Your client may tell you about unsafe or unhealthy work conditions or have suffered retaliation after filing an external complaint. The Occupational Safety and Health Act of 1970 requires covered employers to maintain a reasonably safe work environment.1  The Act has traditionally been used to address work-related hazards, but may also be used to address problems with worker or domestic violence on the job. Most private employers are covered, but not government employers. The law also imposes certain record-keeping and notice requirements and prohibits retaliation against an employee who complains to the enforcing agency, the Occupational Safety and Health Administration (OSHA).

The Act does not provide a private right of action, but proof of violations may be relevant to another cause of action. OSHA may fine the employer or force changes in conditions. Employers may face criminal penalties for record-keeping violations or interfering with a compliance officer. Retaliation complaints must be filed within 30 days.

If your client is or was a seasonal or migrant farm worker, the Migrant and Seasonal Agricultural Worker Protection Act addresses many aspects of the employment relationship.2  In addition to requiring contractor registration, written disclosure of terms and conditions of employment, record-keeping, and wage and supply arrangements, the law mandates health and safety standards in housing and transportation. Retaliation is prohibited. The statute is enforced by the Wage and Hour Division of the U.S. Department of Labor, which is authorized to inspect worksites and records, conduct interviews, and pursue civil or criminal actions against violators. Private actions are allowed.

Louisiana does not have an OSHA-approved job safety and health program. However, it does have laws setting forth health and safety provisions for certain occupations.3  It also prohibits retaliation against an employee for testifying about or providing information for the enforcement of labor or environmental laws.4  This statute protects employees who report violations not just by their employer, but also by a third party. This and other similar “whistleblower” statutes require that reports of violations have provided sufficient information to allow the agency to investigate the alleged violation.5

• 129 U.S.C. § 651, et seq.
• 229 U.S.C. § 1801, et seq.
• 3See, e.g., La. R.S. 30:2027, 2351.55; La. R.S. 23:481, et seq.
• 4La. R.S. 23:964, 967; La. R.S. 30:2027.
• 5See, e.g., Garrie v. James L. Gray, Inc., 912 F.2d 808 (5th Cir. 1990).

If your client is or was a minor at work, check for employer pay violations or other abuses. The Fair Labor Standards Act1  limits the categories and hours of work for minors, especially on school days. Certain jobs declared hazardous by DOL are entirely off-limits to minors. Violators are subject to civil or criminal action. Louisiana likewise limits the occupations of minors and regulates their employment.2  These laws are enforceable by the state’s labor agency, and violators are subject to certain penalties, including fines, imprisonment, attorney fees, and interest.

• 129 U.S.C. § 201, et seq.
• 2La. R.S. 23:151, et seq.; La. R.S. 23:381, et seq.

Workers frequently lose their jobs due to employers’ fondness for this tool, which side-steps the question of performance. While in most cases employees cannot be forced to pay for testing themselves,1  there is no general state law preventing private employers from testing, and some occupations are covered by laws that affirmatively allow or require it. However, there are certain standards and procedures for employer drug testing, including employees’ right of access to records relating to positive drug test results.2  Whether your client has any legal recourse in the face of a supposed positive test result depends on the position, the employer, and other circumstances. Depending on the type of alleged substance, your client may have time to get independent testing done by a more reputable lab, which might persuade an employer that the first result was flawed. Employees have a very limited cause of action in tort against employers and testing entities for wrongful disclosure of test results.3

Clients working for the government or a private employer acting for the government may have some constitutional protection as well. Drug or alcohol testing is considered a search and seizure covered by the Fourth Amendment to the U.S. Constitution (and its state counterpart).4  Testing must be supported by individualized “reasonable suspicion” unless the employee is in a position of “special needs” such as law enforcement or “safety-sensitive” positions such as railroad workers.5

• 1La. R.S. 23:897.
• 2La. R.S. 49:1001, et seq.
• 3La. R.S. 49:1012.
• 4Skinner v. Ry. Lab. Execs. Ass’n, 489 U.S. 602 (1989); Nat’l Treasury Emps. Union v. Von Raab, 489 U.S. 656 (1989).
• 5Skinner, 489 U.S. 602; see Chandler v. Miller, 520 U.S. 305 (1997); United Teachers of New Orleans v. Orleans Par. Sch. Bd., 142 F.3d 853 (5th Cir. 1998).

Your client may complain about “lie detector” testing, a less ubiquitous employer tool. The Employee Polygraph Protection Act (EPPA) prohibits most—but not all—non-governmental employers from using polygraph tests either for pre-employment screening or during the course of employment, with some stated exceptions.1  The law is enforced by the DOL which may seek injunctive relief or penalties. Employees may also bring a private action within 3 years of a violation for back pay, benefits, reinstatement, and other relief. Unlike many other states, Louisiana has no state counterpart and attempts to gain employment relief from negligent or even forced testing have been unsuccessful.

• 129 U.S.C. § 2001, et seq.

Employers with 20 or more employees are prohibited from interfering with certain political rights of employees.1  However, the political activities of certain governmental employees can be limited.

• 1La. R.S. 23:961, et seq.