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    • Happy New Year... But, Your High School Diploma Requirement May Violate the Americans With Disabilities Act, Says the EEOC By Erin L. Kilgore The start to a new year means a time of change for many employers. This year, however, employers are facing added uncertainty in light of an informal discussion letter issued by the Equal Employment Opportunity Commission. In that letter, the EEOC inserted an additional dimension into the already-challenging pre-employment inquiry and applicant screening process by taking the position that an employer’s high school diploma requirement might violate the Americans With Disabilities Act. In particular, the EEOC explained that an across-the-board diploma requirement might unlawfully “screen[] out” an individual who is unable to graduate because of a learning disability that meets the ADA’s definition of “disability.” Thus, according to the EEOC, an employer may not adopt a high school diploma requirement “unless it can demonstrate that the diploma requirement is job related and consistent with business necessity.” Moreover, ....
    • DC Circuit Court Enforces NLRB Order in Favor of Employees Fired for Threatening Remarks By A. Edward Hardin, Jr. True threats of violence or just talk?  The District of Columbia Circuit Court recently enforced an NLRB order in favor of two former employees who were fired for making alleged threatening remarks to a supervisor.  The supervisor had orally warned a group of employees who had exceeded the time for their break period.  Two employees then told the supervisor “it’s going to get ugly” and he “better bring [his] boxing gloves.”  The employer fired the employees for violating the employer’s zero-tolerance workplace violence policy.  The NLRB disagreed.  The Board held that the statements were “figures of speech,” not actual threats which would have not been protected speech under the NLRA.  Enforcing the NLRB decision, the District Court held that the Board’s determination was not unreasonable.  Kiewit Power Constructors Co. v. National Labor Relations Board, D.C. Cir., No. ....
    • New Louisiana E-Verify System Laws Place Additional Requirements on Employers to Check Citizenship Status of Employees By Phyllis D. Sims Louisiana legislators passed two new laws during the most recent Legislative Session placing additional requirements on employers to check the citizenship status of employees. Act 376 provides for the verification of employees engaged only in public contract work by enacting La. R.S. 38:2212.10.  The new law provides that a private employer shall not bid on or contract with a public entity unless the employer attests via sworn affidavit to the use of an immigration verification system to verify that all employees in the state of Louisiana are legal citizens of the U.S. or are legal aliens.  All subcontractors are required to do the same.  Violations of the new law may result in cancellation of the public contract and ineligibility for any public contract for a period of three years or less.  If the employer complies with the verification provisions and relies on the information obtained in accordance with the verification system, the employer is ....
    • Court Certifies Class Action and Finds Reduction in Medicaid LT-PCS Program Violates Americans with Disabilities Act By Deborah J. Juneau 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, ....
    • ADA Amendments Act Regulations Have Arrived By A. Edward Hardin, Jr. 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.  Nor did it provoke as much as excitement as that exhibited by Steve Martin in the 1979 comedy “The Jerk” where he wildly exclaimed: “The new phone book is here!  The new phone book is here!”  But the ADAAA regulations have finally arrived, and the regulations are important and provide employers and attorneys with guidance on the ADAAA.  The ADAAA was enacted on September 25, 2008, and became effective January 1, 2009.  The Act directed the EEOC to amend the prior regulations to reflect the changes made by the ADAAA.  After much analysis and comment, the final ....
    • Settlement Reached in the NLRB Facebook Case By Erin L. Kilgore 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.On October 27, 2010, the National Labor Relations Board’s Hartford regional office issued a complaint against an ambulance service and alleged, inter alia, that the company illegally terminated an employee who posted negative remarks about her supervisor on her personal Facebook page. According to the complaint, the employee’s Facebook postings constituted protected concerted activity under the National Labor Relations Act, which guarantees that employees have the right to engage in concerted ....
    • Supreme Court Holds Title VII Retaliation Claim Available to Terminated Fiance By Theresa R. Hagen 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. The Supreme Court focused the language of 42 U.S.C. 2000e-5(f), which bestows the right to bring a civil action to a “person …aggrieved.”  Using a “zone of interest” test —enabling suit by any plaintiff with an “interest arguably sought to ....
    • Facebook and the NLRB: NLRB to Weigh In Regarding Employee's Negative Comments About Her Supervisor By Erin L. Kilgore 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.The press release stems from a complaint issued by the NLRB’s Hartford regional office on October 27, 2010, which alleged that an ambulance service illegally terminated an employee who posted negative remarks about her supervisor on her personal Facebook page. The employee’s supervisor had denied her union representation during an investigatory interview, and later that day, the employee posted the ....
    • Recent Developments in E-Discovery in Louisiana By Katie D. Bell 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. ....
    • Immigration Status is Irrelevent Under the Longshore and Harbor Workers' Compensation Act By Amanda L. Howard 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.  Two years later, however, Bollinger terminated all payments after discovering that Rodriguez was an undocumented immigrant.  Rodriguez ....
    • The "We Can Help" Campaign By Mike Garrard, David Whitaker and Terry McCay Employers covered by the Fair Labor Standards Act should take note of references on the Web site of the U.S. Department of Labor (“DOL”) about the “We Can Help” nationwide campaign. A “News Release,” dated April 1, 2010, on the DOL Web site refers to the “`We Can Help’ nationwide campaign” and states that “[t]he effort, which is being spearheaded by the department’s Wage and Hour Division, will help connect America’s most vulnerable and low-wage workers with the broad array of services offered by the Department of Labor.”  It goes on to state in part that “[i]t also will address such topics as rights in the workplace and how to file a complaint with the Wage and Hour Division to recover wages owed.” The “News Release” also quotes the Secretary of Labor as stating that “I have added more than 250 new field investigators ....
    • A Renewed Focus on Independent Contractor vs Employee Issues By Dean P. Cazenave 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 two dozen states also have stepped up enforcement, often by enacting stricter penalties for misclassifying workers.  This effort is intended to reign in what regulators believe is a trend among companies to cut costs by classifying regular employees as independent contractors, though they often are given desks, phone lines and assignments just like regular employees. Moreover, the experts say, workers have become more reluctant to challenge such practices, given the tough job market. To determine if you or your company is complying with the rules and regulations as applicable to independent ....
    • Final Increase to Federal Minimum Wage in Effect Pursuant to the Fair Minimum Wage Act of 2007 By A. Edward Hardin, Jr. 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.The Fair Labor Standards Act is enforced by the U.S. Department of Labor’s Wage and Hour Division.  The first federal minimum wage, set October 29, 1938, was $.25 per hour. The federal minimum wage broke the $1.00 threshold effective March 1, 1956; $2.00 effective May 1, 1974; $3.10 effective January 1, 1980; $4.25 effective April 1, 1991; and $5.15 effective September 1, 1997. In addition to the establishment of the minimum wage, the ....
    • Family Medical Leave Act Regulations Become Effective By Theresa Hagen The final revised FMLA regulations issued by the DOL on November 17, 2008 became effective January 16, 2009. The regulations address the FMLA military family leave entitlements and also include other, significant changes to prior regulations. Some of the changes involving employer notices are described in 29 C.F.R. §825.300 and include:General Notice - 29 C.F.R. §825.300(a). A covered employer must post on its premises “in conspicuous places where employees are employed” a general notice explaining the FMLA’s provisions and providing information about procedures for filing complaints of violations with the Wage and Hour Division. The general notice also must be provided to each employee of a covered employer with any eligible employees “by providing the notice in employee handbooks or other written guidance to employees concerning employee benefits or leave rights, if such written materials exist, or by distributing a copy of the ....
    • Great Ideas by Employees - Who Owns Them? By Russel O. Primeaux As we continue our shift to a more knowledge-based economy, frequently the greatest assets of a company reside in the creativity of its employees. This is especially true for service companies in which the services can be repeated for multiple customers (example: software). Whether or not a company owns something that has been created by one of its employees will depend to a great extent on the category of intellectual property into which the creation is classified. Generally, the creations or discoveries of employees will fall into the intellectual property categories of copyright, patent, or trade secret.Copyright law states that an employer will own a work protected by copyright if the work was created within the employee’s “scope of employment.” In order to determine whether something is created within the scope of employment, one will look at the position description and the practical duties that the employee actually performed. For example, ....
    • USCIS Adopts New Version of I-9 Form by A. Edward Hardin, Jr. After April 3, 2009, the U.S. Citizenship & Immigration Service ("USCIS") will require employers to complete a new version of the familiar I-9 form for all new employees. The USCIS delayed implementation of the new rule requiring the new I-9 until April 3.The USCIS has links to PDF files containing both the old I-9 form and the form to use after April 3: Employers should be sure to use the correct form.   ....
    • Oklahoma Gun Statute Upheld by  A. Edward Hardin, Jr. In July of 2008, Gov. Jindal signed Senate Bill no. 51 into law. Senate Bill no. 51 has been dubbed the “take-your-gun-to-work law.” The new statute took effect on August 15, 2008. The United States 10th Circuit Court of Appeals recently upheld a similar Oklahoma statute. Louisiana is not the first state in the nation to enact such legislation. Other states with similar laws include Alaska, Kentucky, Mississippi, Georgia, Florida, and Oklahoma. Legal challenges to the statutes followed.  The Oklahoma statute was challenged on the grounds that OSHA workplace safety rules preempted the Oklahoma state statute. A U.S. District Court agreed with the challengers, but the 10th Circuit Court of Appeals reversed the District Court and held that OSHA did not preempt the state statute. Louisiana’s Senate Bill no. 51 enacts La.R.S. 32:292.1 and makes it lawful for a person who “lawfully possess” a firearm to transport or store the ....
    • American Recovery and Reinvestment Act of 2009: New COBRA Rights and Obligations By A. Edward Hardin, Jr. On February 17, 2009, President Obama signed into law the American Recovery and Reinvestment Act of 2009 (the “ARRA”), the comprehensive economic stimulus package. Among its other provisions, the ARRA includes an extension of the right to elect COBRA coverage, a reduction in COBRA premiums for eligible participants, and new notice obligations for employers.Extension of COBRA Election: Under the ARRA, employees who were involuntarily terminated between September 1, 2008 through February 16, 2009, and who do not have COBRA coverage because they either did not initially elect COBRA or elected COBRA, but are no longer covered, will have a second opportunity to elect COBRA coverage or to re-establish COBRA coverage. The new election period began on February 17 (the day the President signed ARRA into law) and ends 60 days after the required notice of the special election period is given. The second election period does not extend COBRA coverage beyond the ....
    • Lilly Ledbetter Fair Pay Act Revives Pay Discrimination Claims By Erin Kilgore On January 29, 2009, President Barack Obama signed into law the Lilly Ledbetter Fair Pay Act. The Act amends four federal laws by redefining the events that trigger the charge-filing and limitations periods for cases alleging discrimination in compensation. The most important consequence of the Act is that the time limit for initiating a pay discrimination claim will regenerate with each allegedly discriminatory paycheck the employee receives.The Ledbetter Act was enacted to overturn the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), in which the Court held that the period for filing a claim based on discriminatory compensation began on the date that the discriminatory pay decision was made. The filing period did not begin anew each time the employee received a discriminatory paycheck. Therefore, the employee had either 180 or 300 days from the pay decision, depending on whether the state has an employment ....
    • New Law Suspends Required Minimum Distributions for 2009 By Kevin C. Curry On December 23, 2008, President Bush signed the Worker, Retiree, and Employer Recovery Act of 2008 (the Act) into law.  Section 201 of the Act waives any required minimum distributions (RMDs) for 2009 from retirement plans that hold each participant's benefit in an individual account, such as § 401(k) plans and § 403(b) plans, and certain § 457(b) plans.  The Act also waives any RMD for 2009 from an Individual Retirement Arrangement (IRA).This means that most participants and beneficiaries otherwise required to take minimum distributions from these types of accounts are not required to withdraw any amount in 2009.  If they do make a withdrawal in 2009 (that is not an RMD for 2008), they might be able to roll over the withdrawn amount into other eligible retirement plans.  Of course, they must still include any previously untaxed portion of the withdrawal that they do not roll over in their gross income.  See Individual ....