Labor and Employment Law

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Since 2003, Louisiana, through the Department of Health and Hospitals (“DHH”) and the Medicaid Program, administers home and community-based health services (“HCBS”) available to disabled citizens. The HCBS includes several programs, one of which is the Long Term Personal Care Services (“LT-PCS”) program. The LT-PCS program provides disabled citizens with a personal care worker to assist with performing personal care or household chores that the disabled citizen would otherwise be unable to perform, in order to avoid being institutionalized. Individuals who do not qualify for LT-PCS or who seek additional or alternative services may enter one of Louisiana’s waiver programs: Elderly and Disabled Adults, Adult Day Health Care, Program of All-inclusive Care for the Elderly, or Money Follows the Person for individuals transitioning from nursing facilities. However, these programs have limited slots, geographical or age limits, and long waiting lists. An individual may be moved to the top of the priority list and immediately obtain a waiver, if the individual has had a hospital stay in excess of 30 days or has been treated in a nursing facility for 120 consecutive days.
Continue Reading Court Certifies Class Action and Finds Reduction in Medicaid LT-PCS Program Violates Americans with Disabilities Act

In a press release from Thursday, March 24, 2011, the EEOC announced the  approval of the final regulations for the ADA Amendments Act.  The final regulations were published on Friday, March 25, 2011, in the Federal Register.  The release of the long-awaited regulations did not raise the same level of fanfare as the iPad 2. …

On February 7, 2011, the NLRB and a private employer reached a settlement regarding the employer’s termination of an employee allegedly based, in part, on Facebook posts made by the employee. However, because the case had not made it through the courts, employers and employees will have to continue to wait for a definitive decision regarding the legality of disciplining an employee for his or her postings about a supervisor on a personal social media platform.
Continue Reading Settlement Reached in the NLRB Facebook Case

The Supreme Court recently struck a blow to employers and made another expansion to the scope of Title VII’s retaliation provisions. By its January 24, 2011 decision in Thompson v. North American Stainless, LP, –U.S. –, 2011 WL 197638 (2011), the court overturned a Sixth Circuit decision which had affirmed the dismissal of the retaliation claims brought by a terminated fiancé of another employee who had brought a sexual harassment charge. By its ruling, the Supreme Court held that the fiancé could bring his own suit under Title VII for the alleged retaliatory termination, even though he did not himself engage in any protected activity prior to his termination.
Continue Reading Supreme Court Holds Title VII Retaliation Claim Available to Terminated Fiance

Employers are struggling with how to respond to employee use of social media, particularly whether and/or how to respond to – or prevent – employees from posting comments about their employers on their personal social networking platforms, such as Facebook, My Space, and Twitter.  Until recently, there has been little guidance for employers in navigating this new territory.  However, on Tuesday, November 2, 2010, the National Labor Relations Board issued a press release, through which the Board announced its position on the issue.
Continue Reading Facebook and the NLRB: NLRB to Weigh In Regarding Employee’s Negative Comments About Her Supervisor

Electronic Discovery, or “E-Discovery”, is not considered the “novel issue” it once was. However, E-Discovery still presents problems that litigants and courts struggle with. Below is a summary of recent Louisiana Federal Court opinions dealing with the issues surrounding E-Discovery.

In Frees, Inc. v. McMillian, 2007 WL 184889 (W.D. La. Jan. 22, 2007), the Western District of Louisiana granted the plaintiff’s motion to compel. In an unfair competition and trade secret theft action, the plaintiff claimed that the defendant, a former employee, had stolen various data files. Plaintiff had unsuccessfully requested production of defendant’s laptop and desktop. The Court granted the motion to compel the defendant to produce these two items because they were the most likely places that the data files would be located. The Court did institute protective measures so as to prevent the disclosure of any irrelevant or personal information.Continue Reading Recent Developments in E-Discovery in Louisiana

In Bollinger Shipyards, Inc. v. Director, Office of Worker’s Compensation Programs, U.S. Dept. of Labor, (5th Cir. 2010) the United States Fifth Circuit upheld the award of workers compensation benefits to an undocumented immigrant worker who was injured on the job as a pipefitter.

The Bollinger plaintiff, Jorge Rodriguez, fell and allegedly injured himself while welding for his employer, Bollinger Shipyards, Inc.  At the time of his alleged injury, Rodriguez had been working for Bollinger for approximately eight months, having initially obtained employment by falsely holding himself out as a United States citizen.  Rodriguez presented Bollinger with a false Social Security Card.  Bollinger initially paid Rodriguez temporary disability benefits and reimbursed him for a portion of his medical bills.Continue Reading Immigration Status is Irrelevent Under the Longshore and Harbor Workers’ Compensation Act

As discussed in the recent New York Times article, federal and state officials, many facing record budget deficits, are starting to aggressively pursue companies that try to pass off regular employees as independent contractors.

President Obama’s 2010 budget assumes that the federal crackdown will yield at least $7 billion over 10 years.  More than…

Effective July 24, 2009, the federal minimum wage increased from $6.55 per hour to $7.25 per hour for all non-exempt employees.  The 2009 increase in the federal minimum wage was the third and final increase to the federal minimum wage pursuant to Fair Minimum Wage Act of 2007.  Under the 2007 Act, the minimum wage established by the Fair Labor Standards Act increased in three steps from $5.85 per hour effective July 24, 2007, to $6.55 per hour effective July 24, 2008, and to $7.25 per hour effective July 24.
Continue Reading Final Increase to Federal Minimum Wage in Effect Pursuant to the Fair Minimum Wage Act of 2007