Management Update

Does State or Federal Law Require Me to Allow Employees Time Off of Work to Vote?

For most private employers, the answer is NO, there is no state or federal law requiring you to allow employees to miss work in order to vote in state or federal elections.

Louisiana does have a state statute that generally prohibits employers with twenty or more employees from interfering with an employee's ability to participate in politics. Specifically, LSA-R.S. 23:961 states that:

Except as otherwise provided in R.S. 23:962, no employer having regularly in his employ twenty or more employees shall make, adopt, or enforce any rule, regulation, or policy forbidding or preventing any of his employees from engaging or participating in politics, or from becoming a candidate for public office. No such employer shall adopt or enforce any rule, regulation, or policy which will control, direct, or tend to control or direct the political activities or affiliations of his employees, nor coerce or influence, or attempt to coerce or influence any of his employees by means of threats of discharge or of loss of employment in case such employees should support or become affiliated with any particular political faction or organization, or participate in political activities of any nature or character.

Any individual person violating the provisions of this Section shall be fined not less than one hundred dollars nor more than one thousand dollars, or imprisoned for not more than six months, or both; and any firm, corporation or association violating the provisions of this Section shall be fined not less than five hundred dollars nor more than two thousand dollars.

One "clever" employer recently asked if it could allow only those employees that it believed to belong to a certain political party off of work in order to vote next Tuesday. We explained that doing so could very possibly constitute a violation of LSA-R.S. 23: 962, in addition to creating an extremely bad optic for the business.

The bottom line: If early voting numbers are any indication, this will probably be one of the largest voter turn outs in modern history. Although employers have no legal obligation to allow employees off of work in order to vote, realistically many employees are going to miss some work to do so. It would be a good idea to decide how you are going to respond to those situations and to inform your managers of the company voting policy. You do not want to find yourself in a situation where workers are allowed time off to vote depending upon their perceived political affiliation.

Flu Season Is Approaching, Should You Require Employees to Get A Flu Shot?

Jerry L. Stovall, Jr.

In light of the COVID-19 pandemic, getting a flu shot this year is even more important than it has been in the past. (If you don't believe me, talk to the CDC.)

Does this mean that employers should require all their employees to get flu shots? The short answer is NO.

As of this moment, there is no federal or state law (in Louisiana that is) requiring all employers to compel all their employees be vaccinated for the flu. In fact, both the ADA (for persons with disabilities) and Title VII (for sincerely held religious beliefs) provide exceptions that would allow an employee to refuse to be vaccinated. Rather than require vaccinations, the EEOC has stated that "ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it." (Guidance) This Guidance was initially issue by the EEOC in 2009 and it was recently re-issued in March of this year.

This means that although most employers can strongly recommend that employees be vaccinated for the flu, they would also be required to go through the accommodation analysis required by the ADA and Title VII if an employee asked to be excused from the vaccination as an accommodation.

Healthcare Workers: While the reasonableness of a healthcare worker's request to not be vaccinated would be held to higher scrutiny, especially in the case of one who provides direct patient care, the general analysis under the ADA and Title VII will be the same. The existence of a state or local law or administrative guidance recommending vaccinations for healthcare workers and the worker's direct contact with patients will play into the reasonableness, or lack thereof, of the employees request to not be vaccinated.

Employers should ensure that their requests, or mandates as the case may be, that employees be vaccinated are based upon the best available guidance: refer to the CDC and EEOC publications above, and the worker's specific job duties. Whatever policy you land on needs to be clearly communicated to your employees and your supervisors must be trained to respond to employee requests to be exempt from vaccinations. (This should generally entail spotting the issue and immediately reporting it to HR for the appropriate analysis.) And, in the context of all of this communication and analysis, the employee's medical information should be kept confidential.

The CDC Re-Defines "Close Contact"

Jerry L. Stovall, Jr.

On October 21, the CDC issued a new Guidance that expands the definition of "close contact" for purposes of exposure to COVID-19.

Under the old Guidance, Close Contact was someone who had been within 6 feet of a COVID-19 positive person for 15 minutes or more.

Under the new Guidance, Close Contact is "Someone who was within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to test specimen collection) until the time the patient is isolated."

As you probably recall, the CDC has generally recommended that anyone having Close Contact with a COVID-19 positive individual stay home for fourteen (14) days after their last contact with the COVID-19 positive person.

We do not know what practical impact this new Guidance will have on the average person going about their daily business; we suspect not much. However, this expansion may significantly impact the application of Act 336. You will recall from my prior updates that Act 336 limits liability for civil damages for injury or death resulting from exposure to COVID-19: "...unless the person, government, or political subdivision failed to substantially comply with the applicable COVID-19 procedures established by the federal, state or local agency which governs the business operations and the injury or death was caused by the person's, government's, or political subdivision's gross negligence or wanton or reckless misconduct."

Although we don't yet have any reported cases interpreting this aspect of the Act, it is almost certain that the new CDC Guidance will constitute a "procedure established by a federal agency" with which we must comply in order to enjoy the protections of Act 336. As you can see, this Guidance will significantly expand the scope of employees that you send home to self-quarantine for 14 days after exposure to COVID-19.

The CDC has not established procedures for tracking an employees' cumulative exposure to COVID-19 over a 24-hour period. As an HR professional, we would alter both my written policies and my practices to incorporate this new. Showing that you made a good faith effort to comply with the Guidance may be a critical piece of evidence one day.

DOL Increases H-1B Wage Requirements

In early October, the US Department of Labor (DOL) significantly increased the prevailing wages for temporary foreign worker programs, which includes the H-1B visa program. The H1-B program requires employers to comply with a minimum salary meeting or exceeding a "prevailing wage" set by the DOL. Under the new rule, prevailing wage levels are now an average of approximately 40% higher for all occupations, which DOL claims will provide wage protections and strengthen H-1B and other foreign worker programs.

Employers may be required to significantly and unexpectedly increase employee salaries in order to comply with the prevailing wage requirements. However, a lawsuit was filed in the U.S. District Court for the District of New Jersey that challenges the new rule and seeks a preliminary and permanent injunction. While the rule remains in effect pending a court decision, additional legal challenges are also expected.

Enforcing Non-Compete Agreements in Louisiana

Jude C. Bursavich

Are non-compete agreements enforceable in Louisiana? Yes, if drafted correctly. Are they difficult to enforce? No, Louisiana law actually makes it procedurally easy to enforce these agreements. Substantively, however, non-compete agreements must meet strict statutory requirements before Louisiana courts will enforce them. Thus, particular attention must be given in preparing non-compete agreements in Louisiana.

The validity of non-compete and non-solicitation agreements in Louisiana is controlled by a single statutory provision and its judicial interpretations. 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. Once you have enforceable non-compete agreements in place, Louisiana law makes enforcing these agreements procedurally easy.