10
LC 29 3965
House
Bill 887
By:
Representatives Levitas of the
82nd,
Lunsford of the
110th,
Jerguson of the
22nd,
Coan of the
101st,
Peake of the
137th,
and others
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Chapter 1 of Title 34 of the Official Code of Georgia Annotated, relating
to general provisions relating to labor, so as to change provisions relating to
an employer's immunity for disclosing job performance information; to provide
for civil immunity under certain circumstances; to provide for related matters;
to repeal conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Chapter
1 of Title 34 of the Official Code of Georgia Annotated, relating to general
provisions relating to labor, is amended by revising Code Section 34-1-4,
relating to an employer's immunity for disclosure of information regarding job
performance, as follows:
"34-1-4.
(a)
As used in this Code section, the term:
(1)
'Background check' means research by any lawful means, including electronic
means, into the background of an employee or prospective employee, including
research into state or federal criminal history repositories, social security
status or verification, and research conducted pursuant to the USA PATRIOT Act,
31 U.S.C. Section 5318(l), regarding politically exposed persons, including
known or suspected terrorists, money launderers, drug kingpins, and persons
debarred from conducting business with the United States government, as well as
any permissible purposes under the federal Fair Credit Reporting Act, 15 U.S.C.
Section 1681.
(1)(2)
'Employee' means any person who is employed by an employer
described
in paragraph (2) of this subsection
whether the
person is paid or unpaid.
(2)(3)
'Employer' means any individual engaged in a business, corporation,
S-corporation, limited liability company, partnership, limited liability
partnership, sole proprietorship,
or
association,
or
any
government entity
that has one
or more employees or individuals performing services under any contract of hire
or service, expressed or implied, oral or
written.
(4)
'Job performance' includes, but shall not be limited to, attendance, attitude,
awards, demotions, duties, effort, evaluations, knowledge, skills, promotions,
and disciplinary actions.
(5)
'Owner' means any person, firm, or legal entity that is engaged in the
production of goods or services and who may engage in contractual relations with
contractors to perform any type of work on any leased or owned premises of the
owner.
(6)
'Prospective employer' means any employer to which a prospective employee has
made an application, either oral or written, or forwarded a resume or other
correspondence expressing an interest in employment.
(7)
'Prospective employee' means any person who has made an application, either oral
or written, or has sent a resume or other correspondence expressing an interest
in employment.
(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.
Any employer
that, upon request by a prospective employer or a current or former employee,
provides accurate information about a current or former employee's job
performance or reasons for separation shall be immune from civil liability and
other consequences of such disclosure provided such employer is not acting in
bad faith. An employer shall be considered to be acting in bad faith only if it
can be shown by a preponderance of the evidence that the information disclosed
was knowingly false and deliberately misleading.
(c)
Any prospective employer who reasonably relies on information pertaining to an
employee's job performance or reasons for separation, disclosed by a current or
former employer, shall be immune from civil liability, including liability for
negligent hiring, negligent retention, and other causes of action related to the
hiring of such employee, based upon such reasonable reliance, unless further
investigation, including, but not limited to, a criminal background check, is
required by law. Such immunity shall continue unless additional investigation
by the prospective employer makes known or should make known to the prospective
employer other information that could otherwise subject such employer to civil
liability.
(d)
Any employer who has conducted a background check of an employee or prospective
employee after having obtained written consent from such employee or prospective
employee or at the request of the owner or operator of any facility where the
employer performs or may perform all or part of its work shall be immune from
civil liability for any and all claims arising out of the disclosure of the
background information obtained. Such limitation of liability shall extend to
all claims of the employee or prospective employee based upon a failure to hire,
wrongful termination, and invasion of privacy, as well as all claims of any
owner, operator, or any third person for claims of negligent hiring or negligent
retention."
SECTION
2.
All
laws and parts of laws in conflict with this Act are repealed.