A Budding Challenge for Employers? Louisiana Expands Access to Medical Marijuana

In 2015, Louisiana passed a law authorizing the prescription of marijuana for the treatment of certain qualifying medical conditions, such as glaucoma, cancer, and spastic quadriplegia. In 2018, the statutory list of conditions was amended to include post-traumatic stress disorder, autism, and chronic pain. In the same amendment, the legislature designated the Louisiana Department of Agriculture and Forestry to oversee the production of medical marijuana. Since then, employers with operations and employees in Louisiana have been preparing for the new reality of managing marijuana in the workplace. These preparations are set to become even more challenging for Louisiana’s employers in light of new workplace realities and changes to the state’s medical marijuana law set to take effect in August 2020.

Offshore Oil Rig Workers’ Overtime Claims Governed by FLSA, Not California Law

On June 10, 2019, the Supreme Court of the United States unanimously ruled that state wage and hour laws do not apply to offshore drilling workers where federal law addresses the relevant issue. In Parker Drilling Management Services v. Newton, No. 18-389, the Supreme Court answered the question of whether California’s laws governing the minimum wage and payment for “standby time” applied to workers on oil rigs in federal waters off the coast of California.

Fifth Circuit Holds Directional Drillers Are Independent Contractors

The U.S. Court of Appeals for the Fifth Circuit recently held that a group of directional driller consultants were independent contractors, not employees, in large part due to their highly specialized skills, degree of control over their own projects, and ability to control their profits and analyzed losses.

Louisiana Court Finds Nonsolicitation/Noncompetition Agreement Is Enforceable

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.

Louisiana #MeToo Law Requires Sexual Harassment Policies, Training, and Reporting for State Agencies

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. 

Louisiana Supreme Court Rejects Governor’s Appeal of LGBT Executive Order Ruling

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.

Fifth Circuit Emphasizes Narrowed Liability for Employee Transfer Under the Louisiana Whistleblower Statute

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.

Louisiana Governor Appeals LGBT Executive Order Ruling to State Supreme Court

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.

Louisiana Court Finds Executive Order Extending Protections to LGBT Employees of State Contractors Unconstitutional

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.

Louisiana Supreme Court Defines “Good Faith” for LEQA Whistleblower Actions

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.

Louisiana Court Holds Employer Responsible for Failing to Protect Employee From Off-Duty Threat of Violence by Coworker

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.

New Orleans Mayor Signs Executive Order Prohibiting Wage History Inquiries

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.

The Eighth Circuit & the ADA, Part II: Must a Request for Accommodation be Explicit?

In contrast to Parker v. Crete Carrier Corporation, et al, in Kowitz v. Trinity Health, et al, No. 15-1584 (October 17, 2016), a split panel of the Eighth Circuit Court of Appeals reversed summary judgment for an employer on an Americans with Disabilities Act (ADA) claim, finding a factual dispute about whether the employer knew the employee needed an accommodation despite the absence of a formal request for accommodation.

The Eighth Circuit & the ADA, Part I: Court Tips the Scale in Employer’s Favor in Suit Challenging Sleep Test for Overweight Workers

In Parker v. Crete Carrier Corporation, et al, No. 16-1371 (October 12, 2016), the Eighth Circuit Court of Appeals held that a trucking company complied with the Americans with Disabilities Act (ADA) in requiring its drivers with body mass indexes (BMI) of 35 or above to undergo in-lab sleep studies to determine if they had sleep apnea, which could cause them to fall asleep at the wheel.

Fifth Circuit Enforces Delegation Clause, Directs Arbitrator to Determine Whether FLSA Case Should Be Arbitrated

In a recent ruling, the Fifth Circuit Court of Appeals reversed a district court’s refusal to enforce an arbitration agreement’s “delegation clause” requiring the determination of arbitrability to be decided by an arbitrator. Whether the arbitration agreement applied to an employee’s pre-existing Fair Labor Standards Act (FLSA) claim was a legitimate question, the court found but one that should be answered by an arbitrator and not a judge.

New Orleans Adopts Legislation Prohibiting City Contractors From Conducting Employment-Related Credit Checks

The New Orleans City Council recently approved legislation making it unlawful for city contractors to seek or use the consumer credit history of a current or prospective employee for any decision regarding the hiring or compensation of an employee or the terms, conditions, or privileges of his or her employment. The ordinance, entitled the “Equal Access to Employment Act,” was adopted by the New Orleans City Council on June 23, 2016, and Mayor Mitch Landrieu approved it on July 1, 2016.

New Louisiana Laws Will Impact Employers

In recent months, the Louisiana Legislature has passed several bills that have been signed into law, which will affect Louisiana employers. These new laws are effective August 1. In addition, the governor signed an executive order, effective July 1, 2016, extending new protections to lesbian, gay, bisexual, and transgender employees who work for contractors that perform work for the State of Louisiana.

LGBT Antidiscrimination Provisions to Apply to Louisiana Contractors on July 1

Government contractors in Louisiana should take note of the upcoming effective date of the state’s recently-signed antidiscrimination law. In April of 2016, Louisiana Governor John Bel Edwards (D) signed Executive Order JBE 2016 – 11, which protects lesbian, gay, bisexual, and transgender individuals, among individuals in other protected classes, from discrimination.

First Circuit Approves Use of FWW Method for Pay That Varies Due to Performance-Based Commissions

The First Circuit Court of Appeals recently affirmed a lower court’s decision that an employer may use the fluctuating workweek method to calculate overtime pay rates even when an employee’s weekly pay varies because of performance-based commissions. Lalli v. General Nutrition Centers, Inc., No. 15-1199 (February 12, 2016).