8.16.22- SHRM – By Michelle I. Anderson and Edward F. Harold © Fisher Phillips
With the rise in remote work, employers are subject to a new set of laws based on each employee’s residence, and those with workers in Louisiana are no exception. Our state has long held onto its civilian legal tradition that distinguishes it from the 49 other states’ common law backgrounds. While modernity has weakened some of the differences, our state remains home to some unusual employment laws.
What follows is a quick guide to the most important Louisiana laws regulating employment that either are not present or differ from analogous federal employment laws.
Wage and Hour Laws
Unlike many states, Louisiana has no equivalent to the Fair Labor Standards Act. It also has no law setting a minimum wage higher than the federal level and prohibits local governments from establishing such provisions. But it does have several laws related to wage payment.
Louisiana’s wage notification and payday law requires employers to notify employees at the time of hire what wages they will be paid, the method in which they will be paid, and the frequency of payment. It requires employers with 10 or more employees engaged in manufacturing, boring for oil, or mining operations to pay employees no less than twice each calendar month. Any employer that fails to designate paydays must pay nonexempt employees on the first and 16th days of the month.
Louisiana has several laws prohibiting employers from taking any portion of an employee’s earned wages. Any rule whereby an employee is required to pay a financial penalty for violation of a work rule is void. Employers are not allowed to charge an employee for the cost of a pre-employment drug test, medical examination, or fingerprinting. An employer can seek reimbursement for those costs, if an employee quits within 90 days of his date of hire. Louisiana prohibits any agreement whereby an employee is required to forfeit any of their earned wages.
Louisiana’s payment on termination statute requires an employer to pay an employee who resigns on the next regular pay date or in 15 days, whichever comes first. If the employer initiates the separation, then the employer must pay the final wages on the next regular pay date or within 15 days, whichever is sooner. Failure to pay on time can result in an employer receiving a penalty of 90 days of the employee’s wages payable to the employee, as well as the employee’s attorney’s fees.
The law also requires employers to pay for unused vacation days upon discharge. It is not acceptable for employers to say that employees’ accrued vacation is forfeited upon termination.
Louisiana has no statutes directly regulating employee bonuses, but the confluence of Louisiana’s wage payment and non-forfeiture provisions has resulted in significant litigation over whether bonuses are owed at the time of discharge. It behooves any employer with a bonus program to have it reviewed for potential litigation triggers. Poorly written bonus plans have resulted in employers paying significant bonus amounts to employees when the employer did not intend to do so.
Louisiana’s statute governing restrictive covenants differs significantly from the standard common law principles employed in many jurisdictions. Employees may only be restricted from competing for two years from the date of separation and only in places where the employer carries on its business. The agreement must identify by name the parishes or counties in which the business operates.
While courts can strike non-compliant provisions, they can’t reform the language of a restrictive covenant. Small deviations from the statutory requirements usually result in the covenants being unenforceable.
Courts have ruled that Louisiana’s restrictive covenants laws do not apply to agreements to not solicit employees.
Equal Employment Opportunity Laws
For the most part, Louisiana’s employment discrimination laws hew closely to the requirements of federal laws. There are a few exceptions to keep in mind.
In 2021, the Louisiana Legislature amended Louisiana’s pregnancy discrimination laws to require that employers accommodate workers’ pregnancy-related restrictions. This provision applies only to employers with 25 employees located in Louisiana, so it should not apply to a company with fewer remote workers located here. But if an employer is covered, the accommodation requirements appear broad and may require more than what would be considered a reasonable accommodation under the ADA.
In 2022, Louisiana passed its version of the CROWN Act, prohibiting discrimination on account of natural, protective, or cultural hairstyles. The act defines these styles as afros, dreadlocks, twists, locs, braids, cornrow braids, Bantu knots, curls, and hair styled to protect hair texture.
Louisiana also prohibits discrimination in employment because an individual has sickle cell trait. The state also prohibits discrimination based on status as a tobacco user or a veteran who takes off work to attend medical appointments necessary to meet the requirements to receive veterans’ benefits
Employee Leave Laws
Louisiana has no state equivalent to the Family and Medical Leave Act (FMLA), but it does have some statutes requiring employers provide paid or unpaid leave in specific situations.
Louisiana requires employers to allow employees time off to serve on jury duty. One day must be permitted without loss of wages, sick, emergency, or personal leave. If an employee’s jury service extends beyond one day, then the employee may be required to use earned paid time off.
The state requires employers with 20 or more employees to provide a paid leave of up to 40 hours for an employee to serve as a bone marrow donor. The employer has the right to require the employee provide proof from a physician.
Louisiana’s pregnancy discrimination statute requires employers with 25 or more employees in Louisiana to provide six weeks of unpaid leave to an employee for a normal pregnancy and childbirth. If an employee is disabled on account of pregnancy or childbirth, covered employers must provide up to four months of unpaid leave. This leave can run concurrently with time taken under the federal FMLA.
Louisiana has an emergency response leave requirement. Employees who serve as volunteers in activities with the Governor’s Office of Homeland Security and Emergency Preparedness and first responders (including medical personnel, emergency and medical technicians, volunteer firefighters, auxiliary law enforcement officers and members, or the Civil Air Patrol) are entitled to unpaid leave when absent or late due to responding to an emergency.
An employee who is absent from work as a result of being a first responder is still subject to the terms and conditions of the company’s leave policies and must report back to work no more than 72 hours after they have been released from first-responder duty. Employees must be reinstated to their previous position or a comparable position.
Louisiana’s legendary culture, music and food make it a wonderful place to reside. The opportunity to work remotely from Louisiana has been a boon to those of us raised and immersed in the culture. Understanding Louisiana’s unique employment laws and avoiding the pitfalls when hiring a remote worker here requires some planning, but that planning will allow employers to match their expectations to the experience.
Michelle I. Anderson and Edward F. Harold are attorneys with Fisher Phillips. © 2022. All rights reserved. Reprinted with permission.