USA Regional Employment 2019 Comparisons

Last Updated October 24, 2018

Law and Practice

Authors



Ogletree, Deakins, Nash, Smoak & Stewart, PC (New Orleans) is one of the largest labour and employment law firms representing management. The firm has more than 850 labour and employment lawyers located in more than 50 offices across the United States and in Europe, Canada, and Mexico. Ogletree Deakins has a well-developed footprint and is dedicated to providing professional, cost-effective services across the full spectrum of labour and employment law. The firm represents a diverse range of clients, from start-up companies to Fortune 50 corporations. Premier client service, as outlined in the firm’s Client Pledge, is one of the firm’s top priorities and a cornerstone of its core values. As this suggests, the firm is dedicated to partnering with in-house legal and human resources colleagues to deliver timely, client-centered counsel and representation.

Louisiana has become an increasingly attractive place to do business for millennials and others interested in being their own boss and not participating in the traditional employee/employer relationship structure. One major issue for those seeking to develop businesses based on the “gig” economy is the proper classification of those workers as independent contractors or employees. One US state supreme court has recently issued a decision virtually gutting the ability of a business to classify individuals as independent contractors in circumstances where the workers and the business entity are engaged in the same core business. While Louisiana law on independent contractors is a long way away from that extreme, businesses looking to operate on an independent contractor model should take great care to properly classify workers, as there are significant penalties, taxes, and other liabilities that can arise in misclassification cases. The independent contractor issues in Louisiana are discussed in more detail in 2.1 Defining and Understanding the Relationship below.

Like many other states following the re-awakening about sexual harassment in the workplace in late 2017, Louisiana legislators introduced House Bill 578, which proposed to amend the law in order to prohibit any pre-dispute arbitration agreement covering sexual harassment claims. H.B. 578 failed to pass on a 50-42 vote, but this does indicate fairly strong support for such a prohibition, which may arise again in the next legislative session.

One key indicator that this issue may arise again soon is the enactment of Act 270 of 2018, effective January 1, 2019, which requires all state agencies to develop policies prohibiting sexual harassment, train employees on preventing sexual harassment, and report complaints of sexual harassment.

Each state agency’s policy shall explicitly prohibit sexual harassment, and must include descriptions and examples of inappropriate conduct. Each state agency will also be required to adopt a procedure to report complaints of sexual harassment, and to provide a clear prohibition on retaliation against individuals who complain of or participate in the investigation of a complaint of sexual harassment. The agency heads are further required to notify each public employee of the agency’s sexual harassment policy.

Each year, all public employees and elected officials will be required to receive at least one hour of education and training on preventing sexual harassment. Records shall be kept and maintained to show each employee’s compliance with and receipt of training, and such records will be public records.

The heads of each state agency will be required to make annual reports, which will be publicly available and must contain the following information:

  • the percentage of public servants in the agency who have completed the training requirements;
  • the number of sexual harassment complaints received by the agency;
  • the number of complaints that resulted in a finding that sexual harassment occurred;
  • the number of complaints in which a finding of sexual harassment resulted in discipline or corrective action; and
  • the amount of time it took to resolve each complaint.

According to the Bureau of Labor Statistics, union membership in Louisiana for 2017 was only 4.4% of all workers in the state. Although that was an increase of 0.2% over 2016, Louisiana has consistently been below the 2017 national average of 10.7%. Since 2007, the maximum percentage of union members in the Louisiana workforce was 6.2% (2012) and the lowest was 4.2% (2016). While stronger in some industries, the low percentage of union membership in the Louisiana labor force limits concerns about unionization for most employers doing business or seeking to do business in the state.

As set forth above, the low percentage of union membership and the lack of historically strong union presence in the state somewhat neuter the policy shifts by the NLRB.

Louisiana law prohibits the misclassification of employees as independent contractors (La. R.S. § 23:1711(G)). If the Louisiana Workforce Commission (LWC) Administrator determines after investigation that an employer failed to properly classify an individual as an employee and failed to pay the contributions required by the Louisiana Employment Security Law, and that the failure was not knowing or willful, then the employer will receive a written warning, which shall constitute a determination that the individuals listed therein are employees and will result in contributions, interest, and penalties being due. Violations subsequent to the written warning will result in administrative penalties ranging from USD250 to USD1,000 per individual (depending on the number of violations) in addition to any contributions, interest, and penalties otherwise due. If an employer has been found in violation on two or more occasions subsequent to the written warning, sanctions may also include imprisonment for up to 90 days. Employers who knowingly or willfully fail to properly classify an individual as an employee may also be prohibited from contracting, directly or indirectly, with any state agency or political subdivision of the state for three years. Each employee so misclassified gives rise to a separate offense. Employers may request a hearing to contest an adverse determination by the Administrator (La. R.S. § 23:1711(G)).

Employers must also display a poster containing language as provided by the LWC “in a prominent and accessible location at each of its business premises.” The poster must include the responsibilities of independent contractors to pay taxes as required by federal and state law, protections against retaliation, the penalties for employee misclassification, and contact information for individuals to file complaints regarding employment classification, among other information (La. R.S. § 23:1711(G)).

The test to determine independent contractor or employee status differs depending on the context. In the above description of Louisiana state law relating to unemployment and workers’ compensation benefits, the test is the familiar “ABC” test, which requires consideration of the following factors:

  • such individual has been and will continue to be free from any control or direction over the performance of such services both under his contract and in fact;
  • such service is either outside the usual course of the business for which such service is performed, or such service is performed outside of all the places of business of the enterprise for which such service is performed; and
  • such individual is customarily engaged in an independently established trade, occupation, profession or business (La. R. S. § 23:1473 (12)(E)(I-III)).

Generally, the test applied outside the context of workers’ compensation and unemployment benefits law is the “economic realities” test, which consists of an examination of the following factors:

  • the degree of control exercised by the alleged employer;
  • the extent of the relative investments of the [alleged] employee and employer;
  • the degree to which the "employee's" opportunity for profit and loss is determined by the "employer";
  • the skill and initiative required in performing the job; and
  • the permanency of the relationship.

Louisiana law expressly grants employers and employees alike the right to terminate the employment relationship at the will of either party and without assigning cause, except where there is a contract for employment for a definite period of time or a statute prohibiting termination of employees based on certain protected classifications or conduct (La. Civil Code arts. 2747 and 2749; Quebedeaux v. Dow Chem. Co., 2001-2297 (La. 6/21/02), 820 So. 2d 542).

In Louisiana, employment contracts are either for a definite or indefinite period of time. Employment contracts for an indefinite period of time are terminable at any time for any reason and by any party (La. Civil Code art. 2747). Employment contracts for a definite period of time may be oral or written and, absent agreement to the contrary, are only terminable for cause (see La. Civil Code art. 2749).

An employee who has been hired for a specific term and is subsequently dismissed without cause during the term is entitled to recover the full amount of the salary that the employee would have received had the employment contract not been terminated (La. Civil Code art. 2749). Such damages are treated as a penalty, and the employee does not have a duty to mitigate these damages (Andrepont v. Lake Charles Harbor and Term. Dist., 602 So. 2d 704, 707 (La. 1992)).

Employee handbooks do not alter the terms of employment established outside the document, such as the duration of employment; however, employment benefits delineated in a handbook or manual are considered as being governed by those provisions. There are no broad public policy exceptions to the employment at-will doctrine, though there are statutory exceptions.

Louisiana has no special requirements beyond those implemented federally concerning immigration.

In Louisiana, the rights of workers to unionize and bargain collectively are generally governed by the National Labor Relations Act (NLRA). Unique to the state, however, is La. R.S. § 23:984, which prohibits any governmental body from passing a law that conditions any permit, license, zoning requirement, or contract on the waiver of the “full freedom to act” under federal labor laws. Among other things, this statute was aimed at prohibiting “Labor Peace Agreements”, where, for example, cities or municipalities pass laws conditioning the issuance of a permit for a construction project on the developer’s agreement not to oppose union organizing efforts by its employees.

Wage and Salary History

Louisiana does not currently have a state law prohibiting inquiries into an applicant’s wage or salary history.

Credit Checks

Louisiana does not currently have a state law addressing the use of credit checks in the employment context (the federal Fair Credit Reporting Act does apply, but that statute is beyond the scope of this publication).

Age and Other Protected Categories

The Louisiana Employment Discrimination Law (LEDL) prohibits employers from discriminating against applicants and employees based on race, color, religion, sex, national origin, age, disability, pregnancy, sickle cell trait, genetic information, and the status of veterans who attend certain medical appointments (La. R.S. § 23:301, et seq). The LEDL generally applies only to employers who regularly employ 20 or more employees within the state (La. R.S. § 23:302(2)), although the pregnancy discrimination provisions only apply to employers who regularly employ 25 or more employees (La. R.S. § 23:341)

Generally, the LEDL will prohibit employers from asking job applicants to furnish information that pertains to their race, color, religion, sex, national origin, age, disability, pregnancy, sickle cell trait, genetic information, and veteran status.

Criminal History

Louisiana does not have a “ban-the-box” statute that applies to private-sector employment.

Disability and Health-Related Inquiries

The LEDL prohibits discrimination against applicants and employees on the basis of disability when it is unrelated to the person’s ability to perform a particular job with or without a reasonable accommodation. An employer may also not discriminate against an otherwise qualified disabled person on the basis of physical or mental examinations or pre-employment interviews that are not directly related to the requirements of the specific job, or that are not required of all employees or applicants (La. R.S. § 23:323). However, an employer may apply qualification standards, tests, or selection criteria that tend to screen out or otherwise deny a job or benefit to a disabled person where the standards, tests, and/or criteria are job-related and consistent with business necessity, and such performance cannot be accomplished by reasonable accommodation (La. R.S. § 23:324). Reasonable accommodation is defined as an adjustment or modification to a known limitation of an otherwise qualified disabled person that would not impose an undue hardship on the employer. The LEDL provides that the term “‘reasonable accommodation’ shall not be construed to impose on any private sector employer ... any additional costs in the hiring or the promotion of a disabled person” (La. R.S. § 23:322).

As a starting point, Louisiana prohibits agreements that prevent one from “exercising a lawful profession, trade, or business”, except as specifically authorized by Louisiana’s non-compete/non-solicit statute (La. R.S. § 23:921(A)(1)). The statute provides exceptions for employees, independent contractors, computer programmer employees, corporations, partnerships, limited liability companies and franchises, in certain specified situations; car salesmen cannot be subject to non-competition agreements (La. R.S. § 23:921), and there is a special statute that applies to real estate agents (La. R.S. § 37:1448.1).

Under the non-competition statute, an employee may agree with his or her “employer to refrain from carrying on or engaging in a business similar to that of the employer and/or from soliciting customers of the employer within a specified parish or parishes … so long as the employer carries on a like business therein, not to exceed a period of two years from termination of employment” (La. R.S. 23:921(C)). The statute is strictly construed (see, eg, J4H, L.L.C. v. Derouen, 2010-0319 (La. App. 1 Cir. 9/10/10), 49 So.3d 10, 14). Note that the leading Louisiana Supreme Court case on the statute – SWAT 24 Shreveport Bossier, Inc. v. Bond, 00–1695 (La. 6/29/01), 808 So.2d 294 – was legislatively overruled at La. R.S. 23:921(D) to the extent the Court had held that only owning a competing business could be prohibited by agreement under the statute (see Restored Surfaces, Inc. v. Sanchez, 11-529, p. 6 (La. App. 5 Cir. 12/28/11), 82 So.3d 524, 528). The great weight of authority is that the specific parishes or municipalities that are in the restricted area must be listed by name; other references, such as “two miles from the office”, do not satisfy the statute and are not enforceable (see, eg, L & B Transport, LLC v. Beech, 568 F.Supp.2d 689, 693 (M.D. La. 2008)). Furthermore, the statute requires that the employer may restrict competition and solicitation so long as the employer carries on a like business in the specified parishes, municipalities, or parts thereof.

Attempts to circumvent the strict construction of Louisiana’s statute by specifying the applicability of another state’s law or specifying that suit must be brought in a state other than Louisiana are generally void (La. R. S. §23:921(A)(2)).

Agreements not to solicit customers of the employer are subject to the same requirements set forth above with respect to non-compete agreements.

Uniform Trade Secrets Act

Louisiana has adopted the Uniform Trade Secrets Act (UTSA), which is codified at La. R.S. § 51:1431, et seq, and  prohibits the misappropriation of an employer’s trade secrets. For purposes of the UTSA, “misappropriation” is defined as the acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means. “Trade secret” is information that derives economic value from not being generally known, is not readily ascertainable, and is subject to reasonable efforts to maintain its secrecy. Such information may include a formula, pattern, compilation, program, device, method, technique, or process.

A person guilty of misappropriating a trade secret may be enjoined from using the trade secret, and is liable for damages. In order to recover damages under the UTSA, a complainant must prove the existence of a trade secret, the misappropriation of the trade secret by another, and actual loss caused by the misappropriation.

Unfair Trade Practices Law

The Unfair Trade Practices and Consumer Protection Law is codified at La. R.S. § 51:1401, et seq, and makes unfair methods of competition and unfair or deceptive acts in the conduct of a trade or business unlawful. In the employment context, this law seeks to prevent former employees from using confidential information gained in the course of employment to compete with their former employers. The law has also been interpreted to prohibit employers from enforcing invalid covenants not to complete. What constitutes unfair competition is determined on a case-by-case basis. A critical factor in this determination is the defendant’s motivation to harm competition. Thus, the LUTPA requires a plaintiff to prove some element of fraud, misrepresentation, deception, or other unethical conduct.

Under the LUTPA, a successful plaintiff may recover its actual damages incurred as a result of the unfair trade practice. If the court finds that the unfair or deceptive practice was knowingly used after being put on notice by the Louisiana Attorney General, it will award three times the actual damages sustained (La. R.S. § 51:1409). The law also permits an employer to discipline or discharge an employee who transfers the employer’s proprietary or confidential information or financial data to an employee’s personal online account without authorization (La. R.S. § 51:1953(B)(2)).

As set forth above, the Louisiana Employment Discrimination Law (LEDL) prohibits employment discrimination based on race, color, religion, sex, national origin, age, disability, pregnancy, sickle cell trait, genetic information, and the status of veterans who attend certain medical appointments (La. R.S. § 23:301, et seq). Certain municipalities have enacted ordinances that also prohibit employment discrimination, creating some overlapping obligations for employers (New Orleans, for example, prohibits employment discrimination on the basis of sexual orientation).

Effective August 1, 2014, Louisiana Revised Statute 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 LEDL (La. R.S. § 23:301, et seq), or because he or she has made a charge, filed a complaint, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under the LEDL.

The LEDL specifically prohibits 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 has 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).

There is no training requirement for Louisiana employers relating to discrimination, harassment, or retaliation. However, periodic training is recommended to both manage risk and ensure compliance with the LEDL and other laws.

Louisiana does not have a comprehensive workplace safety statutory scheme; federal OSHA requirements do apply. However, any current or former employee, or designated representative, must have a right of access to an employer's records of employee exposures to potentially toxic materials or harmful physical agents, employee medical records, and any analyses using employee exposure or medical records as provided for by federal law (La. R.S. § 23:1016).

There is nothing unique in Louisiana relating to federal ERISA and COBRA obligations, and Louisiana employers should meet those obligations. As for the implications of handbooks and policy statements, see 2.2 Alternative Approaches to Defining, Structuring and Implementing the Basic Nature of the Entity above.

Louisiana does not have a statute similar to the federal Older Workers’ Benefits Protection Act relating to releases and revocation of claims under the federal Age Discrimination in Employment Act.

Arbitration

Louisiana has a statutory provision that permits the enforcement of a contractual agreement to arbitrate a dispute (La. R.S. § 9:4201).

WARN Act Analogue

Louisiana does not have a statute governing plant closures or mass layoffs, but the federal Worker Adjustment and Retraining Notification Act may apply. 

Payment to Employees

Paydays

Employers employing more than ten employees who are engaged in manufacturing, boring for oil or mining operations, and public service commissions must pay their employees no less than twice during each calendar month and at least two weeks apart, or as near as practicable. Such payment must include all amounts due for labor or services the employee performed during the pay period, and must be payable no later than the payday for the following pay period (La. R.S. § 23:633). All other employers who fail to designate paydays must pay employees on the 1st and 16th days of the month, or as near as is practicable to those days (La. R.S. § 23:633).

The payday provisions do not apply to any employee considered exempt under the Fair Labor Standards Act (FLSA) (La. R.S. § 23:633). Employers must post notice of the payday provisions in the place where they post other employee notices required by state and federal law (La. R.S. § 23:633). An employer’s failure to pay employees in accordance with the payday provisions may result in the assessment of fines of no less than USD25 nor more than USD250 for each day's violation. In addition to said fines, a second such violation may subject a person to imprisonment of no less than ten days (La. R.S. § 23:633).

Final Paycheck Law

Upon an employee’s separation from employment, the employer must pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, except where there is a collective bargaining agreement governing the employment relationship. In the case of a discharge, this payment must be made 15 days after the date of discharge or on the next payday following the date of discharge, whichever is earlier. In the case of a resignation, this payment must be made 15 days after resignation, or on the payday for the pay period during which the employee resigned, whichever is earlier (La. R.S. § 23:631(A)). Such final payment must be made at the place and in the manner that was customary during the employment. However, the final payment may be made via United States mail, provided postage has been prepaid and the envelope properly addressed with the employee's current address as shown in the employer's records. If payment is made by mail, the employer will be deemed to have made such payment when it is mailed (La. R.S. § 23:631(A)).

Vacation pay is considered “an amount then due” only if, in accordance with the employer’s stated vacation policy, (1) the employee is deemed eligible for and has accrued the right to take vacation time with pay, and (2) the employee has not taken or been compensated for the vacation time as of the date of the separation from employment (La. R.S. § 23:631(D)).

In the event of a dispute as to the amount of final wages due to an employer following separation, the employer must pay the undisputed portion of the amount due, if any. The employee will have the right to file an action to enforce a claim for final pay allegedly due (La. R.S. § 23:631(B)). A violation of the final paycheck provisions will entitle the employee to penalty wages, which will be the lesser of 90 days’ wages at the employee's daily rate of pay, or full wages from the time the employee's demand for payment is made until the employer pays or tenders the amount of unpaid wages due to such employee (La. R.S. § 23:632). However, effective August 1, 2014, if the court determines that the employer’s dispute of the amount due was in good faith but nevertheless finds the employer liable for the wages, then the employer must only pay the disputed amount of wages. If the court finds that the employer’s failure to pay the disputed wages is not in good faith, then the employer will be liable for the penalty wages described above (La. R.S. § 23:632 (2014)). If a well-founded suit for unpaid wages is filed at least three days after the employee’s initial demand for payment following discharge or resignation, the employee may be entitled to reasonable attorneys’ fees.

Final Pay to Deceased Employees

An employer may pay to the surviving spouse of a deceased employee any wages and/or benefits due to the deceased employee, if neither spouse instituted divorce proceedings (La. R.S. § 9:1515). In the absence of a surviving spouse, or if either spouse instituted divorce proceedings, the employer may pay the final wages and/or benefits due to any major child of the deceased employee (La. R.S. § 9:1515). Prior to making any such payment, the employer must require the person receiving the payment to execute an instrument before two witnesses, giving the following information:

  • the name, address, date, and place of death of the deceased employee;
  • the relationship of the person requesting payment to said employee;
  • the name and address of the surviving spouse, or children, if any, of said deceased employee; and
  • such other information as the employer may require (La. R.S. § 9:1515).

The employer may make such payments without any court proceedings, order, or judgment authorizing such, and without determining whether or not any inheritance taxes may be due, only if the employer forwards an affidavit stating the name of the deceased, the amount paid and the name of the recipient, and a copy of the release document substantiating the release to the secretary of the Louisiana Department of Revenue, within ten days of the release of the funds (La. R.S. § 9:1515).

Wage Forfeiture

An employer may not require any employee to sign a contract by which the employee must forfeit his wages if discharged before the contract is completed or if the employee resigns employment before the contract is completed (La. R.S. § 23:634). Courts have interpreted this statute as restricting contracts in a variety of situations, including related to the payment of bonuses and commissions. Whether and how this statute may apply requires a fact-intensive analysis.

Wage Deductions

Generally, an employer may not make any deduction from an employee’s earnings. An exception may exist where the deduction is specifically and voluntarily authorized by the employee in writing. Such permissible deductions are authorized by case law and require careful consideration so as not to run afoul of the final paycheck law discussed above.

An employer may not require any employee or applicant to pay, or otherwise withhold from the employee’s pay, the cost of fingerprinting, a medical examination, a drug test, or the cost of furnishing any records required as a condition of employment. Violators may be fined no more than USD100, or imprisoned for no more than 90 days, or both (La. R.S. § 23:897). However, an employer will have a right of reimbursement from an employee or applicant who is hired as an employee for wages that are at least USD1 above the minimum wage, for the costs of such employee's or applicant's pre-employment medical examination or drug test if the employee terminates the employment relationship less than 90 working days after his or her first day of work or never reports to work, unless such termination is attributable to a substantial change made to the employment by the employer. No such withholding or reimbursement can be imposed upon part-time or seasonal employees (La. R.S. § 23:897(K)).

Fines and Deposits

An employer may not assess any fines against an employee, nor deduct any sum as fines from an employee’s earnings, except where the employee willfully or negligently damages the goods or works, or willfully or negligently damages or breaks the property of the employer, or where the employee is convicted of or has plead guilty to the crime of theft of employer funds. Any such fines may not exceed the actual damage done (La. R.S. § 23:635).

It is not a fine for an employer to require an employee to give a deposit to insure the return of equipment, but it should be noted that, if a cash deposit is required as a guarantee for the faithful performance by the employee, the employer must pay the employee interest on the deposit, of at least 4%. Requiring an employee to make a deposit may violate the FLSA if the deduction reduces wages below minimum wage for the week in which the deduction is made (La. R.S. § 23:891).

Penalties

Any employer who makes unauthorized deductions from an employee’s wages, either as an unlawful forfeiture of wages or an unlawful fine against the employee, will be fined no less than USD25 nor more than USD100, or imprisoned for no less than 30 days nor more than three months (La. R.S. § 23:636).

Breach of contract claims are relatively rare in the employment law setting in Louisiana. The typical contract dispute in the employment setting concerns commissions or other compensation owed under an agreement, or a dispute over whether a termination triggered a severance pay obligation under a written employment agreement. The prescriptive period (known as the statute of limitations in most US jurisdictions) for contractual claims in Louisiana is ten years. Generally, breach of contract claims do not permit awards of damages for nonpecuniary interests or attorneys’ fees.

See 3.1 Legal and Practical Constraints, above. Exhaustion of administrative remedies is not required. If no charge of discrimination is filed, the prescriptive period is 12 months for a claim under the LEDL. If a charge is filed, the prescriptive period is tolled while the charge is pending for up to a maximum of 18 months. One unique feature of Louisiana law is the requirement that, 30 days prior to initiating court action, a person who believes he or she is the victim of employment discrimination must give notice to the discriminator, detailing the acts of alleged discrimination, and then the parties must confer in good faith to resolve the controversy( La. R.S. § 23:303(C)). Courts have held this requirement to be a mandatory prerequisite to filing suit.

Louisiana does not have a comprehensive wage and hour statutory scheme governing minimum wage or overtime requirements. See 5.1 Addressing Issues of Possible Termination of the Relationship for a discussion of Louisiana’s laws regarding payment of wages and compensation to employees.

Employment Discrimination Law

Effective August 1, 2014, Louisiana Revised Statute 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 LEDL (La. R.S. § 23:301, et seq), or because he or she has made a charge, filed a complaint, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under the LEDL. Note that the statutory prohibition is “to conspire” to retaliate. Despite the amendment, it is still unsettled whether this statute creates a cause of action for retaliation under the LEDL or simply prohibits a conspiracy to retaliate.

The LEDL specifically prohibits 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 has 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).

Anti-Reprisal Statute

Louisiana’s anti-reprisal statute prohibits reprisal against an employee who in good faith, and after advising the employer of the violation of law, does the following:

  • discloses or threatens to disclose a workplace act or practice that is in violation of state law;
  • provides information to or testifies before any public body conducting an investigation, hearing, or inquiry into any violation of state law; or
  • objects to or refuses to participate in an employment act or practice that is in violation of state law (La. R.S. § 23:967).

The Anti-Reprisal Statute requires an employee to establish an actual violation of state law, as opposed to a reasonable belief that such a violation occurred. If the court finds either that the plaintiff’s suit under the Anti-Reprisal Statute was brought in bad faith or that the employer’s act or practice complained of was not in violation of the law, the employer may be entitled to recover its reasonable attorneys’ fees and court costs from the employee (La. R.S. § 23:967(D)).

Environmental Whistleblower Statute

The Louisiana Environmental Whistleblower Statute prohibits retaliation against an employee who, acting in good faith:

  • discloses, or threatens to disclose, to a supervisor or to a public body an activity, policy, practice of the employer or another employer with whom there is a business relationship that the employee reasonably believes is in violation of an environmental law, rule, or regulation; or
  • provides information to, or testifies before any public body conducting an investigation, hearing, or inquiry into any environmental violation by the employer, or another employer with whom there is a business relationship, of an environmental law, rule, or regulation.

Violations of this statute entitle an employee to recover treble damages (La. R.S. § 30:2027).

Testifying at Labor Investigation

Employers may not discriminate against an employee because that employee testified in any investigation relating to the enforcement of any of the state’s labor laws. The penalties for violating this provision include civil fines of up to USD500, imprisonment for up to 90 days, or both (La. R.S. § 23:964).

Reports of Child Abuse

Louisiana law protects employees from reprisal – including discharge, demotion, suspension, threats, harassment, or discrimination in any manner – for reporting to law enforcement any fellow employee’s sexual abuse of a minor. The law provides a cause of action against employers “for damages associated with any action taken by the employee which is in furtherance of the protection of a minor child.” The statute entitles employees who prevail on such claims to treble damages, court costs, and attorneys’ fees. It does, however, specify that plaintiffs may not recover under the statute “if the court finds that the plaintiff instituted or proceeded with an action that was frivolous, vexatious, or harassing” (La. R.S. § 23:968).

There are several different dispute resolution forums for employment law claims in the state of Louisiana. For example, in collaboration with the EEOC, the Louisiana Commission on Human Rights may offer mediation to settle some charges of discrimination. In federal court, the Magistrate Judge will also often require the parties to engage in a settlement conference with that assigned judge. In addition to agency and court-ordered and approved mediation and settlement forums, parties also often engage private mediators to assist them with the possible resolution of lawsuits and threatened suits.

Louisiana’s Code of Civil Procedure on the subject of class actions largely mirrors the Federal Rules of Civil Procedure, and therefore requires no separate or unique regional considerations.

In May 2018, the United States Supreme Court held that, under the Federal Arbitration Act (FAA), class action and collective action waivers contained in employment arbitration agreements are enforceable, thereby resolving inconsistent rulings by the Circuit Courts about whether such agreements violated the National Labor Relations Act. Louisiana law is not inconsistent with this ruling.

Relief under the LEDL includes back pay, front pay, compensatory damages, reinstatement, and attorneys’ fees. Punitive damages are not generally available in Louisiana in employment cases. Remedies under other Louisiana laws are covered elsewhere in this publication.

As detailed elsewhere, Louisiana law in the non-compete context is hostile to the application of law from another jurisdiction. In fact, La. R.S. § 23:921(A)(2) specifically prohibits the enforcement of a choice of law provision in an employment contract where that provision is not ratified after the dispute arose.

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Ogletree, Deakins, Nash, Smoak & Stewart, PC (New Orleans) is one of the largest labour and employment law firms representing management. The firm has more than 850 labour and employment lawyers located in more than 50 offices across the United States and in Europe, Canada, and Mexico. Ogletree Deakins has a well-developed footprint and is dedicated to providing professional, cost-effective services across the full spectrum of labour and employment law. The firm represents a diverse range of clients, from start-up companies to Fortune 50 corporations. Premier client service, as outlined in the firm’s Client Pledge, is one of the firm’s top priorities and a cornerstone of its core values. As this suggests, the firm is dedicated to partnering with in-house legal and human resources colleagues to deliver timely, client-centered counsel and representation.

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