Louisiana News & Analysis

  • Court blocks EEOC's criminal history guidance for employment decisions

    The federal appeals court in New Orleans recently affirmed an injunction against the enforcement of the Equal Employment Opportunity Commission (EEOC) guidance on an employer's use of criminal records during the hiring process.

    EEOC guidance

  • EEO-1 Component 2 pay data report: Time is running out, but the sky still isn't falling

    Now that the EEO-1 Component 2 pay data report portal has been open for a month—and with only weeks until the deadline to file your 2017 and 2018 compensation data—it's time for an update to our July article on the same topic (see "No, Henny Penny, the sky isn't falling: EEO-1 pay data portal goes live soon," on page 1 of our July newsletter).

  • Documenting deficiencies: Performance problems defeat employee's FMLA claims

    A recent employer-friendly decision from the 5th Circuit is a good reminder of the importance of documenting discipline and disruptive behavior. In this case, the employer discharged an employee the day after he was approved to take leave for high blood pressure. The employee alleged the employer unlawfully interfered with his Family and Medical Leave Act (FMLA) rights and unlawfully retaliated against him for requesting leave. Thanks to good documentation, the employer was able to defend against problematic timing between the protected activity and the adverse employment action. Let's take a look at what happened and what lesson you can learn.

  • How to take advantage of OSHA's 'employee misconduct' defense

    Many times when employers receive an Occupational Safety and Health Administration (OSHA) citation—if not most times—they claim it wasn't their fault, but rather the employee did something stupid. OSHA recognizes such a defense, called the "employee misconduct" defense. It is an affirmative defense, meaning the employer has the burden of proof in establishing the misconduct.

  • IRS authorizes more preventive services to be paid by HSA-eligible health plans

    The IRS recently issued guidance expanding the definition of "preventive care" that may be covered—possibly free of charge—by a high-deductible health plan (HDHP) that's paired with a health savings account (HSA). While the changes made by the guidance are relatively simple, they have the potential to make HSAs substantially more attractive, particularly to employees who have a chronic condition that is controlled by medication or therapy. Before diving too far into the details, however, it's important to have a solid understanding of HSAs and how they work.

  • Association retirement plans may not be ready for prime time

    The U.S. Department of Labor (DOL) recently finalized regulations allowing multiple employers to offer a retirement plan to their employees through a combined association retirement plan (ARP). In what is becoming a common theme for the agency under President Donald Trump, the new rules are intended to make it easier for small to mid-sized employers to offer such plans to their employees. While they are similar to rules finalized last year that established a new type of association health plan, they go even further by establishing guidelines for professional employer organizations (PEOs) to sponsor retirement plans for their members' employees. Unfortunately, they also may face some of the same problems as those rules, but we're getting ahead of ourselves.

  • Agency Action

    New wage and hour opinion letters issued. The U.S. Department of Labor's (DOL) Wage and Hour Division (WHD) in July announced new opinion letters related to the Fair Labor Standards Act (FLSA). FLSA2019-7 addresses the calculation of overtime pay for nondiscretionary bonuses paid on a quarterly and annual basis. FLSA2019-8 addresses the application of the highly compensated employee exemption to paralegals employed by a trade organization. FLSA2019-9 addresses permissible rounding practices for calculating an employee's hours worked. FLSA2019-10 addresses the compensability of time spent in a truck's sleeper berth while otherwise relieved from duty. The DOL offers a search function allowing users to search existing opinion letters by keyword, year, topic, and a variety of other filters. The search function can be accessed at www.dol.gov/whd/opinion/search/fullsearch.htm.

  • Workplace Trends

    Texting gaining popularity in hiring process. More employers and job candidates are using texting as a communication method, according to research from Robert Half Technology. More than two-thirds (67%) of IT decision makers surveyed said their organization uses texting as one way of coordinating interviews with job candidates. Nearly half (48%) of U.S. workers polled in a similar survey said they've received a text message from a potential employer. When asked about the greatest advantage of texting during the hiring process, quick communication was the top response among IT managers and workers. They also acknowledged the greatest drawback was the possibility of miscommunication.

  • Union Activity

    Miners' union invites presidential candidates to go underground. The international president of the United Mine Workers of America in July sent letters to all the candidates for the Democratic nomination for president inviting them to go to a union coal mine and go underground. Cecil E. Roberts said coal miners want to know that those running for president "have some understanding of what they do and why they do it." Roberts sent the letter at a time when the sector of the coal industry that produces steam coal, used as fuel for electricity generation, is under stress. Coal-fired power plants are disappearing, with 289 closing since 2010 and 50 since January 2017. A statement from the union said most Democratic presidential candidates have endorsed the Green New Deal or offered similar plans that would hasten the closure of coal-fired power plants and the mines that feed them. Roberts said the candidates "owe it to these workers to meet them face to face, tell them their plans, and then just listen."

  • Deckhand with marital problems may have been regarded as disabled

    The termination of a deckhand going through marital problems—after he had exhibited emotional behavior and requested an employee assistance program (EAP) referral—recently raised the eyebrows of the federal district court in New Orleans.