PART IX. PENAL PROVISIONS

§1711. False statements or representations; failure to file reports or maintain records; duties of officers and agents; presumptive proof; penalties

A. Whoever makes a false statement or representation to this agency knowing it to be false, or knowingly fails to disclose a material fact to obtain or increase any benefit or other payment, whether or not such benefits or payments are obtained or increased, under this Chapter, or under an employment security law of any other state, of the federal government, or of a foreign government, either for himself or for any other person, shall be guilty of a misdemeanor, and shall be fined not less than fifty dollars nor more than one thousand dollars, or imprisoned for not less than thirty days nor more than ninety days, or both, in the discretion of the court. Each such false statement or representation or failure to disclose a material fact shall constitute a separate offense.

B. Any employing unit or any officer or representative or agent of an employing unit or any other person who makes a false statement or representation to this agency, knowing it to be false, or who knowingly fails to disclose a material fact, to prevent or reduce the payment of benefits to any individual entitled thereto, or to avoid becoming or remaining subject hereto or to avoid or reduce any contribution or other payment required from an employing unit under this Chapter, or under an employment security law of any other state, or the federal government, or of a foreign government, or who refuses to make any such contribution or other payment or to furnish any reports required hereunder or to produce or permit the inspection or copying of records required hereunder, shall be guilty of a misdemeanor and shall be fined not less than fifty dollars nor more than one thousand dollars, or imprisoned for not less than thirty days nor more than ninety days, or both, in the discretion of the court. Each such false statement or representation or failure to disclose a material fact, and each day of such failure or refusal shall constitute separate offense.

C.(1) Any employing unit that fails to file any of the reports or to maintain any of the records required by the administrator under authority of this Chapter shall be guilty of a misdemeanor and shall be fined not less than fifty dollars nor more than one thousand dollars, or imprisoned for not less than thirty days nor more than ninety days, or both, in the discretion of the court.

(2) Failure to file required reports within seven days of receipt of notice to file a specified report or reports shall be deemed presumptive evidence of the employing unit's intent not to file such reports, if such notice is delivered to the owner, partner, officer, agent, representative or employee of the employing unit either by certified mail addressed to the employing unit or by a subpoena directed to the employing unit and served by a representative of the administrator.

(3) Failure to maintain within this state any of the records, or copies thereof, required by the administrator, necessary to the administration of this Chapter, or the failure to produce to the administrator or his representative any of the records required to be maintained by employing units under authority of this Chapter shall be deemed presumptive evidence of the employing unit's intent not to maintain or produce such records if the employing unit has been notified by certified mail to maintain or to produce such records, or has acknowledged in writing notice to maintain or produce such records.

D.(1) It shall be the duty of all officers, partners, agents and representatives engaged in the management or operation of an employing unit to cause copies of all books and records required under authority of this Chapter to be maintained in this state and produced as required by the administrator or his representative and to cause all required reports to be filed with the administrator. In the event that the officer, partner, agent or representative fails in his duties under this subsection he shall be guilty of a misdemeanor and shall be fined not less than fifty dollars nor more than one thousand dollars, or imprisoned for not less than thirty days nor more than ninety days, or both.

(2) Failure of an employing unit to file specified reports within seven days following notice to an officer, partner, agent or representative shall be presumptive evidence of intent on the part of such officer, partner, agent or representative to violate the provisions of this subsection provided that notice is given either by certified mail addressed to the officer, partner, agent or representative or by a subpoena issued to the employing unit and served on the officer, partner, agent or representative by the administrator or his representative setting out the failure of the employing unit to file specified reports.

(3) Once an officer, partner, agent or representative has been notified by certified mail of the employing unit's failure to maintain or produce records, the employing unit's failure thereafter to maintain or produce required records shall be presumptive evidence of intent on the part of such officer, partner, agent or representative to violate the provisions of this subsection.

E. The provisions of this section including all requirements, duties and penalties are in addition to, and not in place of any other provisions, duties, or penalties provided elsewhere in this Chapter or in the laws of this state.

F. Any non profit or governmental educational institution, including an institution of higher education as defined in this Chapter which has the option to elect to become a reimbursable employer, but instead becomes a contributing employer, and fails to issue a contract or a letter of assurance of continued employment to its employees following a vacation or semester break as provided for in R.S. 23:1600(6), where reasonable assurance does exist, and actually continues the employment of those employees subsequent to the vacation or semester break, shall pay a penalty equal to the amount of unemployment benefits which were paid to those employees during the vacation or semester break, unless the employer can conclusively prove to the administration that it could not have issued a contract or letter of assurance as provided for in R.S. 23:1600(6) due to circumstances beyond the employer's control. In determining whether reasonable assurance exists, the administrator shall consider length of employment, pupil population, past practices by the employer and such other factors as he may prescribe by regulation. Any fines collected under this Subsection shall be credited to the Trust Fund.

G. Misclassification of employees as independent contractors.

(1)(a) Written warning. If the administrator determines, after investigation, that an employer, or any officer, agent, superintendent, foreman, or employee of the employer, failed to properly classify an individual as an employee in accordance with this Chapter, and failed to pay contributions required by this Chapter, but the failure was not knowing or willful, the employer shall be issued a written warning as evidence that the employer has been cited for a first offense of misclassification. Such warning shall constitute a determination that any workers identified therein are employees, and all resulting contributions, interest and penalties shall be due, and shall be appealable as provided in this Section. However, no administrative penalties shall be due.

(b) Administrative penalties. If the administrator determines, after investigation, that an employer, or any officer, agent, superintendent, foreman, or employee of the employer, after June 30, 2013, and subsequent to the issuance of a written warning, failed to properly classify an individual as an employee and failed to pay contributions in accordance with this Chapter, then, in addition to any contributions, interest, and penalties otherwise due, the administrator may assess an administrative penalty of not more than two hundred fifty dollars per each such individual. Thereafter, any such failure by an employer to properly classify an individual as an employee and pay contributions due shall be subject to an administrative penalty of not more than five hundred dollars per each such individual. In determining the amount of the administrative penalty imposed, the administrator shall consider factors including previous violations by the employer, the seriousness of the violation, the good faith of the employer, and the size of the employer's business.

(c) If, after an employer has been issued a written warning and is subsequently found, on two or more separate occasions, to have failed to properly classify an individual as an employee, the employer may also be subject to an additional fine of not less than one hundred dollars nor more than one thousand dollars, or imprisoned for not less than thirty days nor more than ninety days, or both. For the purpose of this Subsection, each employee so misclassified shall constitute a separate offense.

(d) No such determination shall be final or effective, and no resulting administrative penalty shall be assessed, unless the administrator first provides the employer with written notification by certified mail of the determination, including the amount of the proposed contributions, interest, and penalties determined to be due and of the opportunity to request a fair hearing, of which a record shall be made within thirty days of the mailing of such notice. The hearing request may be made by mail, as evidenced by the official postmarked date, or by otherwise timely delivering such appeal. If the employer does not request a hearing within the thirty-day period the determination shall become final and effective, and the contributions, interest, and penalties due shall be assessed.

(2) If a timely hearing request is made, the findings and conclusions of the hearing officer shall be appealable by judicial review as a final assessment in accordance with the provisions of R.S. 23:1728.

(3)(a) Upon a final determination that an employer or any officer, agent, superintendent, foreman, or employee of the employer knowingly or willfully failed to properly classify an individual as an employee in accordance with this Chapter and failed to pay required contributions, then, in addition to the penalties provided herein, the employer shall be prohibited from contracting, directly or indirectly, with any state agency or political subdivision of the state for a period of three years from the date upon which the determination becomes final.

(b) The division of administration shall maintain and place the employer on a list of such employers and make that list available to state agencies and political subdivisions of the state.

(4) Notice requirements. Every employer shall post in a prominent and accessible location at each of its business premises a poster provided by the administrator that describes the responsibilities of independent contractors to pay taxes as required by state and federal laws, the rights of employees to workers' compensation and unemployment benefits, protections against retaliation, and the penalties if the employer fails to properly classify an individual as an employee. The notice shall also contain contact information for individuals to file complaints or obtain information regarding employment classification.

Amended by Acts 1952, No. 538, §5; Acts 1972, No. 336, §5; Acts 1977, No. 648, §2; Acts 1982, No. 837, §1, eff. Jan. 1, 1983; Acts 2012, No. 786, §1; Acts 2014, No. 529, §1.