Employment Law in Louisiana

Pre-employment/Promotion

Hiring

Under federal law, an employer doesn't have to hire, or promote, the most qualified applicant. But the employer cannot base decisions on personal characteristics that are not job-related. These characteristics often include:

• Age
• Race
• Sex
• Religion
• National origin
• Disability

An interviewer isn't allowed to ask questions relating to these characteristics. Interview questions that aren't allowed include:

• Are you married? Are you planning to get married?
• Do you have children? Are you planning to have children?
• Where were you born?
• What's your sexual orientation?
• Have you ever been arrested?

An interviewer can, however, ask about a personal characteristic if it could hinder your ability to fulfill the job's requirements. Some examples might be:

• Have you ever been convicted of a crime?
• Can you prove that you are eligible to work in the US?
• Can you do this job with, or without, reasonable accommodations?

References

A previous employer is free to provide any non-confidential information about a previous employee, as long as it's true and isn't provided to maliciously harm the employee. An employer, who provides false information that disparages the employee, may be liable for defamation. In order to avoid potential liability, many employers often refuse to comment on a past employee's job performance and confirm only dates of hire and separation, plus wage or salary information.

Employment

At Will

In the majority of states, employees not working under an employment contract are deemed to be "at will." At-will employees may be terminated for any reason, so long as it's not illegal. There are numerous illegal reasons for termination. Typically such reasons fall into one of two large categories: illegal discrimination or illegal termination in violation of a public policy. Generally, employees who work under an employment contract can only be terminated for reasons specified in the contract.

Louisiana is an "employment-at-will" state, which means that an employer may legally hire, fire, suspend or discipline any employee at any time and for any reason or for no reason at all. However, an employer may not discriminate against any employee on the basis of the employee's race, sex, age, religion, color, national origin or disability. Louisiana law also prohibits discrimination on the basis of pregnancy or childbirth, sickle cell trait, handicap and smoking.

Also, under the Louisiana "whistle blower's law," the employer may not take any reprisal against an employee who advises the employer that the business is in violation of a law and the employee either discloses, threatens to disclose or testifies about the violation of law, or the employee objects to or refuses to participate in an employment act in violation of law.

There are other exceptions to Louisiana's employment-at-will doctrine. Louisiana employees may not be disciplined or discharged at-will for:

• Being called to military service
• Political opinions or voting
• Exercising right of association
• Wage garnishment
• Filing workers' compensation claim
• Being called to jury duty

Employee Handbooks

While an employer is not required by law to have an employee handbook, in most cases, it is recommended. An employee handbook provides a centralized, complete and certain record of the employer's policies and procedures. An employee handbook also provides more convenient access by employees and managers.

At a minimum, an employee handbook should include:

• A statement regarding the at-will employment relationship
• An equal employment opportunity statement
• A policy regarding sexual and other types of harassment in the workplace
• Internet access, e-mail, and voice mail policies
• The Family Medical Leave Act

The laws regarding an employer's duties and responsibilities arising under an employee handbook are complex, and a licensed attorney should be contacted to review individual circumstances.

Workplace Safety

Federal and state laws require that most employers furnish a place of employment that is free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees. In most instances, an employee may anonymously complain about an unsafe work environment and be protected against employer reprisals.

Louisiana offers a free program, called the Safety and Health Achievement Recognition Program (SHARP), which provides a worksite safety program to smaller businesses. Businesses that satisfy specific SHARP requirements are exempt from federal Occupational Safety & Health Administration (OSHA) compliance inspections for a period of one year.

Workplace Injury

Workers' compensation laws are designed to compensate employees who have been injured or killed in work related accidents according to a fixed monetary scheme, without having to resort to litigation. Dependents of a fatally injured employee may also be entitled to benefits. Employers may be protected by limits placed on the amount of an employee's recovery.

All employers must provide workers' compensation insurance for their employees if an employee is hurt at work or becomes ill due to something that is work-related.

Employees are not eligible for workers' compensation if the employee:

• Intentionally injured self or was injured while intentionally injuring another employee
• Was intoxicated at the time of the injury
• Deliberately failed to use adequate guard or protection against the accident

Sexual Harassment

An employer may be liable to an employee for instances of "sexual harassment," which can include unwelcome sexual advances, conduct or other physical or verbal acts of a sexual nature, which occur in the workplace. The following conduct is generally considered sexual harassment:

• Direct sexual conduct-an employer makes sexual advances or statements
• "Quid pro quo" -job-related benefits are offered in exchange for sexual conduct
• Hostile work environment-an employer maintains an overly sexual work environment

Because the laws determining what conduct, or pattern of conduct, constitutes actionable sexual harassment are complex, a licensed attorney should be contacted to review individual circumstances.

Discrimination and Wrongful Termination

Employers are not allowed to terminate or discriminate against employees for the following reasons:

• Age
• Race
• Sex
• Religion
• National origin
• Disability
• Pregnancy

It's illegal for an employer to consider these characteristics with regard to:

• Promotions
• Job assignments
• Termination
• Wages

And it's illegal for an employer to terminate an employee:

• For refusing to break a law
• In retaliation for filing a discrimination or safety claim
• For taking leave under the Family and Medical Leave Act
• Without following its own stated procedure or policy
• For reasons not contained in the employment contract, if one exists

Discrimination against employees is illegal under both federal and state law. The Louisiana Commission on Human Rights handles complaints of employment discrimination based on race, color, religion, sex, disability, age, sickle cell trait, pregnancy, child birth and related medical conditions. An employer must have a minimum of 20 employees to file a complaint under race, color, sex, national origin, religion and disability in employment discrimination. To file under the basis of age, an employer must have 20 employees and the employee must be age 40 or over, sickle cell trait requires at least 20 employees and pregnancy, childbirth and related medical conditions requires more than 25 employees. The last alleged act involving discrimination must have occurred within the past 180 days.

Family and Medical Leave

The Family Medical Leave Act (FMLA) provides 12 weeks of unpaid leave to qualifying employees who need time off from work to care for their own or an immediate family member's serious health condition. This allows for continued medical benefits and restoration of their original position upon return. An employee is eligible when they:

• Have worked for the same employer for the previous 12 months
• Have worked at least 1,250 hours in the previous 12 months
• Are employed by a "covered" employer, which is:
  • All federal, state, and local governments and agencies
  • Private employers with 50 or more employees for 20 weeks in the calendar year and engaged in interstate commerce

An injury or illness qualifies as a "serious health condition" if it either requires an overnight stay in a medical facility or constitutes "continuing treatment" by a health-care provider. Continuing treatment requires either the employee's incapacity for more than three calendar days and at least two subsequent treatments, or treatment by a health-care provider that results in continuing supervised treatment.

Post-employment

Unemployment Benefits

Unemployment benefits are based on combinations of federal and state statutes. Unemployment compensation programs are administered by the state and normally provide monetary compensation to workers who have been terminated without cause, through no fault of their own. Employees who voluntarily terminate their employment for "good cause" may also be entitled to benefits.

Louisiana unemployment insurance (UI) is a program designed to provide temporary financial assistance to workers who are unemployed through no fault of their own and who meet the requirements of the Louisiana Employment Security Law. UI benefits are paid as a matter of past employment and legal entitlement, and not on the basis of need.

The law sets qualifying requirements in three main areas. All of the following qualifying requirements must be met in order to receive benefits:

• Past Wages-employee must have earned enough wages in base period, which is the first four of the last five completed calendar quarters before a claim was filed
• Reason for separation from your last work-employee must be unemployed or partially unemployed through no fault of his or her own in order to receive benefits
• Ongoing availability and work search-employee must be physically able and available to work

The minimum weekly benefit amount of UI in Louisiana is $10.00. The maximum is $258. The total amount of UI benefits payable is equal to the lesser of 26 times the weekly benefit amount or 27% of the total base period wages.

COBRA

Under the Consolidated Omnibus Budget Reconciliation Act (COBRA), which is a federal law, employees may be allowed to continue their health insurance benefits, at the employee's expense, for up to 18 months after either voluntary or involuntary termination, if the employer has 20 or more employees.

To qualify for COBRA continuation coverage, an employee must have a qualifying event that causes the employee to lose group health coverage. The following are qualifying events:

For employees
• Voluntary or involuntary termination of employment for reasons other than gross misconduct
• Reduction in numbers of hours worked
For spouses
• Loss of coverage by the employee because of one of the qualifying events listed above
• Covered employee becomes eligible for Medicare
• Divorce or legal separation of the covered employee
• Death of the covered employee
For dependent children
• Loss of coverage because of any of the qualifying events listed for spouses
• Loss of status as a dependent child under the plan rules

Related Web Links:

- Office of Workers' Compensation Administration
- Louisiana Commission on Human Rights
- Louisiana Works Department of Labor
- Safety & Health Achievement Recognition Program
- Employment Law for Employees message boards for more help