Louisiana Law Blog

by Laura L. Hart

        On May 19, 2008, OSHA Directive Number 08-03 became effective. That directive provides the criteria by which OSHA will conduct the 2008 Site-Specific Targeting (“SST-08”) plan. OSHA’s SST program is the main programmed inspection plan for non-construction workplaces that have 40 or more employees.

       OSHA’s SST-08 plan has three listings of “establishments” that will be targeted. The focus of the agency’s unannounced comprehensive safety inspections under SST-08 are approximately 3,800 high-hazard workplaces contained on OSHA’s Primary List.  The workplaces on the Secondary List and Tertiary List will only be inspected pursuant to SST-08 if all of the workplaces on the Primary List are inspected. 

By Terry McCay

In a recent decision from the federal court for the Southern District of Texas, a refinery’s refusal to hire an applicant who admitted to having weakness on the right side of his body did not violate the Americans With Disabilities Act (ADA). In E.E.O.C vs. Lyondell-Citgo Refining, L. P. (slip copy, 2008 WL 961909), the defendant withdrew a conditional offer of employment based on a third party medical evaluation and determination that the applicant was not medically qualified for an Operator position due to residual right-sided weakness from a blunt force head trauma suffered as a teenager.

by Theresa R. Hagen

On January 28, 2008, the Family and Medical Leave Act (“FMLS”) was amended as part of the National Defense Authorization Act (“NDAA”) for Fiscal Year 2008. A copy of the amended FMLA is available at www.dol.gov. The amendments provide special leave rights to family members of certain servicemembers. There are two different types of leave rights created by the amendments:

(1) The circumstances for which up to 12 weeks of FMLA leave is available in a 12 month period are extended to include an additional qualifying reason ---“because of any qualifying exigency (as the Secretary shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.” 29 USC 102(a)(1)(E). Until regulations define a “qualifying exigency”for which the leave is available, employers should not be required to extend this leave. An employer may require certification for this leave should the Secretary’s regulations provide for the manner and timing of any such certification. 29 U.S.C. Sec. 103(f).

by James R. "Sonny" Chastain

The issue of the enforceability of an arbitration clause in a service contract was recently addressed in Wright v. 3P Delivery, L.L.C., 2007 WL 3171260 (La. App. 3d Cir. 2007). In this action, Plaintiff Chester Wright and Defendant 3P Delivery, L.L.C. entered into the contract entitled “Driver Service Agreement.” The contract called for the Plaintiff to “provide pick up and delivery service,” to “provide loading and unloading of ... shipments,” and to “handle, load, unload, and transport shipments... and equipment.” The contract also contained an arbitration clause. Plaintiff filed suit claiming breach of contract. In response thereto, the Defendant filed a Motion to Compel Arbitration and Stay Litigation. 

by Linda Perez Clark

Louisiana law prohibits arbitration clauses in “contracts of employment of labor.” In Wright v. 3P Delivery, LLC, 2007-683 (La.App. 3 Cir. 10/31/07) --- So.2d ----, the court was asked to consider whether an arbitration clause in a contract requiring the plaintiff, an individual, to provide transportation services along with handling, loading and unloading of shipments for defendant, fell within this prohibition. The issue to be decided was whether the contract was one wherein the plaintiff provided service(s) to the defendant, thus making the arbitration clause valid, or was the contact one wherein the plaintiff provided labor to the defendant, thus rendering the clause invalid.

by  A. Edward Hardin, Jr.

On Thursday, November 8, The New York Times reported that the U.S. House of Representatives passed the Employment Nondiscrimination Act. The Act grants gays and lesbians protections from discrimination in the workplace. The New York Times also reported that Senator Edward Kennedy would introduce similar legislation in the Senate, and that Senator Susan Collins said that she would be a lead co-sponsor. 

by Amy D. Berret

GENERAL DUTIES OF EMPLOYERS

Louisiana Revised Statutes 23:1306: requires employers to notify the Office of Workers’ Compensation within ten (10) days of actual knowledge of an injury resulting in death or lost time in excess of one week after the injury. This rule applies even if no claim for workers’ compensation benefits has been filed. 

Ø    The form generally used for this purpose is a Form 1007 Employer First Report of Injury/Illness (a copy of which is attached for your ready reference).

Ø    If an employer elects not to use the Form 1007, he must provide, at the minimum, the following information: (1) The name, address, and business of the employer; (2)  The name, Social Security number, street, mailing address, telephone number, and occupation of the employee; (3) he cause and nature of the injury or death; (4) The date, time, and the particular locality where the injury or death occurred; (5) The wages, as defined in R.S. 23:1021(10), the worker was earning at the time of the injury.

Ø    All information and records submitted pursuant to this Section shall be confidential and privileged, shall not be public records, and shall not be subject to subpoena. However, such information or records may be used to compile statistical data wherein the identity of the individual or employer is not disclosed.

by A. Edward Hardin, Jr.

As a myriad of new state laws go into effect, employers are reminded of the Louisiana Smokefree Air Act and La. R.S. 23:966. 

The Louisiana Smokefree Air Act took effect January 1, 2007, and applies not only to public buildings, schools, and restaurants, but also applies to Louisiana employers. One of the Act’s stated purposes is to “protect non-smokers from involuntary exposure to secondhand smoke in . . . places of employment.” 

byScott D. Huffstetler

On July 27, 2007, the United States Fifth Circuit Court of Appeals issued Taylor v. Bigelow Management, Inc., et al., 2007 WL 2164282 (5th Cir. 2007), an opinion that should serve as a reminder to employers that pregnancy discrimination is illegal under Title VII of the Civil Rights Act of 1964. In Taylor, the Fifth Circuit affirmed a district court jury trial in which the jury found that an employer was liable for pregnancy discrimination and awarded the plaintiff court costs plus approximately $10,000 for back pay and mental anguish and $50,000 in punitive damages.

by Michael C. Garrard

It is important for employers covered by the National Labor Relations Act (“NLRA” or “Act”) to remember the impact which the Act can have on employment policies and rules - including, but not limited to, policies and rules in connection with confidentiality. This article is not intended to provide an exhaustive review of this area. Instead, it will merely refer to portions of the recent decision in Cintas Corporation v. National Labor Relations Board, 482 F.3d 463 (D.C. Cir. 2007) which “involve[d] an allegation that the confidentiality rule of [an employer] violated provisions” of the NLRA. Id. at 464.

by Carolyn S. Parmenter

Come this September, employers are facing a new EEO-1 form and a new filing format.  Therefore, employers are well advised to get a head start on this annual reporting task.    The new rules relating to EEO-1s are really two-fold:  EEO-1s must now be filed on-line; and some of the job, ethnicity, and race categories have been modified.

by Theresa R. Hagen

On May 29, 2007, the Supreme Court handed down Ledbetter v. Goodyear Tire & Rubber Col, Inc., – U.S. –, 127 S.Ct. 2162 (2007), a decision favorable to employers and enforcing the timeliness requirements under Title VII for bringing a claim for alleged discriminatory pay. The court ruled that an employer’s decision setting an employee’s pay or raise within an otherwise neutral pay structure was a “discrete act,” triggering the running of the limitations period under Title VII. The plaintiff argued unsuccessfully that the pay claim was always timely because the disparate pay continued and compounded throughout her employment.

by Terrence D. McCay

In a recent decision, the Federal Fifth Circuit Court of Appeals rejected the notion that temporal proximity standing alone can be sufficient proof of “but for” causation in a Title VII retaliatory discharge claim. In Strong v. University Health Care System, L.L.C., 2007 WL 891148 (5th Cir. (La.)), plaintiff Laurie Strong sued UHS alleging gender discrimination and retaliatory discharge.

Strong worked as a nurse coordinator for UHS, a large Louisiana hospital. She complained to one of her supervisors on December 15, 2003 of alleged gender discrimination by a hospital surgeon, based largely on angry comments by the surgeon on three separate occasions that she was “stupid” and “lazy.” Both before and after the date of this complaint, however, numerous complaints had been made about Strong’s behavior in the workplace by patients, co-workers, supervisors, and physicians. Strong was eventually terminated no March 31, 2004 for poor performance, improper work conduct, arguing with superiors, and obstructing various departmental policies. On November 24, 2004, Strong filed her complaint alleging Title VII and Louisiana law violations.

by A. Edward Hardin, Jr.

On March 1, 2007, the United States House of Representatives passed the "Employee Free Choice Act of 2007." The bill passed by a 56 vote margin. The bill was sponsored by Rep. George Miller (D) of California. Louisiana Reps. William Jefferson (D) and Charlie Melancon (D) were two of the bill's 233 co-sponsors. Only seven House Republicans joined as co-sponsors. Thirteen Republicans joined House Democrats in voting for the bill, and two Democrats voted against it. Sen. Ted Kennedy (D) of Massachusetts is expected to introduce similar legislation in the Senate. Sen. Mitch McConnell (R) of Kentucky pledged to fight the bill. Pres. George Bush is expected to veto the bill should it pass the Senate.

So what is the Employee Free Choice Act of 2007? What's the big deal?  

The Employee Free Choice Act of 2007 amends the National Labor Relations Act (which was last amended nearly 70 years ago) and provides new, more relaxed, rules for the selection of an employees' collective bargaining representative (i.e., unions). 

by Theresa R. Hagen

In a recent Supreme Court decision, the Court held that Title VII’s requirement that a covered “employer” meet a minimum threshold number of employees is not “jurisdictional” but is part of the requisite elements of a claim for relief. Arbaugh v. Y & H Corp., 126 S. Ct. 1235, 163 L.Ed.2d 1097, 74 USLW 4138 (2006). The effect of holding that the threshold is not “jurisdictional” was to abrogate previous Fifth Circuit jurisprudence treating Title VII’s employee-numerosity requirements as a matter of federal court subject-matter jurisdiction that is not subject to waiver or estoppel. 

by Melanie M. Hartmann

It is common for an employer to require an employee to provide a medical release or to submit to a medical examination before returning to work after a sickness or medical leave. Some employees contend the time it takes to complete this process amounts to involuntary FMLA leave and they should receive all benefits of the Act related to such leave. In a recent Fifth Circuit decision, the court recognized that an employer can place an employee on “involuntary” FMLA leave if the employee has provided the employer with notice of the employee’s “serious health condition,” and the involuntary nature of the leave does not deprive the employee of rights under the Act.    Willis v. Coca Cola Enterprises, Inc., 2006 WL 827359 (5^th Cir. March 31, 2006).

The facts in Willis are interesting. Willis was a Senior Account Manager with Coca Cola Enterprises. On a Monday, in May 2003, she called her supervisor and told him she would not be at work that day because she was sick. In the same conversation, she told her supervisor she was pregnant, but she did not specifically tell her supervisor she was sick because of her pregnancy.

by A. Edward Hardin, Jr.

The 2006 Louisiana Regular Legislative Session ended, and efforts to establish a state minimum wage in Louisiana failed. The United States Senate also recently voted 52-46 against a bill that would have increased the Federal minimum wage.

See article from CNN here.

by A. Edward Hardin, Jr.

The Louisiana House of Representative, House Labor Committee approved SB 700 by a vote of 6-5. SB 700 would set a state-wide minimum wage of $6.15 or $1.00 higher than the existing federal minimum wage. As written, SB 700 has several exceptions. SB 700 now goes to the full House of Representatives for consideration. The full House recently rejected a House bill that would have also raised the state minimum wage.

Here's an article from today's Baton Rouge Advocate.

A new case from the U.S. 5th Circuit Court of Appeals makes clear once again the importance in disability cases of an individual assessment of the employee's ability to perform the job and of having a job description, which includes the essential functions and the physical requirements of the job.

The Uniform Trade Secrets Act, La. 51:1431, et seq., provides a cause of action for misappropriation of a trade secret. However, it is important to recognize that these are specific terms which must be satisfied in order to trigger the remedies provided in the Act.

Many C-Level executives and small business owners have heard of the Gulf Opportunity Zone (the GO Zone Act) and know that it does something for Louisiana businesses, but they do not know if or how the new law can help them and their employees. Kean Miller has prepared a comprehensive summary of the GO Zone Act and its sister law, the Katrina Emergency Tax Relief Act of 2005 ("KETRA"). This summary describes the key legislative provisions and explains how Louisiana-area businesses, both large and small, can maximize the GO Zone benefits available to them.

Louisiana is an employment at-will state. This rule is found in Article 2747 of the Louisiana Civil Code which says, "a man is at liberty to dismiss a hired servant attached to his person or family, without assigning any reason for so doing. The servant is also free to depart without assigning any cause."

By Terry McCay

Employers relying on e-mail correspondence to notify employees of benefit changes or other alterations in the terms and conditions of employment should take note of a decision in the Federal First Circuit Court of Appeal, decided May 23, 2005.

By Mike Garrard

Employers covered by the National Labor Relations Act sometimes forget about requirements of the Act which apply even when the employer does not have employees represented by a union.

By the Kean Miller Labor & Employment team

Many clients, friends and neighbors are now faced with serious and unanticipated storm-related decisions regarding the interruption/closure of businesses and issues related to their employees. Employers will encounter individualized issues, but we provide the following checklist of some general considerations for employers who face business interruptions and closures.

The Louisiana Department of Labor has issued a notice advising of its efforts to make sure that all qualified UI recipients can file their claims and receive their checks.

From the notice:

"We want those in need to know that within the next 48 hours we will have dozens of Department of Labor employees and our local partners taking claims at shelters, hotels and wherever there are large groups of displaced people.

For those who are able, we ask that they go to the nearest One Stop or Job Center to file their claims. Others can file over the Internet by going to our Web site at www.LAWORKS.net. We will be establishing a 1-800 number so that victims can call for information."

Read the whole notice here: http://www.ldol.state.la.us/qm_pressrelease_details.asp?PRseqno=304

The United States Department of Labor has posted an advisory explaining the qualifications for Disaster Unemployment Assistance here. As stated in the notice:

"Before an individual can be determined eligible for Disaster Unemployment Assistance, it must be established that the individual is not eligible for regular unemployment insurance benefits (under any state or federal law)."

Per its website at http://www.laed.uscourts.gov, the United States District Court for the Eastern District of Louisiana has closed until further notice, and has suspended "all deadlines and delays in matters pending before this court...until ordered otherwise."

By A. Edward Hardin, Jr.

With many Louisiana schools back from the summer break, employers may want to take note of a Louisiana law regarding employee leave for school conferences and activities.

By Cynthia M. Chemay

The EEOC's most recent effort is an outreach program called the Youth @ Work Initiative which began in September of 2004. This is a national initiative designed to educate young/teenage employees and employers who hire teenagers. The EEOC hopes through its efforts to educate young employees about the illegality of discrimination and harassment based on sex, race, religion, national origin, or disability.

By Melanie M. Hartmann

A plaintiff's decision to quit her job is within her discretion. But the Supreme Court, in Pennsylvania State Police v. Suders, 124 S.Ct. 2342 (2004), determined that a plaintiff who quits her job after being sexually harassed by her supervisor may be able to benefit in her lawsuit from her unilateral decision.

By Scott D. Huffstetler

In Jefferson City, Missouri, three people were killed by a plant worker at a manufacturing plant in 2003. In March 1998, four state lottery executives were killed by a Connecticut lottery accountant. In 1986, a part-time letter carrier facing dismissal walked into the post office where he worked and shot 14 people to death before killing himself. What are these event examples of?

By Scott Huffstetler

Most employer discrimination, harassment or retaliation policies contain a clause that requires an employee who believes that he is being discriminated, harassed or retaliated against to report the incident to his immediate supervisor and/or an upper level manager, including a human resource representative. But do these managers and supervisors know what to do when an employee complains to them about such conduct?

By Lolly White

In-house counsel who are employed in Louisiana but are not licensed to practice law here have until July 1, 2005 to file an application for limited licensure to practice under the Louisiana Supreme Court's new In-House Counsel Rule.

By A. Edward Hardin, Jr.

In 1997, the Louisiana Legislature passed the Louisiana Employment Discrimination Law, La. R.S. 23:301, et seq., "LEDL." Prior to 1997, Louisiana's various discrimination statutes were non-uniform and scattered throughout the revised statutes. The LEDL repealed and reenacted many of Louisiana's employment discrimination statutes as part of a single, comprehensive piece of legislation found in one Title of the Revised Statutes.

By Theresa Hagan

We recently reported (see page 2) that the EEOC had approved and intended to publish a rule specifically authorizing retiree health benefit plans to coordinate plan benefits with Medicare or comparable state-sponsored health benefits without violating the Age Discrimination in Employment Act (ADEA). Recently, a federal district court in Pennsylvania issued an order enjoining, or prohibiting, the EEOC from publishing or implementing the retiree health benefit regulation. AARP v. EEOC, No. 05-CV-509 (E.D. Pa. March 30, 2005), 2005 WL 723991. The EEOC has indicated its intent to appeal the recent ruling.

By Kecia K. Campbell

The United States Supreme Court ruled on March 30, 2005, in a matter of first impression, that disparate-impact claims are available to employees under the Age Discrimination in Employment Act ("ADEA"). Smith et al. v. City of Jackson, MS, et al., No. 03-1160 (2005). In sum, this ruling allows employees to prevail in an ADEA claim against their employers without proving that the employer intended to discriminate based on the employee's age.

By Terry D. McCay

If you currently employ minors (individuals under the age of 18) in your work place, or are considering doing so this summer, you should take note of some recent changes regarding employment of minors under Louisiana law.

By Cynthia M. Chemay

Put this in the category of - "What's in a name?" Or "A rose by any other name would smell as sweet." An issue which arises often in the employment area is the significance of a title given to an employee or to a job. The question arises when an employer enters into a contract with someone characterized as an "independent contractor," or the employer gives a job/position a title such as "salaried administrative." Simply put, you cannot change the nature of an employment relationship by naming a position or entering into a contract.

By A. Edward Hardin, Jr.

In December of 2004, Congress amended the Uniform Services Employment and Re-employment Rights Act (USERRA) 38 USC §§ 4301, et seq. The recent amendment (38 USC § 4334) requires that employers provide eligible employees with notice of their rights, benefits, and obligations under USERRA. The notice requirement can be met by posting a notice where employers customarily place notices for employees. The Secretary of the Department of Labor has developed a poster to comply with this new requirement. http://www.dol.gov/vets/programs/userra/poster.pdf

By Michael C. Garrard

A recent decision of the Court of Appeals for the Fifth Circuit, Clara Patrick versus Tom Ridge, Secretary, Department of Homeland Security, No. 04-10194 (December 2004) shows how a lack Of "sufficient clarity" in articulating a reason for an employment decision can sometimes negatively impact an employer.

The employee in this case advanced charges of age discrimination and retaliation arising out of the employer's refusal to promote her to a supervisory position for which she had applied. The district court had earlier dismissed the claims pursuant to a motion for summary judgment filed by the defendants. The Court of Appeals, however, reversed the dismissal and at the same time provided employers with a good reminder about the need to be able to articulate "specifics" in certain situations. The district court ruled (and the defendants did not challenge on appeal) that the employee succeeded
in making out a prima facie case for both age discrimination and retaliation.