United States: 2016 Louisiana Employment Law Updates

In 2016, the Louisiana Legislature enacted numerous employment-related laws. Louisiana employers should take note of these new laws to ensure that their policies and procedures are in compliance. Below is a summary of the most significant new laws affecting the workplace.

Discrimination, Harassment, and Retaliation Protections

Preference for Veterans

ACT 190 authorizes a private employer to adopt an employment policy giving preference in hiring to: 1) an honorably discharged veteran; 2) the spouse of a veteran with a service-connected disability; 3) the unremarried widow or widower of a veteran who died of a service-connected disability; and 4) the unremarried widow or widower of a member of the U.S. Armed Forces who died in the line of duty under combat-related conditions. The new law further requires that if a company voluntarily elects to participate in the established veterans' preference policy, then the employer is to apply the policy uniformly to employment decisions regarding hiring. The law went into effect August 1, 2016. It adds La. R.S. 23:1001.

Considering Criminal Histories in Job Applicants

ACT 398 prohibits a state employer from inquiring about a prospective unclassified employee's criminal history until after the prospective employee has been given an opportunity to interview for the position or, if no such interview is to be conducted, until after the prospective employee has been given a conditional offer of employment. The new law does not prohibit the prospective employer from considering the following factors when making a final employment decision: 1) the nature and gravity of the criminal conduct; 2) the time that has passed since the occurrence of the criminal conduct; and 3) the duties and functions of the position and the bearing the criminal conduct will have on the performance of those duties or functions. This law went into effect on August 1, 2016. It adds La. R.S. 42:1701.

Certificate of Employability to Offenders in Reentry Program

ACT 538 requires a judge presiding over an offender reentry division of court to issue a temporary certificate of employability to an offender in the reentry program and a permanent certificate of employability upon completion of his or her sentence. The temporary certificate, however, will be null and void if the offender fails to complete the sentence. Any certificate of employability is void if the offender is convicted of any felony offense subsequent to issuance of the certificate. ACT 538 also provides that an employer, general contractor, premises owner, or other third party shall not be subject to a cause of action for negligent hiring of or failing to adequately supervise an offender certified to be employed solely because that employee or independent contractor had been previously convicted of a criminal offense. The Act went into effect on August 1, 2016, and is codified at La. R.S. 23:291.1. This new law does not supersede provisions of La. R.S. 17:15 which prohibits persons convicted of certain crimes from working in certain education positions without district judge and district attorney approval.

State Department of Education Required to Collect Criminal History Information for Job Applicants to Early Learning Centers

Act 646 amends how an Early Learning Center's ("ELC") owner or operator learns of a job applicant's criminal history. The prior law authorized an ELC's owner or operator to request such information. Current law prohibits any person convicted of or pleading nolo contendere to certain crimes, including sex crimes and crimes against children, from owning, operating, participating in the governance of, or working in an ELC. The new law, however, requires the Louisiana Department of Education ("LDOE") to request such information and authorizes the LDOE to collect the processing fees charged for state and federal criminal history reports when it receives a request for an employment eligibility determination. This law becomes effective when the Louisiana Board of Elementary and Secondary Education ("BESE") promulgates rules providing for implementation procedures by which LDOE shall conduct employment eligibility determinations or on September 30, 2017, whichever is earlier. The BESE previously established procedures and requirements relative to an employer's collecting of this information. This law amends La. R.S. 17:407.42(B)(1)(a).

Increasing Background Checks on Healthcare Service Applicants

ACT 311 adds additional categories of healthcare service providers to the list of employers required to perform a background check on prospective employees. ACT 311 also requires entities (including any entity owning five percent or greater in same) that have applied to enroll as a Medicaid provider to contract for staffing services from only businesses who perform criminal history background and security checks on their employees. These checks can be performed by using fingerprints of each applicant. These checks must be conducted on non-licensed applicants and licensed ambulance personnel. This law went into effect on June 2, 2016. It amends parts of R.S. 40:1203.1 and 40:1203.2. It also adds to 40:1203.1.

Dept. of Insurance Now Exempt From Prohibition on Barring Persons Seeking License to Practice Trade, Occupation, or Profession Due to Criminal Record

ACT 448 exempts the Department of Insurance from existing law that generally provides that a person cannot be disqualified or considered ineligible from the practice of a trade, occupation, or licensed profession due to a criminal record, unless the person has a conviction that is directly related to the position of employment or license sought. Until this exemption, the Department of Insurance would have to explicitly state the reasons for barring a person from engaging in a trade, occupation, or licensed profession due to a criminal conviction. It adds La. R.S. 37:2950(D)(1)(a)(xviii). It went into effect on June 9, 2016.

State Programs

Apprenticeship Agreements

ACT 597 retains existing law regarding limitations on provisions in apprenticeship agreements but adds a third limitation that prohibits any apprenticeship law or agreement from invalidating any separate provision of Louisiana law that affects veterans, minorities, or women. The existing law requires various information that must go into an apprenticeship agreement such as a statement indicating whether the apprentice will be compensated, how long the apprenticeship will last, and the goal the apprentice will attain in the occupation. ACT 597 adds a third limitation. The previous two limitations prohibit apprenticeship agreement provisions from invalidating apprenticeship provisions in collective bargaining agreements that establish higher standards than required under Louisiana law and also prohibit apprenticeship agreement provisions that are contrary to anti-discrimination laws. ACT 597 went into effect June 17, 2016. It amends La. R.S. 23:391.

A Firefighter is Ineligible for Disability Retirement if Firefighter-Related Employment Worsened a Pre-existing Condition

ACT 209 provides that a member of the Firefighters' Retirement System ("FRS") is not eligible for a disability benefit if the disability is indirectly a result of a pre-existing condition, for example, if fire department-related employment made such condition worse. The FRS board of trustees cannot consider the fact that a member was found to be fit for fire department employment in determining whether an alleged disability is the result of a pre-existing condition. The new law further provides that a member must appeal a decision of ineligibility within thirty days of notice of the decision. This new law clarifies the extent to which a pre-existing condition can disqualify a member from disability retirement. The law amends R.S. 11:2258(A) and (B) and adds La. R.S. 11:2258.1. The law went into effect May 26, 2016.

Judicial Review of Disability Determinations for Firefighters Now Permitted

ACT 78 affects the appellate rights of members of the Firefighters' Retirement System ("FRS") who wish to appeal a decision as to a disability benefits application. The current law provides for determination of eligibility for disability benefits by a physician. If either the applicant or the retirement system's board of trustees contest the physician's decision, the contesting party may request a second medical examination by filing a written appeal within thirty days after notification of the decision. If the two physicians differ in their decision, they shall select a third specialist. The majority opinion of the three physicians shall be final and binding and not subject to further appeal. The new law, however, changes this, allowing for an FRS member to challenge a majority opinion by filing a petition within a district court within thirty days receipt of written notice of the decision. The law adds La. R.S. 11:2258.1. It went into effect May 11, 2016.

Immediate Removal of POST Certification

ACT 273 provides for the immediate removal of Peace Officer Standards and Training ("POST") certification of any full-time, part-time, or reserve peace officer upon a conviction of malfeasance in office. Malfeasance in office is defined as: 1) intentionally refusing or failing to perform any duty lawfully required; 2) intentionally performing any such duty in an unlawful manner; or 3) knowingly permitting any other public officer or public employee, under his authority, to intentionally refuse or fail to perform any duty lawfully required of him. This act adds La. R.S. 40:2405(J) and La. R.S. 14:134(C)(3). The law went into effect August 1, 2016.

Wage & Hour

Employer's Obligation to Report Lump-Sum Payments to Dept. of Children and Family Services

ACT 102 requires employers to notify the Department of Children and Family Services of pending lump-sum payments to employees who owe support if that lump-sum payment is $300 or more. Employers now need to notify the department at least fifteen days in advance of issuing the lump-sum payment. Existing law required employers to withhold the amount of child support owed from an employee's regularly paid income. When offering a lump-sum payment greater than $300, however, the employer will need to notify DCFS in advance of such lump-sum payment. The employer will be able to pay out the lump-sum payment if the fifteen days pass and there is no notice from DCFS as to amounts to be withheld from lump-sum payment. The current penalty is $50 per day. It adds La. R.S. 46:236.3(E)(6). The law went into effect August 1, 2016.

Miscellaneous

Cosmetology Profession

ACT 271 changes the law regarding cosmetology salons to require that a cosmetology salon owner who is not a licensed cosmetologist must employ one or more registered managers who shall be a licensed cosmetologist and further requires the registered manager to be present at the salon during all hours of operation and shall be responsible for ensuring that all persons practicing cosmetology within the facility are appropriately licensed and follow all applicable laws and rules and regulations. Previously, the law only required that the cosmetology salon owner employ a manager, who is a licensed cosmetologist, and that the manager not be absent from the salon for more than two days per week. This law went into effect August 1, 2016. It amends portions of La. R.S. 37:563 and repeals La. R.S. 37:588.

New Recordkeeping Requirements on Small Municipalities

ACT 669 makes recordkeeping obligations in municipal fire and police civil service systems applicable to "small municipalities." Existing law distinguishes between "large municipalities" (municipal population not fewer than 13,000) and "small municipalities" (fewer than 13,000 but not fewer than 7,000 persons). These requirements, now imposed on "small municipalities," require officers and employers to furnish any records or information which the board or state examiner requests regarding employment lists containing the names of persons eligible for appointment to various classes of positions in the classified service. This law is effective June 17, 2016. This law amends La. R.S. 33:2503 and La. R.S. 33:2563.

Pending Legislation

The following are bills that, while filed and referred to committee, are not yet final. In Louisiana, either the House or Senate must first introduce a bill. If passed, the bill goes through the other chamber. If passed in the second chamber, but with amendments, the bill goes back to its originating chamber for resolution. If the originating chamber agrees with the resolution, the bill goes to the governor. If the originating chamber disagrees with the amendments, then the bill is sent to Conference Committee for resolution. A Conference Committee is a committee comprised of three members from each house. If the Conference Committee resolves the disagreement, the bill goes to the governor. The governor can either sign the bill, making it an Act and thus law, or veto the bill. If the governor does not do anything after a certain period of time, the bill becomes an Act. If the governor vetoes but is overridden by two-thirds of the House and Senate, the bill becomes an Act.

Discrimination Against Domestic Violence Victims

HB 545 would prohibit an employer from discharging, threatening to discharge, demoting, suspending, retaliating against, or otherwise discriminating against an employee who is a victim of domestic abuse, dating, violence, or family violence for taking leave due to issues relating to the abuse. It would also require that, in order to be excused from work, an employee supply a certification from the facility lending aid during the time of absence. An employer would not be responsible for any alleged adverse action if the employer did not know that the employee was a victim of such violence. This bill would amend La. R.S. 23:302 and add La. R.S. 23:335. This bill is pending in the House Committee on Labor and Industrial Relations.

Louisiana Equal Pay for Women Act Expanded

HB 397 would extend pay equality to all persons employed in the state of Louisiana, not just to state employees. Present law requires equal pay to public employees. Proposed law expands the definition of "employer" from an organizational unit of state government to all employers within Louisiana that employ 20 or more persons. The new law would also allow a plaintiff to bring a suit in a court of competent jurisdiction and not just within the 19th Judicial District Court for East Baton Rouge Parish which contains the state capitol, Baton Rouge. The new law also changes the definition of "employee" from "any female individual who is employed to work forty or more hours a week and who is employed by the employer" to any person, regardless of gender, in the state who performs a job for compensation. This bill would amend La. R.S. 23:661-669. It is currently pending in the House Committee on Labor and Industrial Relations.

Municipality Size Exemption for Prohibition on Setting Local Minimum Wage

HB 425 would provide an exception to prohibition of local municipalities enacting laws relative to minimum wage where the municipality has a population over 320,000. The present law prohibits any parish or municipality from establishing its own minimum wage. This bill would amend La. R.S. 23:642(B). This bill is currently pending in the House Committee on Labor and Industrial Relations. N.B. Based on census data, this exemption would only seem to apply to New Orleans.

Charter School Exception to Rule that Teachers Have Baccalaureate Degree

HB 871 would except certain charter schools from the requirement that they employ instructional staff who have at least a baccalaureate degree. Present law requires charter schools to employ instructional staff who have at least a baccalaureate degree. Proposed law excepts a charter school from this requirement if it offers a teacher credentialing program in conjunction with a post-secondary education institution. This bill would amend and reenact La. R.S. 17:3991(C)(6).

Sick Leave Benefits

SB 212 proposes that an employer who employs five or more full-time employees is required to provide paid sick leave benefits for all full-time employees. An employee would earn sick leave benefits of one hour of sick leave for every forty hours worked up to a maximum number of fifty-two hours of sick leave per year. Sick leave benefits could be used for various events, not just treatment or care for the employee's illness but also for the employee's child's school closure due to a public health emergency, injuries sustained by the employee as a result of domestic violence, sexual assault, or stalking, and an employee's attendance at the employee's child's school related to the child's disability or health-related matter. "Family members" would include grandchildren, grandparents, and siblings. Violators would be subject to a civil fine payable to the Louisiana Workforce Commission in an amount between $20 and $200. Each day a violation continues would constitute a separate offense. If passed, SB 212 would add La. R.S. 23:643. It is pending in the Senate Committee on Labor and Industrial Relations.

Creation of the Louisiana Family Medical Leave Benefits Act

SB 298 creates the Louisiana Family and Medical Leave Benefits Act. Although similar, in some respects, to the federal Family and Medical Leave Act of 1993, the La. FMLA provides for up to twelve weeks of state-organized insurance benefits payable to a "covered individual" who meets criteria similar to that required for leave under the federal FMLA. The purpose of the La. FMLA leave is to provide employment benefits related to other hardships an employee may encounter that are not covered by unemployment insurance or workers' compensation. The proposed law provides that benefits are only payable to an individual who has been employed and has had payroll taxes paid on their behalf into the La. FMLA Account Fund for at least one year. The weekly La. FMLA benefit will be calculated and paid in the same manner as unemployment compensation. Payroll taxes for La. FMLA insurance benefits shall be paid 50% by the employer and 50% by the employee. La. FMLA wage-replacement benefit time may run concurrently with leave taken under the FMLA where the reason for La. FMLA benefits also qualify for leave taken under the federal FMLA. An employer who violates a provision of the La. FMLA will be subject to a civil fine of not less than $20 nor more than $200 per day. If this new law takes effect, the Louisiana Workforce Commission shall promulgate rules and forms by January 1, 2018, the same date that the state, through the La. FMLA Account Fund, will begin collecting payroll taxes to fund the La. FMLA. Qualified individuals will be able to apply for wage-replacement benefits on or after January 1, 2019. The new law would amend La. R.S. 44:4.1(B)(12) and add La. R.S. 23:671-687. It is pending in the Senate Committee on Labor and Industrial Relations.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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