Regular UC is similar to an insurance policy; the worker has to put in enough to draw out later. A claimant must have worked long enough and earned enough within a certain recent period of time, and the earnings must be spread out in certain ways. The “base period” is the first four calendar quarters of the last five complete calendar quarters before the week of benefit application.1  The wages earned during the base period, subject to a statutory maximum, determine a claimant’s weekly benefit amount (WBA).2  The agency issues a Notice of Monetary Determination to the claimant and base-period employers; the Notice can be reconsidered if in error.

There are two state statutory requirements for base-period wage sufficiency: (1) a minimum earnings requirement;3  and (2) total base period wages of at least one and a half times the amount earned in the highest calendar quarter of the base period.4  This “high-quarter ratio” requirement is a historical leftover from earlier statutory revisions. The result is that some workers need only the statutory minimum in the base period to be eligible (if their wages are spread among quarters), but others can be found ineligible for having insufficient wages, even though they earned several times the minimum, because their wages were concentrated in a single quarter. As a result, many with sporadic employment are shut out completely from UC. Unfortunately for a large sector of the working population, the requirement that wages be spread out in the base period has been held constitutional.5

• 1La. R.S. 23:1472(4), (7).
• 2La. R.S. 23:1592.
• 3La. R.S. 23:1592(A).
• 4La. R.S. 23:1600(5).
• 5Estelle v. Eysink, 2014-0108 (La. App. 4 Cir. 08/06/14); 147 So. 3d 1136.

Monetary determinations are often wrong because a claimant’s earnings may be under-reported or miscalculated. Review the notice with your client. Find out (1) the amount generally earned per pay period both in the base period and since; (2) how many times your client filed for UC during and since the base period and to what end (you can check the client’s online account, too); (3) whether base period wages are truly the client’s and have been correctly calculated; and (4) whether any employers or earned wages have been excluded from the base period.

In the event of errors, there are some possible means to increase the WBA:

• Supply missing earnings documentation. If earnings were not reported, your client may also want to provide the documentation to the Social Security Administration. If the client does not have any documentation, you can ask the agency to investigate the employer. You can also supply an affidavit or other evidence (e.g., purchase receipts for supplies, texts or other communications indicating work locations or dates, etc.).
• If it would make a client eligible to count wages when earned rather than when paid, the agency can shift wages from one pay period to another.1  This often shifts a paycheck from one quarter to another because paychecks are usually issued about two weeks after the relevant work period.
• The client may still be eligible on an earlier claim (e.g., regular benefits were exhausted and the client didn’t file for extended benefits, or the client was previously disqualified on the merits but should now be requalified with new earnings).
• If the client has recent earnings that are not in the base period, filing a new claim in the next calendar quarter (or even later). This drops the first quarter in the prior claim and adds a new quarter, which may result in monetary eligibility in the future.

• 1La. R.S. 23:1598.

In addition to monetary and other eligibility issues, the LWC reviews the circumstances of job separation (for each job in the base period) and makes a determination of qualification or disqualification. The agency solicits information and documentation from both the claimant and the employer. Some employers will have provided the agency with the separation notice that provides a “full explanation” of the cause of separation.1  A not-uncommon query from clients is whether employers can be held liable for untrue statements made in the UC claim process. The defense of qualified privilege applies to untrue and defamatory statements in this context; an employer is liable only if it can be proven that the employer knew that the statements were false, recklessly disregarded their truth or falsity, or was negligent in failing to ascertain the truth.2

Base-period employers have 10 days to protest a former employee’s UC claim.3  An employer who fails to timely respond is deemed to have abandoned its right to appeal, and the agency is not supposed to consider a late response unless the employer shows good cause. If your client qualifies for UC but the employer appeals, be sure to challenge any untimely employer response.

Once a decision is made—there’s no statutory deadline—the agency issues a Notice of Qualification or Disqualification to the claimant and base-period employer. The Notice must include reasons and may be contested by either party, but by not the agency. Having multiple employers in the base period means multiple notices, each of which, if negative, require separate appeal. Sometimes a claimant’s appeal covers more than one adverse notice but the agency only dockets one appeal; usually the agency’s appeals staff will correct the situation if you ask.

Both federal and state law require that benefits be promptly paid upon any initial determination that UC is payable (whether made by the local office, an ALJ, the Board of Review, or a court), even if the opposition appeals.4  You can contest unreasonable delays or suspension of benefits pending appeals taken against your client.

• 1La. R.S. 23:1576 asks employers to file with the LWC within three days of a separation.
• 2See, e.g., Nolan v. Jeff. Par. Hosp. Serv. Dist. No. 2, 11-291 (La. App. 5 Cir. 3/13/12); 90 So. 3d 1178.
• 3La. R.S. 23:1625.
• 442 U.S.C. § 503(a)(1); La. R.S. 23:1635; see also Cal. Dep’t of Hum. Res. Dev. v. Java, 402 U.S. 121 (1971).

La. R.S. 23:1601(2) disqualifies a claimant who is found to have been discharged by a base-period or subsequent employer for “misconduct connected with his employment.” The statutory definition of “misconduct,” a list of certain acts or omissions added in 1990, is more restrictive than prior jurisprudential definitions. If taken literally, and applied blindly and by rote, it might effectively preclude most folks from unemployment. Don’t deny help to your client because of it! Remember that the UC law is remedial in nature and must be interpreted in the claimant’s favor.1

Furthermore, the circuits have taken divergent paths when interpreting the present version of the statute. Some expressly interpret the definition of “misconduct” in light of pre-amendment jurisprudence. Others have taken a more restrictive approach. Unless and until the situation is resolved by the Louisiana Supreme Court, be mindful of this issue in deciding whether or not to appeal a district court decision.

Regardless of the circuit, parse the statutory definition carefully because the agency tends to apply it—and tends to encourage the courts to apply it—in an extremely overbroad manner. For example, the statutory definition refers to a “violation of policy,” but only of only certain types of policy; the agency tends to ignore the qualifier and erroneously posit that any policy violation—no matter how trivial or inadvertent—is disqualifying misconduct.

Even if the client’s alleged behavior or omission might meet the statutory definition, the employer has the burden to prove disqualifying misconduct with competent evidence. Thus, even if the agency disqualified your client at application, your client should still win if the employer fails to participate in the subsequent appeal hearing or if the only evidence against your client is incompetent evidence such as hearsay.

Finally, even if you are in an “unfavorable” circuit, when you are parsing the “misconduct” definition in La. R.S. 23:1601(2) and applying it to your client’s facts, successful arguments from prior jurisprudence might still help your client win. The case law is extensive and varied. Be sure to remind any adjudicator of the law’s remedial purpose, while highlighting any favorable circumstances. Some successful arguments or themes that could help if relevant to your client’s facts are:

• The client did not know or understand that policy alleged to have been violated.
• The misconduct was not directly connected with the job.
• The employer’s reason for discharge was something other than the alleged misconduct.
• The totality of circumstances should be considered.
• Your client might have acted in good faith, not intending to harm the employer.
• A single, isolated incident contrasts with your client’s otherwise blameless history.
• A “hot-headed” response to provocation is excusable.
• Poor judgment or simple human negligence are not disqualifying.
• Poor work performance resulted from a simple inability to meet job standards rather than deliberate misconduct.
• There was a reasonable basis for an action or inaction (e.g., an emergency).
• Your client was following common practice or a supervisor’s directive.
• The misconduct was caused by factors beyond a worker’s control (e.g., sickness, childcare failure, transportation emergencies).

• 1See, e.g., Banks v. Administrator, 393 So. 2d 696 (La. 1991); Charbonnet v. Gerace, 457 So. 2d 676 (La. 1984).

Substance abuse allegations constitute a special case. For UC to be denied following discharge for substance abuse, the employer must prove behavioral effects of alleged intoxication under usual evidentiary standards. Where discharge is based on allegedly positive drug test results, however, alleged test results cannot be considered unless the testing was done pursuant to a written substance abuse rule or policy and performed under certain conditions.1  Even if the statutory requirements are satisfied, if the employer’s test violated its own policies, the test results should not be considered. Many employers fail to present competent (e.g., non-hearsay) evidence.

Refusal to take a drug test required by a proven employer policy is not necessarily misconduct. Refusal on valid constitutional grounds should not result in disqualification. Finally, if an allegedly positive test result was the reason given for discharge, the agency must apply the standards concerning drug testing and cannot use the general misconduct provision to let the employer off the evidentiary hook.

• 1La. R.S. 23:1601(10)(a).

Employees who leave jobs face an uphill battle and usually need your help to get UC benefits.

Employees who leave part-time or interim work to protect full-time or regular employment are protected from disqualification.1  Employees who leave a job with a new employer not yet in the base period, when the job pays less than their UC benefits, can’t be disqualified for quitting.

Otherwise, your client must show “good cause attributable to a substantial change made to the employment by the employer.” In quit cases, claimants have the burden of proof. Because of the agency’s employer bias, it can often help it you can show your client tried to correct a situation before quitting.

In determining “good cause,” a court should use a standard of reasonableness as applied to the average person, not the supersensitive. Dissatisfaction with initially-agreed upon working conditions is not generally considered good cause for leaving. The agency typically construes failure to try to work out job disagreements as unreasonable, so if your client objected before quitting, bring that out or explain why not.

A change in significant work conditions such as work schedules or pay, when imposed unilaterally by the employer, should meet the “good cause” standard unless the employee has agreed to the change. A change in job duties alone is unlikely to meet the standard. It’s the rare person who actually “agrees” to work more hours or receive less pay, but the agency typically construes failure to immediately quit as implied “agreement” with the change. So, bring out any objections made by your client, their limited options, and any other factors negating “agreement” to counter this agency bias.

Discriminatory or unsafe treatment uncorrected by an employer can meet the “good cause” and “substantial change” requirements because an employee is entitled to expect a workplace that complies with applicable legal standards. That your client filed an internal grievance or a complaint with an external agency is helpful but not necessary evidence.

Adverse health reactions resulting from the job or an on-the-job injury don’t necessarily need medical records or proof of causation, but such evidence can help.

• 1La. R.S. 23:1601(1).

In the case in which the quit is actually compelled by the employer rather than voluntary (i.e. constructive discharge), the burden of proof shifts to the employer. Employers often send workers home “to be called later,” then falsely claim that they quit. Similarly, an employee who is forced to resign in lieu of discharge or who resigns to avoid being discharged has not voluntarily quit. In these situations, the employer must prove misconduct in order to disqualify the employee.1

• 1Wood v. La. Dep’t of Emp. Sec., 632 So. 2d 899, 902 (La. App. 2 Cir. 1994).

Many workers get jobs through temporary staffing agencies. A temporary employee working for a staffing firm is disqualified (i.e., deemed to have voluntarily quit) if (1) “[a]t the time of hire,” the staffing firm advised the employee to report for reassignment at the conclusion of each assignment and that UC benefits may be denied for failure to do so; and (2) the employee failed, without good cause, to contact the firm for a reassignment at the conclusion of the previous assignment.1

• 1La. R.S. 23:1601(1)(b).

An administrative appeal is heard by an administrative law judge (ALJ) within the Appeals Tribunal.”1  However, the agency may contract with the State’s Division of Administrative Law (DAL) to conduct your client’s hearing or hire an ALJ from elsewhere. After identifying the parties and the evidence, ALJs typically cover a predictable set of questions that depend on the issue noticed for hearing.

• 1La. R.S. 23:1628, et seq.

Telephone hearings are now the norm and have their pros and cons relative to in-person hearings. Your client has the right to request an in-person hearing, but such a request is likely to be denied given the agency’s tight budget and resistance to making exceptions. Support any request for an in-person hearing with evidence of a compelling reason. Moreover, missed ALJ hearings easily happen with telephone hearings. Your client can ask for rehearing, but the time to do so is shorter than the appeal period. If appealing, you can also ask for a remand for a new hearing.

Claimants’ right to a fair hearing is protected by federal and state law,1  and agency rules setting forth hearing procedures must be followed.2  The traditional elements of constitutional due process must also be provided. Your clients’ rights include the right to adequate notice of the issues, the right to view exhibits before the hearing, the right to subpoena witnesses and evidence, and the right to cross-examine adverse witnesses. You or your client should request a copy of the hearing office file before the hearing; it is free and will be e-mailed upon request. The agency isn’t currently required to mail administrative decisions to a legal representative.

The notice itself may raise due process concerns. Claimants often seek help with hearings at short notice because agency rules don’t require extensive advance notice. You can ask for a postponement and may need to in order to get time to gather and submit evidence for your client. In addition, notices don’t give much detail about the issues to be addressed at the hearing. Because adequate notice of the issue is constitutionally required (though a client may waive inadequacy of notice), lack of detail might give grounds for postponement or for evidentiary objections at the hearing. The ALJ is also precluded from addressing issues not contained in the notice of hearing.3

Additional challenges may arise through the conduct of the hearing itself. At the hearing, strict rules of evidence are not followed, but the ALJ’s decision must be based on sufficient competent evidence.4  Hearsay, though admissible, is not competent evidence.5  Hearsay may be used for corroboration. Make appropriate evidentiary objections on the record. An objection may remind an ALJ that certain evidence may not be relied on, and it should keep a court from finding that you have waived the objection.

Clients who handle hearings pro se often may make poor appeal records. If your client comes to you after the hearing but before further agency appeal or while that appeal is pending, you might be able to intercede in time to get a remand for new hearing. Focus on factors that indicating that your client likely did not have a fair hearing. Limited English proficiency is one such factor. Another might be client assertions that the ALJ excluded or prevented the presentation of relevant documents or witnesses or acted as an advocate for the employer by objecting to the claimant’s evidence or prompting the employer. Because this is a common occurrence, give credence to your client’s statements about such conduct. A detailed affidavit from your client could be good supporting evidence.

• 142 U.S.C. § 503(a)(3); La. R.S. 23:1629(B); see also Schexnider v. Blache, 504 So. 2d 864 (La. 1987).
• 2See LAC 40:IV:109, et seq.
• 3See Daniel v. Wal-Mart Assoc., Inc., 2003-0441 (La. App. 1 Cir. 12/31/03), 868 So. 2d 137; Barber v. Administrator, 95-770 (La. App. 3 Cir. 1995), 664 So. 2d 844; Banks v. Administrator, 393 So. 2d 696, 699 (La. 1981), Murray v. City of New Orleans, 517 So. 2d 1200 (La. App. 4 Cir. 1987); see also Randle v. Administrator, 499 So. 2d 488 (La. App. 2 Cir. 1986) (employer not entitled to remand to prove different reason for discharge).
• 4Banks, 393 So. 2d 696.
• 5DeJean v. Adm’r, Off. of Emp. Sec., 04-327 (La. App. 3 Cir. 9/29/04); 883 So. 2d 493; Schlesinger v. Administrator, 583 So. 2d 100 (La. App. 3 Cir. 1991); Cole Oil & Tire Co., Inc. v. Davis, 567 So. 2d 122 (La. App. 2 Cir. 1990); French v. Whitfield, 561 So. 2d 977 (La. App. 4 Cir. 1990) (direct contradictory testimony by employee cannot be overcome by hearsay evidence from another employee).

After an ALJ decision, claimants have two options: timely request reopening/new hearing or timely appeal to the Board of Review (BOR), a group of political appointees who may not even be lawyers.

Aggrieved employers can also appeal and sometimes send new evidence to supplement their case presented at hearing. Typically, they fail to copy the claimant, and the agency will not give your client a copy of the employer’s appeal or any new evidence turned in by the employer, unless you ask for it. In that situation, object that this violates the law and due process. If the BOR wants to consider new evidence, it is required to have a good reason for reopening (i.e., not just to give the employer a second chance to present a better case) and to have a new hearing for all parties to address this evidence. The BOR decision becomes the final agency decision, which may be appealed to state district court.

Untimely appeals are a common problem. Clients may fail to update their postal or e-mail address, and their mail may not be delivered even if they do. However, don’t give up just because your client has missed a deadline—determine where the fault lies. The agency’s position will usually be that peremption applies and that the right to appeal is extinguished at the end of the time period for appeal. However, courts have recognized that a claimant may rebut the presumption that a decision was actually mailed on the date it was said to have been mailed or present evidence that a notice was misleading or that the agency committed fraud or was otherwise at fault.1  Your client’s online claim records might show e-mailed notices bounced back or that the LWC has used an address gone stale because your client was no longer filing for benefits. There is no statutory obligation for an claimant to update an address if no active claim is being pursued.

If you are representing a client, make sure that appeals are filed timely, or, for best results, do it yourself. Often multiple appeals need filing at the same time, leading to the possibility of confusion or omission. This often happens when a client had multiple employers in the base period or when a client is hit with overpayment notices. There are various ways to file an appeal, the best being any way you can confirm receipt and timeliness.

• 1See, e.g., Bailey v. Cajun Insulation, 453 So. 2d 237, 241 (La. 1984); Jones v. Whitfield, 529 So. 2d 885 (La. App. 4 Cir. 1988); Doescher v. Administrator, 353 So. 2d 388 (La. App. 4 Cir. 1977); see also Harding v. Raising Canes USA L.L.C., 10-320 (La. App. 5 Cir. 11/23/10), 55 So. 3d 837; Hughes v. La. Power & Light Co., 98-1007 (La. App. 5 Cir. 3/10/99), 735 So. 2d 44; cf. Duron v. Albertson’s LLC, 560 F.3d 288 (5th Cir. 2009) (presumption of mailing requires sufficient evidence of record that letter actually mailed).

If your client has ever applied for unemployment benefits, this could be a problem now or a potential problem you can help avoid. As required by federal law, Louisiana has a process to detect, establish, and recover overpaid benefits.1  The agency may find an error on its own, through a federal audit, or through a third-party complaint. The prescriptive period for collection is currently 5 years (10 for fraud), with generous interruptions allowed.2  The U.S. Department of Labor has performance standards for state recovery efforts and requires states to pursue all means of collection. Clients who get a Notice of Overpayment must timely appeal in order to seek waiver of collection when one is available. The Notice should include a total amount and the week(s) overpaid and indicate whether or not the repayment is being sought due to fraud.

• 1La. R.S. 23:1740, et seq.
• 2See La. R.S. 23:1713(C)(2); La. R.S. 23:1601(8)(b); LAC 40:IV:369, et seq.

If an appeal is timely filed and waiver is not expressly prohibited by the law authorizing the original benefits payment, the issue of waiver of collection should be automatically considered at the hearing. The appeals staff may fail to send out the waiver form ahead of a hearing; that failure can be grounds for postponement or remand for new hearings. Clients interested in seeking waiver should also try to document their expenses, obligations, and limited resources. Only agency rules, not the statute, require supporting documentation. If a client’s testimony was undisputed, agency denials for lack of documentation should be challenged. Denial of waiver on that type of technicality is contrary to the remedial purpose of the UC law.

Waiver should be granted when fraud is not involved, the claimant was “without fault,” and recovery would “defeat the purpose” of the benefits already authorized or would “be against equity and good conscience.”1  The agency’s usual tendency is to find claimants at fault in any way possible. Be prepared to vigorously advocate for your client on this issue. ALJs often wrongly fault claimants for the agency’s subsequent reversal of initial qualification decisions or blame claimants for not submitting documentation of expenses when the claimant’s sworn testimony about them is uncontested. Getting debts waived is a huge benefit, so vigorously pursue that relief unless your client admits fraud.

Fraud overpayments, which constitute a very small percentage of overall benefits paid nationally, require the agency to prove intentional misrepresentation or concealment of a material fact. A finding of fraud has more serious consequences for your client. Waiver of repayment and avoidance of penalties are not options. If you are contesting the fraud allegation, submit a completed waiver form and supporting documentation prior to the ALJ hearing.

• 1See La. R.S. 23:1713(B); LAC 40:IV:371.

Once a debt is final (i.e., administrative and judicial review have been exhausted or never taken), the agency has several collection options:

• Offset from future claims payable (which often happens without written notice, to the puzzlement of those who may have forgotten a long-ago overpayment notice or who are the victim of agency error)
• Civil action
• Offset from state income tax refunds
• Treasury Offset Program (offset from federal benefits)

If your client did not get the agency’s original notice of debt through no fault of their own (e.g., the agency sent the Overpayment Account Establishment Notice to a stale postal or e-mail address) and thus had no timely opportunity to contest the alleged debt, your client has been denied due process, which should enable you to get collection suspended and have an opportunity to effectively contest the debt and/or seek waiver.

Many people are unable to get jobs and occupational licenses due to pervasive discrimination against those with arrest or conviction records. It is often not illegal for employers to ask about or consider someone’s criminal record, even if it’s old or unrelated to the job.1  It is not illegal to fire even a good employee for lying on an application and failing to disclose a record. Some employers are affirmatively required by law to deny jobs or licenses to people with certain criminal records. Given the state’s punishment practices, huge numbers of able-bodied formerly incarcerated annually join the ranks of the unemployed. These systemic practices have a disproportionate impact on people of color. You may be able to help.

• 1See La. R.S. 23:291.

Laws on some occupations may explicitly exclude those with certain records, or agencies might unfairly use a general “morality” or “suitability” provision. Depending on the facts of your client’s case, the law or its use against your client may be subject to challenge. La. R.S. 37:2950(A) provides some relief by stating that disqualifications from any licensed (and non-exempt) occupation cannot be based solely on prior criminal record, except for a felony conviction “directly” related to the job. La. R.S. 23:291.2 sets some limits in hiring decisions, mandating that, unless otherwise provided by law, a prospective employer should not consider criminal history that does not end in conviction and, for convictions, make an individual assessment of the relationship between the specific job duties and the criminal record. These might help you find some relief. Occupational restrictions may also be subject to challenge on statutory or constitutional grounds. The Equal Employment Opportunity Commission has recognized that denial of employment solely on the basis of a criminal history has a disparate impact on African Americans and Latinos and may thus be actionable under Title VII of the Civil Rights Act of 1964.

La. R.S. 15:588 gives a right to access and seek correction of state criminal history information retained by the Louisiana Department of Public Safety’s Bureau of Criminal Identification and Information. Tools for helping clients with these problems may also be found in the Fair Credit Reporting Act1  and applicable state law. If the information provider is not a consumer reporting agency or governmental body, you may have to be creative in seeking relief in other ways, e.g., under tort provisions or anti-discrimination laws. Your assistance in correcting reports can help clients find or keep jobs.

• 115 U.S.C. § 1681, et seq.

In Louisiana, expungement generally only removes public access to a criminal record, although the record may also be destroyed in some cases. After expungement, most private employers will no longer have access to the record from official sources. However, it usually stays available to law enforcement and criminal justice agencies, as well as to many state boards and agencies. Also, expungement does not automatically remove data available on the internet or maintained by private data collection companies, who must be individually approached to have a record removed. For these reasons, expungement is a limited remedy. Still, it can help some clients get or keep jobs.1

• 1For further discussion, see the chapter on Expungements in Louisiana.

Clients with criminal records may ask you what to say on an application or may come to you with problems resulting from their answers. Louisiana currently has no general state law (although there may be local laws) preventing questions about expunged criminal records. Lying about a criminal record may lead to criminal prosecution (e.g., if made to a federal employer) or other adverse consequences, such as denial of unemployment compensation. La. R.S. 44:9(I) provides that a person whose arrest or conviction has been expunged under that law is generally not required to disclose the record or the fact that it has been expunged. However, whether a person may properly decline to disclose the record or the expungement is not always clear, and other laws may be held to take precedence.1

• 1See, e.g., In re Gavin, 2008-OB-2082 (La. 5/15/09), 8 So. 3d 556 (attorney applicant’s failure to disclose arrests a factor in denying LA license); Twin B. Casinos v. State, 2000 CA 1681 (La. App. 1 Cir. 9/28/01), 809 So. 2d 995 (license denied due to applicant’s failure to answer honestly question about expunged arrest record).

The Equal Employment Opportunity Commission (EEOC) was established by Title VII of the Civil Rights Act of 1964.1  The EEOC enforces the principal federal statutes prohibiting employment discrimination, usually through investigation of administrative charges brought by individuals who believe they have been discriminated against. The EEOC investigates timely complaints and may help mediate or even sue for a complainant, but most often ends up issuing a “right to sue” letter authorizing the complainant to pursue an action in court, but only within a fairly short period of time.

The EEOC may order various forms of relief including hiring, reinstatement, promotion, back pay, reasonable accommodations, posting of notices, and fees and costs. If intentional discrimination is found, compensatory and punitive damages may be awarded under most EEOC-enforced laws. Claims not addressed in the charge generally may not be raised in subsequent litigation.

All laws enforced by the EEOC, except for the Equal Pay Act and retaliation claims, generally require the timely filing of an EEOC charge before a private lawsuit may be filed in court. Equitable tolling is allowed, but only in limited circumstances. A charge should be filed within 180 days of the alleged unlawful action (300 days if the charge is also covered by a state or, with all laws but the ADEA, local anti-discrimination law).2

After a charge is filed with the EEOC, if the charge is also covered by a state or local law, the EEOC “dual files” the charge with the Louisiana Commission on Human Rights.3  The EEOC decides how to prioritize the charge and may investigate. While it may dismiss a complaint for lack of merit on its face without conducting an investigation, the EEOC must accept any and all charges of discrimination. If the EEOC dismisses a charge for insufficiency of evidence or was unsuccessful in mediation or settlement, it will issue a “right to sue” letter, which gives the complainant 90 days in which to institute a civil action.

The Louisiana Commission on Human Rights (LCHR) is ostensibly empowered to investigate and enforce complaints about employment practices arising under state antidiscrimination laws. However, a plaintiff under Louisiana’s statutes is not required to file with the LCHR or the EEOC prior to filing a civil lawsuit in state court.4  LCHR’s practical function is merely to extend the EEOC filing deadline. The LCHR does not conduct independent investigations, and there are no field offices in the state. There is no real practical reason to file with the LCHR. If you do so for some reason, the process is essentially the same as with the EEOC, and the time limits for filing are the same. The LCHR will also “dual file” with EEOC any complaint that is also covered by federal law. Any party may seek judicial review of LCHR action in accordance with the Louisiana Administrative Procedure Act (i.e., within 30 days).5

If there is a local law that applies to your client’s case, other deadlines and procedures will apply.

The EEOC website offers extensive guidance on all the laws it enforces;6  this manual addresses most but not all of these laws.

• 1See 42 U.S.C. § 2000e et seq.; 29 C.F.R. § 1600 et seq.
• 2To extend the period for filing a judicial action, the state must also have an agency that enforces the particular state antidiscrimination statute at issue. Louisiana has such an agency, the Louisiana Commission on Human Rights.
• 3See La. R.S. 51:2231, et seq.
• 4Coutcher v. La. Lottery Corp., 97 0666 (La. App. 1 Cir. 11/7/97), 710 So. 2d 259.
• 5See La. R.S. 49:964. Complaint forms are available on the LCHR’s website. See La. Comm’n on Hum. Rts.
• 6See U.S. Equal Emp. Opportunity Comm’n.

Title VII of the Civil Rights Act of 1964 prohibits discrimination because of a person’s race, color, sex (including sexual orientation), religion or national origin in many aspects of the employment relationship, including pre-hiring procedures, working conditions, performance reviews, post-employment references, harassment on the job, and retaliation. Whether an employer is covered depends on the type of employer and other factors.1  A claim may also be raised under sections 1981 and 1983 of the Civil Rights Act of 18662  and the later addition, 42 U.S.C. § 1981a.

The Pregnancy Discrimination Act amended Title VII to protect employees and job applicants from discrimination in any aspect of employment based on pregnancy, childbirth, or any related medical condition. In essence, this law prohibits taking adverse employment actions solely because of pregnancy or treating covered workers differently from others with temporary health issues.

Louisiana’s Employment Discrimination Law may also provide a cause of action to your client aggrieved by any of these types of discrimination.3  The law generally covers employment agencies, labor organizations, and public and private employers with 20 or more employees, but there are broad exemptions. There is no provision prohibiting retaliation, and plaintiffs found to have pursued “frivolous” claims may be held liable for damages, costs, and attorney fees. Administration exhaustion is not required, and the 1-year prescriptive period is subject to suspension for limited periods of investigation by the EEOC or LCHR.

In the case of “pregnancy, childbirth and related medical conditions,” the statute covers public and larger private employers and prohibits employment discrimination because of these conditions unless based on a “bona fide occupational qualification.” It also requires state employers to provide leave for up to four months.

• 142 U.S.C. § 2000e, et seq. For a description of the coverage areas of the laws enforced by the EEOC, see Coverage U.S. Equal Emp’t Opportunity Comm’n.
• 242 U.S.C. §§ 1981, 1983.
• 3La. R.S. 23:301, et seq.

The Age Discrimination in Employment Act (ADEA) prohibits discrimination by covered employers (generally, those employing 20 or more workers) against employees 40 and over in any aspect of employment and prohibits retaliation.1  Enforcement lies with the EEOC. If your client’s employer offered a severance package with a claim-waiver provision, it might have run afoul of this law’s waiting period and other requirements designed to help older workers avoid discrimination. Administrative filing is required at least 60 days before filing suit, but a plaintiff need not wait the EEOC’s usual “right to sue” notice to issue before filing suit. Upon issuance, however, the 90-day period to bring a suit begins to run. Louisiana’s Employment Discrimination Law may also provide a cause of action.

• 129 U.S.C. § 621, et seq.

Title I of the Americans with Disabilities Act of 1990 (ADA) prohibits discrimination by covered employers (generally, those employing 15 or more) in any aspect of employment against qualified individuals on the basis of a qualified disability.1  A covered individual is one who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. If a disability and need for accommodation is obvious, an employee need not expressly or formally request accommodation. The law defines in some instances what is or is not reasonable accommodation, but generally it is a highly specific and individualized fact inquiry, focusing on the particular circumstances of the employee and employer. Title I of the ADA is enforced by the EEOC. Private lawsuits are authorized, but administrative exhaustion is required.

The Rehabilitation Act of 1973 includes provisions similar to the ADA and covers most employers receiving federal assistance.2  Louisiana’s Employment Discrimination Law provides a cause of action that is very similar to that available under the ADA.3

• 142 U.S.C. § 12102, et seq. For additional discussion on working with clients with disabilities and ensuring their access to the courts, see Court Access for Individuals with Disabilities.
• 229 U.S.C. § 701, et seq.
• 3La. R.S. 23:321, et seq.

In cases of national origin or race discrimination, certain provisions of the Immigration Reform and Control Act of 1986 (“IRCA”) may also apply. IRCA prohibits employers from hiring persons who are not legally entitled to work in the U.S. and requires that employers verify employees’ eligibility and identity. IRCA also prohibits covered employers from discriminating in recruiting or referring for a fee, hiring, or firing based on national origin and/or citizenship status against those who may legally work in the United States.1  Protection is given to U.S. citizens and to noncitizens with work authorization. Employer actions that may run afoul of this law include basing employment decisions on appearance, accent, name, or other characteristics suggestive of national origin rather than work-related criteria and treating workers differently in any aspect of the hiring or documentation process. IRCA complaints must be filed with the Department of Justice’s Office of Special Counsel (OSC) (unless brought before the EEOC within the scope of a Title VII charge) within 180 days of the unlawful action. OSC will investigate and decide whether to bring the complaint before a special administrative law judge. If OSC declines, the complainant may do so.

• 18 U.S.C. § 1324b.

Both federal and state statutes prohibit discrimination against workers for belonging to or refusing to belong to a labor union.1  Activities that can be characterized as organizing are also protected.

• 129 U.S.C. § 141, et seq.; La. R.S. 23:881, et seq.; La. R.S. 23:981, et seq. (“Right to Work” law).

Employees in unionized workplaces may have rights enforceable under the union’s collective bargaining agreement, which usually specifies that termination must be for cause and provides a process to challenge adverse employment decisions. Such agreements will usually require arbitration of unresolved grievances. Clients may find legal representation through the union or through the private bar. If your client’s complaints include actions by the union as well as the employer, advise them about the union’s duty of fair representation and perhaps refer the client to the National Labor Relations Board to make a complaint.1

• 1See Nat’l Lab. Relations Bd.

In a limited-duration employment contract, the parties agree to be bound for a certain period of time during which neither party may end the relationship without cause and reasonable notice must be given prior to termination.1  These relationships may be found in public as well as private employment. While a contract may be oral or written, any ambiguity will be construed in favor of employment at-will. An unjustly discharged employee may seek recovery of all salaries due for the term’s remainder. An action for discharge has a 10-year prescriptive period.2

• 1La. C.C. arts. 2746–2750.
• 2La. C.C. art. 3499.

The public policy expressed in the “Abuse of Right” doctrine has been very occasionally argued in wrongful discharge cases. It has gained no traction in Louisiana, although conceivably in some highly egregious circumstances it might have a chance. Potential ways to argue this exception include: (1) the exercise of rights exclusively for the purpose of harming another or with the predominant motive to cause harm; (2) exercise of rights without serious or legitimate reasons; (3) the use of the right in violation of moral rules, good faith, or fundamental fairness; or (4) the exercise of the right for a purpose other than that for which it was granted.

Public employment is also usually (but not always) an exception to at-will employment. However, certain public employees enjoying some limited job protections. Generally these are employees covered by a federal, state, parish, or municipal civil service system (under which non-policy-forming employees are selected on the basis of merit and can be discharged only for reasons connected to work performance).1  Civil service systems are governed by a general constitutional and statutory framework2  and often have individual governing statutes, rules, or policies. Within such systems employers are generally reference to as Appointing Authorities.

Most civil service systems are governed by commissions or boards, quasi-legislative bodies “vested with broad and general rule-making and subpoena powers for the administration and regulation of the classified service.”3  A director provides the executive and administrative leadership.4  Most if not all systems enact their own rules, which must be published and made available to the public on request. These rules have the effect of law and prevail over contradictory statutory provisions unless the rules are unreasonable or unconstitutional. The interpretation and meaning of civil service rules is purely a question of law.

The unclassified service includes persons in a variety of positions, such as elected officials, registrars of voters, etc.5  Unclassified service members without employment contracts are functionally at-will employees and may usually be discharged without cause.

• 1Bannister v. Dep’t of Streets, 95-0404 (La. 1/16/96), 666 So. 2d 641, 646.
• 2La. Const. art. 10; La. R.S. tit. 33.
• 3La. Const. art. 10, §§ 2, 3, 10; La. R.S. 33:2396–2397.
• 4La. Const. art. 10, §§ 6–7; La. R.S. 33:2399–2400.
• 5La. Const. art. 10, § 2(B); La. R.S. 33:2401, et seq.

A classified public employee possesses a constitutionally protected property interest, deprivation of which requires due process. The critical elements to procedural due process are notice and an effective opportunity to respond.1  Due process is a flexible standard; what protections are required depends upon the particular situation.2  To satisfy procedural due process, an employment discipline process must start with a written pre-deprivation notice of intended discipline that contains enough information to inform the employee why discipline is intended. Pre-deprivation notice may not be required in emergency situations such as financial exigency, safety concerns, or health hazards. Notice must typically be followed by a basic opportunity to respond to the charges; this opportunity is usually face-to-face, but a response in writing might be permissible depending on the situation. Final notice must give enough information for an employee to prepare a defense in any post-deprivation hearing and include applicable appeal rights. An employee who exercise the right of appeal is afforded a post-deprivation opportunity for a real hearing where witnesses may be called or cross-examined, evidence subpoenaed, etc.

You can often get your client reinstated (even if only temporarily) with back pay restored by finding mistakes that the appointing authority made in the disciplinary process. Don’t assume that the correct procedure was followed. Most civil service systems will allow for summary disposition motions or other pre-adjudication procedures by which to raise procedural defects.

• 1Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985); Moore v. Ware, 01-3341 (La. 2/25/03); 839 So. 2d 940.
• 2Gilbert v. Homar, 520 U.S. 924, 930 (1997); Moore, 01-3341, 839 So. 2d 940.

It’s not uncommon for employers to stiff a terminated employee or at least delay the final paycheck as long as possible. Your help in getting that money for your client could be invaluable and may not take you much time at all.

Most employees separated from a job in Louisiana have a right to prompt payment of “the amount then due under the terms of the employment.”1  Not all workers are covered. Because the statute excludes independent contractors, remember the possibility of misclassification. The law applies to public as well as private employers, but it does not apply to those covered by collective bargaining agreements that provide otherwise. The statute requires that the pay period have been by the “hour, day, week or month” and does not cover pay arrangements lacking such a term. Not all payments are covered; one critical exception is that employer policies may exclude vacation pay. The reason for separation and the workers’ immigration status are immaterial. Payment is due within 15 days or on the next regular payday, whichever comes first

• 1La. R.S. 23:631 et seq.

It’s not uncommon for employers to stiff a terminated employee or at least delay the final paycheck as long as possible. Your help in getting that money for your client could be invaluable and may not take you much time at all.

Most employees separated from a job in Louisiana have a right to prompt payment of “the amount then due under the terms of the employment.”1  Not all workers are covered. Because the statute excludes independent contractors, remember the possibility of misclassification. The law applies to public as well as private employers, but it does not apply to those covered by collective bargaining agreements that provide otherwise. The statute requires that the pay period have been by the “hour, day, week or month” and does not cover pay arrangements lacking such a term. Not all payments are covered; one critical exception is that employer policies may exclude vacation pay. The reason for separation and the workers’ immigration status are immaterial. Payment is due within 15 days or on the next regular payday, whichever comes first.

• 1La. R.S. 23:631, et seq.

You might be able to get your client paid quickly by contacting the employer. Your client may have a manager’s phone number, or you might find a phone number on the internet. Even if the employer refuses to pay, a conversation may provide valuable information for your next step. If calling doesn’t work, put your demand in writing. While in rare circumstances a court might find an oral demand sufficient, it is best to have proof of your demand in writing whenever possible. Most employers will refuse to sign any receipt for your demand, so use whatever other means you have to prove delivery; text, e-mail, or fax is best for purposes of immediacy and proof of delivery. Sufficient demand is necessary to invoke the enforcement and penalty provisions of the statute. If you get no or unsatisfactory response, the final step is to sue in court.

A suit must be filed within 3 years.1  Venue is appropriate in any of the locations authorized by the Code of Civil Procedure and also in the parish where the work was performed.2  If wages were paid but not paid timely, a suit seeking only penalties and attorney fees still states a cause of action. The employer must pay the employee’s reasonable attorney fees if the suit is “well-founded,” which means that a judgment awarding past due wages has been entered in favor of the employee.

The law allows penalties of 90 days’ wages or full wages from demand until payment, whichever is less, to be assessed against an employer who fails or refuses on demand to pay all undisputed amounts.

• 1La. C.C. art. 3494.
• 2La. R.S. 23:639.

Good faith defenses by an employer will preclude imposition of penalties. The statute is strictly construed, being penal in nature, and its provisions may yield to equitable defenses.1  An employer who shows an equitable defense may avoid penalties, but not attorney fees, if wages are actually due.

Defenses to payment have included:

◦           Prior overpayments that could be offset against wages due

◦           Property loss or damage2

◦           Pre-employment medical exam or drug test costs for an employee who resigns within 90 days of hiring3

Defenses to penalties have included:

◦           Inability to locate an employee

◦           Good faith error (e.g., a true clerical error)

◦           Bona fide dispute about the amount due

◦           Perceived or actual need to offset amounts due from employee

◦           Employment did not end in resignation or termination

Rejected defenses have included:

◦           Poor bookkeeping practices or other negligence

◦           Employee’s abrupt resignation

◦           Employee’s refusal to pick up the check when the employee requested that it be mailed

◦           Employee’s failure to complete tax forms or to sign receipt acknowledging payment

◦           Reliance on unlawful company policy

◦           Reliance on legal advice

◦           Reliance on an illegal post-termination contract to avoid statutory obligations

• 1Boudreaux v. Hamilton Med. Grp., Inc., 94-0879 (La. 10/17/93), 644 So. 2d 619.
• 2While La. R.S. 23:635 prohibits an employer from deducting “fines” from wages (e.g., for violating a work rule), this statute does not prevent an employer from withholding wages for willful or negligent damage of employer property.
• 3La. R.S. 23:634(B).

Your client may complain being underpaid by either a current or former employer. The primary1  federal wage and hour law is the Fair Labor Standards Act of 1938 (FLSA).2  It sets forth federal requirements for a minimum wage, overtime payments, and record-keeping.3  An employee’s immigration status is irrelevant. FLSA has its own test for determining employee vs. independent contractor status. As a remedial statute, FLSA must be liberally construed. Its provisions cannot be waived.

However, FLSA does not cover all employers and employees. In general, covered employers must have annual sales of at least $500,000 or be engaged in interstate commerce. The law covers private employers as well as federal, state, and local governments. Many workers are explicitly excluded from the statute’s protection regarding either minimum wage, overtime, or both. Statutory exemptions are narrowly construed, and the employer bears the burden of proving that an employee falls within the scope of an exemption.

FLSA covers only time on the job working. Time on call or on standby is covered only if employees cannot use that time as they wish (e.g., they are geographically or otherwise limited). If travel or transportation is necessary to the employment and for the benefit of the employer, the employee must be compensated for that time. Mandatory training of nonexempt employees must also be compensated.

Your client may have a complaint about retaliation for raising a pay violation. It is illegal to discharge or “in any manner discriminate” against an employee because the employee has filed a complaint or instituted any proceeding under FLSA. This anti-retaliation provision protects both written and oral complaints.

FLSA is enforced by the Wage and Hour Division of the U.S. Department of Labor (DOL). The New Orleans DOL office has jurisdiction over FLSA complaints in Louisiana. DOL may pursue criminal charges for willful violations or a civil lawsuit for back pay, penalties, and injunctive relief on an employee’s behalf. However, DOL backlogs may make a private lawsuit preferable; such a suit may recover lost wages, penalties, attorney’s fees, and costs. There is no exhaustion of administrative remedies requirement. Suit under FLSA must be brought within 2 years of the accrual of a cause of action (3 years in the event of a “willful” violation).

• 1There are other federal wage payment laws enforced by the U.S. Department of Labor, including the Davis-Bacon and related Acts, which regulate wage payment and fringe benefits on federally financed or assisted construction. A full list and detailed information about all federal wage and hour laws can be found on the website of the Department of Labor.
• 229 U.S.C. § 201, et seq.
• 3FLSA also restricts child labor.

The federal minimum wage, for covered employees, is still absurdly low. Even lower wage rates are allowed for certain types of workers such as tipped employees, employees under 20 years of age for the first 90 days on the job, student learners, full-time students, and handicapped workers (under certificates issued by the Department of Labor). Nevertheless, your client may have a contract setting a special rate of pay or be in a particular occupation covered by more generous pay laws.

FLSA requires payment in cash or cash equivalent (e.g., food and lodging). The regular rate of pay includes base pay plus premiums, cost of living allowances, bonuses, and fair value of anything the employer provides as part of the pay, so long as the employee voluntarily receives the benefit, it is primarily for the employee’s benefit, and it is not illegal. The rate of pay does not include benefit plan contributions, paid vacations, discretionary bonuses, and so on. Generally, uniforms and essential tools may not be deducted from an employee’s minimum wage.

FLSA does not restrict states or municipalities from establishing a higher minimum wage, but Louisiana has not joined other states that have enacted a higher minimum wage. In fact, in 1997 the Louisiana legislature, responding to attempts in New Orleans to place a referendum for a higher minimum wage on the local ballot, passed La. R.S. 23:642, which prevents local governments from establishing a higher minimum wage.

FLSA does not restrict the number of hours an employee may work, unless a worker is under 16. However, it does require that overtime (1 ½ times the regular rate of pay, colloquially referred to as “time and a half”) be paid any covered employee for any hour worked in excess of 40 hours in a workweek.1  As with the minimum wage, some employees are exempt (e.g., taxi drivers, live-in domestic help, truck drivers). Some employees who work irregular work schedules (e.g., many healthcare workers) may be entitled to overtime even if they work less than 40 hours in a week. Employers do make mistakes on exemptions or by their actions may have forfeited exempt status. For overtime purposes, tips are not counted as part of the regular rate of pay.

There is no generally applicable state law on overtime. However, your client may be covered by a contract or special law.2  Employer policies or customs may also confer enforceable rights.

• 129 U.S.C. § 207.
• 2See, e.g., La. R.S. 33:1999 (firefighters).

Comp time in lieu of payment is usually not legal.1 Only state or government agencies may give time off in place of wages and only under certain conditions.2

• 1 29 U.S.C. § 207(o).
• 2See, e.g., La. R.S. 33:2213.1 (police officers); Knecht v. Bd. of Trs., 591 So. 2d 690 (La. 1991); Jones v. City Par. of E. Baton Rouge, 526 So. 2d 462 (La. App. 1 Cir. 1988); see also Klein v. Rush-Presbyterian-St. Luke’s Med. Ctr., 990 F.2d 279 (7th Cir. 1993).

If severe and long-lasting enough, your client’s health issues might eventually be found disabling by the Social Security Administration. However, many health issues are temporary, and many employers have little tolerance for if a worker’s illness might impact their business. A client might need help to preserve or regain a job, and an employer might respond to your reaching out to explain some illegality. You might need to help your client pursue other remedies or refer them elsewhere. There is no generally applicable state law providing the average at-will employee with paid sick or personal leave. However, even a client with no rights under contract may be in a particular occupation with special statutory rights.1  Employer policies and customs may also provide an employee with enforceable rights. Finally, employees seeking leave because of their own health problems may be able to secure additional leave as an accommodation under the Americans with Disabilities Act (ADA) or other legislation.

• 1See, e.g., La. R.S. 17:46, et seq.; La. R.S. 17:411, et seq. (certain teachers).

The Family and Medical Leave Act of 1993 (“FMLA”) provides covered employees with up to 12 weeks of unpaid leave during a year’s time for: the birth, adoption, or foster placement of child (within 1 year of child’s arrival); health needs of an employee or immediate family member; or a qualified exigency related to the employee or family member’s duty in the Armed Forces.1  During FMLA leave, an employer must maintain pre-existing employment benefits for the employee. Of course, an employer may provide greater benefits either voluntarily or through contract. Retaliation for exercising (or interference with) FMLA rights is prohibited.

The FMLA covers most employers, but private sector employers must employ at least 50 employees in a 75-mile radius in 20 or more workweeks in the current or preceding calendar year and be engaged in commerce or any activity affecting commerce. Employees must have been employed at the same workplace for 12 months or more and have worked at least 1250 hours (about 24 hours/week) during the year before taking leave. Employers may exempt certain otherwise eligible employees or set conditions on leave for others.

• 129 U.S.C. § 2601, et seq.

FMLA leave is limited to “serious” health conditions. This means an illness, injury, impairment, or condition that involves inpatient care or continuing treatment by a recognized health care provider. An employee need not be physically unable to work. An employer may require certification by a health professional, second or even third opinions at the employer’s expense, and re-certifications on a reasonable basis. Leave may be intermittent when medically necessary and not unduly harmful to the employer’s business. Employers may require, or employees may elect, to use up paid leave first.

An eligible employee seeking to use FMLA leave must provide 30-day advance notice, unless the need for leave was not foreseeable and/or notice was not practicable. While notice need not be in writing, it is well-advised. When requesting leave, FMLA need not be mentioned by name; notice will be sufficient under the act if the employee provides the employer with enough information to put the employer on notice that FMLA-qualifying leave is needed. An employer may place an employee on involuntary FMLA leave if the employee has given notice to the employer of a qualifying reason for absence that would trigger FMLA rights.

An employee generally—but not always—has the right to return to the same or equivalent position (i.e., terms, conditions, pay, and privileges must be the same). An employee may be fired during FMLA leave if the employer has reasons unrelated to the taking of leave. During the leave, an employer must make the same insurance benefit contributions. However, seniority and pension benefits need not accrue during leave. If an employee does not return to work at the end of approved leave, the employer may recoup health insurance premiums.

The U.S. Department of Labor enforces the law. Most federal employees must seek enforcement through the U.S. Office of Personnel Management. DOL will investigate and may bring suit on its own. A private suit under the act may be brought within 2 years of a violation (3 years if the violation was willful).