Employment Resources
Louisiana REALTORS • March 20, 2020
Patricia B. McMurray, JD and Melissa M. Grand, JD
Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
450 Laurel Street, Chase Tower North, 21st Floor
Baton Rouge, Louisiana 70801
Below are additional employment questions related to the COVID-19 (coronavirus) pandemic. Remember, the governmental response to the coronavirus is rapidly evolving. It is important to refer to the CDC’s website for up-to-date information about the coronavirus' current impact in the United States. Daily updates about the coronavirus are also available from the World Health Organization.
1. My agents are independent contractors. Are they eligible for unemployment benefits?
Short Answer: No, independent contractors are generally not eligible to receive unemployment benefits. See http://www.laworks.net/FAQs/FAQ_UI_ClaimantBenefits.asp#answer_1 and https://www.dol.gov/agencies/whd/flsa/misclassification.
Proper classification as either an independent contractor or an employee is very important. Louisiana Real Estate License Law specifically provides that a real estate salesperson or associate broker is considered an independent contractor of the broker with whom he is affiliated if all of the following conditions are met:
The real estate salesperson or associate broker is a licensee;
Substantially all of the real estate salesperson's or associate broker's remuneration for the services performed is directly related to sales or other output rather than the number of hours worked; and
There is a written agreement between the real estate salesperson or associate broker and the broker that specifies that the real estate salesperson or associate broker will not be treated as an employee. See La. R.S. 37:1446(H).
Improper classification of workers can cause businesses a number of legal problems. In addition to potential fines and penalties for violations of state and federal laws, improper classification can also expose businesses to private causes of action and costly litigation and IRS penalties. Also, the misclassified independent contractors who are later re-characterized as employees may have to be provided all of the same benefits as current employees.
The Louisiana Workforce Commission provides useful resources on this issue: http://www.laworks.net/PublicRelations/COVID_19_Information.asp.
2. Can an employer direct salaried, exempt employees to use vacation or paid time off (PTO) during office closures due to the coronavirus pandemic?
Short Answer: In general, yes. The U.S. Department of Labor offers guidance here: https://www.dol.gov/agencies/whd/flsa/pandemic.
The federal Fair Labor Standards Act (FLSA) does not require employer-provided vacation time. See https://www.dol.gov/agencies/whd/flsa/pandemic. Where an employer offers a bona fide benefits plan or vacation time to its employees, there is no prohibition on an employer requiring that such accrued leave or vacation time be taken on certain days, such as during an office closure. Id.
A U.S. Department of Labor Wage and Hour Division opinion letter regarding forced use of PTO for exempt employees during a plant shut down provides:
Since employers are not required under the FLSA to provide any vacation time to employees, there is no prohibition on an employer giving vacation time and later requiring that such vacation time be taken on a specific day(s). Therefore, a private employer may direct exempt staff to take vacation or debit their leave bank account […] whether for a full or partial day's absence, provided the employees receive in payment an amount equal to their guaranteed salary.
Therefore, a private employer may direct exempt staff to take vacation or debit their leave bank account in the case of an office closure, whether for a full or partial day, provided the employees receive in payment an amount equal to their guaranteed salary.[2] See https://www.dol.gov/agencies/whd/flsa/pandemic. In the same scenario, an exempt employee who has no accrued benefits in the leave bank account, or has limited accrued leave and the reduction would result in a negative balance in the leave bank account, still must receive the employee’s guaranteed salary for any absence(s) occasioned by the office closure in order to remain exempt. Id. For more information, see WHD Opinion Letter FLSA2005-41. See also https://www.nar.realtor/political-advocacy/coronavirus-emergency-legislation-what-realtors-need-to-know.
DISCLAIMER
Information and additional guidance and orders regarding the pandemic are being issued daily. The information is the article was last updated on March 20, 2020 at 4:00 p.m.
These materials are to be used for informational purposes and should not be construed as specific legal advice. These materials are not designed to cover every aspect of a legal situation for every factual circumstance that may arise regarding the subject matter included.
This publication is for reference purposes only and association members or other readers are responsible for contacting their own attorneys or other professional advisors for legal or contract advice. The comments provided herein solely represent the opinions of the authors and is not a guarantee of interpretation of the law or contracts by any court or by the Louisiana Real Estate Commission.
[1] Information and additional guidance and orders regarding the pandemic are being issued daily. The information is the article was last updated on March 20, 2020 at 4:00 p.m.
[2] Exempt, salaried employees generally must receive their full salary in any week in which they perform any work, subject to certain very limited exceptions. See https://www.dol.gov/agencies/whd/flsa/pandemic. Exempt salaried employees are not required to be paid their salary in weeks in which they perform no work. Id. Note that not paying exempt employees--because they are out for personal reasons or because they have no more PTO--must to be a full day. Generally, the employee’s salary cannot be docked on a partial day or daily basis. The salary can only be withheld if the employee does not perform any work for an entire workweek. See id.
CORONAVIRUS: EMPLOYMENT RESOURCES
FOR LOUISIANA REALTORS®
UPDATE AS OF MARCH 18, 2020
By:
Patricia B. McMurray, JD and Melissa M. Grand, JD
Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
450 Laurel Street, Chase Tower North, 21st Floor
Baton Rouge, Louisiana 70801
This article provides information on the novel coronavirus outbreak, COVID-19, and employment resources related to coronavirus's impact on the real estate industry. Since the coronavirus outbreak began in early December 2019, it has spread around the globe and has had an increasing effect on many aspects of the real estate business. The situation is rapidly evolving. Louisiana REALTORS® continues to monitor the outbreak. Refer to the Centers for Disease Control and Prevention’s (CDC) website, https://www.cdc.gov/coronavirus/2019-ncov/index.html, for up-to-date information on the coronavirus and its impact on the United States.
RESOURCES FOR EMPLOYERS
Numerous employment-related issues are arising due to the coronavirus. The Equal Employment Opportunity Commission (“EEOC”), the agency that enforces the Americans with Disabilities Act (“ADA”), has released a “What You Should Know” statement to assist employers on employment-related issues due to the coronavirus. Importantly, the EEOC states that the ADA rules continue to apply, but they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19. The EEOC statement may be found here: https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm
The EEOC statement directs employers to review the EEOC’s 2009 guidance, Pandemic Preparedness in the Workplace and The Americans with Disabilities Act, found here: https://www.eeoc.gov/facts/pandemic_flu.html#2. The EEOC guidance addresses questions which frequently arise in situations like the coronavirus pandemic, such as, does the ADA allow employers to require employees to stay home if they have symptoms of the pandemic coronavirus?
Also, the National Association of REALTORS® has compiled helpful resources, which may be found here: https://www.nar.realtor/coronavirus-a-guide-for-realtors
and https://www.nar.realtor/coronavirus-resources-and-guidance-for-employers.
DISPARATE TREATMENT ISSUES
The EEOC clearly stated: “DO NOT show prejudice to people of Asian descent, because of fear of this new virus. Do not assume that someone of Asian descent is more likely to have 2019-nCoV.” See https://www.cdc.gov/coronavirus/2019-ncov/downloads/what-you-should-do.pdf. Employers should establish consistently applied and clearly communicated practices regarding self-quarantining of employees. An employer may not base a decision to bar an employee from the workplace on the employee’s race or national origin. However, if an employee, regardless of their race or national origin, was recently in China and has symptoms of the COVID-19 coronavirus, you may have a legitimate reason to bar that employee from the workplace.
EMPLOYEE PAY ISSUES
The U.S. Department of Labor (“DOL”), Wage and Hour Division, provides information on common issues employers and employees face when responding to influenza, pandemics, or other public health emergencies, and their effects on wages and hours worked under the Fair Labor Standards Act (“FLSA”) and job-protected leave under the Family and Medical Leave Act (“FMLA”). See https://www.dol.gov/agencies/whd/pandemic.
On March 14, 2020, the House passed H.R. 6201 known as the Families First Coronavirus Response Act (the “Act”). On March 18, 2020, the Senate approved the legislation and sent it to President Trump for signature. The legislation provides paid leave, establishes free testing for the coronavirus, protects public health workers, and provides benefits to children and families. Employers should watch the Act closely because the provisions contained therein, including three key provisions relating to the workplace, would take effect immediately upon enactment. For further information and updated analysis of the legislation, see https://www.bakerdonelson.com/house-passes-coronavirus-bill-with-immediate-impact-on-employers?utm_source=vuture&utm_medium=email&utm_campaign=20200316%20-%20alert%20-%20l%26e
and https://www.bakerdonelson.com/coronavirus.
DISCLAIMER
This article was updated as of March 18, 2020 at 5 p.m. CST. The coronavirus situation is rapidly evolving, and the above resources should be checked frequently for updates.
These materials are to be used for informational purposes and should not be construed as specific legal advice. These materials are not designed to cover every aspect of a legal situation for every factual circumstance that may arise regarding the subject matter included.
This publication is for reference purposes only and association members or other readers are responsible for contacting their own attorneys or other professional advisors for legal or contract advice. The comments provided herein solely represent the opinions of the authors and is not a guarantee of interpretation of the law or contracts by any court or by the Louisiana Real Estate Commission.
Avoid costly fair housing violations with expert tips on compliant real estate advertising, from listing language to social media targeting strategies.
Week seven of the 2026 Regular Session was one of the most active weeks yet for legislation affecting the real estate industry. Louisiana REALTORS® remained heavily engaged as lawmakers advanced bills dealing with property disclosures, appraiser liability, rent regulation, insurance, blight, redevelopment and other issues that directly affect real estate professionals, property owners and consumers across the state. One of the most important bills this week was HB 1166 by Rep. Kim Carver , which would require disclosures for vacant residential property. The bill was reported from House Commerce with amendments on a 14-0 vote and then amended on the House floor, ordered engrossed, and passed to third reading. Louisiana REALTORS® testified on the bill in committee and worked closely with the author to better posture the legislation. Amendments advanced by our team were accepted by the author, helping improve the bill while preserving a practical disclosure framework that increases transparency without creating unnecessary confusion in the transaction process. Another closely watched issue this week was consumer-fee disclosure legislation. HB 617 by Rep. Mandie Landry moved this week, advancing from House Commerce and then the House floor, while HB 580 , another hidden-fee disclosure bill touching real estate transactions, remains pending. Louisiana REALTORS® is opposed to these measures in their current form to the extent they apply to real estate professionals because they are not well-tailored to the realities of real estate transactions, where many costs are negotiated, variable or controlled by third parties. Louisiana REALTORS® testified in opposition to the bills we oppose and is actively working with the author to better posture the legislation and remove real estate professionals from its scope altogether. On HB 472 by Rep. Alonzo Knox , the rent stabilization bill, the author is expected to try to bring the measure back before the committee next week with amendments. Even so, Louisiana REALTORS® remain opposed to the bill on principle. Price gouging is already illegal under existing law, and government-imposed rent regulation is not the right answer to housing affordability challenges. Louisiana REALTORS® testified in opposition to the bill and continues to oppose the measure because policies like this risk discouraging investment, reducing housing supply, and creating further market distortions rather than solving the underlying problem. HB 468 by Rep. Troy Hebert , which regulates the wholesale of residential real property, remains pending in the Senate Commerce Committee and continues to be an important bill for the industry. Likewise, HB 1027 by Rep. Troy Hebert , dealing with appraiser liability, had a strong week, passing the House 90-0 and moving to the Senate. Both measures are significant because they promote greater clarity, consumer protection and confidence in the real estate marketplace. Blight and redevelopment issues also remained active. HB 284 by Rep. John Wyble , which would allow certain local governments to expropriate blighted property through a declaration-of-taking process, remains subject to call and continues to raise serious concerns about private property rights. By contrast, HB 214 and HB 217 by Rep. Chance Henry , which create tax incentives for the rehabilitation of blighted property, represent a more constructive redevelopment approach by encouraging reinvestment rather than expanding government taking authority. Insurance legislation also remained a major focus this week, with multiple bills heard that could affect homeownership costs, market stability and post-storm recovery. Measures dealing with Louisiana Citizens assessments, pre-suit insurance claim review, the Fortified Homes Program and insurance market transparency all carry real implications for affordability and transaction viability. In Louisiana, insurance remains one of the most important issues affecting the real estate market, and Louisiana REALTORS® continues to closely track that legislation. Taken together, week seven showed that Louisiana REALTORS® remains actively engaged where it matters most: supporting practical transaction standards, protecting private property rights, testifying for and against legislation when necessary, pushing back on unworkable regulation and rent-control-style policies, and advancing policies that strengthen housing opportunity and market stability across Louisiana. Please view the weekly bill tracking report provided by our lobbying team over at Harris, DeVille and Associates.
NAR is pleased to share the latest consumer guide helping buyers navigate shifting interest rates. The one-page guide covers how lenders set rates, the impact of small shifts on monthly payments and strategies to get the lowest rate possible. As a reminder, all guides in this series are available for download—in both English and Spanish—on facts.realtor . Please allow up to two weeks for the Spanish version of the latest resource to be translated and uploaded. For ease of reference, below is a list of the most recent guides: NEW: Navigating Interest Rate Shifts Financing a Renovation When You Buy Staging Your House for a Sale Spotting Deepfake Scams in Real Estate Are You Ready to Invest in Real Estate? Thank you for your continued engagement with the “Consumer Guide” series and for sharing the resources with prospective clients to ensure they have the information they need to find success in their home buying or selling journey. Remember that these guides are for informational purposes only and are not meant to enact or change any existing NAR policy. Be on the lookout for the next consumer guide, which looks at how solar installations may impact home sales transactions.
