Nicole Eichberger
Nicole A. Eichberger is a partner in the Labor and Employment Law Department and head of the New Orleans office. She is a member of the Class & Collective Actions and Wage and Hour Groups. Nici is an experienced trial lawyer and represents clients in all types of employment-related matters, from single-plaintiff and complex employment to large, complex class and collective actions alleging discrimination, non-compete violations, and wage and hour disputes.
Nici has significant experience assisting clients in the defense of numerous class and collective actions. She frequently counsels employers, fiduciaries, and trustees on employment, wage and hour and benefit issues.
In addition to her litigation practice, Nici assists in conducting workplace investigations and audits related to discrimination, managerial training, non-competes and employee classification. She is adept to counseling clients on a wide array of issues including reviewing and drafting employee handbooks, wage and hour issues, employee leave and training policies.
She is a member of the Firm’s eDiscovery Group and advises clients on eDiscovery matters, including day-to-day preservation, investigations and litigation strategies.
Nici recently completed a three-year term was on the ABA’s Standing Committee on Pro Bono & Public Service and serves as the Pro Bono Co-Coordinator for Proskauer’s New Orleans office. She is a prolific writer, frequently contributing to Proskauer’s Law and the Workplace Blog and a sought-after speaker on collective/class action topics.
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On March 31, 2022, a Kentucky jury unanimously awarded $450,000 to an employee, who was terminated following two panic attacks the employee suffered at work. The jury concluded the employee’s anxiety disorder was a disability and that the employee suffered an adverse action because of his disability. Brief Background In Berling v. Gravity Diagnostics, LLC, … Continue Reading
On March 11, 2022, the United States Court of Appeals for the Fifth Circuit affirmed summary judgment, dismissing a Texas city employee’s claim that he had been unlawfully terminated from his job because of his age. The Fifth Circuit held that age discrimination comments must contain age-specific references, and a factfinder cannot infer age discrimination … Continue Reading
On January 7, 2022—the same day the Supreme Court of the United States heard oral arguments concerning the OSHA workplace vaccine mandate—the Louisiana Supreme Court (“LA Supreme Court” or the “Court”) upheld a private employer’s COVID-19 vaccine mandate, relying on the well-established Louisiana employment-at-will doctrine. The LA Supreme Court found that a private employer is … Continue Reading
Louisiana employers should be aware of two new laws which went into effect on August 1, 2021. The first, Act 393, provides for reasonable accommodations of employees who become temporarily disabled due to certain pregnancy-related medical conditions. It amends Louisiana Revised Statutes §§ 23:341 and 23:342 and enacts § 23:341.1, which apply to employers who … Continue Reading
Louisiana’s amended non-competition statute (La. R.S. 23:921), which meaningfully expands the application of employment-related non-compete restrictions within the state, went into effect on August 1, 2020. This amendment expressly expands the reach of Louisiana non-compete law by, among other things, adding corporate shareholders, partners in partnerships, and members of limited liability companies, to the category … Continue Reading
On April 16, 2020, the Fifth Circuit held that an employee is entitled to arbitrate his federal labor law claims as a collective action on behalf of his coworkers against their employer, Sun Coast Resources, Inc. (“Sun Coast”). The Fifth Circuit affirmed both the district court’s and arbitrator’s decisions because the arbitration provision at issue … Continue Reading
On a matter of first impression, the U.S. Eleventh Circuit, in Durham v. Rural/Metro Corp., applied the test for indirect evidence of intentional pregnancy discrimination enunciated by the U.S. Supreme Court in Young v. UPS. Background Plaintiff began work in March 2015 as an emergency medical technician (“EMT”) for Rural/Metro Corporation (“Rural”), which provides private … Continue Reading
On April 3, 2020, a three-judge panel of the U.S. Fifth Circuit in EEOC v. Vantage Energy Services, Inc., No. 19-20541, clarified its interpretation of the relate-back doctrine for administrative charges. The Fifth Circuit reversed a one-sentence Texas district court ruling, which dismissed with prejudice the Equal Employment Opportunity Commission’s (“EEOC”) complaint alleging violations of … Continue Reading
On March 30, 2020, the U.S. Supreme Court declined to review a decision from the Seventh Circuit in Leeper v. Hamilton County Coal, LLC, No. 19-1109, which held that a layoff was temporary, and thus did not trigger the 60-day notice requirement of the Worker Adjustment and Retraining Notification Act (the “WARN Act”). On February … Continue Reading
On April 26, 2019, the Northern District of New York held that a group of Plaintiffs failed to satisfy their burden to establish commonality and predominance under Fed. R. Civ. P. 23 and failed to sustain their burden that they were similarly situated to continue as a FLSA collective with respect to their misclassification claims … Continue Reading
Employers may be liable to their employees for harassment by non-employees under Title VII. Courts have found liability for this so-called “third-party harassment” in some of the following fact-specific contexts: waitresses harassed by their dining customers; casino dealers suffering harassment from gamblers at the table; and vendors being harassed by clients they visit onsite for … Continue Reading
On May 24, 2017, the Louisiana Senate Finance Committee voted 7-3 against Senate Bill No. 153, which aimed to increase the state minimum wage to $8.00 per hour in 2018 and to $8.50 per hour in 2019. The bill also would have required the state minimum wage to be raised to match any increase to … Continue Reading
New Orleans Mayor, Mitch Landrieu, has issued an executive order that bans questions about salary history during the application processes for City positions. The executive order is effective January 25, 2017 and is similar to measures in Philadelphia and Massachusetts. The executive order applies to all City departments and prohibits inquiries about a candidate’s salary … Continue Reading
On December 19, 2016, the Fifth Circuit joined the Sixth and Seventh Circuits in holding that “employees” under the FLSA may recover emotional distress damages in FLSA retaliation actions, finding that the district court erred by refusing to instruct the jury on the availability of emotional distress damages for an employee’s retaliation claim. In so … Continue Reading
In EEOC v. St. Joseph’s Hospital, the Eleventh Circuit recently held that the reasonable accommodation standard under the ADA “only requires an employer allow a disabled person to compete equally with the rest of the world for a vacant position” as a reasonable accommodation, and employers are not required to reassign a disabled employee into … Continue Reading
On October 4, 2016, the Fifth Circuit in Reyna v. International Bank of Commerce instructed district courts that when the issue of arbitrability is raised in a prompt motion to compel, it should be decided at the outset of the litigation—even prior to deciding conditional certification in FLSA collective actions. Reyna builds upon the Fifth … Continue Reading
A well-drafted anti-sexual harassment policy and complaint procedure can provide useful defenses for employers defending against claims of sexual harassment. However, a recent decision from the Fifth Circuit should remind employers that simply drafting that policy is only half the battle – they must also ensure that employees actually know that the policy exists. Kandice Pullen (“Pullen”) worked at … Continue Reading
The Fifth Circuit has had tipping on its mind, as the decision of Steele v. Leasing Enterprises, Ltd., represents its second opinion within ten months addressing this pay practice. On the heels of Montano v. Montrose, the Steele decision tackles the question of whether an employer violates 29 U.S.C §203(m) of the Fair Labor Standards … Continue Reading
Louisiana is anticipated to become the latest state to enact state-wide protections for applicants with criminal backgrounds under the well-known “ban the box” movement. The bill, HB 266, recently passed both houses of the Louisiana Legislature and is currently awaiting approval from Governor John Bel Edwards, who is expected to sign the bill into law. … Continue Reading
Restaurants throughout the Fifth Circuit, and even beyond, should review the recent decision of Montano v. Montrose Restaurant, which discusses the often tricky and always fact-intensive question of whether a restaurant employee is properly included in a tip pool.… Continue Reading
On November 13, 2014, the Fifth Circuit addressed the uncertainty stemming from its decision in Owens v. SeaRiver Maritime, Inc., 272 F.3d 698 (5th Cir. 2001), wherein the Court found that a plaintiff’s unloading and loading of vessels was considered “nonseaman” work subject to the Fair Labor Standards Act’s (“FLSA”) overtime requirements. Subsequent to that decision, … Continue Reading
On November 13, 2014, the Fifth Circuit handed down its opinion in Coffin v. Blessey Marine Services, Inc., No. 13-20144, 2014 WL 5904734 (5th Cir. Nov. 13, 2014). The opinion addressed several key factors related to the FLSA’s seaman exemption: Finding that unloading and loading of vessels is not strictly “nonseaman” work; Limiting its prior … Continue Reading
A new Louisiana law that took effect on August 1 serves to prevent employers from inquiring into an applicant’s or employee’s expunged criminal records. The law does provide for certain exceptions such as where the position requires supervisory or disciplinary authority over children. Employers who violate the law are subject to contempt proceedings. As a … Continue Reading
On August 1, 2014, Louisiana’s “Personal Online Account Protection Act,” codified as La. Rev. Stat. §§ 28:1951-1955, went into effect. Louisiana has joined sixteen other states that have enacted laws prohibiting or restricting employers from accessing employees’ personal online accounts – including social media (Twitter, Facebook or similar sites), email accounts, or any other online … Continue Reading
Jury Awards $450,000 For Employer’s Termination of Employee After Receiving Notice About Anxiety Disorder
By Nicole Eichberger, Atoyia Harris, Jessica Guarracino and E. Sydney Cone on Posted in Workplace Policies and Procedures
Fifth Circuit Affirms Dismissal of ADEA Claim Lacking Evidence of Age-Bias
By Nicole Eichberger, Atoyia Harris and E. Sydney Cone on Posted in Discrimination, Harassment and Retaliation
Louisiana Supreme Court Holds The Employment-At-Will Doctrine Dictates That Private Employers May Mandate Employees Get Vaccinated
By Nicole Eichberger, Atoyia Harris and E. Sydney Cone on Posted in Coronavirus
Louisiana Enacts Workplace Protections for Employees Disabled Due to Pregnancy and Limits the Use of Criminal Background Checks in Hiring
Louisiana Expands Scope of Non-Compete Law to Include Partners, Shareholders and LLC Members
By Daryl Leon, Eric Novak, John Barry and Nicole Eichberger on Posted in Non-Competes and Protection of Corporate Assets
5th Circuit: Arbitration Available for Employee’s Collective Action Claims
By James W. Barnett and Nicole Eichberger on Posted in Class/Collective Action
Eleventh Circuit Implements Supreme Court’s Young v. UPS Test in Assessing Indirect Evidence of Intentional Pregnancy Discrimination
By Nicole Eichberger and Rachel Therese Gulotta on Posted in Discrimination, Harassment and Retaliation
U.S. Fifth Circuit Clarifies Position: Later-Verified Charge Can Relate Back To Filing Date
By Eric Novak, Nicole Eichberger and Rachel Therese Gulotta on Posted in Discrimination, Harassment and Retaliation
U.S. Supreme Court Declines to Resolve Circuit Split On Whether A Layoff Is Temporary Or Permanent Under WARN Act
By Nicole Eichberger, Samantha Shear and Steven J. Pearlman on Posted in Coronavirus, Workplace Restructuring and WARN
Northern District of New York Denies Class Certification and Decertifies Collective, Confirming Common Answers Not Common Questions Are Required
By Nicole Eichberger and Samantha Shear on Posted in Class/Collective Action
Gardner v. CLC of Pascagoula, LLC –What Constitutes “Severe and Pervasive” Conduct With Respect to “Third-Party Harassment”?
By Gillian Egan and Nicole Eichberger on Posted in Discrimination, Harassment and Retaliation
Louisiana Minimum Wage Increase Fails in Senate
By Minia Bremenstul and Nicole Eichberger on Posted in Wage and Hour
New Orleans Mayor Issues Executive Order Restricting City Departments From Inquiring Into An Applicant’s Salary History
Fifth Circuit Joins Sister Circuits in Holding That Employees May Recover Emotional Distress Damages in FLSA Retaliation Suits
By Minia Bremenstul and Nicole Eichberger on Posted in Discrimination, Harassment and Retaliation, Wage and Hour
Eleventh Circuit Holds the ADA Does Not Mandate Reassignment Without Competition or Preferential Treatment
By Minia Bremenstul and Nicole Eichberger on Posted in Accessibility & Accommodation, Discrimination, Harassment and Retaliation
Fifth Circuit Instructs that, When Raised, Arbitrability is a Gateway Issue that Must Be Considered Prior to Conditional Certification in FLSA Collective Actions
By Minia Bremenstul and Nicole Eichberger on Posted in Class/Collective Action, Litigation and Arbitration, Wage and Hour
Fifth Circuit Decision Reinforces The Importance of Clearly Communicating Anti-Harassment Policies
Fifth Circuit Addresses FLSA Tip Credits Once Again
By Charles J. Stiegler and Nicole Eichberger on Posted in FLSA
Louisiana Legislature Passes “Ban the Box” for State Employers
By Nicole Eichberger and Tulio Chirinos on Posted in Hiring/Background Checks
Fifth Circuit Tips Its Hand as to Analysis of FLSA’s Tip Credit
By Charles J. Stiegler and Nicole Eichberger on Posted in FLSA
Fifth Circuit Refuses Application of Bright-Line Test in FLSA Seaman Exemption Dispute
By Lindsey Chopin, Mark W. Batten and Nicole Eichberger on Posted in Appeals, Class/Collective Action, FLSA, Misclassification
Fifth Circuit Refuses Application of Bright-Line Test in FLSA Seaman Exemption Dispute
By Lindsey Chopin and Nicole Eichberger on Posted in Litigation and Arbitration, Wage and Hour
Applicants & Employees Can Refuse to Disclose Expunged Criminal Records Under New Louisiana Law
By Daniel Saperstein and Nicole Eichberger on Posted in Hiring/Background Checks
Louisiana Has Joined 16 Other States and Prohibits Employers from Accessing Employee Online Accounts
By Tony Oncidi, Katharine Parker and Nicole Eichberger on Posted in Workplace Policies and Procedures
