In 20/20 Communications, Inc. v. Crawford, the U.S. Court of Appeals for the Fifth Circuit recently ruled that the question of whether a dispute can be arbitrated on a class-wide basis is a threshold issue that is presumptively for a court, not an arbitrator, to decide. This is the latest in a series of decisions by the Supreme Court of the United States and courts of appeals in favor of arbitration agreements that waive class procedures.
On August 6, 2019, in State of Texas v. Equal Employment Opportunity Commission, the U.S. Court of Appeals for the Fifth Circuit ruled that the Equal Employment Opportunity Commission (EEOC) overstepped its limited rulemaking and enforcement power when it issued its 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.
When Jay Baker, the vice president of Causin, L.L.C., quit to create a competing business, Causin sued to enforce Baker’s nonsolicitation/noncompetition agreement. Baker defended the claim in part by arguing the agreement’s use of a flexible addendum to list numerous parishes/counties did not satisfy the requirements of Louisiana’s noncompetition statute (La. R.S. 23:921), the inclusion of Causin’s “subsidiaries” and “affiliates” rendered the agreement overbroad, and the severability clause was ineffective.
In 2019, a number of states’ minimum wage rates will increase.
The Fifth Circuit Court of Appeals recently held that a New Orleans charter school was not a “political subdivision” exempt from the National Labor Relations Act (NLRA).
Plaintiffs have attempted a number of creative avenues to avoid the procedural and substantive limitations set forth under the Louisiana Employment Discrimination Law (LEDL), which provides a statutory scheme to address employment discrimination.
Courts have ruled that employees who work with clients with diminished capacity present different challenges when establishing whether the nonemployee’s alleged harassment affected the terms and conditions of the employee’s employment. But where is the line on what can constitute actionable harassment when the alleged harasser is a nonemployee with diminished capacity?
Less than a year after the #MeToo movement began in earnest, it continues to impact boardrooms and statehouses. In May of 2018, Louisiana became the latest state to take action in support of the #MeToo movement, with its lawmakers unanimously approving a statewide anti-sexual harassment policy—though they limited the law to state agencies and their employees for the time being.
The Louisiana First Circuit Court of Appeal recently ruled that the statute of limitations under Louisiana’s anti-discrimination law is only tolled during the pendency of an administrative or investigative review, not to exceed 18 months.
The Louisiana Court of Appeal, Fourth Circuit recently held that a pregnant employee who suffered from a pregnancy-related illness was not disabled within the scope and meaning of the Louisiana Employment Discrimination Law (LEDL).
On March 23, 2018, in a 4–3 decision, the Louisiana Supreme Court refused to consider Louisiana Governor John Bel Edwards’s appeal of the Louisiana First Circuit Court of Appeal’s November 1, 2017, decision holding that Governor Edwards lacked the constitutional authority to issue an executive order protecting lesbian, gay, bisexual, and transgender (LGBT) state employees from discrimination.
The Fifth Circuit Court of Appeals affirmed the U.S. District Court for the Western District of Louisiana’s grant of summary judgment under the Louisiana whistleblower law, Louisiana Revised Statutes section 23:967, in favor of an employer that transferred an employee to a less desirable location after revealing concerns about her employer’s handling of a diabetic student.
The Louisiana Fifth Circuit Court of Appeal has held that painters may be treated as independent contractors if they bring some of their own tools, control their own schedules, and make decisions on how to complete the work for which they have been hired.
On December 1, 2017, Louisiana Governor John Bel Edwards (D) appealed a state appellate court decision holding that Executive Order JBE 2016 – 11, which seeks to protect the rights of lesbian, bisexual, gay, transgender individuals, and other protected classes from discrimination by Louisiana agencies, departments and contractors was unconstitutional.
Workplace harassment is one of the many problems that Louisiana employers may encounter. The national media has recently published several stories concerning high-profile cases of sexual predation and harassment. In addition, stories have surfaced in Southeast Louisiana of allegedly rampant sexual harassment at a New Orleans-based restaurant group.
In April of 2016, Louisiana Governor John Bel Edwards signed Executive Order JBE 2016 – 11, which sought to protect lesbian, bisexual, gay, and transgender individuals, among other protected classes, from discrimination practiced by state contractors. Months later, Louisiana Attorney General Jeff Landry and others challenged the order in a lawsuit filed in East Baton Rouge Parish that sought a permanent injunction, as well as a declaratory judgment that the executive order violated state law.
The Fifth Circuit Court of Appeals recently affirmed the dismissal of a Title VII retaliation claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim where the plaintiff premised her retaliation claim on her earlier filing of an internal complaint of harassment based on a single allegedly offensive text message.
Answering a question certified by the United States Court of Appeals for the Fifth Circuit, the Louisiana Supreme Court has ruled that the term “good faith,” as used in the whistleblower section of the Louisiana Environmental Quality Act (LEQA), refers to “an employee … acting with an honest belief that a violation of an environmental law, rule, or regulation occurred.” The case is particularly instructive because the phrase “good faith” is used in Louisiana’s general anti-reprisal statute.
A recent Louisiana Court of Appeal decision held that an oil and gas landman did not have a claim under the Louisiana environmental whistleblower statute, which protects employees from retaliation for reporting environmental law violations, since he was properly classified as an independent contractor by the defendant.
A Louisiana appellate court has ruled an employee may sue her employer for negligence for injuries sustained on the job when the injuries resulted from a dispute that began outside of work. The case is particularly instructive for disputes that originate outside of work where one or both of the participants is a Louisiana employee.
On March 15, 2017, in Moss v. Harris County Constable Precinct One, the Fifth Circuit Court of Appeals reaffirmed that an employer is not required to accommodate an employee who is requesting indefinite leave as a reasonable accommodation. Robert Moss, who was a deputy with Harris County Constable Precinct One for 16 years, claimed he had been wrongfully discharged in 2013 while on leave following back surgery. Moss claimed his discharge was a result of both his disability and his political speech against then-candidate for constable Alan Rosen.
The U.S. Court of Appeals for the Fifth Circuit, which covers Texas, Louisiana, and Mississippi, recently found that punitive and compensatory damages are not available for retaliation claims brought under the federal Age Discrimination in Employment Act of 1967 (ADEA). The ADEA already provides for liquidated damages equal to the amount of lost pay and benefits for “willful” age discrimination. The standard for finding a willful violation to award liquidated damages is quite low, resulting in the routine award of what is, in effect, double damages in ADEA cases.
On January 25, 2017, New Orleans Mayor Mitch Landrieu signed Executive Order MJL17-01, which prohibits questions about salary history during the application process for persons seeking employment with the City of New Orleans. The order further requires the Civil Service Commission to conduct a pay disparity study among city employees and submit the study to the mayor and chief administrative officer.
In Pineda v. JTCH Apartments, L.L.C. (No. 15-10932, December 19, 2016), the Fifth Circuit Court of Appeals joined the Sixth and Seventh Circuit Courts of Appeals in holding that an employee may recover for emotional distress damages in a retaliation claim asserted under the Fair Labor Standards Act (FLSA).
Effective January 1, 2017, 29 states plus the District of Columbia will have minimum wage rates that are above the federal minimum wage rate of $7.25 per hour. The District of Columbia will continue to have, as it did last year, one of the highest minimum wage rates in the country at $11.50 per hour until July 1, 2017, and $12.50 per hour after that date. With respect to state minimum wages, Massachusetts and Washington will have the highest minimum wages at $11.00 per hour effective January 1, 2017, with California close behind at $10.50 per hour (for employers with 26 or more employees), effective January 1, 2017, and Connecticut following at $10.10 per hour, effective January 1, 2017.
In June, we reported that in April 2016, Louisiana Governor John Bel Edwards (D) signed Executive Order JBE 2016 – 11, which sought to protect lesbian, bisexual, gay, and transgender individuals, among other protected classes, from discrimination practiced by state contractors.