TITLE 23. LABOR AND WORKERS' COMPENSATION

CHAPTER 11. UNEMPLOYMENT COMPENSATION

PART V. QUALIFICATIONS FOR BENEFITS

 

23:1601  Disqualification for benefits

 

An individual shall be disqualified for benefits:

 

(1)(a) If the administrator finds that he has left his employment from a base period or subsequent employer without good cause attributable to a substantial change made to the employment by the employer.  Such disqualification shall continue until such time as the claimant can requalify by demonstrating that he:

 

(i) Has been paid wages for work subject to the Louisiana Employment Security Law, [FN1] or to the unemployment insurance law of any other state or the United States equivalent to at least ten times his weekly benefit amount following the week in which the disqualifying separation occurred.

 

(ii) Has not left his last work under disqualifying circumstances.

 

(b)(i) If he is working as a temporary employee employed and paid by a staffing firm and fails, without good cause, to contact the staffing firm for reassignment.  The employee will be deemed to have voluntarily left his employment and will be disqualified for unemployment compensation benefits pursuant to this Section if, upon conclusion of his latest assignment, he fails to contact the staffing firm for reassignment.  A temporary employee shall not be deemed to have resigned his position if he is not advised at the time of hire that he must report for reassignment upon conclusion of each assignment and that unemployment compensation benefits may be denied for failure to do so.

 

(ii) For the purposes of this Section, the following terms shall have the meanings hereinafter ascribed to them:

 

(aa) "Staffing firm" means a business that hires and pays its own employees and assigns them to clients to support or supplement the client's workforce in work situations such as employee absences, temporary skill shortages, seasonal workloads, and special assignments and projects.

 

(bb) "Temporary employee" means an employee assigned to work for the clients of a staffing firm.

 

(c) No one shall be disqualified for benefits under the provisions of this Paragraph for leaving part-time or interim employment in order to protect his full-time or regular employment;  the terms "part-time", "interim", "full-time", and "regular" employment shall be defined by regulation adopted by the administrator in accordance with the Administrative Procedure Act.   [FN2]  Benefits paid under this provision shall not be charged against the experience rating of a part-time or interim employer as so defined but shall be recouped as a social charge to all employers in accordance with R.S. 23:1553(D).  Furthermore, no one receiving WARN Act payments pursuant to 29 U.S.C. 2104 shall be disqualified for benefits under the provisions of this Paragraph for refusing to leave part-time, interim, or full-time employment to return to work for the employer issuing such payments.

 

(2)(a) If the administrator finds that he has been discharged by a base period or subsequent employer for misconduct connected with his employment.  Misconduct means mismanagement of a position of employment by action or inaction, neglect that places in jeopardy the lives or property of others, dishonesty, wrongdoing, violation of a law, or violation of a policy or rule adopted to insure orderly work or the safety of others.  Such disqualification shall continue until such time as the claimant can requalify by demonstrating that he:

 

(i) Has been paid wages for work subject to the Louisiana Employment Security Law or to the unemployment insurance laws of any other state or of the United States equivalent to at least ten times his weekly benefit amount following the week in which the disqualifying separation occurred.

 

(ii) Has not left his last work under disqualifying circumstances.

 

(b) Repealed by Acts 1997, No. 195, § 1, eff. Jan. 1, 1998.

 

(c) If the administrator finds that such misconduct has impaired the right, damaged, or misappropriated the property of, or has damaged the reputation of a base period employer, then the wage credits earned by the individual with the employer shall be cancelled and no benefits shall be paid on the basis of wages paid to the individual by such employer.

 

(3) If the administrator finds that he has failed, without good cause, either to apply for available, suitable work when so directed by the administrator or to accept suitable work when offered him, or to return to his customary self-employment, if any, when so directed by the administrator.  Such disqualification shall continue until such time as the claimant (a) can demonstrate that he has been paid wages for work subject to the Louisiana Employment Security Law or the unemployment insurance law of any other state or the United States, equivalent to at least ten times his weekly benefit amount following the week in which the disqualifying act occurred and (b) has not left his last work under disqualifying circumstances.

 

(a) In determining whether or not any work is suitable for an individual, the administrator shall consider the degree of risk involved to his health, safety and morals, his physical fitness and prior training, his experience, his length of unemployment, his prospects for securing local work in his customary occupation, the distance of the available work from his residence, and his highest level of educational attainment as evidenced by a formal degree.  In addition, the administrator shall consider the individual's prior earnings unless employment is offered by a base period employer, in which case the rate of remuneration and the level of skill shall be equal to or greater than the highest amount paid the employee in his former employment with said base period employer;  but, in no case shall the employee be required to accept remuneration from any employer at a level below sixty percent of his highest rate of pay in his base period;  nor shall he be required to accept remuneration at less than the employer pays other employees with comparable skills, nor shall such employee be required to accept compensation at a rate below the scale provided in any employee agreement to which he or his agent is a party.

 

(b) Notwithstanding any other provisions of this Chapter, no work shall be deemed suitable and benefits shall not be denied under this Chapter to any otherwise eligible individual for refusing to accept new work under any of the following conditions:

 

(i) If the position offered is vacant due directly to a strike, lockout, or other labor dispute.

 

(ii) If the wages, hours, or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality.

 

(iii) If, as a condition of being employed, the individual would be required to join a company union or to resign from or refrain from joining any bona fide labor organization.

 

(iv) If, in the written opinion of the individual's personal physician, the work is deemed to be clearly hazardous to the health of said individual.  The administrator shall prepare a special form to be used by physicians to certify as to the specific hazards posed to the claimant's health by the job, as well as to expedite the processing of claims and to assure that physicians are aware of their responsibilities under this Chapter.  The special form also shall cite the provisions of R.S. 23:1711(A).

 

(4) For any week with respect to which the administrator finds that his unemployment is due to a labor strike, as defined in R.S. 23:900(1), which is in active progress at the factory, establishment, or other premises at which he is or was last employed;  but such disqualification shall not apply if his unemployment is due to a labor lockout, as defined in R.S. 23:900(2), or if it is shown to the satisfaction of the administrator that he is not participating in or interested in the labor strike which caused his unemployment.  In determining whether a strike exists, the administrator shall not inquire into the cause or causes of the strike if the strike is approved or sanctioned by a labor organization that represents the individual.  For the purposes of this Paragraph, if separate branches of work, which are commonly conducted as separate businesses in separate premises, are conducted in separate departments of the same premises, each such department shall be deemed to be a separate factory, establishment, or other premises.

 

(5) For any week with respect to which or a part of which he has received or is seeking unemployment benefits under an unemployment compensation law of another state or of the United States, provided that if the appropriate agency of such other state or of the United States finally determines that he is not entitled to such unemployment benefits this disqualification shall not apply.  If the Congress of the United States passes any law providing for unemployment compensation benefits intended as a supplement to the benefits provided by this Chapter this disqualification shall not apply.

 

(6) Repealed by Acts 1977, No. 745, § 17, eff. Sept. 9, 1977.

 

(7) For any week with respect to which he is receiving or has received remuneration in the form of:

 

(a) Wages in lieu of notice;

 

(b) Compensation for temporary partial disability, temporary total disability, or total and permanent disability under the Workers' Compensation Law of any state or under a similar law of the United States;

 

(c) Payments under any retirement or pension plan, system, or policy provided by a private employer or the state of Louisiana or any of its instrumentalities or political subdivisions, and towards the cost of which a base period employer is contributing or has contributed on behalf of the individual;  or by the entire prorated weekly amount of any governmental or other pension, retirement or retired pay, annuity, or any other similar periodic payment which is based on any previous work of such individual but only if such reduction is required as a condition for full tax credit against the tax imposed by the Federal Unemployment Tax Act.

 

(d)(i) For purposes of this Section, whenever the employer or employing unit, or his designated representative, or any vacation plan or any dismissal plan makes a payment or payments, or holds ready to make such payment to an individual as vacation pay, or as a vacation pay allowance, or as pay in lieu of vacation, or dismissal pay, or severance pay, such payment shall be deemed "wages" as defined in Section 1472(20)(A) prorated for the period of time which it would have taken such individual to earn such remuneration during the employment in which such payments accrued, excluding any overtime payments.

 

(ii) During a period of temporary layoff for the purpose of this Subparagraph, when an agreement between the employer and a bargaining unit representative does not allocate vacation pay allowance or pay in lieu of vacation to a specified period of time, the payment by the employer or his designated representative will be deemed to be "wages" as defined in Section 1472(20)(A) in the week or weeks the vacation is actually taken.

 

(e) If the amount payable under (a), (b), (c), and (d) above with respect to any week is less than the benefits which would otherwise be due under this Chapter, he shall be entitled to receive for such benefit period, if otherwise eligible, benefits reduced by the amount of such remuneration.  If any such benefits, payable under this Subsection, after being reduced by the amount of such remuneration, are not an even multiple of one dollar, they shall be adjusted to the nearest multiple of one dollar.

 

(f) WARN Act payments received pursuant to 29 U.S.C. 2104.

 

(8)(a) For the week, or fraction thereof, with respect to which he makes a false statement or representation knowing it to be false, or knowingly fails to disclose a material fact in obtaining or increasing benefits, whether or not he is successful in obtaining or increasing benefits, or otherwise due to his fraud receives any amount as benefits under this Chapter to which he was not entitled, for the remainder of the benefit year subsequent to the commission of the fraudulent act and continuing for the fifty-two weeks which immediately follow the week in which such determination was made.  All benefits paid with respect to such weeks shall be immediately due and on demand paid in accordance with department regulations to the administrator for the fund and such individual shall not be entitled to further benefits until repayment has been made or the claim for repayment has prescribed.  If information indicating a claimant has earned any unreported wages for weeks claimed is obtained by the administrator, prior to the administrator rendering a determination on the issue the claimant shall be notified by mail or other delivery method.  The claimant shall have seven days from the date of mailing to respond, or if notice is not by mail, then the claimant shall have seven days from the delivery date of such notice to respond.

 

(b) A claim for repayment under this Section shall prescribe against the state ten years from the date the administrator determines that repayment is due.  This prescription shall be interrupted for the period of time during which an appeal is pending, by the filing of suit for collection by the administrator or by an acknowledgment or partial payment of the indebtedness.  Any disqualification decision or determination pursuant to this Paragraph may be appealed in the same manner as from any other disqualification imposed under this Chapter.

 

(9)(a) If the administrator finds that he has not, subsequent to the beginning of the next preceding benefit year with respect to which he received benefits, had work and earned wages for insured work in an amount equal to whichever is the lesser of:

 

(i) Three-thirteenths of wages paid to him during that quarter of his current base period in which such wages were highest;  and

 

(ii) Six times the weekly benefit amount applicable to his current benefit year.

 

(b) This disqualification shall continue until such time as the claimant can demonstrate that he has had earnings as specified in this Subsection.

 

(10)(a) If the administrator finds that he has been discharged by a base period or subsequent employer for the use of illegal drugs.  For the purposes of this Paragraph, "misconduct" shall include discharge for either on or off the job use of a nonprescribed controlled substance as defined in 21 U.S.C. 812 Schedules I, II, III, IV, and V.  In order to support disqualification for drug use under this provision, the employer must prove the employee's use of the controlled substance only by a preponderance of the evidence.  In meeting this burden, the only results of employer-administered tests that shall be considered admissible evidence are those that are the result of the testing for drug usage done by the employer pursuant to a written and promulgated substance abuse rule or policy established by the employer.  Discharge of an employee for refusal to submit to a drug test, as set forth above, shall be presumed to be for misconduct.  Such disqualification shall continue until such time as the claimant can requalify by demonstrating that he:

 

(i) Has been paid wages for work subject to the Louisiana Employment Security Law  [FN1] or the unemployment insurance law of any other state of the United States equivalent to at least ten times his weekly benefit amount following the week in which the disqualifying separation occurred.

 

(ii) Has not left his last work under disqualifying circumstances.

 

(b) Furthermore, upon requalification, such claimant's benefits, as computed pursuant to the provisions of R.S. 23:1592 and R.S. 23:1595, shall be discounted by fifty percent for the remainder of his benefit year.

 

(c) All sample collection and testing for drugs under this Chapter shall be performed in accordance with the following conditions:

 

(i) The collection of samples shall be performed under reasonably sanitary conditions.

 

(ii) Samples shall be collected and tested with due regard to the privacy of the individual being tested, and in a manner reasonably calculated to prevent substitutions or interference with the collection or testing of reliable samples.

 

(iii) Sample collection shall be documented, and the documentation procedures shall include:

 

(aa) Labeling of samples so as reasonably to preclude the probability of erroneous identification of test results;  and

 

(bb) An opportunity for the employee to provide notification of any information which he considers relevant to the test, including identification of currently or recently used prescription or nonprescription drugs, or other relevant medical information.

 

(iv) Sample collection, storage, and transportation to the place of testing shall be performed so as reasonably to preclude the probability of sample contamination or adulteration;  and

 

(v) Sample testing shall conform to scientifically accepted analytical methods and procedures.  Testing shall include verification or confirmation of any positive test result by gas chromatography, gas chromatography-mass spectroscopy, or other comparably reliable analytical method, before the result of any test may be used as a basis for any disqualification under R.S. 23:1601(10).  Test results which do not exclude the possibility of passive inhalation of marijuana may not be used as a basis for disqualification under this Paragraph.  However, test results which indicate that the concentration of total urinary cannabinoids as determined by immunoassay equals or exceeds fifty nanograms/ml shall exclude the possibility of passive inhalation.

 

(d) Within the terms of the policy, an employer may require the collection and testing of samples for the following purposes:

 

(i) Investigation of possible individual employee impairment.

 

(ii) Investigation of accidents in the workplace or incidents of workplace theft.

 

(iii) Maintenance of safety for employees or the general public;  or security of property or information.

 

(iv) Maintenance of productivity, quality of products or services, or security of property or information.

 

(e) All information, interviews, reports, statements, memoranda, or test results received by the employer through its drug testing program are confidential communications and may not be used or received in evidence, obtained in discovery, or disclosed in any public or private proceeding, except in a proceeding related to an action under R.S. 23:1601(10) in a claim for unemployment compensation proceeding, hearing, or civil litigation where drug use by the tested employee is relevant.

 

(f) No cause of action for defamation of character, libel, slander, or damage to reputation arises in favor of any person against an employer who has established a program of drug or alcohol testing in accordance with this Chapter, unless:

 

(i) The results of that test were disclosed to any person other than the employer, an authorized employee or agent of the employer, the tested employee, or the tested prospective employee;

 

(ii) The information disclosed was based on a false test result;  and

 

(iii) All elements of an action for defamation of character, libel, slander, or damage to reputation as established by statute or common law, are satisfied.

 

(11) If the administrator finds that he has not, subsequent to participating in a work release program for inmates in custodial or penal institutions, worked and earned wages for insured work.

 

Amended by Acts 1950, No. 498, § 9, emerg. eff. July 8, 1950;  Acts 1952, No. 401, § 1;  Acts 1954, No. 704, § 1;  Acts 1968, No. 420, § 1;  Acts 1968, No. 655, § 1;  Acts 1971, No. 136, § 13, eff. Jan. 1, 1972;  Acts 1974, No. 393, § 1;  Acts 1974, No. 394, § 1;  Acts 1976, No. 366, § 1;  Acts 1977, No. 648, § 1;  Acts 1978, No. 285, § 1, eff. July 5, 1978;  Acts 1978, No. 517, § 2;  Acts 1978, No. 538, § 1, eff. July 12, 1978;  Acts 1979, No. 189, § 1;  Acts 1981, No. 131, § 1, eff. Oct. 1, 1981;  Acts 1983, 1st Ex.Sess. No. 2, § 1, eff. April 3, 1983;  Acts 1985, No. 566, § 1, eff. Oct. 6, 1985;  Acts 1985, No. 596, § 1, eff. Oct. 6, 1985;  Acts 1987, No. 464, § 1;  Acts 1988, No. 192, § 2, eff. July 3, 1988;  Acts 1988, No. 248, § 1;  Acts 1988, No. 249, § 1;  Acts 1988, No. 251, § 1;  Acts 1988, No. 516, § 1;  Acts 1988, No. 517, § 1;  Acts 1989, No. 349, § 1, eff. June 28, 1989;  Acts 1989, No. 443, § 1, eff. June 30, 1989;  Acts 1989, No. 744, § 1, eff. July 2, 1989;  Acts 1990, No. 296, § 1;  Acts 1990, No. 554, § 1;  Acts 1990, No. 750, § 1;  Acts 1990, No. 957, § 1;  Acts 1997, No. 429, § 1;  Acts 1998, 1st Ex.Sess., No. 106, § 1, eff. May 5, 1998;  Acts 2005, No. 111, § 1, eff. June 21, 2005;  Acts 2012, No. 344, § 1;  Acts 2012, No. 381, § 1.

 

[FN1] R.S. 23:1471 et seq.