Legal Counsel for Employment Law

FLSA; FMLA; Wrongful discharge are designed to make sure workers are treated fairly. An employment law attorney can help protect your rights given by these various laws. Non-Competition, Non-Solicitation and Separation Agreements are contracts between the employer and employee. An employment law attorney should advise you before you sign.

Statute of Limitations For overtime claims, the statute of limitations is the same as under Federal Law – claims can be made for the prior 2 years (3 years if the violation is willful). Many of the employment disputes that result in litigation deal with “wage and hour” violations. Federal law requires a minimum wage of $7.25 per hour. Wage and hour laws also regulate overtime pay. The FLSA does not place limits on the number of hours adults may work per week, but after 40 hours time and a half must be paid. In addition, these laws require employers to post notices and keep basic payroll records. Going first to the Department of Labor, after making demand on your employer but before filing suit in court may sometimes have certain tactical advantages.

Examples:

• Workers paid a set day-rate and no overtime, even though they work over 40 hours per week.
• Workers who are paid straight time for overtime.
• IT / Tech Support workers are paid hourly straight time for all hours worked over 40 per week.
• Workers who are treated as "independent contractors" instead of employees to avoid paying them time and a half for overtime.
• “Professional” employees who are paid on an hourly basis, instead of a salary, and not paid overtime.
• Non-exempt workers who are paid a "salary" and no overtime, even though they work over 40 hours per week.

When employees working in Louisiana do not receive full and proper payment of their overtime wages, they can assert a claim to recover:

1. All unpaid overtime for two or sometimes three years prior to the filing of a lawsuit.
2. An award of "liquidated damages" equal to the amount of the unpaid overtime – meaning workers can recover double the amount of unpaid overtime owed; and
3. Attorney’s fees and expenses.

In addition, for failure to pay unpaid wages after termination of the employment, Louisiana also provides remedies including actual unpaid wages, up to 90 days penalty wages & attorney fees.

The employee can also request up to 12 weeks of leave for a personal health condition that interferes with job functions or to act as a caregiver for a spouse, parent or child with a serious condition.

Eligible employees must have worked 1,250 hours for a covered employer during the one-year period preceding the leave. They must also have completed at least 12 months of employment with the current employer. Businesses with at least 50 employees within a 75-mile radius are subject to this law.

In Louisiana, the law presumes that employment relationships are at will. Employers and employees are free to terminate the relationship at any time and any reason. This at will presumption can be overcome where there is a “wrongful discharge”. For example, employers cannot fire workers for discriminatory reasons. Likewise, they cannot fire an employee in retaliation for filing a worker’s compensation claim, or for disclosing a violation of law to the authorities (“whistle blowing”). This at will presumption can be overcome where the parties entered into an employment contract regarding when and how the relationship would end. As long as the contract is otherwise legal, it will be enforced.

Promises not to compete prevent former employees from engaging in the same trade in the same market or geographical area for up to two years. Restrictions against disclosing trade secrets are also enforceable.

Generally speaking, non-competition agreements prohibit an employee from working for a competitor after leaving the prior employer’s business.  Non solicitation agreements forbid former employees from reaching out to co-employees in an attempt to persuade them to leave their current employment and prevent former employees from contacting customers or suppliers of the employer with the intent to convince them to discontinue doing business with the employer.   Both types of agreements must be drafted in strict compliance with applicable law to be enforceable.  Both non competition and non solicitation agreements are governed by La. R.S. 23:921(C):

• Any person, including a corporation and the individual shareholders of such corporation, who is employed as an agent, servant, or employee may agree with his employer to refrain from carrying on or engaging in a business similar to that of the employer and/or from soliciting customers of the employer within a specified parish or parishes, municipality or municipalities, or parts thereof, so long as the employer carries on a like business therein, not to exceed a period of two years from termination of employment.

This means that an employer wishing to enter into non-competition and non-solicitation agreements with its employees must comply with the following requirements:

• The employer can only prohibit employees from working in or soliciting individuals from similar lines of business,
• The employer must specify the geographical area where the employee will be prohibited from working or soliciting in terms of specific parishes, municipalities or parts thereof,
• The employer must actually either have a physical location or be actually conducting business in the identified geographical area (“Restricted Territory”).
• The restrictions cannot last longer than two (2) years from the time that employment is terminated.

Louisiana courts construe this law very strictly.  For example, if the employer fails to comply with the requirement to list the Restricted Territory or extends the prohibition beyond two years from termination of employment, the agreement will not likely be upheld by Louisiana courts, and you will be free to compete or solicit immediately upon the termination of the employment. 

It is important to note that these restrictions do not apply to confidentiality agreements.  Trade secrets, including customer lists, are governed by separate areas of law and are not limited to two years of protection.  Due to the complex nature of non-competition and non-solicitation agreements in Louisiana, you should consult legal counsel prior to executing these types of provisions to make certain that they are valid. 

Separation agreements are waivers of existing legal rights (“a release”) given by the terminated employee in favor of the employer in exchange for a severance payment. ADEA releases are not legally enforceable if they do not meet the statutory requirements of OWBPA. The right to file claims must be given up “knowingly” & “voluntarily” but return of the payment by the former employee is usually required to revoke the release and sue even if the release is deemed unenforceable; except if the claim is brought under the ADEA. These agreements may also contain non-competition, non-solicitation clause in addition to the rights being released. Finally, the terms of these agreements are entirely negotiable. You should consult legal counsel for negotiating tips to obtain a better deal or advice on whether you should execute one of these agreements at all.