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Employee Relations.
The Employee Relations Council will support efforts to make Louisiana’s workers’ compensation (WC) system more balanced and less costly. It will also remain diligent in protecting the solvency of the state’s unemployment compensation (UC) trust fund to prevent employer UC tax increases. In most other respects, Louisiana’s employment laws are generally viewed as employer-friendly when compared to other states. Unfortunately, each session, numerous bills are filed to expose employers to lawsuits from their employees and/or restrict their ability to manage their workers efficiently and productively. LABI will once again be ready to defend against such legislative intrusion in the workplace.
Major Issues.
Workers’ Compensation
LABI Position: Support legislation to strengthen Louisiana’s WC law, and oppose legislation that would expand WC coverage and increase costs to employers. Support legislation that makes Louisiana’s WC system not only balanced and equitable but also one which is competitive with other states and encourages a quicker return to work for injured employees. To this end, LABI will:
• Work to pass and implement a competitive pharmacy formulary that is based on medical evidence, and is designed to provide necessary medication to injured workers in a timely manner to prevent unnecessary drug prescribing and dispensing;
• Support legislation to provide for quality and appropriate medical treatment and ancillary services, including legislation to defend and enhance the proper utilization of the Medical Treatment Schedule and to apply correct limitations and standards for the appeal process connected with review of medical director’s decisions;
• Defend the exclusive remedy and statutory employer provisions of the WC law;
• Promote prosecution of the crime of WC fraud and protect employers’ ability to defeat fraudulent claims;
• Advise the employer community of judicial and administrative decisions that destroy the effectiveness of legislated reforms in WC;
• Support efforts to create an efficient and less costly WC market by encouraging continued growth and increased competition within the voluntary market;
• Amend, as needed, the WC confidentiality rules or laws to provide reasonable provisions governing both the protection and release of WC information and employers’ access to information regarding current and past claims; and
• Support legislation equalizing all WC indemnity benefits to a percentage of after-tax income.
Unemployment Compensation (UC)
LABI Position: Support any legislative actions necessary and appropriate to safeguard the solvency of the state UC trust fund so as to prevent employer UC tax increases. Support legislation to fine-tune the UC law in Louisiana and eliminate employee and employer abuses. Oppose legislation that would expand UC coverage.
Current Issues.
Employer Liability: Support legislation to limit employer liability doctrines, and oppose legislation that would expand employer liability. Support legislation to repair judicially imposed employer liability doctrines established contrary to legislative intent.
Labor Relations: Support legislation to prohibit state and local government interference with employers’ rights and protections as provided under existing federal laws governing labor/management relations. Oppose any state legislation designed to weaken employers’ protections under existing federal laws governing labor/management relations.
Employment Compensation: Support legislation to protect employers’ right to establish employment compensation as they deem appropriate and oppose any erosion of existing rights.
Mandated Employee Benefits: Oppose any statutory intrusion into the area of employee/employer relationships, including but not limited to mandated benefits. Oppose any creation or expansion of government-mandated benefits under employer health plans except when there is a documented, actuarially positive cost/benefit for such mandates. Support state legislation that minimizes any adverse impact of federal health care mandates.
Incumbent Worker Training Program (IWTP): Oppose legislation that would continue funding for the IWTP below the dollar amounts and trust fund trigger points in current law, and enhance business access and greater flexibility in the use of monies for worker training, particularly for small businesses.
Equal Employment Opportunity: Support equal employment opportunity by coordinating existing state and federal antidiscrimination laws, but oppose any legislation that would expand upon existing remedies and protections. Support the repeal of any laws that prohibit or limit employer rights.
Government Contracting: Oppose any unreasonable administrative or legislative action pertaining to labor or employment law that would deny businesses the right to contract with government.
Workforce Development: Support the creation of a cabinet-level office to oversee and coordinate workforce development programs and their funding streams across state agencies in order to achieve strategic alignment between state and local efforts to establish a talent supply chain that properly serves Louisiana employer needs.
Minimum Wage: Oppose legislation establishing a state minimum wage.
Labor Relations: Support legislation that protects workers and employers from the adverse impacts of alterations or expansions to existing federal laws or regulations governing labor/management relations, especially any changes to weaken the equity of the current government-supervised secret ballot election procedure or replace it with a “card check” system subject to abuse.
Wage Records: Support full implementation of Act 822 of the 2012 regular session, allowing electronic access to wage records.
Noncompetition Agreements: Oppose any erosion of the statutes that protect businesses from unfair competition by allowing them to enter into noncompetition agreements with their employees, and support appropriate legislation to fine-tune such statutes as necessary.
Collective Bargaining: Oppose legislation requiring collective bargaining and/or binding arbitration by any public body.
Right-to-Work: Do everything necessary to maintain Louisiana as a Right-to-Work state, including opposing “agency shop” legislation, which would force non-union employees to pay dues to a union just like its members.
Prevailing Wage: Oppose any attempts by the Legislature to re-enact a prevailing wage law, which would result in the state or local governments – and by extension, taxpayers – paying more for goods and services than is paid by businesses in the private sector.
Employment-at-Will: Support legislation to ensure employment-at-will as a right of all Louisiana employers.
Second Injury Fund: Continue to assess the viability of the Second Injury Fund and support legislation to establish an equitable assessment method for its funding.
Drug-Free Workplace: Support legislation and promote administrative policies that make it easier for employers to maintain a drug-free workplace in Louisiana.
Forum Selection: Support legislation to protect and enhance the freedom to contract with respect to forum selection in the employment relationship.
Employee Leasing: Support legislation to ensure that professional employer organizations/employee-leasing firms do not insulate their clients from their WC and/or UC experience rating, and oppose any erosion of existing statutory protections.
Independent Contractors: Protect the statutory criteria established for determining a worker’s independent contractor status and support the implementation of “fresh start” and “safe harbor” provisions for employers who self-report incidents of employee misclassification.
Contacts.
Jim Patterson serves as Director of the Employee Relations Council. In this capacity, his responsibilities include labor issues, such as workers’ and unemployment compensation.
Jim Patterson
Director, Employee Relations Council, Workers’ Compensation Task Force & Unemployment Compensation Task Force, LABI
(225) 215-6657
jimp@labi.org
Matt Spradley
Chair, Employee Relations Council
Spradley and Spradley
matt@spradleyandspradley.com
By: Stephen Waguespack
Each October, the United States Supreme Court begins its annual term to hear cases on a range of issues from across the country. These public hearings and private deliberations by the justices take place off and on for roughly nine to ten months, with court opinions typically coming out in May and June of the following year. In the last few weeks, the court has released several of its 2018 opinions, and this year’s batch held some significant findings, a few of which have particular consequences for Louisiana.
Specifically, the opinions by the Supreme Court in Janus v. American Federation of State, County and Municipal Employees and South Dakota v. Wayfair will force Louisiana to finally confront a few policy problems that have long warranted a smart solution.
In Janus, the court stated unequivocally that a government employee who does not want to join a union cannot be forced to pay dues or any other fee to that union. The majority leaned upon the First Amendment to justify its opinion, saying you cannot require government workers to financially support a political organization or political message they oppose. The unions argued government workers should be forced to pay up regardless of whether they agreed with the union’s political activities, claiming those workers likely get some benefit by union activity anyway. That ridiculous notion, which would be like forcing Leonardo DiCaprio to contribute to the NRA since he benefits from the protection of armed security each day, was finally laughed off the stage by the Court. It was a long time coming.
Speaking of a long time coming, this court ruling finally shines a definitive spotlight on an outdated Louisiana law that for 50 years has mandated state and local governmental bodies collect union membership dues from Louisiana employees and then invest those dollars in union political activities through payroll deduction. This practice is wrong and now arguably unconstitutional. Even worse, the dollars are big.
LABI polled several school districts around Louisiana last year, and the numbers were startling. In only six local school districts, roughly $4.5 million in union dues were deducted by government from Louisiana residents and sent directly to the state union office with little visibility on how those dollars were spent. It is estimated that 20 percent of that amount goes to the national union political efforts each year. Louisianans have long deserved more control over their freedom of speech AND their paychecks. The Supreme Court’s ruling should finally align the stars for this overtly political state law to be repealed during the next session.
In Wayfair, the court’s ruling may finally pave the way for sensible reform of how Louisiana calculates and collects sales taxes from its people. This ruling rescinds the previous requirement that an online retailer must have a physical presence in a state before being required to collect sales taxes. This left a mixed application for years, where brick and mortar stores in a state-collected sales taxes in the store and online, while others avoided the collection altogether. Now, the court said an “extensive virtual presence” qualifies for collection, which essentially encompasses all online retailers except for the smallest of businesses. The ruling also clearly stated a state’s tax and collection system cannot place undue burdens upon interstate commerce. This is the part where Louisiana again is now forced to deal with a long-term uncompetitive law that may prove to be unconstitutional. (See the extensive, well-drafted summary by the Public Affairs Research Council (PAR) for more details).
Louisiana does not currently have what is called “centralized collection.” In fact, every parish in Louisiana enforces their own sales tax collection methods, audit functions, rate definitions and exemption calculations. Other states don’t operate like this, and this method is largely viewed by economists and tax experts as confusing, uncompetitive and inefficient.
For instance, imagine if you operate a small business in Louisiana that has customers in every parish. You could end up remitting sales taxes on 64 different forms… with 64 different exemption definitions and rate calculations… and be subject to 64 different audits. This is a disincentive for investment in Louisiana and has the potential to add tremendous compliance costs for that small business. If that same employer had the same business plan in Texas, the compliance process would be much easier. They would have one sales tax remittance form, subject to centralized audits and uniform definitions and calculations. The cost of business is much lower under that system and the burden upon interstate commerce is minimal.
For years, there has been a chorus of voices to embrace centralized collection in Louisiana like other states. Concerns by local government to restrict this authority has previously prevented it from happening, but those days may be numbered. A process driven by a few local officials last year tried to bring about a compromise plan that would implement a version of centralized collection, but it was halted before it really got started, in large part due to strong objection by the state school board association. With the recent court ruling highlighting Louisiana’s unorthodox and uncompetitive assessment, audit and collection practices, hopefully, next session will bring those folks back to the table.
The news coming from the 2018 Supreme Court will long be remembered as significant in American history. The announced retirement of Justice Anthony Kennedy and the political battle that will take place to name his replacement will get all the ink. But these rulings changing how national unions have historically funded their political activities and how America taxes the booming digital economy will be just as critical for the nation going forward. These rulings should also speak loudly to the merit in finally changing a few outdated Louisiana laws… next legislative session I guess we will see if anyone here was listening.