The Louisiana 2014 Regular Legislative Session closed on June 9, 2014. In the subsequent weeks, Governor Bobby Jindal signed into law several bills that affect employers. These new laws, which are summarized below, became effective on August 1, 2014.
Louisiana Human Rights Act Amendments to Include Claims for Retaliation (La. R.S. § 51:2256)
Effective August 1, 2014, Louisiana Revised Statute section 51:2256 makes it unlawful for an employer to conspire to retaliate or discriminate in any manner against a person because he or she has opposed a practice declared unlawful by the Louisiana Employment Discrimination Law (LEDL), La. R.S. § 23:301, et seq., or because the individual has made a charge, filed a complaint, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under the LEDL.
Several court decisions had previously held that the LEDL only provided prohibitions pertaining to retaliation against an employee or applicant for employment who has opposed any practice made unlawful by the age discrimination or sickle cell trait provisions, or because the individual made a charge, testified, assisted, or participated in an investigation, proceeding, or litigation relating to age or sickle cell trait discrimination. La. R.S. §§ 23:312, 23:352. Courts found that the absence of parallel anti-retaliation provisions in the sections addressing disability (La. R.S. §§ 23:321-325); race, color, religion, sex, and national origin (La. R.S. § 23:332); or pregnancy, childbirth, and related medical conditions (La. R.S. §§ 23:341-342) indicated the legislature’s intent to not provide a cause of action for retaliation under those sections of the LEDL.
The amendment of section 51:2256 creates a cause of action for retaliation in the case of employees alleging discrimination based on disability, race, color, religion, sex, national origin, or pregnancy, childbirth, and related medical conditions.
What Does This Mean for Employers?
The legislature chose to amend the anti-retaliation sections of the Louisiana Human Rights Act to include the LEDL rather than to directly amend the pertinent sections of the LEDL. Why the legislature chose not to amend the relevant LEDL sections is not clear. As a result of the amendment, employees will now be able to assert parallel causes of action for retaliation under state and federal law. Assuming previously existing policies were in compliance with federal laws prohibiting retaliation against employees asserting or involved in claims of discrimination, the amendment will not require much adjustment by employers.
Amendments Pertaining to Payment of Wages
Louisiana Revised Statute § 23:332
Louisiana Revised Statute section 23:332 pertains to intentional discrimination in employment. As of August 1, 2014, section 23:332A(3) has been added to the statute and provides as follows:
A. It shall be unlawful discrimination in employment for an employer to engage in any of the following practices:
(3) Intentionally pay wages to an employee at a rate less than that of another employee of the opposite sex for equal work on jobs in which their performance requires equal skill, effort, and responsibility, and which are performed under similar working conditions. An employer paying wages in violation of this Section may not reduce the wages of any other employee in order to comply with this Section.
This amendment is similar to the Louisiana Equal Pay for Women Act applicable to public employees that went into effect after the 2013 Louisiana legislative session. La. R.S. § 23:661-669. The amendment adds a state law analogue to the federal Equal Pay Act that is applicable to private sector employers in Louisiana.
As of August 1, 2014, employees in Louisiana’s private sector workforce are entitled to protections under both state and federal law for discriminatory pay practices based on an employee’s gender. Accordingly, employers should review their current policies to ensure that both male and female employees working in positions requiring equal skill, effort, and responsibility, and which are performed under similar working conditions are receiving equal pay as required under both state and federal law.
Louisiana Revised Statute § 23:632
Louisiana Revised Statute section 23:632 provides for the payment of penalty wages for a violation of Louisiana Revised Statute section 23:631, which requires the payment of wages within 15 days or on the next regular payday (whichever occurs first) after an individual is discharged or resigns from his or her employment. The August 1, 2014 revisions to section 23:632 have essentially codified the previously recognized good faith exception for failure to comply with section 23:631. In pertinent part, the newly enacted section 23:632(B) provides:
When the court finds that an employer’s dispute over the amount of wages due was in good faith, but the employer is subsequently found by the court to owe the amount in dispute, the employer shall be liable only for the amount of wages in dispute plus judicial interest incurred from the date that the suit is filed.
However, if a court determines that the employer’s failure or refusal to pay the amount of wages owed to any employee was not in good faith, the employer remains subject to the previously allowed penalties under section 23:632, i.e., the lesser amount of 90 days wages at the employee’s daily rate of pay or full wages from the time of the employee’s demand for payment.
Prior to the amendments of Louisiana Revised Statute section 23:632, a court that determined an employer had acted in good faith in failing or refusing to pay past due wages could within its discretion simply order payment of the past due wages and absolve the employer of any responsibility for penalty wages. However, the newly enacted section 23:632(B) explicitly provides that employers that are found to have acted in good faith in failing or refusing to pay past due wages will be responsible for judicial interest from the date that an employee files suit until the payment of past due wages is made. As a result, employers should continue to undertake every effort to ensure that any undisputed wages are timely paid to an employee who is discharged or resigns. Nonetheless, employers should be aware that even a good-faith belief that wages were not owed to a former employee will still subject the employer to liability for judicial interest in the event that a court later determines any portion of the disputed wages were, in fact, owed to the former employee.
Louisiana Revised Statute § 23:633
The recent amendments to Louisiana Revised Statute section 23:633(B) have clarified the time pertaining to pay periods for individuals employed in the oil and mining industries. The statute previously contained language stating that individuals working in the oil and mining industries should be compensated for all work performed not more than 10 days prior to the time of payment; that language seemingly implied that employers may actually be responsible for paying employees more than twice monthly. Under the newly amended statute, employers are now required to ensure that individuals employed in those industries receive compensation no later than the next payroll period for work performed during any particular payroll period and that pay periods occur at least twice monthly.
Personal Online Account Privacy Protection Act (La. R.S. §§ 51:1951-1955)
Under Louisiana’s newly enacted Personal Online Account Privacy Protection Act, employers are specifically prohibited from requesting or requiring employees or applicants to disclose any username, password, or other authentication information that allows access to the individual’s personal online accounts. La. R.S. § 51:1953(A)(1). The Act further prohibits employers from discharging, disciplining, failing to hire, or otherwise penalizing or threatening to penalize an employee or applicant for employment for failing to disclose such information. La. R.S. § 51:1953(A)(2).
The law does, however, allow an employer to ask for, and require, the employee to provide certain content from a personal online account relevant to an investigation by the employer, but may not require the employee provide the employer with access to the account for purposes of conducting an investigation. La. R.S. § 51:1953(B)(3)-(4). In particular, the law allows an employer to request or require covered individuals to disclose usernames, passwords, or other authenticating information (1) to gain access to or operate electronic communication devices paid for or supplied by the company, or (2) to gain access to or operate any account or service provided by the employer, used for the employer’s business purposes, or to which individuals have access by virtue of their relationship with the employer. La. R.S. § 51:1953(B)(2)(a)(b). In addition, the law allows employers to discipline or discharge employees for transferring proprietary, confidential, or financial data to their personal online accounts without the employer’s permission. La. R.S. § 51:1953(B)(2). Furthermore, employers are not prohibited from viewing, accessing, or utilizing information about an employee or applicant that could be obtained without a username and password or that is publicly available. La. R.S. § 51:1953(E).
Liability for Hiring Certain Employees
Louisiana Revised Statute section 23:291, which addresses disclosure of employment-related information and certain presumptions and causes of action related to the disclosure of such information, has been amended to add a new Subsection E. The new subsection provides:
E. (1) Any employer, general contractor, premises owner, or other third party shall not be subject to a cause of action for negligent hiring of or failing to adequately supervise an employee or independent contractor due to damages or injury caused by that employee or independent contractor solely because that employee or independent contractor has been previously convicted of a criminal offense.
(2) The provisions of Paragraph (1) of this Subsection shall not apply to any of the following:
(a) Acts of the employee arising out of the course and scope of his employment that give rise to damages or injury when the act is substantially related to the nature of the crime for which the employee was convicted and the employer, general contractor, premises owner, or other third party knew or should have known of the conviction.
(b) Acts of an employee who has been previously convicted of any crime of violence as enumerated in R.S. 14:2(B) or any sex offense as enumerated in R.S. 15:541 and the employer, general contractor, premises owner, or other third party knew or should have known of the conviction.
(3) Nothing in this Subsection shall be construed to prohibit or create a cause of action for negligent hiring or inadequate supervision in situations not covered by this Subsection. Furthermore, nothing in this Subsection shall be construed to supplant the immunity from civil liability provided for in R.S. 23:1032.
(4) Nothing in this Subsection shall affect the employer’s vicarious liability pursuant to Civil Code Article 2320.
Under the revised statute, employers will not be held liable for negligent hiring or failure to adequately supervise employees or independent contractors based solely on the fact that the employee in question may have previously been convicted of a criminal offense.
Employers must take caution as the statute does not provide a blanket exclusion from liability. Employers remain liable under section 23:291E(2)(a) for acts arising during the course and scope of an individual’s employment when the act of the employee is substantially related to the type of crime for which the employee was convicted and the employer knew or should have known of the prior conviction. Furthermore, under section 23:291E(2)(b) employers remain liable for acts of an employee who was previously convicted of crimes of violence as defined under the Louisiana Criminal Code. The Louisiana Criminal Code defines over 40 separate and distinct crimes as crimes of violence including obvious crimes such as murder, battery, and assault. However, crimes of violence also include purse snatching, extortion, stalking, aggravated flight from an officer, and home invasion. Additionally, section 23:291E(2)(b) provides an exception in the case of employees who have been convicted of a sex offense. Furthermore, section 23:291E(3) provides that employers may not institute the provisions of this section for purposes of immunity pertaining to claims for workers’ compensation liability. Finally, section 23:291E(4) provides that nothing in the amended subsection E of the statute is intended to alter the vicarious liability provisions of the Louisiana Civil Code.