Employment Law

Employment Law is an "umbrella phrase" I use to refer to all disputes that arise out of employment.  In this section of my website, I focus on providing basic information on those areas that are most likely to arise for employees and employers regarding the employment relationship.


Are you an Employee?


The first determination a company and someone performing services need to make is whether the person performing those services is actually an employee.  We have situations where people volunteer to help others, where people contract to begin businesses together, where people appoint someone else to carry out tasks for them, and where a company will sell to someone the right to operate a business whose name and concept are owned by that company (such as a franchise operation like Popeye’s or Chili’s).  Each of those situations results in some sort of relationship between one or more persons, but that does not mean an employer-employee relationship arises.


The most common issue that leads to litigation regarding a performer’s status is whether he is an employee or an independent contractor.  Although employees and independent contractors render services for another, they are treated differently by law.  So, it is important to examine that distinction because different obligations stem from each.


In general, a person is an employee if he appears for work at a workplace designated by the employer, he works specific hours designated by the employer, his tools are provided by his employer, he performs his job according to instructions given by his employer, he is paid a salary or hourly wage based on the amount of time he works, he can quit or be fired whenever he or his employer chooses, and an employee is a real person - not an entity such as a corporation or other form of business.


On the other hand, an independent contractor is someone who also performs services for someone else (called a principal - not an employer), but the factors delineated above for employees are almost the complete opposite for the independent contractor/principal relationship.  Independent contractors are generally not subject to the level of control while performing their tasks as do employers over their employees.  Independent contractors contract to deliver specific results, and the manner in which they achieve that result are within their control - not the person for whom they are performing.  Instead of being paid by the hour or a salary, an independent contractor is usually paid a lump sum for an entire job.  Independent contractors almost always use their own tools.   And independent contractors are usually unable to simply walk away from the job they contracted to perform until they have fulfilled the terms of their contract.


For example, consider a lawn service owner who employees two helpers, and contracts with you, a homeowner, to maintain your yard.  When you contract with the owner of the lawn service, you will probably agree that he will cut your grass on a weekly or twice-monthly basis, but that is about the end of the "control" you have over the performance of that lawn service.  The lawn service owner will use his own lawnmowers and weedeaters and rakes, he will appear for the lawn maintenance at a time convenient for him (provided it is reasonably within the agreed-upon schedule), and you will pay him a set amount (such as $50 or $75 for each appearance) to care for your lawn, as opposed to hourly.  In this scenario, you will be considered and called the "principal" and he will be considered and called the "independent contractor".


Now, as for the independent contractor’s two helpers, they will be considered employees of the lawn company’s owner if they appear for work on the time and date specified by the owner, they will be paid either an hourly or salaried amount for their work, and they will use the lawnmowers and weedeaters and rakes owned by the owner.  The independent contractor's two helpers will likely have no specific relationship with you, the principal.

At Will Employment

Once you have concluded that the person performing services is an employee, you then must understand the concept of "at will employment" - a doctrine Louisiana recognizes.  This doctrine is codified in Louisiana’s Civil Code:


"A man [employer] is at liberty to dismiss a hired servant [employee] attached to his person or family, without assigning any reason for so doing.  The servant is also free to depart without assigning any cause."


This means that an employer may terminate an employee’s employment without any reason.  Likewise, an employee may terminate his employment with his employer without any reason.  Employment contracts between employers and employees - which will severely limit terminations by either side - are rarely found in Louisiana.


But as with all rights, people must exercise their employment rights in a manner consistent with what the law has determined to be legal.  Although employees usually may quit their employment without consequence whenever they desire (absent an employment contract), employers do not enjoy that same degree of freedom to terminate.

Employment Discrimination


Louisiana and the federal government have protected employees by prohibiting treatment, retaliation, and termination of those employees by the employer for numerous reasons.  They (called "protected classes" of people) include:


  • Sex


  • Religion


  • Race


  • Age


  • Disability


  • Political affiliation


  • Pregnancy and related conditions

Discrimination Under Title VII of the Civil Rights Act of 1964

In 1964 (and under subsequent amendments), Congress passed sweeping legislation that prohibited employers from discriminating against potential employees and employees on the basis of race, religion, sex, national origin, age, and other protected classes.


A claimant may prove discrimination in one of two ways: discriminatory intent and disparate impact.


Discriminatory Intent


As one can imagine, it is a rare case where a claimant has direct evidence of intentional discrimination, such as an employer saying in the presence of other people, or being recorded saying, that he took an adverse, prohibited action against a prospective or current employee.  A person filing a discrimination claim will likely never have evidence of an employer - either in writing or recorded - saying something along the lines of, "I will not hire a black at this company", or "We don't hire women - period!", or "People with disabilities cost too much, so eliminate them from the pool of applicants."  Thus, the U.S. Supreme Court set up a "procedure" of shifting burdens of proof in which employers and claimants go back and forth with evidence until a case is either sustained or dismissed.


To help overcome the almost always lack of direct discriminatory intent (consider how difficult it is to prove what a person was thinking when he acted), a claimant may establish a claim simply by showing:


(a) he was a member of a protected class,


(b) he was qualified for an available job,


(c) he was not hired, and


(d) a member of a non-protected class was hired instead.


This results in a presumption of discriminatory intent that is considered a "prima facie" case of discrimination.  If the employer offers nothing in rebuttal at this stage, the claimant will win.


If the claimant fails to make a prima facie case, the court will likely dismiss his suit.  If, however, the claimant makes a prima facie showing of alleged discriminatory intent, the burden shifts to the employer to articulate a non-discriminatory, legitimate business reason for the adverse act.  Once the employer articulates a non-discriminatory reason, the presumption of discrimination disappears.  Even more important, an employer need only articulate the non-discriminatory, legitimate business reason - it need not prove the validity of the reason.


If the claimant does not believe the articulated reason, the burden shifts back to the claimant, who now must show either: (a) the employer’s articulated reason was a mere pretext (that is, not true) and should not be believed, or (b) the articulated reason, while true, was only one reason for the adverse action against the claimant, and that a prohibited reason was an additional motivating factor in the employer’s adverse act against the claimant.  The claimant cannot meet his burden by simply saying the employer’s reason was a "pretext".  The claimant must offer proof of discriminatory intent.


Disparate Impact


Disparate impact discrimination cases differ from discriminatory intent cases in that a claimant does not have to prove that an employer acted with discriminatory intent.  The claimant need only prove that a particular employment practice (such as a hiring test), although "neutral on its face" (meaning, it does not appear to be discriminatory), adversely impacts a protected group more than a non-protected group, and the practice is not justified by business necessity.  If the claimant shows an adverse impact on his protected group, the burden of proof shifts to the employer to show, using expert testimony, that the practice is, in fact, job related.


For example, suppose an employer institutes a written test for all applicants.  After a year of testing, one applicant discovers that the test - although seemingly "innocent" on its face - has resulted in blacks failing at a higher rate than whites or women failing at a higher rate than men.  If the applicant can prove this adverse impact (more blacks and whites or more women than men failed) and demonstrate that the test is not really needed for the job, the claimant may argue that the testing was discriminatory because it excluded a protected class and that testing was not necessary to operate the business.  The burden then shifts to the employer who, to avoid losing, will have to introduce evidence - often in the form of expert testimony - that shows that the testing was job related and necessary for the business to employ qualified applicants.

Americans with Disabilities Act


In 1990, President Bush signed the Americans with Disabilities Act (ADA), a federal statute that prohibits discrimination on the basis of disability in private employment, State and local government, public accommodations, commercial facilities, transportation, and telecommunications.


To be protected by the ADA, one must have a disability or have a relationship or association with an individual with a disability.  An individual with a disability is defined by the ADA as either (a) a person who has a physical or mental impairment that substantially limits one or more major life activities, (b) a person who has a history or record of such an impairment, or (c) a person who is perceived by others as having such an impairment. The ADA does not specifically name all of the impairments that are covered and caselaw has been instrumental in developing the extent to which one qualifies as being covered by the ADA.


With respect to private employers, the ADA applies only to those who employ 15 or more employees.  It requires those employers to provide qualified individuals with disabilities an equal opportunity to benefit from the full range of employment-related opportunities available to others employees.  For example, the ADA prohibits discrimination in recruitment, hiring, promotions, training, pay, social activities, and other privileges of employment.  It restricts questions that can be asked about an applicant's disability before a job offer is made, and it requires that employers reasonably accommodate otherwise qualified individuals who have known physical or mental limitations, unless the accommodations would result in undue hardship to the employer.


The ADA, intentionally or not, has many traps for the unwary prospective employer.  During an interview, that prospective employer may not ask an amputee "How do you get around?" or "Are you coping well?", no matter how good-intentioned the questioning.  A prospective employer may not ask an applicant if he ever had an accident, or if he ever received workers' compensation benefits.  The primary purpose of the ADA was to "force" the prospective employer to view an applicant as though no disability was present.  That employer must be able to look past the apparent disability and evaluate the applicant solely on his credentials as they relate to the job for which the applicant applied.  But for the applicant's disability, if the prospective applicant is qualified, he should be offered the job (unless someone more qualified is chosen).


An employer is not required to hire someone if that person's disability will put either himself, or others working with him, in danger of seriously bodily harm.  Nor is an employer required to hire someone who simply cannot perform the essential functions of the job, even with reasonable accomodations made by the employer in an attempt to accommodate the applicant's disability.  But those things should not be discussed at the first interview and before what is known as the "conditional offer".  It is only after an applicant has been "conditionally hired" that questions into the applicant's disability may be made and investigated to determine if that disabled applicant can work with a reasonable accomodation by the employer, or if that applicant can perform his work without risk of hurting himself further or injuring his co-workers.  And those inquiries must be made by someone other than the person in charge of hiring. 

Family and Medical Leave Act

In 1993, President Clinton signed the Family and Medical Leave Act (FMLA) to provide an eligible employee up to 12 weeks of paid or unpaid, job-protected leave during a 12-month period measured backward from the date an eligible employee uses any qualifying FMLA leave, so that an employee can use that leave for any of the following reasons:


  • For incapacity due to pregnancy, prenatal medical care or childbirth


  • To care for the employee’s child after birth, or placement for adoption or foster care


  • To care for the employee’s spouse, child (typically under age 18), or parent, who has a serious health condition


  • For a serious health condition that makes the employee unable to perform the employee’s job


During FMLA leave, the employer must maintain the employee’s health coverage under any "group health plan" on the same terms as if the employee had continued to work, regardless of whether the employee is on paid or unpaid leave.  Upon return from FMLA leave, most employees must be restored to their original or equivalent positions with equivalent pay, benefits, and other employment terms.


An employer is subject to the provisions of the FMLA if it employees at least 50 employees and is engaged in interstate commerce for each working day in 20 or more calendar work weeks in the current or preceding calendar year.


In sum, an employee is entitled to FMLA leave if:


  • He has been employed by his employer for at least 12 months;


  • He has worked at least 1,250 hours during the 12 month period immediately prior to the beginning of the leave; and,


  • He is employed at a worksite where 50 or more employees are employed within 75 miles of his worksite.


The employee may be required to provide advance leave notice and medical certification confirming his or his relative's medical condition necessitating the leave.  Taking of leave may be denied if these requirements are not met.  The employee ordinarily must provide 30 days advance notice when the leave is ''foreseeable.''  An employer may require medical certification to support a request for leave because of a serious health condition, and may require second or third opinions (at the employer's expense) and a fitness for duty report to return to work.


Upon return from FMLA leave, most employees must be restored to their original or equivalent positions with equivalent pay, benefits, and other employment terms.  The use of FMLA leave cannot result in the loss of any employment benefit that accrued prior to the start of an employee's leave.


Although an employee has the option of designating his requested leave as either personal accrued leave or FMLA leave, the employer is the one who determines whether the requested leave qualifies as FMLA.  Obviously, an employer wants to designate the leave as FMLA as soon as possible so that the 12 week period begins running.

Filing a Discrimination Claim

Claimants alleging discrimination under federal law do not begin their claims by suing in court. They must first file a charge with the U. S. Equal Employment Opportunity Commission (EEOC) usually within 180 days of the date of discrimination.  That 180 day period for filing is extended to 300 days if the charge is filed with a designated State or local fair employment practice agency.  A charge may be filed at any local EEOC field office, and may be filed for any type of alleged discrimination prohibited by a federal statute.


Individuals may file a lawsuit in court only after they receive a "right-to-sue" letter from the EEOC.  A "right-to-sue" letter does not mean that the EEOC has to find a valid basis for the complaint before issuing that letter.  In fact, the EEOC may specifically find that the alleged act of discrimination in the complaint does not meet the standards for disability discrimination.  But, regardless of the EEOC’s conclusion, a person who filed the complaint may nevertheless proceed with filing suit once he receives his "right-to-sue" letter.  Once the right-to-sue letter is received, the complainant must file suit in court within 90 days from receipt of that letter.  That 90 day window within which to sue is unforgiving - if the claimant does not sue within 90 days, his suit will be barred.


Finally, the EEOC's determination (which will be noted in the "right-to-sue letter") is not binding on the court hearing the case if the claimant files suit.  But in most instances, the courts do give some deference or weight to the EEOC's conclusions.

Payment of Employees

Unless a collective bargaining agreement exists between the employer and the employee (which is usually the case when the employee is a member of a union), or the employer and employee have an employment contract (which is rare), employers must pay employees who have recently left their employment, for whatever reason, in the following manner.


Payment to Discharged Employees

Upon the discharge of any employee, the employer has a duty to pay to that employee the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, on or before the next regular payday or no later than 15 days following the date of discharge, whichever occurs first.


Payment to Resigning Employees

Upon the resignation of any employee, the employer has a duty to pay to that employee the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, on or before the next regular payday for the pay cycle during which the employee was working at the time of separation or no later than 15 days following the date of resignation, whichever occurs first.


How Payment is to be Made

Payment by the employer to the former employee shall be made at the place and in the manner which has been customary during the employment, except that payment may be made via United States mail to the employee, provided postage has been prepaid and the envelope properly addressed with the employee’s current address as shown in the employer's records.  In the event payment is made by mail the employer shall be deemed to have made such payment when it is mailed.  The timeliness of the mailing may be shown by an official United States postmark or other official documentation from the United States Postal Service.


Problems for Employers who fail to Pay


In the event of a dispute as to the amount due a former employee, the employer must pay the undisputed portion of the amount due.  An employer should never hold up any amount that both sides agree is owed.  The employer may make this payment by either unconditionally tendering a check for the undisputed amount to the employee, or paying the undisputed amount into the registry of the court.  This tender or registry-payment will usually prevent the imposition of penalties and attorney's fees.


Vacation pay will be considered an amount then due only if, in accordance with the stated vacation policy of the person employing such laborer or other employee, both of the following apply:


(a) The laborer or other employee is deemed eligible for and has accrued the right to take vacation time with pay.


(b) The laborer or other employee has not taken or been compensated for the vacation time as of the date of the discharge or resignation.


No provisions of Louisiana law may be interpreted to allow the forfeiture of any vacation pay actually earned by an employee pursuant to the employer's policy.


Penalties and Attorney's Fees for Failing to Timely Pay


Any employer who fails to pay a former employee as outlined above shall be liable to the employee either for 90 days wages at the employee's daily rate of pay, or else for full wages from the time the employee's demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages.


If a well-founded suit for any unpaid wages is filed by a claimant after three days have elapsed from the time of making the first demand for such payment following discharge or resignation, the court must award reasonable attorney fees.  The award of reasonable attorney's fees to a successful litigant is mandatory.


In some cases, courts have awarded attorney's fees to the the losing litigant who was the former employee.  Thus, an employer should keep in mind that although he may win on the former employee's claim of incorrect payment, that employer may still be ordered to pay the losing former employee's attorney's fees.  This may sound unfair, but the courts do not want to discourage former employees from filing suit out of fear they may not be able to recoup the money they paid their attorney if they had what seemed to be a winning case.