I. EMPLOYMENT ISSUES

A. Worker Classifications - Considered the #1 concern of small businesses by the White House Conference on Small Business. Misclassification of employees can result in additional taxes and penalties.

• Employee v. Independent Contractor
  • Federal Rules - multi-point classification test applied by the IRS & penalties imposed for misclassification. Recent federal reforms granting safe harbor for misclassification under certain circumstances.

  • Louisiana Rules - classification test applied by the state courts & recent Louisiana court rulings.

• Statutory Employer Rule - new definitions of independent contractor: are you a skilled craftsman or a manual laborer - professional or non-professional?

B. Hiring and Firing - Louisiana is an "at-will" state meaning that absent a contract, an employee can quit at any time and the employer can discharge an employee any time for any reason or no reason, so long as it's not an illegal reason.

• Mistakes Employers Make in Terminating Employees
  • Illegal Reasons for Termination- based on sex, race, age, religion, nationality, disability, pregnancy

  • Firing Without any Notice - unless there is a compelling reason, the employer could be exposed to lawsuits for wrongful discharge, humiliation, embarrassment or mental anguish

• Firings and Applicant Rejections - responsibility for acts of managers & need for adequate documentation and failure to give notice
  • Federal and State Discrimination Laws -
    • Americans with Disabilities Act

    • Family Medical Leave Act

    • Louisiana Anti-discrimination Laws

C. Employment Contracts - actual or implied, keeping that employee you've invested in & limiting competition

• Offer Letters - can be construed as an employment contract; use a disclaimer with a signed acknowledgment to avoid this conclusion

• Non Competition Agreements- a contract that states that an employee will not leave the business and compete with it for a certain period of time and within a certain geographical area

• Confidentiality Agreements - a contract that states that an employee will not use a company's secrets for their advantage or the advantage of a third party

D. Employees' Privacy on Computers, Telephones, and E-Mail - Employees have a right of privacy but it can be limited by a written policy

E. Employee/Employer Relationships - the importance of having written policies that all employees can refer to for a clear understanding of company rules

• Employment Manuals and Written Policies

F. Drug Testing - Louisiana permits implementation & enforcement of an Alcohol & Drug Policy that requires even suspicionless employees to undergo random testing in order to prevent and detect substance abuse.

• Privacy Rights of the Employee

• Must be in Writing

III. QUESTIONS AND ANSWERS

Your questions, whether simple or complex, are valid points of concern. If you need further advice or explanation, please feel free to call me at the office for an appointment.

VI. CONCLUSION

Remember the importance of "Preventive Law"