No Permits, Just Guns - at Work? (Oh My!)

By: Kayla M. Jacob and Fred Preis

Effective July 4, 2024, a concealed carry permit will no longer be required for law-abiding Louisianans, age 18 years or older, to carry weapons. So, if an employee walks into a workplace on July 5th with their gun, what should employers do?

Despite the new gun law, guns-at-work are not a new phenomenon in this State. Louisiana's "Guns at Work" law permits an employer to restrict an employee's access to weapons while on the employer's premises. Employees do, however, generally maintain the right to lawfully possess firearms in their locked, privately-owned vehicle in an employer’s parking lot, parking garage, or other designated parking area. This right does not infringe on an employer’s ability to implement and enforce policies governing the storage of firearms.

No law – not even the new gun law – requires employers to allow guns at an employer’s actual worksite. Louisiana’s new gun law did not amend or restrict an employer’s rights regarding handguns at work.

Simply put, employers may continue with the status quo when it comes to guns. However, employers may wish to revisit and revise policies as needed to comply with the newest requirements for lawful possession of handguns in Louisiana.

Beyond Dress Code: BLM Insignia as Protected Concerted Activity at Work

By: Kayla M. Jacob and Fred Preis

Is the display of BLM insignia (an acronym for Black Lives Matter) merely a matter of dress code policies, or does it constitute protected activity? Well, according to a recent ruling by the National Labor Relations Board (the “Board”) – it depends.

An employee in a non-union workplace reported to their employer that they had supposedly endured months of racial discrimination. In response, the employee and several co-workers (without consensus) began wearing BLM initials on their aprons. During a meeting with management to discuss prior racially motivated incidents, management questioned the presence of BLM initials on the employee’s apron.

The employee was informed that the BLM initials violated the company’s dress code as it constituted a political message. Management expressed concerns that allowing BLM initials would invite other political messaging, like wearing swastikas and that “All Lives Matter” was preferable to “Black Lives Matter.” The employee was instructed not to return to work until the initials were removed. Subsequently, the employee tendered their resignation.

The NLRB recently ruled that prohibition of BLM insignia was unlawful conduct by the employer. The Board reasoned that at the time the employee was asked to remove the BLM display, it was a logical outgrowth of prior group activity in response to that employee’s and other employees’ complaints about recurring race discrimination in the workplace. Accordingly, the employee’s refusal to remove the BLM insignia was protected concerted activity as such activity was for their mutual aid or protection concerning the terms and conditions of their employment.

The Board further found that no special circumstances existed to justify the company’s decision to prohibit employees from wearing BLM insignia.

The Board did not extend its holding (at least not yet) to adopt the position that the display of BLM in the workplace is automatically protected. Thus, for now, whether BLM is a dress code violation or protected activity depends on the facts specific to each circumstance.

What Does a Texas Judge’s Injunction of Enforcement of the PWFA Mean?

By: Jerry "Jay" L. Stovall, Jr.

Most of you have heard of the Pregnant Worker Fairness Act by now. It went into effect in June of last year and required employers to make reasonable accommodations for employees who were pregnant or who had pregnancy-related conditions. Shortly after the Act took effect, the EEOC issued proposed regulations that very broadly interpreted the Act. For example, the proposed regulations construed contraception, abortion, lactation and some hysterectomies to be “pregnancy-related conditions” that must be accommodated.

Last Tuesday a Federal Judge sitting in Lubbock, Texas issued a permanent injunction that prevents the federal government from enforcing the PWFA against the State of Texas and its agencies and divisions. Federal agencies are only enjoined from enforcing the PWFA against the State of Texas and its agencies. The injunction does not apply to other states or private employers located in any state. However, other states are entitled to make the same argument as Texas should they also want protection from the PWFA.

The Court’s rationale in issuing the injunction was that Congress did not have the required quorum when it voted on the PWFA. (Congress relied upon a COVID-19 pandemic-era rule that allowed non-present members of Congress to be counted as if present and to vote by proxy.)

We are still waiting on publication of the EEOC’s final regulations implementing the PWFA. The draft regulations were published on August 11, 2023, and since that time the EEOC has received more than 100,000 public comments. We have no clear deadline for publication of the final regulations.

The FTC’s Proposed Nationwide Ban on Non-Compete Agreements – Where Are We Today?

By: Jude C. Bursavich

In January of 2023, the Federal Trade Commission (“FTC”) issued a proposed new rule banning non-compete agreements nationwide. The proposed rule sought not only a ban of future non-compete agreements, but also required recission of existing agreements. The FTC then sought public comments on the proposed rule before modifying the rule or issuing a final ruling. The public comment was extended until the Spring of 2023. It was then widely reported that the FTC’s vote on the proposed ban would not take place until April of 2024. At this point, it is unclear when the FTC will modify the proposed rule or issue a final rule. In the meantime, non-compete agreements are enforceable in Louisiana, if drafted correctly.

The validity of non-compete agreements in Louisiana is controlled by a single statute. La. R.S. 23:921, Louisiana's controlling statute, begins with a general prohibition against any agreement whereby anyone is restrained from exercising a lawful profession, trade, or business unless one of the narrow exceptions to the general prohibition contained therein has been satisfied. It provides:

Every contract or agreement, or provision thereof, by which anyone is restrained from exercising a lawful profession, trade, or business of any kind, except as provided in this section, shall be null and void.

This opening paragraph of La. R.S. 23:921 reflects Louisiana's strong public policy against these agreements. The exceptions to the general prohibition, for the most part, are based upon relationships. They include the employer/employee relationship, the sale of the goodwill of the business, the dissolution of a partnership, the Franchisor/Franchisee relationship, and the Employer/Computer Employee relationship. Additional exceptions added by the Louisiana Legislature in recent years are again based upon relationships. They include the Corporation/Shareholder relationship, the Partner/Partnership relationship, without consideration of any possible dissolution, and the Limited Liability Company/Member relationship.

Because these agreements are in derogation of the common right to earn a living, Louisiana jurisprudence has strictly construed these exceptions to the general prohibition. To fall within these exceptions, most Louisiana courts have required non-compete agreements to list the area of prohibition by parishes, municipalities, or parts thereof, together with a term of no longer than two (2) years from the date of termination of the relationship.

While not specifically contained within the statute, various Louisiana courts have also required that a valid non-compete agreement accurately define the business in which the individual is prohibited from competing. Other Louisiana courts deny the need for this additional non-statutory-based requirement. If the business is defined within the agreement, however, the definition should be narrow and accurate.

The FTC’s proposed ban appears primarily concerned with the Employer/Employee relationship. It is not clear how the FTC’s proposed rule, if it takes effect, would deal with other relationships in Louisiana where non-compete agreements are allowed, including the partner/partnership relationship, the corporation/shareholder relationship, and the limited liability company/member relationships.

The proposed rule, if it becomes final, will have to survive serious legal challenges by the individual states and the business community before ever effecting the use of non-compete agreements nationwide. It is therefore suggested in today’s competitive marketplace that the use of non-compete agreements in Louisiana continue until further notice.