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Which issues would you most highlight to someone new to your state?
Louisiana has a unique pregnancy discrimination statute that allows a maximum of 16 weeks of leave for pregnancy or related medical conditions. This statute applies to employers with 25 or more employees.
Louisiana also has a unique non-compete statute, which includes the following requirements:
An employer may prohibit an employee from engaging in the same line of business for a maximum of two years after termination.
In order to enter into a valid non-compete agreement, an employer must list the parishes or municipalities in which it seeks to prohibit competition and must clearly define its business.
What do you consider unique to those doing business in your state?
State statutes relating to public employers can differ significantly from those that apply to the private sector. Private employers should review applicable statutes before drafting employment policies.
Is there any general advice you would give in the labor/employment area?
Ensure that all post-employment restrictions comply with Louisiana’s non-compete statute.
What are the emerging trends in employment law in your state, including the interplay with other areas of law, such as firearms legislation, legalization of marijuana and privacy?
In May 2016 the Louisiana Legislature enacted Act 96, R.S. 40:1046, legalizing the use of medical marijuana. A physician may now recommend marijuana for therapeutic use by patients clinically diagnosed as suffering from a “debilitating medical condition”. “Debilitating medical condition” means cancer, positive status for human immunodeficiency virus, acquired immune deficiency syndrome, cachexia or wasting syndrome, seizure disorders, epilepsy, spasticity, Crohn’s disease, muscular dystrophy, or multiple sclerosis.
Proposals for reform
Are there any noteworthy proposals for reform in your state?
In its Spring 2016 Session, the Louisiana Senate passed Senate Bill 254 by a vote of 28-10. SB 254 would amend and broaden Chapter 6-A of Title 23 of the Louisiana Revised Statutes. Ch. 6-A , known as the “Louisiana Equal Pay for Women Act,” requires a woman who performs public service for the state to be paid the same compensation as a man who performs the same kind, grade and quality of service. The Louisiana Equal Pay for Women Act applies specifically to public, not private, employees. SB 254 broadens Ch. 6-A by requiring all individuals, not just women, to be paid equally in both public and private employment. Under the legislation, employers who did not pay women and men similar salaries for the same job would have been vulnerable to litigation. The Senate passed the bill with strong support from Governor John Bel Edwards. However, a Louisiana House Committee failed to pass the Equal Pay Act, thus killing the bill. Although the Equal Pay Act, requiring equal pay for men and women in both public and private employment, did not pass the Louisiana House, equal pay can definitely be considered a hot topic in Louisiana.
What state-specific laws govern the employment relationship?
Articles 2746, 2747, and 2024 of the Louisiana Civil Code; Title 23 of the Louisiana Revised Statutes; and Titles 40, 48, and 67 of the Louisiana Administrative Code govern the employment relationship.
Who do these cover, including categories of workers?
These laws cover employees, independent contractors, volunteers, and interns.
Are there state-specific rules regarding employee/contractor misclassification?
No single test or state-specific rule governs whether a worker is an employee or independent contractor. However, a number of laws provide guidance on the correct classification of workers. These include the Fair Labor Standards Act, the Employee Retirement Income Security Act, the Internal Revenue Code and its regulations, and state unemployment and workers’ compensation laws.
Must an employment contract be in writing?
No—the Louisiana Civil Code permits oral contracts.
Are any terms implied into employment contracts?
There is an implied covenant of good faith and fair dealing in all contracts in order to facilitate the performance and enforcement of contracts that are consistent with, and in furtherance of, agreed terms. Louisiana courts will not add provisions to an employment contract unless it is necessary to effect the intent of the parties.
Are mandatory arbitration agreements enforceable?
Yes—as long as the contract containing the mandatory arbitration agreement is not a contract of adhesion. A contract of adhesion is a standard contract, usually in printed form, prepared by a party with superior bargaining power for adherence or rejection by the weaker party. Contracts of adhesion raise a question as to whether the weaker party actually consented to the contract terms. Louisiana Revised Statute 9:4201 provides that any written contract to settle, via arbitration, a controversy arising out of the contract is valid, irrevocable, and enforceable. However, mandatory arbitration clauses do not apply to contracts for employment of “labor” (i.e., non-exempt, blue-collar jobs).
How can employers make changes to existing employment agreements?
Normal contract rules apply.
What are the requirements relating to advertising open positions?
There is no Louisiana law regarding advertising open positions.
What can employers do with regard to background checks and inquiries?
(a) Criminal records and arrests
Louisiana law does not prohibit an employer from seeking access to information concerning an applicant’s or employee’s criminal conviction or arrest records. However, Louisiana law prohibits employers from disqualifying an applicant from engaging in any trade, occupation, or profession for which a license, permit, or certification must be issued by the state or its agencies solely because of a prior criminal record, except where he or she has been convicted of a felony and the conviction directly relates to the position of employment sought.
(b) Medical history
Louisiana law forbids discrimination in hiring based on protected genetic information. An employer may request protected genetic information with an offer of employment (La. R.S. 23:368).
(c) Drug screening
Louisiana employers may require employees and applicants to take drug tests as a condition of employment. Employers must use certified laboratories and specified procedures for testing if they intend to base hiring decisions on test results. While employers can perform onsite screenings for employees or applicants, no negative consequences (e.g., termination or refusal to hire) can arise solely as a result of the screenings (see La. R.S. 49:1001 et seq.). Employees with confirmed positive drug tests may request all records relating to the test within seven working days. Employers may (but are not required to) allow employees who test positive to undergo rehabilitation rather than terminating employment.
(d) Credit checks
(e) Immigration status
Louisiana Revised Statute 23:995 penalizes employers that employ, hire, recruit, or refer for employment an alien without legal authorization to work in the United States. To avoid this penalty, employers in Louisiana (regardless of size) must verify employees’ citizenship or work authorization status either by:
- using the federal E-Verify system for all employees; or
- retaining a picture ID and a copy of a U.S. birth certificate, naturalization card, or other certificate of U.S. citizenship, or an I-94 Form with an employment authorized stamp.
The law incentivizes employers that use E-Verify by providing that employers using E-Verify—rather than the written documentation method—are presumed to be in good faith if they are later found to have employed an unauthorized worker. Any company doing business with the state or local government must use E-Verify and continue to use the system throughout the term of the contract. Further, state contractors are responsible for subcontractors hired as a result of a state or local contract (La. R.S. 38:2212.10).
(f) Social media
Louisiana’s Personal Online Account Privacy Protection Act precludes employers from requesting or requiring employees and job applicants to disclose any username or password that allows access to their personal online accounts. The law also prohibits employers from discharging or disciplining employees or refusing to hire applicants who do not divulge personal information. The act allows employers:
- to request or require employees to disclose usernames or passwords in order to gain access to, or operate electronic communication devices paid for or supplied in part or in whole by, the company; or
- to gain access to or operate any account or service provided by the employer or used for its business purposes.
The act does not prohibit employers from conducting investigations or requiring employees to cooperate in an investigation regarding online, work-related employee misconduct.
Louisiana law protects employers that provide job references in good faith. Employers that provide accurate information regarding a current or former employee on request from a prospective employer are immune from liability for a defamation or similar tort claim arising out of supplying the job reference if such information is provided in good faith (Revised Statute 23:291).
Wage and hour
What are the main sources of wage and hour laws in your state?
The main wage and hour laws are found in La. R.S. 23:631, et seq. Louisiana has no state version of the Fair Labor Standards Act.
What is the minimum hourly wage?
Louisiana state law does not prescribe a minimum hourly wage.
What are the rules applicable to final pay and deductions from wages?
Any employee who is terminated or laid off must be paid his or her final wages in full no later than the next regularly scheduled payday or 15 days from the date of separation—whichever is sooner. If the employee resigns, final wages must be paid in full by the next regularly scheduled payday from the pay cycle during which the employee was working at the time of separation or 15 days from the date of resignation—whichever is sooner (La. R.S. 23:631).
If final wages are not paid in a timely manner on termination (pursuant to La. R.S. 23:631) then, in addition to final wages, the employer may be liable to pay a penalty of either 90 days’ wages at the employee’s daily rate of pay or the employee’s full wages from when the employee made his or her demand for payment until the employer tenders the amount of unpaid wages—whichever is the lesser amount. If the employer’s failure to pay is determined to be in good faith, the employer will be liable only for the wages that were originally due, plus judicial interest from the date on which the suit was filed. If the employer’s failure to pay is determined not to be in good faith, the employer will be subject to the aforementioned penalty. Furthermore, the employer may be held liable for the employee’s attorney’s fees in the event of a well-founded suit for unpaid wages (La. R.S. 23:632).
An employer cannot require employees to sign contracts under which the employees forfeit their wages if they are discharged or resign before the employment contract is completed. An employer may require an applicant who accepts full-time employment to sign a contract that withholds the costs of such person’s pre-employment medical examination or drug test from his or her wages if he or she resigns within 90 days of starting work, unless:
- the resignation is attributed to a substantial change in employment made by the employer; or
- withholding the costs would result in the employee being compensated below the federal minimum wage (La. R.S. 23:634).
Employers are prohibited from fining an employee or deducting sums from an employee’s wages as a fine, except where:
- the employee willfully or negligently damaged goods, works, or property owned by the employer; or
- the employee has been convicted or has pled guilty to stealing employer funds (La. R.S. 23:635).
In the event of such an exception, fines may not exceed the actual damage.
Hours and overtime
What are the requirements for meal and rest breaks?
Louisiana law requires that employees under 18 years of age who are scheduled to work five consecutive hours be given at least a 30-minute meal break. The meal break need not be compensated. Otherwise, Louisiana has no state law governing meal and rest breaks.
What are the maximum hour rules?
Louisiana has no state version of the Fair Labor Standards Act.
How should overtime be calculated?
Overtime should be calculated in accordance with the Fair Labor Standards Act.
What exemptions are there from overtime?
The Fair Labor Standards Act governs exemptions from overtime.
What payroll and payment records must be maintained?
Covered employers must create and preserve records reflecting the name, address, pay, and position of each employee for a period of no less than three years from the respective employee’s last date of employment (La. R.S. 23:668).
Further, employers must post a notice provided by the Louisiana Workforce Commission that states as follows:
"Your employer has a duty to inform you at the time of your hire what your wage rate will be, how often you will be paid and how you will be paid, and of any subsequent changes thereto. If your employer should, for reasons within his control, fail to pay you according to that agreement, you must first lodge a complaint with him. If no action is taken to resolve your complaint, you may report the violation to the office of workforce development within the Louisiana Workforce Commission." (La. R.S. 23:633)
Discrimination, harassment and family leave
What is the state law in relation to:
Under Louisiana law, it is unlawful to discriminate against an individual because of his or her age, if the individual is 40 years old or older.
Under Louisiana law, it is unlawful to discriminate against an individual because of his or her race.
Under Louisiana law, it is unlawful to discriminate against an individual because of his or her actual or perceived disability.
Under Louisiana law, it is unlawful to discriminate against an individual because of his or her gender.
(e) Sexual orientation?
Sexual orientation is not a protected characteristic under Louisiana law.
Under Louisiana law, it is unlawful to discriminate against an individual because of his or her religion.
Under Louisiana law, an employer may make inquiries only into a job applicant’s ability to perform job-related functions and may require physical examinations only after an offer of employment has been extended.
Other protected classes or statuses under Louisiana law include, but are not limited to:
- national origin;
- current or past military service;
- reporting of workplace safety violations;
- veterans status;
- sickle cell trait;
- genetic information;
- mental or physical disability; and
- application for workers’ compensation benefits.
What is the state law in relation to harassment?
Under Louisiana law, harassment based on any state-protected characteristic is unlawful.
Family and medical leave
What is the state law in relation to family and medical leave?
Louisiana law does not require employers to provide family or medical leave.
Privacy in the workplace
Privacy and monitoring
What are employees’ rights with regard to privacy and monitoring?
The Louisiana Constitution contains an explicit prohibition against invasion of privacy, which provides a cause of action for public employees, but not private employees. However, the Louisiana Civil Code provides for a private right of action for invasion of privacy which applies to private employees. A private employee’s right to privacy can be lost by consent, waivers, or certain actions that prevent its assertion. A public employee’s expectation of privacy can be reduced by an employer’s practices and procedures. Employers have an interest and duty to investigate employee misconduct, as long as the investigation is in good faith and on reasonable grounds. An employer may record an employee’s conversation if it is a party to the conversation, the employee consents, or the call is made in the ordinary course of business. Employers may monitor employee emails sent to the workplace. Surveillance of employees is permitted if employees consent or all employees are subject to surveillance.
Are there state rules protecting social media passwords in the employment context and/or on employer monitoring of employee social media accounts?
Louisiana recently passed a law which prohibits employers from discharging, refusing to hire, or otherwise penalizing an employee for failing to disclose credentials to his or her personal email or social media accounts.
Bring your own device
What is the latest position in relation to bring your own device?
Louisiana has no bring your own device law.
To what extent can employers regulate off-duty conduct?
No Louisiana laws regarding an employer’s ability to regulate off-duty conduct exist. Generally, courts have permitted employers to monitor off-duty employees in public spaces, but not private spaces.
Are there state rules protecting gun rights in the employment context?
In Louisiana, employees who lawfully possess a firearm may transport or store the firearm in a locked, privately-owned motor vehicle in any parking lot, parking garage, or other designated area. Private employers cannot prohibit employees from transporting or storing firearms in their locked, privately-owned motor vehicle in a parking lot, parking garage, or other designated parking area (La. R.S. 32:292.1).
Trade secrets and restrictive covenants
Who owns IP rights created by employees during the course of their employment?
Louisiana has no specific statute governing IP rights created by employees. However, on a related issue, the Louisiana non-compete statute (La. R.S. 23:921) provides that an employee may enter into an agreement with his or her employer for no more than two years and cannot engage in any work or activity to:
“design, write, modify or implement any computer program that directly competes with any confidential computer program owned, licensed, or marketed by the employer, and to which the employee had direct access during the term of his employment or services.”
What types of restrictive covenants are recognized and enforceable?
Louisiana has a strong public policy that generally disfavors non-compete agreements. Unless specific statutory requirements are satisfied (La. R.S. 23:921), non-compete and non-solicitation agreements between an employer and employee, or non-compete agreements between an employer and an independent contractor, are generally held to be unenforceable. In order to fall within the statutory exception, a non-compete agreement must specify the parishes or municipalities within which the employer seeks to limit competition. In addition, the term of the agreement cannot exceed two years from the employee’s termination, whether the termination is voluntary or involuntary. However, the statutory provisions do not govern non-solicitation agreements and thus such agreements are generally analyzed under the basic principles of contract and antitrust law. An attempt to enforce an unlawful or invalid non-compete agreement can, under limited circumstances, form the basis of a suit under the Louisiana Unfair Trade Practices Act and under general tort law.
Are there any special rules on non-competes for particular classes of employee?
Yes—for example, the Louisiana Rules of Professional Conduct prohibit any type of agreement that restricts the rights of lawyers to practice law after termination of employment, partnerships, or other legal relationships between lawyers. In addition, the non-compete statute (La. R.S. 23:921) expressly precludes non-compete agreements between an automobile salesperson and his or her employer that restrict the salesperson from selling automobiles.
Right to work
Is the state a “right to work” state?
Yes—Louisiana’s right to work statutes are set out in La. R.S. 23:821–890.
Unions and layoffs
Is the state (or a particular area) known to be heavily unionized?
What rules apply to layoffs? Are there particular rules for plant closures/mass layoffs?
No—the Louisiana Workforce Commission, Dislocated Worker Unit, is the state agency to be notified of any plant closure or mass layoff under the Worker Adjustment and Retraining Notification Act.
Discipline and termination
Are there state-specific laws on the procedures employers must follow with regard to discipline and grievance procedures?
No—however, employers should ensure that they do not create contractual rights through mandatory progressive disciplinary policies or procedures.
At-will or notice
At-will status and/or notice period?
Louisiana is an at-will employment state. Louisiana law has no required notice period before termination of at-will employment.
What restrictions apply to the above?
Louisiana has a host of statutes (e.g., anti-discrimination and anti-retaliation statutes) that serve as exceptions to the employment at-will doctrine.
Are there state-specific rules on when final paychecks are due after termination?
Yes—La. R.S. 23:631 mandates that any employee who is terminated or laid off must be paid his or her final wages in full by the next regularly scheduled payday or 15 days from the date of separation—whichever is sooner. If an employee resigns, final wages must be paid in full by the next regularly scheduled payday from the pay cycle during which the employee was working at the time of separation, or 15 days from the date of resignation—whichever is sooner.