Management Update
Election Enmity and Ballot Blues: Properly Managing Political Activity in the Workplace
By: Matthew M. McCluer

As we all know, politics is by far the most polarizing topic likely to come up in conversation in today’s workplace. The American population is more divided along party lines than at any other point in post-Reconstruction history. With the rise in partisan ideology and behavior comes additional tension and disagreement that turns the office environment into a dusty Western saloon, where one cross look or misplaced insult can devolve into a metaphorical, or even literal, barroom brawl.

Indeed, surveys state that more than half of employees nationwide believe political discussions are generally not appropriate for the workplace, yet about one-quarter of those surveyed admit to talking about politics at work for at least fifteen minutes per workweek. Other studies showing that approximately 25% of all employees, including a disproportionately high number of younger workers, feel stressed and isolated at work because of political discussions or believe they have been subject to hostile or discriminatory treatment by their employer as a result of partisan debates.

Political discussions at work are typically not fruitful in terms of promoting civic engagement or unifying workers of diverse backgrounds. More than 63% of Americans polled in 2019 said that while they had more frequent political discussions during the Trump presidency than in previous administrations, they feel those discussions are more stressful and frustrating than in prior years. In addition to worsening morale, political division is bad for productivity. A staggering 87% of employees admitted to reading political social media posts during the workday after the 2016 election, and 29% said that they were less productive at work as a result. Now, in the wake of the former president’s second impeachment and the election of a new Democratic administration, tempers are flaring ever higher and the likelihood of division and conflict in the workforce is all the more concerning.

The deepening schism between the political classes—Republicans and Democrats, conservatives and liberals, those who support the news media and those who claim it is all “fake news”—means that HR professionals are working overtime to ensure that workers feel supported and safe from politically-biased treatment while reinforcing companies’ policies on appropriate workplace conduct and prohibited types of speech. It is essential for HR departments to dispel the myth that employees cannot be restricted from exercising their First Amendment rights of speech and expression in the workplace since no such rights exist in the context of private employment. Further, jurisprudence has long held that employers are free to regulate employee’s dress and conduct that causes disruption as long as they are even-handed in doing so and the result is not to favor one type or “brand” of political speech over another.

But, as with many topics, the devil is in the details. An employee who wears a “Make America Great Again” hat or a “Black Lives Matter” shirt in the office may be viewed as making a political statement not directly tied to any term or condition of their employment that may cause disruption, which could violate company policy. Employers have been quick to enforce such policies in light of the widely reported riots around the country and storming of the Capitol, as expressions of extremist views on topics like race relations have been seen to erupt into public displays of violence and mob mentality. And putting aside the threat of workplace violence, there is an inherent risk when political debates emerge in the workplace that employees may feel targeted, harassed, or bullied by their co-workers or supervisors if those discussions involve topics related to race, religion, gender, LGBTQ status, or other protected categories under federal and state anti-discrimination laws.

On the other hand, using the examples above, if the employee’s hat instead promoted deregulation of the employer’s industry, or the shirt referenced increasing the national minimum wage, then those statements may constitute “protected concerted activity” under Section 7 of the National Labor Relations Act which allows all employees (union and non-union) to discuss wages, benefits and other working conditions with each other free from any retaliation or adverse action. Add to the confusion the fact that Louisiana is one of several states that prohibit employers from retaliation against employees who engage in “political activities” or based on party membership.

These murky waters of what constitutes legally protected workplace conduct have been tested in recent years. Two former Google software engineers sued the company for alleged discrimination based on their perceived conservative political views and their status as male Caucasians after the two engineers were terminated for statements regarding gender and religion that were deemed to violate the company’s code of conduct. Google later entered into a conciliation agreement with the National Labor Relations Board and was forced to revise its policies and publicly clarify examples of permissible workplace behavior. Around the same time, the Supreme Court declined to hear a decision from the Fifth Circuit Court of Appeal in which it held that a national fast-food chain that prohibited employees from wearing “Fight for $15” buttons at work had violated the employees’ rights to protected concerted activity.

In these uncertain times, it is more important than ever to review your company’s policies on political activity in the workplace, and if you have questions about whether certain discussions or actions may be protected under state or federal law, consult with an experienced labor and employment attorney.
A Short Summary of How President Biden's American Rescue Plan Could Impact Employers
By: Jerry L. Stovall, Jr.

President Biden's almost $2 trillion "American Rescue Plan" is working its way through Congress. Several provisions of the Plan could significantly impact employers:
Minimum wage: The Plan would raise the federal minimum wage to $15 an hour over four years and end the tipped minimum wage and the sub-minimum wage for people with disabilities.
Worker safety: The Plan includes significant provisions designed to improve worker safety, including a COVID-19 Standard to be created by OSHA as well as additional funding for enforcement.
Expanded FFCRA leave: The Plan would extend the paid sick and family leave benefits of the FFCRA to September 31, 2021, and would require all employers to offer FFCRA leave, including health care providers and those with fewer than 50 employees and those with more than 500 employees. The ARP also would require up to 14 weeks of paid sick and family and medical leave and expand the list of parental caregiving situations that will be covered. The Plan proposes to reimburse employers with fewer than 500 workers the full cost of providing the leave.
Extended unemployment: The ARP would increase federal supplemental unemployment assistance by $100 a week, making it $400 a week instead of the $300 a week that was approved last year, through September of this year, and expand eligibility to independent contractors.
Miscellaneous: The ARP would also:
  • Grant approximately $440 billion in support to "struggling communities," including small businesses, Tribal governments, public transit, and essential workers;
  • Provide $130 billion to help schools safely reopen;
  • Expand the Higher Education Emergency Relief Fund;
  • Expand financial assistance to both childcare providers and families, including:
  • providing a fully refundable Child Tax Credit for one year, and
  • expanding the Earned Income Tax Credit for one year;
  • Provide another $1 billion for states for Temporary Assistance to Needy Families ("TANF") recipients.

Employers need to keep an eye on this Bill as it winds its way through Congress.
Understanding Louisiana Non-Compete Law
By Jude C. Bursavich

Most states use a reasonableness test in determining whether a non-compete agreement is valid and enforceable. If reasonable as to scope, duration, and geographical reach, such agreements are usually enforceable. Reasonableness, however, plays no role in Louisiana in determining the validity and enforceability of these agreements. Instead, strict compliance with a single statute determines whether these agreements will be upheld in Louisiana.

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, above 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 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 both non-compete and non-solicitation 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.

As demonstrated herein, non-compete agreements in Louisiana can be enforceable. Preparing non-compete agreements that comply with Louisiana law, however, is critical to their enforceability. Complying with Louisiana’s controlling statute is the most important aspect of preparing valid and enforceable agreements in Louisiana.
Ninth Circuit Issues a Per Diem Ruling That is Worth Noting
By: Jerry L. Stovall, Jr.

On February 8, the Ninth Circuit Court of Appeals issued a ruling that certain per diem payments must be included in an employee's regular rate of pay. Although the Ninth Circuit covers only Alaska, Arizona, California, Guam, and Hawaii, the ruling is nonetheless worth noting to those of us fortunate enough to live and work in the Fifth Circuit.

As you know, under the FLSA a non-exempt employee must be paid overtime at the rate of time and a half times the employee’s regular rate of pay. This fact begs the question: what constitutes the regular rate of pay?

The short answer is: it depends.

In the case before the Ninth Circuit, Clarke v. AMN Services, LLC, AMN, a staffing company sometimes placed its employees at facilities that required them to drive a long distance from their homes. In addition to their hourly rates, AMN paid the employees who traveled more than fifty miles from their homes per diems that were intended to reimburse them for the cost of meals, housing, and other expenses. Being aware of 29 CFR 778.217, AMN Services did not include the per diem payments in the traveling workers' regular rates of pay when calculating their overtime.

29 CFR 778.217 states in relevant part that:

(a) General rule. Where an employee incurs expenses on his employer's behalf or where he is required to expend sums by reason of action taken for the convenience of his employer, section 7(e)(2) is applicable to reimbursement for such expenses. Payments made by the employer to cover such expenses are not included in the employee's regular rate (if the amount of the reimbursement reasonably approximates the expense incurred). Such payment is not compensation for services rendered by the employees during any hours worked in the workweek.

(b) Illustrations. Payment by way of reimbursement for the following types of expenses will not be regarded as part of the employee's regular rate...

(5) The actual or reasonably approximate amount expended by an employee as temporary excess home-to-work travel expenses incurred (i) because the employer has moved the plant to another town before the employee has had an opportunity to find living quarters at the new location or (ii) because the employee, on a particular occasion, is required to report for work at a place other than his regular workplace.

The Ninth Circuit held that these per diem payments should have been included in the employee's regular rate of pay because the structure of the payments suggested that they were more akin to wages rather than reimbursements. For example, the amount of the per diem payments depended in part on the number of hours worked by the employee rather than the expenses the worker incurred. In addition, AMN Services made identical per diem payments to its employees who were not required to travel more than 50 miles away from home on assignment. The company included these per diems in the local workers' regular rates and expressly considered them to be part of their overall compensation package.

The Ninth Circuit's opinion is not groundbreaking, but it is a good reminder that we should take a hard look at our per diem and reimbursement policies and practices to determine if they should be included in the regular rate of pay or not. Considering that the FLSA provides for 100% liquidated damages and the recovery of attorney's fees and that the Louisiana "payday" statute allows for the recovery of ninety day's penalty wages and attorney's fees, failing to properly calculate an employee's regular rate of pay can be a very costly error.
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