§ 52 — Effect of failure to secure compensation

New York § 52

• Jurisdiction: New York
• Law WKC: Workers' Compensation
• Art. 4: Security For Compensation

Text

§ 52. Effect of failure to secure compensation. 1. (a) Failure to\nsecure the payment of compensation for five or less employees within a\ntwelve month period shall constitute a misdemeanor, and is punishable by\na fine of not less than one thousand nor more than five thousand\ndollars. Failure to secure the payment of compensation for more than\nfive employees within a twelve month period shall constitute a class E\nfelony, and is punishable by a fine of not less than five thousand\ndollars nor more than fifty thousand dollars in addition to any other\npenalties otherwise provided by law. It shall be an affirmative defense\nto any criminal prosecution under this section that the employer took\nreasonable steps to secure compensation.\n (b) Where any person has previously been convicted of a failure to\nsecure the payment of compensation within the preceding five years, upon\nconviction for a subsequent violation such person shall be guilty of a\nclass D felony, and fined not less than ten thousand nor more than fifty\nthousand dollars in addition to any other penalties including fines\notherwise provided by law.\n (c) Where the employer is a corporation, the president, secretary and\ntreasurer thereof shall be liable for failure to secure the payment of\ncompensation under this section. It shall be an affirmative defense to\nany action against any officer of a corporation under this section that\nthe officer took reasonable steps to ensure that the corporation secured\ncompensation, that proper internal procedures were in effect to do so,\nand that proper internal controls existed to monitor compliance with\nsaid procedures.\n (d) If at any time an employer intentionally and materially\nunderstates or conceals payroll, or intentionally and materially\nmisrepresents or conceals employee duties so as to avoid proper\nclassification for calculation of premium paid to secure compensation,\nor intentionally and materially misrepresents or conceals information\npertinent to the calculation of premium paid to secure compensation,\nsuch employer shall be deemed to have failed to secure compensation and\nshall be subject to the sanctions applicable to this section.\n (e) A stop-work order issued because an employer is deemed to have\nfailed to secure compensation under section one hundred forty-one-a of\nthis chapter shall have no effect upon an employer's or carrier's duty\nto provide benefits under this chapter or upon any of the employer's or\ncarrier's rights and defenses.\n 2. All fines imposed under this chapter, except as herein otherwise\nprovided, shall be paid directly and immediately by the officer\ncollecting the same to the chairman, and shall be paid by him into the\nuninsured employers' fund created under section twenty-six-a of this\nchapter, provided, however, that all such fines collected by justices of\ntowns and villages shall be paid to the state comptroller in accordance\nwith the provisions of section twenty-seven of the town law and section\n4-410 of the village law respectively.\n 3. In any prosecution hereunder the failure of the employer to file\nwith the chairman, within ten days after demand, a statement subscribed\nby the employer and affirmed by him as true under the penalties of\nperjury showing specifically (a) the name of the stock company, mutual\ncorporation or reciprocal insurer in which such employer is insured and\nthe number and the date of issuance and term of such policy of\ninsurance, or (b) that the said employer is insured with the state fund\nin which case he shall give the number of such policy of insurance, the\ndate of issuance and term thereof, or (c) that the said employer has\nbeen authorized to do business as a self-insurer pursuant to section\nfifty of this article, giving the date of said authorization, or (d) a\nlegal reason, if any, why said employer is not required to secure\ncompensation, shall constitute prima facie evidence that the employer\nhas failed to secure compensation as herein required. The statement to\nbe filed herein shall be subscribed by the employer or if the employer\nis a corporation by one of the officers herein named in which he shall\nstate that he has read such statement subscribed by him and knows the\ncontents thereof and that same is true of his own knowledge.\n 4. If, however, there has been an accident and the board shall have\nmade an award against the employer as a non-insured employer, the making\nof such award, except in a case where the employer had secured\ncompensation insurance which was in effect at the time of the accident\nbut the carrier later became insolvent, shall constitute prima facie\nevidence of an employment by the employer of an employee in an\noccupation in which the said employer was required to carry compensation\nand of the failure of the employer to secure the payment of workers'\ncompensation on the date of the accident involved in said award. A\ncertified copy of such award shall be received as competent evidence of\nthe making thereof in any criminal prosecution hereunder.\n 5. The chair, upon finding that an employer has failed for a period of\nnot less than ten consecutive days to make the provision for payment of\ncompensation required by section fifty of this article, may impose upon\nsuch employer, in addition to all other penalties, fines or assessments\nprovided for in this chapter, a penalty of up to two thousand dollars\nfor each ten day period of non-compliance or a sum not in excess of two\ntimes the cost of compensation for its payroll for the period of such\nfailure, which sum shall be paid into the uninsured employers' fund\ncreated under section twenty-six-a of this chapter. When an employer\nfails to provide business records sufficient to enable the chair to\ndetermine the employer's payroll for the period requested for the\ncalculation of the penalty provided in this section, the imputed weekly\npayroll for each employee, corporate officer, sole proprietor, or\npartner shall be the New York state average weekly wage, multiplied by\n1.5. Where the employer is a corporation, the president, secretary and\ntreasurer thereof shall be liable for the penalty. If the employer shall\nwithin thirty days after notice of the imposition of a penalty by the\nchair pursuant to this subdivision make an application in affidavit form\nfor a redetermination review of such penalty the chair shall make a\ndecision in writing on the issues raised on such application.\n