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.

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.

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.

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 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.

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.

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.