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Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
Regular Session, 2012 ENROLLED
SENATE BILL NO. 472
BY SENATOR MURRAY
AN ACT1
To amend and reenact R.S. 23:1761(9) and to enact R.S. 23:1472(12)(H)(XXII) and2
1711(G), relative to unemployment compensation; to provide for employers'3
classification of workers; to provide for independent contractors; to provide for4
penalties; and to provide for related matters.5
Be it enacted by the Legislature of Louisiana:6
Section 1. R.S. 23:1761(9) is hereby amended and reenacted and R.S.7
23:1472(12)(H)(XXII) and 1711(G) are hereby enacted to read as follows:8
§1472. Definitions9
* * *10
(12) * * *11
H. The term "employment" shall not include:12
* * *13
XXII. The services performed by an individual who meets the definition14
of an owner-operator as is defined in R.S. 23:1021(10).15
* * *16
§1711. False statements or representations; failure to file reports or maintain17
records; duties of officers and agents; presumptive proof; penalties18
* * *19
G. Misclassification of employees as independent contractors20
(1)(a) Written warning. If the administrator determines, after21
investigation, that an employer, or any officer, agent, superintendent, foreman,22
or employee of the employer, failed to properly classify an individual as an23
employee in accordance with this Chapter, and failed to pay contributions24
required by this Chapter, but the failure was not knowing or willful, the25
employer shall be issued a written warning as evidence that the employer has26
been cited for a first offense of misclassification. Such warning shall constitute27 SB NO. 472 ENROLLED
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Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
a determination that any workers identified therein are employees, and all1
resulting contributions, interest and penalties shall be due, and shall be2
appealable as provided in this Section. However, no administrative penalties3
shall be due.4
(b) Administrative penalties. If the administrator determines, after5
investigation, that an employer, or any officer, agent, superintendent, foreman,6
or employee of the employer, after June 30, 2013, and subsequent to the7
issuance of a written warning, failed to properly classify an individual as an8
employee and failed to pay contributions in accordance with this Chapter, then,9
in addition to any contributions, interest, and penalties otherwise due, the10
administrator may assess an administrative penalty of not more than two11
hundred fifty dollars per each such individual. Thereafter, any such failure by12
an employer to properly classify an individual as an employee and pay13
contributions due shall be subject to an administrative penalty of not more than14
five hundred dollars per each such individual. In determining the amount of15
the administrative penalty imposed, the administrator shall consider factors16
including previous violations by the employer, the seriousness of the violation,17
the good faith of the employer, and the size of the employer's business.18
(c) If, after an employer has been issued a written warning and is19
subsequently found, on two or more separate occasions, to have failed to20
properly classify an individual as an employee, the employer may also be21
subject to an additional fine of not less than one hundred dollars nor more than22
one thousand dollars, or imprisoned for not less than thirty days nor more than23
ninety days, or both. For the purpose of this Subsection, each employee so24
misclassified shall constitute a separate offense.25
(d) No such determination shall be final or effective, and no resulting26
administrative penalty shall be assessed, unless the administrator first provides27
the employer with written notification by certified mail of the determination,28
including the amount of the proposed contributions, interest, and penalties29
determined to be due and of the opportunity to request a fair hearing, of which30 SB NO. 472 ENROLLED
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Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
a record shall be made within ten days of the mailing of such notice. The1
hearing request may be made by mail, as evidenced by the official postmarked2
date, or by otherwise timely delivering such appeal. If the employer does not3
request a hearing within the ten-day period the determination shall become4
final and effective, and the contributions, interest, and penalties due shall be5
assessed.6
(2) If a timely hearing request is made, the findings and conclusions of7
the hearing officer shall be appealable by judicial review as a final assessment8
in accordance with the provisions of R.S. 23:1728.9
(3)(a) Upon a final determination that an employer or any officer, agent,10
superintendent, foreman, or employee of the employer knowingly or willfully11
failed to properly classify an individual as an employee in accordance with this12
Chapter and failed to pay required contributions, then, in addition to the13
penalties provided herein, the employer shall be prohibited from contracting,14
directly or indirectly, with any state agency or political subdivision of the state15
for a period of three years from the date upon which the determination becomes16
final.17
(b) The division of administration shall maintain and place the employer18
on a list of such employers and make that list available to state agencies and19
political subdivisions of the state.20
(4) Notice requirements. Every employer shall post in a prominent and21
accessible location at each of its business premises a poster provided by the22
administrator that describes the responsibilities of independent contractors to23
pay taxes as required by state and federal laws, the rights of employees to24
workers' compensation and unemployment benefits, protections against25
retaliation, and the penalties if the employer fails to properly classify an26
individual as an employee. The notice shall also contain contact information for27
individuals to file complaints or obtain information regarding employment28
classification.29
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Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
§1761. Definitions1
As used in this Chapter, the following terms shall have the meanings2
hereinafter ascribed to them:3
* * *4
(9) "Staffing service" means any person or entity, other than a professional5
employer organization, that hires its own employees and assigns them supplies6
workers to a client to support or supplement the client's workforce. It includes7
temporary staffing services and leasing companies that supply employees to clients8
in special work situations such as employee absences, temporary skill worker9
shortages, seasonal workloads, and special assignments and projects, and other10
similar work situations.11
* * *12
PRESIDENT OF THE SENATE
SPEAKER OF THE HOUSE OF REPRESENTATIVES
GOVERNOR OF THE STATE OF LOUISIANA
APPROVED: