Louisiana House committee approves misclassification measures 

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From KTBS 3 ABC, David Jacobs reports that a Louisiana House committee supported a bill to clarify the classification of workers as employees or independent contractors. David writes:

Thursday’s meeting of the House Committee on Labor and Industrial Relations featured the rare sight of the Louisiana Association of Business and Industry and the Louisiana chapter of the AFL-CIO labor union at the witness table together in support of a bill.

Both organizations participated in the task force that led to the creation of House Bill 151, which calls for an administrative penalty of up to $500 per employee that an employer willfully misclassifies on a first offense, with escalating penalties on subsequent offenses. However, the penalty for a first offense may be waived if the employer comes into compliance within 60 days.

Jim Patterson with LABI said he hoped Rep. Neil Riser’s HB 151 would be “married” to Sen. Jay Luneau’s Senate Bill 244, which he said offers a “safe harbor” for employers who come forward voluntarily. Business advocates have stressed they don’t want companies that make honest mistakes to be harshly penalized.

Critics of HB 151 worry it defines “contractor” too broadly and favors businesses over workers. Erika Zucker with the Workplace Justice Project said the definition conflicts with federal policy and could lead to confusion and litigation.

The committee advanced HB 151 without objection.

Source: House committee approves misclassification, pay transparency measures | Louisiana | ktbs.com

House Bill 151 contains the following as the

§1711.1  Classification of employees as independent contractor

A.(1)  For the purpose of this Section, an independent contractor means any person or organization including a sole proprietor, partnership, limited liability company, corporation, or other entity that undertakes orally or in writing, to perform services for or in connection with another party in a manner consistent with the requirements of this Chapter.

(2)  There shall be a rebuttable presumption of an independent contractor relationship with the contracting party for whom the independent contractor performs work, if an individual or entity meets at least seven of the following criteria:

(a) The individual or entity operates an independent business that provides services for or in connection with the contracting party.

(b) The individual or entity represents the provided services as self employment available to others, including through the use of a platform application to obtain work opportunities or as a lead generation service.

(c) The individual or entity accepts responsibility for all tax liability associated with payments received from or through the contracting party.

(d) The individual or entity is responsible for obtaining and maintaining any required registration, licenses, or other authorization necessary for the legal performance of the services rendered by him as the contractor.

(e) The individual or entity is not insured under the contracting party’s health insurance or workers’ compensation insurance coverages and is not covered for unemployment insurance benefits.

(f) The individual or entity has the right to accept or decline requests for services by or through the contracting party and is able to perform services for or through other parties or can accept work from and perform work for other businesses and individuals besides the contracting party even if the individual voluntarily chooses not to exercise this right or is temporarily restricted from doing so.

(g) The contracting party does not direct or oversee the performance, methods, or processes the individual or entity uses to perform services.

(h) The contracting party has the right to impose quality standards or a deadline for completion of services performed, or both, but the individual or entity determines the days worked and the time periods of work.

(i) The individual or entity furnishes the major tools or items of equipment needed to perform the work.

(j) The individual or entity is paid a fixed or contract rate for the work performed and the contracting party does not pay the individual or entity a salary or wages based on an hourly rate.

(k) The individual or entity is responsible for the majority of expenses incurred in performing the services, unless the expenses are reimbursed under an express provision of a written contract between the parties or the expenses reimbursed are commonly reimbursed under industry practice.

(l) The individual or entity can use assistants as deemed proper for the performance of the work and is directly responsible for supervision and compensation.

(3) Obtainment of an independent contractor certification from the state is optional and is not required to establish independent contractor status.

(4) Any contracting party or independent contractor may rely on the provisions of this Section for the purpose of establishing an employment or independent contractor relationship.

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