WWL>Topics>>8-28-14 2pm, Angela, Labor Laws

8-28-14 2pm, Angela, Labor Laws

Aug 28, 2014|

Several labor issues have made the news lately: pregnancy discrimination, paternity leave & unequal pay for women. As an employee, do you know your rights? As an employer, how can you protect yourself from employee lawsuits?

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Automatically Generated Transcript (may not be 100% accurate)

A little trending session as a wild and -- today but a lot of fun. And before we get into our next program which I'm really looking forward to it's about the labor issues and whether -- an employee. Or employer. You'll want to I think you're really wanna listen we have a great guest a Craig Watson from the law firm of blue Williams who's gonna. Able to answer some of our questions. Above a fourth that. But -- -- you will want you to cool down with culinary this month. We've got 575. Dollar gift certificates to Antawn. That you can win today and tomorrow. So you just listen to my show -- -- giveaway once certificate per hour. Culinary month as a celebration of dining in America's most delicious city so when you hear the song jambalaya in the body. I'll give you the number to call. And caller number eight wins assembly five dollar gift certificate and wants courtesy of the New Orleans convention and visitors bureau. And I want to say our last hours winner -- -- ceiling you know good for you and enjoy that gradient once so listen for that music and a little bit. But we begin our program with. Should men have paternity leave when their spouse gives birth. Should employers give pregnant workers a break who have jobs that require heavy lifting. What rights do employees have on any number of issues whether it be discrimination. Harassment. Even use of social media. But equally what rights do employers have how can they protect themselves against employee lawsuits. How responsible. Are employers. For the actions of their employees. So we're talking labor issues. Specific to here at home in Louisiana. With an expert Craig Watson partner with the law firm of -- Williams. If you have any questions or thoughts on just anything you wanna talk about concerning labor issues give us a call 2601870. Craig Watson thank you very very much thank you very -- -- year and he sort of an expert on both sides which makes it even more interesting I'd like to ask first. Does Louisiana have labor laws that are different. Than other states. They do there are many Louisiana laws that have certain nuances that I will tell you it's a practical matter there -- a lot of Louisiana laws that tend to follow the federal trend. With respect to their loss of the big title the big federal law that encompasses an -- employers that a lot of people have heard about this title seven and that's the big. Protection that's afforded to employees for race national or would origin. Religion gender the big things that you hear about in the news in Louisiana does have its companion statutes but they followed the same sort of protections there's some nuances about the number of employees. That an employer has to have in order for those particular statutes to apply but largely debut on there are some specific Louisiana's state laws statutes -- payment of wages. And various other topics and in employment problem but largely they're following the trends of the of the national statutes. So it makes a difference how larger company news. It does there are -- they are jurisdictional limits for the application of some of these statutes so for instance in title seven you have to have at least fifteen employees. In order for the employees to be covered. By those protections and the same thing and in each statute that that the government. And next has a different jurisdictional limit so I mean -- put employees hear about your family medical leave actors speak poignant moment when someone needs to take medical leave well. That doesn't imply unless your employer has fifty or more employees in 5050 or more in a 75 mile an locations that he's got multiple offices you can combine those get to the fifty but that's an example. A particular statute that has a jurisdictional requirements so if you don't have fifteen employees. Then you're not gonna be entitled to teacher twelve weeks of unpaid leave under FM. So I'm each statute has its own jurisdictional component on and it and that the premise behind that is that they don't wanna have. Onerous applications to very small businesses that maybe can't afford to have. Extended leave periods of time for their employees. So that's why you see some of these some of these statutes not protect employees of very very small employers. More than that means varying interest already learned something. Again to 60187. -- give -- any questions for Craig Watson. Let's start with employment in Louisiana act. Will in point. Yes and so that's a word that you hear a lot of and I and I have seen this on both sides in and Louisiana as is what's generically referred to as an -- -- state which means that. -- year reader an employee at will you can be terminated for any reason at all so long as it's not protected by what we've talked about before the title seven protections. So that means that I heard you earlier talking about the saints at pre season game which I'm going to today if somebody walks in your office and their wearing and believe saints playing the Baltimore Ravens and wearing a Baltimore Ravens Jersey. I would recommend it as best practices but. Your supervisor could come in and say I don't like the Baltimore Ravens and you terminated. And most employees would say that's unfair that's wrong. But that doesn't make it unlawful under your employment stat sheets. And so what -- will means is that you can be terminated. For any reason as long as it's not protected under federal law and there is no protection for. NFL -- you know Baltimore fans just like there's not protection. Under the law a -- if you're if you don't like your boss and your bosses that you know is a jerk to you there's nothing that protects that. That type of conduct and it has to rise to the level that's protected by stat sheets so what you see a lot with employees is that they common. And when -- consulting with him he'll tell you stories and and you feel for employees because a lot of times. You know they may be wrong or may be unfair but the law doesn't protect on fairness and only protects certain conduct that that congress has decided that they think. Is you know rises to the level what should be protected and you saw a lot of that with the civil rights movement so. That's when you started seeing a lot of these protections come out for -- It we're gonna protect the gender of individuals that you can't terminate somebody on the basis. That there are female or that their -- you know he -- come out with religion that you can't terminate somebody could he disagree with what religious principles they abide by. Also you may see you know as statutes are enacted in and we've become you know it. Society becomes. You get more more statutes like now you're seeing pregnancy discrimination where you know there -- a lot more females now in the workforce so there's a lot more protections coming around. 32. -- -- -- -- stat -- -- you may have you know different pregnancy policies that now apply and there's things that employers can and cannot do in order to protect. Pregnant women in the workplace now you'll see -- some new laws coming out with respect to breast feeding and women's ability to have. A safe environment to be able to do that in the employer's obligation to accommodate for that. That's going to be that's mandated it is mandated so so and that's an interesting one because that's relatively new but the rest -- it is and that you have to separate. And that may be a difficult for some employers. To have space. It is and it's something you know you worked with clients in and how can you do that and how can you provide time and you work on launch for immunity to work and lunch breaks in and have an area. And again there's there's jurisdictional components to all of these things -- so that's not an onerous. But it is a two way street so it's it's. At will employee means you can be terminated for any reasons along with it's not protected under something -- perilous state but it also -- if you look at it from the employee context. If you go in Monday and you say I don't like the way you're talking to me or you know I like the color of your shirt you can say. I'm out of here and the employer can't look TU and saying and now you -- you have to work the rest of the month -- you'll meet a year's worth of time and soak the out whilom employment situation in Louisiana protects -- employer. And the employees' ability. To work in the environment that their place and what if they have a contract -- If employee of employment contracts is is this is the separate -- of that you are afforded different. Legal there are different legal implications which protect employers and employees under contract so. A lot of the things I do for employers is now I'll get together with and they have a particular employee that they would like to have on contract so let's say. There's a bit of training that's required. For a particular employee -- don't wanna hire somebody and do all that time training in and they decide to leave on you -- you may say you know I'm in need your services here for a year. So that that employment relationship has been governed by the the four corners of the employment contract that's trapped between. And there's all sorts of parameters. About that particular employment which -- seeing more more employers do is when they do contract with employees they'll put certain terms and conditions in there to protect themselves and you'll see. Non compete agreements an unsolicited agreements to where they don't want those employees. To go compete against them later officer appeared in business -- that product that you market yet confidential proprietary information. That may be a scenario where that particular employer wants to have a contract with the employee so that -- added protections there for them and the same token. If somebody has to move out of state and come in and work which are seeing a lot of in Louisiana. You know they don't honest you know bring their families down here spend the time and money to move to find out that my employer can just get Virginia will. They may want to negotiate in employment contract with their employer so that they have some protections. And what it does is it changes the out we'll state to now. In employment contracts you'll typically have provisions in there well you have to be terminated for cause so there has to collect justifiable reason. Why you're being terminated that could be everything from morality clause to. Not get the job done yet -- you still have to prove that you're not getting the job. It would have to be proven yes it's not a guarantee of employment up for all situations. But what it does is it says you have to have a legal reason under this contract for why you're gonna get. Terminated. I want everyone to stay with descent and again if you're listening -- have any thoughts on any kind of employment issue. Give us a call 2601870. We have the expert here Craig Watson from the law firm boo williams' stay with this financial Honda didn't -- well. We're talking issues of labor law. What they're an employee or an employer. With the Craig Watson who's a part of the law firm of blue Williams. And we've got to callers and and so through -- calling and I hope others continued to 260187. Let's start with Mike and you're asking about the at will employment. Yeah. Eight employer want the buyer somebody. Wanted to -- them better -- that because they're black skirt they're old they're one and and today. And it -- -- it that way. The person double layered that we do and is that is that you acting out that. Sure well it's very difficult it is to guarantee things that we can respect your employer. As to what you can do to protect yourself but there are a lot of things that employees can do in a recommended one of the things is. To make sure that your document being. You know your issues that -- -- having with your employers so that ultimately when it does get to a lawyer comes to -- comes to another attorney. That it's not he said she said things so one of the things as far as advice to employees is that if you're having in if you believe your being discriminated against for any reason. You know document that and then within each employers I'll recommend to all my employer -- clients. Is that they have policies and procedures. In order to protect their employees so which you see a lot of that with employers at that they have employee handbook senate it's fine to have won but more importantly is that they're being implemented and enforced by your employer. So if you believe that your subject of some discrimination from any of the protected conduct. I would employ that employee to go to the appropriate person like human resources director like your supervisor. And put that in writing and and then your employer will be obligated under the law. To respond in some way now you may not be happy with their response but that's you've now put yourself in a position. Where you've alerted your employer and they have an affirmative obligation. And to attempt to try to mediate the problem that there is one so so. Do you -- And term. I. Create demand and we knew it would. -- that is protected my lawyer. And that date. That. Bully me at that that will it. Do you get and the both old. And it. That there aren't you. India. And. Will EMI in your and your touching your you're touching on one of the issues that I that I see is an attorney in in bullpen in the context and and that is the burden of proof and and what the employee ultimately would have to prove in the event a lawsuit would come out and and so what you're talking about right now is sort of evidentiary proof how. Should this matter get litigated how would I be able to prove that the reason that they're giving me is is not the real reason in and the -- Bright and and that the legal term for that as pretext so what happens when you have an employment discrimination case. Is you've got to you've got an employee who believes that they're being discriminated against you've got an employer who offers a proper as a reason. That is non discriminatory so let's say the employee says you terminated me because an African American and employers says no like terminated due because you haven't shown up to working in three weeks. Well the employee then the burden shifts under the law -- -- to prove that the reason the employer gave his pretext and you're correct it's going to be very difficult and you often don't see employers admit that there are being discriminatory and that's what's called direct evidence that that would be if you can get somebody to testify. That they in fact committed intentional discrimination -- right. I'm not gonna happen common interrupt just for second Mike -- Richardson let's say your boss thinks you're tools. And and you're doing the job. But. Which you always sent pitcher on the ice -- nice. You're saying document GI completed these tasks I've done everything else has to do. But here was a day on June 4 that this was said to me and I got that ugly feeling. Ultimately you're keeping tabs on that so that one day it becomes a decision on -- not doing the job in your round because. As Mike was saying everybody stumbles everybody makes a mistake but if you have proof that you've done a good job. For a number of years -- for -- period of time. Is that good enough. Yet that that's the other end and direct evidence and you've got circumstantial evidence that that's that's the stuff on the periphery so what you gonna be looking at for there is you're going to be looking at policies in patterns so. Has your employer gotten rid. You know all the old people in the office -- had day had they you know use comments like. You can't teach an old dog new tricks and he he look for those sort of trigger terms in and discriminatory practices that may not just apply to you but as a business. On a hole. -- Hamas of correct and so that's what you're looking for -- you know. And then the other thing is you know did they get -- of -- and then and then replace you with somebody much much younger are there. You know other employees that are facing similar things where -- you know saying when he can't keep up anymore those types of language can be used ultimately. To impugn the employer and later on. And it is important for the employer on from the other end to make sure that -- not committing discriminatory practices and that you are documenting your file for legitimate reasons. The potential. Like that -- Well -- have that via. -- that -- That we. No reason -- -- if if it is discriminatory and you are able to prove it in and there are cases out there I mean their planning of lawyers said that when judgments against employers where you -- pattern in practice they can be established new evidence. -- may not be that simply the. The supervisor admits to doing it but it may be you know you go through personnel files and -- subpoena those documents and you find out that you had the last time they had a layoff they only got rid of the the older people in the office and all the younger people got to stay in and that evidence can be used later on. You know to the detriment of the employer. Mike we're gonna have to go I really appreciate this call though we're gonna have to go to our newsroom that Richard Patricia and -- stay with this will be right back -- lots of respect for. -- offer -- -- Williams talking about. Labor issues. Well Patricia inside bill. Good afternoon and asked how I respect I had a pass from back in 2000 Fuller. -- I'm sure it's too late to do anything about it but I had been an employee of had settled. For forty years. And there was going to be at takeover. And it was the end of Pratt said. Would be the manager of my department the Education Department. God that there was the problem. And she sounded handicap which was -- -- IA. There was oblivious to that and that I had been -- is the -- development educated. I -- Arian and I hand them master's degree in public health. I the education for the past -- And I need we've seen bill of the certifications. That would have required. I attacked our CP and advanced cardiac life support to the hospital. -- -- -- Pregnant and they give them. Yes and right at I hate and completed a huge program for over 200 people in their ace feel as. I -- the next day they let me well they wanted me to these kind. In -- if they can't the end I was on my lunch break and they can't put in their managers in place that -- that last. And whenever we had a program to seat -- part -- this man -- -- managing needed to them you know come pretty. She them I would hit that -- the lunch room to -- teacher portion of the city yes scenario. And them. Anyway. I'm sure if she -- really nothing to do it that she went along with the personnel director who was the female young. Why do you think they let Hugo. I think they wanted to put someone else in that position for less profound -- And also. It was a man in office. And you -- it made them directly comment about the old manager. And I was afraid. Did there was gonna be something that would happen to her. Physically and I've reported to prison now. Well I've been known to me they destroyed everything that they sent to them an email and all conversations that we yet. Patricia did on ahead and having to push you along and I don't mean to cause I know this is very important in your life and obviously they're sad time in your life. But what did you do did you try to contest digital. I did and I say to me and it went to -- the court. -- and and discriminatory. Practice round this. Gay man who. Really. Caught my mind but it neatly and it was still an effect of court. -- I don't know what I bet my attorney told me he could no longer represent me because if he did he would be this side in this state we've seen him. Well Patricia. The last comment is interesting. You'd -- touch on on several things and this is sort of I wanna say it's a classic example but the types of issues that did you experience with your employer something that I see frequently when when you're consulting with people. And that is sort of it's it's never just usually one thing it's usually a culmination of multiple things and I'm sure you felt that. That you were treated unfairly and that's what I was getting back to before about what that really isn't if you didn't have and employment contract with the hospital. -- you did that -- I had a contract that was Sally yes. Okay and because those are those are you can have a salaried -- that not that doesn't have an Islamic country but if he did it would be -- your employment relationship would be governed by the end up. One scenario which does occur quite a bit which it seems to appear to have. Happened here is at least that there was a merger acquisition or somebody was taking over particular department and and what you see there is employers will claim that they had a legitimate non discriminatory reason for your termination witches. Generally business reason and something. Yes it you know what happened to that they announced it reacted. -- if England after the diet and then he was. Yes and yeah. And again autism protect that feel for people. That those situations occur but it's it's just the environment in in Louisiana that. That is is here with it at will state and so. You know he did. You -- you had an employment contract with a lot of employees don't have your case ended up going to federal court and -- kind of moves into the you know how can you get recourse in what can you do and beauty have a time limit here in Louisiana. House and and how long you can file a lawsuit in that when it happens -- there's the people. US equal opportunity commission here. Which is the first sort of gateway in two. Pursuing it in employment discrimination claim in Louisiana and and you go through that body in investigate your claim -- and give your right to -- letter that can get you in federal court which it sounds like he did. Next major bar for employees is to get past really the judge because. There's a summary judgment procedure. Where employers. Get to go to the court at the early stage before you know major expenses major discovery insane I don't believe that simply. Even meets the threshold requirements for bringing -- claim and you see a lot of cases get rid of that particular state. We're gonna have to go to -- -- and you sorry this happened to you I do appreciate your call and stay with -- everyone will be right back. We're back with that Craig Watson who was with the offering of blue Williamson were talking about labor issues. Something that is -- relatively new talk about the last ten years. But social media in the workplace and what. What are the rights of employers. To say what you can do and not to yes Angela and and this is. This is one of those hot button issues. That I know I'm getting more more calls recently because with the you know advent of social media and FaceBook and Twitter. You know if it's becoming an issue for employers because people are out there. You know their public and and people don't think they are when they're on the social media sites but their Republican and the issue of how that -- is -- workplace is an important issue for employers because they have reputations they had images. And now they've got employees out there that may be wearing you know company shirts or may be posting on a company website. And it's something that's very important so one of the things that you know I know I'm doing a lot of distracting social media policies for employers. And those cover. You know most employers in economy and -- I don't want anybody to post anything on FaceBook you know. -- -- draft policy that says that an and you can't do that because there are some protections that are out there. On the National Labor Relations Board as a as a government alleging that has come out some recent decisions where they said. No you can't have blanket policies against you know posting on social media you have to have. Because people if it's the term is concerted activity but if people are on FaceBook and they are. They have making complaints -- complaints about workplace policies. That could be -- -- of some of those other things we talked about. The that these decisions are coming out finding that there are allowed to do that there are allowed to participate in that so if you have a group of employees that's let's say. You know they're upset about their wages are there upset about you know harassment that's going on the workplace and their posting. Within groups or blogs about that the employer can't come in and saying no you can't do that. And there's there's it's their technical on how you have to handle those situations which can -- like policies. So what about something like that people who. In -- drunk at the party in the post pictures. Those -- and it and it kind of -- of the image the employer correct in and says they are you know First Amendment protections for people but the employers don't have to you know they don't have to be defamed and they don't have to be ridiculed and and the reputation doesn't have to be -- where people are being abusive. Online and you know. It debuted venting their frustrations about their supervisors you don't have to put up with that and so part of the language that's in a lot of these policies -- you can discourage employees from doing that and you can take. Remedial action against an employee that has taken conduct. He's trying to liken it to conduct you know would you have to accept that if they were in front of you in the office just because you feel -- -- out there. No the employer's able to take action they're able to. I -- discipline an employee that is out there yeah. It responsibly posting pictures we're doing something that's inappropriate it's just certain activity. You've got to really look at what they're doing who their friends are and it's it's a complicated issue and it's something that you're seeing more and more. The other big thing in social media policies as you know it's very employer specifics though if you've got to. You know viewed in the business of marketing a product award he work for a company has recipes or something secret. You wanna have confidentiality provisions out there -- that. Telling you about the next product that's gonna come out before the companies announced it and so you know you have to tailor your policies to each individual employer and it's something that's that's happening a lot more and. You know I've read recently that -- was a Harvard study that said that we are 23 and a half hours a week. On social media. And some of that is at work and so what's. -- What does that what right does the employer have to say unique can't turn your phone on you can't. Yes those entering I don't I believe the latest statistics show that that upwards of 75%. Of employees. -- admit to being online. At work and so it is an issue and it isn't it's a problem out there and employees specifically need to know. That there employers are able to access. And view it's if it's a company owned equipment they're able to review the FaceBook postings that you do anything you're doing at work is fair game for your -- a look at on their computer on their computers now there's been some recent protections. I believe the governor has issued an executive order. That prohibits employers. From requesting passwords. Four particular site so you can no longer. You know going in and -- I need your password to review your site but employers have free game to review your postings that you're doing -- employees need to know that that's happening out there and govern themselves accordingly. The other sort of major issue was social media policies is that you're seeing a lot of employers use those in hiring decisions. And that can be problematic and you gotta make sure you do it the right way because. Disdain aging at some employee comes -- you know the first thing you gonna do is Google them and find out you know who is this person they say you know -- the match and comport with their resonate. And you need to protect yourself and make sure your crying out those types of things is that an employee comes back later and says wait a minute. -- now they know my race and I didn't get hired because they saw a picture of -- York. Where you know may be IE friend it's you know some organization of religious organization that they didn't agree with. So it's very important that wallets an asset to people and it's a great thing that we have this technology now that she used it in the appropriate way. Let's talk very quickly about because I know as you sort of alluded to in the very beginning more women in the workforce. Pregnancy. That the handling about the accommodation. And there have been any number of cases there is then and this is another -- -- button issue and ended congress has has you know -- set for a date they passed the pregnancy discrimination act which is an amendment to the title seven protections of race and gender and and what we've seen in history. And so now there are protections for women out there so for instance employers can't refuse to hire somebody now if they're pregnant. I'm so that's a protection that wasn't there before as long as that person can come to the table -- -- essential functions of their job you can't take pregnancy into -- factor. The other thing that there's a protection from -- you you can't require them. To remain out of work until they have the child so some employers missed a unique unit you don't need to become -- into work until after -- your child -- he can't do that any longer as long as. Person's able to do their job. And when you mention accommodation and this is something that's going up to the Supreme Court now. And they're gonna decided decision as to whether or not. Pregnancy can be determined to be temporary disability and -- where you would have to provide the same sort of accommodation. Pregnant women that you would to anybody else that comes to with a temporary disability so for instance somebody got into a car accident. And they you know they need accommodation in -- can't go up the stairs and need something. -- have to be provided this is -- the Supreme Court you have to provide the same protections. The pregnant women and I think that. My guess if I had to speculate out here is that you're gonna see these protections afforded to women and you're seeing more more of that not recommend any employers. That they that they have policies in place to protect. This has been an incredible -- Craig Watson were gonna get you back. I -- we scratched the surface and this is such as a lot of people's lives. Thank you so very much for being with this Craig Watson with the law firm blue Williams will be right that have loved this whole day but we're gonna turn it over to. The football game yes at 3 o'clock first take with our president pro -- saints offensive lineman Steve court and the -- -- Manassas live from the -- grill. At 5 o'clock you know it's the countdown.