|WHAT IS EMPLOYMENT LAW?|
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.
WHAT ARE MY RIGHTS UNDER THE FAIR LABOR STANDARDS ACT?
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.
- 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.
employees working in Louisiana do not receive full and proper payment
of their overtime wages, they can assert a claim to recover:
- All unpaid overtime for two or sometimes three years prior to the filing of a lawsuit.
award of "liquidated damages" equal to the amount of the unpaid
overtime – meaning workers can recover double the amount of unpaid
overtime owed; and
- Attorney’s fees and expenses.
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.
WHAT ARE MY RIGHTS UNDER THE FAMILY MEDICAL LEAVE ACT?
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.
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
WHEN IS A DISCHARGE WRONGFUL?
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.
WHAT SHOULD I KNOW ABOUT NON-COMPETITION, NON-SOLICITATION AND SEPARATION AGREEMENTS BEFORE SIGNING ONE?
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.
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):
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. |
means that an employer wishing to enter into non-competition and
non-solicitation agreements with its employees must comply with the
- The employer can only prohibit employees from working in or soliciting individuals from similar lines of business,
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,
employer must actually either have a physical location or be actually
conducting business in the identified geographical area (“Restricted
- The restrictions cannot last longer than two (2) years from the time that employment is terminated.
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.
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.
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.