WORKERS’ COMPENSATION/CONSTITUTIONAL LAW—OPT-OUT AND THE FOURTH ERA OF WORKERS’ COMPENSATION: HAS INDUSTRY LEFT THE BARGAINING TABLE?

Over the past decade, state legislatures have been actively exploring politically feasible ways to lower workers’ compensation insurance costs on employers. In 2013, Oklahoma made a bold move and adopted the Oklahoma Employee Injury Benefit Act (OEIBA) which enabled employers to “opt-out” of Oklahoma’s workers’ compensation system if they administered alternative benefit plans governed by the Employee Retirement Income Security Act (ERISA). The plans allowed for the retention of tort immunity for employers. Ultimately, the Oklahoma Supreme Court held the OEIBA unconstitutional for violating the Oklahoma Constitution’s ban on “special laws.” This Article outlines three distinct historical eras of state workers’ compensation and argues that we have now entered a fourth era, defined by the pursuit of state workers’ compensation alternatives. By evaluating the successful legal challenges to the OEIBA, this Article contemplates the feasibility of ERISA-governed alternative benefit plans and whether they can effectively retain workers’ compensation tort immunity and divest states from meaningful oversight of injured worker benefits