Louisiana Legislative Developments
It seems they can’t help themselves. Every year the Louisiana Legislature finds it necessary to tinker with existing employment laws. By far, the vast majority of these revisions and additions inure to the benefit of employees and to the detriment of the employer. This year is no different.
Never mind the fact that there already exists in federal law the Equal Pay Act, which guarantees women the same rights as men in the workplace, in 2013 the Louisiana Legislature passed the “Louisiana Equal Pay for Women Act.” Originally, this legislation was intended to cover all women in the workplace, both public and private. As a result of last minute jockeying in the 2013 regular legislative session, the bill was amended to make it applicable only to public employees. This year, in 2014, women’s advocacy groups saw to it that the “Louisiana Equal Pay for Women Act” now applies to both public and private employers. La. R.S.§23:332A(3), which went into effect on August 1, 2014, states:
“A. It shall be unlawful discrimination in employment for an employer to engage in any of the following practices:
(3) Intentionally pay wages to an employee at a rate less than that of another employee of the opposite sex for equal work on jobs in which their performance requires equal skill, effort, and responsibility, and which are performed under similar working conditions. An employer paying wages in violation of this Section may not reduce the wages of any other employee in order to comply with this Section.”
Retaliation Legislation Approved
Prior to the enactment of La. R.S.§51:2256 by the 2014 Legislature, several Louisiana courts had concluded that the Louisiana Employment Discrimination Law (LEDL), La. R.S.§23:301, et seq. only prohibited retaliation against employees and applicants for employment regarding age discrimination or sickle cell trait discrimination. That is because those prohibitions against retaliation were found only in the anti-discrimination statutes pertaining to age and sickle cell trait discrimination. La. R.S.§§23:312, 23:352. The courts concluded that, since there was not similar anti-retaliation language in those statutes dealing with race, color, religion, sex, national origin, pregnancy, childbirth, and related medical conditions, a retaliation claim was not an option. This year, our lawmakers “fixed” that mistake. La. R.S.§51:2256 now makes it unlawful for an employer to conspire to retaliate or discriminate in any manner against a person because he or she has opposed a practice declared unlawful by the Louisiana Employment Discrimination Law or because that individual filed a charge, a complaint, testified, assisted or participated in any manner in any investigation, proceeding or hearing under the LDEL.
What’s your password?
Many employers have discovered social media as a tool for investigating the background and lifestyle of its applicants and employees. The information from those social media sites can be quite educational from an employer’s standpoint. However, cruising the non-public areas of those sites without permission can land employers in hot water. Now, under Louisiana’s Personal Online Account Privacy Protection Act, employers are explicitly prohibited from requiring or even requesting employees or applicants to disclose his user name, their password or any other authentication information that allows access to that individual’s personal online accounts. La. R.S.§51:1953(A)(1). The legislation also prohibits employers from discharging, disciplining, failing to hire, or otherwise penalizing or threatening to penalize any employee or applicant for his failure to provide such access. La. R.S.§51:1953(A)(2).
This new statute does, however, allow an employer to request or require an employee to provide certain specific types of information from a personal online account relevant to an investigation by the employer. However, the employer may not require the employee to provide access to an account for purposes of conducting the investigation. La. R.S.§51:1953(B)(3)-(4). The law does allow an employer to request or demand employers to disclose user names, passwords, or other authenticating information (1) to gain access to or operate electronic communication devices paid for or supplied by the company, or (2) to gain access to or operate any account or service provided by the employer, used for the employer’s business purposes, or to which individuals have access by virtue of their relationship with the employer. La. R.S.§51:1953(B)(1)(a)(b). This recent legislation, while certainly restricting an employer’s ability to request or demand what would otherwise be considered private information, does not prohibit the employer from viewing, accessing or utilizing information about an employee or applicant that could be obtained without a user name or password, or that is publicly available. La. R.S.§51:1953(E).
Criminal Background Checks
Most people are aware that the EEOC has stated in its “best practices” that employers should avoid performing criminal background checks. Since several resounding defeats in the federal court system attempting to defend their attacks on employers who do perform criminal background checks, the Commission now says that background checks are fine, provided they are means tested in some way to the position being offered. This writer is of the firm opinion that failure to conduct criminal background checks, at least in the construction-related world, is fool hearty. However, employers should correlate the results of the information discovered to the position being offered. In other words, someone who was convicted of petty theft having stolen an apple from a grocery store 20 years ago but has been clean ever since, probably shouldn’t be rejected today for a welder’s position. (The subject of criminal background checks and what to do with them however is probably the subject of a separate article.)
For the purposes here, it should be noted that the Louisiana Legislature this year has amended La. R.S.§23:291 pertaining to disclosure of employment related information. Sub-section E(1) provides something similar to immunity to contractors from claims of negligent hiring or negligent retention simply because that employer has hired an individual previously convicted of a non-violent criminal offense or a criminal offense not related to the alleged wrongful act for which the negligence hire action might be brought. Sub-section E(2), on the other hand, speaks plainly that the provisions of E(1) do not apply when the previous conviction was a crime of violence or sexual offense of which the employer knew or should have known. E(2)(a) also makes clear that when the actions of the employee giving rise to damages or injury are substantially related to the nature of the crime for which the employee was earlier convicted, there is no immunity for the employer if he knew or should have known of that conviction. The long and short of the revisions to La. R.S.§23:291 is that employers shouldn’t have to worry about hiring people who, somewhere in their past, may have committed a non-violent crime unrelated to the type of work for which they are hired. On the other hand, if an employer hires an applicant with a criminal background that includes violence or crimes substantially related to the job for which he was hired, the employer does so at his own risk.
One for the Employer
The Legislature also amended Louisiana’s Prompt Pay Statute, to memorialize the good faith defense for non-payment. La. R.S.§23:631 requires payment of wages within 15 days or on the next regular pay day (whichever occurs first) after an individual separates his employment voluntarily or involuntarily. La. R.S.§23:632 now provides a good faith defense exception for failure to comply with §23:631. That exception provides in pertinent part:
“When the court finds that an employer’s dispute over the amount of wages due was in good faith, but the employer is subsequently found by the court to owe the amount in dispute, the employer shall be liable only for the amount of wages in dispute plus judicial interest incurred from the date that the suit is filed.”
Good faith will still have to be determined by the finder of fact. If the wages allegedly due are in doubt as opposed to clearly not owed, an employer may be wise to tender the disputed amount to avoid the risk of 90 days penalty wages and attorney’s fees, which is the maximum penalty for violation of the statute. While it is not much, at least this change in employment law does something other than grant additional rights to employees.