“Pumping,” or expressing breast milk, is now protected under Title VII. In a matter of first impression, the Fifth Circuit Court of Appeal recently held that an adverse employment action taken against a female employee because she was expressing milk constituted sex discrimination in violation of Title VII. See Equal Employment Opportunity Commission v. Houston Funding II, Limited, — F.3d —, 2013 WL 2360114 (5th Cir. 2013).

The EEOC brought the action on behalf of a former employee against her former employer, alleging she had been unlawfully discharged because she wanted to pump at work. The defendant argued that Title VII does not cover “breast pump discrimination.” The Fifth Circuit resolved the dispute by holding that an employer’s adverse employment action against a female employee because she is lactating or expressing milk constitutes sex discrimination in violation of Title VII. The court reasoned that an “adverse employment action motivated by these factors clearly imposes upon women a burden that male employees need not – indeed, could not – suffer.” In addition, the Fifth Circuit held that lactation is a related medical condition of pregnancy for purposes of the Pregnancy Discrimination Act of 1978.

As noted in a concurring opinion, neither Title VII nor the Pregnancy Discrimination Act mandates special accommodations to women – such as special facilities or break time during work to pump. However, employers should read this decision in tandem with the 2010 Patient Protection and Affordable Care Act’s amendment to the Fair Labor Standards Act, which requires certain covered employers to provide nursing women with breaks to express breast milk. Under that provision, covered employers must provide employees covered by the FLSA’s overtime provisions a “reasonable” break each time she has a need to express milk. The employer is not required to compensate the employee for such breaks. In addition, the employer must provide a place – other than a bathroom – that is private and free from intrusion from co-workers and the public.

During the recent 2013 Regular Session, the Louisiana Legislature passed a sweeping tax amnesty bill (House Bill 456). The bill provides amnesty for virtually all Louisiana state taxes and will be available to taxpayers through a series of specified amnesty periods in 2013, 2014, and 2015, with benefits decreasing in each of the amnesty periods. In 2013, the Secretary of the Department of Revenue (the “Secretary” or the “Department”) will waive one-half (50%) of the interest and all of the penalties for the relevant tax periods. In 2014, the Secretary will waive only fifteen percent (15%) of penalties, but no interest. And, in 2015, the Secretary will waive ten percent (10%) of penalties, but no interest.

The specific dates of the amnesty periods are yet to be determined by the Secretary, but they must fall within the following timeframes:

  • 2013: 2 months prior to December 31, 2013
  • 2014: 1 month between July and December, 2014
  • 2015: 1 month between July and December, 2015

The tax amnesty applies to (1) all taxes administered by the Department, except for motor fuel taxes and penalties for failure to submit information reports that are not based on an underpayment of tax; (2) taxes due prior to January 1, 2013, for which the Department has issued an individual or a business proposed assessment, notice of assessment, bill, notice, or demand for payment not later than May 31, 2013; (3) taxes for taxable periods that began before January 1, 2013; and (4) taxes for which the taxpayer and the Department have entered into an agreement to interrupt the running of prescription through December 31, 2013.

In order to claim amnesty, the participating taxpayer must agree that its right to protest or initiate an administrative or judicial proceeding regarding taxes for any of these time periods is barred. Taxpayers involved in field audits or litigation must agree to abide by the Department’s interpretation of the law regarding the issues resolved by amnesty for three years. Failure to abide by the Department’s interpretation subjects taxpayers to a negligence penalty. The amnesty application for taxpayers involved in field audits or litigation must include all issues and all eligible periods involved in the audit or litigation. And, the Secretary reserves the right to require taxpayers to file tax returns with the amnesty application. Taxpayers with existing liens on their property, as well as taxpayers against whom the Department has initiated proceedings under the assessment and distraint procedure are eligible for amnesty. However, such taxpayers are required to pay all liens for the relevant tax periods. Finally, taxpayers who have paid taxes under protest and filed suit must agree that, upon approval of their amnesty application, the Department can release the payment from escrow. No interest will be paid on any refunds of amounts previously collected by the Department.

Taxpayers will be required to apply for amnesty, which must be approved by the Secretary. All of the tax, fees and costs, if applicable, and any interest due must be paid with the submission of the amnesty application. Over the next several months, the Secretary will promulgate regulations to administer and implement the amnesty program, including the amnesty application.

House Bill 456 was signed by Governor Bobby Jindal on June 21, 2013 and is designated as Act 421.

The Fair Labor Standards Act turns 75 today, June 25. The FLSA is a depression-era piece of legislation. Through the FLSA, Congress intended to raise working conditions and spur hiring.  Congress sought to do this by prohibiting child labor, establishing a minimum wage, and requiring payment of a premium for hours worked over a particular benchmark any workweek.  Congress believed that the maintenance of substandard labor conditions, in any part of industry and in any state, would have the effect of lowering labor conditions elsewhere because goods flowed in a stream of interstate commerce. The minimum wage 75 years ago was $.25; today’s minimum wage is $7.25.  FLSA suits are the fastest-growing type of employment litigation.  FLSA suits typically involve misclassification of workers as exempt from minimum wage and/or overtime and off-the-clock (unpaid) time periods.  On the 75th anniversary of the FLSA, it may be a good time to examine your employment practices to ensure that you are in full compliance with the Act.

Through House Bill 589 of the 2013 Regular Session, the Louisiana legislature amended article 966 of the Code of Civil Procedure, which, as of August 1, 2013, requires additional legwork by practitioners who seek to obtain a ruling or dismissal by summary judgment. The new rule requires the moving party to formally admit its evidence into the record for the purposes of that particular summary judgment motion. Thus, unlike in years past, the practitioner may no longer rely upon evidence “on file” in the record or evidence simply attached to the motion itself. Even under the 2012 amendments with similar language to HB589, at least one circuit recently held that the movant must formally admit its evidence in support of the motion at the hearing on the motion.

Article 966(B)(2) now states in pertinent part:

(2) The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law (underlined language is added by HB589).

Continue Reading Louisiana Legislature Amends Article 966 of the Code of Civil Procedure Requiring Additional Legwork by Practitioners Seeking Summary Judgment

A few weeks ago, in a piece entitled “Thorny Roses: Interns and Potential Wage Liability”, I wrote about PBS talk show host, Charlie Rose, and his production company’s $250,000 settlement of a class-action lawsuit brought by a former unpaid intern who claimed minimum-wage violations. On Monday, the assault against unpaid internships continued when a former intern filed a putative class-action lawsuit against Warner Music Group and Atlantic Records, alleging minimum-wage violations. This new lawsuit comes fresh off the heels of a judgment in Glatt v. Fox Searchlight Pictures, Inc., which gave deference to the U.S. Department of Labor’s six criteria and held that Fox Searchlight Pictures violated minimum wage and overtime laws by not paying interns who worked on production of the movie “Black Swan.”

Although the recent spate of unpaid internship cases has been largely confined to the media industry, the cases set a precedent that could eventually ripple outward to other companies and fields – especially since the six criteria employed by the Department of Labor broadly apply to all “for-profit” private sector internships. As law firms representing the unpaid interns have indicated, more and more inquiries are flooding in from interns interested in filing similar suits. Accordingly, employers should take a hard look to ensure that their internship programs are in compliance with the law.

The question as to whether isolated strands of human DNA are patent eligible subject matter has finally been answered. The Supreme Court handed down its opinion in Association for Molecular Pathology v. Myriad Genetics, Inc (1), on Thursday, June 13, 2013. Confirming what many patent practitioners anticipated, the Court held that a naturally occurring DNA segment is a product of nature and therefore is not patent eligible subject matter under 35 U.S.C. § 101 merely because it has been isolated. Moreover, and perhaps more importantly, the Court ruled that complementary DNA (cDNA), which is synthetically constructed from a DNA segment by removing the introns (the non-coding DNA segments in a gene), can constitute patent eligible subject matter because the cDNA is not naturally occurring. It is important to note that this carved-out exception protects universities, biotech companies, pharmaceutical companies, and other research institutions; without the carved-out exception, the ability for such entities to recuperate resources devoted to research and development may have been lost.

Continue Reading You Can’t Patent My DNA: A brief on Association for Molecular Pathology v. Myriad Genetics, Inc.

Traditionally, a party seeking injunctive relief from the courts bears the burden of proving four elements: (1) a substantial likelihood of success on the merits of their claims; (2) a substantial threat that failure to grant the injunction will result in irreparable injury; (3) the threatened injury outweighs any damage that the injunction will cause to the adverse party; and (4) the injunction will not have an adverse effect on the public interest.  See Johnson Controls, Inc. v. Guidry, 724 F. Supp. 2d 612 (W.D. La. July 12, 2010); Mississippi Power & Light v. United Gas Pipeline Co., 760 F. 2d 618 (5th Cir. 1985).  Due to the first element – a substantial likelihood of success on the merits – a court that is asked to rule upon a request for injunctive relief in effect pre-judges the entire case.  Although in most cases this is not problematic (and can potentially lead to the matter being resolved without the need for a full trial on the merits), the presence of a mandatory arbitration clause in the parties’ contract can lead to problems.

Continue Reading If a Contract Includes a Mandatory Arbitration Clause, the Parties Should be Aware that Injunctive Relief from the Courts can be Available Without the Necessity of Satisfying the Traditional Four-Element Test

The Kean Miller Connection is a free, two-day law school preparatory program for college students from groups that are traditionally underrepresented in the legal profession.  Attorneys from Kean Miller  along with other legal instructors, provide an intense overview of the law school experience. The goal of the program is to "connect" students with information helpful to their decision to attend law school and become an attorney.

Check out the video.  Or, click here to read an article on the 2012 Kean Miller Connection from a recent edition of Louisiana Weekly.

PBS talk show host, Charlie Rose, and his production company recently agreed to pay as much as $250,000 to settle a class-action lawsuit brought by a former unpaid intern who claimed minimum-wage violations under New York State labor laws.

The Complaint, brought on behalf of a potential class of 189 interns, alleged that The Charlie Rose Show used unpaid interns to perform background research to prepare Rose for guest interviews, escort guests through the studio and set, break down the set, and clean up after each taping. The Complaint also alleged that unlawful unpaid internships are prevalent in white collar professions, “especially in fields like politics, film, fashion, journalism and book publishing.”

So, how can an employer avoid Charlie’s folly when bringing on interns?

Continue Reading Thorny Roses: Interns and Potential Wage Liability

In the ever-evolving social media landscape, employers now have a new area of concern: Vine, a video-sharing app introduced by Twitter.  On May 21, 2013, the American Bar Association Journal published an article alerting employers to this new outlet for employee expression and the potential issues employers are facing as a result.  ABA Journal Article .  In particular, in addition to posting pictures and comments onto a medium like Facebook, employees can post videos from their smartphones, including content related to their employment.

While case law and the federal agencies may not have caught-up with this latest form of social media, with respect to Vine, employers should expect that the National Labor Relations Board will adopt a position similar to its current stance on employee Facebook postings.   In addition, employers should consider whether their existing social media, smartphone, and/or prohibited conduct policies cover this latest form of employee activity.