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).