last update 12-10-02
Employment at Will
Louisiana is an "employment-at-will" state. Unless an employee has a
contract of employment for a specific length of time or is subject to a
collective bargaining agreement as a union member, the employee may be
discharged from employment at the will of the employer. That is, the
employee may be fired for any reason or for no reason at all.
On the other side, the employee may also quit at any time and for any
reason or for no reason. The "at-will" concept goes both ways and is
available for the employer and employee.
The basis for Louisiana's position is Civil Code Article 2747 which states
"A man is at liberty to dismiss a hired servant attached
to his person or family, without assigning any reason for
so doing. The servant is also free to depart without
assigning any cause."
The above article has been part of the Louisiana Civil Code since 1825 so
it is well entrenched into our law.
It has been ruled that any employment for an indefinite period is subject
to the above article. If, however, a person were to be hired for a definit
time period, such as by the fyar, then he may not be terminable at will.
Exceptions to the "at-will" Provisions
Although the general rule is that an employer can fire an employee any
time and for any or no reason, there are some exceptions to that rule.
The exceptions relate to specific statutes that provide protection in
certain areas. State and Federal laws prohibit any adverse employment
action -- including discharge, lack of promotion and unequal pay --
based on discrimination because of the employee's race, color, sex, age,
national origin, religion or disability.
There are several other exceptions to the at-will doctrine. An employer
may not retaliate against an employee:
for exercising statutory rights by complaining about discrimination;
For filing a workman's compensation claim;
For union activities;
For complaining about environmental violations;
For making an OSHA complain; or
for whistle-blowing activities.
If you feel that you have been discriminated against in your employment
based on race, sex, national origin, age, religion or disability, you
should first follow the internal grivance procedure, if one exists for
your employer. If not, then a complaint will need to be filed with the
Equal Employment Opportunity Commission (EEOC).
Need for a Lawyer
Before making any filings, I strongly suggest that you
coordinate the filing and the claims to be made with an attorney so that
it will be set out properly. Many employees believe that they can handle
the filing with the EEOC and some even try to file their own litigation.
However, I have found that every such situation that I have reviewed, there
were basic mistakes made from the very beginning that could have been
prevented if an attorney had been retained in the early stages. If you
don't have legal counsel, it is like going into a boxing match with one
arm tied behind your back.
One of the errors that I have seen recently from people trying to handle
the case on their own included not reporting all of the claims in the
initial EEOC charge and, thus, having to limit a future suit to only those
claims. Whatever charges are in that EEOC charge are the only charges that
you can later allege when you file suit.
Another error is not understanding that the defendant employer needs to be
served with a copy of the suit and not understanding who is to be served.
Many employees don't get their suit filed within the 90 day time period (see
discussion below). If too much time elapses, the rights to the claim will
Time Limits for Filing EEOC Charges
If you have a valid claim that falls under any of the Federal discrimination
categories, you MUST file your charge with the EEOC within 180 days (not
six months) from the date of the alleged discrimination. If you later bring
suit, you will be limited to only those items of discrimination that were
reported in your charge or that were a direct part of the charge.
As the EEOC investigates your charge, they will send a copy of the charge to
the employer and get his response to the items. Thereafter, the EEOC could
(1) file suit on your behalf, (2) dismiss the charge or (3) not make a
determination on your charge. If they do not file suit on the matter, and the
odds are that they will not, then they will send you a letter giving you
90 days in which to file suit in Federal Court. If you do not file suit
within that time period, you have forever lost your chance to do so. As to
the 90 day time period, it is actually 90 days from the date that you receive
the letter from the EEOC. Thus, you need to make a note of the date you
received that letter so you can file suit timely.
For suits under the Louisiana discrimination law, the time period is one
year and there is not a requirmment for filing a charge with the EEOC. That
requirement is only applicable if you file a claim under the Federal laws
and if you want to file the suit in a Federal court.
Proving Your Case
Once you get your claim into court, you must be able to prove your allegations.
You cannot simply say that your employer discriminated against you and expect
to win. Although you can obtain company documents after the suit is filed,
I think it is imperative that you can document the majority of your claim
even before filing a charge with the EEOC. Proof will normally consists of
documents, your testimony and the testimony of co-workers, statements made
by management and related items. If the discrimination occurred because one
management person told you something, you still have the burden of proving that
statement with some type of outside proof, either a document or testimony of
another person. Otherwise, it is only a "you said-he said" argument and there
is no way to prove what was really said.
As you can see from the above paragraph, winning a case is going to be the
result of good documentation of your position. If you believe you have a
case developing, the first thing you should do is to begin documenting any
facts or situations that will be important in your case. To know what is
really important or not important, you should retain legal counsel early in
the process to get help on setting up the case and documenting the facts
early in the matter.
======================== WARNING =======================
This information is provided for the reader's benefit in
becoming familiar with the legal matters discussed. Your
particular facts may be different from the points above.
You should not rely on the above data without consulting a
attorney to discuss the specific facts of your case
and the law of your state.
If you live in Louisiana and want to talk about your situation, please
call me at:
Marvin E. Owen
3036 Brakley Drive
Baton Rouge, La 70816
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