September 12, 2018
Author: Greg Guidry
Organization: OneBane Law Firm
PREGNANCY DISCRIMINATION ACT
The Pregnancy Discrimination Act amended Title VII of the Civil Rights Act of 1964. Discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination under Title VII, which covers employers with 15 or more employees, including state and local governments. Title VII also applies to employment agencies and to labor organizations, as well as to the federal government. Women who are pregnant or affected by pregnancy-related conditions must be treated in the same manner as other applicants or employees with similar abilities or limitations. An employer cannot refuse to hire a pregnant woman because of her pregnancy, because of a pregnancy-related condition, or because of the prejudices of co-workers, clients, or customers.
A. Leave Issues:
1. An employer may not single out pregnancy-related conditions for special procedures to determine an employee's ability to work. However, if an employer requires its employees to submit a doctor's statement concerning their inability to work before granting leave or paying sick benefits, the employer may require employees affected by pregnancy-related conditions to submit such statements.
2. If an employee is temporarily unable to perform her job because of her pregnancy, the employer must treat her the same as any other temporarily disabled employee. For example, if the employer allows temporarily disabled employees to modify tasks, perform alternative assignments, or take disability leave or leave without pay, the employer also must allow an employee who is temporarily disabled because of pregnancy to do the same.
3. Pregnant employees must be permitted to work as long as they are able to perform their jobs. If an employee has been absent from work as a result of a pregnancy-related condition and recovers, her employer may not require her to remain on leave until the baby's birth. An employer also may not have a rule that prohibits an employee from returning to work for a predetermined length of time after childbirth.
4. Employers must hold open a job for a pregnancy-related absence the same length of time jobs are held open for employees on sick or disability leave.
LOUISIANA WORKMEN'S COMPENSATION ACT
A. Introduction: Worker’s Compensation was enacted as a trade off. Employees have given up their rights to a recovery in tort in return for the assurance of compensation payments. Compensation bears no relation to the normal theories of recovery for injury. The questions of fault and responsibility are irrelevant. In simple terms, workman's compensation is a form of social insurance enacted for the benefit of employees and their dependents to be paid for by employers.
1. Coverage of Employers and Employees: Basically speaking, the Act covers all persons working for wages in the State of Louisiana, as well as Louisiana residents hired to do work outside of the state. Any person working for wages is presumed to be an employee under the Act. The Act also covers claims by workers outside of the state where their work is principally located inside the state or the contract of hire was made in Louisiana. R.S. 23:1035.1
B. Who is an Employee: Begin with the presumption that any person providing services for wages is presumed to be an employee. R.S. 23:1044.
1. Independent Contractors: There is an exclusion from coverage under the act for independent contractors who are supposed to have their own coverage. The Act defines such a person in Section 1021 (6) as one who renders services other than manual labor for a specified recompense for a specified result under the control of a principal as to the results of the work only and not the means. In order to use the independent contractor exclusion, the employer must also show the worker was not engaged in the employer's trade, business, and/or occupation. The independent contractor exception is seldom successfully used. Examples include: Persons doing domestic chores or yard work; Sitters hired to assist with the ill. Note, in most cases where independent contractors are found, the court also finds work is not incidental to the alleged employer's business.
2. Seamen or members of crews of vessels are excluded from coverage, but persons other than those injured over navigable waters can be covered. Beverly v. Action Marine, 433 So.2d 139 (La. 1983). No compensation is due to anyone covered by FELA, LHWCA, or the Jones Act.
3. Also excluded from the Act are real estate salespersons, and pilots of crop dusters.