2021 Georgia Code
Title 34 - Labor and Industrial Relations
Chapter 7 - Employment Generally; Employer's Liability
Article 1 - General Provisions

- Pursuant to Code Section 28-9-5, in 2017, the Part 1 and Part 2 designations were added in this article.

ANALYSIS

• General Consideration
• Servant's Detour from Duties
• Employee's Rights After Termination of Employment

General Consideration

Basis of master/servant relationship.

- Relationship of master and servant arises out of a contract of employment expressed or implied between a master or employer upon the one hand, and the servant upon the other hand. Small v. Nu Grape Co. of Am., 46 Ga. App. 306, 167 S.E. 607 (1933).

- Master has a superior choice, control, and direction of the servant, and whose will the servant represents not merely in the ultimate results of the work but in the details. Small v. Nu Grape Co. of Am., 46 Ga. App. 306, 167 S.E. 607 (1933).

- Servant is a person employed to labor for the pleasure or the interest of another. Small v. Nu Grape Co. of Am., 46 Ga. App. 306, 167 S.E. 607 (1933).

- Agency relates to business transactions, while the work of a servant relates to manual service. Headrick v. Fordham, 154 Ga. App. 415, 268 S.E.2d 753 (1980).

- Charge of the court to the jury to the effect that, if a used car lot owner retained the right to direct or control the time or manner of executing the work of a salesman and had the right to discharge the salesman and to determine at any time the arrangement between them, their relationship would be that of employer and employee or that of master and servant; but that, if the dealer did not have these rights, then the relationship between the dealer and the salesman would be another relationship, "such as the relationship of independent contractor and principal," was an accurate statement of the law. Hamilton v. Pulaski County, 86 Ga. App. 705, 72 S.E.2d 487 (1952).

Crucial test to be applied in determining whether the relationship of the parties under a contract for the performance of labor is that of master and servant, or that of employer and independent contractor, lies in whether the contract gives, or the employer assumes, the right to control the time, manner and method of executing the work, as distinguished from the right merely to require certain definite results in conformity to the contract. Federated Mut. Implement & Hdwe. Ins. Co. v. Elliott, 88 Ga. App. 266, 76 S.E.2d 568 (1953).

- Specialization alone is not an infallible test in determining whether one is a servant or an independent contractor. Federated Mut. Implement & Hdwe. Ins. Co. v. Elliott, 88 Ga. App. 266, 76 S.E.2d 568 (1953).

Servant's Detour from Duties

Servant's detour and return.

- Although a servant may have made a temporary departure from the service of a master, and in so doing may for the time have severed the relationship of master and servant, yet, when the object of the servant's departure has been accomplished and the servant has resumed the discharge of the duties to the master, the responsibility of the master for the acts of the servant reattaches. Atlanta Furn. Co. v. Walker, 51 Ga. App. 781, 181 S.E. 498 (1935).

If a servant whose duty is to drive a truck and to make delivery of an article of merchandise at a designated place makes a temporary departure from the service of a master on a mission of the servant's own, but resumes the servant's duties and has a wreck, the servant's negligence is the negligence of the master. Atlanta Furn. Co. v. Walker, 51 Ga. App. 781, 181 S.E. 498 (1935).

Employee's Rights After Termination of Employment

Competition with former employer.

- After termination of employment, an employee normally is free to engage in competition with a former employer and to solicit the employer's customers, in the absence of an agreement to the contrary. Southeast Consultants, Inc. v. McCrary Eng'r Corp., 246 Ga. 503, 273 S.E.2d 112 (1980).

- Person who leaves the employment of another has a right to take with the person all the skill the person has acquired, all the knowledge the person has obtained, and all the information that the person has received, so long as nothing is taken that is the property of the employer. Southeast Consultants, Inc. v. McCrary Eng'r Corp., 246 Ga. 503, 273 S.E.2d 112 (1980).

- Trade secrets are the property of the employer and cannot be taken or used by the employee for the employee's own benefit, but knowledge on the part of the employee concerning the names and addresses of customers is not the property of the employer. Southeast Consultants, Inc. v. McCrary Eng'r Corp., 246 Ga. 503, 273 S.E.2d 112 (1980).

RESEARCH REFERENCES

ALR.

- Distribution of employees' relief fund on discontinuance of business or dissolution, 1 A.L.R. 629.

Master's responsibility for injury to or death of servant during labor dispute, 1 A.L.R. 673.

Wrongful discharge of servant - doctrine of "constructive service," 8 A.L.R. 338; 17 A.L.R. 629.

Validity and enforceability of restrictive covenants in contracts of employment, 9 A.L.R. 1456; 20 A.L.R. 861; 29 A.L.R. 1331; 52 A.L.R. 1362; 67 A.L.R. 1002; 98 A.L.R. 963.

Employer's right to earnings or profits made by employee, 13 A.L.R. 905; 71 A.L.R. 933.

Liability of master for injury to one whom servant, in violation of instructions, permits to ride on vehicle, 14 A.L.R. 145; 62 A.L.R. 1167; 74 A.L.R. 163.

Statute prescribing damages for forcibly ejecting or excluding one from possession of real property as applying to possession held by one as servant or employee, 14 A.L.R. 808.

Right to inventions as between employer and employee, 16 A.L.R. 1177; 32 A.L.R. 1027; 44 A.L.R. 593; 85 A.L.R. 1512; 153 A.L.R. 983; 61 A.L.R.2d 356.

Liability of employer for injuries inflicted by automobile while being driven by or for salesman or collector, 17 A.L.R. 621; 29 A.L.R. 470; 54 A.L.R. 627; 107 A.L.R. 419.

General discussion of the nature of the relationship of employer and independent contractor, 19 A.L.R. 226.

Circumstances under which the existence of the relationship of employer and independent contractor is predicable, 19 A.L.R. 1168.

Right of employee to bonus as affected by termination of employment before bonus becomes payable, 28 A.L.R. 346.

Liability of employer for acts or omissions of independent contractor in respect of positive duties of former arising from or incidental to contractual relationships, 29 A.L.R. 736.

Implied promise of employer to pay royalty for use of patented article invented by employee, 32 A.L.R. 1045.

Nature and extent of master's duty under contract to furnish medical aid to servant, 33 A.L.R. 1191.

Workmen's Compensation Act as affecting master's duty and liability under contract to furnish medical treatment to employees, 33 A.L.R. 1204.

One doing work under a cost plus contract as an independent contractor, or a servant or an agent, 55 A.L.R. 291.

One in general employment of contractee, but who at time of accident was assisting or cooperating with, an independent contractor, as employee of former or latter for the time, 55 A.L.R. 1263.

Liability for refusal to give, or because of reasons assigned in, clearance card, service letter, or other statement of reasons for termination of employment, 57 A.L.R. 1073.

Salesman employed on a percentage or commission basis as a servant or an independent contractor, 61 A.L.R. 223.

Constitutionality of statute relating to purchase of capital stock by employees of corporation, 63 A.L.R. 841.

One transporting children to or from school as independent contractor, 66 A.L.R. 724.

Employer's right to earnings or profits made by employee, 71 A.L.R. 933.

Employer's offer to take back employee wrongfully discharged as affecting former's liability, 72 A.L.R. 1049.

Right of employer to have former employee deliver up information obtained during the employment, 93 A.L.R. 1323.

Rights and liabilities with respect to private pensions as between employer and employee, 96 A.L.R. 1093.

Relationship of employer and employee between parties to contract not relating to employment itself, as creating presumption of fraud, 100 A.L.R. 875.

Employee's or agent's acceptance of bonus, gratuity, or other personal benefit from one with whom he deals on employer's or principal's account as affecting his right to recover wages, salary, or commissions, 102 A.L.R. 1115.

When cause of action between master and servant deemed to be upon a liability created by statute within contemplation of statute of limitations, 104 A.L.R. 462.

Oral contract of employment terminable by either party at will as within statute of frauds relating to contracts not to be performed within year, 104 A.L.R. 1006.

Grounds for discharge of servant or agent existing during lifetime of employer, but unknown to him, as available to his executor or administrator, 109 A.L.R. 474.

One soliciting subscriptions for newspaper, magazine, or book, on commission basis as an independent contractor or employee, 126 A.L.R. 1120.

Status as employee or servant as affected by misrepresentations in obtaining employment, 136 A.L.R. 1124.

Provision of Fair Labor Standards Act for increased compensation for overtime, 140 A.L.R. 1263; 152 A.L.R. 1030; 169 A.L.R. 1307.

Bylaw of corporation authorizing removal of officer, agent, or employee at any time, as affecting contract of employment for a specified period, 145 A.L.R. 312.

Application and effect of "shop right rule" or license giving employer limited rights in employees' inventions and discoveries, 61 A.L.R.2d 356.

Construction and application of provision of contract for compensation of employee upon dismissal or discharge, 147 A.L.R. 151; 40 A.L.R.2d 1044.

Validity of statute or regulation in respect of tips, 147 A.L.R. 1039.

Constitutionality, construction, and application of statutes prohibiting agreements to refund wages under employment contracts ("kickback" agreements), 149 A.L.R. 495.

Enforceability of restrictive covenant, ancillary to employment contract, as affected by duration of restriction, 41 A.L.R.2d 15.

Pleading mitigation of damages, or the like, in employee's action for breach of employment contract, 41 A.L.R.2d 955.

Eviction of employee or threat thereof from housing furnished by employer as constituting unlawful coercion or unfair labor practice, 48 A.L.R.2d 995.

Right of employer, liable for wrongful discharge or retirement, to reduce or mitigate damages by amount of social security or retirement benefits received by employee, 48 A.L.R.2d 1293.

Assignability of statutory claim against employer for nonpayment of wages, 48 A.L.R.2d 1385.

Application and effect of "shop right rule" or license giving employer limited rights in employees' inventions and discoveries, 61 A.L.R.2d 356.

Liability of employer for agreed advances or drawing account which exceed commissions or share of profits earned, 95 A.L.R.2d 504.

Provision in employment contract requiring written notice before instituting action, 4 A.L.R.3d 439.

Pre-employment conduct as ground for discharge of civil service employee having permanent status, 4 A.L.R.3d 488.

Who is "employee" under employee stock-option plan or contract, 57 A.L.R.3d 787.

Validity and construction of contractual restrictions on right of medical practitioner to practice, incident to employment agreement, 62 A.L.R.3d 1014.

Liability of member of unincorporated association for tortious acts of association's nonmember agent or employee, 62 A.L.R.3d 1165.

Reduction in rank or authority or change of duties as breach of employment contract, 63 A.L.R.3d 539.

Liability of charitable organization under respondeat superior doctrine for tort of unpaid volunteer, 82 A.L.R.3d 1213.

Exchange of labor by farmers as creating employment relationship for liability insurance purposes, 89 A.L.R.3d 834.

Vacation pay rights of private employees not covered by collective labor contract, 33 A.L.R.4th 264.

Sufficiency of notice of modification in terms of compensation of at-will employee who continues performance to bind employee, 69 A.L.R.4th 1145.