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LEGAL TRENDS + INSIGHTS
LOCAL EXPERTS HELP READERS NAVIGATE LEGAL & REGULATORY ISSUES THAT IMPACT BUSINESS
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LEGAL TRENDS + INSIGHTS FOR BUSINESS
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EMPLOYERS MUST PROVIDE LEAVES OF ABSENCE FOR WORKERS WHO NEED MEDICALLY NECESSARY GENETIC TESTING OR CANCER SCREENINGS
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n the 2023 Regular Session, Louisiana lawmakers passed Act No. 210 (the Act), which provided protections for employees who are absent from work to obtain genetic testing or a medically necessary cancer screening. The Act became effective August 1, 2023. Louisiana law now provides that when “medically necessary … an employer shall grant an employee a day’s leave of absence from work to obtain genetic testing or preventive cancer screening.” La. R.S. 23:370(A). For an employee to avail himself of this provision, he must “provide the employer with at least 15 days notice and make a reasonable effort to schedule the leave so as not to unduly disrupt the operations of the employer.” The employee must also furnish documentation confirming the performance of genetic testing or cancer screening if requested by the employer. The Act also amended Louisiana law to provide a definition for “medically necessary” healthcare services. See La. R.S. 23:302(7). To be considered “medically necessary,” the services shall be reasonably necessary “to diagnose, correct, cure, alleviate, or prevent the worsening of a condition or conditions that endanger life, cause suffering or pain, or have resulted or will result in a handicap, physical deformity, or malfunction, and those for which no equally effective and less costly course of treatment is available or suitable for the recipient.” Additionally, Louisiana law now defines the term “preventive cancer screening” as “healthcare services necessary for the detection of cancer in an individual, including but not limited to magnetic resonance imaging, ultrasound, or some combination of tests.” La. R.S. 23:302(10). Though an employer is not required to provide paid time off to an employee receiving these services, the employee may substitute accrued vacation time or other appropriate paid leave under the Act. See La. R.S. § 23:370(B). The Act provides that employers post a notice prepared by the Louisiana Workforce Commission outlining this provision for its employees. La. R.S. 23:370(C). Louisiana employers should become familiar with these new provisions to ensure appropriate compliance and update their employee policies and procedures to reflect this recent legislative change. Butler Snow LLP represents private and public sector employers across Louisiana and throughout the United States in every aspect of the employment relationship. At the core of the firm’s employment practice is a philosophy that preventive advice and action are the most efficient means for resolving and preventing workplace disputes.
Keith Fernandez
ABOUT THE AUTHOR Keith Fernandez is a member of Butler Snow’s Commercial Litigation Group. He focuses his practice on appellate and written advocacy, data security and privacy, insurance, professional liability, intellectual property and technology, and class actions. He has been recognized by Best Lawyers in America® Ones to Watch for his appellate practice, insurance law and technology law work. Keith completed his undergraduate education at Louisiana State University and earned his Juris Doctor, DCL from Louisiana State University, Paul M. Hebert Law Center.
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445 North Blvd., Suite 300 • Baton Rouge, LA 70802 225.325.8700 • butlersnow.com
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WHO IS A ‘LEGAL’ PARENT ENTITLED TO CUSTODY UNDER LOUISIANA LAW WHEN THE SPOUSES ARE A SAME-SEX COUPLE?
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s of today, the law is unclear. There are a number of ways that a person can become a parent of a child in Louisiana. One can adopt a child, be father of the child, be mother of the child, or acknowledge the child formally to become the parent. Lastly, one can be presumed to be a parent by law. In the Myers v. Myers (Docket No. 232396) case in the 19th JDC, the court found that a in female-female marriage, the non-biological spouse was to be presumed to be a “legal parent.” In the Foret v. Serrano (Docket No. 195388) case in the 32nd JDC, the court found that in a male-male marriage, the non-biological spouse was not presumed to be a “legal parent.” Both cases were decided by analyzing Civil Code article 185, the only statute dealing with the legal presumption of a parent who is a non-biological or “legal” parent. La. C.C. art. 185 reads: “The husband of mother is presumed to be the father of a child born during the marriage . . .” The 19th JDC has ruled that the court can redefine the term “husband” to “spouse” to ensure that a same-sex female spouse has parental custody rights— while the 32nd JDC has ruled that the court cannot redefine the term “mother” to “spouse” eliminating a same-sex male spouse from asserting parental custody rights. The Baton Rouge Court favors marital relationships and expands the presumption of paternity to any spouse where a child is born during a marriage. The Terrebonne Court held that the presumption specifically addresses a biological situation, not a situation where it is biologically impossible for two people to have been the biological parents of a child. The legislature has failed to remedy custody disputes concerning children in same-sex marriages. The courts have now created conflicting rights to parental custody between same-sex male-male couples and same-sex female-female couples. Stay tuned as the presumption of paternity of a husband in Article 185 will ultimately be decided as to whether the putative parent is a biological issue regarding the paternity of a child, or a custody issue resulting from a contract of marriage. (Caveat: The Louisiana Family Law Firm represents the biological mother in the Myers case.)
(From left) Yazan Rantisi and Charles Blaize
ABOUT THE AUTHORS Charles Blaize is a founding and managing partner of Fondren Blaize in the Baton Rouge office, and primarily works on community property and constitutional issues for clients of the firm. Blaize also practices oil and gas title examination, complex property and rightof-way litigation, and commercial and residential real estate. Yazan “Yaz” Rantisi founded The Louisiana Family Law Firm in May 2019. Born and raised in the Greater New Orleans area, he has a passion for family and fairness, and making a difference in his clients’ lives. He handles divorce and child custody disputes, and has earned a reputation within the CASA organization and courtroom as someone who can help find solutions among even the most adversarial parties.
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10101 Siegen Lane, Bldg. 4-A • Baton Rouge, LA 70810 225.314.1180 • mfbfirm.com Daily-Report.com | BUSINESS REPORT, December 2023
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WHAT DO RECENT DOL OPINIONS ON FMLA MEAN FOR INTERMITTENT LEAVE AND HOLIDAYS?
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he Family Medical Leave Act (FMLA) allows an employee to take up to 12 weeks of unpaid and job-protected leave for qualifying family and medical reasons. The FMLA also requires employers to maintain health benefits while an employee is on FMLA leave and to restore the employee to the same or equivalent job upon return. The FMLA was enacted for well-intended reasons and has benefitted many employees. But complying with its complex regulations is often a difficult task for employees who may struggle with determining (1) how long intermittent leave can be used, and (2) the impact of a company approved holiday on FMLA leave. The U.S. Department of Labor (DOL), which administers and enforces the FMLA, recently issued opinion letters on both issues. In the first opinion letter, issued on February 9, 2023, the DOL was asked if an employee could use intermittent leave to indefinitely reduce his work day. The employee at issue was required to work 10-hour shifts each day; however, a chronic medial issue prohibited him from working more than eight hours per shift. The DOL concluded that the employee could use FMLA leave intermittently to work a reduced number of hours per day (or week). The DOL also noted that the intermittent leave could be used until it was exhausted. Thus, if the employee never exhausted his FMLA leave, the DOL concluded that he could work the reduced schedule indefinitely. In the second opinion letter, issued on May 30, 2023, the DOL was asked to clarify if and how holidays impact the calculation of FMLA leave. The DOL responded by clarifying its long-standing rule that holidays have no impact if the employee was on FMLA leave the entire week. Thus, for example, an employee who works Monday through Friday and takes leave for a week that includes the Fourth of July on Thursday would use one week of leave. However, when a holiday falls during a week that the employee took less than a full workweek of FMLA leave, the holiday is not counted as FMLA leave. In that instance, the leave used would be calculated by dividing the amount of FMLA leave taken (which would not include the holiday) by the total work week (which would include the holiday). The FMLA regulations are extremely technical and require nuanced analysis on the part of employers and managers. These recent opinion letters serve as important reminders that employers must stay updated on these evolving regulatory opinions, regardless of their complexity, to remain in compliance with the FMLA.
Courtney T. Joiner
ABOUT THE AUTHOR Based in Baton Rouge, Courtney T. Joiner is a labor and employment attorney, litigator, and former Assistant U.S. Attorney for the DOJ. With a particular focus on Louisiana education law, he has worked on numerous significant cases, including one which required the Louisiana Supreme Court to clarify the scope of the school immunity law.
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301 Main St., Suite 1400 • Baton Rouge, LA 70801 225.383.9000 • mcglinchey.com
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LEGAL TRENDS + INSIGHTS FOR BUSINESS
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WHAT TO LOOK FOR WHEN HIRING A LAWYER hen it comes to hiring the right attorney to handle your personal injury case, there are multiple vital points to consider.
1. EXPERIENCE SPECIALIZED IN THE FIELD
(From left) Frank Tomeny III and Riley Tomeny
Work with a lawyer who specializes in the legal practice area your case falls into and has a broad range of experience defending claims similar to yours. For example, if you are injured in a motor vehicle accident, select an attorney with an extensive background handling these cases in both negotiation as well as courtroom settings. Many cases can be settled without the need for the time and expense of trial, while others will proceed to the litigation stage.
2. SKILLED AT NEGOTIATIONS AND LITIGATIONS The lawyer you hire should have an established history of handling all phases of a personal injury claim and achieving successful results for clients. Ensuring you have competent, knowledgeable legal representation on your side will give you peace of mind. Your attorney should not only be an accomplished negotiator and litigator, but an excellent communicator who will keep you regularly informed with developments about your case.
3. CONTINGENCY-BASED PAYMENT When considering a lawyer, you should ensure that all billing and fee policies are clearly outlined and understood from the beginning. Most personal injury firms work on a contingency fee basis.
HISTORY OF SUCCESS Another element to consider when hiring an attorney is a firm’s track record. Your lawyer should not only be able to demonstrate a proven background of winning cases for clients in settlement negotiations or at trial, but also have the case reviews to back that up. Insurance companies are notorious for working every angle to avoid paying out claims to personal injury plaintiffs. Work with an attorney who has the expertise and experience required to cut through these tactics and present a clear, compelling case for the recovery of financial damages owed. Whether investigating sources of liability for your injuries, collecting evidence from law enforcement and other parties involved, speaking with witnesses, or compiling a settlement demand that reflects the full extent of your harm and damage, a skilled personal injury lawyer could manage all aspects of your claim.
ABOUT THE AUTHORS The lawyers at Tomeny | Best have over four decades of experience advocating for clients’ rights and interests. Since his admission to the Louisiana State Bar in 1987, Frank has worked and continues to work directly with the firm’s clients, giving each client the personal attention they deserve.Riley Tomeny, Frank’s daughter, is an associate attorney at Tomeny | Best. After completing her education at Southern Methodist University in 2017, she worked worldwide. Upon graduating from LSU Law School in 2021, Riley joined the Tomeny | Best team.
CALL OUR PERSONAL INJURY ATTORNEYS FOR ASSISTANCE WITH YOUR CASE If you have questions about filing a personal injury claim after suffering injuries in a serious accident, you should not hesitate to pursue your legal options as soon as possible. The attorneys at Tomeny | Best can evaluate your prospective case in a free, no-obligation evaluation. During your phone consultation, we could help you better understand your legal rights and explain what legal recourse may be available for your accident.
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9191 Siegen Lane, #7 • Baton Rouge, LA 70810 225.767.8333 • tomenybest.com LA-23-16075 Daily-Report.com | BUSINESS REPORT, December 2023
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THE LOOMING THREAT OF DIGITAL TAXATION IN LOUISIANA
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axing the digital economy is the latest, expanding frontier in state and local taxation. With digital goods and services making up an ever-larger share of the economy, the move to tax was inevitable; but what is considered taxable greatly impacts businesses’ bottom lines. The most infamous tax is Maryland’s first-of-its-kind Digital Advertising Gross Receipts Tax, widely understood to target the tech giants. But states have recently begun (more broadly) to tax digital goods and services that businesses consume every day, often casting a wide net for what qualifies. The Louisiana Department of Revenue was out front in this arena, issuing in 2010 Revenue Ruling 10-001 which purported to “examine the taxability of transactions involving the purchase or use of software, stored data, and other tangible personal property, located in-state and out-of-state.” The ruling addressed “whether Louisiana (sales/use) tax is due on the purchase or use of products, computer software and applications, or stored media and/or other materials electronically delivered into Louisiana …” Relying on an expansive reading of the Louisiana Supreme Court’s 1994 decision in South Central Bell Telephone Co. v. Barthelemy, the agency reasoned that digital materials—intangible lines of code—are taxable as “tangible personal property” because they must be accessed via tangible media (monitors, tablets, phones). It attempted to fit the square peg of digital goods and services into the round hole of “tangible personal property,” but importantly, without legislation expanding the definition. The Department suspended the ruling quickly, due largely to an outcry from the business and taxpayer representative communities. But the lay of the land has changed. Recent legislation in many states expands the definition of “tangible personal property” to include identified digital products and services. In Louisiana’s last legislative session, two bills (HB 257 and 423) sought to expand the definition, too, to include numerous digital goods and services, some defined narrowly but others broadly. The bills did not pass, but there is little doubt expanded taxation is on the horizon in the next fiscal session (2025). While the bills only applied to state taxes, there is little doubt local jurisdictions will seek expansion, too. The potential for taxing many of the digital goods and services businesses purchase to increase efficiency and growth, often at great expense, looms large; and taxes will soon make up a greater share of businesses’ expenses, even without a change in rates.
Managing Partner Jason Brown
ABOUT THE AUTHOR Jason Brown is Managing Partner of Advantous Law, LLC and heads the firm’s Tax Controversy, Appeals and Disputes practice. He has more than 20 years of experience representing business taxpayers of all sizes in tax planning and controversy matters, including complex litigation. His work extends to all taxes imposed and administered by the state of Louisiana and its local governments, including corporate income/franchise; sales/use; property; severance; and excise taxes. He has particular and significant experience in the thorny area of tax procedural law and is a frequent writer and presenter on state and local tax topics. LA-23-16040
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504 Spanish Town Road • Baton Rouge, LA 70802 225.246.2069 • advantouslaw.com
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THE CORPORATE TRANSPARENCY ACT ongress passed the Corporate Transparency Act in 2021 to combat the facilitation of illicit activities by malicious actors concealing their ownership of corporate entities in the United States.
SOUNDS GOOD, BUT WHAT DOES THAT HAVE TO DO WITH ME? Effective January 1, 2024, and subject to certain exceptions, existing and newly formed corporations, limited liability companies, and similar entities must file a report with the Financial Crimes Enforcement Network of the Department of the Treasury (FinCEN) identifying the beneficial ownership of the reporting company. Reporting entities formed after the effective date will need to include similar identifying information for their applicant.
AM I A BENEFICIAL OWNER OR AN APPLICANT? You are a “beneficial owner” of a reporting company if you exercise substantial control over the entity or own or control 25% or more of the ownership interests in the entity. An “applicant” is an individual who registers or files an application to form a reporting company under the laws of a state or American Indian tribe. If you file or otherwise form a reporting company on or after the effective date, your identifying information must be reported.
SO WHAT GOES IN THE REPORT? The report must provide the full legal name, any trade name or “doing business as” designation, the business street address, the state or American Indian tribal jurisdiction of formation, and an IRS TIN or other identifying number of the reporting company. It must also identify each beneficial owner and, if applicable, applicant, by full legal name, date of birth, current residential address for an individual or business address for an entity, and unique identifying number and image from an approved identification. Beneficial owners and applicants may also obtain a unique FinCEN identifier that may be submitted in lieu of the information listed above.
DO ALL REPORTING COMPANIES NEED TO ACT? It appears most small businesses will be required to comply with the Act, but there are specific exceptions including banks, investment companies and advisers, insurance companies, tax-exempt entities, large operating companies with more than 20 employees filing federal income tax returns evidencing more than $5,000,000 in gross receipts or sales, and subsidiaries of certain exempt entities.
Trevor Haynes
ABOUT THE AUTHOR Trevor Haynes practices in the area of business and finance with a focus on real estate, banking, and commercial transactions. His experience includes public finance transactions, publicprivate partnerships, and economic development incentives.
SO WHEN DO I HAVE TO ACT? Reporting companies existing prior to the effective date must submit an initial report no later than January 1, 2025. A reporting company created on or after the effective date must file its initial report within 30 days of the effective date of its creation or registration, although FinCEN has proposed an amendment to this rule to extend the filing deadline for certain entities.
WHAT SHOULD I DO IF I HAVE QUESTIONS? Reporting companies should be proactive to ensure they comply with the Act, either by determining they are exempt from the reporting requirements or ensuring the required reporting information is easily accessible and up to date. We strongly suggest reporting companies begin this exercise well in advance of the effective date and requisite reporting deadlines.
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400 Convention St., Suite 1100 • Baton Rouge, LA 70802 225.346.0285 • phelps.com
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