COVID-19–Driven Layoffs Are Not a ‘Natural Disaster’ Under WARN Act, Fifth Circuit Rules

In the first ruling from a federal appellate court examining COVID-19–related layoffs and the Worker Adjustment and Retraining Notification (WARN) Act, the Fifth Circuit Court of Appeals held in Easom v. US Well Services, Inc., No. 21-20202 (June 15, 2022), that a mass layoff resulting in part from the economic impact of COVID-19 did not qualify for the “natural disaster” exemption to the WARN Act’s sixty-day notice requirement for mass layoffs. The court also held that for an employer to rely on the exemption, the mass layoff (or plant closing) must be the “direct result” of the natural disaster. This is an important ruling for employers in Louisiana, Mississippi, and Texas.

Fifth Circuit Finds Specific Allegation of One-Time Use of Racial Slur Sufficient to Preclude Dismissal Under Rule 12(b)(6)

On March 24, 2022, the U.S. Court of Appeals for the Fifth Circuit reversed a district court’s Federal Rule of Civil Procedure 12(b)(6) dismissal for failure to state a claim on a pro se plaintiff’s hostile work environment claim in violation of Title VII of the Civil Rights Act of 1964, holding that the plaintiff’s specific allegation—that his supervisor, in the presence of other employees, called him a derogatory racial epithet—was sufficient to give rise to a viable claim.

OSHA Reminds Arkansas, Louisiana, Oklahoma, and Texas Employers to Protect Workers From Heat-Related Illness

High temperatures in the Southwestern United States have and continue to break records. In Arkansas, Louisiana, Oklahoma, and Texas, the heat index could reach triple digits and in some cases exceed 110°F. These elevated temperatures pose a serious risk to employees exposed to heat due to the nature of their jobs. As a result, the Occupational Safety and Health Administration (OSHA) is aggressively enforcing its national and regional programs aimed at preventing heat-related illnesses and fatalities.

A Lesson from the Fifth Circuit About Louisiana Noncompete Agreements: Establish the Employment Relationship First

A recent opinion from the United States Court of Appeals for the Fifth Circuit applying Louisiana’s restrictive law governing noncompetition agreements, reminds employers of the importance of establishing an employee-employer relationship before entering into noncompetition agreement.

Fifth Circuit Relied on ‘Next to No Evidence’ of Animus in Discrimination Suit

On May 13, 2022, the U.S. Court of Appeals for the Fifth Circuit affirmed summary judgment in favor of an employer, finding that a fired employee had failed to create a genuine dispute of material fact as to pretext. In Owens v. Circassia Pharmaceuticals, Inc., the court affirmed summary judgment despite its recognition that the former employee had presented “substantial evidence” that could lead a reasonable jury to conclude that the employer’s stated reason for termination—her poor job performance—was false.

Excusing False Positive Drug Test Caused by CBD Use May Be a Reasonable Accommodation, Says U.S. District Court in Louisiana

A federal district court in Louisiana, in Huber v. Blue Cross & Blue Shield of Florida, Inc., recently denied an employer’s motion for summary judgment in an Americans with Disabilities Act (ADA) and Louisiana Employment Discrimination Law (LEDL) case, finding, among other things, that accounting for and excusing a false positive drug test resulting from extended cannabidiol (CBD) use may be a reasonable accommodation.

Fifth Circuit Rules Age-Related Comments Must Be Specific to Defeat Summary Judgment

The Fifth Circuit Court of Appeals recently issued a ruling concerning the discharge of Michael Harris from his position with the City of Schertz, Texas, as the city marshal. In doing so, the Fifth Circuit gave a bit more clarity on the situations in which comments made by an employer or agent of an employer amount to discriminatory pretext.

Louisiana Appellate Court Reminds Employers of the Strict Rules for Enforceable Noncompete Agreements

Under Louisiana law, noncompetition agreements may limit competition only as to business similar to that of the former employer. The provision in Advanced Medical Rehab, L.L.C. v. Manton, the court found, violated La. R.S. 23:921 as it prohibited Manton from employment in the practice of marketing for any business, not merely marketing medical services for medical clinics.

New Orleans Revives Mask Mandate, Effective January 12, 2022

New Orleans has revived its mask mandate for indoor spaces, effective January 12, 2022. Citing increased COVID-19 infection and hospitalization rates, Mayor Latoya Cantrell has ordered that all individuals over the age of two who do not have breathing complications must wear masks “when in indoor spaces outside the household, unless actively eating or drinking.”

Louisiana Workforce Commission Publishes Posters on Expanded Employee Pregnancy Accommodation Rights

Effective August 1, 2021, the Louisiana Employment Discrimination Law was amended to expressly require Louisiana employers with more than 25 employees to provide reasonable accommodations to employees with limitations arising from pregnancy, childbirth, or related medical conditions, provided that such limitations are known to the employers.

Breaking News on the CMS Vaccination Rule: Less Than 24 Hours After Being Shelved in 10 States, the Rule Is Sidelined Nationwide

In a November 30, 2021, order, a federal judge sitting in Louisiana entered a nationwide preliminary injunction against the Biden administration’s Centers for Medicare and Medicaid Services’ (CMS) interim final rule entitled “Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination.” The effect of the order is that CMS must immediately “cease all implementation or enforcement of the [CMS] Rule” in the remaining 40 states not covered by an earlier November 29, 2021, order from a federal judge sitting in Missouri that prevented implementation and enforcement of the CMS rule in only 10 states.

Fifth Circuit Rules Day Rate Compensation Does Not Satisfy Requirement of Payment on a Salaried Basis for Exempt Status

The issue of the proper application of the highly compensated employee exemption under the Fair Labor Standards Act (FLSA), as it applies to employees paid on a “day-rate” basis in the oil and gas industry, has been a hotly debated issue in recent years, especially in the Fifth Circuit Court of Appeals.

New Orleans to Require Proof of Vaccination or Negative COVID-19 Test to Enter Indoor Facilities

On August 12, 2021, New Orleans Mayor LaToya Cantrell and the City of New Orleans Health Department announced updated Guidelines for COVID-19 Reopening, which require individuals to provide proof of “having received at least one dose of a COVID-19 vaccine” or “evidence of a negative COVID-19 PCR test taken no more than 72 hours before entry” in order to access certain indoor establishments.

Louisiana State Court Denies Injunction to Restore $300-Per-Week Unemployment Benefit

On August 1, 2021, Louisiana stopped paying the $300 weekly supplemental unemployment benefit payment provided by federal law. Prior to the elimination of the benefit, six Louisiana residents sued the Louisiana Workforce Commission and Governor John Bel Edwards to compel the restoration of the $300 weekly benefit payment.

Louisiana Enacts Law Impacting Employer Consideration of Applicant Criminal Histories

On June 9, 2021, the Louisiana State Legislature passed House Bill (HB) No. 707, a measure that prohibits discrimination in employment based on criminal history records and that provides criteria for employers making hiring decisions in conjunction with criminal history records. This development will likely be good news for formerly arrested or incarcerated applicants reentering the workplace.

Louisiana Eliminates $300-Per-Week Federal Unemployment Compensation Supplemental Benefit

Louisiana has become the first state with a Democratic governor to pass a law eliminating the $300-per-week supplemental unemployment benefit created by the federal American Rescue Plan Act of 2021 (ARPA). Under the new measure, Act No. 276, which Governor John Bel Edwards signed into law on June 15, 2021, Louisiana eliminated the $300 benefit, effective August 1, 2021, while increasing the weekly maximum benefit amount.

Louisiana Amends Pregnancy and Childbirth Nondiscrimination Law to Include Express Reasonable Accommodation Requirements

Louisiana’s nondiscrimination law protecting “pregnancy, childbirth and related medical conditions” in employment (La. R.S. 23:341–42) was recently amended primarily by including an express reasonable accommodation requirement and adding a definition section providing reasonable accommodation examples, La. R.S. 23:341.1. The pregnancy nondiscrimination statutes are part of the larger body of laws making up the Louisiana Employment Discrimination Law at La. R.S. 23:301, et seq.

Louisiana Court Rules Jones Act Claim for Mental Injury Can Proceed in Light of Noose in Maritime Workplace

Recently, the Louisiana Court of Appeal, First Circuit, in Thompson v. Cenac Towing Co., L.L.C., analyzed a trial court’s grant of summary judgment in a company’s favor after a noose-like rope was found hanging in a maritime workplace and held that the trial court had improperly weighed the credibility of the plaintiff’s testimony, resulting in the reversal and remand of the case.

Incomplete Payroll Records Lead to Employer FLSA Liability, Fifth Circuit Rules

Employers recognize that the Fair Labor Standards Act (FLSA) requires that they pay nonexempt employees overtime wages for all hours worked in excess of 40 hours in a workweek. Additionally, the FLSA imposes recordkeeping requirements on employers regarding the hours worked by their nonexempt employees. A recent Fifth Circuit Court of Appeals decision, U.S. Department of Labor v. Five Star Automatic Fire Protection, LLC, illustrates the danger to employers when they fail to keep complete timekeeping records of their nonexempt employees’ work.

CROWN Act Ordinance: New Orleans Enacts Law to Prohibit Hairstyle Discrimination

On December 22, 2020, New Orleans Mayor LaToya Cantrell signed into law the CROWN Act (Calendar No. 33,184). The new law prohibits employment discrimination in the City of New Orleans based on hairstyles. The law is modeled after federal legislation introduced in January 2020—the Creating a Respectful and Open World for Natural Hair Act (CROWN Act)—designed to correct racial and cultural inequities by making hair discrimination illegal in the United States.

Louisiana Appellate Court Extends Whistleblower Protections to Compliance Officers

The Louisiana First Circuit Court of Appeal recently held in Derbonne v. State Police Commission, No. 2019 CA 1455 (October 14, 2020), that an employee whose duties require that he or she report violations of state law is not precluded from pursuing a claim for unlawful reprisal under Louisiana’s anti-reprisal or whistleblower statute, La. R.S. 23:967.