the total of an employer's contributions is less than the total benefits charged to the account of such employer, the contribution rate for the following calendar year shall be determined by subtracting contributions from benefits charged and dividing the difference by the employer's average annual payroll. The resulting percentage will then be applied to the following rate table. Contributions paid by the end of the month following the computation date and contributions paid within 30 days of notice of failure to file all required tax and wage reports will be considered as having been paid on the computation date.
RATE TABLE FOR EMPLOYERS WITH DEFICIT RESERVE ACCOUNTS If the deficit percentage:
| Equals or Exceeds | But Is Less Than | The Contribution Rate Is (Percent) | | --- | --- | --- | | 0.0 | 0.5 | 2.16 | | 0.5 | 1.5 | 2.36 | | 1.5 | 2.5 | 2.56 | | 2.5 | 3.5 | 2.76 | | 3.5 | 4.5 | 2.96 | | 4.5 | 5.5 | 3.16 | | 5.5 | 6.5 | 3.36 | | 6.5 | 7.5 | 3.56 | | 7.5 | 8.5 | 3.76 | | 8.5 | 9.5 | 3.96 | | 9.5 | 10.5 | 4.16 | | 10.5 | 11.5 | 4.36 | | 11.5 | 12.5 | 4.56 | | 12.5 | 13.5 | 4.76 | | 13.5 | 14.5 | 4.96 | | 14.5 | 15.5 | 5.16 | | 15.5 and over | | 5.40 |
(e) For the periods on or after January 1, 2000, but on or before December 31, 2026, variations from the standard rate of contributions shall be determined in accordance with the following requirements:
(1) If, on the computation date, the total of an employer's contributions exceeds the total benefits charged to its account, its contribution rate for the following calendar year shall be determined by subtracting benefits charged from contributions and dividing the difference by the employer's average annual payroll. The resulting percentage will then be applied to the following rate table. Contributions paid by the end of the month following the computation date and contributions paid within 30 days of notice of failure to file all required tax and wage reports will be considered as having been paid on the computation date.
RATE TABLE FOR EMPLOYERS WITH DEFICIT RESERVE ACCOUNTS If the excess percentage:
| Equals or Exceeds | But Is Less Than | The Contribution Rate Is (Percent) | | --- | --- | --- | | 0.00 | 0.86 | 2.110 | | 0.86 | 1.17 | 2.028 | | 1.17 | 1.48 | 1.947 | | 1.48 | 1.79 | 1.866 | | 1.79 | 2.10 | 1.785 | | 2.10 | 2.41 | 1.710 | | 2.41 | 2.72 | 1.628 | | 2.72 | 3.04 | 1.547 | | 3.04 | 3.35 | 1.466 | | 3.35 | 3.65 | 1.385 | | 3.65 | 3.97 | 1.310 | | 3.97 | 4.29 | 1.228 | | 4.29 | 4.60 | 1.147 | | 4.60 | 4.91 | 1.066 | | 4.91 | 5.22 | 0.985 | | 5.22 | 5.53 | 0.910 | | 5.53 | 5.84 | 0.828 | | 5.84 | 6.15 | 0.747 | | 6.15 | 6.47 | 0.666 | | 6.47 | 6.77 | 0.585 | | 6.77 | 7.08 | 0.510 | | 7.08 | 7.40 | 0.428 | | 7.40 | 7.71 | 0.347 | | 7.71 | 8.02 | 0.266 | | 8.02 | 8.33 | 0.185 | | 8.33 | 8.64 | 0.110 | | 8.64 | 8.95 | 0.028 | | 8.95 and over | | 0.025 |
(2) If, on the computation date, the total of an employer's contributions is less than the total benefits charged to its account, its contribution rate for the following calendar year shall be determined by subtracting contributions from benefits charged and dividing the difference by the employer's average annual payroll. The resulting percentage will then be applied to the following rate table. Contributions paid by the end of the month following the computation date and contributions paid within 30 days of notice of failure to file all required tax and wage reports will be considered as having been paid on the computation date.
RATE TABLE FOR EMPLOYERS WITH DEFICIT RESERVE ACCOUNTS If the deficit percentage:
| Equals or Exceeds | But Is Less Than | The Contribution Rate Is (Percent) | | --- | --- | --- | | 0.0 | 0.5 | 2.15 | | 0.5 | 1.5 | 2.35 | | 1.5 | 2.5 | 2.55 | | 2.5 | 3.5 | 2.75 | | 3.5 | 4.5 | 2.95 | | 4.5 | 5.5 | 3.15 | | 5.5 | 6.5 | 3.35 | | 6.5 | 7.5 | 3.55 | | 7.5 | 8.5 | 3.75 | | 8.5 | 9.5 | 3.95 | | 9.5 | 10.5 | 4.15 | | 10.5 | 11.5 | 4.35 | | 11.5 | 12.5 | 4.55 | | 12.5 | 13.5 | 4.75 | | 13.5 | 14.5 | 4.95 | | 14.5 | 15.5 | 5.15 | | 15.5 and over | | 5.40 |
(f)(1) Subject to the provisions of paragraph (2) of this subsection, contribution rates for experience rated employers for the time periods:
(A) January 1, 2000, to December 31, 2000;
(B) January 1, 2001, to December 31, 2001;
(C) January 1, 2002, to December 31, 2002; and
(D) January 1, 2003, to December 31, 2003
shall not be imposed above the level of 1.0 percent of statutory contribution rates.
(2) The Governor shall have authority to suspend by executive order any future portion of the reduction in calculated rates provided for in paragraph (1) of this subsection in the event the Governor determines, upon the recommendation of the Commissioner, that suspension of said reduction is in the best interests of the State of Georgia.
(a) A State-wide Reserve Ratio shall be computed as of June 30 of each year by dividing the balance in the trust fund, including accrued interest, by the total covered wages paid in the state during the previous calendar year. Any amount credited to the state's account under Section 903 of the Social Security Act, 1 as amended, which has been appropriated for the expenses of administration, whether or not withdrawn from the trust fund, shall be excluded from the trust fund balance in computing the State-wide Reserve Ratio.
(b) For the period on or after January 1, 1990, but prior to January 1, 1995:
(1) When the State-wide Reserve Ratio, as computed above, is 3.3 percent or more for any calendar year, each employer who does not have a deficit reserve balance shall have its contribution rate at the time of computation credited by applying an overall reduction of the rate in accordance with the following table:
If the State-wide Reserve Ratio:
| Equals or | But Is | Overall | | --- | --- | --- | | Exceeds | Less Than | Reduction | | 3.3 percent | 3.7 percent | 40 percent | | 3.7 percent and over | | 60 percent |
(2) When the State-wide Reserve Ratio, as calculated above, is less than 3.0 percent, there shall be an overall increase in the rate, as of the computation date, for each employer whose rate is computed under a rate table in Code Section 34-8-155 in accordance with the following table:
If the State-wide Reserve Ratio:
| Equals or | But Is | Overall | | --- | --- | --- | | Exceeds | Less Than | Increase | | 2.6 percent | 3.0 percent | 40 percent | | Under 2.6 percent | | 60 percent |
(c) For the period on or after January 1, 1995, but prior to January 1, 1997:
(1) When the State-wide Reserve Ratio, as computed above, is 3.3 percent or more for any calendar year, each employer who does not have a deficit reserve balance shall have its contribution rate at the time of computation credited by applying an overall reduction of the rate in accordance with the following table:
If the State-wide Reserve Ratio:
| Equals or | But Is | Overall | | --- | --- | --- | | Exceeds | Less Than | Reduction | | 3.3 percent | 3.7 percent | 40 percent | | 3.7 percent and over | | 50 percent |
(2) When the State-wide Reserve Ratio, as calculated above, is less than 3.0 percent, there shall be an overall increase in the rate, as of the computation date, for each employer whose rate is computed under a rate table in Code Section 34-8-155 in accordance with the following table:
If the State-wide Reserve Ratio:
| Equals or | But Is | Overall | | --- | --- | --- | | Exceeds | Less Than | Increase | | 2.6 percent | 3.0 percent | 40 percent | | Under 2.6 percent | | 50 percent |
(d)(1) For the period on or after January 1, 1997, but prior to January 1, 1998:
(A) When the State-wide Reserve Ratio, as computed above, is 3.0 percent or more for any calendar year, each employer who does not have a deficit reserve balance shall have its contribution rate at the time of computation credited by applying an overall reduction of the rate in accordance with the following table:
If the State-wide Reserve Ratio:
| Equals or | But Is | Overall | | --- | --- | --- | | Exceeds | Less Than | Reduction | | 3.0 percent | 3.6 percent | 25 percent | | 3.6 percent and over | | 50 percent |
(B) When the State-wide Reserve Ratio, as calculated above, is less than 2.6 percent, there shall be an overall increase in the rate, as of the computation date, for each employer whose rate is computed under a rate table in Code Section 34-8-155 in accordance with the following table:
If the State-wide Reserve Ratio:
| Equals or | But Is | Overall | | --- | --- | --- | | Exceeds | Less Than | Increase | | 1.8 percent | 2.6 percent | 25 percent | | Under 1.8 percent | | 50 percent |
(2) For the period on or after January 1, 1998, but prior to January 1, 1999:
(A) When the State-wide Reserve Ratio, as computed above, is 2.4 percent or more for any calendar year, each employer who does not have a deficit reserve balance shall have its contribution rate at the time of computation credited by applying an overall reduction of the rate in accordance with the following table:
If the State-wide Reserve Ratio:
| Equals or | But Is | Overall | | --- | --- | --- | | Exceeds | Less Than | Reduction | | 2.4 percent | 2.7 percent | 25 percent | | 2.7 percent and over | | 50 percent |
(B) When the State-wide Reserve Ratio, as calculated above, is less than 2.1 percent, there shall be an overall increase in the rate, as of the computation date, for each employer whose rate is computed under a rate table in Code Section 34-8-155 in accordance with the following table:
If the State-wide Reserve Ratio:
| Equals or | But Is | Overall | | --- | --- | --- | | Exceeds | Less Than | Increase | | 1.8 percent | 2.1 percent | 25 percent | | Under 1.8 percent | | 50 percent |
(3) For the period on or after January 1, 1999, but prior to January 1, 2000:
(A) When the State-wide Reserve Ratio, as computed above, is 2.4 percent or more for any calendar year, each employer who does not have a deficit reserve balance shall have its contribution rate at the time of computation credited by applying an overall reduction of the rate in accordance with the following table:
If the State-wide Reserve Ratio:
| Equals or | But Is | Overall | | --- | --- | --- | | Exceeds | Less Than | Reduction | | 2.4 percent | 2.7 percent | 25 percent | | 2.7 percent and over | | 50 percent |
(B) When the State-wide Reserve Ratio, as calculated above, is less than 2.0 percent, there shall be an overall increase in the rate, as of the computation date, for each employer whose rate is computed under a rate table in Code Section 34-8-155 in accordance with the following table:
If the State-wide Reserve Ratio:
| Equals or | But Is | Overall | | --- | --- | --- | | Exceeds | Less Than | Increase | | 1.8 percent | 2.0 percent | 25 percent | | Under 1.8 percent | | 50 percent |
(4) For the period on or after January 1, 2000:
(A) When the State-wide Reserve Ratio, as calculated above, is 2.4 percent or more for any calendar year, each employer who does not have a deficit reserve balance shall have its contribution rate at the time of computation credited by applying an overall reduction of the rate in accordance with the following table:
If the State-wide Reserve Ratio:
| Equals or | But Is | Overall | | --- | --- | --- | | Exceeds | Less Than | Reduction | | 2.4 percent | 2.7 percent | 25 percent | | 2.7 percent and over | | 50 percent |
(B) Except for any year or portion of a year during which the provisions of paragraph (1) of subsection (f) of Code Section 34-8-155 apply, when the State-wide Reserve Ratio, as calculated above, is less than 1.7 percent, there shall be an overall increase in the rate, as of the computation date, for each employer whose rate is computed under a rate table in Code Section 34-8-155 in accordance with the following table:
If the State-wide Reserve Ratio:
| | Equals or | But Is | Overall | | --- | --- | --- | --- | | | Exceeds | Less Than | Increase | | | 1.5 percent | 1.7 percent | 25 percent | | | 1.25 percent | 1.5 percent | 50 percent | | | 0.75 percent | 1.25 percent | 75 percent | | | Under 0.75 percent | | 100 percent |
provided, however, that for the periods of January 1 through December 31, 2004; January 1 through December 31, 2005; and January 1 through December 31, 2006, the overall increase in the rate required under this subparagraph shall be suspended and the provisions of this subparagraph shall be null and void, except in the event the State-wide Reserve Ratio, as calculated above, is less than 1.00 percent on the computation date with respect to rates applicable to calendar year 2004, 2005, or 2006, then for each such year the Commissioner of Labor shall have the option of imposing an increase in the overall rate of up to 35 percent, as of the computation date, for each employer whose rate is computed under a rate table in Code Section 34-8-155; and provided, further, that for the periods of January 1 through December 31, 2007, January 1 through December 31, 2008, January 1 through December 31, 2009, January 1 through December 31, 2010, January 1 through December 31, 2011, and January 1 through December 31, 2012, the overall increase in the rate required under this subparagraph shall be suspended and the provisions of this subparagraph shall be null and void, except in the event the State-wide Reserve Ratio, as calculated above, is less than 1.25 percent on the computation date with respect to rates applicable to calendar year 2007, 2008, 2009, 2010, 2011, or 2012, then for each such year the Commissioner of Labor shall have the option of imposing an increase in the overall rate of up to 50 percent, as of the computation date, for each employer whose rate is computed under a rate table in Code Section 34-8-155; and provided, further, that for the period of January 1 through December 31, 2013, and for each calendar year period thereafter, the overall increase in the rate required under this subparagraph shall be suspended and the provisions of this subparagraph shall be null and void, except in the event the State-wide Reserve Ratio, as calculated above, is less than 1.25 percent on the computation date with respect to rates applicable to calendar year 2013 or any calendar year thereafter, then for each such year the Commissioner of Labor shall have the option of imposing an increase in the overall rate of up to 50 percent, as of the computation date, for each employer whose rate is computed under a rate table in Code Section 34-8-155; provided, however, that if any funds borrowed by the Commissioner from the United States Treasury pursuant to Code Section 34-8-87 are unpaid or if the Unemployment Compensation Fund balance is less than $1 billion, then the Commissioner of Labor shall impose an increase in the overall rate of 50 percent, as of the computation date, for each employer whose rate is computed under a rate table in Code Section 34-8-155.
(e)(1) For any calendar year prior to January 1, 1999, with respect to which the State-wide Reserve Ratio shall equal or exceed 2.1 percent, as computed pursuant to the provisions of this Code section, contribution rates shall be further reduced for the succeeding calendar year by a percentage which shall be computed in the following manner:
(A) The dollar amount by which the Unemployment Trust Fund exceeds the dollar amount which equates to a State-wide Reserve Ratio of 2.1 percent shall be divided by the total of contributions collected attributable to wages paid during the preceding calendar year, excluding penalty and interest, as of the computation date as that term is defined in Code Section 34-8-28;
(B) The resulting percentage shall be used to reduce all experience rated contribution rates by that same percentage; provided, however, that the resulting reduction shall not reduce contribution rates below the level which will produce a contribution rate of 5.4 percent for maximum deficit reserve accounts. This reduction in contribution rates shall be valid for the succeeding calendar year only; and
(C) Accounts which are not eligible for a computed contribution rate as provided in Code Section 34-8-152 shall not receive the reduction in rates.
(2) For any calendar year on and after January 1, 1999, with respect to which the State-wide Reserve Ratio shall equal or exceed 2.0 percent, as computed pursuant to the provisions of this Code section, contribution rates shall be further reduced for the succeeding calendar year by a percentage which shall be computed in the following manner:
(A) The dollar amount by which the Unemployment Trust Fund exceeds the dollar amount which equates to a State-wide Reserve Ratio of 2.0 percent shall be divided by the total of contributions collected attributable to wages paid during the preceding calendar year, excluding penalty and interest, as of the computation date as that term is defined in Code Section 34-8-28;
(B) The resulting percentage shall be used to reduce all experience rated contribution rates by that same percentage; provided, however, that the resulting reduction shall not reduce contribution rates below the level which will produce a contribution rate of 5.4 percent for maximum deficit reserve accounts. This reduction in contribution rates shall be valid for the succeeding calendar year only; and
(C) Accounts which are not eligible for a computed contribution rate as provided in Code Section 34-8-152 shall not receive the reduction in rates.
(f) The computed rates after application of percentage reductions or increases will be rounded to the nearest one-hundredth of 1 percent. The Commissioner will give notice to each employer on any rate change by reason of the above provisions.
1 42 U.S.C.A. § 1103.
(a) Regular benefits paid with respect to all benefit years that begin on or after January 1, 1992, but prior to July 1, 2015, shall be charged against the experience rating account or reimbursement account of employers in the following manner:
(1) Benefits paid shall be charged to the account of the most recent employer, as that term is defined in Code Section 34-8-43, including benefits paid based upon insured wages which were earned to requalify following a period of disqualification as provided in Code Section 34-8-194;
(2)(A) Except as otherwise provided in paragraph (3) of this subsection, benefits charged to the account of an employer shall not exceed the amount of wages paid by such employer during the period beginning with the base period of the individual's claim and continuing through the individual's benefit year.
(B) Except as otherwise provided in paragraph (3) of this subsection, benefits shall not be charged to the account of an employer when an individual's overpayment is waived pursuant to Code Section 34-8-254.
(C) Except as otherwise provided in paragraph (3) of this subsection, for the purposes of calculating an employer's contribution rate, an account of an employer shall not be charged for benefits paid to an individual for unemployment that is directly caused by a presidentially declared natural disaster;
(3)(A) An employer shall respond in a timely and adequate manner to a notice of a claim filing or a written request by the department for information relating to a claim for benefits as specified in the rules or regulations prescribed by the Commissioner.
(B) Any violation of subparagraph (A) of this paragraph by an employer or an officer or agent of an employer absent good cause may result in the employer's account being charged for overpayment of benefits paid due to such violation even if the determination is later reversed; provided, however, that upon the finding of three violations of subparagraph (A) of this paragraph within a calendar year resulting in an overpayment of benefits, an employer's account shall be charged for any additional overpayment and shall not be relieved of such charges unless good cause is shown; and
(4) Benefits paid to individuals shall be charged against the Unemployment Trust Fund when benefits are paid but not charged against an employer's experience rating account as provided in this Code section.
(b)(1) Regular benefits paid with respect to all benefit years that begin on or after July 1, 2015, shall be charged against the experience rating account or reimbursement account of the most recent employer as defined in subsection (a) of Code Section 34-8-43, provided that:
(A) The most recent employer is a liable employer, as provided in Code Section 34-8-42; and
(B)(i) The most recent employer separated the individual from work under nondisqualifying conditions, or files the claim for the individual by submitting such reports as authorized by the Commissioner; or
(ii) The individual separated from the most recent employer under nondisqualifying conditions.
(2) Regular benefits to be charged against the experience rating account or reimbursement account of the most recent employer pursuant to paragraph (1) of this subsection shall be charged in the following manner:
(A) Benefits paid shall be charged to the account of the most recent employer as defined in Code Section 34-8-43, including those benefits paid based upon insured wages which were earned to requalify following a period of disqualification as provided in Code Section 34-8-194;
(B) Except as otherwise provided in subparagraph (E) of this paragraph, benefits charged to the account of an employer shall not exceed the amount of wages paid by such employer during the period beginning with the base period of the individual's claim and continuing though the individual's benefit year;
(C) Except as otherwise provided in subparagraph (E) of this paragraph, benefits shall not be charged to the account of an employer when an individual's overpayment is waived pursuant to Code Section 34-8-254;
(D) Except as otherwise provided in subparagraph (E) of this paragraph, for the purposes of calculating an employer's contribution rate, an account of an employer shall not be charged for benefits paid to an individual for unemployment that is directly caused by a presidentially declared natural disaster;
(E)(i) An employer shall respond in a timely and adequate manner to a notice of a claim filing or a written request by the department for information relating to a claim for benefits as specified in the rules or regulations prescribed by the Commissioner.
(ii) Any violation of division (i) of this subparagraph by an employer or an officer or agent of an employer absent good cause may result in the employer's account being charged for overpayment of benefits paid due to such violation even if the determination is later reversed; provided, however, that upon the finding of three violations of division (i) of this subparagraph within a calendar year resulting in an overpayment of benefits, an employer's account shall be charged for any additional overpayment and shall not be relieved of such charges unless good cause is shown; and
(F) Benefits paid to individuals shall be charged against the Unemployment Trust Fund when benefits are paid but not charged against an employer's experience rating account as provided in this Code section or when the employer is not a liable employer as provided in Code Section 34-8-42.
(c)(1) Payments of extended benefits as provided in Code Section 34-8-197 shall be charged to an employer's experience rating account in the same proportion as regular benefits are charged, except an employer shall be charged for only 50 percent of its portion of the extended benefits paid for all weeks after the first week of extended benefits; provided, however, that benefits paid that are attributable to service in the employ of any governmental entity as described in subsection (h) of Code Section 34-8-35 shall be financed in their entirety by such governmental entity which is charged as provided in this Code section.
(2) As provided by 26 U.S.C. Section 3304, only 50 percent of extended benefits paid shall be charged to the individual's employers as described in paragraph (1) of this subsection. However, if the federal government does not reimburse the 50 percent for the first week of extended benefits paid, employers shall be charged 100 percent of such first week of extended benefits paid. When employers have been determined to be relieved from charges, such payments shall be charged against the Unemployment Trust Fund in the appropriate amount.
(d) The Commissioner shall by regulation provide for the notification of each employer of charges made against its account at intervals not less frequent than semiannually. The charges in such notification shall be binding upon each employer for all purposes unless the employer files a request for review and redetermination in writing. Such request must set forth the charges to which the employer objects and the basis of the objection. The request must be made within 15 days of the prescribed notification. Upon such request being filed, the employer shall be granted an opportunity for a fair hearing. However, no employer shall have standing in any proceeding to contest the chargeability to its account of any benefit paid in accordance with a determination, redetermination, or decision pursuant to Articles 7 and 8 of this chapter, except upon the ground that the services upon which such benefits were found to be chargeable did not constitute services performed in employment for the employer and only in the event that the employer was not a party to such determination, redetermination, or decision, or to any other proceedings under this chapter in which the character of such services was determined. The employer shall be promptly notified of the Commissioner's redetermination. The redetermination shall become final unless a petition for judicial review is filed within 15 days after notice of redetermination. Such notice shall be mailed or otherwise delivered to the employer's last known address. The petition for judicial review shall be filed in the Superior Court of Fulton County or in the superior court of the county of residence of the petitioner. In any proceeding under this Code section, the findings of the Commissioner as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law. No additional evidence shall be received by the court, but the court may order additional evidence to be taken before the Commissioner. The Commissioner may, after hearing such additional evidence, modify the determination and file such modified determination, together with a transcript of the additional record, with the court. Such proceedings shall be heard in a summary manner and shall be given precedence over all other civil cases except cases arising under Articles 7 and 8 of this chapter and Chapter 9 of this title. An appeal may be taken from the decision of the Superior Court of Fulton County or the superior court of the county of residence of the petitioner to the Court of Appeals of Georgia in the same manner as is provided in civil cases.
(a) Organizations covered. Benefits paid to employees of governmental entities and nonprofit organizations shall be financed in accordance with this Code section and Code Sections 34-8-157 and 34-8-159 through 34-8-162. For the purpose of this Code section, a nonprofit organization is an organization or a group of organizations described in Section 501(c)(3) of the United States Internal Revenue Code which is exempt from income tax under Section 501(a) of such code. For the purposes of this Code section, a governmental entity is an organization or group of organizations described in subsection (h) of Code Section 34-8-35.
(b) Payments in lieu of contributions. Governmental entities and nonprofit organizations which, pursuant to Code Section 34-8-35, are or become subject to this chapter shall pay contributions under Code Sections 34-8-150 through 34-8-157 unless they elect to make payments in lieu of contributions in accordance with this subsection. All entities which elect to make payments in lieu of contributions shall pay to the Commissioner for the unemployment fund the full amount of regular benefits which are attributable to the service of individuals in their employ during the effective period of election or subjectivity to this chapter.
(c) Procedure for payments in lieu of contributions.
(1) For claims filed prior to January 1, 1992, governmental entities described in subsection (a) of this Code section which elect to make payments in lieu of contributions shall pay the Commissioner for the unemployment fund 100 percent of extended benefits paid which are attributable to the service of individuals in their employ during the effective period. Nonprofit organizations which elect to make payments in lieu of contributions shall pay to the Commissioner for the unemployment fund 50 percent of extended benefits paid which are attributable to the service of individuals in their employ during the effective period; provided, however, that for the first week of extended benefits paid, the reimbursement to the unemployment fund shall be 100 percent of the extended benefits paid.
(2) For claims filed on or after January 1, 1992, an employer who has elected to make payments in lieu of contributions shall pay to the Commissioner for the unemployment fund the amount of benefits paid to former employees when such entity is determined to be the “most recent employer” as defined in Code Section 34-8-43. Extended benefits paid, except as otherwise provided in paragraph (2) of subsection (b) of Code Section 34-8-157, shall be financed in their entirety by governmental entities. Nonprofit organizations shall reimburse 100 percent for the first week of extended benefits paid and 50 percent of extended benefits paid after the first week when any of such entities is determined to be the most recent employer.
(d) Notice of election.
(1) Those entities described in subsection (b) of this Code section may elect to become liable for payments in lieu of contributions for a period of not less than two full calendar years, provided that a written notice of such election is filed with the Commissioner within 30 days of the date of the determination of liability under this chapter. Such election shall consist of the remainder of the calendar year in which the election is made and for not less than the two full ensuing calendar years.
(2) Those entities described in subsection (b) of this Code section which elect to make payments in lieu of contributions will continue to be liable for such payments unless a written notice terminating such election is filed with the Commissioner not later than 30 days prior to the beginning of the calendar year for which such termination shall first be effective.
(3) Any entity described in subsection (b) of this Code section which has been paying contributions under this chapter for at least two full calendar years may change to a reimbursable basis. The change in status shall be accomplished by the filing of a written notice of election to become liable for payments in lieu of contributions not later than 30 days prior to the beginning of the next calendar year. Such election shall not be terminated by the organization for the next two calendar years.
(e) Commissioner's discretion to extend period with respect to written notice of election or termination.
(1) The Commissioner may at his or her discretion extend the period within which a notice of election or a notice of termination must be filed and may permit an election to be retroactive.
(2) The Commissioner, in accordance with such regulations as the Commissioner may prescribe, shall notify each governmental entity or nonprofit organization of any determination relative to its status as an employer and of the effective date of any election which it makes or of any termination of such election. Such determination shall be subject to reconsideration, appeal, and review.
The payments in lieu of contributions as provided in Code Section 34-8-158 shall be made in accordance with the following provisions:
(1) Date payment due. Upon approval by the Commissioner, at the end of each calendar quarter or at the end of such other period as determined by the Commissioner, each organization or group of organizations shall be billed for payments in lieu of contributions charged to it during such quarter or other prescribed period in accordance with Code Section 34-8-158. Provisions applicable to contributing employers in Code Section 34-8-157 under which employers may not be charged do not apply to employers who make payments in lieu of contributions;
(2) Payment to be made not later than 30 days after bill mailed. The payment of any bill rendered under paragraph (1) of this Code section shall be made not later than 30 days after such bill was mailed to the last known address of the organization or was otherwise delivered to it unless there has been an application for review and redetermination in accordance with paragraph (4) of this Code section;
(3) Payments made not to be deducted from remuneration of individuals. Payments made by any governmental entity or nonprofit organization under this Code section shall not be deducted or deductible, in whole or in part, from the remuneration of individuals in the employ of the governmental entity or nonprofit organization;
(4) Amount specified in billing conclusive. The amount due specified in any billing notice from the Commissioner pursuant to paragraph (1) of this Code section shall be conclusive unless, not later than 15 days after the billing notice was mailed to its last known address or otherwise delivered to it, the organization files an application for redetermination by the Commissioner, setting forth the grounds for such application or appeal. The Commissioner shall promptly review and reconsider the amount due specified in the billing notice and shall thereafter issue a redetermination in any case in which such application for redetermination has been filed. Any such redetermination shall be conclusive with respect to the organization unless, not later than 15 days after the redetermination was mailed to its last known address or otherwise delivered, the organization files an appeal, setting forth the grounds for the appeal. Proceedings on appeal from the amount of a billing notice rendered under this Code section or a redetermination of such amount shall be in accordance with regulations as prescribed by the Commissioner; and
(5) Past due payments. Past due payments in lieu of contributions shall be subject to the same interest and penalties that, pursuant to Code Sections 34-8-165 and 34-8-166, apply to past due contributions. Interest or penalties shall not accrue with respect to any portion of the amount billed on which the employer prevails in the redetermination, but shall continue to accrue as to any portion of the amount billed on which the employer does not prevail.
(a) Notwithstanding Code Section 34-8-158 or any other provision of this chapter, a nonprofit organization that elected to make payments in lieu of contributions as provided in Code Section 34-8-158 between January 1, 2020, and January 1, 2022, that owes more than $360,000.00 for any 12 month period may elect to make such payments over a 36 month period in equal monthly amounts without penalty or interest; provided, however, this subsection shall only apply if the nonprofit organization purchased or had unemployment insurance coverage during that 12 month period and the insurance carrier providing such unemployment insurance denied coverage for unemployment claims arising from the public health emergency during such period.
(b) This Code section shall be repealed in its entirety on December 31, 2026.
(a) Authority to require surety bond. For the purposes of this Code section, a surety bond is a bond of surety issued by an organization licensed and authorized to issue such bond in the State of Georgia. In the discretion of the Commissioner, any organization that elects to become liable for payments in lieu of contributions shall be required, within 30 days after the effective date of its election, to execute and file with the Commissioner a cash deposit or surety bond approved by the Commissioner. In the sole discretion of the Commissioner, the department may secure such bonds and defray all or any portion of such cost to the employers covered under the bond. In the event the Commissioner elects to require any organization to execute and file a cash deposit or surety bond, the amount of such deposit or surety bond shall be determined in accordance with the provisions of subsection (b) of this Code section.
(b) Amount; renewal; deposit.
(1) AMOUNT OF SURETY BOND.The amount of the surety bond or cash deposit required by subsection (a) of this Code section shall be equal to 2.7 percent of the organization's taxable wages paid for employment, as defined in paragraph (1) of subsection (b) of Code Section 34-8-49, for the four calendar quarters immediately preceding the effective date of the election, the renewal date in the case of a surety bond, or a biennial anniversary of the effective date of election in the case of a deposit of money, whichever date shall be most recent and applicable. If the organization did not pay wages in each of such four calendar quarters, the amount of the surety bond or cash deposit shall be as determined by the Commissioner.
(2) RENEWAL OF BOND; ADJUSTMENTS.Any surety bond deposited under this subsection shall be in force for a period of not less than two full calendar years and shall be renewed, with the approval of the Commissioner, at such times as the Commissioner may prescribe but not less frequently than at two-year intervals as long as the organization continues to be liable for payments in lieu of contributions. The Commissioner shall require adjustments to be made in a previously filed bond as deemed appropriate. If the bond is to be increased, the adjusted bond shall be filed by the organization within 30 days of the date notice of the required adjustment was mailed or otherwise delivered to it. Failure by any organization covered by such bond to pay the full amount of payments in lieu of contributions when due, together with any applicable interest and penalties, shall render the surety liable on said bond to the extent of the bond as though the surety were such organization.
(3) DEPOSIT OF MONEY.Any deposit of money in accordance with this subsection shall be retained by the Commissioner in an escrow account until liability under the election is terminated, at which time it shall be returned to the organization less any deductions as provided in this paragraph. The Commissioner may deduct the amount necessary to satisfy any delinquent payments in lieu of contributions and any applicable interest, penalties, and costs as provided in Code Section 34-8-159 from the cash deposit required of an organization under this subsection. The Commissioner shall require the organization, within 30 days following any deduction from a cash deposit under the provisions of this paragraph, to deposit sufficient additional moneys to bring the organization's funds in escrow to the prior level. The Commissioner may at any time review the adequacy of the deposit made by any organization. If as a result of such review the Commissioner determines that an adjustment is necessary, the Commissioner shall require the organization to make additional deposits within 30 days of written notice of the determination or shall return to it such portion of the deposit that is no longer considered necessary, whichever action is appropriate.
(4) FAILURE TO MAKE SECURITY DEPOSIT.If any organization subject to this subsection fails to file a surety bond, make a cash deposit, file a surety bond in an increased amount, or increase the amount of a previously made cash deposit as provided under this Code section, the Commissioner may terminate such organization's election to make payments in lieu of contributions and such termination shall continue for not less than the eight consecutive calendar quarter periods beginning with the quarter in which such termination becomes effective; provided, however, that the Commissioner may in his or her discretion extend the posting of a cash deposit, the filing of a surety bond, or the extension of an adjustment period by not more than 30 days.
(5) DEPOSIT OF SECURITIES.The Commissioner may allow the deposit of securities acceptable to him or her in lieu of either the cash deposit or surety bond referenced in this Code section. The value of securities deposited shall be in accordance with regulations prescribed by the Commissioner.
Two or more employers who have become liable for payments in lieu of contributions in accordance with the provisions of Code Section 34-8-158 may file a joint application to the Commissioner for the establishment of a group account for the purpose of sharing the cost of benefits paid that are attributable to service in the employ of such employers. Each such application shall identify and authorize a group representative to act as the group's agent for the purposes of this Code section. Upon the approval of the application, the Commissioner shall establish a group account for such employers, effective as of the beginning of the calendar quarter in which the Commissioner receives the application, and shall notify the group's representative of the effective date of the account. Such account shall remain in effect for not less than two calendar years and thereafter until terminated at the discretion of the Commissioner or upon application by the group. Upon establishment of the account, each member of the group shall be liable for payments in lieu of contributions with respect to each calendar quarter in the amount that bears the same ratio to the total benefits paid in such quarter that are attributable to service performed in the employ of all members of the group as the total wages paid for service in employment by such member in such quarter bear to the total wages paid during such quarter for service performed in the employ of all members of the group. The Commissioner shall prescribe such regulations as deemed necessary with respect to applications for establishment, maintenance, and termination of group accounts that are authorized by this Code section, for addition of new members to and withdrawal of active members from such accounts, and for the determination of the amounts that are payable under this Code section by members of the group and the time and manner of such payments.
(a) There is established as a trust fund, separate and apart from all other public moneys or other funds of this state, a cash deposit escrow fund, which shall be administered by the Commissioner in accordance with such regulations as he or she may prescribe. This fund shall consist of all moneys deposited by employers with the Commissioner pursuant to paragraph (3) of subsection (b) of Code Section 34-8-160 and all interest thereon.
(b) The Commissioner shall be custodian of the fund and shall administer it in accordance with such regulations as the Commissioner shall prescribe. All moneys payable to the fund shall, upon receipt thereof by the Commissioner, immediately be deposited in the fund. All moneys in this fund shall be deposited in a bank or public depository in which general funds of the state may be deposited, except that moneys in this fund shall not be commingled with other state funds but shall be maintained in a separate account on the books of the depository bank. Such moneys shall be secured by the depository bank to the same extent and in the same manner as required by the general depository laws of this state; and collateral pledged for this purpose or bonds given for this purpose shall be kept separate and distinct from any collateral pledged to secure the other funds of the state. The Commissioner shall be liable on his or her official bond for the faithful performance of duties in connection with the cash deposit escrow fund. All sums recovered on any surety bond for losses sustained by the cash deposit escrow fund shall be deposited in said fund.
(c)(1) Moneys shall be withdrawn from the cash deposit escrow fund solely for the purpose of satisfying any delinquent payments in lieu of contributions owed by an organization or groups of organizations pursuant to Code Section 34-8-158. Withdrawals from the cash deposit escrow fund shall be made in accordance with regulations prescribed by the Commissioner and shall not exceed the total amount deposited in the cash deposit escrow fund by each such organization or group of organizations.
(2) Any interest which may accrue as the result of deposits to the cash deposit escrow fund shall, in the discretion of the Commissioner, be withdrawn to the extent necessary to cover deficiencies in the reimbursement account which have not been provided for by the escrow funds. Such withdrawal shall not exceed interest accrued in the cash deposit escrow fund. Interest not used for such purpose shall be retained in the cash deposit escrow fund.
(a) Except as provided in subsection (c) of this Code section, an employing unit liable under this chapter must apply in writing to the Commissioner prior to April 30 in order to terminate liability. If the Commissioner finds that such employer did not, during the preceding calendar year, have sufficient employment or sufficient payroll to be considered an employer under this chapter, or was not otherwise subject to this chapter, then such coverage shall be terminated as of January 1 of such completed calendar year. Wage credits of any individual may not be decreased as a result of the employer being terminated. For the purpose of this Code section, two or more employing units who are predecessors or successors in a business or organization shall be treated as a single employing unit.
(b) The Commissioner may terminate the liability of an employer without written application of the employer when such employer did not have sufficient employment or sufficient payroll during a calendar year to be considered an employer under this chapter.
(c) All types of elective coverage as provided in paragraph (7) of Code Section 34-8-33 may be terminated in the discretion of the Commissioner at any time subsequent to the first two-year period.
Applications for an adjustment or a refund of contributions, payments in lieu of contributions, or interest thereon, shall be submitted no later than three years from the date such amounts were assessed. Applications must be in writing. The Commissioner shall determine what amounts, if any, were erroneously collected. Adjustments shall be made against subsequent payments. Refunds will be issued, without interest thereon, when adjustments cannot be made. At the option of the Commissioner, the Commissioner may make any adjustments or refunds deemed appropriate for any amounts erroneously collected where no written request for a refund or an adjustment has been received, provided that such amounts were assessed within the last seven years. Amounts shall be refunded from the fund into which they were deposited.
(a)(1) In accordance with such regulations as the Commissioner may prescribe, tax and wage reports shall become due and be filed by each employer on or before the last day of the month next following the end of the calendar quarter to which such reports apply.
(2) With respect to employers as defined in paragraph (2) of subsection (a) of Code Section 34-8-33, the Commissioner shall provide by regulation for such tax and wage reports to be filed on an annual rather than on a quarterly basis in accordance with federal law. No penalty shall be due for such reports which are filed in the manner and within the time period prescribed by the Commissioner.
(3) Such reports shall list the name, social security number, the amount of wages paid each employee by such employer, and any other information the Commissioner may require.
(b) Any employer who fails to file a tax and wage report on or before the due date as provided in subsection (a) of this Code section shall be penalized in the sum of $20.00 or .05 percent of total wages, whichever is greater, for each month or fraction of a month such report remains delinquent. Such penalty assessments shall be due and payable in the same manner as delinquent contributions. Penalty collection shall be enforced under procedures established by this chapter.
(c) In the discretion of the Commissioner, the imposition of a penalty may be waived. Inadvertent, unavoidable, or unintentional errors or omissions in a tax and wage report which is filed in due time shall not subject the employer to the imposition of the penalty provided in subsection (b) of this Code section.
(d) Fraudulent reports, including intentional errors or omissions, shall also be subject to the criminal provisions provided in Code Section 34-8-256.
(a) Contributions unpaid on the due date established by the Commissioner shall bear interest at the rate of 1.5 percent per month or any fraction of a month. Interest shall continue to accrue until all amounts due, including interest, are received by the Commissioner.
(b) The Commissioner may waive the collection of any accrued interest when it is reasonably determined that the delay in payment of contributions was due to the action or inaction of the department.
(c) The Commissioner shall file an annual report with the Attorney General, the members of the Senate Insurance and Labor Committee, and the members of the House Committee on Industry and Labor stating the number of cases and the total amount of interest which is waived pursuant to this Code section. The Commissioner shall retain on file for five years a detailed statement listing the names of the employers whose interest was waived, the amount of interest waived, the number of cases, and the specified reasons for each waiver under this Code section. This statement shall be available for review by members of the General Assembly, the Attorney General, the state accounting officer, and the state auditor.
(a) If, after due notice, any employer defaults in any payment of contributions or interest thereon, the amount due, including any penalty, may be collected by civil action maintained in the name of the Commissioner. The employer adjudged in default shall pay the cost of such actions. Civil actions brought under this Code section to collect contributions, interest, or penalties from an employer shall be heard by the superior court at the earliest possible date and shall be entitled to preference upon the calendar of the court over all other civil actions except petitions for judicial review under this chapter and workers' compensation cases arising under Chapter 9 of this title and other actions to which the state is a material party and which are now given precedence.
(b) In addition to any other method provided by law for the collection of contributions, any contribution not paid when due, including any interest, penalty, and costs thereon, may be collected by the Commissioner by and with the same authority as is contained in Code Sections 48-2-55 and 48-3-1 providing for the collection of taxes by the state revenue commissioner. If any contribution or tax imposed by this chapter is not paid within ten days after notice and demand from the Commissioner, the Commissioner shall issue an execution or writ of fieri facias directed to any levying officer designated by the Commissioner, the sheriff, or the lawful deputies of the sheriff of any county of the state requiring such officer to levy upon and sell the real or personal property of any delinquent employer or liable individual found within such officer's county in sufficient amount to satisfy the execution so issued, together with penalties, interest, and all costs of executing and collecting the said execution, and to return such execution to the Commissioner, together with all such sums collected under and by virtue thereof, by a time to be therein specified, not more than 60 days from the date of the execution.
(c) Nothing contained in this Code section shall prevent the Commissioner from having the execution or writ of fieri facias entered upon the general execution docket prior to the time the execution is turned over to a levying officer designated by the Commissioner for collection. The Commissioner may file the execution with the clerk of the superior court of the employer's residence, place of business, or the county in which the employer may own property. It shall then be the duty of the clerk of the superior court of the county in which the execution is filed to enter the execution upon the lien records of the superior court of said county, with the execution being recorded in the same manner and form as prescribed by the general laws of the State of Georgia relating to executions issued by a superior court of this state and processed and transmitted electronically for inclusion in the state-wide uniform automated information system for real and personal property records, as provided in Code Section 15-6-97.
(d) The amount of any contributions not paid when due, including any interest, penalties, and costs, shall constitute a lien upon all property and rights to property and upon all after-acquired property and rights to property, both real and personal, of the employer liable for such contributions. The lien shall attach and be perfected as of the date such contributions become due and shall have parity with other tax liens and be prior, superior, and paramount to all other liens or encumbrances attaching to any of such property; provided, however, the lien shall not be preserved against purchasers, judgment creditors, pledgees, subsequent tax liens, or other liens or encumbrances until an execution for such contributions has been entered on the general execution docket. When the execution has been issued and docketed as required in subsection (c) of this Code section, the lien shall be a perfected lien upon all property and rights to property of the employer, both real and personal, in each county of this state.
(e) All contributions, including interest, penalties, and costs thereon, imposed by this chapter are made a personal debt of the officer, major stockholder, or other person having charge of the affairs of a corporate or association employing unit who is required to file returns or pay the contributions required by this chapter. The Commissioner may assess such officer, stockholder, or other person for the amount of such contributions, penalties, and interest. The provisions of Code Section 34-8-164 and Code Section 34-8-170 shall apply to assessments made pursuant to this subsection. With respect to such officer, stockholder, or other person, the Commissioner shall have all the collection remedies set forth in this chapter.
(f) Any reference within this chapter to the collection of delinquent contributions shall also include payments in lieu of contributions as provided in Code Section 34-8-158.
(a) The Commissioner or an authorized representative of the Commissioner may use garnishment to collect the tax imposed by this chapter. Garnishment may be issued by the Commissioner in the same manner as is provided for the issuance of garnishment by the state revenue commissioner in Code Section 48-2-55 and by tax collectors in Code Sections 48-3-12 through 48-3-18 and 48-3-23, provided it is unnecessary for the Commissioner or an authorized representative of the Commissioner to make an entry of nulla bona prior to filing a garnishment action.
(b) After due notice and demand for payment, the Commissioner or an authorized representative of the Commissioner may levy upon all property and rights to property, except such as are exempt by law, belonging to such employer or liable individual. As used in this chapter, the term “property and rights to property” includes, but is not limited to, any account in or with a financial institution. Such levy shall be for the payment of the sum due, with penalty and interest for nonpayment, and such additional sums as shall be sufficient for the fees, costs, and expenses of such levy. The Commissioner or an authorized representative of the Commissioner may levy and conduct judicial sales in the manner now provided for sales by sheriffs and constables.
(c)(1) In the case of personal property, the levy shall be advertised ten days before the date of sale. Advertisements of sales shall designate the time and place of sale and give a reasonable description of the property to be sold. Advertisements of sales shall be posted and sales shall be conducted as provided in Code Section 48-2-55.
(2) In the case of real property, the Commissioner or an authorized representative of the Commissioner, after making the levy, shall make a return of such levy on the execution to the sheriff of the county in which the property is located and the sheriff shall proceed to advertise and sell the same as required by law.
(d) The department shall apply all moneys obtained under this Code section first against the expenses of the proceedings and then against the liability in respect to which the levy was made and any other liability owed to the department by the delinquent employer.
(e)(1) Any person in possession of or obligated with respect to property or rights to property subject to levy upon which a levy has been made shall, upon demand of the Commissioner or a duly authorized representative of the Commissioner, surrender such property or rights or discharge such obligation to the Commissioner or a duly authorized representative of the Commissioner, except such part of the property or rights as is subject, at the time of such demand, to an attachment or execution under any judicial process.
(2) Any person who willfully fails or refuses to surrender any property subject to levy shall be personally liable to the Commissioner for a sum equal to the value of the property or rights not so surrendered but not exceeding the amount of contributions, interest, and penalties for the collection of which such levy has been made, together with costs and interest at the rate of 18 percent per annum from the date of such levy. Any amount other than costs recovered under this subsection shall be credited against the subject employer's liability for the collection of which such levy was made.
(3) Any person in possession of or obligated with respect to property or rights to property subject to levy upon which a levy has been made who, upon demand by the Commissioner or the duly authorized representative of the Commissioner, surrenders such property or rights to property or discharges such obligation to the Commissioner or the Commissioner's duly authorized representative shall be discharged from any obligation or liability to the delinquent employer with respect to such property or rights to property arising from such surrender or payment.
(f)(1) In the event that any employer desires to contest the execution, such employer may do so by filing an affidavit of illegality with the levying officer at the time of the levy suspending such execution, as now prescribed by the general laws relating to the filing of affidavits of illegality. When such affidavit is so filed and the tax is paid or bond for the sum sought by the Commissioner is given, it shall be the duty of the levying officer to return the execution, together with the affidavit of illegality and bond and, in case of personal property, bond for the forthcoming of the property, to the clerk of the superior court of the county of the employer or defendant in execution. The superior court of the county shall, at the first or next term, cause the issue so made to be tried by a jury in the superior court of the county of the residence of the employer under the same rules of law and evidence as prevail in this state.
(2) If the department has levied upon property, any person other than the debtor who is liable to pay the debt out of which the levy arose who claims an interest in or lien on that property and claims that property was wrongfully levied upon may bring a civil action against the state in the Superior Court of Fulton County. The action may be brought whether or not that property has been surrendered to the department. The court may grant only the relief provided under paragraph (3) of this subsection. No other action to question the validity of or to restrain or enjoin a levy by the department may be maintained.
(3) In an action under paragraph (2) of this subsection, if a levy would irreparably injure rights to property, the court may enjoin the enforcement of that levy. If the court determines that the property has been wrongfully levied upon, it may grant a judgment for the amount of money obtained by levy.
(4) For purposes of an adjudication under this subsection, the determination of the debt upon which the interest or lien of the department is based is conclusively presumed to be valid. The department shall determine its costs and expenses to be paid in all cases of levy.
(5) The department may refund or credit any amount left after the applications under paragraph (2) of this subsection to the person entitled to that amount, upon submission of a claim therefor and satisfactory proof of the claim.
(g)(1) The department may release the levy upon all or a portion of any property levied upon to facilitate the collection of the liability or to grant relief from a wrongful levy; provided, however, such release shall not prevent any later levy.
(2) If the department determines that property has been the subject of a wrongful levy, the department may return the property at any time or may return an amount of money equal to the amount of moneys levied upon.
(3) The availability of the remedy under this Code section shall not abridge the right of the department to pursue other remedies.
(h) The Attorney General shall represent the Commissioner when any such cases or contests initiated by affidavits of illegality are filed in any county or any legal action in courts results from the issuance of any execution.
(i) The Commissioner, with respect to the administration of this chapter and the collection of contributions pursuant to this chapter and in addition to the authority granted the Commissioner by the provisions of this chapter, shall have the same rights, authority, and prerogatives provided the state revenue commissioner for securing reports and for the collection of taxes as contained in Title 48.
(a) For the purpose of collecting delinquent contributions, interest, and penalties, the Commissioner may enter into an agreement with one or more private persons, companies, associations, or corporations providing debt collection services with respect to the collection of delinquent contributions, administrative assessments, interest, and penalties. The agreement may provide, at the discretion of the Commissioner, the rate of payment and the manner in which compensation for services shall be paid. The compensation, fees, and expenses may be added to the amount of the delinquent contributions, interest, and penalties and may be collected by the contractor from the debtor. The Commissioner shall provide the necessary information for the contractor to fulfill its obligation under the agreement.
(b) At the discretion of the Commissioner, the contractor may, as part of the collection process, refer the debt to legal representatives for litigation in the name of the Commissioner.
(c) No action taken by the Commissioner pursuant to this Code section shall be construed to be an election to forgo other collection procedures in this article.
(a) If any employer fails or neglects to make a report as required by Code Section 34-8-165 or by rules and regulations, the Commissioner may make an estimate based upon any information in the Commissioner's possession of the amount of wages paid for employment in the period or periods for which no report was filed and upon the basis of such estimate shall compute and assess the amounts of contributions payable by the employer.
(b) If the Commissioner is not satisfied with any report made and filed by any employing unit of the amount of contributions, the Commissioner may compute the amount required to be paid upon the basis of facts contained in the report or reports or may make an estimate upon the basis of any information in his or her possession or that may come into his or her possession and make an assessment of the deficiency.
(c) The assessment shall include penalty as required by Code Section 34-8-165 and interest as required by Code Section 34-8-166 together with all costs incurred in recording and canceling liens.
(d) One or more assessments may be made for the amount due for one or more than one period and overpayments may be offset against underpayments.
(e) The Commissioner shall give to the employing unit against whom an assessment is made a written notice of the assessment. Such notice shall be directed to the last known address of the employing unit as provided to the Commissioner by the employing unit.
(f)(1) Except in the case of failure without good cause to file a return, fraud, or intent to evade any provision of this chapter or authorized regulations, every notice of assessment shall be made within three years after the last day of the month following the close of the calendar quarter during which the contribution liability included in the assessment accrued or within three years after the deficient return is filed, whichever period expires later. An employing unit may waive this limitation period or may consent to its extension.
(2) In case of failure without good cause to file a return, every notice of assessment shall be made within seven years after the last day of the month following the close of the calendar quarter during which the contribution liability included in the assessment accrued. An employer may waive this limitation period or may consent to its extension.
(g)(1) If the Commissioner finds that the collection of any contributions will be jeopardized by delay, the Commissioner shall thereupon make an assessment of those contributions, noting upon the assessment that it is a jeopardy assessment levied under this Code section and the facts upon which the Commissioner finds that collection of contributions will be jeopardized by delay. The amount of the assessment shall be immediately delinquent, whether or not the time otherwise allowed by law or authorized regulations has expired. When applicable, the penalties and interest provided in Code Sections 34-8-165 and 34-8-166 shall attach to the amount of the contributions specified in the jeopardy assessment.
(2) In levying the assessment, the Commissioner may demand a deposit of such security as the Commissioner deems necessary to ensure compliance with the department, including additional security from time to time, but not more frequently than monthly, in the amount of accumulating interest. The deposit of sufficient security to ensure compliance shall stay other collection action by the Commissioner while the assessment is under review. The deposit of the sufficient security shall not be a condition for the exercise of the review and appeal rights of the employer pursuant to this chapter. The filing of a petition for reassessment shall not stay collection action by the Commissioner while the assessment is under review but shall stay the sale of all property other than perishable goods seized by the Commissioner pursuant to the collection action until a final decision from a hearing is issued by the Office of State Administrative Hearings.
(h) A jeopardy assessment may be made only upon a finding by the Commissioner, based upon probable cause, that any of the following conditions are met:
(1) The employer is insolvent;
(2) The employer has transferred, or is about to transfer, assets for less than fair market value, and by so doing has rendered, or is likely to render, itself insolvent;
(3) The employing unit has been dissolved;
(4) Any person liable for the employer's contribution or any owner, officer, director, partner, or other person having charge of the affairs of the employer has departed or is about to depart the State of Georgia and that the departure is likely to deprive the Commissioner of a source of payment of the employer's contributions; or
(5) Any person referenced in paragraph (4) of this subsection or the employer is secreting assets or is moving, placing, or depositing assets outside of the state for the purpose of interfering with the orderly collection of any contribution. The moving, placing, or depositing of assets outside of the state which constitutes a regular business practice and which does not in any way deplete the assets of the employing unit shall not be deemed to be interfering with the orderly collection of any contribution under this chapter.
(i) Any assessment so made by the Commissioner shall be prima facie good and sufficient for all legal purposes. Notice and demand for such contributions plus interest, penalty, and costs shall be made upon such forms as the Commissioner may prescribe, and the notice and demand shall become final 15 days after the date of delivery of said notice and demand to the employer in person or by mail. Notwithstanding any of the foregoing, an employer may make application for adjustment or refund as provided in Code Section 34-8-164 if the report required by Code Sections 34-8-121 and 34-8-165 has been filed with the Commissioner. In the discretion of the Commissioner, an adjustment or refund may be made after a lien has issued and been recorded, but only if the Commissioner is satisfied the report is complete and accurate. The Commissioner shall require such documentation and may inspect any books or records of the employer as the Commissioner deems necessary to make this determination. An adjustment to the amount due may be made if the lien has not yet been satisfied. If the lien has been satisfied, a refund may be issued by the Commissioner.
An employer may be enjoined from employing individuals if such employer's reports remain unfiled or contributions remain unpaid 90 days after the end of the calendar quarter to which they apply. The Commissioner or a designee of the Commissioner may file a complaint for an injunction in the superior court of any county in which the employer may be doing business. Said employer shall be enjoined from employing individuals until all reports have been filed and all delinquent amounts have been paid to the Commissioner.
The Commissioner shall require any employee leasing company, as defined in Code Section 34-8-32, to post a surety bond or such equivalent financial securities as approved by the Commissioner in such an amount as needed to cover the total of any potential tax liability which may reasonably be expected to be incurred by such employer. In the event an employee leasing company is unable to procure such bond or security, the employee leasing company may report such employees as being in the employment of its client employers, notwithstanding any provision of Code Section 34-8-32 to the contrary.
(a) The Commissioner may release or subordinate all or any portion of the property subject to any lien obtained under provisions of this chapter if the Commissioner determines that the contributions, interest, and penalties are sufficiently secured by a lien on other property or through other security or that the release, partial release, or subordination of such lien will not endanger or jeopardize the collection of amounts due.
(b)(1) The Commissioner is authorized to settle and compromise any payment of contributions and interest thereon, including penalty, or any tax execution, where there is doubt as to the liability of the employer or where there is doubt as to the collectability and the settlement or compromise is in the best interest of the state. The Commissioner may make all reasonable rules and regulations necessary to effectuate the purpose of this Code section.
(2) The Commissioner shall file an annual report with the Attorney General, the members of the Senate Insurance and Labor Committee, and the members of the House Committee on Industry and Labor, which report shall state the number of cases and the total amount of debt which is compromised under this Code section. The Commissioner shall retain on file for five years a detailed statement listing the names of the employers whose debt was compromised, the amount of debt compromised, the number of cases, and the specified reasons for each debt compromise under this Code section. This statement shall be available for review by members of the General Assembly, the Attorney General, the state accounting officer, and the state auditor.
In the event of any distribution of an employer's assets pursuant to an order of any court under the laws of this state, in proceedings relating to the administration of the estate of a decedent, receivership, assignment for benefit of creditors, adjudicated insolvency, composition, dissolution, reorganization, or similar proceedings, contributions then or thereafter due, together with interest, penalties, and cost thereon, shall be paid in full in accordance with laws of this state governing the order of payment of tax liens and tax priorities. In the event of any employer's adjudication in bankruptcy or judicially confirmed extension proposal, contributions then or thereafter due, together with interest, penalties, and costs thereon, shall be required to be paid in accordance with the laws governing the lien and priority of taxes due this state.
Any employing unit which sells or transfers its business or stock of goods shall file all required tax and wage reports and pay all contributions, administrative assessments, interest, and penalties within 30 days after such sale or transfer. Such reports and payments shall include all wages for employment up to the date of the sale or transfer. The purchaser, transferee, successor, or assignee shall withhold a sufficient amount from the purchase money to cover the amount of all contributions, administrative assessments, interest, and penalties due and unpaid by the seller or transferor. If the seller or transferor fails to make required payments within the 30 days specified, then the purchaser, transferee, successor, or assignee shall pay the money so withheld. If the purchaser, transferee, successor, or assignee fails to do so, it shall become liable for such contributions, administrative assessments, interest, and penalties. After 30 days the purchaser, transferee, or successor will also become jointly and severally responsible with the predecessor for filing of any delinquent reports. If the payment of moneys is not involved in the sale or transfer, such purchaser shall withhold the performance of the condition that constitutes the consideration for the transfer until the Commissioner certifies that all reports have been filed and all contributions, administrative assessments, interest, and penalties have been paid.
All collection, penalty, and sanction provisions in this chapter that are applicable to private employers are made equally applicable to all public employers who are liable for the payment of contributions or payments in lieu of contributions pursuant to this chapter.
Should any department or political subdivision of the state, any instrumentality of a political subdivision of the state, or any instrumentality of one or more of the foregoing become more than 120 days delinquent in contributions or payments in lieu of contributions due to the Unemployment Compensation Fund, the Department of Labor shall certify to the Office of the State Treasurer the amount due. The Office of the State Treasurer shall transfer the amount due to the Department of Labor from funds it has available for distribution to the respective department or political subdivision of the state, instrumentality of a political subdivision of the state, or instrumentality of one or more of the foregoing. The certification shall be signed by the Commissioner and shall be conclusive proof of the delinquency. The Commissioner shall mail a copy of the certification to the delinquent public employer on the date of transmittal to the Department of Administrative Services. Should the public employer wish to appeal the Commissioner's decision, it shall so notify the Commissioner within 15 days from the date the certification is mailed to the public employer. The Commissioner shall, upon receipt of the notice, request the Attorney General to appoint an independent attorney as an administrative hearing officer to hear all issues involved and render a decision. Should the public employer or the Commissioner contest the administrative hearing officer's decision, an appeal may be filed, within 30 days after the decision of the administrative hearing officer has been mailed, in the superior court of the county in which the decision was rendered. The Attorney General shall represent the Commissioner in any such matters appealed.
Any employer may make voluntary payments in addition to the contributions required under this chapter, and the same shall be credited to the employer's experience account; provided, however, that such voluntary contributions shall not be used in the computation of reduced rates unless such contributions are paid within 30 days following the date upon which the Commissioner mails notice that such payments may be made with respect to a calendar year, and in no event shall such payments be made later than the expiration of 120 days after the beginning of the year for which such rates are effective. Such voluntary payments when accepted from an employer will not be refunded in whole or in part.
(a) For periods on or after January 1, 2024, but on or before December 31, 2026, there is created an administrative assessment of 0.06 percent to be assessed upon all wages as defined in Code Section 34-8-49, except the wages of:
(1) Employers that have elected to make payments in lieu of contributions as provided by Code Section 34-8-158 or that are liable for the payment of contributions as provided in such Code section; or
(2) Employers that, by application of the State-wide Reserve Ratio as provided in Code Section 34-8-156, have been assigned the minimum positive reserve rate or the maximum deficit reserve rate.
(b) Assessments pursuant to this Code section shall become due and shall be paid by each employer and shall be reported on the employer's quarterly tax and wage report according to such rules and regulations as the Commissioner may prescribe. Assessments provided for in this Code section shall not be deducted, in whole or in part, from the remuneration of any individual in the employ of the employer. Any deduction in violation of this subsection is unlawful.
For periods on or after January 1, 2024, but on or before December 31, 2026, in addition to the rate of employer contributions paid under Code Section 34-8-151, each new or newly covered employer shall pay an administrative assessment of 0.06 percent of wages paid by such employer with respect to employment during each calendar year until the employer is eligible for a rate calculation based on experience as defined in this chapter, except as provided in Code Section 34-8-158.
(a) The Commissioner is authorized to collect the administrative assessment as provided for in this article and to deposit such funds in the clearing account of the Unemployment Compensation Fund created by Code Section 34-8-83; provided, however, that such funds shall not be considered to be part of the Unemployment Compensation Fund and shall not be deposited with the secretary of the treasury of the United States. The Commissioner is further authorized to transfer the funds from that account to the state treasury.
(b) The General Assembly is authorized to appropriate to the department all funds collected and deposited in the state treasury under this article. These funds may be payable upon requisition of the Commissioner.
The Commissioner may promulgate such rules and regulations as are necessary to implement and effectuate the provisions of this article.
(a) Except as otherwise provided in this article and in the rules and regulations promulgated pursuant to this article, the provisions of this article shall be administered in accordance with corresponding provisions for the administration of this chapter. Such provisions shall be subject to the same calculations, assessments, method of payment, penalties, interest, costs, and collection procedures otherwise provided in this chapter.
(b) In the administration of this article and the collection of the administrative assessment created by this article, the Commissioner is granted the same authority he or she possesses pursuant to other provisions of this chapter. Such authority includes, but is not limited to, the collection of payments; the imposition of interest, penalties, and costs; injunctive relief; and all other rights, authority, and prerogatives granted the Commissioner under this chapter.
(c) The rights, authority, and prerogatives created under this article shall not in any manner diminish the other rights, authority, and prerogatives of the Commissioner with respect to the administration of this chapter.
This article shall stand repealed in its entirety on January 1, 2027.
(a) Claims for benefits shall be made in accordance with such rules or regulations as the Commissioner may prescribe. The Commissioner may provide for employer initiated claims under such circumstances as prescribed in rules or regulations.
(b) Each employer shall post and maintain, in places readily accessible to employees, printed statements concerning such regulations or such other matters as the Commissioner may by regulation prescribe. Each employer shall make available to its employees copies of such printed statements or materials relating to claims for benefits as the Commissioner may by regulation prescribe.
(c) Each employer shall furnish to each employee a separation notice at such time as the employee leaves the employment of the employer. The separation notice shall contain detailed reasons for the employee's separation. The employee shall tender this separation notice at the time of filing a claim for benefits. This separation notice shall be in such form as prescribed by rules or regulations of the Commissioner. The Commissioner shall by rule or regulation prescribe the circumstances under which such form must be furnished to the department.
All benefits payable from and out of the Unemployment Compensation Fund shall be paid as provided in this chapter and through the employment offices of the department in accordance with such rules and regulations as the Commissioner may prescribe.
(a) Employees of the department designated by the Commissioner shall take the initial claim. An initial determination thereon shall be made promptly and shall include a determination with respect to whether or not benefits are payable, the week with respect to which benefits shall commence, the weekly benefit amount payable, and the maximum duration of benefits.
(b) Whenever a determination involves the application of paragraph (4) of Code Section 34-8-194 or involves multiple claimants and difficult issues of fact or law, the Commissioner may appoint a panel of three administrative hearing officers for hearing and decision in accordance with subsection (a) of Code Section 34-8-220. The claimant and any other parties to the determination or redetermination shall be promptly notified of the decision and the reasons therefor.
(c) A determination shall be final unless a party entitled to notice applies for reconsideration of the determination or appeals the determination within 15 days after the notice was mailed to the party's last known address or otherwise delivered to the party. Before a determination becomes final as provided in this Code section, the Commissioner may issue a redetermination if good cause is shown. Such redetermination is subject to further appeal by any party entitled to notice as provided in this chapter.
(d) Notwithstanding any provision in this Code section or this chapter to the contrary, benefits shall be paid promptly in accordance with a determination or redetermination under this Code section or the decision of an administrative hearing officer, the board of review, or a reviewing court allowing benefits upon the issuance of such determination or redetermination without such payments being withheld pending outcome of the hearing of an appeal, review by the board of review, or decision of a court, unless and until such determination has been modified or reversed by a subsequent decision. In that event, benefits shall be paid or denied for any weeks of unemployment in accordance with such modifying or reversing decision. Neither the board of review nor any court shall issue an injunction, supersedeas, stay, or other writ or process suspending the payment of such benefits pending the disposition of such appeal.
(a) The weekly benefit amount of an individual's claim shall be that amount computed by dividing the two highest quarters of wages paid in the base period by 42. Any fraction of a dollar shall then be disregarded. Wages must have been paid in at least two quarters of the base period and total wages in the base period must equal or exceed 150 percent of the highest quarter base period wages. For claims that fail to establish entitlement due to failure to meet the 150 percent requirement, an alternative computation shall be made. In such event, the weekly benefit amount shall be computed by dividing the highest single quarter of base period wages paid by 21. Any fraction of a dollar shall then be disregarded. Under this alternative computation, wages must have been paid in at least two quarters of the base period and total base period wages must equal or exceed 40 times the weekly benefit amount. Regardless of the method of computation used, wages must have been paid for insured work, as defined in Code Section 34-8-41.
(b) Weekly benefit amount entitlement as computed in this Code section for benefit years beginning on or after July 1, 2005, when the weekly benefit amount, as computed, would be more than $26.00 but less than $42.00, the individual's weekly benefit amount will be $42.00, and no weekly benefit amount shall be established for less than $42.00; provided, further, that for benefit years beginning on or after July 1, 2007, when the weekly benefit amount, as computed, would be more than $26.00 but less than $44.00, the individual's weekly benefit amount will be $44.00, and no weekly benefit amount shall be established for less than $44.00; provided, further, that for benefit years beginning on or after July 1, 2019, when the weekly benefit amount, as computed, would be more than $26.00 but less than $55.00, the individual's weekly benefit amount will be $55.00, and no weekly benefit amount shall be established for less than $55.00.
(c) Weekly benefit amount entitlement as computed in this Code section shall not exceed these amounts for the applicable time period:
(1) For claims filed on or after July 1, 2005, but before July 1, 2006, the maximum weekly benefit amount shall not exceed $310.00;
(2) For claims filed on or after July 1, 2006, but before July 1, 2008, the maximum weekly benefit amount shall not exceed $320.00;
(3) For claims filed on or after July 1, 2008, but before July 1, 2019, the maximum weekly benefit amount shall not exceed $330.00; and
(4) For claims filed on or after July 1, 2019, the maximum weekly benefit amount shall not exceed $365.00.
(d)(1) Except as otherwise provided in this subsection, the maximum benefits payable to an individual in a benefit year shall:
(A) For claims filed prior to June 14, 2020, be the lesser of:
(i) Fourteen times the weekly benefit amount, if this state's average unemployment rate is at or below 6.5 percent, with an additional weekly amount added for each 0.5 percent increment in this state's average unemployment rate above 6.5 percent up to a maximum of 20 times the weekly benefit amount if this state's average unemployment rate equals or exceeds 9 percent; or
(ii) One-fourth of the base period wages; and
(B) For claims filed on or after June 14, 2020, be the lesser of:
(i) Fourteen times the weekly benefit amount, if this state's average unemployment rate is at or below 4.5 percent, with an additional weekly amount added for each 0.5 percent increment in this state's average unemployment rate above 4.5 percent up to a maximum of 26 times the weekly benefit amount if this state's average unemployment rate exceeds 10 percent; or
(ii) One-fourth of the base period wages.
If the amount computed is not a multiple of the weekly benefit amount, the total will be adjusted to the nearest multiple of the weekly benefit amount. The duration of benefits shall be extended in accordance with Code Section 34-8-197.
(2) In addition to and subsequent to payment of all benefits otherwise allowed under paragraph (1) of this subsection whenever the average rate of total unemployment in this state, seasonally adjusted, as determined by the United States secretary of labor, for the period consisting of the most recent three months for which data for all states are published before the close of such week equals or exceeds 11 percent, weekly unemployment compensation shall be payable under this subsection to any individual who is unemployed, has exhausted all rights to regular unemployment compensation under the provisions of Article 7 of this chapter, and is enrolled and making satisfactory progress, as determined by the Commissioner, in a training program approved by the department, or in a job training program authorized under the Workforce Investment Act of 1998, Public Law 105-220, and not receiving similar stipends or other training allowances for nontraining costs. Each such training program approved by the department or job training program authorized under the Workforce Investment Act of 1998 shall prepare individuals who have been separated from a declining occupation, as designated by the department from time to time, or who have been involuntarily and indefinitely separated from employment as a result of a permanent reduction of operations at the individual's place of employment, for entry into a high-demand occupation, as designated by the department from time to time. The amount of unemployment compensation payable under this subsection to an individual for a week of unemployment shall be equal to the individual's weekly benefit amount for the individual's most recent benefit year less deductible earnings, if any. For claims filed prior to June 14, 2020, the total amount of unemployment compensation payable under this subsection to any individual shall be equal to 14 times the individual's weekly benefit amount for the individual's most recent benefit year, if this state's average unemployment rate is at or below 6.5 percent, with an additional weekly amount added for each 0.5 percent increment in this state's average unemployment rate above 6.5 percent up to a maximum of 20 times the weekly benefit amount if this state's average unemployment rate equals or exceeds 9 percent. For claims filed on or after June 14, 2020, the total amount of unemployment compensation payable under this subsection to any individual shall be equal to 14 times the individual's weekly benefit amount for the individual's most recent benefit year, if this state's average unemployment rate is at or below 4.5 percent, with an additional weekly amount added for each 0.5 percent increment in this state's average unemployment rate above 4.5 percent up to a maximum of 26 times the weekly benefit amount if this state's average unemployment rate exceeds 10 percent. The provisions of subsection (d) of Code Section 34-8-195 shall apply to eligibility for benefits under this subsection. Except when the result would be inconsistent with other provisions of this subsection, all other provisions of Article 7 of this chapter shall apply to the administration of the provisions of this subsection.
(3) As used in this subsection, the term “state's average unemployment rate” means the average of the adjusted state-wide unemployment rates as published by the department for the time periods of April 1 through April 30 and October 1 through October 31. The average of the adjusted state-wide unemployment rates for the time period of April 1 through April 30 shall be effective on and after July 1 of each year and shall be effective through December 31. The average of the adjusted state-wide unemployment rates for the time period of October 1 through October 31 shall be effective on and after January 1 of each year and shall be effective through June 30.
(e) An otherwise eligible individual shall be paid the weekly benefit amount, less gross earnings in excess of an amount established by the Commissioner as promulgated by rules and regulations, payable to the individual applicable to the week for which benefits are claimed. Such remaining benefit, if not a multiple of $1.00, shall be computed to the nearest multiple of $1.00. Earnings equal to or less than the amount established by the Commissioner will not affect entitlement to benefits. The amount established by the Commissioner shall not be less than $50.00 nor shall it exceed $300.00. For the purpose of this subsection, jury duty pay shall not be considered as earnings.
(f)(1) The amount of unemployment compensation payable to an individual for any week which begins in a period with respect to which such individual is receiving a governmental or other pension, retirement or retired pay, annuity, or any other similar periodic payment which is based on the previous work of such individual shall be reduced by an amount equal to the amount of such pension, retirement or retired pay, annuity, or other payment which is reasonably attributable to such week. Such remaining benefit, if not a multiple of $1.00, shall be computed to the nearest multiple of $1.00.
(2) The requirements of this subsection shall apply to any pension, retirement or retired pay, annuity, or other similar periodic payment only if:
(A) Such pension, retirement or retired pay, annuity, or similar payment is under a plan maintained or contributed to by a base-period employer or chargeable employer as determined under applicable law; and
(B) Payments for services performed for such employer by the individual after the beginning of the base period affect eligibility for or increase the amount of such pension, retirement or retired pay, annuity, or similar payment, except in the case of pensions paid under the federal Social Security Act, 1 the Railroad Retirement Act of 1974, 2 or the corresponding provisions of prior law.
(3) The Commissioner shall take into consideration the amount contributed by the individual for the pension, retirement or retired pay, annuity, or other similar periodic payment and shall limit such reduction based on the percent share contributed by such individual. An individual who, while working, contributed 50 percent or more toward such plan shall not be subject to a reduction in the weekly benefit amount of the claim.
(g) Between the filing of one benefit year claim and the filing of another benefit year claim, an individual must have performed services in bona fide employment and earned insured wages for such services. These wages for insured work must equal or exceed ten times the weekly benefit amount of the new claim in order to establish entitlement.
(h) The wage credits and benefit rights of persons who entered the armed services of the United States during a national emergency are preserved for the period of their actual service and six months thereafter in accordance with regulations of the Commissioner.
1 42 U.S.C.A. § 301 et seq.
2 45 U.S.C.A. § 231 et seq.
An individual shall be disqualified for benefits:
(1)(A) For the week or fraction thereof in which the individual has filed an otherwise valid claim for benefits after such individual has left the most recent employer voluntarily without good cause in connection with the individual's most recent work.
(B) Good cause in connection with the individual's most recent work shall be determined by the Commissioner according to the circumstances in the case; provided, however, that the following circumstances shall be deemed to establish such good cause and the employer's account shall not be charged for any benefits paid out to an individual who leaves an employer:
(i) To accompany a spouse who has been reassigned from one military assignment to another; or
(ii) Due to family violence verified by reasonable documentation demonstrating that:
(I) Leaving the employer was a condition of receiving services from a family violence shelter;
(II) Leaving the employer was a condition of receiving shelter as a resident of a family violence shelter; or
(III) Such family violence caused the individual to reasonably believe that the claimant's continued employment would jeopardize the safety of the claimant or the safety of any member of the claimant's immediate family.
For purposes of this subparagraph, the term “family violence” shall have the same meaning as in Code Section 19-13-1 and the term “family violence shelter” shall have the same meaning as in Code Section 19-13-20.
(C) To requalify following a disqualification, an individual must secure subsequent employment for which the individual earns insured wages equal to at least ten times the weekly benefit amount of the claim and then becomes unemployed through no fault on the part of the individual.
(D) When voluntarily leaving an employer, the burden of proof of good cause in connection with the individual's most recent work shall be on the individual.
(E) Benefits shall not be denied under this paragraph to an individual for separation from employment pursuant to a labor management contract or agreement or pursuant to an established employer plan, program, policy, layoff, or recall which permits the individual, because of lack of work, to accept a separation from employment;
(2)(A) For the week or fraction thereof in which such individual has filed an otherwise valid claim for benefits after the individual has been discharged or suspended from work with the most recent employer for failure to obey orders, rules, or instructions or for failure to discharge the duties for which the individual was employed as determined by the Commissioner according to the circumstances in the case. To requalify following a disqualification, an individual must secure subsequent employment for which the individual earns insured wages equal to at least ten times the weekly benefit amount of the claim and then becomes unemployed through no fault on the part of the individual. Notwithstanding the foregoing, in the Commissioner's determination the burden of proof of just discharge or suspension for cause as set forth shall be on the employer and the presumption shall be with the employee; provided, however, that:
(i) An individual shall secure employment and show to the satisfaction of the Commissioner that such individual has performed services in bona fide employment and earned insured wages equal to at least 12 times the weekly benefit amount of the claim and has lost that job through no fault on the part of such individual, if it is determined by the Commissioner that the individual has been discharged for cause by the most recent employer for one or more of the following reasons:
(I) Intentional conduct on the premises of the employer or while on the job which results in a physical assault upon or bodily injury to the employer, fellow employees, customers, patients, bystanders, or the eventual consumer of products; or
(II) Intentional conduct that results in the employee's being discharged for, and limited to, the following: theft of property, goods, or money valued at $100.00 or less; and
(ii) An individual shall secure employment and show to the satisfaction of the Commissioner that he or she has performed services in bona fide employment and earned insured wages equal to at least 16 times the weekly benefit amount of the claim if it is determined by the Commissioner that the individual has been discharged for cause by the most recent employer for one or more of the following reasons:
(I) Intentional conduct by the employee which results in property loss or damages amounting to $2,000.00 or more; or
(II) Intentional conduct that results in the employee's being discharged for, and limited to, the following: theft of property, goods, or money valued at over $100.00, sabotage, or embezzlement.
(B) An individual shall not be disqualified for benefits under subparagraph (A) of this paragraph if, based on the rules and regulations promulgated by the Commissioner, the Commissioner determines:
(i) The individual made a good faith effort to perform the duties for which hired but was simply unable to do so;
(ii) The individual did not intentionally fail or consciously neglect to perform his or her job duties;
(iii) The discharge occurred because of absenteeism and the absences were caused by illness of the claimant or a family member, unless the claimant has without justification failed to notify the employer or the absence for such illness which led to discharge followed a series of absences, the majority of which were attributable to fault on the part of the claimant in direct violation of the employer's attendance policy; provided, however, that no waiver of an employee's rights under the federal Family and Medical Leave Act of 1993 1, as amended, or any other applicable state or federal law shall be construed under this division;
(iv) The discharge occurred as a violation of the employer's rule of which the claimant was not informed by having been made aware thereof by the employer or through common knowledge. Consistency of prior enforcement shall be taken into account as to the reasonableness or existence of the rule and such rule must be lawful and reasonably related to the job environment and job performance; or
(v) Except for activity requiring disqualification under paragraph (4) of this Code section, the employee was exercising a protected right to protest against wages, hours, working conditions, or job safety under the federal National Labor Relations Act 2 or other laws.
(C) For the week or fraction thereof in which such individual has filed an otherwise valid claim for benefits after the individual has been discharged or suspended for violation of the employer's drug-free workplace policy as determined by the Commissioner according to the circumstances in the case. To requalify following a disqualification under this subparagraph, an individual must secure subsequent employment for which the individual earns insured wages equal to at least ten times the weekly benefit amount of the claim and then become unemployed through no fault on the part of the individual. Notwithstanding the foregoing, in the Commissioner's determination the burden of proof of just discharge or suspension for cause as set forth in this subparagraph shall be on the employer and the presumption of eligibility shall be with the employee; provided, however, that in cases where a drug or alcohol test is utilized to prove a violation of the employer's drug-free workplace policy:
(i) The employer's burden of proof of just discharge or suspension shall be presumed met if the individual fails a drug screening test which is required by terms of the employer's drug-free workplace policy and said policy complies with the provisions of Article 11 of Chapter 9 of this title, other substantially equivalent or more stringent standards established by federal law or regulations, or with rules and regulations prescribed by the Commissioner;
(ii) The laboratory test results, including but not limited to, documentation of the chain of custody, methodology, and the accuracy of the drug screening test shall be admissible and self-authenticating in an administrative hearing conducted by the Commissioner with respect to a disputed claim for unemployment benefits under this chapter, and such evidence shall create a rebuttable presumption that the individual violated the employer's drug-free workplace policy; provided, however, that any other evidence relating to the issue of eligibility and the provisions of this subparagraph may be received in person or by telecommunications at the hearing; and
(iii) Laboratory test results submitted by the individual, including but not limited to documentation of the chain of custody, methodology, and the accuracy of the drug screening test shall be admissible and self-authenticating in an administrative hearing conducted by the Commissioner with respect to a disputed claim for unemployment benefits under this chapter;
(3)(A) If, after the claimant has filed an otherwise valid claim for benefits, the claimant has failed without good cause either to apply for available, suitable work when so directed by an employment office or the Commissioner or to accept suitable work when offered to the claimant by any employer. Such disqualification shall continue until he or she has secured subsequent employment for which the individual has earned insured wages equal to at least ten times the weekly benefit amount of the claim and has lost that job through no fault on the part of the individual.
(B) In determining whether or not any work is suitable for an individual, the Commissioner shall consider the degree of risk involved to his or her health, safety, and morals; his or her physical fitness and prior training; his or her experience and prior earnings; his or her length of unemployment and prospects for securing local work in his or her customary occupation; and the distance of the available work from his or her residence. The length of unemployment shall be given full consideration and, after an adjustment period, the claimant must accept work involving less competence and at a lower remuneration. If a claimant has received ten weeks of benefits during his or her current period of unemployment, no work otherwise suitable shall be considered unsuitable because of prior training, experience, prior earnings, or level of compensation, provided such compensation is equal to or exceeds 66 percent of the claimant's highest calendar quarter base period earnings; provided, however, that such compensation must be equal to or greater than the minimum wage established by federal or state laws.
(C) Notwithstanding any other provisions of this chapter, no work shall be deemed suitable and benefits shall not be denied under this chapter to any otherwise eligible individual for refusing to accept new work:
(i) If the position offered is vacant due directly to a strike, lockout, or other labor dispute;
(ii) If the wages, hours, or other conditions of the work offered are less favorable to the individual than those prevailing for similar work in the locality; or
(iii) If, as a condition of being employed, the individual would be required to join a company union or to resign from or refrain from joining any bona fide labor organization;
(4) For any week with respect to which the Commissioner finds that his or her total or partial unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment, or other premises at which he or she is or was last employed. If, in any case, separate branches of work which are commonly conducted as separate businesses in separate premises are conducted in separate departments of the same premises, each such department shall, for the purposes of this paragraph, be deemed to be a separate factory, establishment, or other premises. This paragraph shall not apply if it is shown to the satisfaction of the Commissioner that:
(A) He or she is not participating in or financing or directly interested in the labor dispute which caused the stoppage of work;
(B) He or she does not belong to a grade or class of workers of which, immediately before the commencement of the stoppage, there were members employed at the premises at which the stoppage occurs, any of whom are participating in or financing or directly interested in the dispute; or
(C) A lockout has occurred following the expiration of the most recent working agreement without any offer of or refusal to continue that agreement during continued negotiations for a new agreement acceptable to employer and employee.
When a stoppage of work due to a labor dispute ceases and operations are resumed at the factory, establishment, or other premises at which the employee is or was last employed but the employee has not been restored to such last employment, the employee's disqualification for benefits under this paragraph shall be deemed to have ceased at such time as the Commissioner shall determine such stoppage of work to have ceased and such operations to have been resumed. Benefits shall not be paid for any week during which the employee is engaged in picketing or is a participant in a picket line at the factory, establishment, or other premises at which the employee is or was last employed even though the stoppage of work shall have ceased and operations have been resumed;
(5) For any week with respect to which the employee is receiving or has received remuneration in the form of:
(A) Wages in lieu of notice, terminal leave pay, severance pay, separation pay, or dismissal payments or wages by whatever name, regardless of whether the remuneration is voluntary or required by policy or contract; provided, however, such remuneration shall only affect entitlement if the remuneration for such week exceeds the individual's weekly benefit amount. Remuneration for accrued but unused annual leave, vacation pay, sick leave, or payments from employer funded supplemental unemployment plans, pension plans, profit-sharing plans, deferred compensation, or stock bonus plans or seniority buyback plans shall not affect entitlement. In the case of lump sum payments or periodic payments which are less than the individual's weekly wage, such payments shall be prorated by weeks on the basis of the most recent weekly wage of the individual for a standard work week; or
(B) Compensation for temporary partial or temporary total disability under the workers' compensation law of any state or under a similar law of the United States;
(6) For any week with respect to which he or she has received or is seeking unemployment compensation under an unemployment compensation law of another state or of the United States; or
(7) If while attending a training course as provided in Code Section 34-8-195, he or she voluntarily ceases attending such course without good cause. Such disqualification shall continue pursuant to the provisions of paragraph (1) of this Code section. However, if any individual is separated from training approved under Code Section 34-8-195 due to the individual's own failure to abide by rules of the training facility, he or she shall be disqualified for benefits under the provisions of paragraph (2) of this Code section.
1 29 U.S.C.A. § 2611 et seq.
2 29 U.S.C.A. § 151 et seq.
(a) An unemployed individual shall be eligible to receive benefits for any week only if such unemployed individual shows to the satisfaction of the Commissioner that each of the following conditions has been met:
(1) The individual has made a claim, has been unemployed or employed less than full time during the regular work week, and has reported his or her deductible earnings in accordance with Code Section 34-8-190;
(2) The individual has registered for work and has continued to report to an employment office as required by regulations prescribed by the Commissioner. The Commissioner may, by regulation, waive or alter either or both of the requirements of this paragraph for cases or situations in which the Commissioner finds that compliance with the requirements would be oppressive or inconsistent with the purposes of this chapter;
(3)(A) The individual is able to work, is available for work, is actively seeking work, and is bona fide in the labor market; provided, however, that no individual shall be considered available for work or receive benefits for any period that:
(i) The individual is away from work on vacation or leave of absence at the individual's own request;
(ii) The individual is away from work for a vacation period as provided in an employment contract or collective bargaining agreement; or
(iii) The individual is away from work for a vacation period in the absence of an employment contract or collective bargaining agreement and such vacation period is either pursuant to:
(I) An established employer custom, practice, or policy as evidenced by the previous year or years; or
(II) A vacation policy and practice established by the employer by an announcement, made at least 30 days before the beginning of the scheduled period, of a paid vacation plan applicable to the employees who meet the eligibility requirements of the plan.
(B) In no event shall an employee be held unavailable for work or ineligible for benefits under divisions (ii) and (iii) of subparagraph (A) of this paragraph for any period of more than two weeks in any calendar year when such employee is not paid for such period directly or indirectly by the employer or from a fund to which the employer contributes. The usual eligibility requirements shall apply to individuals laid off due to lack of work or for a purported vacation not meeting the conditions set forth in subparagraph (A) of this paragraph;
(4) The individual has participated in reemployment services, such as job search assistance services, if the individual was determined to be likely to exhaust regular benefits and to need reemployment services pursuant to a profiling system established by the Commissioner unless the Commissioner determines that:
(A) Such individual has completed such reemployment services; or
(B) There is justifiable cause for such individual's failure to participate in such reemployment services;
(5) The individual is willing to work under the same general terms and conditions as existed since the beginning of the base period; and
(6) The individual has been paid sufficient wages for insured work to qualify for a weekly benefit amount as provided in Code Section 34-8-193.
(b) An individual who is laid off with a scheduled return-to-work date within six weeks from the date of separation shall be considered attached to the employer and exempt from seeking work. However, if the employee has not returned to work at the end of that period, the employee must meet the requirements of subsection (a) of this Code section.
(c) An individual shall not be deemed to be unemployed in any week such individual refuses an intermittent or temporary assignment without good cause when the assignment offered is comparable to previous work or assignments performed by the individual or meets the conditions of employment previously agreed to between the individual and the employer. Such individual may be considered unemployed with respect to any week an assignment or work is not offered by the employer; provided, however, an employee of a temporary help contracting firm, an employee leasing company, or a professional employer organization as defined in Code Section 34-7-6 will be presumed to have voluntarily left employment without good cause if the employee does not contact the temporary help contracting firm, employee leasing company, or professional employer organization for reassignment upon completion of an assignment; provided, further, that such failure to contact the temporary help contracting firm, employee leasing company, or professional employer organization will not be considered a voluntary departure from employment unless the employee has been advised in writing of the obligation to contact such employer upon completion of assignments and has been advised in writing that unemployment benefits may be denied for failure to do so.
(d) No otherwise eligible individual shall be denied benefits because that individual is in training with the approval of the Commissioner. Individuals attending such approved training are exempt from the availability and work search requirements of this Code section. Such individual may also refuse work or referrals to job openings while in training without being subject to disqualification under paragraph (3) of Code Section 34-8-194.
(e) A claimant shall not be deemed ineligible or disqualified for benefits because he or she is in training approved by the United States secretary of labor pursuant to the Trade Act of 1974, 1 as amended, or the Job Training Partnership Act of 1982, 2 as amended, even though he or she voluntarily quit work which was not suitable to enter such training or he or she is not able, available, or actively seeking work or he or she refused work during any week of such training. For the purpose of this subsection, the term “suitable work” means, with respect to a claimant, work of a substantially equal or higher skill level than the claimant's past adversely affected work and wages for such work are not less than 80 percent of the claimant's average weekly wage in the adversely affected work; provided, however, no claimant shall be deemed ineligible or disqualified for benefits by operation of paragraph (7) of subsection (a) of Code Section 34-8-197 who is in approved training as referred to in this subsection; provided, further, should the employer respond timely and such voluntary separation on the part of the claimant is without good cause in connection with the claimant's most recent work, such employer's experience rating account shall not receive charges for any benefits paid as provided for in Code Section 34-8-157; provided, further, should the claimant refuse suitable work while in training and the employer files timely information as provided by regulation, such employer's experience rating account shall not be charged; provided, further, pursuant to Code Section 34-8-159, an employer under Code Section 34-8-158 who has elected to make payments in lieu of contributions is subject to relief of charges under this subsection, only with respect to claims filed with benefit years beginning on or after January 1, 1992.
(f)(1) An individual who files a new claim for unemployment compensation shall, at the time of filing such claim, be advised that:
(A) Unemployment compensation is subject to federal and state income tax;
(B) Requirements exist pertaining to estimated tax payments;
(C) An individual may elect to have federal income tax deducted and withheld from the individual's payment of unemployment compensation in the amount specified in the United States Internal Revenue Code of 1986;
(D) An individual may elect to have state income tax deducted and withheld from the individual's payment of unemployment compensation at the rate of 6 percent; and
(E) An individual shall be permitted to change a previously elected withholding status.
(2) Amounts deducted and withheld from unemployment compensation shall remain in the unemployment fund until transferred to the federal or state taxing authority as payment of income tax.
(3) The Commissioner may follow procedures specified by the United States Department of Labor and the Internal Revenue Service pertaining to the deducting and withholding of income tax.
(4) Amounts shall be deducted and withheld under this Code section only after amounts have been deducted and withheld for any overpayments of unemployment compensation, child support obligations, food stamp overissuances, or other purposes as required under this chapter.
1 19 U.S.C.A. § 2101 et seq.
2 P.L. 97-300.
(a) Code Section 34-8-35 Benefits based on service in employment as defined in subsections (h) and (i) of Code Section 34-8-35 shall be payable in the same amount, on the same terms, and subject to the same conditions as compensation payable on the basis of other services subject to this chapter, except as otherwise provided in this Code section.
(b) Benefits based on service in educational institutions.
(1) For the purposes of this subsection, the term:
(A) “Educational institution” means any voluntary pre-kindergarten program, elementary or secondary school, postsecondary institution, or other provider of educational services, irrespective of whether such program, school, institution, or other provider is public or private or nonprofit or operated for profit, provided that it:
(i) Is approved, licensed, or issued a permit, grant, or other authority to operate as a program, school, institution, or other provider of educational services by a federal, state, or local government or any of the instrumentalities, divisions, or agencies thereof with the authority to do so; and
(ii) Offers, by or under the guidance of teachers or instructors, an organized course of study or training in a facility or through distance learning which is academic, technical, trade related, or preparation for gainful employment in a recognized occupation.
The Commissioner is authorized to establish by rules or regulations such exceptions or exemptions from the term “educational institution,” as defined in this paragraph, as he or she shall deem appropriate, consistent with any federal program requirements applicable to this chapter.
(B) “Educational service contractor” means any public or private employer or other person or entity holding a contractual relationship with any educational institution or other person or entity to provide services to, for, with, or on behalf of any educational institution.
(C) “Educational service worker” means any person who performs services to, for, with, or on behalf of any educational institution, regardless of whether such person is engaged to perform such services by the educational institution or through an educational service contractor.
(2) With respect to services performed by an educational service worker in an instructional, research, or principal administrative capacity to, for, with, or on behalf of any educational institution, including those operated by the United States government or any of its instrumentalities, divisions, or agencies, benefits shall not be paid during periods of unemployment if services in such educational service worker capacity were performed in the prior year, term, or vacation period and there is a contract or a reasonable assurance of returning to work for any such educational institution or any educational service contractor immediately following the period of unemployment. Such periods of unemployment include those occurring:
(A) Between two successive academic terms or years;
(B) During an established and customary vacation period or holiday recess;
(C) During the time period covered by an agreement that provides instead for a similar period between two regular but not successive terms; or
(D) During a period of paid sabbatical leave provided for in the individual's contract.
(3) With respect to services performed by an educational service worker in any other capacity to, for, with, or on behalf of any educational institution, including those operated by the United States government or any of its instrumentalities, divisions, or agencies, benefits shall not be paid during periods of unemployment if services in such educational service worker capacity were performed in the prior year, term, or vacation period and there is a reasonable assurance of returning to work for any such educational institution or any educational service contractor immediately following the period of unemployment. If compensation is denied pursuant to this paragraph to an individual, however, and such individual is not offered an opportunity to perform services for any educational institution or to provide services to, for, with, or on behalf of any educational institution for any educational service contractor following the unemployed period, such individual shall be entitled to retroactive payment for each week during that period of unemployment a timely claim was filed and benefits were denied solely by reason of this paragraph. Such periods of unemployment include those occurring:
(A) Between two successive academic years or terms; or
(B) During an established and customary vacation period or holiday recess.
(4) Benefits shall not be paid as specified in paragraphs (2) and (3) of this subsection to any individual for any week of unemployment if the individual performs such services in an educational institution while in the employ of an educational service agency. For the purposes of this paragraph, the term “educational service agency” means a governmental agency or governmental entity that is established and operated exclusively for the purpose of providing such services to one or more educational institutions.
(c) Benefits based on services in professional sports. Benefits shall not be paid to an individual on the basis of any services substantially all of which consist of participating in professional sports or athletic events or of training or preparing to so participate for any week which begins during the period between two successive sport seasons or similar periods if such individual performed such services in the first of such seasons or similar periods and there is a reasonable assurance that such individual will perform such services in the latter of such seasons or similar periods.
(d) Benefits based on services performed by aliens.
(1) Benefits shall not be paid to an individual based on services performed by an alien unless such alien was lawfully admitted for permanent residence at the time such services were performed, was lawfully present for purposes of performing such services, or was permanently residing in the United States under color of law at the time such services were performed.
(2) Any data or information required of individuals applying for benefits to determine whether benefits are payable because of their alien status shall be uniformly required from all applicants for benefits.
(3) In the case of an individual whose application for benefits would otherwise be approved, no determination that benefits to such individual are not payable because of the individual's alien status shall be made except upon a preponderance of the evidence.
(e) “Reasonable assurance” defined. As used in this Code section, the term “reasonable assurance” means a written, verbal, or implied agreement between an employer and its employee that such employee will be returned to employment following the period of unemployment.
(a) Definitions. As used in this Code section, the term:
(1) “Eligibility period” of an individual means the period consisting of the weeks in his or her benefit year which begin in an extended benefit period.
(2) “Exhaustee” means an individual who, with respect to any week of unemployment in his or her eligibility period:
(A) Has received, prior to such week, all of the regular benefits that were available to him or her under this chapter or any other state law, including dependents' allowances and benefits payable to federal civilian employees and ex-service personnel under 5 U.S.C. Chapter 85, in his or her current benefit year that includes such week, provided that for the purposes of this subparagraph an individual shall be deemed to have received all of the regular benefits that were available to him or her, although, as a result of a pending appeal with respect to wages that were not considered in the original monetary determination in his or her benefit year, he or she may subsequently be determined to be entitled to added regular benefits;
(B) His or her benefit year having expired prior to such week, has no or insufficient wages on the basis of which he or she could establish a new benefit year that would include such week; and
(C)(i) Has no right to unemployment benefits or allowances under the Railroad Unemployment Insurance Act and such other federal laws as are specified in regulations issued by the United States secretary of labor.
(ii) Has not received and is not seeking unemployment benefits under the unemployment compensation law of Canada; but if he or she is seeking such benefits and the appropriate agency finally determines that he or she is not entitled to benefits under such law, he or she is considered an exhaustee.
(3)(A) “Extended benefit period” means a period which:
(i) Begins with the third week after a week for which there is a state “on” indicator; and
(ii) Ends with either of the following weeks, whichever occurs later:
(I) The third week after the first week for which there is a state “off” indicator; or
(II) The thirteenth consecutive week of such period.
However, no extended benefit period may begin by reason of a state “on” indicator before the fourteenth week following the end of a prior extended benefit period which was in effect with respect to this state. With respect to determining whether the state is in an extended benefit period beginning on November 1, 2020, through December 31, 2021, the requirement that no extended benefit period may begin before the fourteenth week following the end of a prior extended benefit period which was in effect shall be disregarded.
(B) There is a state “on” indicator for a week if, for the period consisting of such week and the immediately preceding 12 weeks, the rate of insured unemployment under the state law for the period equaled or exceeded 120 percent of the average of such rates for the corresponding 13 week period ending in each of the preceding two calendar years and equaled or exceeded 5 percent.
(C) For weeks of unemployment ending four weeks prior to the last week for which 100 percent federal funding is authorized under the Federal-State Extended Unemployment Compensation Act of 1970, as amended, there is a state “on” indicator for a week if:
(i) The average rate of total unemployment, seasonally adjusted, as determined by the United States secretary of labor, for the period consisting of the most recent three months for which data for all states are published before the close of such week equals or exceeds 6 1/2 percent; and
(ii) The average rate of total unemployment in this state, seasonally adjusted, as determined by the United States secretary of labor, for the three-month period referred to in division (i) of this subparagraph, equals or exceeds 110 percent of such average for any or all of the corresponding three-month periods ending in the two preceding calendar years.
(D) There is a state “off” indicator for a week if, for the period consisting of such week and the immediately preceding 12 weeks, none of the options specified in subparagraphs (B) and (C) of this paragraph result in an “on” indicator.
(4) “Rate of insured unemployment,” for purposes of paragraph (3) of this subsection, means the percentage derived by dividing:
(A) The average weekly number of individuals filing claims in this state, not including individuals filing claims for extended benefits or regular benefits claimed by federal civilian employees and ex-service personnel, for weeks of unemployment with respect to the most recent 13 consecutive week period, as determined by the Commissioner on the basis of the Commissioner's reports to the United States secretary of labor; by
(B) The average monthly employment covered under this chapter for the first four of the most recent six completed calendar quarters ending before the end of such 13 week period.
(5) “Regular benefits” means benefits payable to an individual under this chapter or under any other state law, including benefits payable to federal civilian employees and to ex-service personnel pursuant to 5 U.S.C. Chapter 85, other than extended benefits.
(6) “State law” means the unemployment insurance law of any state approved by the United States secretary of labor under Section 3304 of the Internal Revenue Code.
(7) “Suitable work” means, with respect to any individual, any work which is within such individual's capabilities, provided that, if the individual furnishes evidence satisfactory to the Commissioner that such individual's prospects for obtaining work in the customary occupation of such individual within a reasonably short period are good, the determination of whether any work is suitable work with respect to such individual shall be made in accordance with this chapter.
(b) Applicability of provisions as to regular benefits to claims for and payment of extended benefits. Except when the result would be inconsistent with the other provisions of this Code section, as provided in the regulations of the Commissioner, the provisions of this chapter which apply to claims for, or the payment of, regular benefits shall apply to claims for, and the payment of, extended benefits. To establish entitlement to extended benefits, an individual must have been paid in at least two quarters of the base period and total wages in the base period must equal or exceed 150 percent of the highest quarter base period wages. The alternative computation for entitlement as required by Code Section 34-8-193 shall not apply to extended benefits.
(c) Eligibility requirements for extended benefits. An individual shall be eligible to receive extended benefits with respect to any week of unemployment in the eligibility period of the individual only if the Commissioner finds that with respect to such week:
(1) He or she is an “exhaustee” as defined in paragraph (2) of subsection (a) of this Code section; and
(2) He or she has satisfied the requirements of this chapter for the receipt of regular benefits that are applicable to individuals claiming extended benefits, including not being subject to a disqualification for the receipt of benefits; provided, however, that the total extended benefits otherwise payable to an individual who has filed an interstate claim under the interstate benefit payment plan shall not exceed two weeks whenever an extended benefit period is not in effect for such week in the state where the claim is filed; provided, further, that if an individual has been disqualified in his or her most recent benefit year or on his or her extended benefit claim, only those who are required to return to work and to earn additional insured wages in employment in order to terminate this disqualification and who satisfy this requirement shall be eligible to receive extended benefits; provided, further, that if the benefit year of a claimant ends within an extended benefit period, the number of weeks of extended benefits that such claimant would be entitled to in that extended benefit period, but for this subsection, shall be reduced, but not below zero, by the number of weeks for which the claimant was entitled to trade readjustment allowances during such benefit year. For purposes of this subsection, the terms “benefit year” and “extended benefit period” shall have the same respective meanings.
(d) Weekly extended benefit amount. The weekly extended benefit amount payable to an individual for a week of total unemployment in the eligibility period of such individual shall be an amount equal to the weekly benefit amount payable to him or her during his or her applicable benefit year.
(e) Total extended benefit amount. Except as provided in subsection (l) of this Code section, the total extended benefit amount payable to any eligible individual with respect to his or her applicable benefit year shall be the least of the following amounts:
(1) Fifty percent of the total amount of regular benefits which were payable to him or her under this chapter in his or her applicable benefit year;
(2) Thirteen times his or her weekly benefit amount which was payable to him or her under this chapter for a week of total unemployment in the applicable benefit year; or
(3) Thirty-nine times the individual's weekly benefit amount which was payable to the individual under this chapter for a week of total unemployment in the applicable benefit year, reduced by the total amount of regular benefits which were paid or deemed paid to him or her under this chapter with respect to the benefit year.
(f) Notice as to beginning and termination of extended benefit period. Whenever an extended benefit period is to become effective in this state as a result of the state “on” indicator or whenever an extended benefit period is to be terminated in this state as a result of the state “off” indicator, the Commissioner shall make an appropriate announcement.
(g) Computations. Computations required by paragraph (4) of subsection (a) of this Code section shall be made by the Commissioner in accordance with regulations prescribed by the United States secretary of labor.
(h) Nonpayment of extended benefits for failure to seek or accept work. Notwithstanding other provisions of this Code section, payment of extended benefits under this Code section shall not be made to any individual for any week of unemployment in his or her eligibility period during which he or she fails:
(1) To accept any offer of suitable work or fails to apply for any suitable work to which he or she was referred by the State Employment Service; or
(2) To engage actively in seeking work. For the purposes of this paragraph, an individual shall be treated as actively engaged in seeking work during any week if:
(A) The individual has engaged in a systematic and sustained effort to obtain work during such week; and
(B) The individual provides tangible evidence to the satisfaction of the Commissioner that he or she has engaged in such an effort during such week.
(i) Period of nonpayment for extended benefits. If any individual is ineligible for extended benefits for any week by reason of a failure described in paragraph (1) or (2) of subsection (h) of this Code section, the individual shall be ineligible to receive extended benefits for any week which begins during a period which:
(1) Begins with the week following the week in which such failure occurs; and
(2) Does not end until such individual has been employed during at least four weeks which begin after such failure and for which the total of the remuneration in insured wages for services in employment earned by the individual for being so employed is not less than the product of four multiplied by the individual's weekly benefit amount for his or her benefit year.
(j) Exceptions to subsection (h) of this Code section. No individual shall be denied extended benefits under paragraph (1) of subsection (h) of this Code section for any week by reason of a failure to accept an offer of or apply for suitable work:
(1) If the gross average weekly remuneration payable to such individual for the position does not exceed the sum of:
(A) The individual's weekly benefit amount for such individual's benefit year; and
(B) The amount, if any, of supplemental unemployment compensation benefits, as defined in Code Section 34-8-45, payable to such individual for such week;
(2) If the position was not offered to such individual in writing and was not listed with the State Employment Service;
(3) If such failure would not result in a denial of benefits under this chapter to the extent that such provisions are not inconsistent with paragraph (7) of subsection (a) of this Code section and the provisions of subsection (h) of this Code section which relate to individuals actively engaged in seeking work; or
(4) If the position pays wages less than the higher of:
(A) The minimum wage provided by Section 6(a)(1) of the Fair Labor Standards Act of 1938, without regard to any exemption; or
(B) The Georgia minimum wage.
(k) Referral of claimants to suitable work. A claimant for extended benefits shall be referred to any suitable work as provided for in paragraph (7) of subsection (a) of this Code section which is not excluded by subsection (j) of this Code section.
(l) Effective with respect to weeks beginning in a high-unemployment period, the total extended benefit amount payable to an eligible individual with respect to the applicable benefit year shall be the least of the following amounts:
(1) Eighty percent of the total amount of regular benefits that were payable to the individual pursuant to this chapter in the individual's applicable benefit year;
(2) Twenty times the individual's weekly benefit amount that was payable to the individual pursuant to this chapter for a week of total unemployment in the applicable benefit year; or
(3) Forty-six times the individual's weekly benefit amount which was payable to the individual under this chapter for a week of total unemployment in the applicable benefit year, reduced by the total amount of regular benefits which were paid or deemed paid to him or her under this chapter with respect to the benefit year.
(m) For purposes of subsection (l) of this Code section, “high-unemployment period” means a period during which an extended benefit period would be in effect if subparagraph (a)(3)(C) of this Code section were applied by substituting “8 percent” for “6 1/2 percent.”
(n) Subsections (l) and (m) of this Code section shall apply through the week ending four weeks prior to the last week for which 100 percent federal funding is authorized under the Federal-State Extended Unemployment Compensation Act of 1970, as amended.
(a) Each claimant shall disclose to the department whether or not such claimant owes child support obligations which are being enforced pursuant to a plan described in Section 454 of the federal Social Security Act.
(b) The department shall notify the state or local child support enforcement agency that such individual owes child support obligations and is eligible for unemployment compensation.
(c) The department shall cause to be deducted and withheld from any unemployment compensation otherwise payable to such claimant:
(1) The amount specified by the claimant to be deducted and withheld if neither paragraph (2) nor (3) of this subsection is applicable;
(2) The amount determined pursuant to an agreement submitted to the department by the state or local child support enforcement agency under Section 454 of the federal Social Security Act, 42 U.S.C. Section 654; or
(3) Any amount otherwise required to be so deducted and withheld from such unemployment compensation which has been determined through legal process as that term is defined in Section 459 of the federal Social Security Act, 42 U.S.C. Section 659.
(d) Any amount so deducted and withheld pursuant to paragraph (1), (2), or (3) of subsection (c) of this Code section shall be paid to the appropriate state or local child support enforcement agency.
(e) Any amount deducted and withheld pursuant to this Code section shall for all purposes be treated as if it were paid to the claimant as unemployment compensation and then paid by such claimant to the state or local child support enforcement agency in satisfaction of the claimant's child support obligations.
(f) Each state or local child support enforcement agency shall reimburse the department for the administrative costs incurred by the department which are attributable to such child support obligations being enforced by the state or local child support enforcement agency.
(a) As used in this Code section, the term:
(1) “Uncollected overissuance” has the same meaning as provided in 7 U.S.C. Section 2022(c)(1).
(2) “Unemployment compensation” means any compensation payable under this chapter including amounts payable by the Commissioner pursuant to an agreement under any federal law providing for compensation, assistance, or allowances with respect to unemployment.
(b) An individual filing a new claim for unemployment compensation shall, at the time of filing such claim, disclose whether or not he or she owes an uncollected overissuance of food stamp coupons. The Commissioner shall notify the Department of Human Services or the successor state food stamp agency enforcing such obligation of any individual who discloses that he or she owes such uncollected overissuance and who is determined to be eligible for unemployment compensation.
(c) The Commissioner shall deduct and withhold from any unemployment compensation payable to an individual who owes an uncollected overissuance:
(1) The amount specified by the individual to the Commissioner to be deducted and withheld as provided by this Code section;
(2) The amount, if any, determined pursuant to an agreement submitted to the Department of Human Services or the successor state food stamp agency under 7 U.S.C. Section 2022(c)(3)(A); or
(3) Any amount otherwise required to be deducted and withheld from unemployment compensation pursuant to 7 U.S.C. Section 2022(c)(3)(B).
(d) Any amount deducted and withheld pursuant to this Code section shall be paid by the Commissioner to the Department of Human Services or the successor state food stamp agency.
(e) Any amount deducted and withheld under subsection (d) of this Code section shall for all purposes be treated as if it were paid to the individual as unemployment compensation and paid by such individual to the Department of Human Services or the successor state food stamp agency as repayment of the individual's uncollected issuance.
(f) This Code section applies only if arrangements have been made for reimbursement by the Department of Human Services or the successor state food stamp agency for the administrative costs incurred by the Commissioner under this Code section which are attributable to the repayment of uncollected overissuances to the Department of Human Services or the successor state food stamp agency.
(a) The Commissioner shall appoint one or more impartial hearing officers to hear and decide appealed decisions. Each hearing officer shall be selected in accordance with Code Section 34-8-74. No person shall participate on behalf of the Commissioner in any case in which he or she is an interested party.
(b) Unless an appeal is withdrawn, an administrative hearing officer, after affording the parties reasonable opportunity for fair hearing, shall affirm or modify the findings of fact and initial determination or shall make a decision after hearing on issues referred by the Commissioner pursuant to subsection (b) of Code Section 34-8-192. The parties shall be duly notified of such decision, together with the reasons therefor, which shall be deemed to be the final decision of the Commissioner, unless within 15 days after the date of notification or mailing of such decision further appeal is initiated pursuant to subsection (a) of Code Section 34-8-221.
(a) The board of review may on its own motion affirm, modify, or set aside any decision of an administrative hearing officer on the basis of the evidence previously submitted in such case or direct the taking of additional evidence or may permit any of the parties to such decision to initiate further appeals before the board of review. The board of review shall promptly notify the parties to any proceedings of its findings and decision. The decision of the board shall become final 15 days from the date the decision is mailed to the parties.
(b) The board of review may, in its discretion and on its own motion, reconsider its decision at any time within 15 days from the date the decision is mailed to the parties. The board shall notify all concerned parties of its intent to reconsider a final decision. Such notice shall stay the process of judicial review until a final decision is released by the board.
(c) The quorum for the board of review shall be two members. No meeting of the board shall be scheduled when it is anticipated that less than two members will be present, and no hearing shall be held nor decision released by the board in which less than two members participated.
(d) In the event only two members are able to vote on a case and one member votes to affirm the decision of the administrative hearing officer but the other member votes to reverse the decision or remand the case for another hearing, the decision of the administrative hearing officer shall stand affirmed.
(e) The Commissioner shall provide the board of review and the office of administrative appeals with proper facilities and assistants for the execution of their functions.
The manner in which appealed claims shall be presented and the conduct of hearings and appeals shall be in accordance with regulations prescribed by the Commissioner for determining the rights of the parties. It is not required that such regulations conform to common law or statutory rules of evidence and other technical rules of procedure. A full and complete record shall be kept of all proceedings in connection with an appealed claim. All testimony at any hearing upon a claim before the administrative hearing officer shall be mechanically recorded but need not be transcribed unless the disputed claim is further appealed. The board of review, in its sole discretion, shall have the power to determine the necessity for transcription of any record to be considered by it. However, no provision of this Code section shall preclude the Commissioner from making the original documents, papers, and transcripts available for inspection upon written request by any party to the proceedings. Documents, papers, and transcripts shall be available for inspection during normal working hours at the office of the department in Atlanta or at the local office of the department where the original claim for benefits under this law was filed. Due to the confidential nature of the proceedings, only agency personnel or the board of review shall be permitted to make a recording of any type whatsoever of any hearing involving a claim for benefits or an appeal therefrom. The hearing may be recorded by one or both of the interested parties, provided prior written consent is received by the office of administrative appeals from all interested parties.
(a) Any decision of the board of review, in the absence of a reconsideration as provided in subsection (b) of Code Section 34-8-221, shall become final 15 days after the date of notification or mailing. Judicial review shall be permitted only after any party claiming to be aggrieved thereby has exhausted his or her administrative remedies as provided by this chapter. The Commissioner shall be deemed to be a party to any judicial action involving any such decision and shall be represented in any such judicial action by the Attorney General.
(b) Within 15 days after the decision of the board of review has become final, any party aggrieved thereby may secure judicial review by filing a petition against the Commissioner in the superior court of the county where the employee was last employed. In the event the individual was last employed in another state, such appeal shall be filed in Fulton County, Georgia. Any other party to the proceeding before the board of review shall be made a respondent. The petition, which need not be verified but which shall state specifically the grounds upon which a review is sought, shall be served upon the Commissioner or upon his or her designee within 30 days from the date of filing. Such service upon the Commissioner shall be made by certified mail or statutory overnight delivery, return receipt requested; hand delivery; or in a manner prescribed by the law of this state for service of process to Georgia Department of Labor, Unemployment Insurance Legal Section, Suite 826, 148 Andrew Young International Boulevard, N.E., Atlanta, GA 30303-1751. Such service shall be deemed completed service on all parties, but there shall be so served upon the Commissioner or his or her designee as many copies of the petition as there are respondents. The Commissioner shall mail one such copy to each such respondent. Within 30 days after the service of the petition, the Commissioner shall certify and file with the superior court all documents and papers and a transcript of all testimony taken in the matter, together with the board of review's findings of fact and decision therein. The Commissioner shall not be required to furnish any person with a copy of the aforementioned documents, papers, or transcripts or the original of these items prior to the Commissioner's filing these items with the court. The Commissioner may also, in his or her discretion, certify to such court questions of law involved in any decision. As a guide for future interpretation of the law, when the Commissioner is aggrieved by any decision of the board of review or deems such decision contrary to the law and no other party enters an appeal therefrom, the Commissioner may, within 20 days after such decision has become final, appeal and certify to the superior court questions of law therein involved. The court shall consider and determine the same and enter a decree accordingly, which shall be subject to further appeal by the Commissioner. In any judicial proceeding under this Code section, the findings of the board of review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law. Such actions and the questions so certified shall be heard in a summary manner and shall be given precedence over all other civil cases except cases to which the state is a material party and cases arising under Chapter 9 of this title. An appeal may be taken from the decision of the superior court to the Court of Appeals in the same manner as is provided in civil cases but not inconsistent with this chapter. No bond shall be required for entering an appeal.
Witnesses subpoenaed pursuant to this article shall be allowed fees at a rate fixed by the Commissioner. Such fees shall be deemed a part of the expense of administering this chapter.
Any agreement by an individual to waive, release, or commute his or her rights to benefits or any other rights under this chapter shall be void. Any agreement by any individual in the employ of any person or concern to pay all or any portion of an employer's contributions or payments in lieu of contributions required under this chapter from such employer shall be void. No employer shall directly or indirectly make, require, or accept any deduction from the wages of any individual in his or her employ to finance the employer's contributions or payments in lieu of required contributions or require or accept any waiver of any right under this chapter by any such individual. Any employer or agent of an employer who violates any provision of this Code section shall, for each offense and upon conviction, be guilty of a misdemeanor.
No individual claiming benefits shall be charged fees of any kind in any proceeding under this chapter by the Commissioner, the board of review, or representatives of the Commissioner or the board of review, or by any court or any officer thereof. Any individual claiming benefits in any proceeding before a court, the Commissioner, the board of review, or representatives of the Commissioner or the board of review may be represented by counsel or other duly authorized agent; but no such counsel or agents shall either charge or receive for such services more than an amount approved by the board of review. Any person who violates any provision of this Code section shall upon conviction be guilty of a misdemeanor.
Any assignment, pledge, or encumbrance of any right to benefits which are or may become due or payable under this chapter shall be void. Such rights to benefits shall be exempt from levy, execution, attachment, or any other remedy whatsoever provided for the collection of debt except child support obligations as described in Code Section 34-8-198 and overpayment for benefits as described in Code Section 34-8-254; and benefits received by any individual, so long as they are not mingled with other funds of the recipient, shall be exempt from any remedy whatsoever for the collection of all debts except debts incurred for necessities furnished to such individual or his or her spouse or dependents during the time when such individual was unemployed. No waiver of any exemption provided for in this Code section shall be valid.
(a) No person shall be excused from attending and testifying or from producing books, papers, correspondence, memoranda, and other records before the Commissioner, the board of review, the chief administrative hearing officer, or their duly authorized representatives or in obedience to a subpoena issued by them on the ground that the testimony or evidence, documentary or otherwise, required of a person may tend to incriminate or subject such person to a penalty or forfeiture. However, no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which the person is compelled, after having claimed the privilege against self-incrimination, to testify or produce evidence, documentary or otherwise, except that such person testifying shall not be exempt from prosecution and punishment for perjury committed in testifying.
(b) The Commissioner, the board of review, the chief administrative hearing officer, or any duly authorized representative of any of them may quash, modify, or withdraw a subpoena issued by them.
(a) Any person who has received any sum as benefits under this chapter while any conditions for the receipt of benefits imposed by this chapter were not fulfilled or while the person was disqualified from receiving benefits shall, in the discretion of the Commissioner:
(1) Be liable to have such sums deducted from any future benefits payable to such person under this chapter, with no single deduction to exceed 50 percent of the amount of the payment from which such deduction is made; and
(2) Be liable to repay the Commissioner for the Unemployment Compensation Fund a sum equal to the amount so received by such person. Such sum shall be collectable in the manner provided by law for the collection of debts or any other method of collection specifically authorized by this chapter.
(b) For the purpose of collecting overpaid benefits when the person who owes the payment resides or is employed outside this state, the Commissioner may enter into an agreement with one or more private persons, companies, associations, or corporations providing debt collection services; provided, however, the Commissioner shall retain legal responsibility and authority for the collection of overpayments of benefits and any debt collection agency shall function merely as an agent of the Commissioner for this purpose. The agreement may provide, at the discretion of the Commissioner, the rate of payment and the manner in which compensation for services shall be paid. The Commissioner shall provide the necessary information for the contractor to fulfill its obligations under the agreement. Any funds recovered shall be transmitted promptly to the Commissioner for deposit into the Unemployment Compensation Fund.
(c)(1) Except as provided in paragraph (2) of this subsection, the Commissioner may waive the repayment of an overpayment of benefits if the Commissioner determines such repayment to be inequitable.
(2) If any person receives such overpayment because of false representations or willful failure to disclose a material fact by such person, inequitability shall not be a consideration and the person shall be required to repay the entire overpayment plus all applicable penalty and interest amounts. Such penalty amounts shall not be waived. Interest accrued on the overpayment is subject to waiver if the Commissioner determines such waiver to be in the best interest of this state.
(d) Any person who has received any sum as benefits under this chapter and is subsequently awarded or receives back wages from any employer for all or any portion of the same period of time for which such person has received such benefits shall be liable, in accordance with subsection (a) of this Code section, to repay a sum equal to the benefits paid during the period for which such back wages were awarded, and the employer shall be:
(1) Authorized to deduct from an award of back wages an amount equal to all unemployment benefits received by such person under this chapter with respect to the same period of time. The employer shall remit the amount deducted to the Commissioner for the Unemployment Compensation Fund. Upon receipt of such payment the Commissioner shall then make appropriate adjustments in the unemployment contributions experience rating account of the employer as otherwise provided in this chapter; or
(2) Entitled to a setoff against the award of back wages in an amount equal to all benefits paid to the employee during the period for which such back wages are awarded or received, if such employer is a governmental entity or nonprofit organization that has elected to make payments in lieu of contributions in accordance with Code Section 34-8-158 and the employee is subsequently awarded or otherwise receives payment of back wages for any period of time for which such employee received benefits under this chapter.
(e) Any action to recover an overpayment shall be brought by the Commissioner or an authorized representative of the Commissioner within seven years from the release date of the notice of determination and overpayment by the department.
(a) Any person who knowingly makes a false statement or misrepresentation as to a material fact or who knowingly fails to disclose a material fact to obtain or increase benefits under this chapter, either for himself or herself or for any other person, or who knowingly accepts benefits under this chapter to which such person is not entitled shall, upon an appropriate finding by the Commissioner, cease to be eligible for such benefits, and an overpayment of benefits shall be computed without the application of deductible earnings as otherwise provided in Code Section 34-8-193 and shall be subject to the following:
(1) A penalty of 15 percent that shall be added to the overpayment and become part of the overpayment;
(2) Interest on the unpaid portion of such overpayment that shall accrue at a rate of 1 percent per month until repaid to the Commissioner for the Unemployment Compensation Fund;
(3) Repayment of benefits received for any week as specified in the finding by the Commissioner; and
(4) Forfeiture of all unpaid benefits for any weeks of unemployment subsequent to the date of the finding by the Commissioner such that the ineligibility shall apply to any unpaid benefits to which the person would otherwise be entitled during the remainder of the calendar quarter in which said finding is made and:
(A) If the overpayment is established on or before June 30, 2019, during the remainder of the next four complete calendar quarters immediately following the date of said finding; or
(B) If the overpayment is established on or after July 1, 2019, during a period of the next four calendar quarters following the calendar quarter in which such finding is made, through and including the last Saturday of the fourth of such calendar quarters.
(b) No finding pursuant to subsection (a) of this Code section shall be made by the Commissioner more than four years after such occurrence, act, or omission. Any such finding by the Commissioner may be appealed in the same manner as provided for the appeal from an initial finding in Article 8 of this chapter.
(c) The provisions of this Code section shall be in addition to, and not in lieu of, any provision contained in any other Code section in this chapter.
(a) Any person who knowingly makes a false representation or knowingly fails to disclose a material fact to obtain or increase any benefit or payment under this chapter or under an employment insurance act of any other state or government, either for himself or herself or for any other person, whether such benefit or payment is actually received or not, shall upon conviction be guilty of a misdemeanor. Each such act shall constitute a separate offense. However, if a false representation or failure to disclose a material fact occurs with respect to more than one claim, which claim was made in more than one benefit year, or if the benefits received under this chapter which were the subject of a false representation or failure to disclose a material fact exceed $4,000.00, any such person shall upon conviction be guilty of a felony and shall be punished by imprisonment for not less than one nor more than five years or fined not less than $1,000.00 or shall be subject to both such fine and imprisonment.
(b) Any employing unit or any officer or agent of an employing unit or any other person who knowingly makes a false statement or representation or who knowingly fails to disclose a material fact in order to prevent or reduce the payment of benefits to any individual entitled thereto or to avoid becoming or remaining subject to this chapter or to avoid or reduce any contribution or other payment required from an employing unit under this chapter or who willfully fails or refuses to make any such contributions or other payment or to furnish any reports required under this chapter or to produce or permit the inspection or copying of records as required under this chapter shall upon conviction be guilty of a misdemeanor and shall be punished by imprisonment not to exceed one year or fined not more than $1,000.00 or shall be subject to both such fine and imprisonment. Each such act shall constitute a separate offense.
(c) Any person who establishes a fictitious employing unit for the purpose of enabling such person or another person to receive benefits under this chapter to which such person is not entitled shall upon conviction be guilty of a felony and shall be punished by imprisonment for not less than one nor more than five years or fined not less than $1,000.00 or shall be subject to both such fine and imprisonment.
(d) Any person who removes, deposits, or conceals or aids in removing, depositing, or concealing any property upon which a levy is authorized under any Code section of this chapter with intent to evade or defeat the assessment collection of any debt may be fined not more than $5,000.00 or imprisoned for not more than three years or shall be subject to both such fine and imprisonment and shall be liable to the state for the costs of prosecution.
(e) Any person who willfully violates any provision of this chapter or any order, rule, or regulation under this chapter, the violation of which is made unlawful or the observance of which is required under the terms of this chapter and for which a penalty is neither prescribed in this chapter nor provided by any other applicable provision of this Code section, shall upon conviction be guilty of a misdemeanor; and each day such violation continues shall be deemed to be a separate offense.
(a) Notwithstanding any other provision of law and in addition to any other penalties, fines, or offenses prescribed under this chapter, an employing unit that violates this chapter by failing to provide any contributions or administrative assessment owed for individuals whose service is described in subsection (f) of Code Section 34-8-35 shall pay to the Commissioner a civil penalty. For employing units with less than 100 employees, as determined by the Commissioner, the civil penalty shall be in an amount not to exceed $2,500.00 for each such individual. For employing units with 100 or more employees, as determined by the Commissioner, the civil penalty shall be in an amount not to exceed $7,500.00 for each such individual. In determining the amount of the civil penalty to be imposed, the Commissioner shall consider such factors as the number of individuals not properly classified such that the contributions and administrative assessments were not paid and the frequency of improper classifications by such employing unit.
(b) The Commissioner shall be authorized to deposit all funds received pursuant to subsection (a) of this Code section into the general fund of the state treasury in compliance with Part 1 of Article 4 of Chapter 12 of Title 45, the “Budget Act.” It is the intention of the General Assembly, subject to the appropriations process, that an amount equal to the amount deposited into the general fund of the state treasury as provided in this subsection be appropriated each year to the department for the purpose of enforcing subsection (f) of Code Section 34-8-35.
(c) The department may assess the employing unit found to be in violation of subsection (f) of Code Section 34-8-35:
(1) An amount sufficient to cover the reasonable expense of investigation conducted by the department; and
(2) Interest at the rate of 1 percent per month on any delinquent fine or assessment until such fine or assessment has been paid. Such interest shall commence on the day the fine or assessment becomes delinquent.
(d) The Commissioner may waive any penalty, fine, or assessment provided for in this Code section.
This article shall be known and may be cited as the “Unemployment Tax Amnesty Program.”
The General Assembly finds and declares that a public purpose is served by the waiver of interest on unemployment tax, penalties, and criminal prosecution in return for the immediate reporting and payment of previously underreported, unreported, or unpaid unemployment contributions liabilities. The General Assembly further finds and declares that the benefits gained through this program include, among other things, increased collection of certain currently owed unemployment contributions, permanently bringing into the unemployment insurance system employers who have been evading payment of unemployment contributions and providing an opportunity for such employers to satisfy unemployment contributions obligations before stepped-up unemployment tax enforcement programs take effect. It is the intention of the General Assembly in enacting this article that the unemployment tax amnesty program provided under this article be a one-time occurrence which shall not be repeated in the future because employers' expectations of any future amnesty programs could have a counterproductive effect on compliance under this article.
As used in this article, the term:
(1) “Accounts receivable” means an amount of unemployment contribution, tax, administrative assessment, reimbursement in lieu of contributions, penalty, or interest which has been recorded as due and entered in the account records or any ledger maintained in the department, or which an employer should reasonably expect to become due as a direct or indirect result of any pending or completed audit or investigation, which an employer knows is being conducted by any federal, state, or local taxing authority.
(2) “Employer” means any individual, partnership, joint venture, association, limited liability company, corporation, receiver, trustee, guardian, executor, administrator, fiduciary, or any other entity of any kind subject to any unemployment tax, contribution, or reimbursement in lieu of contributions, or any person required to collect any such unemployment tax, contribution, or reimbursement in lieu of contributions under this chapter, and as further defined in Code Section 34-8-33. The term shall also include any individual who has been deemed personally liable for the debt under the authority of Code Section 34-8-167.
(3) “Final, due, and owing” means an assessment of unemployment contributions which has become final and is owed to the state due to either the expiration of the employer's appeal rights or, in the case of an assessment which has been appealed, either pursuant to Chapter 13 of Title 50, the “Georgia Administrative Procedure Act,” or pursuant to Code Section 34-8-220, the rendition of the final order by the Commissioner or by any court of this state. Assessments that have been appealed shall be final, due, and owing 15 days after the last unappealed or unappealable order sustaining the assessment or any part thereof has become final. Assessments that have not been appealed shall be final, due, and owing 15 days after service of notice of assessment pursuant to Code Section 34-8-170.
(4) “Unemployment tax” shall include any unemployment tax or contribution, administrative assessment, or reimbursement in lieu of contributions or recording costs incurred thereon.
(a) The Commissioner shall develop and administer a one-time unemployment tax amnesty program as provided in this article. The Commissioner shall, upon the voluntary return and remission of unemployment taxes and interest owed by any employer, waive all penalties that are assessed or subject to being assessed for outstanding liabilities for taxable periods ending or transactions occurring on or before December 31, 1994. The Commissioner shall provide by regulation as necessary for the administration of this amnesty program and shall further provide for necessary forms for the filing of amnesty applications and returns.
(b) Notwithstanding the provisions of any other law to the contrary, the unemployment tax amnesty program shall begin by October 1, 1994, and shall be completed no later than December 31, 1994, and shall apply to all employers owing unemployment taxes, penalties, or interest administered by the Commissioner under the provisions of this chapter. The program shall apply to unemployment tax liabilities for taxable periods ending or transactions occurring on or before December 31, 1994. Amnesty unemployment tax return forms shall be in a form prescribed by the Commissioner.
(a) The provisions of this article shall apply to any eligible employer who files an application for amnesty within the time prescribed by the Commissioner and does the following:
(1) Files such returns as may be required by the Commissioner for all years or tax reporting periods as stated on the application for which returns have not previously been filed and files such returns as may be required by the Commissioner for all years or tax reporting periods for which returns were filed but the tax liability was underreported;
(2) Pays in full within the unemployment tax amnesty period the unemployment taxes that are final, due, and owing for the respective tax periods, the unemployment taxes for which application is made under the amnesty unemployment tax program or for which amnesty unemployment tax returns are filed during the amnesty time period, pays with the unemployment taxes the amount of interest due, and pays the amount of any additional unemployment tax and interest which is owed as may be determined by the Commissioner, such additional payment to be made within 30 days of notification to the employer by the Commissioner that such additional unemployment tax and interest is owed; provided, however, that the failure to pay such additional tax and interest within 30 days of such notification shall invalidate any amnesty granted pursuant to this article; and
(3) The Commissioner may, in his or her discretion, impose by regulation, the further condition that, in addition to the requirements set forth in paragraphs (1) and (2) of this subsection, the requirement that any eligible employer also pay in full within the amnesty period all unemployment taxes previously assessed by the Commissioner that are final, due, and owing at the time the application or amnesty unemployment tax returns are filed, pays with the unemployment taxes the amount of interest due, and pays within 30 days of notification by the Commissioner the amount of any additional interest owed.
(b) An eligible employer may participate in the amnesty program whether or not the employer is under audit, notwithstanding the fact that the amount due is included in a proposed assessment or an assessment, bill, notice, or demand for payment issued by the Commissioner, and without regard to whether the amount due is subject to a pending administrative or judicial proceeding. An eligible employer may participate in the amnesty program to the extent of the uncontested portion of any assessed liability. However, participation in the program shall be conditioned upon the employer's agreement that the right to protest or initiate an administrative or judicial proceeding or to claim any refund of moneys paid under the program is barred with respect to the amounts paid with the application or amnesty return.
(c) The Commissioner may enter into an installment payment agreement in cases of severe hardship in lieu of the complete payment required under subsection (a) of this Code section. In such cases, 25 percent of the amount due shall be paid with the application or amnesty return with the balance to be paid in monthly installments of not less than 25 percent of the original amount nor to exceed three months following the expiration of the amnesty period. Failure of the employer to make timely payments shall void the terms of the amnesty program. All such agreements and payments shall include interest due and accruing during the installment agreement.
(d) If, following the termination of the unemployment tax amnesty period, the Commissioner issues a deficiency assessment based upon information independent of that shown on a return filed pursuant to subsection (a) of this Code section, the Commissioner shall have the authority to impose penalties and criminal action may be brought where authorized by law only with respect to the difference between the amount shown on the amnesty unemployment tax return and the correct amount of unemployment tax due. The imposition of penalties or criminal action shall not invalidate any waiver granted under Code Section 34-8-275.
(a) Amnesty shall be granted for any employer who meets the requirements of Code Section 34-8-274 in accordance with the following:
(1) For unemployment taxes which are owed as a result of the nonreporting or underreporting of unemployment tax liabilities or the nonpayment of any accounts receivable owed by an eligible employer, the state shall waive criminal prosecution and all civil penalties which may be assessed under any provision of this chapter for the taxable years or periods for which unemployment tax amnesty is requested; and
(2) With the exception of instances in which the employer and Commissioner enter into an installment payment agreement authorized under subsection (c) of Code Section 34-8-274, the failure to pay all unemployment taxes and interest as shown on the employer's amnesty unemployment tax return shall invalidate any amnesty granted pursuant to this article.
(b) This article shall not apply to any employer who is on notice, written or otherwise, of a criminal investigation being conducted by an agency of the state or any political subdivision thereof or the United States, nor shall this article apply to any employer who is the subject of any criminal litigation which is pending on the date of the employer's application in any court of this state or the United States for nonpayment, delinquency, evasion, or fraud in relation to any federal taxes or to any of the unemployment taxes to which this amnesty program is applicable.
(c) No refund or credit shall be granted for any interest or penalty paid prior to the time the employer requests amnesty pursuant to Code Section 34-8-274.
(d) Unless the Commissioner in his or her own discretion redetermines the amount of unemployment taxes and interest due, no refund or credit shall be granted for any unemployment taxes or interest paid under the amnesty program.
(e) Notwithstanding any provision of this article to the contrary, the Commissioner shall have the right to waive any portion of the interest due on an account receivable when it is demonstrated to the satisfaction of the Commissioner that any deficiency of the employer was not due to negligence, intentional disregard of administrative rules and regulations, or fraud and the collection of the interest by the Commissioner would be contrary to equity and good conscience.
All installment agreements authorized under subsection (c) of Code Section 34-8-274 shall bear interest on the outstanding amount of unemployment tax due at the rate prescribed under Code Section 34-8-166.
The Commissioner shall promulgate administrative regulations as necessary, issue forms and instructions, and take all actions necessary to implement the provisions of this article. The Commissioner shall publicize the unemployment tax amnesty program in order to maximize the public awareness of and participation in the program. The Commissioner may, for the purpose of publicizing the unemployment tax amnesty program, contract with any advertising agency within or outside this state.
For purposes of accounting for the unemployment contributions received pursuant to this chapter, the Commissioner shall maintain an accounting and reporting of funds collected under the amnesty program. All contributions or reimbursements in lieu of contributions collected shall be remitted to the Unemployment Compensation Fund created pursuant to Code Section 34-8-83.
(a) In addition to all other penalties provided under this chapter or any other law, the Commissioner may by regulation impose after the expiration of the unemployment tax amnesty period a cost of collection fee of 20 percent of any deficiency assessed for any taxable period ending or transactions occurring after December 31, 1994. This fee shall be in addition to all other applicable penalties, fees, or costs. The Commissioner shall have the right to waive any collection fee when it is demonstrated that any deficiency of the employer was not due to negligence, intentional disregard of administrative rules and regulations, or fraud.
(b) In addition to all other penalties provided under this chapter or any other law, the Commissioner may by regulation impose after the expiration of the unemployment tax amnesty period a cost of collection fee of 50 percent of any deficiency for taxable periods ending or transactions occurring on or before December 31, 1994, regardless of when due. This fee shall be in addition to all other applicable penalties, fees, or costs. The Commissioner shall have the right to waive any collection fee when it is demonstrated that any deficiency of the employer was not due to negligence, intentional disregard of administrative rules and regulations, or fraud.
(c) The provisions of subsections (a) and (b) of this Code section shall not apply to any account or accounts receivable which has been protested pursuant to Code Section 34-8-167 or 34-8-170 as of the expiration of the unemployment tax amnesty period or to any account or accounts receivable on which the employer is remitting timely payments under a payment agreement negotiated with the Commissioner prior to or during the amnesty period.
(d) The fee levied under subsections (a) and (b) of this Code section shall not apply to unemployment taxes paid pursuant to the terms of the amnesty program.
The Commissioner may, for the purpose of collecting any delinquent unemployment tax due from an employer, contract with any debt collection agency or attorney doing business within or outside this state for the collection of such delinquent unemployment tax, including penalties and interest and collections thereon. Without limiting any authority otherwise granted to the Commissioner in Code Section 34-8-169, the Commissioner may also pay such agency or attorney from the fees authorized in Code Section 34-8-279.
(a) The Commissioner shall have the authority to adopt, amend, or rescind rules and regulations and to take such other action as deemed necessary or suitable in order to establish a work-sharing program that provides employers with an alternative to layoffs.
(b) Any work-sharing program so established shall:
(1) Allow employers to voluntarily reduce employees’ hours by 10 to 60 percent in lieu of layoffs and provide employees with a corresponding prorated share of unemployment benefits;
(2) Conform to the provisions of the definition of short-time compensation program provided in 26 U.S.C. Section 3306(v) of the Federal Unemployment Tax Act; and
(3) Include such provisions as are necessary to qualify for available federal reimbursement of benefits and federal short-time compensation administrative grants available, including, but not limited to, any funds available under Title II, Subtitle A of the CARES Act (Public Law 116-136), as amended.
As used in this chapter, the term:
(1) “Board” means the State Board of Workers' Compensation.
(2) “Employee” means every person in the service of another under any contract of hire or apprenticeship, written or implied, except a person whose employment is not in the usual course of the trade, business, occupation, or profession of the employer; and, except as otherwise provided in this chapter, minors are included even though working in violation of any child labor law or other similar statute; provided, however, that nothing contained in this chapter shall be construed as repealing or altering any such law or statute. Any reference to any employee who has been injured shall, if the employee dies, include such employee's legal representatives, dependents, and other persons to whom compensation may be payable pursuant to this chapter. All firefighters, law enforcement personnel, and personnel of emergency management or civil defense agencies, emergency medical services, and rescue organizations whose compensation is paid by the state or any county or municipality, regardless of the method of appointment, and all full-time county employees and employees of elected salaried county officials are specifically included in this definition. There shall also be included within such term any volunteer firefighter of any county or municipality of this state, but only for services rendered in such capacity which are not prohibited by Code Section 38-3-36 and only if the governing authority of the county or municipality for which such services are rendered shall provide by appropriate resolution for inclusion of such volunteer firefighters; any volunteer law enforcement personnel of any county or municipality of this state who are certified by the Georgia Peace Officer Standards and Training Council, for volunteer law enforcement services rendered in such capacity which are not prohibited by Code Section 38-3-36 and only if the governing authority of the county or municipality for which such services are rendered shall provide by appropriate resolution for inclusion of such volunteer law enforcement personnel; any person who is a volunteer member or worker of an emergency management or civil defense organization, emergency medical service, or rescue organization, whether governmental or not, of any county or municipality of this state for volunteer services, which are not prohibited by Code Section 38-3-36, rendered in such capacity and only if the governing authority of the county or municipality for which such services are rendered shall provide by appropriate resolution for inclusion of such volunteer members or workers; and any person certified by the Department of Public Health or the Georgia Composite Medical Board and registered with any county or municipality of this state as a medical first responder for any volunteer first responder services rendered in such capacity, which are not prohibited by Code Section 38-3-36 and only if the governing authority of the county or municipality for which such services are rendered shall provide by appropriate resolution for inclusion of such responders. The various elected county officers and elected members of the governing authority of an individual county shall also be included in this definition, if the governing authority of such county shall provide therefor by appropriate resolution. For the purposes of workers' compensation coverage, employees of county and district health agencies established under Chapter 3 of Title 31 are deemed and shall be considered employees of the State of Georgia and employees of community service boards established under Chapter 2 of Title 37 shall be considered to be employees of the state. For the purpose of workers' compensation coverage, members of the Georgia National Guard and the State Defense Force serving on state active duty pursuant to an order by the Governor are deemed and shall be considered to be employees of this state. A person shall be an independent contractor and not an employee if such person has a written contract as an independent contractor and if such person buys a product and resells it, receiving no other compensation, or provides an agricultural service or such person otherwise qualifies as an independent contractor. Notwithstanding the foregoing provisions of this paragraph, any officer of a corporation may elect to be exempt from coverage under this chapter by filing written certification of such election with the insurer or, if there is no insurer, the State Board of Workers' Compensation as provided in Code Section 34-9-2.1. For purposes of this chapter, an owner-operator as such term is defined in Code Section 40-2-87 shall be deemed to be an independent contractor. Inmates or persons participating in a work release program, community service program, or similar program as part of the punishment for violation of a municipal ordinance pursuant to Code Section 36-32-5 or a county ordinance or a state law shall not be deemed to be an employee while participating in work or training or while going to and from the work site or training site, unless such inmate or person is employed for private gain in violation of Code Section 42-1-5 or Code Section 42-3-50 or unless the municipality or county had voluntarily established a policy, on or before January 1, 1993, to provide workers' compensation benefits to such individuals. Individuals who are parties to a franchise agreement as set out by the Federal Trade Commission franchise disclosure rule, 16 C.F.R. 436.1 through 436.11, shall not be deemed employees for purposes of this chapter.
(3) “Employer” shall include the State of Georgia and all departments, instrumentalities, and authorities thereof; each county within the state, including its school district; each independent public school district; any municipal corporation within the state and any political division thereof; any individual, firm, association, or public or private corporation engaged in any business, except as otherwise provided in this chapter, and the receiver or trustee thereof; any electric membership corporation organized under Article 4 of Chapter 3 of Title 46 or other cooperative corporation engaged in rural electrification, including electric refrigeration cooperatives; any telephone cooperative organized under Part 3 of Article 2 of Chapter 5 of Title 46 or other cooperative or nonprofit corporation engaged in furnishing telephone service; the legal representative of a deceased employer using the service of another for pay; and any person who, pursuant to a contract or agreement with an employer, provides workers' compensation benefits to an injured employee, notwithstanding the fact that no common-law master-servant relationship or contract of employment exists between the injured employee and the person providing the benefits. If the employer is insured, this term shall include his insurer as far as applicable.
(4) “Injury” or “personal injury” means only injury by accident arising out of and in the course of the employment and shall not, except as provided in this chapter, include a disease in any form except where it results naturally and unavoidably from the accident. Except as otherwise provided in this chapter, “injury” and “personal injury” shall include the aggravation of a preexisting condition by accident arising out of and in the course of employment, but only for so long as the aggravation of the preexisting condition continues to be the cause of the disability; the preexisting condition shall no longer meet this criteria when the aggravation ceases to be the cause of the disability. “Injury” and “personal injury” shall not include injury caused by the willful act of a third person directed against an employee for reasons personal to such employee, nor shall “injury” and “personal injury” include heart disease, heart attack, the failure or occlusion of any of the coronary blood vessels, stroke, or thrombosis unless it is shown by a preponderance of competent and credible evidence, which shall include medical evidence, that any of such conditions were attributable to the performance of the usual work of employment. Alcoholism and disabilities attributable thereto shall not be deemed to be “injury” or “personal injury” by accident arising out of and in the course of employment. Drug addiction or disabilities resulting therefrom shall not be deemed to be “injury” or “personal injury” by accident arising out of and in the course of employment except when such addiction or disability resulted from the use of drugs or medicines prescribed for the treatment of the initial injury by an authorized physician. Notwithstanding any other provision of this chapter, and solely for members of the Georgia National Guard and State Defense Force, an injury arising in the course of employment shall include any injury incurred by a member of the Georgia National Guard or State Defense Force while serving on state active duty or when traveling to and from state active duty.
(a)(1) As used in this subsection, the term “farm laborer” shall include, without limitation, any person employed by an employer in connection with the raising and feeding of and caring for wildlife, as such term is defined in paragraph (77) of Code Section 27-1-2.
(2) This chapter shall not apply to common carriers by railroad engaged in intrastate trade or commerce; nor shall this chapter be construed to lessen the liability of such common carriers or take away or diminish any right that any employee of such common carrier or, in case of his or her death, the personal representative of such employee may have under the laws of this state; nor shall this chapter apply to employees whose employment is not in the usual course of trade, business, occupation, or profession of the employer or not incidental thereto; nor to farm laborers or domestic servants; nor to employers of such employees; nor to any person, firm, or private corporation, including any public service corporation, that has regularly in service less than three employees in the same business within this state, unless such employees and their employers voluntarily elect to be bound; nor to any person performing services as a licensed real estate salesperson or associate broker who has a written contract of employment providing that he or she shall perform all services as an independent contractor.
(b) This chapter shall not apply to any common carrier by railroad engaging in commerce between any of the several states or territories or between the District of Columbia and any of the states or territories and any foreign nation or nations nor to any person suffering injury or death while he is employed by such carrier in such commerce; nor shall this chapter be construed to lessen the liability of such common carrier or to diminish or take away in any respect any right that any person so employed or the personal representative, kindred, relation, or dependent of such person may have under the act of Congress approved April 22, 1908, relating to the liability of common carriers by railroad to their employees in certain cases.
(c) Notwithstanding the provisions of subsection (a) of this Code section, this chapter shall apply to employees of the Department of Corrections who are engaged in farm and livestock operations.
(d) This chapter shall not apply to persons who perform services pursuant to a written contract stating that the provider is an independent contractor and such person buys a product and resells it, receiving no other compensation; or to independent contract carriers who perform services for an employer who is a publisher or distributor of printed materials in transporting, assembling, delivering, or distributing printed materials and in maintaining any facilities or equipment incidental thereto, provided that:
(1) The independent contract carrier has with the employer a written contract as an independent contractor;
(2) Remuneration for the independent contract carrier is on the basis of the number of deliveries accomplished;
(3) With exception to providing the area or route which an independent contract carrier may or may not service, or providing materials or direction for the packaging or assembly of printed materials, the employer exercises no general control regarding the method of transporting, assembling, delivering, or distributing the printed materials; and
(4) The contract entered by the independent contract carrier for such services does not prohibit it from the transportation, delivery, assembly, or distribution of printed materials for more than one employer.
(e) A person or entity shall otherwise qualify as an independent contractor and not an employee if such person or entity meets all of the following criteria:
(1) Is a party to a contract, written or implied, which intends to create an independent contractor relationship;
(2) Has the right to exercise control over the time, manner, and method of the work to be performed; and
(3) Is paid on a set price per job or a per unit basis, rather than on a salary or hourly basis.
A person who does not meet all of the above listed criteria shall be considered an employee unless otherwise determined by an administrative law judge to be an independent contractor.
(f)(1) As used in this subsection, the term “sports official” means any person who is a neutral participant in a sports event, including without limitation an umpire, referee, judge, linesman, scorekeeper, or timekeeper. The term “sports official” does not include any person, otherwise employed by an organization or entity sponsoring a sports event, who performs services as a sports official as a part of his or her regular employment.
(2) Notwithstanding any other provision of this chapter, a person shall qualify as an independent contractor and not an employee if such person performs services as a sports official for an entity sponsoring an interscholastic or intercollegiate sports event or if such person performs services as a sports official for a public entity or a private, nonprofit organization which sponsors an amateur sports event.
(a) A corporate officer or a member of a limited liability company who elects to be exempt from coverage under this chapter shall make such election by giving written certification to the insurer or, if there is no insurer, to the State Board of Workers' Compensation. The right of any corporation or limited liability company to exempt its officers or members from coverage under this chapter is limited as follows:
(1) A corporation shall not be allowed to exempt more than five corporate officers and a limited liability company shall not be allowed to exempt more than five members; and
(2) In order for the written certification of exemption to be in effect, the corporate officer must be identified by name as well as by the office held at the time of certification and the member of the limited liability company must be identified by name; and
(3) Any employer subject to this chapter pursuant to subsection (a) of Code Section 34-9-2 before the filing of any exemptions shall remain subject to this chapter without regard to the number of exemptions filed. However, in the event that there shall be no covered employees once exemptions are elected, no coverage shall be required unless and until additional employees are employed.
(b) A corporate officer or a member of the limited liability company who has exempted himself or herself by proper certification from coverage under this chapter may at any time revoke such exemption and thereby accept coverage under this chapter by giving certification to such effect in the same manner as provided in subsection (a) of this Code section relative to exemption from coverage.
(c) No certification given pursuant to subsection (a) or (b) of this Code section shall become effective until it is filed with the proper entity.
Any sole proprietor or partner of a business whose employees are eligible for benefits under this chapter may elect to be included as an employee under the workers' compensation insurance coverage of such business if he is actively engaged in the operation of the business and if the insurer is notified of his election to be so included. Any such sole proprietor or partner shall, upon such election, be entitled to the employee benefits and be subject to the employee responsibilities prescribed in this chapter.
Notwithstanding the provisions of subsection (a) of Code Section 34-9-2, relative to the exempt status of individuals employed as farm laborers, an employer of farm laborers may elect to provide workers' compensation coverage to individuals employed as farm laborers by giving written notice to the board in such manner and form as provided by rule of the board. Upon the filing of the notice with the board, the employer of farm laborers shall be deemed an employer for the purposes of this chapter and each individual employed as a farm laborer shall be deemed an employee for the purposes of this chapter. An employer of farm laborers who has filed a notice pursuant to this Code section shall not discontinue the provision of workers' compensation insurance coverage for individuals employed as farm laborers until the notice filed with the board is revoked in a manner to be specified by rule of the board and written notice is given to each affected employee in a manner to be specified by rule of the board.
(a) As used in this Code section, the term:
(1) “Work based learning placement” or “placement” shall have the same meaning as in Code Section 34-9-430.
(2) “Work based learning student” or “student” shall have the same meaning as in Code Section 34-9-430.
(b) Notwithstanding the provisions of paragraph (2) of Code Section 34-9-1:
(1) A work based learning student in a paid work based learning placement for an employer shall be deemed an employee of such employer for purposes of workers' compensation coverage; and
(2) A work based learning student in an unpaid work based learning placement for an employer shall be deemed an employee of such employer for purposes of workers' compensation coverage unless all of the following conditions apply:
(A) The placement, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
(B) The placement is for the benefit of the student;
(C) The student does not displace regular employees, but works under close supervision of existing staff;
(D) The employer that provides the training derives no immediate advantage from the activities of the student; and on occasion its operations may actually be impeded;
(E) The student is not necessarily entitled to a job at the conclusion of the placement; and
(F) The employer and the student understand that the student is not entitled to wages for the time spent in the placement.
Neither any municipal corporation within the state, nor any political subdivision of the state, nor any employee of any such corporation or subdivision shall have the right to reject the provisions of this chapter relative to payment and acceptance of compensation; and Code Section 34-9-7 shall not apply to them.
All planning commissions created pursuant to Ga. L. 1957, p. 420, as amended, relating to the creation of planning commissions by certain political subdivisions, are authorized to provide workers' compensation insurance coverage for their employees. Before any such planning commission can provide any such insurance coverage, it shall adopt an appropriate resolution, at any public meeting of the commission, setting forth the procedure for furnishing and maintaining such insurance coverage. From the date of the adoption of such resolution, the planning commission shall be deemed to be an employer and each of its employees to be an employee within the meaning of this chapter; provided, however, that the planning commission may, by appropriate notice to employees and by proper resolution, elect to withdraw from coverage under this chapter.
Notwithstanding Code Section 34-9-1 or any other provision of law, this chapter shall not be deemed to apply to any airplane pilots or their assistants flying patrols for the State Forestry Commission or for any county or counties participating in the forest fire protection program, where the flying services were procured by contracts awarded pursuant to bid. The state does not consent to be sued in any respect, whether at common law or otherwise, with respect to such pilots or contractors employing them. However, nothing in this Code section shall be construed as relieving the contractor from any workers' compensation or other liability which may be owing to such pilot or his beneficiaries under law.
So far as concerns the State of Georgia or any department thereof which has been operating under the terms of this chapter, the state and such departments thereof shall be deemed to have been included in the original Act under the definition of “employer.” Any payments heretofore made under awards of the Industrial Board to state employees are ratified and confirmed and any payments of awards which were being made by the state or any of its departments on or before February 1, 1943, but discontinued because of exclusion of the state and its departments from the definition of “employer” shall be resumed as of the date of discontinuance; and compensable accidents which occurred prior to the passage of this chapter for which awards were not made but for which awards are hereafter made shall be paid by the state or the departments thereof in the same manner as other awards heretofore or hereafter made.
Every contract of service between an employer and an employee covered by this chapter, whether such contract is written, oral, or implied, shall be presumed to have been made subject to this chapter except contracts of service between those employers and employees listed in Code Section 34-9-2.
(a) A principal, intermediate, or subcontractor shall be liable for compensation to any employee injured while in the employ of any of his subcontractors engaged upon the subject matter of the contract to the same extent as the immediate employer.
(b) Any principal, intermediate, or subcontractor who shall pay compensation under subsection (a) of this Code section may recover the amount paid from any person who, independently of this Code section, would have been liable to pay compensation to the injured employee or from any intermediate contractor.
(c) Every claim for compensation under this Code section shall be in the first instance presented to and instituted against the immediate employer, but such proceedings shall not constitute a waiver of the employee's right to recover compensation under this chapter from the principal or intermediate contractor. If such immediate employer is not subject to this chapter by reason of having less than the required number of employees as prescribed in subsection (a) of Code Section 34-9-2 and Code Section 34-9-124 does not apply, then such claim may be directly presented to and instituted against the intermediate or principal contractor. However, the collection of full compensation from one employer shall bar recovery by the employee against any others, and the employee shall not collect a total compensation in excess of the amount for which any of the contractors is liable.
(d) This Code section shall apply only in cases where the injury occurred on, in, or about the premises on which the principal contractor has undertaken to execute work or which are otherwise under his control or management.
Nothing in this chapter shall be construed to relieve any employer or employee from any penalty for failure or neglect to perform any statutory duty.
No contract or agreement, written, oral, or implied, nor any rule, regulation, or other device shall in any manner operate to relieve any employer in whole or in part from any obligation created by this chapter except as otherwise expressly provided in this chapter.
(a) The rights and the remedies granted to an employee by this chapter shall exclude and be in place of all other rights and remedies of such employee, his or her personal representative, parents, dependents, or next of kin, and all other civil liabilities whatsoever at common law or otherwise, on account of such injury, loss of service, or death; provided, however, that the employer may be liable to the employee for rights and remedies beyond those provided in this chapter by expressly agreeing in writing to specific additional rights and remedies; provided, further, however, that the use of contractual provisions generally relating to workplace safety, generally relating to compliance with laws or regulations, or generally relating to liability insurance requirements shall not be construed to create rights and remedies beyond those provided in this chapter. No employee shall be deprived of any right to bring an action against any third-party tort-feasor, other than an employee of the same employer or any person who, pursuant to a contract or agreement with an employer, provides workers' compensation benefits to an injured employee, notwithstanding the fact that no common-law master-servant relationship or contract of employment exists between the injured employee and the person providing the benefits, and other than a construction design professional who is retained to perform professional services on or in conjunction with a construction project on which the employee was working when injured, or any employee of a construction design professional who is assisting in the performance of professional services on the construction site on which the employee was working when injured, unless the construction design professional specifically assumes by written contract the safety practices for the project. The immunity provided by this subsection to a construction design professional shall not apply to the negligent preparation of design plans and specifications, nor shall it apply to the tortious activities of the construction design professional or the employees of the construction design professional while on the construction site where the employee was injured and where those activities are the proximate cause of the injury to the employee or to any professional surveys specifically set forth in the contract or any intentional misconduct committed by the construction design professional or his or her employees.
(b) As used in subsection (a) of this Code section, the term “construction design professional” means any person who is an architect, professional engineer, landscape architect, geologist, or land surveyor who has been issued a license pursuant to Chapter 4, 15, 19, or 23 of Title 43 or any corporation organized to render professional services in Georgia through the practice of one or more such technical professions as architecture, professional engineering, landscape architecture, geology, or land surveying.
(c) The immunity provided by this subsection shall apply and extend to the businesses using the services of a temporary help contracting firm, as such term is defined in Code Section 34-8-46, or an employee leasing company, as such term is defined in Code Section 34-8-32, when the benefits required by this chapter are provided by either the temporary help contracting firm or the employee leasing company or the business using the services of either such firm or company. A temporary help contracting firm or an employee leasing company shall be deemed to be a statutory employer for the purposes of this chapter.
(a) When the injury or death for which compensation is payable under this chapter is caused under circumstances creating a legal liability against some person other than the employer, the injured employee or those to whom such employee's right of action survives at law may pursue the remedy by proper action in a court of competent jurisdiction against such other persons, except as precluded by Code Section 34-9-11 or otherwise.
(b) In the event an employee has a right of action against such other person as contemplated in subsection (a) of this Code section and the employer's liability under this chapter has been fully or partially paid, then the employer or such employer's insurer shall have a subrogation lien, not to exceed the actual amount of compensation paid pursuant to this chapter, against such recovery. The employer or insurer may intervene in any action to protect and enforce such lien. However, the employer's or insurer's recovery under this Code section shall be limited to the recovery of the amount of disability benefits, death benefits, and medical expenses paid under this chapter and shall only be recoverable if the injured employee has been fully and completely compensated, taking into consideration both the benefits received under this chapter and the amount of the recovery in the third-party claim, for all economic and noneconomic losses incurred as a result of the injury.
(c) Such action against such other person by the employee must be instituted in all cases within the applicable statute of limitations. If such action is not brought by the employee within one year after the date of injury, then the employer or such employer's insurer may but is not required to assert the employee's cause of action in tort, either in its own name or in the name of the employee. The employer or its insurer shall immediately notify the employee of its assertion of such cause of action, and the employee shall have a right to intervene. If after one year from the date of injury the employee asserts his or her cause of action in tort, then the employee shall immediately notify the employer or its insurer of his or her assertion of such cause of action, and the employer or its insurer shall have a right to intervene. In any case, if the employer or insurer recovers more than the extent of its lien, then the amount in excess thereof shall be paid over to the employee. For purposes of this subsection only, “employee” shall include not only the injured employee but also those persons in whom the cause of action in tort rests or survives for injuries to such employee.
(d) In the event of a recovery from such other person by the injured employee or those to whom such employee's right of action survives by judgment, settlement, or otherwise, the attorney representing such injured employee or those to whom such employee's right of action survives shall be entitled to a reasonable fee for services; provided, however, that if the employer or insurer has engaged another attorney to represent the employer or insurer in effecting recovery against such other person, then a court of competent jurisdiction shall upon application apportion the reasonable fee between the attorney for the injured employee and the attorney for the employer or insurer in proportion to services rendered. The provisions of Code Sections 15-19-14 and 15-19-15 shall apply.
(e) It is the express intent of the General Assembly that the provisions of subsection (c) of this Code section be applied not only prospectively but also retroactively to injuries occurring on or after July 1, 1992.
(a) Every employer subject to the provisions of this chapter relative to the payment of compensation shall hereafter keep a record of all injuries, fatal or otherwise, received by his employees in the course of their employment on blanks approved by the board. Within ten days after notice, as provided in Code Section 34-9-80, of the occurrence of an injury to an employee requiring medical or surgical treatment or causing his absence from work for more than seven days, a report thereof shall be made in writing and mailed to the board on blanks to be procured from the board for this purpose.
(b) The records of the board, insofar as they refer to accidents, injuries, and settlements, shall not be open to the public but only to the parties satisfying the board of their interest in such records and their right to inspect them. The board shall provide data contained on Employers' First Report of Injury forms reporting fatalities to the Georgia Department of Labor and the United States Department of Labor for use in the Census of Fatal Occupational Injuries Program. The board shall provide data to such other state and federal governmental entities or departments as required by law. Under such reasonable rules and regulations as the board may adopt, the records of the board as to any employee in any previous case in which such employee was a claimant shall be open to and made available to such claimant, to an employer or its insurance carrier which is called upon to pay compensation, medical expenses, or funeral expenses, and to any party at interest, except that the board may make such reasonable charge as it deems proper for furnishing information by mail and for copies of records. Nothing in this subsection shall prohibit the board or its designees from publishing decisions of the board, provided adequate security measures have been taken to protect the identity and privacy of the parties.
(c) Upon the termination of the disability of the injured employee, the employer shall make a supplementary report to the board on blanks to be procured from the board for the purpose. The report shall contain the name, nature, and location of the business of the employer; the name, age, sex, and wages and occupation of the injured employee; and shall state the date and hour of the accident causing the injury, the nature and cause of the injury, and such other information as may be required by the board.
(d) Any employer who refuses or willfully neglects to make the report required by subsection (a) of this Code section shall be subject to a penalty of not more than $100.00 for each refusal or instance of willful neglect, to be assessed by the board, a member, or an administrative law judge in an open hearing, with the right of review as in other cases. In the event the employer has sent the report to the insurance carrier for forwarding to the board, the insurance carrier willfully neglecting or failing to forward the report shall be liable and shall pay the penalty.
(e) Every employer shall, upon request of the board, report the number of his employees, hours of their labor, and number of days of operation of business.
(a) As used in this Code section, the term:
(1) “Child” includes dependent stepchildren, legally adopted children, posthumous children, and acknowledged children born out of wedlock but does not include married children; and
(2) “Parent” includes stepparents and parents by adoption.
(b) The following persons shall be conclusively presumed to be the next of kin wholly dependent for support upon the deceased employee:
(1) A wife or husband, except that if the wife and husband were living separately for a period of 90 days immediately prior to the accident which resulted in the death of the deceased employee the presumption of total dependence shall be rebuttable; and
(2) A child of the employee if:
(A) The child is under 18 or enrolled full time in high school;
(B) The child is over 18 and is physically or mentally incapable of earning a livelihood; or
(C) The child is under the age of 22 and is a full-time student or the equivalent in good standing enrolled in a postsecondary institution of higher learning.
(c) If the deceased employee leaves a dependent surviving spouse, as above described, and no dependent child or children, the full compensation shall be paid to such spouse. If the deceased employee leaves a dependent surviving spouse, as above described, and also a dependent child or children, the full compensation shall be paid to such spouse for his or her use and that of such child or children; provided, however, that the board shall have the power in proper cases, in its discretion, to apportion the compensation; provided, further, that, if the dependent surviving spouse dies before payment is made in full, the balance remaining shall be paid to the person or persons wholly dependent, if any, share and share alike. If there is no person wholly dependent, payment shall be made to partial dependents.
(d) In all other cases, including where the deceased employee and a claimant dependent lived together continuously and openly in a relationship similar or akin to marriage, there shall be no presumption of dependency, and a claimant dependent's dependency, in whole or in part, shall be determined in accordance with the facts at the time of the accident based upon evidence proving the deceased employee provided support of economic value to the claimant dependent, including, but not limited to, monetary support, sustenance, or housing. No consideration shall be made for any payment made exclusively for board and lodging, and no compensation shall be allowed unless the dependency existed for a period of three months or more prior to the accident. In such other cases, if there is more than one person wholly dependent, the death benefit shall be divided among them, and persons partially dependent, if any, shall receive no part thereof; if there is no one wholly dependent and more than one person partially dependent, the death benefit shall be divided among them according to the relative extent of their dependency.
(e) For the purpose of this chapter, the dependency of a spouse upon a deceased employee shall terminate with remarriage or upon a determination by the board of cohabitation continuously and openly in a relationship similar or akin to marriage that includes support of economic value to the claimant dependent, including, but not limited to, monetary support, sustenance, or housing. No consideration shall be given to any payment made exclusively for board and lodging or to any payment for financial support for a period of less than three months. The dependency of a child, except a child physically or mentally incapable of earning a livelihood, shall terminate with the attainment of 18 years of age, except as provided in paragraph (2) of subsection (b) of this Code section. The dependency of a spouse and of a partial dependent shall terminate at age 65 or after payment of 400 weeks of benefits, whichever provides greater benefits.
(a) Subject to the joint approval of the board and the Commissioner of Insurance, any employer may enter into or continue any agreement with its employees to provide a system of compensation, benefit, or insurance in lieu of the compensation and insurance provided by this chapter. No such substitute system shall be approved unless it complies with the following requirements:
(1) The benefits provided for injured employees must at least equal the benefits required by this chapter;
(2) Except as provided in Code Section 34-9-122.1, no contributions may be required from employees unless the substitute system of compensation confers benefits in addition to this chapter and the contributions are applied to the additional benefits;
(3) The system must contain all provisions required of a standard policy of workers' compensation insurance issued in this state, including a workers' compensation benefits policy and an employer liability policy, and one of these policies may not be canceled independently of the other policy;
(4) Any substitute system shall be required to file statistical data which would be required with regard to a standard policy of workers' compensation insurance; and
(5) Such other standards as are necessary to ensure the compliance of such substitute system with the provisions of this chapter as are jointly promulgated by rule or regulation of the State Board of Workers' Compensation and the Commissioner of Insurance.
(b) Such substitute system may be terminated by the board on reasonable notice and hearing to the interested parties if it shall appear that the system is not fairly administered or if its operation shall disclose defects threatening its solvency or if for any substantial reason it fails to accomplish the purpose of this chapter and is not in compliance with the provisions of this Code section; and in this case the board shall determine the proper distribution of all remaining assets, if any, subject to the right of any party at interest to take an appeal to the superior court of the county wherein the principal office or chief place of business of the employer is located.
(c) It is the specific intent of the General Assembly that any alternative system of workers' compensation which is approved by the board and the Commissioner of Insurance pursuant to this Code section shall preserve an employer's immunity from civil action resulting from an injury which is compensable under this chapter as provided in Code Section 34-9-11, and the provisions of this Code section shall not be construed to the contrary.
(a) Nothing contained in this chapter shall be construed so as to prevent settlements made by and between the employee and employer but rather to encourage them, so long as the amount of compensation and the time and manner of payment are in accordance with this chapter. A workers' compensation insurer shall not be authorized to settle a claim on behalf of its insured employer without giving prior notice to such employer of the terms of the settlement agreement. A copy of any such settlement agreement shall be filed by the employer with the board, and no such settlement shall be binding until approved by the board. Whenever it shall appear to the board, by stipulation of the parties or otherwise, that there is a bona fide dispute as to facts, the determination of which will materially affect the right of the employee or dependent to recover compensation or the amount of compensation to be recovered, or that there is a genuine dispute as to the applicability of this chapter, and it further appears that the parties have agreed upon a settlement between themselves, which settlement gives due regard and weight to the conflicting evidence available relating to the disputed facts or to the questions as to the applicability of this chapter, then, upon such determination, the board shall approve the settlement and enter an award conforming to the terms thereof even though such settlement may provide for the payment of compensation in a sum or sums less than would be payable if there were no conflict as to the employee's right to recover compensation. When such settlement has been agreed upon and approved by the board, it shall constitute a complete and final disposition of all claims on account of the incident, injury, or injuries referred to therein, and the board shall not be authorized to enter upon any award subsequent to such board approval amending, modifying, or changing in any manner the settlement, nor shall the settlement be subject to review by the board under Code Section 34-9-104.
(b) The board shall be authorized to approve a stipulated settlement between the parties which concludes that there is no liability under this chapter and to retain jurisdiction to enforce any agreement which resolves, in whole or in part, a claim filed with the board. If payments required under such an agreement are not made within 20 days, the board may assess a penalty of 20 percent in the same manner as provided in Code Section 34-9-221. When such settlement has been agreed upon and approved by the board, it shall constitute a complete and final disposition of all claims on account of the incident, injury, or injuries referred to therein, and the board shall not be authorized to enter upon any award subsequent to such board approval amending, modifying, or changing in any manner the settlement, nor shall the settlement be subject to review by the board under Code Section 34-9-104.
(c) The board or any party to the settlement agreement may require that the settlement documents contain language which prorates the lump sum settlement over the life expectancy of the injured worker. When such an agreement has been approved, neither the weekly compensation rate paid throughout the case nor the maximum statutory weekly rate applicable to the injury shall apply. No compensation rate shall exceed the maximum statutory weekly rate as of the date of injury. Instead, the prorated rate set forth in the approved settlement documents shall control and become the rate for that case. This subsection shall be retroactive in effect.
All questions arising under this chapter shall be determined by the trial division and the appellate division of the board if the interested parties cannot reach an agreement which is approved by the board.
(a) No compensation shall be allowed for an injury or death due to the employee's willful misconduct, including intentionally self-inflicted injury, or growing out of his or her attempt to injure another, or for the willful failure or refusal to use a safety appliance or perform a duty required by statute.
(b) No compensation shall be allowed for an injury or death due to intoxication by alcohol or being under the influence of marijuana or a controlled substance, except as may have been lawfully prescribed by a physician for such employee and taken in accordance with such prescription:
(1) If the amount of alcohol in the employee's blood within three hours of the time of the alleged accident, as shown by chemical analysis of the employee's blood, urine, breath, or other bodily substance, is 0.08 grams or greater, there shall be a rebuttable presumption that the accident and injury or death were caused by the consumption of alcohol;
(2) If any amount of marijuana or a controlled substance as defined in paragraph (4) of Code Section 16-13-21, Code Sections 16-13-25 through 16-13-29, Schedule I-V, or 21 C.F.R. Part 1308 is in the employee's blood within eight hours of the time of the alleged accident, as shown by chemical analysis of the employee's blood, urine, breath, or other bodily substance, there shall be a rebuttable presumption that the accident and injury or death were caused by the ingestion of marijuana or the controlled substance; or
(3) If the employee unjustifiably refuses to submit to a reliable, scientific test to be performed in the manner set forth in Code Section 34-9-415 to determine the presence of alcohol, marijuana, or a controlled substance in an employee's blood, urine, breath, or other bodily substance, then there shall be a rebuttable presumption that the accident and injury or death were caused by the consumption of alcohol or the ingestion of marijuana or a controlled substance.
(c) With the exception of the rebuttable presumptions set forth above, the burden of proof shall be generally upon the party who claims an exemption or forfeiture under this Code section.
(a) Any person who willfully fails to file any form or report required by the board, fails to follow any order or directive of the board or any of its members or administrative law judges, or violates any rule or regulation of the board shall be assessed a civil penalty of not less than $100.00 nor more than $1,000.00 per violation.
(b) Any person who knowingly and intentionally makes any false or misleading statement or representation for the purpose of facilitating the obtaining or denying of any benefit or payment under this chapter may be assessed a civil penalty of not less than $1,000.00 nor more than $10,000.00 per violation.
(c) In addition to the penalty and assessed fees as defined in subsection (b) of Code Section 34-9-126, the board may assess a civil penalty of not less than $500.00 nor more than $5,000.00 per violation for the violation by any person of Code Section 34-9-121 or subsection (a) of Code Section 34-9-126.
(d) Any penalty assessed under subsections (a), (b), and (c) of this Code section shall be final unless within ten days of the date of the assessment the person fined files a written request with the board for a hearing on the matter.
(e) Any person, firm, or corporation who is assessed a civil penalty pursuant to this Code section may also be assessed the cost of collection. The cost of collection may also include reasonable attorneys' fees.
(f) All penalties and costs assessed under this Code section shall be tendered and made payable to the State Board of Workers' Compensation. All such penalties shall be deposited in the general fund of the state treasury.
Any person, firm, or corporation who willfully makes any false or misleading statement or representation for the purpose of obtaining or denying any benefit or payment under this chapter shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than $1,000.00 or more than $10,000.00 or by imprisonment not to exceed 12 months, or by both such fine and imprisonment. Additionally, any person, firm, or corporation who violates this Code section may also be assessed the cost of investigation or prosecution, or both, in accordance with Chapter 11 of Title 17, relating to the assessment and payment of costs of criminal proceedings. All penalties and costs assessed under this Code section shall be tendered and made payable to the State Board of Workers' Compensation. All such penalties shall be deposited in the general fund of the state treasury.
Any person who shall knowingly make, give, or produce any false statements or false evidence, under oath, to any member of the board or to any administrative law judge commits the offense of perjury.
Any employee who, with the intent to defraud, receives and retains any income benefits to which he or she is not entitled shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished for each offense by a fine of not less than $1,000.00 nor more than $10,000.00 or by imprisonment not to exceed one year, or by both such fine and imprisonment.
Any physician, attorney, or hospital which receives any fee, other consideration, or any gratuity on account of services rendered under this chapter, unless such consideration or gratuity is approved by the board or, upon appeal, by the superior court, or any person who makes it a business to solicit employment for a lawyer or physician or for himself with respect to any claim or award for compensation under this chapter shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished for each offense by a fine not to exceed $5,000.00 or by imprisonment not to exceed one year, or by both such fine and imprisonment.
This chapter shall be liberally construed only for the purpose of bringing employers and employees within the provisions of this chapter and to provide protection for both. This chapter is intended to provide a complete and exclusive system and procedure for the resolution of disputes between employers and employees who are subject to this chapter concerning accidents and injuries arising out of and in the course of employment as defined by this chapter. The provisions of this chapter shall be construed and applied impartially to both employers and employees.
(a) There is established within the office of the State Board of Workers' Compensation a fraud and compliance unit. This unit shall assist the chairperson in administratively investigating allegations of fraud and noncompliance and in developing and implementing programs to prevent fraud and abuse. The unit shall promptly notify the appropriate prosecuting attorney's office of any action which involves criminal activity. When so required or requested by the chairperson or the specific district attorney, the unit shall cooperate with the district attorney in the investigation and prosecution of criminal violations.
(b) The State Board of Workers' Compensation or any employee or agent thereof is not subject to civil liability for libel, slander, or any other relevant tort, and no civil cause of action of any nature exists against such persons by virtue of the execution of activities or duties under this Code section or by virtue of the publication of any report or bulletin related to the activities or duties under this Code section.
(c) Fraud investigators employed in the fraud and compliance unit who are certified in compliance with Chapter 8 of Title 35 shall have the authority to execute search warrants and make arrests pursuant to warrants only if such warrants have been issued as the result of a criminal investigation of an alleged violation of this chapter. Such fraud investigators are authorized to serve subpoenas in connection therewith.
(d) In the absence of fraud or malice, no person or entity who furnishes to the board information relevant and material to suspected fraud under or noncompliance with the workers' compensation laws of this state shall be liable for damages in a civil action or subject to criminal prosecution for the furnishing of such information.
Physicians treating workers' compensation claimants shall comply with the provisions against patient self-referral as set forth in Chapter 1B of Title 43.
(a) This article shall be known and may be cited as the “Workers' Compensation Truth in Advertising Act of 1995.”
(b) The purpose of this article is to assure truthful and adequate disclosure of all material and relevant information in advertising which solicits persons to engage or consult an attorney or a medical care provider for the purpose of asserting a workers' compensation claim.
Any television advertisement, with broadcast originating in this state, which solicits persons to file workers' compensation claims or to engage or consult an attorney, a medical care provider, or clinic for the purpose of giving consideration to a workers' compensation claim or to market workers' compensation insurance coverage shall contain a notice, which shall be in boldface Roman font 36 point type and appear in a dark background and remain on the screen for a minimum of five seconds as follows:
NOTICE
Willfully making a false or misleading statement or representation to obtain or deny workers' compensation benefits is a crime carrying a penalty of imprisonment and/or a fine of up to $10,000.00.
(a) Any advertiser who violates Code Section 34-9-31 is guilty of a misdemeanor and may be subject to a fine of not less than $1,000.00 nor more than $10,000.00 for each violation.
(b) For the purposes of this article, “advertiser” means any person who provides workers' compensation claims services which are described in advertisements; any person to whom persons solicited by advertisements are directed to for injuries or the provision of workers' compensation claims related services; or any person paying for the preparation, broadcast, dissemination, or placement of such advertisements.
There is created and established within the executive branch a board to be known as the State Board of Workers' Compensation, composed of three members who shall be appointed by the Governor for a term of four years. Each member shall hold office until his or her successor shall have been appointed and qualified. An individual chosen to fill a vacancy shall be appointed only for the unexpired term of the member whom he or she shall succeed. The board shall have full authority, power, and the duty to promulgate policies, rules, and regulations for the administration of this chapter. The board may promulgate policies, rules, and regulations concerning the electronic submission to and transmission from the board of documents and filings. Additionally, the board shall have full authority to conduct training seminars for the purpose of educating various employers as to their liability regarding workers' compensation claims. Such seminars may be paid for by the board through funding provided from sources other than appropriations made by the General Assembly. Excess funds generated through seminars may be amended into the board's operating budget as approved by the Office of Planning and Budget. Excess funds generated through seminars not amended into the board's operating budget, as determined by the state auditor, shall lapse to the Office of the State Treasurer.
The Governor shall appoint one member of the board as chairman, and the appointee shall hold his office for four years and until his successor shall have been appointed and shall have qualified. Any vacancy in the office shall be filled by the Governor for the unexpired portion of the term.
(a) The chairperson of the board shall be a person who, on account of his or her previous employment, affiliation, or experience, shall be considered knowledgeable of the concerns of the public at large. One of the remaining two board members shall be a person who, on account of his or her previous employment, association, or affiliation, shall be knowledgeable of the concerns of employers; and the one remaining member of the board shall be a person whose previous employment or affiliation has been as a member of a group subject to this chapter as an employee, regardless of whether the employment of such person has been with a person, firm, or corporation actually operating under this chapter, and who shall be knowledgeable of the concerns of employees.
(b) The chairperson and each board member shall be a member of the State Bar of Georgia with at least seven years of practice experience and shall be subject to the Georgia Code of Judicial Conduct.
Each member of the board, including the chairman thereof, shall, before entering upon the duties of his office, take an oath for the faithful discharge of his duties.
Each member of the board, including the chairman thereof, shall, before entering upon the duties of his office, execute such bond as may be required by the Governor for the protection of the state and those having business before the board. The expense of such bond is to be paid by the state, such bond to be conditioned upon the faithful discharge of the duties of such member of the board and his faithful accounting for all moneys coming within his custody or control, whether such funds shall be the property of the State of Georgia or of any other person, firm, or corporation.
Any member of the board may be removed by the Governor for neglect of duty or malfeasance in office, provided written charges are served upon the member at least ten days prior to a hearing thereon before the Governor and the constitutional officers of this state; provided, further, that a majority shall find that the member is guilty of the charges preferred under this chapter or that he has ceased to represent the interests on whose behalf he was appointed, but for no other cause.
Any two members of the board shall constitute a quorum for the transaction of any business or the rendering of any decision required by this chapter to be made by all of the members.
(a) There is created and established within the State Board of Workers' Compensation a trial division and an appellate division, which shall exercise judicial functions in implementing this chapter.
(b) The appellate division shall be composed of the three members of the board who shall serve as appellate administrative law judges. The chairman of the board shall serve as chief administrative law judge of the appellate division. An administrative law judge may be appointed by the board to serve as a member of the board to review cases on appeal; provided, however, not more than one administrative law judge may serve as a member of the board on any case and an administrative law judge who served as the hearing officer in a case may not serve as a member of the board to review the same case on appeal. An administrative law judge appointed to serve as a member of the board pursuant to this subsection shall be counted as a member for the purposes of the quorum requirement of Code Section 34-9-46.
(c) The trial division shall be composed of administrative law judges appointed by the board who shall serve as hearing officers and exercise judicial functions in implementing this chapter. An administrative law judge shall have the power to subpoena witnesses and administer oaths and may take testimony in those cases brought before the board. An administrative law judge hearing a case shall make an award, subject to review and appeal as provided in this chapter. An administrative law judge shall be subject to the Georgia Code of Judicial Conduct.
(d) The appellate division and trial division of the board may hold such sessions as may be deemed necessary at any place within the state, subject to other provisions of this chapter.
All members of the board are designated as appellate administrative law judges in the appellate division of the State Board of Workers' Compensation for the purposes of serving as hearing officers and exercising judicial functions in the implementation of this chapter.
(a) There is created the office of senior administrative law judge of the board. Any director or administrative law judge who is retired on July 1, 1991, or who shall retire after such date shall be eligible for appointment as a senior administrative law judge if such person is not engaged in the practice of law.
(b) A senior administrative law judge shall be appointed by the chairman of the State Board of Workers' Compensation and shall serve at the pleasure of the chairman. All persons appointed to the office of senior administrative law judge as provided in this Code section shall receive allowances not to exceed $150.00 per day plus actual and necessary expenses as provided for state employees while traveling on the business of the board, but the expenses shall be sworn to by such person incurring them and shall be approved by the chairman or his designee before payment is made. Said payment shall be made from the per diem and fee allocations in the budget of the State Board of Workers' Compensation.
(a) There is created the position of executive director of the board. The executive director shall be both appointed and removed by the board. Subject to the general policy established by the board, the executive director shall:
(1) Plan, organize, direct, supervise, account for, and execute the administrative functions vested in the board; and
(2) Employ such clerical and other assistants as may be needed.
(b) All of the salaries and expenses of the board members, executive director, administrative law judges, and assistants of the board shall be audited and paid out of funds appropriated by the General Assembly as prescribed by law and in accordance with rules and regulations prescribed by the board.
The members, administrative law judges, and assistants of the State Board of Workers' Compensation shall be entitled to receive their actual and necessary expenses while traveling on the business of the board, either within or without the State of Georgia, but the expenses shall be sworn to by such person incurring them and shall be approved by the chairman or his designee before payment is made.
(a) All members of the board, including the chairperson thereof, shall be in the unclassified service, as defined in Code Section 45-20-2, and shall not be subject to the rules and regulations of the State Personnel Board. The salaries of all members of the board, including the chairperson thereof, shall be as provided in this Code section. The chairperson and each member of the board shall receive an annual salary which is equal to 90 percent of the base annual salary plus cost-of-living adjustments provided in Code Section 45-7-4 for each Judge of the Court of Appeals.
(b)(1) Each administrative law judge, whose method of appointment, removal, and terms of office shall remain as now provided by law, shall be in the unclassified service as defined in Code Section 45-20-2, except for certain compensation purposes, shall not be subject to the rules and regulations of the State Personnel Board. The compensation of the administrative law judges shall be fixed by the board based on a pay grade of the general pay schedule issued pursuant to the rules and regulations of the State Personnel Board and each administrative law judge shall be eligible for increases in compensation as established on the general pay schedule, subject to the review and approval of the board.
(2) Each administrative law judge employed by the board shall be entitled to any annual cost-of-living adjustment increases provided for all state employees.
(3) All administrative law judges appointed prior to January 1, 1990, shall be placed on the same pay grade of the general pay schedule and at the step which is the equivalent of one full step above their salary as established on July 1, 1989.
(c) As a cost-of-living adjustment, the annual base salary of all of the members of the board, including the chairperson thereof, shall be increased by the same percentage provided to state officials by subsection (b) of Code Section 45-7-4.
(d) All other officials, personnel, and employees of the board shall be subject to the rules and regulations of the State Personnel Board.
(a) There is created the office of director emeritus of the board.
(b) Any director of the board in office on June 30, 2019, shall be eligible for appointment as director emeritus once such member of the board has reached the age of 60 years and has also attained 20 consecutive years of service in the capacity of chairperson, director, deputy director or administrative law judge, member of the General Assembly, or a combination of consecutive service in these offices, provided that not more than five years' service in the General Assembly shall be allowed as service credit under this Code section. The Governor shall appoint to the position of director emeritus anyone eligible under this Code section who shall advise the Governor in writing that he or she desires to resign from the office of director of the board and accept appointment as director emeritus of the board, stating in such notice the date upon which the resignation as director and appointment as director emeritus shall become effective; and upon such notice the Governor shall make such appointment effective upon the date requested, and the resignation as director of the board shall be automatically effective as of the same date as the appointment as director emeritus.
(c) Notwithstanding the provisions of subsection (b) of this Code section, all persons appointed to the office of director emeritus of the board prior to June 30, 2019, shall continue to hold such office for the term and salary provided for in Code Section 34-9-54.
All persons appointed to the office of director emeritus of the board, as provided and created by Code Section 34-9-53, shall hold such office for life. A director emeritus shall receive an annual salary in an amount equal to two-thirds of the annual salary provided by law for a director of the board at the time of appointment of the director emeritus, such salary to be paid to such director emeritus by the board in monthly or semimonthly installments out of the funds provided by law for the operation of the board.
It shall be the duty of a director emeritus of the board to serve in an advisory capacity to the board and to lend his advice and counsel concerning matters of administration of this chapter when called upon to do so by the board; provided, however, that a director emeritus shall not participate directly or indirectly in the hearing or the decision of any cases coming before the board for decision.
Vacancies on the board caused by the resignation of a member of the board and his appointment as director emeritus as provided in Code Section 34-9-53 shall be filled in the manner prescribed by law for filling vacancies otherwise occurring on the board, but no vacancy shall be deemed to exist on the board because of the death or resignation of a director emeritus as defined and created by Code Section 34-9-53.
(a) There is created the office of administrative law judge emeritus of the board.
(b) Any administrative law judge, formerly known as deputy director, of the board in office on June 30, 2019, shall be eligible for appointment as administrative law judge emeritus once he or she has reached the age of 70 years and has either:
(1) Attained 20 years of service in the capacity of administrative law judge or deputy director; or
(2) Attained 20 years of total service, aggregating his or her service as administrative law judge or deputy director with any years of prior service as director, member of the General Assembly of Georgia or the Georgia National Guard, or as special assistant attorney general, or any combination of services in these offices.
(c) An administrative law judge emeritus shall be eligible for appointment by the Governor in the same manner as provided for appointment of a director emeritus under Code Section 34-9-53 and shall exercise the same duties as provided in Code Section 34-9-55 for a director emeritus.
(d) Notwithstanding the provisions of subsection (b) of this Code section, all persons appointed to the office of administrative law judge emeritus of the board prior to June 30, 2019, shall continue to hold such office and shall receive the annual salary provided for in subsection (e) of this Code section.
(e) All persons appointed to the office of administrative law judge emeritus as provided in this Code section shall receive an annual salary equal to one-third of the annual salary provided by law for an administrative law judge of the board at the time of appointment of the administrative law judge emeritus under this Code section, such salary to be paid by the board in semimonthly installments from funds provided by law for the operation of the board.
The State Board of Workers' Compensation shall exercise all powers and perform all the duties relating to the enforcement of this chapter.
The board is empowered and authorized to adopt proper rules of procedure to govern the exercise of its functions and hearings before the board or any of its members or administrative law judges.
(a) The board may make rules, not inconsistent with this chapter, for carrying out this chapter. Processes and procedure under this chapter shall be as summary and simple as reasonably possible; provided, however, that, in any proceeding under this chapter where the parties are represented by counsel, the board may require, by rule or regulation, on forms provided by the board, the filing of statements of contentions and points of agreement. The board may promulgate policies, rules, and regulations concerning the electronic submission to and transmission from the board of documents and filings. The board, any member of the board, or any administrative law judge shall have the power for the purposes of this chapter to issue and enforce subpoenas, to administer or cause to have administered oaths, and to examine or cause to be examined such parts of the books and records of the parties to a proceeding as relate to questions in dispute. Article 2 of Chapter 13 of Title 24 shall govern the issuance and enforcement of subpoenas pursuant to this Code section, except that the board, any member of the board, or any administrative law judge shall carry out the functions of the court and the executive director shall carry out the functions of the clerk of the court. The board shall not, however, have the power to order imprisonment as a means of enforcing a subpoena. The board shall have the power to issue writs of fieri facias in order to collect fines imposed pursuant to this Code section and such writs may be enforced in the same manner as a similar writ issued by a superior court.
(b) In addition to the enforcement procedures provided in subsection (a) of this Code section, the superior court of the county in which the hearing is held shall, on application of the board, any member of the board, or an administrative law judge, enforce by proper proceedings the attendance and testimony of witnesses and the production and examination of books, papers, and records.
(a) The board shall prepare and cause to be printed and, upon request, shall furnish free of charge to any employee or employer such blank forms and literature as it shall deem necessary to facilitate or promote the efficient administration of this chapter.
(b) The board shall tabulate the accident reports received from employers in accordance with Code Section 34-9-12 and shall publish in print or electronically the same in its annual report and as often as it may deem advisable, in such detailed or aggregate form as it may deem best. The name of the employer or employee shall not appear in such publications, and the employers' reports themselves shall be private records of the board and shall not be open for public inspection except for the inspection of the parties directly involved, and then only to the extent of such interest. These reports shall not be used as evidence against any employer in any action at law brought by any employee for the recovery of damages or in any proceeding under this chapter.
(a) The total expenses of the board shall be prorated among the qualified insurance companies writing compensation insurance in this state, hereinafter referred to as insurers, and employers subject to the provisions of this chapter whose workers' compensation insurance coverage is not written by these companies, hereinafter referred to as self-insurers, including, but not limited to, the state, counties, municipalities, and any political subdivisions or authorities thereof. Such proration shall be on the basis, in the case of the insurers, of the gross earned premium and, in the case of self-insurers, on the basis of the amount of premium which they would have had to pay in the event they had insured their liability with an insurer; provided, however, the board may establish by rule a minimum assessment, based upon the administrative cost necessary to provide licensure support and basic computer management reports for each insurer or self-insurer, to be paid by insurers and self-insurers whose actual prorated assessment otherwise would be less than the minimum assessment. Prorated assessments based on the experience of the previous calendar year shall be made on July 1, based on the budget of the board for that fiscal year.
(b) Sworn reports of the compensation premium writing of the insurers and sworn payroll statements of others for the preceding calendar year shall be filed with the board not later than March 1 of each year.
(c) The books of the board shall be audited annually and a copy of such audit shall be available for inspection during normal business hours by all parties among whom the expenses of the board are prorated. All moneys assessed against insurers and others under this chapter shall be paid into the state treasury and held as a special fund solely for the operation of the board to administer this chapter.
(d) The Attorney General shall enforce collection against insurers and others failing to comply with this Code section, based on reports of violation furnished by the board and investigation; the costs of collection shall be borne by the delinquent party.
(e) Any insurer, private employer, or governing authority of a public employer that violates any provision of this Code section shall be guilty of a misdemeanor.
Every injured employee or his representative shall, immediately on the occurrence of any accident or as soon thereafter as practicable, give or cause to be given to the employer, his agent, representative, or foreman, or the immediate superior of the injured employee a notice of the accident. This notice shall be given by the employee either in person or by his representative, and until such notice is given the employee shall not be entitled to any physician's fees nor to any compensation which may have accrued under the terms of this chapter prior to the giving of such notice. In the event that, within 30 days after the accident, neither the employee nor his representative has given a notice in person to the employer, his agent, representative, or foreman, or to the immediate superior of the injured employee, a written notice must be given. This written notice will not be required where an injured employee or his representative has given notice in person to the employer, his agent, representative, or foreman, or to the immediate superior of the injured employee. No compensation will be payable unless such notice, either oral or written, is given within 30 days after the occurrence of an accident or within 30 days after death resulting from an accident unless it can be shown that the employee had been prevented from doing so by reason of physical or mental incapacity, or by fraud or deceit, or that the employer, his agent, representative, or foreman, or the immediate superior of the injured employee had knowledge of the accident, or unless a reasonable excuse is made to the satisfaction of the board for not giving such notice and it is reasonably proved to the satisfaction of the board that the employer had not been prejudiced thereby.
The written notice provided for in Code Section 34-9-80 shall state in ordinary language the name and address of the employee, the time, place, nature, and cause of the accident and of the resulting injury or death and shall be signed by the employee or by a person in his behalf or, in the event of his death, by any one or more of his dependents or by a person in their behalf. No defect or inaccuracy in the notice shall be a bar to compensation unless the employer shall prove that his interest was prejudiced thereby, and then only to the extent of the prejudice. Such notice shall be given personally to the employer, or his agent, representative, or foreman, or to the immediate superior of the injured employee or may be sent by registered or certified mail or statutory overnight delivery addressed to the employer at his last known residence or place of business.
(a) The board shall provide by rule for the publication of a summary of the rights, benefits, and obligations under this chapter and the distribution of such summary to employers and employees in this state. The board shall provide by rule for the display of such summary by employers in locations accessible to employees.
(b) Any person who fails or refuses to comply with a rule of the board promulgated pursuant to subsection (a) of this Code section shall be subject to an administrative fine not to exceed $1,000.00.
(a) The right to compensation shall be barred unless a claim therefor is filed within one year after injury, except that if payment of weekly benefits has been made or remedial treatment has been furnished by the employer on account of the injury the claim may be filed within one year after the date of the last remedial treatment furnished by the employer or within two years after the date of the last payment of weekly benefits.
(b) The right to compensation for death shall be barred unless a claim therefor is filed within one year after the death of the employee.
(c) The claim shall be filed with the board and should contain such information as may be prescribed by rule or regulation of the board.
(d) The filing of any claim for injury or death under this chapter with any of the board's offices throughout the state shall be deemed proper filing with the board.
All rights of compensation under this chapter shall have the same preference or priority for the whole thereof against the assets of the employer as is allowed by law for claims for unpaid wages for labor.
No claim for compensation under this chapter shall be assignable, and all compensation and claims therefor shall be exempt from all claims of creditors.
If an injured employee is mentally incompetent or is under 18 years of age at the time any right or privilege accrues to him under this chapter, his guardian or trustee may claim and exercise such right or privilege in his behalf.
No limitation of time provided in this chapter for the giving of notice or making claim shall apply to any person who is mentally incompetent or a minor dependent, as long as he has no guardian or trustee, or to a person who proceeds in good faith against a corporation supposed to have a legal entity but which is proved to be defunct by reason of the expiration of its charter.
(a) Subject to Code Section 34-9-82, a claim for compensation may be filed with the board at any time following an injury or death. The board and its administrative law judges shall have full authority to hear and determine all questions with respect to such claims.
(b) The board shall make or cause to be made any investigation or mediation it considers necessary and, upon its own motion or application of any interested party, order a hearing thereon and assign the claim to an administrative law judge for review. Furthermore, the board may direct the parties to participate in mediation conducted under the supervision and guidance of the board.
(c) Any application for hearing filed with the board pursuant to this Code section, on or after July 1, 1985, but prior to July 1, 2007, for which no hearing is conducted for a period of five years shall automatically stand dismissed.
(d)(1) For injuries occurring on or after July 1, 2007, any claim filed with the board for which neither medical nor income benefits have been paid shall stand dismissed with prejudice by operation of law if no hearing has been held within five years of the alleged date of injury.
(2) This subsection shall not apply to a claim for an occupational disease as defined in Code Section 34-9-280.
(3) The form provided by the board for use in filing a workers' compensation claim shall include notice of the provisions of this subsection.
(e) Any claim, notice, or appeal required by this chapter to be filed with the board shall be deemed filed on the earlier of:
(1) The date such claim or notice is actually received by the board; or
(2) The official postmark date such claim or notice was mailed to the board, properly addressed with postage prepaid, by registered or certified mail or statutory overnight delivery.
The members of the board or any one of them or an administrative law judge may, upon the application of either party or upon their own motion, appoint one or more disinterested and duly qualified physicians or surgeons to make any necessary medical examination of the employee and to report or testify with respect thereto. The physicians or surgeons shall be allowed travel expenses and a reasonable fee, to be paid by either or both parties or by the state, as directed by the board, any member thereof, or an administrative law judge.
(a) Notice of hearing. The hearing shall be held as soon as practicable; provided, however, no hearing shall be scheduled less than 30 days nor more than 90 days from the date of the hearing notice. With regard to any request for a determination of noncatastrophic status in accordance with subparagraph (g)(6)(B) of Code Section 34-9-200.1, no hearing shall be scheduled less than 90 days after the hearing is requested.
(b) Place of hearing. If the injury or death occurred within this state, the hearing shall be held in the county where the injury or death occurred or in any contiguous county or in any county within 50 miles of the county of injury or death, unless otherwise agreed by the parties and authorized by the administrative law judge. If the injury or death occurred outside the state, the hearing may be held in the county of the employer's residence or place of business or in any other county of the state, as determined in the discretion of the administrative law judge.
(c) Authority of administrative law judge. The administrative law judge conducting the hearing shall have, in addition to all powers necessary to implement this chapter, the following powers: to administer oaths and affirmations, to issue subpoenas, to rule upon offers of proof, to regulate the course of the hearing, to set the time and place for continued hearings, to fix the time for filing briefs, to dispose of motions to dismiss for lack of board jurisdiction, to rule on requests for continuance, to add or delete parties with or without motion, to issue interlocutory orders, to rule upon or dispose of all other motions, to appoint conservators under Code Section 34-9-226, to reprimand or exclude from the hearing any person for any indecorous or improper conduct committed in the presence of the administrative law judge, and to require any party to provide the board with the name of its legal representative, if any, within 21 days from the date of the hearing notice.
(d) Discovery procedures.
(1) Discovery procedures shall be governed and controlled by Chapter 11 of Title 9, the “Georgia Civil Practice Act.”
(2) The term “administrative law judge” shall be substituted for the word “court” when construing any procedural rule, provided that any administrative law judge shall seek enforcement of orders as stated in subsection (h) of this Code section.
(3) The administrative law judge may admit as evidence at the hearing and at all future hearings evidence obtained by depositions, interrogatories, or admissions of fact, whether or not the deponent is available to testify in person at the hearing and whether or not the evidence was taken originally for the purpose of discovery or evidence, or both.
(e) Conduct of hearing.
(1) The administrative law judge shall conduct the hearing in an informal manner consistent with the requirements of due process of law. Irrelevant, immaterial, and unduly repetitious evidence shall be excluded. The rules of evidence pertaining to the trial of civil nonjury cases in the superior courts of Georgia shall be followed unless otherwise provided in this chapter. A party may conduct such cross-examination as required for a full and true disclosure of the facts. Official notice may be taken of judicially cognizable facts, provided the parties are provided an opportunity to contest the material noticed.
(2) Any medical report or document signed and dated by an examining or treating physician or other duly qualified medical practitioner shall be admissible in evidence insofar as it purports to represent the history, examination, diagnosis, treatment, prognosis, or opinion relevant to any medical issue by the person signing the report, as if that person were present at the hearing and testifying as a witness, subject to the right of any party to object to the admissibility of any portion of the report and subject to the right of an adverse party to cross-examine the person signing the report and provide rebuttal testimony within the time allowed by the administrative law judge. The party tendering the medical report may, within the time allowed by the administrative law judge, also introduce the testimony of the person who has signed the medical report for the purpose of supplementing the report. It is the express intent of the General Assembly that the provisions of this paragraph be applied retroactively as well as prospectively.
(3) For the purposes of Code Section 34-9-104, a report on a form prescribed by the board or in a narrative form which substantially complies with the form prescribed by the board and which is signed and dated by a prospective employer shall be admissible in evidence in lieu of the oral testimony of such prospective employer insofar as it documents that the employee has applied for a position or positions suitable to the employee's limitations or restrictions resulting from the work related injury and was not hired. Any party shall have the right to object to the admissibility of any portion of the report and an adverse party shall have the right to cross-examine the person signing the report and provide rebuttal testimony within the time allowed by the administrative law judge. The party tendering the report may, with the time allowed by the administrative law judge, also introduce the oral testimony of the person who has signed the report for the purpose of supplementing the report.
(4) A written laboratory test result report under Code Section 34-9-415 shall be admissible in evidence if accompanied by an affidavit from the laboratory confirming authenticity.
(5) Code Section 24-8-826 shall not apply to workers' compensation claims filed under this chapter.
(f) Decision of the administrative law judge. Within 30 days following the completion of evidence, unless the time for filing the decision is extended by the board, the administrative law judge shall determine the questions and issues and file the decision with the record of the hearing. At the time of the filing, a copy of the decision shall be sent to all parties and counsel of record at their addresses of record. Notice to counsel of record of a party shall constitute service of notice to the party, if a copy of the decision was sent to the address of record of said party. The decision of the administrative law judge shall be made in the form of a compensation award, appropriately titled to show its purpose and containing a concise report of the case, with findings of fact and conclusions of law and any other necessary explanation of the action taken. The administrative law judge may reconsider the official decision prior to its becoming final to correct apparent errors or omissions. The compensation award shall be final 20 days after issuance of notice of the award unless an appeal is filed in accordance with Code Section 34-9-103.
(g) Record of hearing. The hearing shall be reported by a designated reporter for the board, but the record of the hearing need not be transcribed unless timely application has been made to the board for an appeal from the decision of the administrative law judge. At any time, however, a party shall have a right to obtain a transcript of the record, upon payment to the reporter of the expense of transcription.
(h) Enforcement of orders of administrative law judge. In proceedings before the administrative law judge or the board, if any party or an agent or employee of a party disobeys or resists any lawful order or process; or neglects to produce, after having been ordered to do so, any pertinent book, paper, or document; or refuses to appear after having been subpoenaed; or, upon appearing, refuses to take the oath or affirmation as a witness; or, after taking the oath or affirmation, refuses to testify, the administrative law judge or the board shall have the same rights and powers given the court under Chapter 11 of Title 9, the “Georgia Civil Practice Act.” If any person not a party refuses as aforesaid, the administrative law judge or the board may certify the facts to the superior court of the county where the offense is committed for appropriate action or may impose the sanctions provided in Code Section 34-9-60.
(i) Address of record. Each employer and claimant shall maintain an up-to-date address with the board. Any notice required by this chapter shall be satisfied by the mailing of the notice to the address of record; provided, however, that mailing to an obsolete address, if not properly forwarded, shall not prejudice a claimant if it is established to the satisfaction of the administrative law judge or the board that at the time of the mailing the employer knew or should have known of a subsequent and proper address for the claimant.
(j) Notice to nonresident party.
(1) Any party subject to this chapter who is or who becomes a nonresident of this state at the time of or after the injury or death of an employee shall be deemed to have appointed irrevocably the executive director of the board as that party's agent for service of notice or any other process in any proceeding under this chapter.
(2) Any notice or process served on the executive director shall have the same legal effect as if served upon the nonresident party personally within the state.
(3) The executive director or his or her designated agent shall immediately mail a copy of the notice or process to the last known address of the nonresident party.
(a) Any party dissatisfied with a decision of an administrative law judge of the trial division of the State Board of Workers' Compensation may appeal that decision to the appellate division of the State Board of Workers' Compensation which shall have original appellate jurisdiction in all workers' compensation cases. An application for review shall be made to the appellate division within 20 days of issuance of notice of the award. The appellee may institute cross appeal by filing notice thereof within 30 days of the notice of the award. If a timely application for review, cross appeal, or both, is made to the appellate division, the appellate division shall review the evidence and shall then make an award with findings of fact and conclusions of law. A copy of the award so made on review shall immediately be sent to the parties and counsel of record at dispute at their addresses of record. Notice to counsel of record of a party shall constitute service of notice to the party, if a copy of the award was sent to the address of record of said party. Upon review, the appellate division may remand to an administrative law judge in the trial division any case before it for the purpose of reconsideration and correction of apparent errors and omissions and issuance of a new award, with or without the taking of additional evidence, or for the purpose of taking additional evidence for consideration by the appellate division in rendering any decision or award in the case. The findings of fact made by the administrative law judge in the trial division shall be accepted by the appellate division where such findings are supported by a preponderance of competent and credible evidence contained within the records.
(b) Within the time limit provided by subsection (a) of this Code section for review by the board of an award made in accordance with Code Section 34-9-102 or within the time limit provided by Code Section 34-9-105 for appeal to a superior court, upon or without the suggestion of a party to the proceedings and notwithstanding the filing of an application for review or appeal, the board or any of its members or administrative law judges issuing an award shall have authority to reconsider, amend, or revise the award to correct apparent errors and omissions. Should an amended or revised award be issued, the time period for filing an application for review of the amended or revised award under subsection (a) of this Code section or for filing appeal to a superior court under Code Section 34-9-105 shall commence upon the date of issuance of the amended or revised award.
(a) “Change in condition” defined; benefits.
(1) As used in this Code section, the term “change in condition” means a change in the wage-earning capacity, physical condition, or status of an employee or other beneficiary covered by this chapter, which change must have occurred after the date on which the wage-earning capacity, physical condition, or status of the employee or other beneficiary was last established by award or otherwise.
(2) When an injury is not catastrophic, as defined in subsection (g) of Code Section 34-9-200.1, and the employee is not working, the board shall determine that a change in condition for the better has occurred and the employee shall be entitled to the payment of benefits for partial disability in accordance with Code Section 34-9-262 if it is determined that the employee has been capable of performing work with limitations or restrictions for 52 consecutive weeks. Within 60 days of the employee's release to return to work with restrictions or limitations, the employer shall provide notice to the employee on a form provided by the board that will inform the employee that he or she has been released to work with limitations or restrictions, will include an explanation of the limitations or restrictions, and will inform the employee of the general terms of this Code section. In no event shall an employee be eligible for more than 78 aggregate weeks of benefits for total disability while such employee is capable of performing work with limitations or restrictions. No provision of this paragraph shall be interpreted to prevent a change in condition from occurring pursuant to paragraph (1) of this subsection or to prevent an employee from becoming eligible for benefits for total disability should such employee subsequently become totally disabled after exhausting 52 consecutive weeks or 78 aggregate weeks of such benefits while capable of performing work with limitations or restrictions. Whenever an employer seeks to convert an employee from benefits for total disability to benefits for partial disability as provided in this paragraph, such employer may convert the benefits unilaterally by filing a form indicating the reason for the conversion as prescribed by rule of the board.
(3) For the purposes of calculating temporary partial benefits as contemplated by this Code section, benefits shall be paid as follows:
(A) When an employee is receiving the maximum benefits allowed under Code Section 34-9-261, the employer shall cause to be paid the employee an amount equal to the maximum benefit allowed under Code Section 34-9-262; or
(B) When an employee is receiving less than the maximum allowed by Code Section 34-9-261, the employer shall continue to pay the employee the same benefits as provided by Code Section 34-9-261 not to exceed the maximum benefit provided by Code Section 34-9-262.
(b) Modification of prior final decision. The board on its own motion may propose or any party may apply under this Code section for another decision because of a change in condition ending, decreasing, increasing, or authorizing the recovery of income benefits awarded or ordered in the prior final decision, provided that the prior decision of the board was not based on a settlement; and provided, further, that at the time of application not more than two years have elapsed since the date the last payment of income benefits pursuant to Code Section 34-9-261 or 34-9-262 was actually made under this chapter; provided, however, any party may file for benefits solely under Code Section 34-9-263 not more than four years from the date the last payment of income benefits pursuant to Code Section 34-9-261 or 34-9-262 was actually made under this chapter. If, at the time of application, the foregoing requirements have been met but the prior decision is then on appeal to the courts, the entering of a decision on the application shall be deferred pending final ruling of the courts.
(c) Interlocutory orders. On application of either party, for good cause shown, at any time while a claim is pending, the administrative law judge or the board may enter an interlocutory order suspending the payment of all or part of or increasing or decreasing the income benefits due under the decision sought to be modified. Good cause, as shown by preliminary evidence in the form of affidavits, sworn documents, depositions, interrogatories, or medical reports, may include, but not be limited to, an unjustified refusal to accept suitable and available employment, an increase or decrease in the physical impairment or wage-earning capacity of the employee, or the granting of continuance.
(d) Retroactive effect of decision.
(1) Subject to the limitation in subsection (a) of this Code section that a change of condition was a change which occurred after the date on which the wage-earning capacity, physical condition, or status of the employee was last established by award or otherwise, the award or order contained in the final decision entered by the administrative law judge or the board shall be effective as of the time of change in condition as found by the administrative law judge or board, notwithstanding the retroactive effect of the award or order, provided that no execution following a judgment entered under Code Section 34-9-106 shall be affected.
(2) If the decision determines that an overpayment of income benefits has been made and no future income benefits are due, the administrative law judge or the board, in its discretion, may order the employee or beneficiary to repay to the employer or the insurer the sum of the overpayments. Where there has been determined an overpayment of income benefits and future income benefits were due, the decision shall order the overpayment to be recovered by shortening the period of future weekly income benefits or by reducing the weekly benefit, or both.
(e) Credits to employer for lump sum or advance payments. Where a lump sum payment or an advance payment has been made to an employee under Code Section 34-9-222 and a subsequent change in condition is found to have occurred, the employer shall be entitled to credit against future income benefits equal to the amount of the lump sum or advance payment. This shall be accomplished by reducing the period of future weekly income benefits or by reducing the weekly benefit, or both.
(a) Any award of the administrative law judge provided for in Code Section 34-9-102 for which no timely application for review has been filed or any award of the members of the board upon such review as provided in Code Section 34-9-103 shall, in either event, as the case may be, and subject to the other provisions of this chapter, be a final award and shall be conclusive and binding as to all questions of fact.
(b) Either party to the dispute may, within 20 days from the date of any such final award or within 20 days from the date of any other final order or judgment of the members of the board, but not thereafter, appeal from the decision in such final award or from any other final decision of the board to the superior court of the county in which the injury occurred or, if the injury occurred outside the state, to the superior court of the county in which the original hearing was held, in the manner and upon the grounds provided in Chapter 3 of Title 5, except to the extent any such provision is in conflict with any provision of this Code section. A copy of the petition for review shall be served on the clerk for the board. In the event of an appeal, the board shall, within 30 days of such service, transmit certified copies of all documents and papers in its file together with a transcript of the testimony taken and its findings of fact and decision to the clerk of the superior court to which the case is appealable, as provided in this subsection. The case so appealed may then be brought by either party upon ten days' written notice to the other before the superior court for a hearing upon such record, subject to an assignment of the case for hearing by the court; provided, however, that, if the court does not hear the case within 60 days of the date of docketing in the superior court, the decision of the board shall be considered affirmed by operation of law unless a hearing originally scheduled to be heard within the 60 days has been continued to a date certain by order of the court. In the event a hearing is held later than 60 days after the date of docketing in the superior court because same has been continued to a date certain by order of the court, the decision of the board shall be considered affirmed by operation of law if no order of the court disposing of the issues on appeal has been entered within 20 days after the date of the continued hearing. If a case is heard within 60 days from the date of docketing in the superior court, the decision of the board shall be considered affirmed by operation of law if no order of the court disposing of the issues on appeal has been entered within 20 days of the date of the hearing.
(c) The findings made by the members within their powers shall, in the absence of fraud, be conclusive; but upon such hearing the court shall set aside the decision if it is found that:
(1) The members acted without or in excess of their powers;
(2) The decision was procured by fraud;
(3) The facts found by the members do not support the decision;
(4) There is not sufficient competent evidence in the record to warrant the members making the decision; or
(5) The decision is contrary to law.
(d) No decision of the board shall be set aside by the court upon any grounds other than one or more of the grounds stated in subsection (c) of this Code section. In the event a hearing is not held and a decision is not rendered by the superior court within the time provided in subsection (b) of this Code section, the decision of the board shall, by operation of law, be affirmed. The date of entry of judgment for purposes of appeal pursuant to Code Section 5-6-35 of a decision affirmed by operation of law without action of the superior court shall be the last date on which the superior court could have taken action under subsection (b) of this Code section. Upon the setting aside of any such decision of the board, the court may recommit the controversy to the board for further hearing or proceedings in conformity with the judgment and opinion of the court; or such court may enter the proper judgment upon the findings, as the nature of the case may demand. Such decree of the court shall have the same effect and all proceedings in relation thereto shall, subject to the other provisions of this chapter, thereafter be the same as though rendered in an action heard and determined by the court.
(e) Any party in interest who is aggrieved by a judgment entered by the superior court upon an appeal from a decision of the board to the superior court may have such judgment reviewed by the Court of Appeals within the time and in the manner provided by law. In case of an appeal from the decision of the board, the appeal shall operate as a supersedeas if the employer has complied with the provisions of this chapter respecting insurance; and no such employer shall be required to make payment of the award involved in the questions made in the case so appealed until such questions at issue therein shall have been fully determined in accordance with this chapter.
(a) Any party in interest in a matter involving an injury may file in the superior court of the county in which the injury occurred or, if the injury occurred outside this state or if the matter does not involve an injury, in the county in which the original hearing was had, a certified copy of:
(1) A settlement agreement approved by the board;
(2) A final order or decision of the board;
(3) An unappealed award of the board;
(4) An award of the board affirmed upon appeal; or
(5) Any final order or decision regarding the Self-insurers Guaranty Trust Fund,
whereupon the court shall render judgment in accordance therewith and notify the parties. Such judgment shall have the same effect and all proceedings in relation thereto shall thereafter be the same as though the judgment had been rendered in an action duly heard and determined by such court; provided, however, that where the payment of compensation is insured or provided for in accordance with this chapter, no such judgment shall be entered nor execution thereon issued except upon application to the court and for good cause shown.
(b) Upon presentation to the court of the certified copy of a decision of the board ending, diminishing, or increasing a weekly payment under the provisions of this chapter, particularly of Code Section 34-9-104, the court shall revoke or modify the order or decree to conform to such decision of the board.
Any final award for compensation entered by the board shall bear interest at the legal rate of 12 percent on all accrued amounts and on all amounts accruing prior to final judgment in the event of an appeal being taken from the board in the same manner in which it is now provided that interest shall run on a judgment of the superior court in the event an appeal is taken therefrom.
(a) The fee of an attorney for service to a claimant in an amount of more than $100.00 shall be subject to the approval of the board, and no attorney shall be entitled to collect any fee or gratuity in excess of $100.00 without the approval of the board. The board shall approve no fee of an attorney for services to a claimant in excess of 25 percent of the claimant's award of weekly benefits or settlement.
(b)(1) Upon a determination that proceedings have been brought, prosecuted, or defended in whole or in part without reasonable grounds, the administrative law judge or the board may assess the adverse attorney's fee against the offending party.
(2) If any provision of Code Section 34-9-221, without reasonable grounds, is not complied with and a claimant engages the services of an attorney to enforce his or her rights under that Code section and the claimant prevails, the reasonable quantum meruit fee of the attorney, as determined by the board, and the costs of the proceedings may be assessed against the employer.
(3) Any assessment of attorney's fees made under this subsection shall be in addition to the compensation ordered.
(4) Upon a determination that proceedings have been brought, prosecuted, or defended in whole or in part without reasonable grounds, the administrative law judge or the board may, in addition to reasonable attorney's fees, award to the adverse party in whole or in part reasonable litigation expenses against the offending party. Reasonable litigation expenses under this subsection are limited to witness fees and mileage pursuant to Code Section 24-13-25; reasonable expert witness fees subject to the fee schedule; reasonable deposition transcript costs; and the cost of the hearing transcript.
(c) An attorney shall not advertise to render services to a potential claimant when he or she or his or her firm does not intend to render said services and shall not divide a fee for legal services with another attorney who is not a partner in or associate of his or her law firm or law office, unless:
(1) The client consents to employment of the other attorney after a full disclosure that a fee division will be made;
(2) The division is made in proportion to the services performed and the responsibility assumed by each; and
(3) The total fee of the attorneys does not clearly exceed reasonable compensation for all legal services such attorneys rendered to the client.
(d) When attorney's fees or reasonable litigation expenses are awarded under this Code section, the administrative law judge or the board shall have the authority to order payment of such fees or expenses on terms acceptable to the parties or within the discretion of the board.
Every employer subject to the compensation provisions of this chapter shall insure the payment of compensation to his employees in the manner provided in this article; and, while such insurance remains in force, he or those conducting his business shall be liable to any employee for personal injury or death by accident only to the extent and in the manner specified in this article.
(a) Unless otherwise ordered or permitted by the board, every employer subject to the provisions of this chapter relative to the payment of compensation shall secure and maintain full insurance against such employer's liability for payment of compensation under this article, such insurance to be secured from some person, corporation, association, or organization licensed by law to transact the business of workers' compensation insurance in this state or from some mutual insurance association formed by a group of employers so licensed; or such employer shall provide the board with sufficient information for the board to make an adequate assessment of the employer's workers' compensation exposure and liabilities and shall further provide evidence satisfactory to the board of such employer's financial ability to pay the compensation directly in the amount and manner and when due, as provided for in this chapter. In the latter case, the board may, in its discretion, require the deposit of acceptable security, indemnity, or bond to secure the payment of compensation liabilities as they are incurred; provided, however, that it shall be satisfactory proof of the employer's financial ability to pay the compensation directly in the amount and manner when due, as provided for in this chapter, and the equivalent of acceptable security, indemnity, or bond to secure the payment of compensation liabilities as they are incurred, if the employer shall show the board that such employer is a member of a mutual insurance company duly licensed to do business in this state by the Commissioner of Insurance, as provided by the laws of this state, or of an association or group of employers so licensed and as such is exchanging contracts of insurance with the employers of this and other states through a medium specified and located in their agreements with each other, but this proviso shall in no way restrict or qualify the right of self-insurance as authorized in this Code section. Nothing in this Code section shall be construed to require an employer to place such employer's entire insurance in a single insurance carrier.
(b)(1) Any employer from another state engaged in the construction industry within this state with a workers' compensation insurance policy issued under the laws of such other state so as to cover that employer's employees while in this state shall be in compliance with subsection (a) of this Code section if:
(A) Such other state recognizes the extraterritorial provisions of Code Section 34-9-242; and
(B) Such other state recognizes and gives effect within such state to workers' compensation policies issued to employers of this state.
(2) Nothing in this subsection shall be construed to void any insurance coverage.
(c) The board shall have the authority to promulgate rules and regulations to set forth requirements for third-party administrators and servicing agents, including insurers acting as third-party administrators or servicing agents, with regard to their management or administration of workers' compensation claims. All Title 33 regulations shall remain in the Department of Insurance.
(d) Wherever a self-insurer has been required to post bond, should it cease to be a corporation, obtain other coverage, or no longer desire to be a self-insurer, the board shall be allowed to return the bond in either instance, upon the filing of a certificate certifying to the existence of an insurance contract to take over outstanding liability resulting from any presently pending claim or any future unrepresented claims; and the board shall be relieved of any liability arising out of a case where the injuries were incurred, or liability therefor, prior to the returning of the bonds.
Any policy of insurance issued under this chapter shall be the standard workers' compensation policy of insurance containing the usual and customary provisions found in such policies and shall include a provision that the premium charge shall be promptly paid. If there is any question regarding the lack of accident prevention and safety engineering with respect to a particular risk, reasonable rules and regulations are to be promulgated, which shall be put into full force and effect when approved by the board. The requirements of this Code section and Code Sections 34-9-131 through 34-9-134 shall be in addition to anything required of insurance companies under the general laws of this state as embodied in Title 33.
(a) Notwithstanding any provision of this chapter to the contrary, workers' compensation health benefits pilot projects are authorized under the provisions of this Code section.
(b) The Commissioner of Insurance shall adopt rules to enable employers and employees to enter into agreements to provide the employees with workers' compensation medical payments benefits through comprehensive health insurance that covers workplace injury and illness. The Commissioner of Insurance shall review all pilot project proposals and may approve a proposal only if it confers medical benefits upon injured employees substantially similar to benefits available under this chapter. The Commissioner shall revoke approval if the pilot project fails to deliver the intended benefits to the injured employees.
(c) The comprehensive health insurance may provide for health care by a health maintenance organization or a preferred provider organization. The premium must be paid entirely by the employer. The program may use deductibles, coinsurance, and copayment by the employees not to exceed $5.00 per visit or $50.00 maximum per occurrence.
(d) The Commissioner of Insurance shall report annually to the standing committees of the General Assembly having jurisdiction over insurance and labor matters by November 1 on the status of any pilot projects approved by the Commissioner.
All policies insuring the payment of compensation under this chapter, including all contracts of mutual, reciprocal, or interinsurance must contain a clause to the effect that, as between the employer and the insurer or insurers, the notice to or knowledge of the occurrence of the injury on the part of the insured employer shall be deemed notice or knowledge, as the case may be, on the part of the insurer or insurers; that jurisdiction of the insured, for the purposes of this chapter, shall be jurisdiction of the insurer or insurers; and that the insurer or insurers shall in all things be bound by and subject to awards, judgments, or decrees rendered against such insured employer.
(a) No policy or contract of insurance shall be issued unless it contains the agreement of the insurer or insurers that it or they will promptly pay all benefits conferred by this chapter and all installments of the compensation that may be awarded or agreed upon to the person entitled to them and that the obligation shall not be affected by any default of the insured after the injury or by any default in giving notice required by such policy or otherwise. Such agreement shall be construed to be a direct promise by the insurer or insurers to the person entitled to compensation and shall be enforceable in his name.
(b) A policy of insurance issued under this chapter shall always first be construed as an agreement to pay compensation; and an insurer who issues a policy of compensation insurance to an employer not subject to this chapter shall not plead as a defense that the employer is not subject to the chapter; and an insurer who issues to an employer subject to this chapter a policy of compensation insurance covering an employee or employees ordinarily exempt from its provisions shall not plead the exemption as a defense. In either case compensation shall be paid to an injured employee or to the dependents of a deceased employee for a compensable accident as if the employer or the employee or both were subject to this chapter, the policy of compensation insurance constituting a definite contract between all parties concerned.
(a) Each insurer issuing a policy under this chapter shall offer, as a part of the policy or as an optional endorsement to the policy, deductibles optional to the policyholder for benefits payable under this chapter. Deductible amounts offered shall be fully disclosed to the prospective policyholder in writing in the amount of $100.00, $200.00, $300.00, $400.00, $500.00, or increments of $500.00 up to a maximum of $2,500.00 per compensable claim. The policyholder exercising the deductible option shall choose only one deductible amount.
(b) If the policyholder exercises the option and chooses a deductible, the insured employer shall be liable for the amount of the deductible for benefits paid for each compensable claim of work injury suffered by an employee. The insurer shall pay all or part of the deductible amount, whichever is applicable to a compensable claim, to the person or provider entitled to the benefits conferred by this chapter and then seek reimbursement from the insured employer for the applicable deductible amount. The payment or nonpayment of deductible amounts by the insured employer to the insurer shall be treated under the policy insuring the liability for workers' compensation in the same manner as payment or nonpayment of premiums.
(c) Optional deductibles shall be offered in each policy insuring liability for workers' compensation which is issued, delivered, issued for delivery, or renewed under this chapter on or after July 1, 1990, unless an insured employer and insurer agree to renegotiate a workers' compensation policy in effect on July 1, 1990, so as to include a provision allowing for a deductible.
(d) Premium reduction for deductibles shall be determined before the application of any experience modification, premium surcharge, or premium discounts. To the extent that an employer's experience rating or safety record is based on benefits paid, money paid by the insured employer under a deductible as provided in this Code section shall not be included as benefits paid so as to harm the experience rating of such employer.
(e) This Code section shall not apply to employers who are approved to self-insure against liability for workers' compensation or group self-insurance funds for workers' compensation established pursuant to Article 5 of this chapter.
(a) A policy, plan, or contract of workers' compensation insurance issued under this chapter may not be issued, delivered, issued for delivery, or renewed on or after July 1, 1990, and a certificate of authority for a group self-insurance fund under Article 5 of this chapter may not be issued or renewed on or after July 1, 1990, if such policy, plan, contract, or fund requires that recipients of benefits thereunder obtain pharmacy services, including but not limited to prescription drugs, from an out-of-state mail order pharmacy or which requires that such recipients who do not utilize an out-of-state mail order pharmacy must pay a copayment fee or have imposed any other condition for the receipt of pharmacy services when that payment or condition is not imposed upon those recipients who utilize an out-of-state mail order pharmacy for those services.
(b) An employer who provides workers' compensation benefits as a self-insurer under this chapter may not require that any recipient of benefits under that self-insurance plan who becomes an employee of that employer on or after July 1, 1990, and who obtains pharmacy services under that plan, including but not limited to prescription drugs, must obtain those services from an out-of-state mail order pharmacy or must pay a copayment fee or have imposed any other condition for the receipt of pharmacy services when that payment or condition is not imposed upon those recipients who utilize an out-of-state mail order pharmacy for those services.
Every policy insuring the payment of compensation provided for in this article or insuring against liability for payment of such compensation, including all contracts of mutual, reciprocal, or interinsurance, shall be deemed to be made subject to this chapter. No corporation, association, or organization and no mutual, reciprocal, or interinsurers shall enter into or make any such policy or contract of insurance unless its form shall have been approved by the board. This chapter shall not apply to policies of insurance against loss from explosion of boilers or flywheels or other similar catastrophic hazards.
(a) Every employer subject to the compensation provisions of this chapter shall file with the board in the form prescribed by the board, annually or as often as the board in its discretion may deem necessary, evidence satisfactory to the board of his compliance with Code Section 34-9-121 and all other Code sections relating thereto.
(b) Any employer subject to the compensation provisions of this chapter who refuses or willfully neglects to comply with subsection (a) of this Code section shall be guilty of a misdemeanor. In hearing any application for compensation by an injured employee of such delinquent employer, the board may assess compensation against such employer in an amount 10 percent greater than that provided for in this chapter and, in addition to the increased compensation, shall also fix a reasonable attorney's fee to be paid by the employer to the representative of the employee. The attorney's fee and the increased compensation shall be due and payable at once, and their payment shall be enforced as provided elsewhere in this chapter.
(a) Whenever an employer has complied with those provisions of Code Section 34-9-121 relating to self-insurance, the board shall issue to such employer a certificate which shall remain in force for a period fixed by the board.
(b) The board shall have the authority to review the self-insured status of an employer after a merger or acquisition involving the employer.
(c) The board may, upon at least 30 days' notice to the employer, and proof of receipt of same, and after a hearing, revoke the certificate upon satisfactory evidence for such revocation having been presented. At any time after such revocation, the board may grant a new certificate to the employer upon the employer’s petition.
The board and its authorized representatives shall have the power and authority to enter any place of employment and to inspect the same, together with all employment, payroll, and injury records at any reasonable time for the purpose of investigating compliance with this chapter and making inspections for the proper enforcement of this chapter. The willful refusal of an employer to permit inspections and investigations pursuant to this Code section or to comply with Code Sections 34-9-120, 34-9-121, and 34-9-126 after being notified of noncompliance by the board shall subject the employer to a penalty to be assessed by the board, not exceeding $50.00 per day so long as the refusal shall continue; provided, however, that no penalty shall be assessed except after notice of not less than ten days and a hearing thereon before the board.
Every insurance company doing a workers' compensation business in this state shall furnish a bond payable to the state in the sum of $50,000.00 with some surety company authorized to transact business in this state as surety, in such form as may be approved by the Commissioner of Insurance, conditioned for the payment of compensation losses on policies issued by such insurance company upon risks located in this state. An action may be brought upon said bond by the board for the use and benefit of any party or parties at interest. The annual license of such company shall not be issued or renewed until it has filed with the Commissioner of Insurance of this state the bond required by this Code section. In lieu of such bond a deposit of the same amount may be made with the Office of the State Treasurer in the form of other security satisfactory to the Commissioner of Insurance.
In addition to the authority prescribed in Title 33, the Commissioner of Insurance shall have the power, in such manner and by such means as he may deem proper and adequate, to gather statistics and information and make investigations concerning rates for such insurance. He may take into consideration the income, earnings, and loss ratios from any and every source whatever of any such company and may call upon the directors of the State Board of Workers' Compensation to sit with him in an advisory capacity at any investigation or hearing concerning any rate or rates.
(a) Notwithstanding any other provision of law, all insurers issuing policies or contracts of insurance against the liability for compensation under this chapter shall comply with the following provisions. Each insurer's basic rate for policies or contracts of insurance against the liability for compensation under this chapter shall not exceed the insurer's effective rate approved by and on file with the Commissioner of Insurance as of April 22, 1982. These rates shall remain in effect until April 1, 1983.
(b) There shall be no exception to the requirements of subsection (a) of this Code section unless the Commissioner of Insurance finds, after a hearing upon the written request of an insurer, that the use of the rates required under subsection (a) of this Code section by the insurer will result in rates which are inadequate to the extent that:
(1) Such rates do not properly reflect the insurer's loss experience in this state to the extent that its earned premiums would not equal its incurred losses or expenses; or
(2) Such rates jeopardize the solvency of the insurer required to use such rates.
(c) The insurer shall have the burden of showing that the use of the rate required under subsection (a) of this Code section will result in rates which are inadequate to the extent that they do not properly reflect the insurer's loss experience in this state or that their use would jeopardize its solvency. No insurer shall be relieved of using the required rates if its most recently available experience on such lines of business shows a net underwriting gain unless, on the basis of statistical data, pertinent judgment, and trend factors, no other reasonable conclusion would be appropriate.
(d) Upon conclusion of any hearing held pursuant to this chapter, the Commissioner of Insurance shall enter his order specifying the rates required to be used by the insurer. The Commissioner shall indicate in his order all the factors entering into a decision relieving an insurer from full compliance with this Code section. The provisions of Chapter 2 of Title 33 shall apply to hearings held under this Code section.
(e) Any insurer appealing from a final order of the Commissioner of Insurance may continue to use its rates then in effect during the pendency of the appeal, provided arrangements satisfactory to the Commissioner are made to secure the repayment to the insurer's policyholders of the difference between the rates used by the insurer and that rate which would be lower as required by this Code section. Upon final adjudication the insurer shall repay any excess premium collected from its policyholders plus interest at the rate of 12 percent per annum.
(a) Every insurance company and every person, firm, or corporation writing policies of insurance under this chapter or insuring the payment of compensation to employees as provided by this chapter, before writing any such policy or entering upon any such insurance contract or continuing any such contract of force, shall obtain from the board a permit authorizing such company or such person, firm, or corporation to engage in business as an insurance carrier under this chapter and to write and enter upon such insurance contracts.
(b) The application for such permit shall set forth such facts as the board may, by regulation, require. The board is authorized to prescribe the form of the permit and to provide by regulation for a hearing upon such application. Upon the filing of such application, the board shall have such hearing thereon as may be provided for by regulation and shall grant a permit if, in its discretion, the applicant is qualified, financially and otherwise, to carry on such insurance business. Upon obtaining said permit, the insurer shall designate and maintain an office in the State of Georgia for the handling of claims or shall designate an agent located in the State of Georgia who shall be authorized to execute instruments for the payment of compensation.
(c) Any company or any person, firm, or corporation who shall write insurance under this chapter or enter upon any contract to insure the payment of compensation under this chapter or continue any such contract of force without first obtaining a permit from the board as required by this Code section or after the revocation of any such permit shall be guilty of a misdemeanor.
The board is authorized, of its own motion or upon complaint filed with it, after notice of not less than ten days and a hearing thereon, to revoke any permit granted under Code Section 34-9-131 if an employer is ready, willing, and able to pay a premium at the rate prescribed by the Department of Insurance but it appears that the holder of such permit declines to accept and underwrite the risk assigned to it by the board or a bureau established and approved for rating purposes; or if it appears that the holder of any such permit fails and refuses to obey any valid order of the board or to pay any award entered against it by the board and not appealed from or affirmed on appeal; or if it appears that the holder of such permit is otherwise not qualified to carry on such business.
(a) The board shall prescribe the rules and regulations for apportioning rejected workers' compensation policies and may establish an equitable assignment of such policies and enforce such provisions; provided, however, the Commissioner of Insurance is authorized to establish or approve a method to apportion on a pro rata basis any rejected workers' compensation policy where four insurers duly authorized to write workers' compensation insurance refused, in writing, to issue the workers' compensation policy to cover said risk or where the agent for the applicant for such insurance confirms in writing to the four insurers their refusal to cover said risk. In formulating this method of assignment, a minimum loss ratio will be considered by the Commissioner of Insurance. Then, such established or approved method shall immediately assign an insurer to write such risk. The Commissioner of Insurance shall establish separate categories of risks rejected as the result of insufficient prior workers' compensation experience, risks rejected for factors other than workers' compensation loss experience, and risks rejected as the result of poor workers' compensation experience. Where such assignment has been made under the aforementioned method, the board shall not make the assignment.
(b) The method of apportioning and assigning rejected workers' compensation insurance policies provided in subsection (a) of this Code section shall include the assignment and apportionment of such policies covering vendors who provide logging services to a named insured or covering an association of such vendors.
(c)(1) The method of apportioning and assigning rejected workers' compensation insurance policies provided in subsections (a) and (b) of this Code section shall be known as the “Workers' Compensation Assigned Risk Insurance Plan” or “Plan.” All policies issued under the Plan shall have the words “Georgia Workers' Compensation Assigned Risk Plan” placed in bold letters on the policy declarations page to ensure that rejected risks know that the policy has been issued in the Plan.
(2) For Plan policies with effective dates on or after January 1, 1996, the Commissioner of Insurance shall approve and implement a plan which establishes rates adequate to eliminate any Plan operating deficit by January 1, 1999.
(3) Such Plan shall be revised annually by the Plan administrator and presented to the Commissioner of Insurance for approval.
(4) Such Plan shall include, to the extent adequate to reduce the Plan operating deficit:
(A) Rating plans, procedures, and requirements placed on Plan policyholders; and
(B) Procedures and requirements placed on Plan insurers and the Plan administrator.
(5) Such Plan shall also include, but not be limited to:
(A) Plan policy assessments and surcharges;
(B) Credits for policyholders who have had no lost-time claims;
(C) A system of credits against assessment or participation of insurers for the voluntary writing of a risk or risks which are currently insured through the Plan;
(D) Provisions that the type or level of services by an insurer for Plan policyholders shall be no less than such type or level of services of such insurer for its policyholders not in the Plan; and
(E) Provisions for safety programs to be implemented by policyholders in cooperation with their insurer.
(d) The Plan required by subsection (c) of this Code section shall be structured, to the extent possible, so as to reduce the operating deficit of the Plan proportionately each year from January 1, 1996, through January 1, 1999.
(e) Notwithstanding anything to the contrary provided in subsection (c) or (d) of this Code section, the Commissioner of Insurance shall have the discretion to waive all or any portion of the Plan policy assessments and surcharges described in subsection (c) of this Code section if the operating deficit of the Plan for a respective Plan policy year improves by at least 15 percent as compared to the deficit for such Plan policy year calculated based upon rates in effect for the immediately preceding Plan policy year.
(f) For Plan policies with effective dates on or after January 1, 1999, the aggregate of all revenues received from rates and rating plans charged to participants who are insured under the Plan shall be set so that the amount received in premiums, together with reasonable investment income earned on those premiums, shall be sufficient to pay claims and reasonable expenses of providing coverage under the Plan and to establish appropriate levels of loss reserves, all in accordance with actuarial standards, including consideration of the effects of subsection (c) of this Code section. For purposes of this Code section, the term “actuarial standards” means standards adopted by the Casualty Actuarial Society in its Statement of Principles Regarding Property and Casualty Insurance Ratemaking and the Standards of Practice adopted by the Actuarial Standards Board. Any premium or surcharge collected by the Plan in excess of the amount necessary to fund the projected ultimate losses and expenses of the Plan shall be refunded to the policyholders or applied to reduce premiums.
(g) Notwithstanding Code Sections 33-9-8 and 33-9-21, the Commissioner of Insurance shall cause the implementation of rates for policies issued pursuant to the Plan which are sufficient to conform with the requirements of paragraphs (1) and (2) of subsection (c) of this Code section.
(h) On or before December 15, 1995, and each subsequent year, the Commissioner of Insurance shall submit a report to the appropriate standing committees of the General Assembly concerning the status and results of operation of the Plan. Such report shall include but not be limited to a report on the Plan deficit, burden and trends in reducing such deficit, number of policies and amount of premium underwritten by the Plan, rating of such policies based upon the three-tier rating program, his or her estimate of the effect of policyholder safety committees on policyholder loss experience, operation of workers' compensation insurance specialty markets in this state, impact of the servicing carrier remedial program and results of servicing carrier incentives and disincentives, review of the efficiency of the servicing carrier bid program, and any other information the Commissioner of Insurance or the respective chairpersons of such standing committees deem necessary to evaluate the Plan and the workers' compensation insurance market in this state.
(i) On or before July 1, 1995, the Commissioner of Insurance shall promulgate rules and regulations to implement this Code section. Such rules and regulations shall include the system of credits required by subparagraph (c)(5)(C) of this Code section, which credits shall not be less than the following:
(1) For policies with an annual premium of $7,500.00 or less, a credit of four times the amount of such annual premium;
(2) For policies with an annual premium of at least $7,501.00, but not exceeding $15,000.00, a credit of three times the amount of such annual premium;
(3) For policies with an annual premium of at least $15,001.00, but not exceeding $25,000.00, a credit of two times the amount of such annual premium;
(4) For policies with an annual premium of at least $25,001.00, but not exceeding $200,000.00, a credit of one and one-half times the amount of such annual premium; or
(5) For policies with an annual premium of $200,001.00 or greater, a credit of the amount of such annual premium.
(j) A merit rating plan shall be implemented by the Plan administrator and the Commissioner of Insurance in compliance with subparagraph (c) (5) (B) of this Code section to establish credits for policyholders who have had no lost-time claims and debits for a specified number of lost-time claims to include the following:
(1) A policyholder who is not experience rated, whose annual premium is less than $5,000.00, and who is subject to a merit rating plan of credits and debits to be applied to the Georgia manual premium for the policyholder in the Plan;
(2) The merit rating plan shall be based upon the number of lost-time claims of the policyholder during the most recent one-year period for which statistics are available. This one-year period is that which would otherwise be used for experience rating purposes;
(3) The credits and debits under such plan shall be as follows:
(A) No lost-time claims for the most recent year, a 12 1/2 percent credit;
(B) One lost-time claim for the most recent year, no credit or debit; and
(C) Two or more lost-time claims for the most recent year, a 5 percent debit;
(4) The insurer shall obtain the claims information of the policyholder and shall notify the policyholder of the credit or debit premium adjustment and the reason for same in writing within 90 days of the effective date of the policy. The insurer, upon request, shall provide additional safety plan information to a policyholder who develops a debit merit rating adjustment; and
(5) Debits and credits used in this merit rating plan shall not apply to the Georgia minimum premium for a risk.
Appeal from any decision under Code Sections 34-9-122 and 34-9-131 through 34-9-133 may be made in the manner provided elsewhere for appeals from orders or judgments of the members of the board.
(a) Before an insurance company is authorized to submit statistical data on an employer to any licensed rating organization for purposes of determining the employer's experience modification factor, the insurance company must verify with the employer the accuracy of the data. In so verifying, the insurance company shall provide to the employer: (1) the data to be submitted; and (2) a statement in boldface type, to be signed by an authorized representative of the employer, and submitted by the insurance company to the licensed rating organization along with the statistical data. Said statement shall indicate that the statistical data to be submitted have been reviewed by the authorized representative of the employer; that said data are accurate; and that an insurance company representative has explained to the employer's representative that the statistical data to be submitted may affect the employer's premium for workers' compensation insurance coverage.
(b) When a licensed rating organization issues an insured's experience modification worksheet to the insured's workers' compensation insurance company, the licensed rating organization shall submit a copy of the worksheet to the insured.
Whenever an experience modification factor is applied to the premium of an employer's policy of workers' compensation insurance, consideration shall be given to:
(1) Any amounts recovered by such employer or its insurer pursuant to Code Section 34-9-11.1, relating to rights of action against third parties and subrogation; and
(2) Code Section 34-9-360, relating to reimbursements from the Subsequent Injury Trust Fund. In addition, the insurer shall not include in the computation of such factor any penalties which were incurred pursuant to this chapter by the actions of the insurer or its representative.
Any insurance company which voluntarily writes a policy for any employer which was self-insured under any provision of this chapter shall include such employer's prior experience while self-insured to determine or have determined an experience modifier for such employer.
It is the intent of the General Assembly to provide an alternative mechanism through which bona fide members of trade associations and professional associations as well as groups of municipalities, counties, school boards, and hospital authorities may extend workers' compensation benefits to their employees through group self-insurance programs. This alternative is authorized to enable the members of these groups to lower workers' compensation costs by reducing administrative expenses and to encourage a reduction in claims through active loss prevention, loss control, and rehabilitation programs. It is therefore intended that this article be liberally construed to effectuate these purposes.
As used in this article, the term:
(1) “Administrator” means any individual, partnership, or corporation, except a sponsoring association or associations, designated and authorized by the board of the fund to carry out the day-to-day operations of the fund, including, but not limited to, the processing and payment of claims.
(2) “Basic rate” means the annual premium rate charged prior to any credit being given for applicable experience debits or credits or for applicable discounts or surcharges.
(3) “Board of the fund” means the board of trustees of any fund created pursuant to this article.
(4) “Commissioner” means the Commissioner of Insurance of the State of Georgia.
(5) “County” means a county of this state. Such term shall include a consolidated city-county government and any public authority, commission, board, or similar body created or activated by an Act of the General Assembly or by a resolution or ordinance of the governing authority of a county, individually or jointly with any other political subdivision or subdivisions of this state, pursuant to the Constitution of this state or an Act of the General Assembly and which carries out its functions on a county-wide basis, a multicounty basis, or wholly within the unincorporated area of a county.
(6) “Fund” means a joint fund for workers' compensation established pursuant to this article.
(7) “Gross annual premium” means the total annual premium determined by multiplying the payroll for the applicable workers' compensation job classifications by the appropriate annual premium rate for each classification.
(8) “Hospital authority” means any legally constituted board, commission, or authority which has been created for the purpose of and is actually governing the operation of a public hospital created in accordance with the laws of this state.
(9) “Intrastate agreement” means the written agreement subscribed to and abided by the members of the fund, which agreement establishes the fund and provides for its operation and through which each member agrees to assume and discharge, jointly and severally, any and all liability under this article relating to or arising out of the operations of the fund.
(10) “Member” means an employer who is a member of a fund established by a trade association or professional association or by a group of municipalities, counties, school boards, or hospital authorities in accordance with this article. “Member” also means a trade association or professional association which elects to cover its own employees under a fund established by its members.
(11) “Municipality” means an incorporated municipality of this state, a consolidated city-county government, and any local public authority, commission, board, or other similar agency which is created by a general or local Act of the General Assembly and which carries out its functions wholly or partly within the corporate boundaries of an incorporated municipality of this state. This term shall also include such bodies which are created or activated by an appropriate ordinance or resolution of the governing body of a municipal corporation, individually or jointly with other political subdivisions of the state.
(12) “Normal annual premium” means the standard annual premium plus or minus applicable surcharges or discounts.
(13) “Premium” means any consideration, by whatever name called, paid to a fund by a member for coverage under the fund.
(14) “Professional association” means a corporation or unincorporated association which at the time it initially makes application to form a fund under this chapter has been organized for a period of at least three years and is domiciled in the State of Georgia, is engaged in substantial activity for the benefit of its members, other than the sponsorship of a fund operated pursuant to this article, and is composed of a bona fide group of employers who are engaged in the same or in substantially similar types of professions and have similar governing industry classifications as approved by the Commissioner regarding workers' compensation and employers' liability insurance.
(15) “School board” means a public board of education of any county or of any independent school system of this state.
(16) “Standard annual premium” means the gross annual premium plus or minus applicable experience credits or debits.
(17) “Surplus” means the total assets of the fund less its liabilities and reserves as determined in accordance with the requirements of this article.
(18) “Surplus share” or “proportionate share” means the initial contribution paid to a fund by a member as a condition of membership in the fund.
(19) “Trade association” means a corporation or unincorporated association which at the time it initially makes application to form a fund under this chapter has been organized for a period of at least three years, domiciled in the State of Georgia, is engaged in substantial activity for the benefit of its members, other than the sponsorship of a fund operated pursuant to this article, and is composed of a bona fide group of employers who are engaged in the same or in substantially similar types of businesses or professions within this state and who have similar governing industry classifications as approved by the Commissioner regarding workers' compensation and employers' liability insurance.
(a) Any group or groups of employers who are engaged in similar business activities may establish a fund or funds provided that:
(1) Such fund or funds shall comply with the provisions of this article;
(2) Separate classes, as described in Code Section 34-9-152, may not be commingled in any fund; and
(3) Such fund or funds shall be established by one or more professional or trade associations.
(b) Any professional or trade association may establish a fund or funds.
(c) Any fund established prior to January 1, 1995, and which is operating in compliance with this article or in compliance with the requirements of the applicable rules and regulations of the Commissioner shall be deemed to be in compliance with this article.
(a) At least 30 days prior to executing the initial intrastate agreement required by this article, any group authorized to form a fund under this article shall file with the Commissioner an intent to form a fund on such form as prescribed by the Commissioner. Such form shall include:
(1) The name of the group forming the fund;
(2) The name of the proposed administrator;
(3) The type or types of employers to be offered membership in the fund;
(4) A statement that the group is knowledgeable of and will comply with the requirements of this article and any rules or regulations pertaining thereto; and
(5) A copy of the intrastate agreement that will be used to establish a fund.
(b) Upon receipt and review of the information supplied with the notice of intent to form a fund provided under subsection (a) of this Code section, the Commissioner, pursuant to his or her authority under Code Section 34-9-169, may issue a notice of intent to refuse to issue a certificate of authority, which notice of intent shall be based upon the Commissioner's determination that the proposed fund would not be in compliance with the provisions of this article. The proposed fund may not be formed and the intrastate agreement may not be executed until the Commissioner withdraws in writing the notice of intent to refuse to issue a certificate of authority.
(a) Any group of municipalities, counties, school boards, or hospital authorities or any trade association or professional association or any other group authorized by this article may enter into an intrastate agreement for the purpose of extending workers' compensation benefits to employees of its members. Once a fund is established pursuant to the intrastate agreement, an officer or administrator of the fund shall, within ten days of the effective date of such agreement, deliver a copy of the agreement to the Commissioner. The fund shall provide workers' compensation coverage to the employees of members who deposit moneys for premiums into the fund. On or before the effective date of such coverage, the fund shall file with the State Board of Workers' Compensation the evidence of coverage form required by the board's rules issued pursuant to Code Section 34-9-126.
(b)(1) For purposes of this article, municipalities, counties, school boards, hospital authorities, trade associations, and professional associations shall each be deemed to constitute separate classes. Except as provided in paragraph (2) of this subsection, no member of any one such class shall join with a member of another class or classes for the purpose of creating a fund pursuant to this article. There shall be only one group self-insurance fund for municipalities and only one group self-insurance fund for counties; provided, however, if the Commissioner determines that there are special or unique circumstances or needs of a group of counties or municipalities which justify the establishment of an additional group self-insurance fund or funds for counties or municipalities, the Commissioner may authorize the establishment of such fund or funds.
(2) A board of education of an independent school system of any municipality is authorized to be a member of a fund composed of municipalities.
(c) A fund must make application to the Commissioner for a certificate of authority within 90 days of the date of executing an intrastate agreement creating the fund. The application shall state that the fund has met the requirements of this subsection and the requirements of subsections (d) through (f) of this Code section and shall set forth the following:
(1) The name of the fund;
(2) The location of the fund's principal office, which shall be maintained within this state;
(3) The location of the principal office of the sponsoring trade association, which shall be located in this state, or sponsoring professional association, which shall be located in this state, or group of municipalities, counties, school boards, or hospital authorities;
(4) The names and addresses of the members;
(5) The principal business of each member;
(6) The name and address of a Georgia resident designated and appointed as the fund's proposed registered agent for service of process in this state;
(7) The names and addresses of the officers and directors of the proposed fund and a statement of whether or not any of such officers and directors has been convicted of any crimes other than minor traffic violations within the last ten years;
(8) The powers of the officers and directors and the term of office of each;
(9) A brief outline of the method by which the administrative obligations of the fund shall be met;
(10) A copy of the bylaws of the fund;
(11) A copy of the intrastate agreement among the members;
(12) The name and address of the administrator and, if the administrator is a corporation, the names and addresses of its officers and directors and a statement concerning whether or not the administrator or any of the officers or directors thereof, if the administrator is a corporation, has been convicted of any crimes other than minor traffic violations within the last ten years;
(13) A statement of the previous experience and background of any administrator of the fund, including reference to any licenses it may hold or have held in this state or any other state within the last ten years;
(14) The most recent audited statement of the financial condition of any administrator of the fund or the most recent annual statement of such administrator if it is an insurer. Any financial statement provided as required by this paragraph shall not be deemed to be a public document and shall be maintained in confidence by the Commissioner;
(15) A copy of any agreements between the fund and any contract administrator of the fund;
(16) A statement of the financial condition of the fund listing all of its assets and liabilities as of the end of the last preceding month prior to the date of the application on such a form as may be prescribed by the Commissioner;
(17) A copy of each contract, endorsement, and application form it proposes to issue or use;
(18) Excluding funds formed by counties, municipalities, or school boards, a current, audited financial statement or other acceptable financial statement of each member of the fund. This statement shall be required of each member at the time of application to the fund, but shall not be required at any other time unless such member shall become 90 days delinquent in payment to the fund. Any financial statement provided pursuant to this article shall not be deemed to be a public document and shall be maintained in confidence by the Commissioner; and
(19) Such other information, documents, or statements as the Commissioner may reasonably require.
(d) Each application for a certificate of authority shall be accompanied by a filing fee in the amount required by subparagraph (CC) of paragraph (1) of Code Section 33-8-1, which fee shall not be refundable.
(e) A fund authorized by this article may be established only with the participation of ten or more members and shall have no fewer than 1,000 employees in the aggregate. The names of the participants and any information submitted by any member shall not be deemed to be public information and shall be maintained in confidence by the Commissioner. Any fund licensed after July 1, 1995, shall have no fewer than 15 members and 1,500 employees in the aggregate. Any fund which attains compliance and subsequently falls below the minimum number of members or aggregate employees may be granted additional time to regain compliance, up to a maximum of 180 days.
(f) A fund authorized by this article may be established only if it has and thereafter maintains gross annual premiums of $300,000.00. Any fund licensed after July 1, 1995, may be established only if it has and thereafter maintains a gross annual premium of $1 million. Any fund which attains compliance and subsequently falls below the minimum required premium may be granted additional time to regain compliance, up to a maximum of 180 days.
(g) All employers who are members of a class which forms a fund pursuant to this article shall be eligible for membership in such fund unless membership is denied such employers by the trustees according to underwriting guidelines established by the trustees of the fund and approved by the Commissioner in accordance with this article.
(h) Any fund formed pursuant to this article may accept as a member of such fund any other employer of the same class, as defined in subsection (b) of this Code section, which makes application for membership and otherwise meets the requirements of this article and the underwriting guidelines established by the trustees of the fund and approved by the Commissioner.
(a) The Commissioner shall examine the application made under Code Section 34-9-152 to determine whether the fund will be able to comply with the laws of this state and whether membership in the fund will enable the members of the fund to meet their liability for workers' compensation benefits under this chapter. If the Commissioner finds that the fund is capable of complying with such requirements and meeting such liability, he shall issue a certificate authorizing the fund to provide workers' compensation benefits on behalf of its members.
(b) If the Commissioner refuses to issue a certificate of authority, he shall issue an order setting forth the reasons for refusal and forward it to the proposed fund. A copy of the order shall be sent to each member of the fund.
(c) The Commissioner shall approve or disapprove the application for a certificate of authority within 90 days of receipt by him of the application and all of the supporting information he has requested.
(d) The Commissioner may refuse to issue or renew or may suspend or revoke the certificate of authority of any fund, in accordance with Code Section 34-9-169, for failure of the fund to comply with any provision of this article or with any of the rules, regulations, or orders of the Commissioner issued pursuant thereto.
(e) The certificate shall be renewed annually by the Commissioner, upon payment by the fund of the renewal fee required by subparagraph (CC) of paragraph (1) of Code Section 33-8-1.
The participation by a member in a fund created pursuant to this article shall enable it to comply with its duty as an employer to assure payment of workers' compensation in accordance with this chapter.
(a) Any other provision of law to the contrary notwithstanding, no person other than a trustee, officer, or administrator of the fund shall solicit membership or participation in any fund unless such person:
(1) Has a valid agent's license for property and casualty insurance or a counselor's license issued pursuant to Article 1 of Chapter 23 of Title 33; or
(2) Is an officer, director, or employee of:
(A) A professional association or trade association; or
(B) A corporation with its income exempt pursuant to Section 115 of the United States Internal Revenue Code.
(b) After the inception date of a fund, prospective new members of the fund shall submit an application for membership to the board of the fund and, unless the fund elects to meet the requirements of subsection (c) of this Code section, to the Commissioner on a form prescribed by the Commissioner. The board of the fund or the administrator, with the approval of the board of the fund, shall establish the amount to be paid or contributed by each applicant to become a member of the fund. If the Commissioner does not disapprove the application of a prospective new member within 45 days, the applicant, upon payment or contribution to the fund as determined in accordance with this article, shall be authorized to become a member of the fund, to subscribe to and abide by the intrastate agreement, bylaws, rules, and regulations of the fund, and to share the liabilities and assets of the fund in accordance with its bylaws and with the applicable provisions of this article. The board of the fund may take into consideration the loss ratio of a prospective member in establishing such member's initial payment or contribution, provided that, notwithstanding the provisions of this Code section, such prospective member's initial payment or contribution shall be reasonable in relationship to the initial payment or contribution paid by the other members of the fund. Any person or group aggrieved by a determination of the board of the fund regarding the establishment of a member's initial payment or contribution shall have the right to appeal such determination to the Commissioner.
(c) The trustees of a fund may submit underwriting criteria to the Commissioner for approval and unless the Commissioner disapproves the underwriting criteria within 90 days, the fund shall be authorized to approve or deny application for membership in the fund according to such underwriting criteria. The Commissioner, in conjunction with any examination of the fund, shall ensure that the fund is complying with the underwriting criteria submitted and approved by the Commissioner.
(a) A member may elect to terminate voluntarily its participation in a fund by giving at least 90 days' advance written notice to the fund and to the Commissioner, unless the fund elects to meet the requirements of subsection (e) of this Code section. Such voluntary termination shall be approved by the Commissioner, or the fund, upon a finding by the Commissioner, or the fund, that such member is in good standing and that both member and fund have met all requirements of this article and of any rules and regulations issued by the Commissioner and the fund as of the proposed effective date of termination.
(b)(1)(A) A member may be involuntarily terminated as a member of a fund upon a finding by the Commissioner, after due notice and hearing, that such member has failed to comply with the requirements of this article or with the bylaws of the fund or the applicable intrastate agreement. Such hearings may be initiated by the Commissioner either upon the Commissioner's own motion or upon a recommendation of the board of the fund or the member facing involuntary termination. In the Commissioner's discretion, any hearings arising from this Code section may be consolidated if the issues involved are the same or substantially similar to those of other scheduled hearings.
(B) The trustees of a fund may involuntarily terminate a member of the fund if the fund elects to meet the requirements of subsection (e) of this Code section and if the trustees find that such member has failed to comply with the requirements of this article or with the bylaws of the fund or the applicable intrastate agreement.
(2) A member may be involuntarily terminated for failure to pay its proportionate share or any premiums or installments thereof due the fund or for failure otherwise to discharge its obligations to the fund when due. Written notice stating the time when the termination will be effective, which time shall be not less than 15 days from the date of notice or such other specific longer period as may be provided in the intrastate agreement or by statute, may be delivered in person or by depositing such notice in the United States mail, to be dispatched by at least first-class mail to the last address of record of the member, and receiving therefor the receipt provided by the United States Postal Service. Such notice may or may not be accompanied by a tender of the unearned premium paid by the member, calculated on a pro rata basis. If such tender is not made simultaneously with such notice, it shall be made within 15 days of notice of termination unless an audit or rate investigation is required, in which case such tender shall be made as soon as practicable.
(c) Any member who either voluntarily terminates membership or is involuntarily terminated from membership in a fund pursuant to this Code section shall remain jointly and severally liable for all obligations of the fund as of the date of such termination, including, but not limited to, any obligations of the fund to pay claims against the fund arising out of any occurrence, incident, or accident which took place during the member's membership in the fund.
(d) Any member who is voluntarily terminated or is involuntarily terminated shall be provided with the data necessary for the replacement workers' compensation insurer to determine or have determined an experience modifier for such former member.
(e) A fund may submit criteria to the Commissioner to be used in the removal of a member from the fund and unless the Commissioner disapproves the criteria in writing in 90 days, the fund shall be authorized to voluntarily or involuntarily remove a member from the fund according to the submitted criteria. The Commissioner, in conjunction with any examination of the fund, shall ensure that the fund is complying with the criteria submitted and approved by the Commissioner.
Each fund created pursuant to this article shall be operated by a board of trustees chosen by the mutual agreement of the participating members of such fund in accordance with this article and with the bylaws of the fund. The appointment of any trustee shall be subject to the approval of the Commissioner.
The board of the fund shall have the following specific powers, together with such other powers granted elsewhere in this article as may be necessary or incidental to effectuate the purposes of this article:
(1) To invest and reinvest funds held by it in accordance with Code Section 34-9-163;
(2) To collect and disburse all money due or payable in accordance with this article;
(3) To employ and contract with banks, corporate trustees, insurance agents, surplus lines brokers, insurers authorized to do business in this state, and approved surplus lines carriers;
(4) To employ and contract with actuaries, accountants, contract administrators, and other agents and employees necessary for the operation of the fund;
(5) To employ an administrator for the fund;
(6) To contract with other persons or public bodies of this state for the use of services or facilities necessary, useful, or incidental to the operation of the fund;
(7) To employ legal counsel;
(8) To execute other contracts necessary or incidental to the operation of the fund;
(9) To pay dividends to or levy assessments on its members;
(10) To purchase bonds and insurance necessary to comply with the requirements of this article and the rules and regulations of the Commissioner; and
(11) To do and perform such other and further acts, not inconsistent with this article or with other laws of this state, which may be necessary for the efficient and proper operation of the fund.
On or before March 1 in each year after it shall have commenced to do business pursuant to a certificate of authority, every fund shall make and file with the Commissioner a report of its affairs and operations during the last preceding calendar year. This annual report shall be made in such form and shall contain such information as the Commissioner may, from time to time, by regulation, prescribe and require to protect the public interest, the interests of the members of the fund, and the interests of the employees of each member. The Commissioner may, by regulation, require such additional periodic reports as the Commissioner may from time to time prescribe as necessary or appropriate to protect the members and their employees and the public, to ensure the solvency of any fund, to inform the members of the fund, and to assure fair dealing in the investments of any fund. The Commissioner may require that the reports be verified under oath by such appropriate officers or agents as the Commissioner may designate by regulation and may require the reports to be furnished to persons or entities the Commissioner determines to have a legitimate interest therein. The Commissioner may, based upon the Commissioner's evaluation of the condition of individual funds, exempt that fund from submitting any report, except the annual report required by this article. Compliance with this Code section shall be a condition of the renewal of a certificate of authority under Code Section 34-9-153.
In determining the financial condition and solvency of a fund and the financial capacity of a fund to pay workers' compensation obligations promptly and otherwise to meet its obligations under this chapter, the Commissioner shall take into consideration the following:
(1) The security deposit required by Code Section 34-9-161;
(2) The surplus required by Code Section 34-9-162;
(3) Such other considerations as the Commissioner may, by rule or regulation, deem necessary or appropriate;
(4) The Commissioner shall charge as liabilities the same reserves as are required of incorporated insurers issuing nonassessable policies on a reserve basis;
(5) The surplus shares of members shall be allowed as assets, except that any premiums delinquent for 90 days shall first be charged against such surplus shares;
(6) The surplus shares of members shall not be charged as a liability;
(7) All premiums delinquent less than 90 days shall be allowed as assets;
(8) An assessment levied upon members and not collected shall not be allowed as an asset;
(9) The computation of reserves shall be based upon premiums other than membership fees and without any deduction for expenses and the compensation of any contract administrator; and
(10) The existence and face value of contracts or policies of excess insurance or other measures of financial capacity as the Commissioner may deem appropriate, including the authority of municipalities, counties, and school boards, to levy and collect taxes pursuant to the laws of this state.
(a)(1) Each fund shall maintain a deposit consisting of securities eligible for deposit by domestic insurance companies in accordance with Chapter 12 of Title 33 in the amount of $200,000.00, which amount equates to the deposits required of a domestic insurance company pursuant to Code Section 33-3-8.
(2) A fund may post a surety bond or bonds in the amount of $250,000.00 to satisfy the securities deposit requirement of paragraph (1) of this subsection. Such bond or bonds shall be acceptable only if issued by an insurer whose form has been approved by the Commissioner.
(3) The security deposit required by this subsection shall be allowed as an asset and shall not be deemed as part of the surplus required by Code Section 34-9-162.
(b) The excess loss funding program of a fund shall be approved by the Commissioner as a condition to the issuance and maintenance of a certificate of authority of any fund created pursuant to this article. An excess loss funding program may consist of excess insurance, self-funding from unobligated surplus of an agency, any combination of the foregoing, or any other funding program acceptable to the Commissioner. A fund may be permitted to purchase excess insurance:
(1) From insurers authorized to transact business in this state; or
(2) From approved surplus lines carriers.
(a) A fund formed pursuant to this article shall possess and thereafter maintain a minimum surplus of not less than $200,000.00.
(b) Any fund established prior to July 1, 1995, which has satisfied the surplus requirement of this Code section by utilization of a surety bond shall replace such bond with cash or cash equivalent within 60 months of the date such bond was submitted to the Commissioner.
(c) Any fund established prior to July 1, 1995, which had received from the Commissioner a waiver of surplus pursuant to subsection (b) of this Code section as it existed prior to July 1, 1995, shall have until July 1, 1998, to replace such waiver with actual surplus and provide evidence of such surplus to the Commissioner.
(d) At the discretion of the board of the fund, any surplus exceeding the requirements of this Code section and the total of all other liabilities of the fund may be returned to the members of the fund. The board of the fund shall notify the Commissioner by letter within ten days following the return of any surplus.
(a) Except as otherwise specifically provided for in this article, the investable assets of a fund shall be invested only in securities or other investments permitted by the laws of this state for the investment of assets constituting the legal reserves of property and casualty insurance companies or in such other securities or investments as the Commissioner may permit such insurers to invest their funds under Title 33. Such investments shall be subject to the same terms, conditions, and limitations which apply to property and casualty insurance companies under Title 33.
(b) For all claims under policies written in the three years immediately preceding the date as of which the statement is made, a fund shall maintain:
(1) Actual loss reserves, incurred but not reported loss reserves, and reserves for aggregate excess insurance which, combined with actual loss and loss expense payments, shall be in an amount at least equal to the loss fund percentage as stated in the fund's excess insurance policy or such higher amounts as required by the Commissioner; or
(2) With the approval of the Commissioner, loss reserves in an amount equal to the greater of the amount established by an independent casualty actuary in accordance with actuarial standards or 45 percent of earned premiums written in each of the three years prior to the date on which the report or statement is to be made, less all loss and loss expense payments made in connection with the claims under policies written in those three years. For the purposes of this paragraph, the term “actuarial standards” means the standards adopted by the Casualty Actuarial Society in its Statement of Principles Regarding Property and Casualty Loss and Loss Adjustment Expense Reserves and the Standards of Practice adopted by the Actuarial Standards Board.
(a) Each member shall pay into the fund its share of the fund's projected obligation for workers' compensation liability, administrative expenses, and other costs incurred by the fund as may be determined by the board of the fund or by the fund's administrator and approved by the board of the fund, all in accordance with this article. The share shall be adjusted by the board of the fund according to the claims experience of each participating member in accordance with criteria set forth in the bylaws of the fund. The premium for each year shall be paid by each member at the beginning of each fund year unless otherwise provided for under the intrastate agreement or under a payment plan developed by the board of the fund and submitted to and approved by the Commissioner. The board of the fund shall make payments to the employees of the members out of the fund for workers' compensation benefits pursuant to and in accordance with the claims procedures set forth in this chapter; and the board of the fund shall determine what, if any, dividends or assessments shall be paid to or levied against the participating members of the fund.
(b) The board of each fund shall establish and implement a loss prevention and loss control program for each member of the fund.
(c) Each member of the fund shall be jointly and severally liable for all legal obligations of the fund, including, but not limited to, any obligations of the fund to pay claims against the fund arising out of any occurrence, incident, or accident covered under this chapter.
(d) Each fund shall be treated as a self-insurer for the purposes of Article 9 of this chapter.
(e) Each fund shall be liable under Code Section 34-9-63 for its share of the expenses of the State Board of Workers' Compensation and, for the purposes of that Code section only, it shall be treated as though it were an insurer.
(f) Each fund may sue and be sued in its own name. Service of process shall be perfected upon the fund by serving its registered Georgia agent for service of process or by otherwise serving the fund in accordance with the laws of this state.
(a) If a fund contracts with an administrator which is not an employee of the fund, the fund and the administrator must enter into a written agreement which shall be subject to review and approval by the Commissioner in accordance with this Code section. The agreement shall set forth the following:
(1) The powers of the administrator;
(2) The general services to be performed by the administrator;
(3) The manner and amount of compensation to be paid to the administrator and any arrangements between the fund and the administrator for the payment of administrative and other expenses incurred in connection with the operation of the fund;
(4) A contractual provision obligating the administrator to obtain and maintain such bonds, deposits, or insurance coverage as may be required to be maintained by this article; and
(5) A requirement that errors and omissions coverage or other appropriate liability insurance in an amount which is not less than that specified by the rules and regulations of the Commissioner be written with an authorized insurer or an eligible surplus lines insurer and be maintained at all times by the administrator.
(b) The agreement may provide for the following:
(1) The right of substitution of the administrator and the revocation of the agreement upon notice to the Commissioner;
(2) Restrictions upon the exercise of power by the administrator; and
(3) Any other lawful provision deemed necessary or appropriate.
(c) The terms of any such agreement shall be reasonable and equitable, and the agreement and any amendments thereto shall be filed with the Commissioner at least 30 days prior to their use. Any such agreement and any and all amendments thereto which have not been specifically disapproved by the Commissioner within 30 days after the filing thereof shall be deemed to be approved.
(d) A copy of the agreement and any and all amendments thereto shall be furnished to each member upon request.
(e) Except as provided in subsection (d) of this Code section, such agreements and amendments shall be confidential and privileged and shall not be released to the public by the Commissioner without the prior written consent of the parties thereto.
Any trustee, officer, or administrator of a fund who receives, collects, disburses, or invests moneys in connection with the activities of the fund shall be responsible for such moneys in a fiduciary capacity.
(a) The Commissioner shall require each administrator to have and maintain a fidelity bond pursuant to Code Section 33-23-102.
(b) Errors and omissions coverage or other appropriate liability insurance in an amount which is not less than that specified by the rules and regulations of the Commissioner shall be maintained at all times by an administrator of a fund; and a certificate by the insurer or other appropriate evidence of such coverage shall be filed with the Commissioner by the fund.
(c) Each administrator shall maintain an office in this state for the payment, processing, and adjustment of the claims of the fund or funds which it represents.
If the Commissioner finds that any fund or its administrator (1) has failed to comply with any provision of this article, (2) is fraudulently operated, (3) is in such condition as to render further fund operations hazardous to the public interest or to the interests of the fund's members and their employees, (4) is financially unable to meet its obligations and claims as they come due, or (5) has violated any other provision of law, he may apply to the Superior Court of Fulton County for an injunction. The court may forthwith issue a temporary injunction restraining the transaction of any business by the fund; and, after a full hearing, it may make the injunction permanent and appoint one or more receivers to take possession of the books, papers, moneys, and other assets of the fund in order to settle its affairs and distribute its funds to those entitled thereto, subject to such rules and orders as the court may prescribe. If it appears that a crime has been committed in connection with the administration or management of any fund, the Attorney General may pursue the appropriate criminal action.
(a) The Commissioner may revoke, suspend, or refuse to issue or renew the certificate of authority of any fund when and if, after investigation, he finds that:
(1) Any certificate of authority issued to the fund was obtained by fraud;
(2) There was any material misrepresentation in the application for the certificate of authority;
(3) The fund or its administrators have otherwise shown themselves to be untrustworthy or incompetent;
(4) Such fund or its administrator has violated any of the provisions of this article or the rules and regulations of the Commissioner promulgated pursuant to this article;
(5) The fund or its administrator has misappropriated, converted, illegally withheld, or refused to pay over upon proper demand any moneys which belong to a member, an employee of a member, or a person otherwise entitled thereto and which have been entrusted to the fund or its administrator in its fiduciary capacities; or
(6) The fund is found to be in an unsound condition or in such condition as to render its future transaction of business in this state hazardous to its members and their employees.
(b) Before the Commissioner shall revoke, suspend, or refuse to issue or renew the certificate of authority of any fund, he shall give the fund an opportunity to be fully heard and to introduce evidence in its behalf. In lieu of revoking, suspending, or refusing to issue or renew the certificate of authority of any fund for any of the causes enumerated in this Code section, after hearing as provided in this article, the Commissioner may place the fund and its administrator on probation for a period of time not to exceed one year, may fine the fund not more than $1,000.00 for each offense, or both, when, in his judgment, he finds that the public interest and the interests of the fund's members and their employees would not be harmed by the continued operation of the fund. The amount of any such penalty shall be paid by the fund to the Commissioner for the use of the state. At any hearing provided for by this Code section, the Commissioner shall have authority to administer oaths to witnesses. Any witness testifying falsely after taking an oath commits the offense of perjury.
(c) No fund shall be voluntarily dissolved or otherwise voluntarily cease to function unless:
(1) Written approval is first obtained from the Commissioner; and
(2) The Commissioner determines that all claims and other legal obligations of the fund have been paid or that adequate provisions for such payment have been made.
Funds organized and operating pursuant to this article shall be exempt from state and local premium taxes.
(a) The Commissioner shall have the authority to require and conduct periodic examinations to verify the solvency of funds in the same manner and under the same conditions as insurers are examined under Chapter 2 of Title 33, except that each fund shall be examined at least once each five years. The Commissioner shall have the authority to require information to substantiate that the sponsoring association is engaged in substantial activity for the benefit of its members in accordance with the definitions of Code Section 34-9-151, but that authority is not to be construed as the right to regulate or inspect that association or its members.
(b) The Commissioner is authorized to contract with private examiners to conduct examinations pursuant to subsection (a) of this Code section. If employees of the department conduct the examinations, the fund being examined shall pay to the department the reasonable expense of conducting the examination. If contract examiners conduct the examination, the fund being examined shall, at the discretion of the Commissioner, pay the costs so incurred either to the department or to the contracting party. The Commissioner may use appropriated funds to conduct the examinations and shall provide by regulation for matters relative to the conduct of such examinations, including, without limitation, the expenditure of available funds for that purpose.
(a) If the assets of a fund are at any time insufficient to enable a fund to discharge its legal liabilities and other obligations and to maintain the reserves and surplus required of it under this article, it shall forthwith make up the deficiency or levy an assessment upon its members for the amount needed to make up the deficiency.
(b) If the fund fails to make up the deficiency or to make the required assessment of its members within 30 days after the Commissioner orders it to do so or if the deficiency is not fully made up within 60 days after the date on which any such assessment is made or within such longer period of time as may be specified by the Commissioner, the fund shall be deemed to be insolvent and shall be proceeded against in the same manner as are domestic insurers under Chapter 37 of Title 33; and the Commissioner shall have the same powers and limitations in such proceedings as are provided under that chapter, except as otherwise provided for in this article.
(c) If the liquidation of a fund is ordered, an assessment shall be levied upon its members for such an amount as the Commissioner determines to be necessary to discharge all liabilities of the fund, including the reasonable costs of liquidation.
The Commissioner shall have authority to promulgate rules and regulations to effectuate the provisions of this article.
Any party which is aggrieved by any act, determination, order, or any other action of the Commissioner taken pursuant to this article may request a hearing before the Commissioner or otherwise proceed in accordance with Chapter 13 of Title 50, the “Georgia Administrative Procedure Act.”
Except as otherwise provided in this article, service of process and venue shall be governed by the applicable provisions of Titles 9 and 14.
Notwithstanding any provisions of this article which might be construed to the contrary, no fund shall be considered an insurer for the purposes of Title 33 except for the limited purposes specified in this article; and, specifically, no fund shall be considered to be an insurer for the purposes of Chapter 36 of Title 33, the “Georgia Insurers Insolvency Pool Act,” or other laws of this state which relate to insurers or insurance companies.
Nothing in this article shall be construed to apply to employers who elect to self-insure individually for workers' compensation pursuant to Code Section 34-9-121 and the rules of the State Board of Workers' Compensation or pursuant to any reciprocal agreements or contracts of indemnity executed prior to March 8, 1960, creating funds for the purpose of satisfying the obligations of self-insured employers under this chapter.
Chapter 6 of Title 33 shall apply to “funds,” as defined in this article; and, for the purpose of determining whether a violation of that chapter has occurred, a member and its employees shall be deemed to be “insureds” or “policyholders,” as used in the above-mentioned chapter, whichever is applicable. In enforcing this Code section, the Commissioner shall be deemed to possess the same powers and be subject to the same restrictions as are applicable to the Commissioner under Chapter 6 of Title 33.
(a) An officer, trustee, administrator, member of any committee, or employee of a fund who is charged with the duty of investing or handling the fund's assets shall not deposit or invest such assets except in the name of the fund; shall not borrow the assets of such fund; shall not be pecuniarily interested in any loan, pledge of deposit, security, investment, sale, purchase, exchange, reinsurance, or other similar transaction or property of such fund; and shall not take or receive for his or her own use any fee, brokerage, commission, gift, or other consideration for or on account of any such transaction made by or on behalf of such fund.
(b) No fund shall guarantee any financial obligation of any of its officers, trustees, or administrators.
(c) This Code section shall not prohibit a trustee, officer, member of a committee, or employee of a fund from being covered by the fund as an employee of a member and enjoying the usual rights so provided for employees of members.
(d) The Commissioner shall, by regulation, define and permit additional exceptions to the prohibition contained in subsection (a) of this Code section solely to enable payment of reasonable compensation to a trustee or administrator who is not otherwise an officer or employee of the fund or to a corporation or firm in which a trustee or administrator is interested, for necessary services performed or sales or purchases made to or for the fund in the ordinary course of the fund's business and in the usual private professional or business capacity of the trustee or administrator or of the corporation or firm.
(a) The Commissioner may, after a hearing, impose upon a fund an administrative fine if he finds that the fund, through the acts of its officers, employees, agents, or representatives, has with such frequency as to indicate its general business practice within this state:
(1) Refused, without just cause, to pay proper claims arising under workers' compensation coverage provided by the fund; or
(2) Compelled, without just cause, employee claimants of members or other persons entitled to the proceeds of the workers' compensation coverage provided by the fund to accept less than the amount due them or to bring an action against the fund to secure full payment or settlement thereof.
(b) The administrative fine imposed for violations set forth in subsection (a) of this Code section shall not exceed $1,000.00 for each act of misconduct constituting a violation of this Code section; provided, however, that a fine of not more than $5,000.00 may be imposed for each act of willful misconduct constituting a violation of this Code section.
(c) In addition to all other penalties provided for under this article, the Commissioner shall have the authority to place any fund on probation for a period of time not to exceed one year for each and every act or violation of this article or of the rules and regulations or orders of the Commissioner issued pursuant hereto and may subject such fund to a monetary penalty of up to $1,000.00 for each and every act in violation of this article or of the rules, regulations, or orders of the Commissioner issued pursuant hereto. If the fund or its administrator knew or reasonably should have known that the fund was in violation of this article or of the rules and regulations or orders of the Commissioner, the monetary penalty provided for in this Code section may be increased to an amount up to $5,000.00 for each and every act or violation.
Except where otherwise specified in this article, funds established pursuant to this article shall have until July 1, 1998, to comply with the requirements of this article.
(a)(1) For all injuries occurring on or before June 30, 2013, and for injuries occurring on or after July 1, 2013, designated as catastrophic injuries pursuant to subsection (g) of Code Section 34-9-200.1, the employer shall furnish the employee entitled to benefits under this chapter such medical, surgical, and hospital care and other treatment, items, and services which are prescribed by a licensed physician, including medical and surgical supplies, artificial members, and prosthetic devices and aids damaged or destroyed in a compensable accident, which in the judgment of the State Board of Workers' Compensation shall be reasonably required and appear likely to effect a cure, give relief, or restore the employee to suitable employment.
(2) For all injuries occurring on or after July 1, 2013, that are not designated as catastrophic injuries pursuant to subsection (g) of Code Section 34-9-200.1, the employer shall, for a maximum period of 400 weeks from the date of injury, furnish the employee entitled to benefits under this chapter such medical, surgical, and hospital care and other treatment, items, and services which are prescribed by a licensed physician, including medical and surgical supplies, artificial members, and prosthetic devices and aids damaged or destroyed in a compensable accident, which in the judgment of the State Board of Workers' Compensation shall be reasonably required and appear likely to effect a cure, give relief, or restore the employee to suitable employment.
(3)(A) For injuries arising on or after July 1, 2013, that are not designated as catastrophic injuries pursuant to subsection (g) of Code Section 34-9-200.1, the maximum period of 400 weeks referenced in paragraph (2) of this subsection shall not be applicable to the following care, treatment, services, and items when prescribed by an authorized physician:
(i) Maintenance, repair, revision, replacement, or removal of any prosthetic device, provided that the prosthetic device was originally furnished within 400 weeks of the date of injury or occupational disease arising out of and in the course of employment;
(ii) Maintenance, repair, revision, replacement, or removal of a spinal cord stimulator or intrathecal pump device, provided that such items were originally furnished within 400 weeks of the date of injury or occupational disease arising out of and in the course of employment; and
(iii) Maintenance, repair, revision, replacement, or removal of durable medical equipment, orthotics, corrective eyeglasses, or hearing aids, provided that such items were originally furnished within 400 weeks of the date of injury or occupational disease arising out of and in the course of employment.
(B) For the purposes of this subsection, the term:
(i) “Durable medical equipment” means an apparatus that provides therapeutic benefits, is primarily and customarily used to serve a medical purpose, and is reusable and appropriate for use in the home. Such term includes, but shall not be limited to, manual and electric wheelchairs, beds and mattresses, traction equipment, canes, crutches, walkers, oxygen, and nebulizers.
(ii) “Prosthetic device” means an artificial device that has, in whole or in part, replaced a joint lost or damaged or other body part lost or damaged as a result of an injury or occupational disease arising out of and in the course of employment.
(b) Upon the request of an employee or an employer, or upon its own motion, the board may in its judgment, after notice is given in writing of the request to all interested parties and allowing any interested party 15 days from the date of said notice to file in writing its objections to the request, order a change of physician or treatment and designate other treatment or another physician; and, in such case, the expenses shall be borne by the employer upon the same terms and conditions as provided in subsection (a) of this Code section.
(c) As long as an employee is receiving compensation, he or she shall submit himself or herself to examination by the authorized treating physician at reasonable times. If the employee refuses to submit himself or herself to or in any way obstructs such an examination requested by and provided for by the employer, upon order of the board his or her right to compensation shall be suspended until such refusal or objection ceases and no compensation shall at any time be payable for the period of suspension unless in the opinion of the board the circumstances justify the refusal or obstruction.
(d) If an emergency arises and the employer fails to provide the medical or other care as specified in this Code section, or if other compelling reasons force the employee to seek temporary care, the employee is authorized to seek such temporary care as may be necessary. The employer shall pay the reasonable costs of the temporary care if ordered by the board.
(a) In the event of a catastrophic injury, the employer shall furnish the employee entitled to benefits under this chapter with reasonable and necessary rehabilitation services. The employer either shall appoint a registered rehabilitation supplier or give reasons why rehabilitation is not necessary within 48 hours of the employer's acceptance of the injury as compensable or notification of a final determination of compensability, whichever occurs later. If it is determined that rehabilitation is required under this Code section, the employer shall have a period of 20 days from the date of notification of that determination within which to select a rehabilitation supplier. If the employer fails to select a rehabilitation supplier within such time period, a rehabilitation supplier shall be appointed by the board to provide services at the expense of the employer. The rehabilitation supplier appointed to a catastrophic injury case shall have the expertise which, in the judgment of the board, is necessary to provide rehabilitation services in such case.
(b) A change in the designated rehabilitation supplier shall be made only with approval of the board. Any party to the case may request the board for a change in rehabilitation supplier. The request shall be in a form and manner prescribed by rule of the board and copies of the request shall be served on all parties and each involved rehabilitation supplier. Written objections to the request for a change in rehabilitation supplier may be filed with the board during the 15 day period following the date shown on the certificate of service and the board shall resolve such objections.
(c) The refusal of the employee without reasonable cause to accept rehabilitation shall entitle the board in its discretion to suspend or reduce the compensation otherwise payable to such employee unless, in the opinion of the board, the circumstances justify the refusal, as determined in the manner provided under Code Section 34-9-100. The board may require recommendations from a panel of specialists in determining whether or not suspension or reduction of compensation is justified.
(d) Fees of rehabilitation suppliers and the reasonableness and necessity of their services shall be subject to the approval of the State Board of Workers' Compensation. All rehabilitation suppliers shall file with the board all forms required by the board. No rehabilitation supplier shall bill an employee for authorized rehabilitation services. The board may require recommendations from a panel of appropriate peers of the rehabilitation supplier in determining whether the fees submitted and necessity of services rendered were reasonable. The recommendations of the panel of appropriate peers shall be evidence of the reasonableness of fees and necessity of service which the board may consider.
(e) Failure of the employee's attorney to cooperate with the rehabilitation supplier may result in the suspension or reduction of the fees provided in Code Section 34-9-108 if, in the judgment of the board, the failure to cooperate hindered the restoration of the employee to suitable employment.
(f) Any rehabilitation supplier shall have a certification or license as set forth by board rule and shall be registered with the State Board of Workers' Compensation. The board shall have the authority to refuse to register an applicant as a rehabilitation supplier, to remove a rehabilitation supplier from a case, to require corrective actions of a rehabilitation supplier, to assess penalties as provided under Code Section 34-9-18 against a rehabilitation supplier, or to suspend or revoke the board registration of a rehabilitation supplier for failure to comply with this chapter or the rules and regulations of the board or the standards of ethics of the applicable licensing or certifying body. Revocation of registration shall be determined in a hearing before an administrative law judge and an adverse decision may be appealed as provided under Code Sections 34-9-103 and 34-9-105. The board shall establish by rule based upon recognized qualifications, educational standards, and competency in the field of rehabilitation suppliers, as determined and set out by the board, those persons who will be authorized to provide rehabilitation services to injured employees under this chapter.
(g) “Catastrophic injury” means any injury which is one of the following:
(1) Spinal cord injury involving severe paralysis of an arm, a leg, or the trunk;
(2) Amputation of an arm, a hand, a foot, or a leg involving the effective loss of use of that appendage;
(3) Severe brain or closed head injury as evidenced by:
(A) Severe sensory or motor disturbances;
(B) Severe communication disturbances;
(C) Severe complex integrated disturbances of cerebral function;
(D) Severe disturbances of consciousness;
(E) Severe episodic neurological disorders; or
(F) Other conditions at least as severe in nature as any condition provided in subparagraphs (A) through (E) of this paragraph;
(4) Second or third degree burns over 25 percent of the body as a whole or third degree burns to 5 percent or more of the face or hands;
(5) Total or industrial blindness; or
(6)(A) Any other injury of a nature and severity that prevents the employee from being able to perform his or her prior work and any work available in substantial numbers within the national economy for which such employee is otherwise qualified; provided, however, if the injury has not already been accepted as a catastrophic injury by the employer and the authorized treating physician has released the employee to return to work with restrictions, there shall be a rebuttable presumption, during a period not to exceed 130 weeks from the date of injury, that the injury is not a catastrophic injury. During such period, in determining whether an injury is catastrophic, the board shall give consideration to all relevant factors including, but not limited to, the number of hours for which an employee has been released. A decision granting or denying disability income benefits under Title II 1 or supplemental security income benefits under Title XVI 2 of the Social Security Act shall be admissible in evidence and the board shall give the evidence the consideration and deference due under the circumstances regarding the issue of whether the injury is a catastrophic injury; provided, however, that no presumption shall be created by any decision granting or denying disability income benefits under Title II or supplemental security income benefits under Title XVI of the Social Security Act.
(B) Once an employee who is designated as having a catastrophic injury under this subsection has reached the age of eligibility for retirement benefits as defined in 42 U.S.C. Section 416(l), as amended March 2, 2004, there shall arise a rebuttable presumption that the injury is no longer a catastrophic injury; provided, however, that this presumption shall not arise upon reaching early retirement age as defined in 42 U.S.C. Section 416(1), as amended March 2, 2004. When using this presumption, a determination that the injury is no longer catastrophic can only be made by the board after it has conducted an evidentiary hearing.
The rehabilitation supplier appointed to a catastrophic injury case shall have the expertise which, in the judgment of the board, is necessary to provide rehabilitation services in such case.
(h) In the event of an injury that is not catastrophic, the parties may elect that the employer will provide a rehabilitation supplier on a voluntary basis for so long as the parties agree in writing. The rehabilitation supplier utilized by the parties must hold one of the certifications or licenses specified in subsection (f) of this Code section and be registered with the State Board of Workers' Compensation or have the expertise which, in the judgment of the board, is necessary to provide rehabilitation services in the case.
(i) Subsequent to either an employer's designating an employee's injury as catastrophic or a board determination as to the catastrophic or noncatastrophic nature of an employee's injury, either party may request a new determination, based on reasonable grounds, as to the catastrophic or noncatastrophic nature of the employee's injury.
1 42 USCA § 401, et seq.
2 42 USCA § 1381, et seq.
(a) As used in this Code section, the term “physician” shall include any person licensed to practice a healing art and any remedial treatment and care in the State of Georgia.
(b) The employer may satisfy the requirements for furnishing medical care under Code Section 34-9-200 in one of the following manners:
(1) The employer shall maintain a list of at least six physicians or professional associations or corporations of physicians who are reasonably accessible to the employees; provided, however, that the board may grant exceptions to the required size of the panel where it is demonstrated that more than four physicians or groups of physicians are not reasonably accessible. This list shall be known as the “Panel of Physicians.” At least one of the physicians shall practice the specialty of orthopedic surgery. Not more than two industrial clinics shall be included on the panel. An employee may accept the services of a physician selected by the employer from the panel or may select another physician from the panel. The physicians selected under this subsection from the panel may arrange for any consultation, referral, and extraordinary or other specialized medical services as the nature of the injury shall require without prior authorization from the board; provided, however, that any medical practitioner providing services as arranged by a primary authorized treating physician under this subsection shall not be permitted to arrange for any additional referrals. The employee may make one change from one physician to another on the same panel without prior authorization of the board; or
(2) A self-insured employer or the workers' compensation insurer of an employer may contract with a managed care organization certified pursuant to Code Section 34-9-208 for medical services required by this chapter to be provided to injured employees. Medical services provided under this paragraph shall be known as “Managed Care Organization Procedures.” Those employees who are subject to the contract shall receive medical services in the manner prescribed in the contract. Each such contract shall comply with the certification standards provided in Code Section 34-9-208. Self-insured employers or workers' compensation insurers who contract with a managed care organization for medical services shall give notice to the employees of the eligible medical service providers and such other information regarding the contract and manner of receiving medical services as the board may prescribe.
(c) Consistent with the method elected under subsection (b) of this Code section, the employer shall post the Panel of Physicians or Managed Care Organization Procedures in prominent places upon the business premises and otherwise take all reasonable measures to ensure that employees:
(1) Understand the function of the panel or managed care organization procedures and the employee's right to select a physician therefrom in case of injury; and
(2) Are given appropriate assistance in contacting panel or managed care organization members when necessary.
(d) Notwithstanding the other provisions contained in this Code section, if an inability to make a selection of a physician as prescribed in this Code section is the result of an emergency or similarly justifiable reason, the selection requirements of this Code section shall not apply as long as such inability persists.
(e) Upon the request of an employee or an employer, or upon its own motion, the board may order a change of physician or treatment as provided under Code Section 34-9-200.
(f) If the employer fails to provide any of the procedures for selection of physicians as set forth in subsection (c) of this Code section, an employee may select any physician to render service at the expense of the employer.
(g) The board shall promulgate rules and regulations to ensure, whenever feasible, the participation of minority physicians on panels of physicians maintained by employers or in managed care organizations pursuant to this Code section.
(a) After an injury and as long as he claims compensation, the employee, if so requested by his or her employer, shall submit himself or herself to examination, at reasonable times and places, by a duly qualified physician or surgeon designated and paid by the employer or the board. Such examination may include physical, psychiatric, and psychological examinations.
(b) The employee shall have the right to have present at such examination any duly qualified physician or surgeon provided and paid by him. No fact communicated to or otherwise learned by any physician or surgeon who may have attended or examined the employee or who may have been present at any examination shall be privileged either in hearings provided for by this chapter or in any action at law brought to recover damages against any employer who may have accepted the compensation provisions of this chapter.
(c) If the employee refuses to submit himself to or in any way obstructs such examination requested by and provided for by the employer, his right to compensation and his right to take or prosecute any proceedings under this chapter shall be suspended until such refusal or objection ceases; and no compensation shall at any time be payable for the period of suspension unless in the opinion of the board the circumstances justify the refusal or obstruction.
(d) The employer or the board shall have the right in any case of death to require an autopsy at the expense of the party requesting the same.
(e) Notwithstanding the rights afforded an employee under Code Section 34-9-201, the employee, after an accepted compensable injury and within 120 days of receipt of any income benefits, shall have the right to one examination at a reasonable time and place, within this state or within 50 miles of the employee's residence, by a duly qualified physician or surgeon designated by the employee and to be paid for by the employer. Such examination, of which the employer or insurer shall be notified in writing in advance, shall not repeat any diagnostic procedures which have been performed since the date of the employee's injury unless the costs of such diagnostic procedures which are in excess of $250.00 are paid for by a party other than the employer or the insurer. Such examination may include physical, psychiatric, and psychological examinations.
(a) The pecuniary liability of the employer for medical, surgical, hospital service, or other treatment required, when ordered by the board, shall be limited to such charges as prevail in the State of Georgia for similar treatment of injured persons of a like standard of living when such treatment is paid for by the injured persons.
(b) The employer shall not be liable in damages for malpractice by a physician or surgeon furnished pursuant to this chapter, but the consequences of any malpractice shall be deemed part of the injury resulting from the accident and shall be compensated for as such.
(c)(1) All reasonable charges for medical, surgical, hospital, and pharmacy goods and services shall be payable by the employer or its workers' compensation insurer within 30 days from the date that the employer or the insurer receives the charges and reports required by the board; provided, however, that the reimbursement for any charges for mileage incurred by the employee shall be paid within 15 days from the date that the employer or the insurer receives the charges and reports required by the board. The employer or insurer shall, within 30 days after receipt of charges and reports for health care goods or services or within 15 days after receipt of charges and reports for mileage incurred by the employee, mail to the provider of such health care goods or services or the employee who incurred the mileage the payment of such charges or a letter or other written notice that states the reasons the employer or insurer has for not paying the claim, either in whole or in part, and which also gives the person so notified a written itemization of any documents or other information needed to process the claim or any portion thereof.
(2) The failure by the employee or the health care goods or services provider to include with its submission of charges any reports or other documents required by the board shall constitute a defense for the employer's or insurer's failure to pay the submitted charges within 30 days of receipt of the charges for health care goods or services or within 15 days of receipt of the charges for mileage incurred by the employee. However, if the employer or insurer fails to send the employee or the health care goods or services provider the requisite notice indicating a need for further documentation within 30 days of receipt of the charges for health care goods or services or within 15 days of receipt of the charges for mileage incurred by the employee, the employer and insurer shall be deemed to have waived the right to defend a claim for failure to pay such charges in a timely fashion on the grounds that the charges were not appropriately accompanied by required reports. Such waiver shall not extend to any other defense the employer and insurer may have with respect to a claim of untimely payment.
(3) If any charges for health care goods or services are not paid when due, or any reimbursement for health care goods or services paid by the employee or any charges for mileage incurred by the employee are not paid when due, penalties shall be added to such charges and paid at the same time as and in addition to the charges claimed for the health care goods or services. For any payment of charges paid more than 30 days after their due date, but paid within 60 days of such date, there shall be added to such charges an amount equal to 10 percent of the charges. For any payment of charges paid more than 60 days after their due date, but paid within 90 days of such date, there shall be added to such charges an amount equal to 20 percent of the charges. For any charges not paid within 90 days of their due date, in addition to the 20 percent add-on penalty, the employer or insurer shall pay interest on that combined sum in an amount equal to 12 percent per annum from the ninety-first day after the date the charges were due until full payment is made. All such penalties and interest shall be paid to the provider of the health care goods or services.
(4) Notwithstanding any other provision of this subsection, if the employee or the provider of health care goods or services fails to submit its charges to the employer or its workers' compensation insurer within one year of the date of service or the issuance of such goods or services or, in the case of an employee, within one year of the date of incurring mileage expenses, then the provider shall be deemed to have waived its right to collect such charges from the employer, its workers' compensation insurer, and the employee; and, in regard to mileage expenses, the employee shall be deemed to have waived his or her right to collect such charges from the employer or its workers' compensation insurer.
(a) No compensation shall be payable for the death or disability of an employee if his or her death is caused by or, insofar as his or her disability, may be aggravated, caused, or continued by a subsequent nonwork related injury which breaks the chain of causation between the compensable injury and the employee's disability.
(b) It is the intent of the General Assembly that this Code section codify existing case law.
(a) Fees of physicians, charges of hospitals, charges for prescription drugs, and charges for other items and services under this chapter shall be subject to the approval of the State Board of Workers' Compensation. No physician, hospital, or other provider of services shall be entitled to collect any fee unless reports required by the board have been made.
(b) Annually, the board shall publish in print or electronically a list by geographical location of usual, customary, and reasonable charges for all medical services provided under subsection (a) of this Code section. The board may consult with medical specialists in preparing said list. Fees within this list shall be presumed reasonable. No physician or hospital or medical supplier shall bill the employee for authorized medical treatment; provided, however, that if an employee fails to notify a physician, hospital, or medical supplier that he or she is being treated for an injury covered by workers' compensation insurance, such provider of medical services shall not be civilly liable to any person for erroneous billing for such covered treatment if the billing error is corrected by the provider upon notice of the same. The board may require recommendations from a panel of appropriate peers of the physician or hospital or other authorized medical supplier in determining whether the fees submitted and necessity of services rendered were reasonable. The recommendations of the panel of appropriate peers shall be evidence of the reasonableness of fees and necessity of service which the board shall consider in its determinations.
(c) Any party requesting peer review pursuant to the provisions of this Code section shall pay to the board such filing costs for peer review as established by the board; provided, however, that the prevailing party in any peer review request shall be entitled to recover its filing costs, if any, from the party which does not prevail.
(a) Any party to a claim under this chapter, a group insurance company, or other health care provider who covers the costs of medical treatment for a person who subsequently files a claim under this chapter may give notice in writing to the board at any time during the pendency of the claim that such provider is or should be a party at interest as a result of payments made in the employee's behalf for medical treatment.
(b) In cases where a group insurance company or other health care provider covers the costs of medical treatment for a person who subsequently files a claim and is entitled to benefits under this chapter, the board shall be authorized to order the employer or workers' compensation insurance carrier to repay the group insurance company or other health care provider the funds it has expended for the claimant's medical treatment, provided that such employer or its workers' compensation insurance carrier is liable under this chapter for such medical treatment and provided, further, that such other provider has become or should be a party at interest pursuant to the provisions of subsection (a) of this Code section. The employer or its workers' compensation insurance carrier deemed liable for such medical treatment shall not be obligated to pay such sums directly to the employee unless, and only to the extent that, it is proven that the employee has paid for such medical treatment himself.
(a) When an employee has submitted a claim for workers' compensation benefits or is receiving payment of weekly income benefits or the employer has paid any medical expenses, that employee shall be deemed to have waived any privilege or confidentiality concerning any communications related to the claim or history or treatment of injury arising from the incident that the employee has had with any physician, including, but not limited to, communications with psychiatrists or psychologists. This waiver shall apply to the employee's medical history with respect to any condition or complaint reasonably related to the condition for which such employee claims compensation. Notwithstanding any other provision of law to the contrary, when requested by the employer, any physician who has examined, treated, or tested the employee or consulted about the employee shall provide within a reasonable time and for a reasonable charge all information and records related to the examination, treatment, testing, or consultation concerning the employee.
(b) When an employee has submitted a claim for workers' compensation benefits or is receiving payment of weekly income benefits or the employer has paid any medical expenses, the employee, upon request, shall provide the employer with a signed release for medical records and information related to the claim or history or treatment of injury arising from the incident, including information related to the treatment for any mental condition or drug or alcohol abuse and to such employee's medical history with respect to any condition or complaint reasonably related to the condition for which such employee claims compensation. Said release shall designate the provider to whom the release is directed. If a hearing is pending, any release shall expire on the date of the hearing.
(c) If the employee refuses to provide a signed release for medical information as required by this Code section and, in the opinion of the board, the refusal was not justified under the terms of this Code section, then such employee shall not be entitled to any compensation at any time during the continuance of such refusal or to a hearing on the issues of compensability arising from the claim.
(a) Any health care provider or group of medical service providers may make written application to the board to become certified to provide managed care to injured employees for injuries and diseases compensable under this chapter.
(b) Each application for certification shall be accompanied by a reasonable fee prescribed by the board. A certificate is valid for such period as the board may prescribe unless sooner revoked or suspended.
(c) Application for certification shall be made in such form and manner and shall set forth such information regarding the proposed plan for providing services as the board may prescribe. The information shall include, but not be limited to:
(1) A list of the names of all individuals who will provide services under the managed care plan, together with appropriate evidence of compliance with any licensing or certification requirements for that individual to practice in this state;
(2) A description of the times, places, and manner of providing services under the plan;
(3) A description of the times, places, and manner of providing other related optional services the applicants wish to provide; and
(4) Satisfactory evidence of ability to comply with any financial requirements to ensure delivery of service in accordance with the plan which the board may prescribe.
(d) The board shall certify health care providers or a group of medical service providers to provide managed care under a plan if the board finds that the plan:
(1) Proposes to provide services that meet quality, continuity, and other treatment standards prescribed by the board and will provide all medical and health care services that may be required by this chapter in a manner that is timely, effective, and convenient for the employee;
(2) Provides appropriate financial incentives to reduce service costs and utilization without sacrificing the quality of service;
(3) Provides adequate methods of peer review, service utilization review, and dispute resolution to prevent inappropriate or excessive treatment, to exclude from participation in the plan those individuals who violate these treatment standards, and to provide for the resolution of such medical disputes as the board considers appropriate;
(4) Provides a program involving cooperative efforts by the employees, the employer, and the managed care organization to promote consultative and other services that will contribute to workplace health and safety and early return to work for injured employees;
(5) Provides a timely and accurate method of reporting to the board necessary information regarding medical and health care service costs and utilization to enable the board to determine the effectiveness of the plan; and
(6) Complies with any other requirement the board determines is necessary to provide quality medical services and health care to injured workers at a reasonable cost.
(e) The board shall refuse to certify or may revoke or suspend the certification of any health care provider or group of medical service providers to provide managed care if the members of the board find that:
(1) The plan for providing medical or health care services fails to meet the requirements of this Code section; or
(2) Service under the plan is not being provided in accordance with the terms of a certified plan.
(f) Utilization review, quality assurance, and peer review activities pursuant to this Code section shall be subject to the review of the board or the board's designated representatives. Data generated by or received in connection with these activities, including written reports, notes, or records of any such activities, or of the board's review thereof, shall be confidential and shall not be disclosed by the board except as considered necessary by the board in the administration of this chapter. The board may report professional misconduct to an appropriate licensing authority.
(g) No data generated by utilization review, quality assurance, or peer review activities pursuant to this Code section or the board's review thereof shall be used in any action, suit, or proceeding except to the extent considered necessary by the board in the administration of this chapter.
(h) A person participating in utilization review, quality assurance, or peer review activities pursuant to this Code section shall not be examined as to any communication made in the course of such activities or the findings thereof, nor shall any personnel be subject to an action for civil damage for affirmative actions taken or statements made in good faith.
No compensation shall be allowed for the first seven calendar days of incapacity resulting from an injury, including the day of the injury, except the benefits provided for in Code Section 34-9-200; provided, however, that, if an employee is incapacitated for 21 consecutive days following an injury, compensation shall be paid for such first seven calendar days of incapacity.
(a) Income benefits shall be paid periodically, promptly, and directly to the person entitled thereto, without an award, except where liability is controverted by the employer. Payments shall be made in cash, by negotiable instrument, or, upon agreement of the parties, by electronic funds transfer.
(b) The first payment of income benefits shall become due on the twenty-first day after the employer has knowledge of the injury or death, on which day all income benefits then due shall be paid. Thereafter, income benefits shall be due and payable in weekly installments; provided, however, that the board may, in its discretion, authorize payments to be made in different installments if it determines that this would be beneficial to all parties concerned. Such weekly payments shall be considered to be paid when due when mailed from within the State of Georgia to the address specified by the employee or to the address of record according to the board. Such weekly payments shall be considered to be paid when due when mailed from outside the State of Georgia no later than three days prior to the due date to the address specified by the employee or the address of record according to the board. Such weekly payments shall be considered to be paid when due at the time they are made by electronic funds transfer to an account specified by the employee.
(c) Upon making the first payment and upon suspension of payment for any cause, the employer shall immediately notify the board and the employee, in accordance with forms prescribed by the board, that payment of income benefits has begun or has been suspended, as the case may be.
(d) If the employer controverts the right to compensation, it shall file with the board, on or before the twenty-first day after knowledge of the alleged injury or death, a notice in accordance with the form prescribed by the board, stating that the right of compensation is controverted and stating the name of the claimant, the name of the employer, the date of the alleged injury or death, and the ground upon which the right to compensation is controverted.
(e) If any income benefits payable without an award are not paid when due, there shall be added to the accrued income benefits an amount equal to 15 percent thereof, which shall be paid at the same time as, but in addition to, the accrued income benefits unless notice is filed under subsection (d) of this Code section or unless this nonpayment is excused by the board after a showing by the employer that owing to conditions beyond control of the employer the income benefits could not be paid within the period prescribed.
(f) If income benefits payable under the terms of an award are not paid within 20 days after becoming due, there shall be added to the accrued income benefits an amount equal to 20 percent thereof, which shall be paid at the same time as, but in addition to, the accrued benefits unless review of the award is granted by the board or unless this nonpayment is excused by the board after a showing by the employer that due to conditions beyond the control of the employer the income benefits could not be paid within the period prescribed.
(g) Within 30 days after final payment of compensation, the employer shall send to the board a notice in accordance with the form prescribed by the board, stating that final payment has been made and stating the total amount of compensation paid, the name of the employee and any other person to whom compensation has been paid, the date of the injury or death, and the date to which income benefits have been paid.
(h) Where compensation is being paid without an award, the right to compensation shall not be controverted except upon the grounds of change in condition or newly discovered evidence unless notice to controvert is filed with the board within 60 days of the due date of first payment of compensation.
(i) Where compensation is being paid with or without an award and an employer or insurer elects to controvert on the grounds of a change in condition or newly discovered evidence, the employer shall, not later than ten days prior to the due date of the first omitted payment of income benefits, file with the board and the employee or beneficiary a notice to controvert the claim in the manner prescribed by the board.
(j) The board or any administrative law judge shall issue such orders as may be necessary to enforce the penalty provisions of this Code section.
(a) Upon the application of any party when benefits have been continued for a period of not less than 26 weeks, if the board determines that it is for the best interest of the claimant to prevent extreme hardship or is essential to the rehabilitation of the claimant, the board may order that the liability of the employer for future income benefits be discharged by the payment of a lump sum equal to the sum of all future payments, reduced to their present value upon the basis of interest calculated at 5 percent per annum.
(b) Under the same requirements of subsection (a) of this Code section, the board may order the employer to make advance payments of a part of the future income benefits by payment of a lump sum equal to such part of future payments. The repayment of partial lump sum advance payments, together with interest of 5 percent per annum, may be accomplished by reducing the period of payment or reducing the weekly benefit, or both, as may be directed by the board.
Whenever the board deems it expedient, any lump sum, subject to the provisions of Code Section 34-9-222, or final settlement, subject to the provisions of Code Section 34-9-15, shall be paid by the employer to some suitable person or corporation appointed by the superior court of the county wherein the accident occurred or the original hearing was held as trustee to administer such payment for the benefit of the person or persons entitled thereto in the manner provided by the board. The receipt by such trustees of the amount so paid shall discharge the employer or anyone else who is liable therefor.
Whenever any employee whose injury or death is compensable under this chapter shall at the time of the injury be in the joint service of two or more employers subject to this chapter, such employers shall contribute to the payment of such compensation in proportion to their wage liability to such employee; provided, however, that nothing in this Code section shall prevent any reasonable arrangement between such employers for a different distribution as between themselves of the ultimate burden of compensation.
(a) Whenever payment of compensation, in accordance with the terms of this chapter, is made to a widow or widower for her or his use or for her or his use and the use of the child or children, the written receipt thereon of such widow or widower shall release and discharge the employer.
(b) Whenever payment in accordance with the terms of this chapter is made to any employee 18 years of age or over, the written receipt of such person shall release and discharge the employer. In cases where a person under the age of 18 years shall be entitled to receive a sum or sums amounting in the aggregate to not more than $300.00 as compensation for injuries or as a distributive share by virtue of this chapter, the father or mother as natural guardian or the legally appointed conservator of such person shall be authorized and empowered to receive such moneys for the use and benefit of such person and to receipt therefor; and the release or discharge by such father or mother as natural guardian or by the legally appointed conservator shall be in full and complete discharge of all claims or demands of such person thereunder.
(c) Whenever payment of over $300.00, in accordance with the terms of this chapter, is provided for a person under 18 years of age or for a person over 18 who is physically or mentally incapable of earning, the payment shall be made to his or her duly and legally appointed conservator or to some suitable person or corporation appointed as trustee by the superior court as provided in Code Section 34-9-223; and the receipt of such conservator or such trustee shall release and discharge the employer.
(d) Payment of death benefits by an employer in good faith to a dependent having a claim inferior to that of another or other dependents shall release and discharge the employer unless such dependent or dependents having a superior claim shall have given notice of his or their claim. In case the employer is in doubt as to the respective rights of rival claimants, he may apply to the board to decide between them.
(a) Except as provided in this Code section, the only person capable of representing a minor or legally incompetent claimant entitled to workers' compensation benefits shall be (1) a conservator duly appointed and qualified by the probate court of the county of residence of such minor or legally incompetent person or by any court of competent jurisdiction within this state, or (2) a conservator or the equivalent thereof duly appointed by a court of competent jurisdiction outside the State of Georgia. Such conservator shall be required to file with the board a copy of the conservatorship returns filed annually with the probate court or with a court of competent jurisdiction outside the State of Georgia and give notice to all parties within 30 days of any change in status.
(b) The board shall have authority in and shall establish procedures for appointing conservators for purposes of administering workers' compensation rights and benefits without such conservator becoming the legally qualified conservator of any other property, without such conservator's actions being approved by a court of record, and without the posting of a bond, in only the following circumstances:
(1) The board may, in its discretion, authorize and appoint a conservator of a minor or legally incompetent person to receive and administer weekly income benefits on behalf of and for the benefit of said minor or legally incompetent person;
(2) The board may, in its discretion, authorize and appoint a conservator of a minor or legally incompetent person to compromise and terminate any claim and receive any sum paid in settlement for the benefits and use of said minor or legally incompetent person where the net settlement amount approved by the board is less than $100,000.00; however, where the natural parent is the guardian of a minor and the settlement amount is less than $15,000.00, no board appointed conservator shall be necessary. After settlement, the board shall retain the authority to resolve disputes regarding continuing representation of a board appointed conservator of a minor or legally incompetent person; and
(3) If a minor or legally incompetent person does not have a duly appointed representative or conservator, the board may, in its discretion, appoint a guardian ad litem to bring or defend an action under this chapter in the name of and for the benefit of said minor or legally incompetent person. However, no guardian ad litem appointed pursuant to this Code section shall be permitted to receive the proceeds from any such action except as provided in this Code section and the board shall have the authority to determine compensation, if any, for any guardian ad litem appointed pursuant to this Code section.
(a) If an injured employee refuses employment procured for him or her and suitable to his or her capacity, such employee shall not be entitled to any compensation, except benefits pursuant to Code Section 34-9-263, at any time during the continuance of such refusal unless in the opinion of the board such refusal was justified.
(b) Notwithstanding the provisions of subsection (a) of this Code section, if the authorized treating physician releases an employee to return to work with restrictions and the employer tenders a suitable job to such employee within those restrictions, then:
(1) If such employee attempts the proffered job for eight cumulative hours or one scheduled workday, whichever is greater, but is unable to perform the job for more than 15 working days, then weekly benefits shall be immediately reinstated, and the burden shall be upon the employer to prove that such employee is not entitled to continuing benefits; or
(2) If such employee attempts the proffered job for less than eight cumulative hours or one scheduled workday, whichever is greater, or refuses to attempt the proffered job, then the employer may unilaterally suspend benefits upon filing with the board the appropriate form with supporting documentation of the release to return to work with restrictions by the authorized treating physician, the tender of a suitable job within those restrictions, and a statement that such employee did not attempt the proffered job. Under those circumstances, the burden shall shift to the employee to prove continuing entitlement to benefits.
(a) Limitation on simultaneous compensation. If an employee received an injury for which income benefits are payable while still entitled to or receiving income benefits for a previous injury, the employee shall not be entitled to income benefits at the same time for both injuries unless because of the later injury the employee is entitled to income benefits for a permanent partial disability under Code Section 34-9-263; but the employee shall be entitled to income benefits for that injury and from the time of that injury which will cover the longest period and the largest amount of income benefits payable. Compensation for other than income benefits shall be apportioned upon a determination of whether the need for such is attributable to the first or second injury.
(b) Limitation on compensation for permanent partial disability. If an employee received an injury for which income benefits are payable under Code Section 34-9-263 and has a preexisting bodily loss or loss of use as described under Code Section 34-9-263 which was increased by reason of the injury, the employee shall be entitled to income benefits under Code Section 34-9-263 only for the loss or loss of use as increased by the injury. This limitation, however, shall not prevent the employee from continuing to receive income benefits for the preexisting loss or loss of use to which the employee is otherwise entitled under Code Section 34-9-263.
(c) Total disability by subsequent injury.
(1) An employee who has a prior disability as described in Article 9 of this chapter and who sustains a subsequent injury which combines with the prior injury to produce total disability shall be entitled to income benefits as provided in Code Section 34-9-261. The loss of both hands, feet, arms, legs, or the loss of any two of them or the total loss of vision of both eyes shall be presumed to be total disability, subject to rebuttal.
(2) An employer who makes payment under this subsection shall be entitled to reimbursement as determined under Article 9 of this chapter.
In the event an accident occurs while the employee is employed elsewhere than in this state, which accident would entitle him or his dependents to compensation if it had occurred in this state, the employee or his dependents shall be entitled to compensation if the contract of employment was made in this state and if the employer's place of business or the residence of the employee is in this state unless the contract of employment was expressly for service exclusively outside of this state. If an employee shall receive compensation or damages under the laws of any other state, nothing contained in this Code section shall be construed so as to permit a total compensation for the same injury greater than is provided for in this chapter.
(a) The payment by the employer or the employer's workers' compensation insurance carrier to the employee or to any dependent of the employee of any benefit when not due or of salary or wages or any benefit paid under Chapter 8 of this title, the “Employment Security Law,” during the employee's disability shall be credited against any payments of weekly benefits due; provided, however, that such credit shall not exceed the aggregate amount of weekly benefits due under this chapter.
(b) Except as otherwise provided in this Code section or in a collective bargaining agreement, the employer's obligation to pay or cause to be paid weekly benefits under Code Section 34-9-261 or 34-9-262 shall be reduced by the employer funded portion of payments received or being received by the employee pursuant to a disability plan, a wage continuation plan, or from a disability insurance policy established or maintained by the same employer from whom benefits under Code Section 34-9-261 or 34-9-262 are claimed if the employer did contribute directly to such a plan or policy. The employer funded portion shall be based upon the ratio of the employer's contributions to the total contributions to such plan or policy.
(c) The credit or reduction of benefits provided in subsection (b) of this Code section shall only be made for those amounts which the employee is entitled to, has received, or is receiving during any period in which benefits under Code Section 34-9-261 or 34-9-262 are claimed.
(d) The State Board of Workers' Compensation shall promulgate rules for establishing proof of the existence of other benefits. The employer, its insurance carrier, and the employee shall freely release information to each other and the State Board of Workers' Compensation that is material and relevant to the existence of benefits which may be coordinated with entitlements and obligations under this chapter.
(e) The employer or insurance carrier taking a credit or making a reduction as provided in this Code section shall immediately report to the State Board of Workers' Compensation the amount of any credit or reduction and, as requested by the board, furnish to the board satisfactory proof of the basis for a credit or reduction.
(f) Subsections (a) and (b) of this Code section shall not apply to payments made to an employee under Code Section 34-9-263 for any permanent partial disability.
(a) Any party to a claim under this chapter, a group insurance company, or other disability benefits provider who provides disability benefits for a person who subsequently files a claim under this chapter may give notice in writing to the board at any time during the pendency of the claim that such provider is or should be a party at interest as a result of such disability benefits paid to the employer.
(b) In cases where a group insurance company or other disability benefits provider pays disability benefits to a person pursuant to an employer paid plan who subsequently files a claim and is entitled to benefits under this chapter, the board shall be authorized to order the employer or its workers' compensation insurance carrier to repay the group insurance company or other disability benefits provider the funds it has expended for such disability benefits and take credit for that amount against income benefits due under this chapter, provided that:
(1) Such employer or its workers' compensation insurance carrier is liable under this chapter for income benefits;
(2) Such other provider has become or should be a party at interest pursuant to the provisions of subsection (a) of this Code section; and
(3) The disability benefits paid are pursuant to a plan funded in whole or in part by the employer or workers' compensation carrier.
Should the board find that a claimant has received an overpayment of income benefits from the employer, for any reason, the board shall have the authority to order repayment on terms acceptable to the parties or within the discretion of the board. No claim for reimbursement shall be allowed where the application for reimbursement is filed more than two years from the date such overpayment was made.
Except as otherwise provided in this chapter, the average weekly wages of the injured employee at the time of the injury shall be taken as the basis upon which to compute compensation and shall be determined, subject to limitations as to the maximum and minimum amounts provided for in Code Sections 34-9-261 and 34-9-265, as follows:
(1) If the injured employee shall have worked in the employment in which he was working at the time of the injury, whether for the same or another employer, during substantially the whole of 13 weeks immediately preceding the injury, his average weekly wage shall be one-thirteenth of the total amount of wages earned in such employment during the 13 weeks;
(2) If the injured employee shall not have worked in such employment during substantially the whole of 13 weeks immediately preceding the injury, the wages of a similar employee in the same employment who has worked substantially the whole of such 13 weeks shall be used in making the determination under the preceding paragraph;
(3) If either of the foregoing methods cannot reasonably and fairly be applied, the full-time weekly wage of the injured employee shall be used;
(4) If compensation is due for a fractional part of the week, the compensation for such fractional part shall be determined by dividing the weekly compensation rate by the number of days employed per week to compute the amount due for each day;
(5) If the injured employee is a volunteer firefighter included under this chapter for volunteer fire-fighting services rendered to a county or municipality of this state or a volunteer law enforcement officer included under this chapter for volunteer law enforcement services rendered to a county or municipality of this state, such firefighter's or volunteer law enforcement officer's average weekly wage shall be deemed to be the Georgia average weekly earnings of production workers in manufacturing industries for the immediately preceding calendar year, as published by the Georgia Department of Labor;
(6) The average weekly wage of a member of the Georgia National Guard or State Defense Force serving on state active duty pursuant to an order by the Governor shall be the greater of:
(A) Seven-thirtieths of the monthly pay and allowances of the individual at the time of the injury, computed in accordance with Code Section 38-2-250, adjusted from time to time for appropriated increases in such monthly pay and allowances, excluding longevity increases; or
(B) If the injured member of the Georgia National Guard or the State Defense Force worked at the time of the injury in any employment other than serving as a member of the Georgia National Guard or the State Defense Force, the average weekly wage of the individual in such other employment as determined pursuant to paragraphs (1) through (5) of this Code section or, if such individual worked at the time of the injury for more than one employer, the average combined weekly wage of the individual in such multiple employment as determined pursuant to paragraphs (1) through (5) of this Code section.
While the disability to work resulting from an injury is temporarily total, the employer shall pay or cause to be paid to the employee a weekly benefit equal to two-thirds of the employee's average weekly wage but not more than $800.00 per week nor less than $50.00 per week, except that when the weekly wage is below $50.00, the employer shall pay a weekly benefit equal to the average weekly wage. The weekly benefit under this Code section shall be payable for a maximum period of 400 weeks from the date of injury; provided, however, that in the event of a catastrophic injury as defined in subsection (g) of Code Section 34-9-200.1, the weekly benefit under this Code section shall be paid until such time as the employee undergoes a change in condition for the better as provided in paragraph (1) of subsection (a) of Code Section 34-9-104.
Except as otherwise provided in Code Section 34-9-263, where the disability to work resulting from the injury is partial in character but temporary in quality, the employer shall pay or cause to be paid to the employee a weekly benefit equal to two-thirds of the difference between the average weekly wage before the injury and the average weekly wage the employee is able to earn thereafter but not more than $533.00 per week for a period not exceeding 350 weeks from the date of injury.
(a) Definition. As used in this chapter, “permanent partial disability” means disability partial in character but permanent in quality resulting from loss or loss of use of body members or from the partial loss of use of the employee's body.
(b) Payment of benefits.
(1) In cases of permanent partial disability, the employer shall pay weekly income benefits to the employee according to the schedule included within this Code section. These benefits shall be payable without regard to whether the employee has suffered economic loss as a result of the injury, except as herein provided.
(2) Income benefits due under this Code section shall not become payable so long as the employee is entitled to benefits under Code Section 34-9-261 or 34-9-262.
(3) If any employee is receiving benefits under this Code section and experiences a change in condition qualifying the employee for income benefits under Code Section 34-9-261 or 34-9-262, any payments under this Code section shall cease until further change of the employee's condition occurs.
(c) Schedule of income benefits. Subject to the maximum and minimum limitations on weekly income benefits specified in Code Section 34-9-261, the employer shall pay weekly income benefits equal to two-thirds of the employee's average weekly wage for the number of weeks determined by the percentage of bodily loss or loss of use times the maximum weeks as follows:
| Bodily Loss | Maximum Weeks | | | --- | --- | --- | | (1) | Arm․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․ | ․․․․․․․․․․․․․․․․․225 | | (2) | Leg․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․ | ․․․․․․․․․․․․․․․․․225 | | (3) | Hand․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․ | ․․․․․․․․․․․․․․․․․160 | | (4) | Foot․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․ | ․․․․․․․․․․․․․․․․․135 | | (5) | Thumb․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․ | ․․․․․․․․․․․․․․․․․․60 | | (6) | Index finger․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․ | ․․․․․․․․․․․․․․․․․․40 | | (7) | Middle finger․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․ | ․․․․․․․․․․․․․․․․․․35 | | (8) | Ring finger․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․ | ․․․․․․․․․․․․․․․․․․30 | | (9) | Little finger․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․ | ․․․․․․․․․․․․․․․․․․25 | | (10) | Great toe․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․ | ․․․․․․․․․․․․․․․․․․30 | | (11) | Any toe other than the great toe․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․ | ․․․․․․․․․․․․․․․․․․20 | | (12) | Loss of hearing, traumatic | | | | One ear․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․ | ․․․․․․․․․․․․․․․․․․75 | | | Both ears․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․ | ․․․․․․․․․․․․․․․․․150 | | (13) | Loss of vision of one eye․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․ | ․․․․․․․․․․․․․․․․․150 | | (14) | Disability to the body as a whole․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․ | ․․․․․․․․․․․․․․․․․300 |
(d) Impairment ratings. In all cases arising under this chapter, any percentage of disability or bodily loss ratings shall be based upon Guides to the Evaluation of Permanent Impairment, fifth edition, published by the American Medical Association.
(e) Loss of more than one major member. Loss of both arms, hands, legs, or feet, or any two or more of these members, or the permanent total loss of vision in both eyes shall create a rebuttable presumption of permanent total disability compensable as provided in Code Section 34-9-261.
(a) As used in this Code section, the term:
(1) “Harmful noise” means sound in employment capable of producing occupational loss of hearing as defined in paragraph (2) of this subsection. Sound of an intensity of less than 90 decibels, A scale, shall be deemed incapable of producing occupational loss of hearing as defined in this Code section.
(2) “Occupational loss of hearing” means a permanent sensorineural loss of hearing in both ears caused by prolonged exposure to harmful noise in employment.
(b) Compensation based on 66 2/3 percent of average weekly wages, subject to limitations of Code Section 34-9-261, shall be payable for loss of hearing caused by harmful noise, subject to the following rules which shall be applicable in determining eligibility, amount, and period during which compensation shall be payable:
(1) In the evaluation of occupational hearing loss, only the hearing levels at the frequencies of 500, 1,000, 2,000, and 3,000 cycles per second shall be considered. Hearing losses for frequencies below 500 and above 3,000 cycles per second are not to be considered as constituting compensable hearing disability. No consideration shall be given to the question of whether or not the ability of an employee to understand speech is improved by the use of a hearing aid. The board may order the employer to provide the employee with an original hearing aid if it will materially improve the employee's ability to hear;
(2) The percentage of hearing loss shall be calculated as the average, in decibels, of the thresholds of hearing for the frequencies of 500, 1,000, 2,000, and 3,000 cycles per second. Pure tone air conduction audiometric instruments, properly calibrated according to accepted national standards such as International Standards Organization (ISO) or American National Standards Institute, Inc. (ANSI), shall be used for measuring hearing loss. If more than one audiogram is taken, the audiogram having the lowest threshold will be used to calculate occupational hearing loss. If the losses of hearing average 25 decibels or less in the four frequencies, such losses of hearing shall not constitute any compensable hearing disability. If the losses of hearing average 92 decibels or more in the four frequencies, then the same shall constitute and be total or 100 percent compensable hearing loss. In measuring hearing impairment, the lowest measured losses in each of the four frequencies shall be added together and divided by four to determine the average decibel loss. For each decibel of loss exceeding 25 decibels an allowance of 1 1/2 percent shall be made up to the maximum of 100 percent which is reached at 92 decibels. In determining the binaural percentage of loss, the percentage of impairment in the better ear shall be multiplied by five. The resulting figure shall be added to the percentage of impairment in the poorer ear, and the sum of the two divided by six. The final percentage shall represent the binaural hearing impairment;
(3) There shall be payable for total occupational loss of hearing 150 weeks of compensation and for partial occupational loss of hearing such proportion of these periods of payment as such partial loss bears to the total loss;
(4) Except in instances of preexisting loss of hearing due to disease, trauma, or congenital deafness in one ear, no compensation shall be payable under this Code section unless prolonged exposure to harmful noise in employment has caused loss of hearing in both ears as hereinafter provided;
(5) No compensation benefits shall be payable for temporary total or temporary partial disability under this Code section; and there shall be no award for tinnitus or a psychogenic hearing loss;
(6) The regular use of employer provided protective devices capable of preventing loss of hearing from the particular harmful noise where the employee works shall constitute removal from exposure to such particular harmful noise. No compensation benefits shall be payable for occupational loss of hearing caused by harmful noise if the employee fails to regularly utilize the employer provided protection device or devices which are capable of preventing loss of hearing from the particular harmful noise where the employee works;
(7) The employer liable for the compensation in this Code section shall be the employer in whose employment the employee was last exposed to harmful noise in Georgia during a period of 90 working days or parts thereof; and an exposure during a period of less than 90 working days or parts thereof shall be held not to be an injurious exposure; provided, however, that, in the event an insurance carrier has been on the risk for a period of time during which an employee has been injuriously exposed to harmful noise and if after such insurance carrier goes off the risk said employee has been further exposed to harmful noise, although not exposed for 90 working days or parts thereof, so as to constitute an injurious exposure, such carrier shall, nevertheless, be liable;
(8) An employer shall become liable for the entire occupational hearing loss to which his employment has contributed; but, if previous deafness is established by a hearing test or other competent evidence, whether or not the employee was exposed to harmful noise within six months preceding such test, the employer shall not be liable for previous loss so established, nor shall he be liable for any loss for which compensation has previously been paid or awarded. The employer shall be liable only for the difference between the percentage of occupational hearing loss determined as of the date of disability and the percentage of loss established by preemployment and audiometric examinations excluding, in any event, hearing losses arising from nonoccupational causes.
(c) No claim for compensation for occupational hearing loss shall be filed until six months have elapsed since exposure to harmful noise with the last employer. The last day of such exposure shall be the date of disability.
(a) When an employee is entitled to compensation under this chapter for an injury received and death ensues from any cause not resulting from the injury for which he or she was entitled to compensation, payments of the unpaid balance for such injury shall cease and all liability therefor shall terminate.
(b) If death results instantly from an accident arising out of and in the course of employment or if during the period of disability caused by an accident death results proximately therefrom, the compensation under this chapter shall be as follows:
(1) The employer shall, in addition to any other compensation, pay the reasonable expenses of the employee's burial not to exceed $7,500.00. If the employee leaves no dependents, this shall be the only compensation;
(2) The employer shall pay the dependents of the deceased employee, which dependents are wholly dependent on his or her earnings for support at the time of the injury, a weekly compensation equal to the compensation which is provided for in Code Section 34-9-261 for total incapacity;
(3) If the employee leaves dependents only partially dependent on his or her earnings for their support at the time of the injury, the weekly compensation for these dependents shall be in the same proportion to the compensation for persons wholly dependent as the average amount contributed weekly by the deceased to the partial dependents bears to the deceased employee's average weekly wages at the time of the injury; and
(4) When weekly payments have been made to an injured employee before his or her death, compensation to dependents shall begin on the date of the last of such payments; but the number of weekly payments made to the injured employee under Code Section 34-9-261, 34-9-262, or 34-9-263 shall be subtracted from the maximum 400 week period of dependency of a spouse provided by Code Section 34-9-13; and in no case shall payments be made to dependents except during dependency.
(c) The compensation provided for in this Code section shall be payable only to dependents and only during dependency.
(d) The total compensation payable under this Code section to a surviving spouse as a sole dependent at the time of death and where there is no other dependent for one year or less after the death of the employee shall in no case exceed $320,000.00.
(e) If it shall be determined that the death of an employee was the direct result of an injury proximately caused by the intentional act of the employer with specific intent to cause such injury, then there shall be added to the weekly income benefits paid to the dependents, if any, of the deceased employee a penalty of 20 percent; provided, however, such penalty in no case shall exceed $20,000.00. For the purpose of this subsection, an employer shall be deemed to have intended an injury only if the employer had actual knowledge that the intended act was certain to cause such injury and knowingly disregarded this certainty of injury. Nothing in this subsection shall limit the effect of Code Section 34-9-11.
(f) Each insurer or self-insurer which, in a compensable death case, finds no dependent or dependents qualifying to receive dependency benefits shall pay to the State Board of Workers' Compensation one-half of the benefits which would have been payable to such dependent or dependents or the sum of $10,000.00, whichever is less. All such funds paid to the board shall be deposited in the general fund of the state treasury. If, after such payment has been made, it is determined that a dependent or dependents qualified to receive benefits exist, then the insurer or self-insurer shall be entitled to reimbursement by refund for moneys collected in error.
In all claims for compensation for hernia resulting from injury by accident arising out of and in the course of the employee's employment it must be definitely proved to the satisfaction of the board (1) that there was an injury resulting in hernia, (2) the hernia appeared suddenly, (3) the hernia was accompanied by pain, (4) the hernia immediately followed an accident, and (5) the hernia did not exist prior to the accident for which compensation is claimed. All inguinal, femoral, or other hernias which are proven to be the result of an injury by accident arising out of and in the course of employment shall be treated in a surgical manner by radical operation. If death results from such operation, the death shall be considered as a result of the injury and compensation shall be paid in accordance with Code Section 34-9-265. In nonfatal cases, time loss only shall be paid unless it is shown by special examination, as provided in Code Section 34-9-202, that the injured employee has a permanent partial disability resulting from the operation. If so, compensation shall be paid in accordance with Code Section 34-9-263. In the event the injured employee refuses to undergo the radical operation for the cure of the hernia, no compensation shall be allowed during the time such refusal continues. If, however, it is shown that the employee has some chronic disease or is otherwise in such physical condition that the board considers it unsafe for the employee to undergo such operation, the employee shall be paid as provided in Code Section 34-9-262.
As used in this article, the term:
(1) “Disablement” means the event of an employee becoming actually disabled to work, as provided in Code Sections 34-9-261, 34-9-262, and 34-9-263, because of occupational disease.
(2) “Occupational disease” means those diseases which arise out of and in the course of the particular trade, occupation, process, or employment in which the employee is exposed to such disease, provided the employee or the employee's dependents first prove to the satisfaction of the State Board of Workers' Compensation all of the following:
(A) A direct causal connection between the conditions under which the work is performed and the disease;
(B) That the disease followed as a natural incident of exposure by reason of the employment;
(C) That the disease is not of a character to which the employee may have had substantial exposure outside of the employment;
(D) That the disease is not an ordinary disease of life to which the general public is exposed;
(E) That the disease must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a natural consequence.
For the purposes of this paragraph, partial loss of hearing due to noise shall not be considered an occupational disease. Psychiatric and psychological problems and heart and vascular diseases shall not be considered occupational diseases, except where they arise from a separate occupational disease.
(a) Where the employer and employee are subject to this chapter, the disablement or death of an employee resulting from an occupational disease shall be treated as the occurrence of an injury by accident; and the employee or, in the case of his or her death, the employee's dependents shall be entitled to compensation as provided by this chapter. The practice and procedure prescribed in this chapter shall apply to all the proceedings under this article except as otherwise provided.
(b) Except as otherwise provided in this Code section, an employer shall be liable for compensation under this article only where:
(1) The disease arose out of and in the course of the employment in which the employee was engaged under such employer, was contracted while the employee was so engaged, and has resulted from a hazard characteristic of the employment in excess of the hazards of such disease attending employment in general; and
(2) The claim for disablement is filed within one year after the date the employee knew or, in the exercise of reasonable diligence, should have known of the disablement and its relationship to the employment; but in no event shall the claim for disablement be filed in excess of seven years after the last injurious exposure to the hazard of such disease in such employment; provided, however, that an employee with asbestosis or mesothelioma related to exposure to asbestos shall have one year from the date of first disablement after diagnosis of such disease to file a claim for disablement. In cases of death where the cause of action was not barred during the employee's life, the claim must be filed within one year of the date of death.
Any claimant who shall be entitled to compensation under the terms of this article shall be entitled to burial expenses and medical, hospital, and other treatment in the same amounts and with the same limitations and conditions as provided in Code Sections 34-9-200 and 34-9-265 for injured employees.
The provisions of Code Section 34-9-263 with respect to permanent partial industrial disabilities shall apply in the case of an occupational disease, save and except that there shall be no compensation due or payable for the partial loss of or for partial loss of use of a member or for partial loss of vision of an eye.
Where compensation is payable for an occupational disease, the employer in whose employment the employee was last injuriously exposed to the hazards of such disease and the insurance carrier, if any, by whom the employer was insured when such employee was last so exposed under such employer shall alone be liable therefor, without right of contribution from any prior employer or insurance carrier. The amount of the compensation for any occupational disease shall be based upon the average weekly wages of the employee, as determined under Code Section 34-9-260. The date upon which the employee first suffers disablement from the occupational disease or the last date the employee was employed by any employer, whichever date would provide the higher average weekly wage for such employee, shall be deemed the date of the injury for the purpose of determining the average weekly wage; and the notice of injury and claim for compensation, as required by Code Sections 34-9-80 through 34-9-82, 34-9-85, and 34-9-86, shall be given and made to such employer.
Where an occupational disease is aggravated by any other disease or infirmity not itself compensable or where disability or death from any other cause not itself compensable is aggravated, prolonged, accelerated, or in any other way contributed to by an occupational disease, the compensation payable shall be reduced and limited only to such proportion of the compensation that would be payable if the occupational disease were the sole cause of the disability or death as such occupational disease, as the causative factor, bears to all the causes of such disability or death. Compensation shall be adjusted by reducing the number of weekly payments or the amounts of such payments as, in the circumstances of the particular case, may be determined by the board.
All of the provisions of this chapter shall be applicable to this article, unless otherwise provided in or inconsistent with this article.
Whenever an employer and employee are subject to this chapter, the liability of the employer under this article for the disablement or death of the employee from an occupational disease in any way incurred by such employee in the course of or because of his employment shall be exclusive and in place of any and all other civil liability whatsoever at common law or otherwise to such employee or to his personal representative, next of kin, spouse, parents, guardian, or any others.
No compensation shall be payable for an occupational disease if the employee, in the course of or in the course of entering into the employment of the employer by whom the compensation would otherwise be payable, falsely represented himself in writing to such employer as not having previously been disabled, laid off, or compensated in damages or otherwise because of such disease.
The total expenses of the State Board of Workers' Compensation for the administration, operation, and proper functioning of the board under this article shall be a proper charge under Code Section 34-9-63 and shall be payable as provided therein.
(a) When medical questions are in controversy in any claim for compensation for an occupational disease, the parties may agree to refer the employee to a licensed physician specializing in the diagnosis and treatment of the disease at issue for an independent medical examination and report. In the event that the parties cannot agree on the referral to be made, the State Board of Workers' Compensation shall refer the employee to a licensed physician who specializes in diagnosis and treatment of the disease at issue and who is certified by the appropriate medical board in the field encompassing such disease for an independent medical examination and report. No award may be made in such case until the appointed physician has filed with the board the report respecting all medical questions at issue. The date of disablement, if in dispute, shall be deemed a medical question. The board is authorized to charge the expense of the independent medical examination and report against either or both parties in the final award.
(b) Proceedings may be suspended and no compensation may be payable for any period during which the employee may unreasonably fail or refuse to submit to such an examination.
(c) Upon the filing of a claim for compensation for death from an occupational disease where an autopsy is necessary to accurately and scientifically ascertain or determine the cause of death, such autopsy may be ordered by the board. The board may specify and designate a licensed physician who is a specialist in such examinations and who is certified by the appropriate medical board in the field encompassing such disease to perform or attend the autopsy and to certify his or her findings thereon. Such findings shall be filed with the State Board of Workers' Compensation and shall become a part of the record in the case. In the event no claim has been filed, the board may exercise such authority on its own motion or on application made at any time, upon presentation of facts showing that a controversy may arise in regard to the cause of death or the existence of any occupational disease. The board is authorized to charge the expense of any such autopsy against the party requesting it.
(d) The physician selected to conduct the independent medical examination of the claimant, and to issue a report on all medical questions presented, shall report in writing and file with the board all findings and conclusions on every medical question in controversy as soon as practicable, but in any event no later than 60 days after the date on which the independent medical examination, or autopsy, has been completed.
(e) Either party may submit information to and may cross-examine such physician in accordance with paragraph (2) of subsection (e) of Code Section 34-9-102. Each party submitting information to such physician shall serve a copy of such information to the opposing party. The findings and conclusions contained in such report or testimony of such physician shall create a presumption of the correctness of such findings and conclusions, which presumption may be rebutted by other competent medical evidence.
The medical board shall have the same power to compel the attendance of witnesses and the production of records as the superior courts of this state have to compel the attendance of witnesses and the production of records.
It is the purpose of this article to encourage the employment of persons with disabilities by protecting employers from excess liability for compensation when an injury to a disabled worker merges with a preexisting permanent impairment to cause a greater disability than would have resulted from the subsequent injury alone. It shall not be construed to create, increase, or provide any benefits for injured employees or their dependents not otherwise provided by this chapter. The entitlement of an injured employee or dependents to compensation under this chapter shall be determined without regard to this article, the provisions of which shall be considered only in determining whether the employer or insurer who has paid compensation under this chapter is entitled to reimbursement from the Subsequent Injury Trust Fund.
As used in this article, the term:
(1) “Merger of an injury with a preexisting permanent impairment” describes or means that:
(A) Had the preexisting permanent impairment not been present, the subsequent injury would not have occurred;
(B) The disability resulting from the subsequent injury in conjunction with the preexisting permanent impairment is materially, substantially, and cumulatively greater than that which would have resulted had the preexisting permanent impairment not been present, and the employer has been required to pay and has paid compensation for that greater disability; or
(C) Death would not have been accelerated had the preexisting permanent impairment not been present.
(2) “Permanent impairment” means any permanent condition due to previous injury, disease, or disorder which is, or is likely to be, a hindrance or obstacle to employment or to obtaining reemployment if the employee should become unemployed.
Employers which are self-insured with regard to workers' compensation benefits but which are not authorized by the State Board of Workers' Compensation or other regulatory bodies as self-insured employers shall not be eligible for reimbursement from the Subsequent Injury Trust Fund.
There is established a Subsequent Injury Trust Fund which shall be of a perpetual, nonlapsing nature for the sole purpose of making payments in accordance with this article. The fund shall be administered by the administrator of the Subsequent Injury Trust Fund. All moneys in the fund shall be held in trust and shall not be money or property of the state. The board of trustees created by Code Section 34-9-354 shall be authorized to invest the moneys of the fund in the same manner as provided by law for investments by domestic insurers (Chapter 11 of Title 33). The board of trustees shall be authorized to designate the state treasurer as custodian of the fund for the purpose of investing the fund. In the event the state treasurer is appointed custodian he shall have exclusive control of the investment of the fund; and the trustees shall be absolved of any responsibility for such fund. The custodian shall be authorized to disburse moneys from the fund only upon written order of the administrator.
The administrator and the custodian, before entering upon the performance of their duties, shall each execute and file an official surety bond of not less than $50,000.00. The bonds shall be approved as to form and sufficiency by the Attorney General. The bonds shall be payable to the Subsequent Injury Trust Fund and conditioned upon the faithful performance of the respective duties of the administrator and custodian. The premium for the bonds shall be paid out of the moneys of the Subsequent Injury Trust Fund.
(a) There is created a Board of Trustees of the Subsequent Injury Trust Fund composed of five members who shall serve for a term of six years each. One member shall be selected from each of the following fields: the insurance industry; rehabilitation professionals; management; labor; and the public at large. The Commissioner of Insurance and the executive director of the State Board of Workers' Compensation shall be ex officio members of the board of trustees. The ex officio members shall serve without compensation in an advisory capacity only.
(b) The board of trustees shall be appointed by the Governor, and each member shall serve until his successor is appointed and qualified.
(c) One member shall be appointed for a period of two years, one member for a period of three years, one member for a period of four years, one member for a period of five years, and one member for a period of six years. Thereafter, each member shall be appointed for a full term of six years or the remainder of an unexpired term.
(d) The duties of the board of trustees shall include, but not necessarily be limited to, the:
(1) Appointment of the administrator of the fund and the setting of the compensation of the administrator;
(2) Establishment of policies, procedures, rules, and regulations incidental to the fund's operations; and
(3) Approval of the administrative budget of the fund.
(e) The board of trustees shall elect one of its members as chairman, who shall serve for a period of two years.
(f) The members of the board of trustees shall be required to take and subscribe before the Governor an oath to discharge the duties of their office faithfully and impartially. This oath shall be in addition to the oath required of all civil officers.
(a) The board of trustees shall appoint the administrator of the fund, and he or she shall serve at the pleasure of the trustees and without term of office. All officials, personnel, and employees of the Board of Trustees of the Subsequent Injury Trust Fund are placed in the classified service as defined by Code Section 45-20-2 unless otherwise excluded by law; provided, however, that except for purposes of determining compensation, the administrator shall not be in the classified service.
(b) The administrator shall administer this article under such policies and rules and regulations as may be adopted by the trustees and shall be authorized to hire such personnel as may be necessary to carry out the purposes of the fund.
(c) All employees of the fund shall be deemed to be employees of the state and, as such, members of the Employees' Retirement System of Georgia.
(a) The members of the board of trustees, the administrator, and the employees of the fund shall be entitled to receive their actual necessary expenses while traveling on the business of the fund, but the expenses shall be sworn to by such person incurring the same.
(b) The expenses of members of the board of trustees shall be approved by the chairman of the board of trustees, and the expenses of the employees of the fund shall be approved by the administrator.
(c) The members of the board of trustees shall receive a per diem for each day that the board of trustees is in session which is equal to the per diem allowance paid to members of the General Assembly. The per diem allowance of the members of the board of trustees shall be paid from the operating budget of the administrator.
(a) The entire cost of the administration of the fund shall be paid from the assets of the fund.
(b) The administrator shall annually submit to the board of trustees, under such rules and regulations as the board of trustees may prescribe, a budget of the costs of administration of the fund for the fiscal year. The board of trustees shall submit the proposed budget to the Office of Planning and Budget for comment prior to approval.
(c) Upon approval by the board of trustees, a copy of the operating budget shall be filed with the custodian of the fund who, on July 1, shall transfer to the administrator's operating account such funds as are required by the budget less any amounts remaining in the operating account from prior years.
(d) Funds held by the administrator in the operating account shall not in any way be deemed to be appropriated funds but shall be audited annually in the manner provided for other state departments and agencies.
(a) Prior to January 1, 2010, each insurer and self-insurer under this chapter shall, under regulations prescribed by the board of trustees, make payments to the fund in an amount equal to that proportion of 175 percent of the total disbursement made from the fund during the preceding calendar year less the amount of the net assets in the fund as of December 31 of the preceding calendar year which the total workers' compensation claims paid by the insurer or self-insurer bears to the total workers' compensation claims paid by all insurers and self-insurers during the preceding calendar year.
(b) On and after January 1, 2010, but prior to January 1, 2016, each insurer and self-insurer under this chapter shall, under regulations prescribed by the board of trustees, make payments to the fund in an amount equal to that proportion of 175 percent of the total disbursement made from the fund during the preceding calendar year as of December 31 of the preceding calendar year which the total workers' compensation claims paid by the insurer or self-insurer bears to the total workers' compensation claims paid by all insurers and self-insurers during the preceding calendar year but not to exceed $100 million.
(c) On and after January 1, 2016, each insurer and self-insurer under this chapter shall, under regulations prescribed by the board of trustees, make payments to the fund in an amount equal to that proportion of $100 million the total workers' compensation claims paid by the insurer or self-insurer bears to the total workers' compensation claims paid by all insurers and self-insurers during the preceding calendar year but not to exceed $100 million.
(d) The administrator is authorized to create and maintain a reserve of surplus moneys as may be deemed necessary by the board of trustees in order to ensure sufficient moneys will be available for the payment of all claims that are to be paid by the fund in accordance with Code Section 34-9-368.
(e) The administrator is authorized to reduce or suspend assessments for the fund when a completed actuarial survey shows further assessments are not needed for all bona fide claims that are to be paid by the fund.
(f)(1) When further assessments are not needed as all eligible workers' compensation claims for which the fund is liable in accordance with Code Section 34-9-368 have been paid and all related administrative costs have been accrued or paid and a balance remains in the fund, all insurers and self-insurers in this state who have maintained workers' compensation insurance in this state for any time during the preceding three years from the date that the last claim has been paid shall be entitled to a pro rata refund of assessments previously collected and unexpended in the remaining fund balance.
(2) The calculation for such pro rata refund to be paid by the fund to each individual insurer and self-insurer shall be determined by the following formula:
The balance remaining in the fund shall be the numerator and shall be divided by the total amount of assessments for workers' compensation coverage paid by all insurers and self-insurers during the three-year period, which shall be the denominator. The quotient of the numerator and denominator shall be multiplied by the total amount of assessments that are paid by the individual insurer or self-insurer during the three-year period. The product of those numbers shall represent the amount to be paid to such insurer or self-insurer as its pro rata refund from the balance remaining in the fund.
(3) Nothing in this subsection shall preclude the board of trustees from authorizing a loss portfolio transfer of any unresolved claims.
(g) An employer who has ceased to be a self-insurer prior to the end of the calendar year shall be liable to the fund for the assessment of the calendar year. Such employer who has ceased to be a self-insurer shall continue to be liable to the fund for assessments in subsequent calendar years so long as payments are made on any workers' compensation claims made while in self-insured status.
(h) The initial assessment of each insurer or self-insurer for the purpose of generating revenue to begin operation of the fund shall be in the amount of one-half of 1 percent of the workers' compensation premiums collected by the insurer for the preceding calendar years from an employer who is subject to this chapter or the equivalent of such in the case of a self-insurer.
(a) As soon as practicable after January 1 but not later than January 31 of each calendar year, the administrator shall forward to each insurer and self-insured employer a questionnaire asking for the total amount of compensation, medical benefits, and rehabilitation benefits paid by each insurer and self-insured employer during the preceding calendar year. This report is to be completed and returned to the administrator no later than March 1 of the same calendar year in which the request for this information is submitted. Failure to submit the report to the administrator of the fund by March 1 shall result in an automatic penalty of $50.00 per day for each day the report is delinquent or 10 percent of the assessment, whichever is greater. This penalty will be added to the assessment.
(b) Any assessment levied or established in accordance with this article in a specified amount as may be determined pursuant to this article shall constitute a personal debt of every employer or insurer so assessed and shall be due and payable to the Subsequent Injury Trust Fund when payment is called for by the administrator. In the event of failure to pay any assessment upon the date determined by the administrator, the administrator may file a complaint for collection against the employer or insurer in a court of competent jurisdiction.
(c) In the event any employer or insurer duly assessed fails to pay to the administrator on behalf of the Subsequent Injury Trust Fund the amount so assessed on or before the date specified by the administrator, the administrator is authorized to add to the unpaid assessment an amount not exceeding 10 percent of the unpaid assessment and reasonable attorney's fees to defray the cost of enforcing collection.
(a) If an employee who has a permanent impairment incurs a subsequent injury or disease arising out of and in the course of employment, which subsequent injury results in liability for the disability arising from merger of the subsequent injury with the preexisting permanent impairment, the employer or insurer shall in the first instance pay all compensation provided by this chapter. The employer or insurer shall be reimbursed from the Subsequent Injury Trust Fund for all weekly income benefits payments payable after 104 weeks of payment.
(b) An employer or insurer who has paid medical and rehabilitation expenses on behalf of the employee who comes under this article shall be entitled to reimbursement from the fund on the following basis:
(1) Fifty percent reimbursement of all medical and rehabilitation expenses which exceed $5,000.00 but do not exceed $10,000.00;
(2) One hundred percent reimbursement of all medical and rehabilitation expenses paid which exceed $10,000.00.
(c) As a prerequisite to reimbursement from the fund, the insurer shall be required to certify that the medical and indemnity reserves have been reduced to the threshold limits of reimbursement.
(d) When the same employer in a claim accepted by the fund for reimbursement returns the injured worker to work with the same employer, the employer shall not be subject to further indemnity or medical deductibles in the event the employee suffers a new accident that merges with the same prior impairment that previously resulted in fund acceptance of the prior reimbursement claim. This provision does not apply if the employee returns to work for a different employer or there has been a break in service by the employee.
(e) As a prerequisite to reimbursement from the fund, there must be evidence of payment of workers' compensation benefits in accordance with Code Section 34-9-221 or an award of the State Board of Workers' Compensation directing the employer to pay weekly income benefits as a result of the subsequent injury.
(f) The fund shall reimburse only those indemnity, medical, and rehabilitation expenses that the employer or insurer was legally obligated to pay to the employee or claimant. The fund shall reimburse such expenses at a rate not exceeding the usual and customary charges. The administrator of the fund may refer any medical or rehabilitation expense to the State Board of Workers' Compensation for review and recommendation and, in the event of a dispute between the fund and the employer or insurer, the questioned medical and rehabilitation expense shall be referred to the State Board of Workers' Compensation for approval. This subsection shall apply to any claim filed against the fund on and after July 1, 1987.
It shall be incumbent upon the employer to establish that the employer had reached an informed conclusion prior to the occurrence of the subsequent injury or occupational disease that the preexisting impairment is permanent and is likely to be a hindrance or obstacle to employment or reemployment. Where, however, the employer establishes knowledge of the preexisting permanent impairment prior to the subsequent injury, there shall be a presumption that the employer considered the condition to be permanent and to be, or likely to be, a hindrance or obstacle to employment where the condition is one of the following:
(1) Epilepsy;
(2) Diabetes;
(3) Arthritis which is an obstacle or hindrance to employment or reemployment;
(4) Amputated foot, leg, arm, or hand;
(5) Loss of sight of one or both eyes or a partial loss of uncorrected vision of more than 75 percent bilaterally;
(6) Residual disability from poliomyelitis;
(7) Cerebral palsy;
(8) Multiple sclerosis;
(9) Parkinson's disease;
(10) Cardiovascular disorders;
(11) Tuberculosis;
(12) Intellectual disability, provided the employee's intelligence quotient is such that he falls within the lowest 2 percent of the general population; provided, however, that it shall not be necessary for the employer to know the employee's actual intelligence quotient or actual relative ranking in relation to the intelligence quotient of the general population;
(13) Psychoneurotic disability following confinement for treatment in a recognized medical or mental institution for a period in excess of six months;
(14) Hemophilia;
(15) Sickle cell anemia;
(16) Chronic osteomyelitis;
(17) Ankylosis of major weight-bearing joints;
(18) Hyperinsulism;
(19) Muscular dystrophy;
(20) Total occupational loss of hearing as defined in Code Section 34-9-264;
(21) Compressed air sequelae;
(22) Ruptured intervertebral disc; or
(23) Any permanent condition which, prior to the occurrence of the subsequent injury, constitutes a 20 percent impairment of a foot, leg, hand, or arm, or of the body as a whole.
(a) An employer or insurer shall notify the administrator of the fund of any possible claim against the fund as soon as practicable, but in no event later than 78 calendar weeks following the injury or the payment of an amount equivalent to 78 weeks of income or death benefits, whichever occurs last.
(b) The claim must be filed in accordance with the requirements of subsection (a) of this Code section prior to the final settlement of the claim.
(c) Failure to comply with the provisions of subsections (a) and (b) of this Code section will constitute a bar to recovery from the Subsequent Injury Trust Fund.
(d) For those notices of claim filed with the fund on or before July 1, 2006, the employer or insurer shall have until June 30, 2009, to obtain a reimbursement agreement issued by the fund or the claim for reimbursement shall be deemed automatically denied.
(e) For those notices of claim filed with the fund after July 1, 2006, the employer or insurer shall have three years from the date the notice was received by the fund to obtain a reimbursement agreement issued by the fund or the claim for reimbursement shall be deemed automatically denied.
(f) Notwithstanding subsections (d) and (e) of this Code section, if compensability of the underlying workers' compensation claim is at issue before the State Board of Workers' Compensation, then the employer or insurer shall have three years from the date of final adjudication of compensability by the State Board of Workers' Compensation or any appellate court to obtain a reimbursement agreement issued by the fund or the claim for reimbursement shall be deemed automatically denied.
(g) Upon actual or statutory automatic denial pursuant to subsection (d), (e), or (f) of this Code section, the employer or insurer shall have 20 days from the date of denial to request a hearing with the State Board of Workers' Compensation pursuant to Code Section 34-9-100; otherwise recovery shall be barred.
(a) When any employer or insurer and the administrator reach an agreement with respect to reimbursement under this article, it shall be reduced to writing and submitted to the State Board of Workers' Compensation for approval. The board shall consider such an agreement upon receipt thereof and, if it finds it to meet the provisions of this article, shall approve the agreement and issue its order directing the agreed reimbursement.
(b) If the employer or the insurer fails to reach an agreement with the administrator in regard to reimbursement under this article, either party may make application to the State Board of Workers' Compensation for a hearing in regard to the matters at issue. Such matters shall then be determined in the manner provided for other workers' compensation proceedings and appeals.
(c) Failure of an employer or insurer to file for a hearing with the State Board of Workers' Compensation within 90 days after the receipt of a formal denial from the Subsequent Injury Trust Fund shall constitute a bar to recovery from the fund.
(d) The administrator, under the policy or rules and regulations of the board of trustees, shall have the authority to enter into compromise settlements.
(a) After the employer or insurer and the administrator of the Subsequent Injury Trust Fund reach an agreement with respect to reimbursement and either the reimbursement agreement is approved by the State Board of Workers' Compensation or the State Board of Workers' Compensation otherwise orders reimbursement pursuant to Code Section 34-9-363, the employer or the insurer shall have a continuing obligation to keep the administrator of the Subsequent Injury Trust Fund informed as to any proposed settlement agreement, pursuant to Code Section 34-9-15, between the employee and the employer or the insurer.
(b) The employer or the insurer shall obtain the approval from the administrator of the Subsequent Injury Trust Fund for any and all settlement agreements between the employee and the employer or the insurer in all cases where a reimbursement agreement between the employer or the insurer and the Subsequent Injury Trust Fund exists prior to the submitting of the settlement agreement to the State Board of Workers' Compensation for approval; provided, however, that if the employer or insurer fails to obtain the approval from the administrator of the Subsequent Injury Trust Fund for such a settlement agreement, but the State Board of Workers' Compensation approves such agreement, the reimbursement agreement between the employer or the insurer and the Subsequent Injury Trust Fund shall become null and void, and the State Board of Workers' Compensation shall, upon the petition of the administrator of the Subsequent Injury Trust Fund, issue an order rescinding the reimbursement agreement; provided, further, that nothing in this Code section shall prohibit the parties from reaching a compromise settlement as to reimbursement from the Subsequent Injury Trust Fund, upon approval of the State Board of Workers' Compensation.
The administrator of the fund may apportion or deny the employer or insurer reimbursement from the fund for medical expense provided by Code Section 34-9-360 where there are clear and unequivocal facts to establish that the subsequent injury to the permanently impaired employee was not caused by or in any way related to the employee's preexisting disability. The apportionment by the administrator shall be subject to the approval of the State Board of Workers' Compensation.
The effective date of this article is March 23, 1977, but it shall apply only to injuries occurring on or after July 1, 1977.
The fund shall not be bound as to any question of law or fact by reason of an award or an adjudication to which it was not a party.
The Subsequent Injury Trust Fund shall not be liable for any interest on sums due claiming parties nor shall it be liable for attorney's fees due attorneys of the claiming parties except where it is proven by a preponderance of evidence that the Subsequent Injury Trust Fund has failed or refused to accept a valid claim for reimbursement as provided for under this chapter in whole or in part without reasonable grounds; in such a circumstance, the party seeking reimbursement may be entitled to attorney's fees as provided under subsection (b) of Code Section 34-9-108.
(a) The Subsequent Injury Trust Fund shall not reimburse a self-insured employer or an insurer for a subsequent injury for which a claim is made for an injury occurring after June 30, 2006. The Subsequent Injury Trust Fund shall continue to reimburse self-insured employers or insurers for claims for injuries occurring on and prior to June 30, 2006, which qualify for reimbursement.
(b) Self-insured employers and insurers shall continue to pay assessments pursuant to Code Section 34-9-358 to the extent necessary to fund claims for injuries occurring on and prior to June 30, 2006.
(c) Upon or in contemplation of the final payment of all claims filed for subsequent injuries for which claims are filed for injuries occurring on and prior to June 30, 2006, the board of trustees shall adopt and implement resolutions providing for the final dissolution of the Subsequent Injury Trust Fund. Such resolutions shall become effective when all claims made for injuries occurring on and prior to June 30, 2006, have been fully paid or otherwise resolved and shall include provisions for:
(1) The termination of assessments against insurers or self-insurers;
(2) The pro rata refund of assessments previously collected and unexpended, consistent with the provisions of subsection (f) of Code Section 34-9-358;
(3) The termination of employment of the employees of the fund or the transfer of employment of any employees to any other state agency desiring to accept them;
(4) A final accounting of the financial affairs of the fund; and
(5) The transfer of the books, records, and property of the fund to the custody of the Department of Insurance.
Upon the completion of all matters provided for in such resolutions, but not later than December 31, 2025, the Subsequent Injury Trust Fund and the members of its board of trustees shall be discharged from their duties except for such personnel necessary to administer any remaining claims.
It is the purpose of this article through the establishment of a guaranty trust fund to provide for the continuation of workers' compensation benefits due and unpaid, excluding penalties, fines, and attorneys' fees assessed against a participant, when such participant becomes an insolvent self-insurer.
As used in this article, the term:
(1) “Applicant” means an employee entitled to workers' compensation benefits.
(2) “Board” means the State Board of Workers' Compensation.
(3) “Board of trustees” means the board of trustees of the fund.
(4) “Company” means a corporation, association, partnership, proprietorship, firm, or other form of business organization.
(5) “Fund” means the Self-insurers Guaranty Trust Fund established by this article.
(6) “Insolvent self-insurer” means a self-insurer:
(A) Who files for relief under the federal Bankruptcy Act;
(B) Against whom involuntary bankruptcy proceedings are filed;
(C) For whom a receiver is appointed in a federal or state court of this state or any other jurisdiction;
(D) Who is in default on workers' compensation obligations; or
(E) Who is determined by the board to be in noncompliance with workers' compensation obligations or requirements under the laws of this state and the rules and regulations of the board.
(7) “Participant” means a self-insurer who is a member of the fund.
(8) “Self-insurer” means a private employer, including any hospital authority created pursuant to the provisions of Article 4 of Chapter 7 of Title 31, the “Hospital Authorities Law,” that has been authorized to self-insure its payment of workers' compensation benefits pursuant to this chapter. The term “self-insurer” shall not mean or include any of the following:
(A) Any governmental employer authorized by the board to self-insure;
(B) Any employer who elects to group self-insure pursuant to Code Section 34-9-152;
(C) Captive insurers as provided for in Chapter 41 of Title 33;
(D) Any employer who, pursuant to any reciprocal agreements or contracts of indemnity executed prior to March 8, 1960, created funds for the purpose of satisfying the obligations of self-insured employers under this chapter; or
(E) Any individual or company who:
(i) Enters into a contract or agreement with an employer under which the employer outsources its workers' compensation risks, responsibilities, obligations, or liabilities to such individual or company; and
(ii) Pursuant to such contract or agreement, is required to provide workers' compensation benefits to an injured employee even though no common-law master-servant relationship or contract of employment exists between the injured employee and the individual or company providing the benefits.
(9) “Trustee” means a member of the Self-insurers Guaranty Trust Fund board of trustees.
(a) There is established a Self-insurers Guaranty Trust Fund for the sole purpose of making payments in accordance with this article. The fund shall be administered by an administrator appointed by the chairperson of the board of trustees with the approval of the board of trustees. All moneys in the fund shall be held in trust and shall not be money or property of the state or the participants and shall be exempt from levy, attachment, garnishment, or civil judgment for any claim or cause of action other than for not making payments in accordance with this article. The fund assets shall be invested only in obligations issued or guaranteed by the United States government.
(b) All returns on investments shall be retained by the fund. The funds of the Self-insurers Guaranty Trust Fund shall be for the purposes of compensating employees or their dependents who are eligible to receive workers' compensation benefits from their employers pursuant to the provisions of this chapter when, pursuant to this Code section, the board has determined that compensation benefits due are unpaid or interrupted due to the insolvency or default of a participant. Moneys in the fund may be used to compensate an employee or his or her dependents for any type of injury or occupational disease or death, including medical or rehabilitation expenses which are compensable under this chapter against a participant, and all claims for related administrative fees, operating costs of the fund, attorneys' fees incurred by the board of trustees or at its direction, and other costs reasonably incurred by the board of trustees. Payment from the Self-insurers Guaranty Trust Fund shall be made in accordance with this chapter.
(c) As a condition of self-insurance, all private employers, except those precluded from membership in the fund pursuant to subsection (d) of this Code section, shall make application to and be accepted in the Self-insurers Guaranty Trust Fund.
(d) Membership in the fund shall not be permitted for any of the following:
(1) Any governmental employer authorized by the board to self-insure;
(2) Any employer who elects to group self-insure pursuant to Code Section 34-9-152;
(3) Captive insurers as provided for in Chapter 41 of Title 33;
(4) Any employer who, pursuant to any reciprocal agreements or contracts of indemnity executed prior to March 8, 1960, created funds for the purpose of satisfying the obligations of self-insured employers under this chapter; or
(5) Any individual or company who:
(A) Enters into a contract or agreement with an employer under which the employer outsources its workers' compensation risks, responsibilities, obligations, or liabilities to such individual or company; and
(B) Pursuant to such contract or agreement, is required to provide workers' compensation benefits to an injured employee even though no common-law master-servant relationship or contract of employment exists between the injured employee and the individual or company providing the benefits.
(a) Each member of the board of trustees shall be an employee of a participant. The board of trustees shall consist of a chairperson and six trustees elected by the participants. The board of trustees shall initially be appointed by the Governor not later than August 1, 1990. Three of the initial trustees shall be appointed for terms of office which shall end on January 1, 1993, and the chairperson and the three other initial trustees shall be appointed for terms of office which shall end on January 1, 1995. Thereafter, each trustee shall be elected to a four-year term and shall continue to serve unless otherwise ineligible under subsection (b) of this Code section. No later than 90 days prior to the end of any member's term of office, the chairperson shall select a nominating committee from among the participants to select candidates for election by the participants for the following term. In the event the chairperson fails to complete his or her term of office, a successor shall be elected by the board of trustees to fill the unexpired term of office.
(b) A vacancy in the office of any elected member of the board of trustees shall occur upon the member’s resignation, death, or conviction of a felony or when the trustee’s employer no longer qualifies as a self-insured participant or the trustee is no longer an employee of a participant. The board of trustees may remove any trustee from office on a formal finding of incompetence, neglect of duty, or malfeasance in office. Within 30 days after the office of any elected member becomes vacant for any reason, the board of trustees shall elect a successor to fill that office for the unexpired term. Failure to fill the vacant office shall not invalidate any action taken by the board of trustees provided that said action is taken pursuant to an affirmative vote of not less than four trustees.
The board of trustees shall possess all powers necessary and convenient to accomplish the objectives prescribed by this article, including, but not limited to, the following:
(1) Not later than 90 days from its appointment, the board of trustees must make and submit to the board for approval such bylaws, rules, regulations, and resolutions as are necessary to carry out its responsibilities, including, but not limited to, the establishment of an application fee. The board of trustees may carry out its responsibilities directly or by contract or other instrument and may purchase such services, borrow money, purchase excess or liability insurance, levy penalties, fines, and assessments and collect such funds as it deems necessary to effectuate its activities and protect the members of the board of trustees and its administrator, agents, and employees. The board of trustees shall appoint, retain, and employ such persons as it deems necessary to achieve the purposes of the board of trustees. All expenses incurred pursuant to this provision shall be paid from the fund;
(2)(A) The board of trustees shall meet not less than quarterly and shall meet at other times upon the call of the chairperson, issued to the trustees in writing not less than 48 hours prior to the day and hour of the meeting, or upon a request for a meeting presented in writing to the chairperson not less than 72 hours prior to the proposed day and hour of the meeting and signed by at least a majority of the trustees, whereupon the chairperson shall provide notice issued in writing to the trustees not less than 48 hours prior to the meeting and shall convene the meeting at the time and place stated in the request.
(B) Any trustee may participate in a meeting of the board of trustees by telephone conference or similar communications technology which allows all individuals participating in the meeting to hear and speak with each other. Participation in a meeting pursuant to this subparagraph shall constitute presence in person at such meeting;
(3) Four trustees shall constitute a quorum to transact business at any meeting, and the affirmative vote of four trustees shall be necessary for any action taken by the board of trustees. No vacancy shall otherwise impair the rights of the remaining trustees to exercise all of the powers of the board of trustees;
(4) The board of trustees shall serve without compensation, but each member shall be entitled to be reimbursed for necessary and actual expenses incurred in the discharge of his or her official duties; and
(5) The board of trustees shall have the right to bring and defend actions only in the name of the fund. The administrator, the trustees, and the trustees' employers, agents, and employees shall not be liable jointly or individually for matters arising from or out of their conduct of the affairs of the fund while acting in the scope of their employment.
(a) Any participant who files for relief under the federal Bankruptcy Act or against whom bankruptcy proceedings are filed or for whom a receiver is appointed shall file written notice of such fact with the board and the board of trustees within 30 days of the occurrence of such event.
(b) Any individual who files an application for adjustment of a claim against a participant who is or becomes an insolvent self-insurer shall file a written notice of such participant's status with the board and the board of trustees within 30 days of such individual having knowledge of the participant becoming an insolvent self-insurer.
(c) Upon receipt of any notice as provided in subsection (a) or (b) of this Code section, the board shall determine whether the participant is an insolvent self-insurer. Such determination shall be made within a reasonable time after the date the board and board of trustees receive notification as provided in subsection (a) or (b) of this Code section.
(d) When a participant is determined to be an insolvent self-insurer, the board of trustees is empowered to and shall assume on behalf of the participant its outstanding workers' compensation obligations excluding penalties, fines, and claimant's attorneys' fees assessed against the participant pursuant to subsection (b) of Code Section 34-9-108 and shall take all steps necessary to collect, recover, and enforce all outstanding security, indemnity, insurance, or bonds furnished by such participant guaranteeing the payment of compensation provided in this chapter for the purpose of paying outstanding and continuing obligations of the participant. The board of trustees shall convert and deposit into a separate account established within the fund such security and any amounts received under agreements of surety, guaranty, insurance, or otherwise on behalf of the participant. Any amounts remaining from such security, indemnity, insurance, bonds, guaranties, and sureties, following payment of all compensation costs and related administrative expenses and fees of the board of trustees including attorneys' fees, and following collection of all amounts assessed and received pursuant to subsections (a) and (d) of Code Section 34-9-121 and any applicable rule of the board may be refunded by the fund as directed by the board of trustees, subject to the approval of the board, to the appropriate party one year from the date of final payment and closure of all claims, provided no outstanding self-insured liabilities remain against the fund and all applicable statutes of limitation have run.
(e) The fund shall be a party in interest in all proceedings involving workers' compensation claims against a participant whose workers' compensation obligations are to be paid or assumed by the fund and shall be subrogated to the rights of the participant. In such proceedings the fund shall assume and may exercise all rights and defenses of the participant, including, but not limited to:
(1) The right to appear, defend, and appeal claims;
(2) The right to receive notice of, investigate, adjust, compromise, settle, and pay claims; and
(3) The right to investigate, handle, and controvert claims.
(f) In any proceeding in bankruptcy in which the payment of benefits has been stayed, the board of trustees, through a designated representative, may appear and move to lift the stay so that the orderly administration of claims can proceed. The fund shall be subrogated to the rights and claims of any claimant against a participant to the extent of the payments made by the fund to the claimant and may pursue recovery against the participant to the extent of the claims paid or to be paid.
(g) The board of trustees shall notify all employees who have pending claims against a participant for workers' compensation benefits which are subject to the provisions of this article of the name, address, and telephone number of the party administering and defending their claim.
(h) The board may, in its discretion, direct that the Self-insurers Guaranty Trust Fund honor and pay, in whole or in part, the contractual fee arrangement between an attorney and a claimant pursuant to subsection (a) of Code Section 34-9-108, provided that application to honor the fee arrangement is made after notice pursuant to subsection (g) of this Code section and subject to consideration of objections by any party.
(i) No provision of this Code section shall impair any claims in the insolvent self-insurer's bankruptcy by the board of trustees, any employee, or any provider of services related to the insolvent self-insurer's workers' compensation obligations, to the extent those claims remain unpaid, including but not limited to medical providers or attorneys representing either the insolvent self-insurer or claimants.
(a)(1) The board of trustees shall, commencing January 1, 1991, assess each participant in accordance with paragraph (2) of this subsection. Upon reaching a funded level of $15 million net of all liabilities, all annual assessments against participants who have paid at least three prior assessments shall cease except as specifically provided in paragraph (4) of this subsection.
(2) Assessment for each new participant in the first calendar year of participation shall be $8,000.00. Thereafter, assessments shall be in accordance with paragraphs (3) and (4) of this subsection.
(3) After the first calendar year of participation, the annual assessment of each participant shall be made on the basis of a percentage of the total of indemnity and medical benefits paid by, or on behalf of, the participant during the previous calendar year. Except as provided in paragraph (2) of this subsection for the first calendar year of participation and paragraph (4) of this subsection, a participant will be assessed 1.5 percent of the medical and indemnity benefits paid by that participant during the previous calendar year or $2,000.00, whichever is greater. The maximum amount of annual assessments under this paragraph, not including those special assessments provided for in paragraph (4) of this subsection, in any calendar year against a participant shall be $8,000.00.
(4) If the fund is reduced to an amount below $5 million net of all liabilities as the result of the payment of claims, the administration of claims, or the costs of administration of the fund, the board of trustees may levy a special assessment against participants upon approval by the board, according to the same procedure for assessment set forth in paragraph (3) of this subsection, in an amount sufficient to increase the funded level to $5 million net of all liabilities; provided, however, that such special assessment in any calendar year against any one participant shall not exceed $8,000.00.
(5) Funds obtained by such assessments shall be used only for the purposes set forth in this article and shall be deposited upon receipt by the board of trustees into the fund. If payment of any assessment, penalty, or fine made under this article is not made within 30 days of the sending of the notice to the participant, the board of trustees is authorized to do any or all of the following:
(A) Levy fines or penalties;
(B) Proceed in court for judgment against the participant, including the amount of the assessment, fines, penalties, the costs of suit, interest, and reasonable attorneys' fees;
(C) Proceed directly against the security pledged by the participant for the collection of same; or
(D) Seek revocation of the participant's self-insured status.
(b)(1) The fund shall be liable for claims arising out of injuries occurring after January 1, 1991; provided, however, that no claim may be asserted against the fund until the funding level has reached $1.5 million.
(2) All active participants shall be required to maintain surety bonds or the board of trustees may, in its discretion, accept an irrevocable letter of credit in the amount of no less than $250,000.00. In addition, each active participant shall be required to purchase excess insurance for statutory limits with a self-insured retention specified by the board, and the excess policy shall include the bankruptcy endorsement required by the board and board of trustees. For participants who are no longer active, security in an amount commensurate with their remaining exposure, as determined by the board, shall be required until all self-insured claims have been closed and all applicable statutes of limitation have run.
(c) A participant who ceases to be a self-insurer shall be liable for any and all assessments, penalties, and fines made pursuant to this Code section for so long as indemnity or medical benefits are paid for claims which originated when the participant was a self-insurer. Assessments of such a participant shall be based on the indemnity and medical benefits paid by the participant during the previous calendar year.
(d) Upon refusal to pay assessments, penalties, or fines to the fund or upon refusal to comply with a board order, the fund may treat the self-insurer as being in default with this chapter and the self-insurer shall be subject to revocation of its board authorization to self-insure and forfeiture of its security.
(a) The board of trustees shall have the right and duty to obtain reimbursement from any participant for payment of compensation obligations in the amount of the participant's compensation obligations assumed by the board of trustees and paid from the fund by the board of trustees as directed by the board, including, but not limited to, claims for all benefits and reasonable administrative and legal costs. The amount of the claims for reimbursement of reasonable administrative and legal costs shall be subject to the approval of the board of trustees.
(b) The board of trustees shall have the right and obligation to use the security deposit of any participant, its excess insurance coverage, and of any other guarantee to pay the participant's workers' compensation obligation assumed by the board of trustees, including reasonable administrative and legal costs. The amount of the claims for reimbursement of reasonable administrative and legal costs shall be subject to the approval of the board of trustees.
(c) The board of trustees shall be a party in interest in any action or proceeding to obtain the security deposit of a participant for the payment of the participant's compensation obligations, in any action or proceeding under the participant's excess insurance policy, and in any other action or proceeding to enforce an agreement of any security deposit or captive or excess insurance carrier and from any other guarantee to satisfy such obligations. The fund is authorized to file a claim against an insolvent participant or the participant's agents and seek reimbursement for any payments made by the fund on behalf of the participant pursuant to this chapter. The fund is subrogated to the claim of any employee whose benefits are paid by the fund. Further, the fund shall have a lien against any reimbursement payments the participant is entitled to from the Subsequent Injury Trust Fund in an amount equal to the payments made by the fund to satisfy the participant's liability for workers' compensation benefits.
(a) It shall be the duty of the board to report to the board of trustees when the board has reasonable cause to believe that any participant examined or being examined may be in danger of insolvency.
(b) The board shall, at the inception of a participant's self-insured status and at least annually thereafter, so long as the participant remains self-insured, furnish the board of trustees with a complete, original bound copy of each participant's audited annual financial statement performed in accordance with generally accepted accounting standards by an independent certified public accounting firm, three to five years of loss history, name of the individual or company to administer claims, and any other pertinent information submitted to the board to authenticate the participant's self-insured status. The board of trustees may contract for the services of a qualified certified public accountant or firm to review, analyze, and make recommendations on these documents. All financial information submitted by a participant shall be considered confidential and not public information.
(c) The board of trustees shall make reports and recommendations to the board upon any matter germane to the solvency, liquidation, or rehabilitation of any participant. The board of trustees shall examine the same documents as required in subsection (b) of this Code section. Such reports and recommendations shall not be considered public documents.
(d) The board of trustees shall have the authority to review all applications for self-insurance and shall make recommendations to the board concerning the acceptance of the prospective self-insurer. If the board rejects in part or in whole the recommendations of the board of trustees, the board shall give written notice to the board of trustees ten days prior to accepting the application for self-insurance.
The State of Georgia shall not be responsible for any debts incurred as a result of the operation or administration of this fund.
It is the intent of the General Assembly to promote drug-free workplaces in order that employers in this state be afforded the opportunity to maximize their levels of productivity, enhance their competitive positions in the marketplace, and reach their desired levels of success without experiencing the costs, delays, and tragedies associated with work related accidents resulting from substance abuse by employees.
As used in this article, the term:
(1) “Alcohol” means ethyl alcohol, hydrated oxide of ethyl, or spirits of wine, from whatever source or by whatever process produced.
(2) “Chain of custody” means the methodology of tracking specified materials, specimens, or substances for the purpose of maintaining control and accountability from initial collection to final disposition for all such materials, specimens, or substances and providing for accountability at each stage in handling, testing, and storing materials, specimens, or substances and reporting test results.
(3) “Confirmation test,” “confirmed test,” or “confirmed substance abuse test” means a second analytical procedure used to identify the presence of a specific drug or metabolite in a specimen. The confirmation test must be different in scientific principle from that of the initial test procedure. This confirmation method must be capable of providing requisite specificity, sensitivity, and quantitative accuracy.
(4) “Drug” means amphetamines, cannabinoids, cocaine, phencyclidine (PCP), methadone, methaqualene, opiates, barbiturates, benzodiazepines, propoxyphene, or a metabolite of any such substances. An employer may test an individual for any or all of these.
(5) “Employee” means any person who works for salary, wages, or other remuneration for an employer.
(6)(A) “Employee Assistance Program” means a worksite focused program designed to assist:
(i) Employer work organizations in addressing employee productivity issues; and
(ii) Employee clients in the identification and resolution of job performance problems associated with employees impaired by personal concerns, including, but not limited to, health, marital, family, financial, alcohol, drug, legal, emotional, stress, or other personal issues that may affect job performance.
(B) A minimum level of core services must include consultation and training and assistance to work organization leadership in policy development, organizational development, and critical incident management; professional, confidential, appropriate, and timely problem assessment services; constructive intervention and short-term problem resolution; referrals for appropriate diagnosis, treatment, and assistance; follow-up, monitoring, and case management with providers and insurers; employee education and supervisory training; and quality assurance.
(C) An optimum level of core services must include, in addition to the minimum level core services, the designation of an individual who shall be responsible to administer the employer's Employee Assistance Program and to certify that the employer work organization's drug-free workplace program contains all elements of the drug-free workplace program required by Code Section 34-9-413 and that such program satisfies the annual certification requirements of Code Section 34-9-421; provided, however, that such individual shall have training and experience with Employee Assistance Programs in accordance with rules and regulations prescribed by the State Board of Workers' Compensation.
(7) “Employer” means a person or entity that is subject to the provisions of this chapter but shall not include the state or any department, agency, or instrumentality of the state; any county; any county or independent school system; any municipal corporation; or any employer which is self-insured for the purposes of this chapter.
(7.1) “Employer member of a group self-insurance fund” means any employer who is a member of a fund certified pursuant to Code Section 34-9-153.
(8) “Initial test” means a sensitive, rapid, and reliable procedure to identify negative and presumptive positive specimens. All initial tests shall use an immunoassay procedure or an equivalent procedure or shall use a more accurate scientifically accepted method approved by the National Institute on Drug Abuse as such more accurate technology becomes available in a cost-effective form.
(9) “Job applicant” means a person who has applied for a position with an employer and has been offered employment conditioned upon successfully passing a substance abuse test and may have begun work pending the results of the substance abuse test.
(10) “Nonprescription medication” means a drug or medication authorized pursuant to federal or state law for general distribution and use without a prescription in the treatment of human disease, ailments, or injuries.
(11) “Prescription medication” means a drug or medication lawfully prescribed by a physician for an individual and taken in accordance with such prescription.
(12) “Reasonable suspicion testing” means substance abuse testing based on a belief that an employee is using or has used drugs or alcohol in violation of the employer's policy drawn from specific objective and articulable facts and reasonable inferences drawn from those facts in light of experience. Among other things, such facts and inferences may be based upon, but not limited to, the following:
(A) Observable phenomena while at work such as direct observation of substance abuse or of the physical symptoms or manifestations of being impaired due to substance abuse;
(B) Abnormal conduct or erratic behavior while at work or a significant deterioration in work performance;
(C) A report of substance abuse provided by a reliable and credible source;
(D) Evidence that an individual has tampered with any substance abuse test during his or her employment with the current employer;
(E) Information that an employee has caused or contributed to an accident while at work; or
(F) Evidence that an employee has used, possessed, sold, solicited, or transferred drugs while working or while on the employer's premises or while operating the employer's vehicle, machinery, or equipment.
(13) “Rehabilitation program” means an established program capable of providing expert identification, assessment, and resolution of employee drug or alcohol abuse in a confidential and timely service. This service shall in all cases be provided by persons licensed or appropriately certified as health professionals to provide drug or alcohol rehabilitative services.
(13.1) “Self-insured employer” means any employer certified pursuant to Code Section 34-9-127.
(14) “Specimen” means tissue, blood, breath, urine, or other product of the human body capable of revealing the presence of drugs or their metabolites or of alcohol.
(15) “Substance” means drugs or alcohol.
(16) “Substance abuse test” or “test” means any chemical, biological, or physical instrumental analysis administered for the purpose of determining the presence or absence of a drug or its metabolites or of alcohol.
(17) “Threshold detection level” means the level at which the presence of a drug or alcohol can be reasonably expected to be detected by an initial and confirmatory test performed by a laboratory meeting the standards specified in this article. The threshold detection level indicates the level at which a valid conclusion can be drawn that the drug or alcohol is present in the employee's specimen.
If an employer work organization implements a drug-free workplace program substantially in accordance with subsections (a) and (b) of Code Section 34-9-413, the employer work organization shall qualify for certification for a premium discount under such employer's workers' compensation insurance policy as provided in Code Section 33-9-40.2.
A self-insured employer or an employer member of a group self-insurance fund who implements a drug-free workplace program substantially in accordance with Code Section 34-9-413 and who complies with all other provisions of this article required of employers in order to qualify for insurance premium discounts shall be certified by the State Board of Workers' Compensation as having a drug-free workplace program in compliance with this article.
(a) A drug-free workplace program must contain the following elements:
(1) Written policy statement as provided in Code Section 34-9-414;
(2) Substance abuse testing as provided in Code Section 34-9-415;
(3) Resources of employee assistance providers maintained in accordance with Code Section 34-9-416;
(4) Employee education as provided in Code Section 34-9-417; and
(5) Supervisor training in accordance with Code Section 34-9-418.
(b) In addition to the requirements of subsection (a) of this Code section, a drug-free workplace program must be implemented in compliance with the confidentiality standards provided in Code Section 34-9-420.
(c) A drug-free workplace program may offer and include the optimum level core services as described in subparagraph (C) of paragraph (6) of Code Section 34-9-411.
(a) One time only, prior to testing, all employees and job applicants for employment must be given a notice of testing. In addition, all employees must be given a written policy statement from the employer which contains:
(1) A general statement of the employer's policy on employee substance abuse which shall identify:
(A) The types of testing an employee or job applicant may be required to submit to, including reasonable suspicion or other basis used to determine when such testing will be required; and
(B) The actions the employer may take against an employee or job applicant on the basis of a positive confirmed test result;
(2) A statement advising an employee or job applicant of the existence of this article;
(3) A general statement concerning confidentiality;
(4) The consequences of refusing to submit to a drug test;
(5) A statement advising an employee of the Employee Assistance Program, if the employer offers such program, or advising the employee of the employer's resource file of assistance programs and other persons, entities, or organizations designed to assist employees with personal or behavioral problems;
(6) A statement that an employee or job applicant who receives a positive confirmed test result may contest or explain the result to the employer within five working days after written notification of the positive test result; and
(7) A statement informing an employee of the provisions of the federal Drug-Free Workplace Act 1 or Chapter 23 of Title 45, the “Drug-free Public Work Force Act of 1990,” if applicable to the employer.
(b) An employer not having a substance abuse testing program in effect on July 1, 1993, shall ensure that at least 60 days elapse between a general one-time notice to all employees that a substance abuse testing program is being implemented and the beginning of the actual testing. An employer having a substance abuse testing program in place prior to July 1, 1993, shall not be required to provide a 60 day notice period.
(c) An employer shall include notice of substance abuse testing on vacancy announcements for those positions for which testing is required. A notice of the employer's substance abuse testing policy must also be posted in an appropriate and conspicuous location on the employer's premises, and copies of the policy must be made available for inspection by the employees or job applicants of the employer during regular business hours in the employer's personnel office or other suitable locations.
1 41 U.S.C.A. § 701 et seq.
(a) All testing conducted by an employer shall be in conformity with the standards and procedures established in this article and all applicable rules adopted by the State Board of Workers' Compensation pursuant to this article. However, an employer shall not have a legal duty under this article to request an employee or job applicant to undergo testing.
(b) An employer is required to conduct the following types of tests in order to qualify for the workers' compensation insurance premium discounts provided under Code Section 34-9-412 and Code Section 33-9-40.2:
(1) An employer must require job applicants to submit to a substance abuse test after extending an offer of employment. Testing at the employer worksite with on-site testing kits that satisfy testing criteria in this article shall be deemed suitable and acceptable postoffer testing. Limited testing of job applicants by an employer shall qualify under this paragraph if such testing is conducted on the basis of reasonable classifications of job positions;
(2) An employer must require an employee to submit to reasonable suspicion testing;
(3) An employer must require an employee to submit to a substance abuse test if the test is conducted as part of a routinely scheduled employee fitness-for-duty medical examination that is part of the employer's established policy or that is scheduled routinely for all members of an employment classification or group;
(4) If the employee in the course of employment enters an Employee Assistance Program or a rehabilitation program as the result of a positive test, the employer must require the employee to submit to a substance abuse test as a follow-up to such program. However, if an employee voluntarily entered the program, follow-up testing is not required. If follow-up testing is conducted, the frequency of such testing shall be at least once a year for a two-year period after completion of the program and advance notice of the testing date shall not be given to the employee;
(5) If the employee has caused or contributed to an on the job injury which resulted in a loss of worktime, the employer must require the employee to submit to a substance abuse test; and
(6) Urinalysis conducted by laboratories, testing at the employer worksite with on-site testing kits, or use of oral testing that satisfies testing criteria in this article shall be deemed suitable and acceptable substance abuse testing.
(c) Nothing in this Code section shall prohibit a private employer from conducting random testing or other lawful testing of employees.
(d) All specimen collection and testing under this Code section shall be performed in accordance with the following procedures:
(1) A specimen shall be collected with due regard to the privacy of the individual providing the specimen and in a manner reasonably calculated to prevent substitution or contamination of the specimen;
(2) Specimen collection shall be documented, and the documentation procedures shall include:
(A) Labeling of specimen containers so as to reasonably preclude the likelihood of erroneous identification of test results; and
(B) An opportunity for the employee or job applicant to record any information he or she considers relevant to the test, including identification of currently or recently used prescription or nonprescription medication or other relevant medical information. The providing of information shall not preclude the administration of the test, but shall be taken into account in interpreting any positive confirmed results;
(3) Specimen collection, storage, and transportation to the testing site shall be performed in a manner which will reasonably preclude specimen contamination or adulteration;
(4) Each initial test conducted under this Code section shall be conducted by a laboratory as described in subsection (e) of this Code section or conducted using an on-site testing kit or oral testing that satisfies the testing criteria in this article. Each confirmation test conducted under this Code section, not including the taking or collecting of a specimen to be tested, shall be conducted by a laboratory as described in subsection (e) of this Code section;
(5) A specimen for a test may be taken or collected by any of the following persons:
(A) A physician, a physician assistant, a registered professional nurse, a licensed practical nurse, a nurse practitioner, or a certified paramedic who is present at the scene of an accident for the purpose of rendering emergency medical service or treatment;
(B) A qualified person certified or employed by a laboratory certified by the National Institute on Drug Abuse, the College of American Pathologists, or the Georgia Department of Community Health;
(C) A qualified person certified or employed by a collection company;
(D) For the purpose of a pre-job offer screening only, a person trained and qualified to conduct on-site testing; or
(E) For the purpose of a pre-job offer screening only, a person trained and qualified to conduct oral testing, if an oral test is used;
(6) Within five working days after receipt of a positive confirmed test result from the laboratory, an employer shall inform an employee or job applicant in writing of such positive test result, the consequences of such results, and the options available to the employee or job applicant;
(7) The employer shall provide to the employee or job applicant, upon request, a copy of the test results;
(8) An initial test having a positive result must be confirmed by a confirmation test conducted in a laboratory in accordance with the requirements of this article;
(9) An employer who performs drug testing or specimen collection shall use chain of custody procedures to ensure proper record keeping, handling, labeling, and identification of all specimens to be tested. This requirement shall apply to all specimens, including specimens collected using on-site testing kits;
(10) An employer shall pay the cost of all drug tests, initial and confirmation, which the employer requires of employees;
(11) An employee or job applicant shall pay the cost of any additional tests not required by the employer; and
(12) If testing is conducted based on reasonable suspicion, the employer shall promptly detail in writing the circumstances which formed the basis of the determination that reasonable suspicion existed to warrant the testing. A copy of this documentation shall be given to the employee upon request and the original documentation shall be kept confidential by the employer pursuant to Code Section 34-9-420 and retained by the employer for at least one year.
(e)(1) No laboratory may analyze initial or confirmation drug specimens unless:
(A) The laboratory is approved by the National Institute on Drug Abuse or the College of American Pathologists;
(B) The laboratory has written procedures to ensure the chain of custody; and
(C) The laboratory follows proper quality control procedures including, but not limited to:
(i) The use of internal quality controls including the use of samples of known concentrations which are used to check the performance and calibration of testing equipment and periodic use of blind samples for overall accuracy;
(ii) An internal review and certification process for drug test results conducted by a person qualified to perform that function in the testing laboratory;
(iii) Security measures implemented by the testing laboratory to preclude adulteration of specimens and drug test results; and
(iv) Other necessary and proper actions taken to ensure reliable and accurate drug test results.
(2) A laboratory shall disclose to the employer a written test result report within seven working days after receipt of the sample. All laboratory reports of a substance abuse test result shall, at a minimum, state:
(A) The name and address of the laboratory which performed the test and the positive identification of the person tested;
(B) Positive results on confirmation tests only, or negative results, as applicable;
(C) A list of the drugs for which the drug analyses were conducted; and
(D) The type of tests conducted for both initial and confirmation tests and the minimum cut-off levels of the tests.
No report shall disclose the presence or absence of any drug other than a specific drug and its metabolites listed pursuant to this article.
(3) Laboratories shall provide technical assistance to the employer, employee, or job applicant for the purpose of interpreting any positive confirmed test results which could have been caused by prescription or nonprescription medication taken by the employee or job applicant.
(f) If an initial drug test is negative, the employer may in its sole discretion seek a confirmation test. Only laboratories as described in subsection (e) of this Code section shall conduct confirmation drug tests.
(g) All positive initial tests, regardless of the testing methodology used, shall be confirmed using the gas chromatography/mass spectrometry (GC/MC) method or an equivalent or more accurate scientifically accepted methods approved by the National Institute on Drug Abuse as such technology becomes available in a cost-effective form.
(a) If an employer has an Employee Assistance Program, the employer must inform the employee of the benefits and services of the Employee Assistance Program. In addition, the employer must provide the employee with notice of the policies and procedures regarding access to and utilization of the program.
(b) If an employer does not have an Employee Assistance Program, the employer must maintain a resource file of providers of other employee assistance including drug and alcohol abuse programs, mental health providers, and other persons, entities, or organizations available to assist employees with personal or behavioral problems and must notify the employee in writing of the availability of this resource file. In addition, the employer shall post in a conspicuous place a current listing of providers of employee assistance in the area. Such listing of available providers shall be reviewed and updated by the employer during the month of July of each year at which time the employer shall, when necessary, correct and revise information on all providers listed. Employers shall take reasonable care to identify appropriate providers and supply accurate telephone and address information on the posted listing of providers at all times.
(a) During the initial year of certification as provided in Code Section 34-9-412.1, an employer must provide all employees with a semiannual education program on substance abuse, in general, and its effects on the workplace, specifically. During the initial year, the first hour of the education program must include but is not limited to the following information:
(1) The explanation of the disease model of addiction for alcohol and drugs;
(2) The effects and dangers of the commonly abused substances in the workplace; and
(3) The company's policies and procedures regarding substance abuse in the workplace and how employees who wish to obtain substance abuse treatment can do so.
(b) During the second and any consecutive subsequent years of certification, an employer must provide all employees with an annual education program.
(a) During the initial year of certification as provided in Code Section 34-9-412.1 and in addition to the education program provided in Code Section 34-9-417, an employer must provide all supervisory personnel with a minimum of two hours of supervisor training, which must include but is not limited to the following information:
(1) How to recognize signs of employee substance abuse;
(2) How to document and corroborate signs of employee substance abuse; and
(3) How to refer substance abusing employees to the proper treatment providers.
(b) During the second and any consecutive subsequent years of certification, an employer must provide all supervisory personnel with a minimum of one hour of such supervisory training.
(a) No physician-patient relationship is created between an employee or job applicant and an employer, medical review officer, or any person performing or evaluating a drug test solely by the establishment, implementation, or administration of a drug-testing program.
(b) Nothing in this article shall be construed to prevent an employer from establishing reasonable work rules related to employee possession, use, sale, or solicitation of drugs, including convictions for drug related offenses, and taking action based upon a violation of any of those rules.
(c) Nothing in this article shall be construed to operate retroactively, and nothing in this article shall abrogate the right of an employer under state or federal law to conduct drug tests, or implement employee drug-testing programs; provided, however, only those programs that meet the criteria outlined in this article qualify for reduced workers' compensation insurance premiums under Code Section 33-9-40.2.
(d) Nothing in this article shall be construed to prohibit an employer from conducting medical screening or other tests required, permitted, or not disallowed by any statute, rule, or regulation for the purpose of monitoring exposure of employees to toxic or other unhealthy materials in the workplace or in the performance of job responsibilities. Such screening or tests shall be limited to the specific materials expressly identified in the statute, rule, or regulation, unless prior written consent of the employee is obtained for other tests.
(e) No cause of action shall arise in favor of any person based upon the failure of an employer to establish or conduct a program or policy for substance abuse testing.
(a) All information, interviews, reports, statements, memoranda, and test results, written or otherwise, received by the employer through a substance abuse testing program are confidential communications, but may be used or received in evidence, obtained in discovery, or disclosed in any civil or administrative proceeding, except as provided in subsection (d) of this Code section.
(b) Employers, laboratories, medical review officers, employee assistance programs, drug or alcohol rehabilitation programs, and their agents who receive or have access to information concerning test results shall keep all information confidential. Release of such information under any other circumstance shall be solely pursuant to a written consent form signed voluntarily by the person tested, unless such release is compelled by an agency of the state or a court of competent jurisdiction or unless deemed appropriate by a professional or occupational licensing board in a related disciplinary proceeding. The consent form must contain at a minimum:
(1) The name of the person who is authorized to obtain the information;
(2) The purpose of the disclosure;
(3) The precise information to be disclosed;
(4) The duration of the consent; and
(5) The signature of the person authorizing release of the information.
(c) Information on test results shall not be released or used in any criminal proceeding against the employee or job applicant. Information released contrary to this subsection shall be inadmissible as evidence in any such criminal proceeding.
(d) Nothing contained in this article shall be construed to prohibit the employer or laboratory conducting a test from having access to employee test information when consulting with legal counsel when the information is relevant to its defense in a civil or administrative matter.
The State Board of Workers' Compensation shall promulgate by rule or regulation procedures and forms for the certification of employers who establish and maintain a drug-free workplace which complies with the provisions of this article. The board shall be authorized to charge a fee for the certification of a drug-free workplace program in an amount which shall approximate the administrative costs to the board of such certification. Certification of an employer shall be required for each year in which a premium discount is granted. The State Board of Workers' Compensation shall be authorized to promulgate rules and regulations necessary for the implementation of this article.
As used in this article, the term:
(1) “Employer” means a person or entity that is subject to the provisions of this chapter but shall not include the state or any department, agency, or instrumentality of the state; any county; any county or independent school system; any municipal corporation; or any employer which is self-insured for the purposes of this chapter.
(2) “Employer member of a group self-insurance fund” means any employer who is a member of a fund certified pursuant to Code Section 34-9-153.
(3) “Self-insured employer” means any employer certified pursuant to Code Section 34-9-127.
(4) “Work based learning coordinator” means a school employee who coordinates and supervises students in work based learning placements.
(5) “Work based learning employer” means an employer who provides work based learning placements in accordance with this article.
(6) “Work based learning placement” or “placement” means an arrangement between a business or industry partner and a local school system in which students are released for a portion of the school day for structured learning at an employer's job site in either a paid or unpaid position while receiving academic credit. Work based learning placements include, but are not limited to, employability skill development, service learning, cooperative education, internship, youth apprenticeship, and clinical experiences.
(7) “Work based learning student” means a student age 16 or older in a work based learning placement for an employer.
(a) A work based learning employer that has been certified pursuant to this Code section may be eligible for a premium discount under such employer's workers' compensation insurance policy pursuant to Code Section 33-9-40.3.
(b) The State Board of Education shall certify to the State Board of Workers' Compensation that a work based learning employer meets the following requirements:
(1) Enters into a training agreement with one or more work based learning students, the student's parent or guardian, and the school's work based learning coordinator;
(2) Develops, in conjunction with the school's work based learning coordinator, a detailed training plan for the work based learning student that focuses on development of technical skills and employability skills;
(3) Assigns a mentor to the work based learning student and assists in monitoring the progress of such student;
(4) Provides workers' compensation insurance coverage for the work based learning student;
(5) Complies with all federal, state, and local laws and regulations regarding the employment of students; and
(6) Complies with the rules and regulations of the State Board of Education.
A self-insured employer or an employer member of a group self-insurance fund that provides work based learning placements for one or more work based learning students substantially in accordance with Code Section 34-9-431 and that complies with all other provisions of this article required of employers in order to qualify for insurance premium discounts may be certified by the State Board of Education to the State Board of Workers' Compensation as a work based learning employer in compliance with this article.
As used in this chapter, the term:
(1) “Hazardous chemical” means any chemical, which is a physical hazard or a health hazard, as those terms are defined in Code Section 45-22-2.
(2) “Labor pool” means a business entity which operates by:
(A) Contracting with other entities or persons to supply them with temporary employees for short-term assignments of casual labor;
(B) Hiring persons to fulfill these contracts for short-term assignments of casual labor; and
(C) Employing each individual employee no longer than the time period required to complete the assignment for which that individual employee was hired, although an individual may be eligible for rehire when additional temporary assignments are available.
A business entity which fulfills any contracts in accordance with this paragraph is a labor pool, even if the entity also conducts other business.
(3) “Labor pool” does not include a temporary help service that requires advanced applications, job interviews and references.
(4) “Short-term assignment of casual labor” means a work assignment for a term of 40 hours or less involving work for which neither entity nor person contracting or arranging for temporary employees requires any of the following from such employees:
(A) A professional or occupational license which requires for its issuance a demonstration of knowledge or proficiency and which is issued by the State of Georgia or a political subdivision of the state;
(B) A high school diploma or its equivalent;
(C) Education beyond high school;
(D) Vocational education;
(E) Demonstrated proficiency with a specified type of machinery; or
(F) Training before the assignment or on the job which exceeds one hour.
This paragraph shall not be construed as prohibiting or limiting the placement of a skilled employee on a short-term assignment of casual labor as long as such skill or education is not a requirement of the assignment.
(5) “Work-site employer” means any business entity or employing unit with which a labor pool contracts or otherwise agrees to furnish temporary workers for short-term assignments of casual labor.
A labor pool or work-site employer shall be prohibited from engaging in any of the following acts or practices:
(1) Charging a temporary employee a rental fee or any other type of fee for supplying any type of equipment to be used by the temporary employee in performing a work assignment;
(2) Charging a temporary employee a transportation fee for the transporting of such employee from the business premises of the labor pool or other point of embarkation to or from a work assignment;
(3) Failing to inform a person who is to be placed on a work assignment involving exposure to hazardous chemicals that such assignment involves the exposure of such person to hazardous chemicals and failing to obtain such person's consent on the form described in Code Section 34-10-3;
(4) Failing to provide a pay stub or register to the temporary employee to indicate the number of hours worked, the rate of pay, and any deduction therefrom; or
(5) Paying a temporary employee in any medium other than cash or check; provided, however, that any check must be redeemable at full value.
(a) The Department of Labor shall promulgate by rule or regulation the language and format of a consent form to be provided and used by a labor pool to inform persons that a work assignment involves the exposure to hazardous chemicals and to obtain such person's consent as required in paragraph (3) of Code Section 34-10-2.
(b) The Commissioner of Labor shall have the power and authority to adopt or rescind such rules or regulations and to employ such persons, make such expenditures, require such reports, make such investigations, and take such other action as deemed necessary or suitable to effectuate and enforce the provisions of this chapter.
(c) Any labor pool or work-site employer which is found by the department, after notice and an opportunity for a hearing, to have willfully violated any provision of this chapter shall be subject to an administrative fine not to exceed $1,000.00 for each separate violation. Each day during which any such violation occurs shall constitute a separate violation.
(d) Any determination by the department that a labor pool or work-site employer has willfully violated any provision of this chapter shall be subject to appeal. Any hearing conducted pursuant to this Code section shall be conducted in accordance with Chapter 13 of Title 50, the “Georgia Administrative Procedure Act.”
(a) Any person convicted of a violation of paragraph (1), (2), (4), or (5) of Code Section 34-10-2 shall be guilty of a misdemeanor and shall be punished as provided in Code Section 17-10-3, relating to punishment for misdemeanor offenses.
(b) Any person convicted of a violation of paragraph (3) of Code Section 34-10-2 shall be guilty of a misdemeanor of a high and aggravated nature and shall be punished by imprisonment for a term not to exceed 12 months or a fine of not less than $1,000.00 or more than $5,000.00, or both.
Any person damaged by a violation of Code Section 34-10-2 shall have the right to bring a civil action in a court of competent jurisdiction against the person or persons responsible for such violation. In any action commenced pursuant to this Code section, the plaintiff shall be entitled to recover actual damages, reasonable attorneys' fees, costs of litigation, and punitive damages where appropriate.
Nothing in this chapter shall be construed to relieve any business entity or employing unit which is subject to any of the provisions of this chapter from the responsibility of said business entity or employing unit to comply with any other provision of state or federal law, including, but not specifically limited to, the federal Occupational Safety and Health Act 1 or with any county or municipal law, rule, or ordinance which is not in direct conflict with any provision of this chapter.
1 29 U.S.C.A. § 651 et seq.
(a)(1) Pursuant to Public Law 105-220 and any subsequent amendment to such law, the State Workforce Development Board is hereby created.
(2) The State Workforce Development Board shall meet federal composition requirements. The Lieutenant Governor and the Speaker of the House of Representatives shall each have the authority to appoint members as federal law allows. The Governor shall be responsible for selecting the remainder of the members.
(3) The State Workforce Development Board's members' terms of service shall be established by the Governor and shall be at the discretion of the appointing authority.
(4) The State Workforce Development Board shall have powers and duties as specified by the Governor and as provided for in federal law.
(5) The State Workforce Development Board shall be authorized to establish, alter, or amend local workforce development areas in this state and shall be authorized to promulgate rules implementing and governing such local workforce development areas that are compliant with federal law.
(6) The State Workforce Development Board shall meet quarterly or when otherwise requested by the chairperson and shall be governed by a set of bylaws which shall be voted on and approved by the State Workforce Development Board.
(7) The State Workforce Development Board shall be funded by federal law.
(8) The State Workforce Development Board shall be authorized to promulgate rules and regulations for purposes of implementing the state's workforce policy that are compliant with federal law.
(b)(1) The Technical College System of Georgia is designated as the administrator of all programs for which the state is responsible pursuant to Public Law 105-220 and any subsequent amendment to such law.
(2) The Technical College System of Georgia shall administer such programs and their associated funds pursuant to the policies and methods of implementation which are promulgated by the State Workforce Development Board and the Governor.
(a) The State Workforce Development Board is hereby authorized to develop and facilitate the workforce programs in this state. A local workforce development area's chief local elected official may designate a local fiscal agent or a grant recipient which shall be either a municipal government, county government, consolidated government, or regional commission located within the physical boundaries of the local workforce development area and who shall be approved by the State Workforce Development Board in a procedure established through rule.
(b) The State Workforce Development Board may enforce the provisions of this chapter and the applicable federal law if the provisions of either are violated.
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