S T A T E   O F   N E W   Y O R K
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                                  4141

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                            January 29, 2015
                               ___________

Introduced by M. of A. WRIGHT -- read once and referred to the Committee
  on Labor

AN ACT to amend the workers' compensation law, in relation to establish-
  ing a private right of action against non-compliant employers

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The workers' compensation law is amended by  adding  a  new
section 138 to read as follows:
  S 138. PRIVATE RIGHT OF ACTION. 1. RIGHT ESTABLISHED.  NOTWITHSTANDING
ANY OTHER PROVISION OF LAW TO THE CONTRARY, EMPLOYEES, OR IN THE CASE OF
DEATH OF THE EMPLOYEE, SUCH EMPLOYEE'S DEPENDENTS AND INSURANCE CARRIERS
SHALL  HAVE  THE  RIGHT  TO  FILE  A CIVIL SUIT, IN A COURT OF COMPETENT
JURISDICTION, AGAINST AN EMPLOYER AS PROVIDED HEREIN.
  2. CLAIMS. (A) WHEN A CLAIM FOR COMPENSATION IS FILED BY AN  EMPLOYEE,
OR  IN  THE CASE OF DEATH OF THE EMPLOYEE, BY THE EMPLOYEE'S DEPENDENTS,
AND THE EMPLOYER HAS FAILED TO SECURE THE  PAYMENT  OF  COMPENSATION  IN
ACCORDANCE  WITH SECTION FIFTY OF THIS CHAPTER, TO MAKE DEPOSIT OF SECU-
RITY IN ACCORDANCE WITH SECTION TWENTY-SIX  OF  THIS  CHAPTER,  TO  MAKE
PAYMENT OF COMPENSATION INTO THE FUND CREATED UNDER SECTION TWENTY-SIX-A
OF  THIS  CHAPTER ACCORDING TO THE TERMS OF ANY AWARD INCLUDING, WITHOUT
LIMITATION, AWARDS MADE PURSUANT TO SUBDIVISION FIVE  OF  SECTION  THIR-
TEEN-G,  SUBDIVISION  TWO  OF  SECTION  THIRTEEN-F,  SUBDIVISION FIVE OF
SECTION THIRTEEN-K, SUBDIVISION FIVE OF SECTION THIRTEEN-L AND  SUBDIVI-
SION  SIX OF SECTION THIRTEEN-M OF THIS CHAPTER, OR TO MAKE PAYMENT ON A
PREMIUM IN THREE CONSECUTIVE CALENDAR  MONTHS,  PROVIDED,  THAT  PARTIAL
PAYMENT SHALL CONSTITUTE NON-PAYMENT, SUCH EMPLOYEE OR EMPLOYEE'S DEPEN-
DENTS  MAY  INSTITUTE  AN  ACTION  IN A COURT OF COMPETENT JURISDICTION,
SUBJECT TO THE LIMITATIONS SET FORTH IN SUBDIVISIONS THREE AND  FOUR  OF
THIS SECTION.
  (B)  WHEN  A CLAIM FOR COMPENSATION IS FILED BY AN EMPLOYEE, OR IN THE
CASE OF DEATH OF THE EMPLOYEE, BY THE  EMPLOYEE'S  DEPENDENTS,  AND  THE

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04797-01-5
              

A. 4141                             2

EMPLOYER  HAS FAILED TO SECURE THE PAYMENT OF COMPENSATION IN ACCORDANCE
WITH SECTION FIFTY OF THIS CHAPTER,  TO  MAKE  DEPOSIT  OF  SECURITY  IN
ACCORDANCE  WITH  SECTION TWENTY-SIX OF THIS CHAPTER, TO MAKE PAYMENT OF
COMPENSATION  INTO  THE  FUND CREATED UNDER SECTION TWENTY-SIX-A OF THIS
CHAPTER ACCORDING TO THE TERMS OF ANY AWARD INCLUDING,  WITHOUT  LIMITA-
TION,  AWARDS  MADE  PURSUANT TO SUBDIVISION FIVE OF SECTION THIRTEEN-G,
SUBDIVISION TWO OF SECTION THIRTEEN-F, SUBDIVISION FIVE OF SECTION THIR-
TEEN-K, SUBDIVISION FIVE OF SECTION THIRTEEN-L AND  SUBDIVISION  SIX  OF
SECTION  THIRTEEN-M  OF THIS CHAPTER, OR TO MAKE PAYMENT ON A PREMIUM IN
THREE CONSECUTIVE CALENDAR MONTHS, PROVIDED, THAT PARTIAL PAYMENT  SHALL
CONSTITUTE  NON-PAYMENT,  AN  INSURER  OR  INSURERS  THAT HAD PREVIOUSLY
INSURED SUCH EMPLOYER MAY INSTITUTE AN ACTION IN A  COURT  OF  COMPETENT
JURISDICTION, SUBJECT TO THE LIMITATIONS SET FORTH IN SUBDIVISIONS THREE
AND FOUR OF THIS SECTION AND PROVIDED THAT IN THE CASE OF NON-PAYMENT OF
A  PREMIUM  ONLY THE INSURER AT THE TIME OF NON-PAYMENT MAY INSTITUTE AN
ACTION AND PROVIDED FURTHER, THAT IN SUCH INSTANCE AN EMPLOYEE DESCRIBED
IN PARAGRAPH (A) OF THIS SUBDIVISION MAY ALSO  FILE  AN  ACTION  AGAINST
SUCH EMPLOYER.
  3.  NOTICE.  (A)  A  PROCEEDING  COMMENCED UNDER THIS SECTION MAY ONLY
BEGIN NINETY DAYS AFTER THE EMPLOYEE OR INSURER HAS PROVIDED  NOTICE  OF
COMPLAINT   AND  SERVED  SUCH  NOTICE  CONSISTENT  WITH  THE  APPLICABLE
PROVISIONS OF THE CIVIL PRACTICE LAW AND RULES ON SERVICE OF PROCESS.
  (B) WHENEVER AN ACTION IS BROUGHT UNDER THIS SECTION FOR  THE  EMPLOY-
ER'S  FAILURE TO MAKE PAYMENTS ON A PREMIUM FOR THREE CONSECUTIVE CALEN-
DAR MONTHS, NO CAUSE  OF  ACTION  SHALL  BE  SUSTAINED  IF  THE  INSURER
COLLECTS,  OR  ATTEMPTS  TO COLLECT THE UNPAID PREMIUM DURING THE NOTICE
PERIOD PROVIDED FOR IN PARAGRAPH (A) OF THIS SUBDIVISION.
  4. PENALTIES. (A) A PLAINTIFF THAT  COMMENCES  AN  ACTION  UNDER  THIS
SECTION  SHALL  BE  ENTITLED  TO  TWENTY-FIVE  PERCENT OF THE EMPLOYER'S
UNPAID PREMIUM OR TWENTY-FIVE THOUSAND DOLLARS,  PROVIDED  THAT  IN  THE
CASE OF AN EMPLOYER SUBJECT TO SECTION TWENTY-SIX-A OF THIS CHAPTER, THE
PREMIUM  SHALL  BE  CALCULATED USING THE PREVAILING RATES OF COVERAGE IN
THE GEOGRAPHICAL AREA IN WHICH THE  EMPLOYER  OPERATES,  PROVIDED  THAT,
SHOULD  SUFFICIENT FACTS EXIST TO SHOW THAT THE EMPLOYER OPERATES STATE-
WIDE, THE PREVAILING RATES OF THE STATE INSURANCE FUND SHALL BE USED.
  (B) A PLAINTIFF THAT COMMENCES AN ACTION UNDER THIS SECTION  SHALL  BE
ENTITLED TO PUNITIVE DAMAGES UP TO TWENTY-FIVE THOUSAND DOLLARS.
  (C)  A  PLAINTIFF THAT COMMENCES AN ACTION UNDER THIS SECTION SHALL BE
ENTITLED TO ALL COURT COSTS AND REASONABLE ATTORNEY'S FEES.
  (D) THE BALANCE OF ANY SETTLEMENT UNDER THIS SECTION SHALL BE DEPOSIT-
ED IN THE UNINSURED EMPLOYER'S  FUND  ESTABLISHED  PURSUANT  TO  SECTION
TWENTY-SIX-A OF THIS CHAPTER.
  S  2. This act shall take effect one year after it shall have become a
law.