Business Report's 2020 Legal Trends + Insights for Business

S P E C I A L A DV E R T I S I N G S E CT I O N

YOUR GUIDE TO NAVIGATING LEGAL + REGULATORY ISSUES IMPACTING BUSINESS Dale R. Baringer Baringer Law Firm Josh McDiarmid Butler Snow Linda Liljedahl Dispute Resolution Institute of Louisiana Nadia de la Houssaye Jones Walker Karleen Green Phelps Dunbar

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CHANGE IS ON THE WAY FOR EMPLOYMENT LAW

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AND NOT JUST BECAUSE OF COVID-19

he COVID-19 crisis brought some things to a standstill, but it didn’t stop big developments in employment law. Employers must now navigate remote working, virus-related accommodation requests, expanded paid leave, and relaxed rules for some benefits. On top of these changes, courts and government officials are making other decisions with far-reaching effects for employers.

PATERNITY LEAVE: As more fathers want time off to bond with their children, employers are including them in parental leave policies. In fact, businesses offering parental leave only to mothers could be at risk for discrimination claims. Maternity or pregnancy-related medical leave can be tailored to mothers, but employers granting leave to bond with a child should provide it regardless of gender.

LGBT PROTECTIONS: The Supreme Court ruled in June that employers cannot discriminate against employees based on sexual orientation, gender identity or gender expression. Employers should evaluate their workplace to determine if changes are needed to enforce these protections. This could include updates to harassment or discrimination policies, diversity and inclusion training, and dress codes, as well as to logistics of facilities like locker rooms and restrooms. Every workforce will have unique needs to recognize the rights of those in protected categories while balancing employee expectations.

WORKER CLASSIFICATION: As more people work for ride-sharing services and other gig economy businesses, courts are looking at whether these workers are employees or independent contractors. Most are considered independent contractors, which gives them less legal protection and, in some cases, fewer benefits than employees. Government agencies and courts reach different conclusions on this issue, largely based on the facts and circumstances. To minimize potential liability, employers should regularly evaluate each worker’s classification to make sure it is consistent with the working relationship.

PAY EQUITY: Recent widespread attention has focused state and federal agencies on the wage gap between men and women. To stay above scrutiny, employers should reevaluate salary practices and identify differences in pay for employees performing the same jobs. There are reasons employees doing the same job could be paid differently, like tenure, job experience or credentials. But if gender is a factor and employers cannot provide a legitimate reason for the disparity, they could be at risk for liability.

MARIJUANA USE: Marijuana will become an increasingly complicated hurdle for employers as states relax rules on its use. Since it is still a controlled substance under federal law, employers must often decipher two conflicting sets of rules. And employers with operations in multiple states may have to contend with competing state laws. To keep up with these ever-changing restrictions, employers should prepare to adjust drug testing policies, some credentialing requirements and employee protections as needed.

The COVID-19 pandemic changed the way we work, but the workplace was already changing. Just like employers adapted to the pandemic, they should be ready to make changes to protect themselves and their workers as the employment landscape evolves.

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Karleen Green

ABOUT THE AUTHOR Karleen Green is a partner at Phelps Dunbar. Her blended labor and employment practice concentrates on employee benefits and employment matters for both public and private employers, including compliance with federal and state employment laws as well as ERISA, HIPAA, the Patient Protection and Affordable Care Act and COBRA. She represents clients in various industries, including construction, health care, public utilities, package and freight delivery, financial services, fueling, gaming, industrial equipment, insurance, real estate, food service, education, and state and local government.

She regularly drafts and reviews employment policies and conducts training sessions on employment laws.

400 Convention St., Ste. 1100 • Baton Rouge, LA 70802 225.346.0285 • phelps.com

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DO IT YOURSELF LAWYERS BEWARE WHEN FORMING YOUR LLC

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he age of the internet has resulted in a proliferation of “Do It Yourself Lawyers.” In the formation of business entities, the Louisiana Secretary of State (“LA SOS”) has made it easy for anyone to use the LA SOS website to form their own limited liability company without a lawyer’s

assistance.

An electronic form with fillable blanks is provided on the website. All one need do is fill in the blanks with the only two things required by law to be included in the articles of organization as a prerequisite to formation of an LLC—those being the name and the purpose of the entity. A third set of blanks is provided for “Other Provisions.”

The LLC Law provides “default rules” which govern all LLCs formed in Louisiana unless the members provide otherwise in the articles or in an operating agreement. Some of these default rules may be modified by an oral operating agreement of the members, while others can be modified only in a written operating agreement, or in the articles of organization.

Assume a typical two member LLC in which the members (A & B) enter a “handshake agreement” that Member A will put up all the necessary capital and have 80% voting control with an 80% share of the profits and losses, while Member B puts up no cash capital and receives in return for services to be performed for the LLC, a membership interest having 20% of the voting rights and a 20% share of the profits and losses.

They form their own LLC without counsel, using the LA SOS website, fill in nothing in the “Other Provisions” blank and rely on their “handshake deal” for the details of their arrangement.

Member A will be rudely disappointed when he learns years after formation of the LLC, often only after he and Member B have fallen out with one another, that because they did not agree to their 80/20 arrangement in either a written operating agreement or provide for the same in their articles of organization, they each, as a matter of law, share equally in all voting rights and sharing of profits and losses.

In the absence of a written operating agreement or written articles of organization providing otherwise, voting rights, and sharing in profits, losses and distributions is strictly by heads; i.e. two members—50/50, three members—1/3 each, etc.

Moreover, Member A will be even more appalled to learn that he cannot require Member B to provide the services promised under the “handshake deal” because a commitment to contribute capital (which can include services to be rendered) must be in writing to be enforceable.

The Baringer Law Firm sees several clients per month who find themselves in Member A’s position or some variation thereof. Litigation of such disputes can be very expensive, with legal fees in the tens if not hundreds of thousands of dollars. So, before you decide to be a “Do It Youself Lawyer” in forming your LLC, remember the Fram Oil Filter commercials: “You can pay me now, or you can pay me later.”

Dale R. Baringer

ABOUT THE AUTHOR Dale R. Baringer has more than 39 years of experience in the practice of law in the fields of tax law (planning, business transactions, dispute resolution and tax litigation), securities law, bankruptcy law, corporate law, business organizations, commercial and business litigation, mergers and acquisitions, construction law, life, accident and health insurance law, ERISA litigation, employment law and real estate law. He is certified as a specialist in the field of tax law by the Louisiana State Bar Association’s Board of Legal Specialization.

The Baringer Law Firm 201 Saint Charles St. • Baton Rouge, LA 70802 225.383-9953 • baringerlawfirm.com

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Unfortuitous, fortuitous events Unfortuitous, fortuitous events FORCE MAJEURE IN LOUISIANA FORCE MAJEURE IN LOUISIANA

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n December 31, 2019, packed into a restaurant and enjoying dinner and drinks with friends, I pondered the good things that may come to pass in 2020. However, I, like manyinto others, soon discovered that this year, n December 31, 2019, packed a restaurant and enjoying dinner and less than three-quarters finished, would contain far less good than bad. drinks with friends, I pondered the good things that may come to pass Indeed, theinhavoc wrought byI,this be quantified by the force 2020. However, like year manycan others, soon discovered that majeure this year, events: acts ofless God, pandemics, and national unrest. than three-quarters finished, would contain far less good than bad.

Now approaching Q4, a refresher thecan interpretation force maIndeed, the havoc wrought by thison year be quantifiedofbycontractual the force majeure jeure provisions and the scheme for addressing “fortuitous events” in the Louisiana events: acts of God, pandemics, and national unrest.

CivilNow Code may be helpful businesson owners—particularly approaching Q4, atorefresher the interpretation ofconsidering contractualHurricane force maLaura and a possible “second wave” of COVID-19. jeure provisions and the scheme for addressing “fortuitous events” in the Louisiana force majeure provisions excuse a party’s nonperformance when an CivilContractual Code may be helpful to business owners—particularly considering Hurricane “act of God” or other extraordinary event prevents a party from fulfilling its contracLaura and a possible “second wave” of COVID-19. tualContractual obligations. force majeure provisions excuse a party’s nonperformance when an As matter course, force majeure provisions enforced Louisiana courts, “act of aGod” or of other extraordinary event prevents are a party from by fulfilling its contracwhich examine several elements: (1) whether the event qualifies as a force majeure tual obligations. under the contract; (2) whether the risk provisions of nonperformance wasby foreseeable able As a matter of course, force majeure are enforced Louisianaand courts, to be mitigated; and (3)elements: (1) whether performance is impossible. Louisiana courts have which examine several whether the event qualifies as a force majeure previously deemed hurricanes to be acts of God, particularly in those areas adversely under the contract; (2) whether the risk of nonperformance was foreseeable and able impacted. Courts in (3) other jurisdictions have found that COVID-19 maycourts constitute to be mitigated; and whether performance is impossible. Louisiana have an event of force majeure. However, it may be more difficult to argue that previously deemed hurricanes to be acts of God, particularly in those areasa possible adversely “second wave” of COVID-19 constituteshave an event force majeure, may as such a circumimpacted. Courts in other jurisdictions foundofthat COVID-19 constitute stance may be foreseeable. an event of force majeure. However, it may be more difficult to argue that a possible If a contract not contain a force an majeure or that as provision is not “second wave” ofdoes COVID-19 constitutes event provision, of force majeure, such a circumimplicated by the facts, the Louisiana Civil Code may afford relief to a party. Under stance may be foreseeable.

Articles 1873 to 1879, buyer or seller is not liable provision, for a breach by a “fortuitous If a contract does anot contain a force majeure orcaused that provision is not event.” Louisiana courts have discussed fortuitous events as an “irresistible force” or implicated by the facts, the Louisiana Civil Code may afford relief to a party. Under “that which a cause cannot Investments, Inc. v.

Articles 1873happens to 1879, by a buyer or which seller iswenot liable resist.” Mark for a breach caused by a “fortuitous Motwane’s Am., Inc., 482 So. 2d 1187, 1189 (La. App. 4 Cir. 1986). event.” Louisiana courts have discussed fortuitous events as an “irresistible force” or For any event thatbymay be deemed an event ofresist.” Mark force majeureInvestments, or a fortuitous “that which happens a cause which we cannot Inc.event, v. we recommend the following proactive steps to mitigate your risk or maximize your Motwane’s Am., Inc., 482 So. 2d 1187, 1189 (La. App. 4 Cir. 1986). rights, formay interruption to an your operations, those or of your suppliers: Forand anyprepare event that be deemed event of force or majeure a fortuitous event, F Assess what contractual force majeure rights, remedies, and requirements may we recommend the following proactive steps to mitigate your risk or maximize your apply; and prepare for interruption to your operations, or those of your suppliers: rights, F the notice and response requirements in your commercial contracts; F Review Assess what contractual force majeure rights, remedies, and requirements may F Secure alternate supply streams in the event a supplier’s operations are imapply; pacted; and the notice and response requirements in your commercial contracts; F Review F Retain as much information as possible about any potential force majeure claim.

F Secure alternate supply streams in the event a supplier’s operations are imFinally, pacted; andeven if your business declares force majeure, any attempt to mitigate your riskFwill be material whether a Louisiana thatforce you took reasonRetain as muchtoinformation as possiblecourt aboutdetermines any potential majeure claim. ableFinally, steps toeven continue your contractual obligations and whether performance was if your business declares force majeure, any attempt to mitigate your impossible. risk will be material to whether a Louisiana court determines that you took reason-

445 North Boulevard, Ste. 300 • Baton Rouge, LA 70802 225.325-8700 • butlersnow.com

able steps to continue your contractual obligations and whether performance was impossible.

445 North Boulevard, Ste. 300 • Baton Rouge, LA 70802 225.325-8700 • butlersnow.com

Josh McDiarmid Josh McDiarmid ABOUT THE AUTHOR Josh McDiarmid is a member of Butler Snow’s CommercialABOUT LitigationTHE Group,AUTHOR where he concentrates his practice in the areas of general and commercial Josh McDiarmid is a member of Butler Snow’s civil litigation. He also advises clients in the oil and gas Commercial Litigation Group, where he concentrates industry in all phases of exploration and production, his practice in the areas of general and commercial including land and title issues, and operational and civil litigation. He also advises clients in the oil and gas regulatory issues. Josh was recognized for his work in the industry in all phases of exploration and production, inaugural Best Lawyers in America® 2021 Ones to Watch including land and title issues, and operational and for Commercial Litigation, Litigation – Construction and regulatory issues. Josh was recognized for his work in the Oil and Gas Law. He is licensed in Louisiana and Texas. inaugural Best Lawyers in America® 2021 Ones to Watch for Commercial Litigation, Litigation – Construction and Oil and Gas Law. He is licensed in Louisiana and Texas.

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TELEHEALTH FROM CRISIS RESPONSE TO CORNERSTONE OF HEALTHCARE

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s the COVID-19 crisis in the United States passed the six-month mark several weeks ago, we also have reached an important juncture for telehealth. Telehealth technology and processes have clearly demonstrated their value in the fight against the novel coronavirus and in helping healthcare professionals provide care in areas of medicine affected by—but not directly related to—the transmission and treatment of COVID-19.

But an important question remains: Have we firmly established the role of telehealth as an ongoing, effective tool in the delivery of healthcare services, particularly in the face of physician shortages and issues facing rural, underserved, and otherwise hard-to-reach populations?

My response is a strong but qualified yes. While it has helped combat new COVID-19 infections and has provided essential care to communities, families, and individuals, telehealth in the future will be on its strongest footing when advocates and users recognize that one-size-fits-all solutions are better described as “one size fits none.” In other words, as hospitals, health systems, clinics, and other providers apply the lessons learned during the COVID-19 pandemic to their own long-term objectives—including quality of care and cost-effectiveness—telehealth will cement its position as a cornerstone of healthcare delivery.

Since the emergence of COVID-19, the U.S. Centers for Medicare & Medicaid Services (CMS) has engaged in an unprecedented effort to utilize telehealth as one of the primary weapons against the disease. Among numerous other steps, CMS waived the originating site requirement, expanded the list of telehealth codes for which providers can be reimbursed, and equalized payment rates between inperson (facility) and telehealth visits. The Federal Trade Commission, the Drug Enforcement Administration, the Food and Drug Administration, and numerous other federal and state agencies have also issued guidance, announced programs, and procured funding to better support the use of telehealth.

As we look to the day when COVID-19 is less of a threat, providers can take several steps to help make the most effective use of telehealth in the long run: • Apply the same standard of care to telehealth visits as to in-person visits.

• Practice good medicine: Know when telehealth is appropriate and when it is not.

• Share information, data, and best practices at the industry level (as is happening now in the development of COVID-19 vaccines).

• Develop strategies to promote patient buy-in and engagement in telehealth and personal health management.

• Integrate artificial intelligence and other technologies to improve diagnostics and treatment.

• Work with state and federal regulators to resolve licensure, corporate practice of medicine, and other regulatory issues for the long term, not just during the COVID-19 crisis.

If we have learned anything from the COVID-19 crisis, it is that cooperation in the face of a challenge can lead to positive results. When it comes to telehealth, this same spirit of collaboration can help us take advantage of new opportunities.

Nadia de la Houssaye

ABOUT THE AUTHOR Nadia de la Houssaye is co-leader of the healthcare litigation team and heads the Healthcare Industry Team’s telemedicine practice at Jones Walker LLP. She is also a partner in the firm’s Lafayette office. Nadia works with hospitals, health systems, providers and startup companies to structure and integrate telehealth and digital health platforms. With more than 25 years of health law experience and a broad-based litigation and regulatory practice, Nadia advises on telemedicine service lines, multistate and international licensure and telemedicine arrangements, and scope of practice issues. Nadia counsels the largest health system in Louisiana on telemedicine matters and represents it in litigation.

445 North Boulevard, Ste. 800, Baton Rouge, LA 70802 225.248.2000 • joneswalker.com

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JUVENILE MEDIATION JUVENILE MEDIATION IT’S NOT JUST FOR KIDS IT’S NOT JUST FOR KIDS

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ediation is one of the best-known and most used techniques of the whole arena known as Alternative Dispute Resolution (ADR) Practices. it has to be usedand to its fullest and ediation isStill, one of the yet best-known most usedadvantage techniques of in all the areas of law in Louisiana as it has been and continues to be the whole arena known as Alternative Dispute Resolution (ADR) throughout the Practices. world. Still, it has yet to be used to its fullest advantage and in Almost all judges attorneys that the usetoofbe all theand areas of law inknow Louisiana as itcontinual has beenexperienced and continues mediation most civil cases will not only cut down on the growing expenses and throughoutinthe world. unnecessary costs of trials; but that know mediation alsocontinual usually ends with the dispuAlmost all judges and attorneys that the experienced use of tants resolving the lawsuit with a much more favorable attitude.

This means mediation in most civil cases will not only cut down on the growing expensesthat and all parties endcosts up feeling that all “won” at leastends camewith out the “even,” which unnecessary of trials; butthey thathave mediation alsoorusually dispurarely happens when a casewith goesato trial.more favorable attitude. This means that tants resolving the lawsuit much The loss of this better resolution is particularly as meall parties end up feeling that they have all “won” orunfortunate at least cameinasmuch out “even,” which diation can be used to keep cases out of court in all areas of law.

We are not only rarely happens when a case goes to trial. referring to civil (L.R.S.9:4101, et seq.)isand family (L.R.S. 9:331.2,inasmuch et seq.) mediaThe loss of this better resolution particularly unfortunate as metions, but now to juvenile (Child Advocacy) mediations (LA Children’s Code Art. diation can be used to keep cases out of court in all areas of law. We are not only 435, et seq.). referring to civil (L.R.S.9:4101, et seq.) and family (L.R.S. 9:331.2, et seq.) mediaJuvenile mediation was(Child introduced to Louisiana in 1997, to beCode used printions, but now to juvenile Advocacy) mediations (LAmeant Children’s Art. cipally in Orleans and Jefferson Parishes due to the high influx of children in need 435, et seq.). of care and the beginning young delinquency cases would eventuJuvenile mediation wasofintroduced to Louisiana in that 1997,seemed meant to be used prinally overwhelm those court system.

For one reason or another, while working very cipally in Orleans and Jefferson Parishes due to the high influx of children in need well when juvenile mediation did not take off as expected. of care andused, the beginning of young delinquency cases that seemed would eventuI have been one of the only two to three certified in very ally overwhelm those court system. For one reason orjuvenile another,mediators while working Louisiana thejuvenile past 17 years.

My mediation training business, Dispute Resolution well whenfor used, mediation did not take off as expected.

Institute of Louisiana Ltd., had partnered with Mondello Mediation LLCin(Lisa R. I have been one of the only two to three certified juvenile mediators Mondello) in New Orleans in the Louisiana for the past 17 years.

Mypast. mediation training business, Dispute Resolution Together, we discussed how society had changed, particularly in the of R. Institute of Louisiana Ltd., had partnered with Mondello Mediation LLCarea (Lisa juvenile lawinand mediation.

Lisa I decided that there was a need for more Mondello) New Orleans in theand past. trained certified juvenile mediators in Together, we discussed how societyLouisiana. had changed, particularly in the area of In March 2020, I sponsored the first certified course myahome office in juvenile law and mediation. Lisa and I decided that thereatwas need for more Baton Rouge.

Unfortunately, that class was physically shut down due to Covid-19, trained certified juvenile mediators in Louisiana. but In I managed to keep it runningthe byfirst going on-linecourse live every dayhome and training March 2020, I sponsored certified at my office in as closely as if live in my usual seminars.

Baton Rouge. Unfortunately, that class was physically shut down due to Covid-19, to its approval my students andon-line the LSBA I will but Due I managed to keep itbyrunning by going liveMCLE-certification, every day and training as be offering the same juvenile (Child Advocacy) mediation training seminars for the closely as if live in my usual seminars. upcoming Due to 2020-2021 its approvalterms. by my students and the LSBA MCLE-certification, I will be Additionally, and I(Child will jointly give the original mediators’ trainingfor forthe the offering the sameLisa juvenile Advocacy) mediation training seminars civil and family mediation skills in both Baton Rouge and New Orleans locations. upcoming 2020-2021 terms.

Of course, my firm has mediators for allgive mediations, too.mediators’ If you have any questions Additionally, Lisa and I will jointly the original training for the about mediation, mediators and/or ADR training, please feel free to call my office. civil and family mediation skills in both Baton Rouge and New Orleans locations.

I look forward to hearing from you.

Of course, my firm has mediators for all mediations, too. If you have any questions about mediation, mediators and/or ADR training, please feel free to call my office.

I look forward to hearing from you.

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Linda Liljedahl Linda Liljedahl ABOUT THE AUTHOR Linda Liljedahl has practiced law for 40 years. Her mediation ABOUT THE AUTHOR and ADR practice began officially in 1991, with training from U.S. Arbitration & Mediation. Ms. Liljedahl is a well-recognized Linda Liljedahl has practiced law for 40 years. Her mediation experienced mediator of all forms of civil, family/divorce and and ADR practice began officially in 1991, with training from juvenile disputes. She is a member of U.S.D.C.-M.D. Panel for U.S. Arbitration & Mediation. Ms. Liljedahl is a well-recognized ADR Neutrals and a Louisiana State Bar Association M.C.L.E.experienced mediator of all forms of civil, family/divorce and approved Provider and Instructor of Mediation, Arbitration and juvenile disputes. She is a member of U.S.D.C.-M.D. Panel for ADR training seminars. Ms. Liljedahl has led the training in all ADR Neutrals and a Louisiana State Bar Association M.C.L.E.forms of mediation and ADR, presenting several highly acclaimed, approved Provider and Instructor of Mediation, Arbitration and exclusive and lively seminars a year. She has been recognized ADR training seminars. Ms. Liljedahl has led the training in all with the First International Peace Prize from the United Cultural forms of mediation and ADR, presenting several highly acclaimed, Convention in 2010, and was named Woman of the Year 2009-10 exclusive and lively seminars a year. She has been recognized

by UCC/ABI/PPP Productions, among many other honors. Ms. with the First International Peace Prize from the United Cultural Liljedahl has also appeared as an expert in her field in multiple Convention in 2010, and was named Woman of the Year 2009-10 media outlets in Louisiana and across the nation.

by UCC/ABI/PPP Productions, among many other honors. Ms. Liljedahl has also appeared as an expert in her field in multiple media outlets in Louisiana and of across the nation.

Dispute Resolution Institute Louisiana Ltd.

5222 Blair Lane • Baton Rouge, LA 70809 225.454.6448 • msmediator.com Dispute Resolution Institute of Louisiana Ltd. 5222 Blair Lane • Baton Rouge, LA 70809 225.454.6448 • msmediator.com

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