LEGAL CORNER: Can my ex stop me from moving with my child?

VIDEO: LEGAL CORNER - Can my ex stop me from moving with my child?

QUESTION: Can an employer legally force an employee to go from hourly pay (once a week) to salary pay (once a month) in order to avoid paying the employee overtime?

ANSWER: Having researched both the Louisiana Department of Labor website, as well as the U.S. Department of Labor website, there is an abundance of information available online regarding employee wages, including overtime pay. The steadfast rule is that any time worked in addition to 40 hours will be compensated at 1.5 times the normal wage, or more commonly known as “time and a half” for “non-exempt” employees. Exempt employees on the other hand are salaried and are not entitled to over time. Examples of exempt employees are The Fair Labor Standards Act (FLSA) recognizes three main categories of exempt workers:

Executive

For the executive exemption, employees must have a primary duty of managing the enterprise or a department or subdivision of the enterprise; must customarily and regularly direct the work of at least two employees; and must have the authority to hire or fire, or their suggestions and recommendations as to the hiring, firing or changing the status of other employees must be given particular weight.

Professional

For the administrative exemption, employees must have a primary duty of performing office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers, and their primary duty must include the exercise of discretion and independent judgment with respect to matters of significance.

Administrative

For a professional exemption, employees must have a primary duty of work requiring knowledge of an advanced type in a field of science or learning customarily acquired by prolonged, specialized, intellectual instruction and study, or must specialize in a few other similarly, highly specialized fields, such as teaching, computer analytics, and engineering.

Exceptions to Overtime Requirements

In general, non-exempt employees earning less than $455 per week, which is $23,660 per year, are guaranteed overtime pay.

It is also clear that overtime hours cannot be manipulated to avoid the increase – for example, if someone works 45 hours in a week, the employer cannot classify or convert the 5 overtime hours into “comp pay” or the like to avoid the increased wage.

However, there appears to be no restriction on an employer demanding that employees work overtime, and so their consent is not required. Refusing to work overtime can therefore be a grounds for termination.

The issue gets even more clouded when the employee may be “non-salaried” as with someone who makes either commission or tips. If the employee is classified as non-salaried, then the time-and-a-half rule does not kick in at 40 hours. Of course, it is a very complex formula to determine at what point an employee who receives any kind of commission or tip becomes non-salaried, so both state and national departments have websites in order to reviews statutes and take note of frequently-asked questions: State of Louisiana: www.idol.state.la.us United States: www.dol.gov

QUESTION: A Beehive was abandoned on a friend’s property for more than 5 years. Can the property owner process honey, repair hives and keep possession of product and hives?

ANSWER: Probably so. One of the methods of acquiring things under Louisiana’s Civil Code is the concept of “Acquisitive Prescription”. It basically refers to your right to acquire something after a period of continually possessing it. There are two types in Louisiana – (1) good faith possession (person who takes possession actually believes they are the owner), and (2) bad faith possession. They involve different time periods in Louisiana – good faith owner need only possess for a period of three years; bad faith owner has to possess for ten years before acquiring ownership. Civil Code Articles 3490, 3491. There is a different time period for the ownership of immovables (commonly referred to as “land”); acquisitive prescription requires 30 years of possession.

However, as the Uncle Ben in Spiderman once said, “with great power comes great responsibility.” There are regulations involved once you become the owner of a beehive. The first is you have to register your hive with the Louisiana Department of Agriculture and Forestry. See Louisiana Statute 3:2305 et al. Some local governments have a ban on beehives, so you many want to check with your city and parish agencies before registering. Also, if you need advice on the upkeep and maintenance of a hive in your area, you can go to the website

labeekeepers.org”, where there is posted contact information and meeting times/places for local chapters such as Lake Charles, Jennings and DeRidder.

QUESTION: I have custody of my son. I want to move to Lafayette. Can my X stop me from moving?

ANSWER: The real question is what effect does the move have on the child custody rights. The issue is governed by Louisiana’s relocation statute which can be found at 9:3551 et seq. This statute says that a custodial parent cannot change the principal residence of a child without first going through a notice process to the other parent and or getting the other parent’s permission. A change of residence is defined as anywhere otr of state or a distance of 75 miles or more in state. In this case, Google says that Lafayette is 74.5 miles from Lake Charles, so it really comes down to the actual distance. Regardless, a change in residence can be considered a change in circumstances and could serve as the possible basis for the other parent to seek a change in custody, after the move occurs. More info can be found at https://legis.la.gov/Legis/Law.aspx?d=107642.

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