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    • 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 ....
    • Employee Free Choice Act By A. Edward Hardin, Jr. and Scott D. Huffstetler  One likely result of the recent Presidential and Congressional elections is that the executive and legislative branches will be open to pushing the legislative agendas of organized labor.  There is little doubt that the proposed Employee Free Choice Act, H.R. 800, 110th Cong. (2007)(“EFCA”) is at the top of this legislative agenda.  The EFCA is something to which employers should pay serious attention.  If enacted, the EFCA would make it easier for employees to form, join, or assist labor organizations and would provide for mandatory injunctions for unfair labor practices during organizing efforts and for other purposes.  Moreover, if enacted, certain unions are already estimating that they will be able to organize millions of new workers.The EFCA seeks to amend the National Labor Relations Act (which was last amended nearly 70 years ago) and provide new, more relaxed, rules for the selection of an ....
    • New Louisiana Regulation Creates Safe Harbor For Certain Equity-Based Compensatory Plans of Privately-Held Companies by Dean P. Cazenave Offers and sales of “securities” must be registered unless there is an applicable exemption from the federal and state securities laws. The most commonly known exemption is the private placement exemption set forth in Regulation D promulgated by the Securities and Exchange Commission under the Securities Act of 1933 (and corresponding private placement exemptions under applicable state “blue sky” laws). Regulation D was primarily designed to facilitate capital raising transactions, as opposed to employee stock option or stock purchase plans. Many people are unaware that when an employer (or controlling Shareholder) sells stock to an employee (even at a discount, or even if to an executive), such a sale is subject to the securities laws and applicable federal and state exemptions from registration must be found.  Federal Rule 701 In 1988, the SEC adopted Rule 701 which exempts from registration securities issued pursuant to a written ....
    • Department of Labor Issues New Family and Medical Leave Act Regulations by A. Edward Hardin, Jr. The U.S. Department of Labor has released the new Family and Medical Leave Act regulations. The new regulations will become effective January 16, 2009. The DOL issued its proposed new regulations in February 2008.The DOL received over 20,000 comments regarding the proposed regulations, and the new regulations are over 700 pages long. But with an effective date in January 2009, employers do not have long to learn the in’s and out’s of the new regulations. Stay tuned as we review the new regulations too. ....
    • United States Fifth Circuit Holds that Willful Concealment of a Prior Medical Condition From a Jones Act Employer May Constitute Contributory Negligence While a Jones Act seaman’s willful concealment of a pre-existing medical condition has long been held to preclude a seaman’s recovery for maintenance and cure benefits, willful concealment has never acted as a bar to recovery under the Jones Act.   The Fifth Circuit’s recent ruling in Leroy Johnson v. Cenac Towing, Inc. provides both comfort and caveat to the Jones Act employer. [See 2008 WL 4330553 (5th Cir. 2008)]. The comfort: the seaman who willfully conceals a pre-existing medical condition from his employer does so to his own peril—if his concealment causes the seaman to suffer a re-injury, the seaman will be precluded from recovering maintenance and cure, and will see his Jones Act claim reduced in proportion to the percentage of fault attributable to his concealment. The caveat: insurance benefits received by a Jones Act seaman under an employer financed health insurance plans that provide coverage only for non-work-related injuries are ....
    • Non-Compete Agreements: Louisiana Takes Another Step Forward by Melanie M. Hartmann Louisiana's non-competition statute, La. R.S. 23:921, was amended effective August 15, 2008, to provide additional situations in which non-competition agreements may be enforced. The recent amendments allow for the enforcement of certain non-competition and non-solicitation agreements between a corporation and its individual shareholders; between a partnership and its individual partners; and between a limited liability company and its individual members.  Shareholders, partners and LLC members may agree to refrain from carrying on or engaging in a business similar to that of the corporation, partnership or LLC and from soliciting customers of the business. Among other requirements, such agreements cannot exceed a period of two years from the date the relationship between the parties ceases. In addition, such agreements must be limited in geographic scope to specified parish or parishes, municipality or municipalities, or parts thereof, in which the business ....
    • Negligent Hiring by Scott D. Huffstetler Did you know that an employer may be liable for failure to properly screen employees when such failure results in hiring someone that has a history of violent or criminal acts? Louisiana recognizes claims against an employer that hires an employee with dangerous propensities when that employee injures third persons at work. An employer may be liable for negligent hiring if it knew or should have known that the employee posed a threat to others. Similarly, an employer is liable for negligent retention when it continues to employ an employee knowing of his dangerous propensities.Negligent hiring is particularly implicated in the background check portion of an employer’s hiring process. There are specific state and federal regulations that require employers to do background checks in connection with hiring which vary by the industry. Moreover, there are cases in which Louisiana courts have found an employer breached its duty when it failed ....
    • OSHA Site-Specific Targeting of 3,800 High Hazard Workplaces Recently Announced by Laura L. Hart         On May 19, 2008, OSHA Directive Number 08-03 became effective. That directive provides the criteria by which OSHA will conduct the 2008 Site-Specific Targeting (“SST-08”) plan. OSHA’s SST program is the main programmed inspection plan for non-construction workplaces that have 40 or more employees.        OSHA’s SST-08 plan has three listings of “establishments” that will be targeted. The focus of the agency’s unannounced comprehensive safety inspections under SST-08 are approximately 3,800 high-hazard workplaces contained on OSHA’s Primary List.  The workplaces on the Secondary List and Tertiary List will only be inspected pursuant to SST-08 if all of the workplaces on the Primary List are inspected. PRIMARY LIST-           The Primary List of workplaces for the STT plan for ....
    • Refusal to Hire Impaired Worker Not Disability Bias Under ADA By Terry McCay In a recent decision from the federal court for the Southern District of Texas, a refinery’s refusal to hire an applicant who admitted to having weakness on the right side of his body did not violate the Americans With Disabilities Act (ADA). In E.E.O.C vs. Lyondell-Citgo Refining, L. P. (slip copy, 2008 WL 961909), the defendant withdrew a conditional offer of employment based on a third party medical evaluation and determination that the applicant was not medically qualified for an Operator position due to residual right-sided weakness from a blunt force head trauma suffered as a teenager.Due to unilateral weakness on the right side of his body, it was medically determined that he posed an increased risk of slipping and/or falling while climbing, thereby posing a danger to himself and others. Refinery Operators were required to have the ability to climb ladders for one to three hours per day. Based upon defendant’s withdrawal of the ....
    • Family Medical Leave Act Amended as Part of National Defense Authorization Act by Theresa R. Hagen On January 28, 2008, the Family and Medical Leave Act (“FMLS”) was amended as part of the National Defense Authorization Act (“NDAA”) for Fiscal Year 2008. A copy of the amended FMLA is available at www.dol.gov. The amendments provide special leave rights to family members of certain servicemembers. There are two different types of leave rights created by the amendments: (1) The circumstances for which up to 12 weeks of FMLA leave is available in a 12 month period are extended to include an additional qualifying reason ---“because of any qualifying exigency (as the Secretary shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.” 29 USC 102(a)(1)(E). Until regulations define a “qualifying ....