Bill Text: NY S07487 | 2023-2024 | General Assembly | Introduced
Bill Title: Allows penalties to be assessed against LLP and LLC members.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced) 2024-01-03 - REFERRED TO LABOR [S07487 Detail]
Download: New_York-2023-S07487-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 7487 2023-2024 Regular Sessions IN SENATE May 31, 2023 ___________ Introduced by Sen. RAMOS -- (at request of the Workers Compensation Board) -- read twice and ordered printed, and when printed to be committed to the Committee on Labor AN ACT to amend the workers' compensation law, in relation to allowing penalties to be assessed against LLP and LLC members The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 26-a of the workers' compensation law, as added by 2 chapter 578 of the laws of 1959, subdivisions 1, 2, 6 and 7-a as amended 3 by chapter 316 of the laws of 1991, paragraphs (a) and (f) of subdivi- 4 sion 2 as amended by chapter 139 of the laws of 2008, paragraph (b) of 5 subdivision 2 as amended by chapter 6 of the laws of 2007, subdivision 3 6 as added by chapter 395 of the laws of 1964, the opening paragraph of 7 subdivision 3 as amended by chapter 236 of the laws of 2005, the closing 8 paragraph of subdivision 3 as further amended by section 104 of part A 9 of chapter 62 of the laws of 2011, subdivision 5 as amended by chapter 10 419 of the laws of 1961, subdivision 6-a as added by chapter 717 of the 11 laws of 2021, the opening paragraph and paragraph (a) of subdivision 6-a 12 as amended by chapter 35 of the laws of 2022, subdivision 8 as amended 13 by chapter 276 of the laws of 1962, subdivision 12 as added by chapter 14 135 of the laws of 1969, subdivision 13 as added by chapter 323 of the 15 laws of 1980, and subdivision 14 as added by chapter 858 of the laws of 16 1985, is amended to read as follows: 17 § 26-a. Procedure and payment of compensation in claims against unin- 18 sured defaulting employers. 1. (a) Notwithstanding any other provision 19 of this chapter, when a claim for compensation is filed by an employee, 20 or in case of death by the employee's dependents, and the employer has 21 failed to secure the payment of compensation in accordance with section 22 fifty of this chapter, to make deposit of security in accordance with 23 section twenty-six of this [chapter] article and to make payment of 24 compensation into the fund created under this section according to the EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD07383-01-3S. 7487 2 1 terms of any award including, without limitation, awards made pursuant 2 to [subdivision five of] section thirteen-g, subdivision two of section 3 thirteen-f, subdivision five of section thirteen-k, subdivision five of 4 section thirteen-l and subdivision six of section thirteen-m of this 5 article, payment of the award shall be promptly made from the fund 6 created under this section in accordance with the terms thereof and the 7 provisions of subdivision three of this section. The employer shall be 8 liable with the fund for payment of the award. Where the employer is a 9 corporation, limited liability company, limited liability partnership or 10 partnership, the president, secretary [and], treasurer, member and part- 11 ner thereof shall also be personally, jointly and severally liable with 12 the corporation, limited liability company, limited liability partner- 13 ship or partnership for payment of the award. The employer shall pay the 14 award into the fund, in accordance with the time limitations contained 15 in section twenty-five of this article. 16 (b) No such award, however, for any service specified in subdivision 17 five of section thirteen-a of this article requiring advance authori- 18 zation of the employer in accordance with the provisions of such subdi- 19 vision, shall be payable from the fund unless advance authorization 20 therefor was secured from the representative of the fund or is deter- 21 mined by the board to be necessary. Notwithstanding any other provision 22 under this section, awards made pursuant to section fourteen-a of this 23 article shall not be the liability of the fund and shall not be payable 24 therefrom nor shall payment of the present value of benefits be required 25 to be paid into the aggregate trust fund pursuant to section twenty-sev- 26 en of this article in any case in which the uninsured employers' fund is 27 liable. 28 2. Uninsured employers' fund. (a) There is hereby created a fund 29 which shall be known as the "uninsured employers' fund" to provide for 30 the payment of awards against uninsured employers in accordance with the 31 provisions of this section and shall be available only for the purposes 32 stated in this subdivision, and the assets thereof shall not at any time 33 be appropriated or directed to any other use or purpose, except as set 34 forth in section fifty-a of this chapter. 35 (b) For the purpose of establishing and maintaining this fund, the 36 board, upon rendering a decision with respect to any claim for compen- 37 sation under this chapter that the employer liable therefor has failed 38 to secure the payment of compensation with respect thereto in accordance 39 with section fifty of this chapter, shall impose an assessment in the 40 sum of one thousand dollars for each ten day period of non-compliance or 41 a sum not in excess of two times the amount of the cost of compensation 42 for its payroll for the period of such failure against the employer and 43 direct its payment into the fund in connection with each such claim 44 wherein injury shall have occurred on or after the first of May, nine- 45 teen hundred fifty-nine, or in death cases where death as the result of 46 injury shall have occurred on or after said date. 47 (c) If the employer shall fail to pay these assessments into the fund 48 within ten days after date of mailing of notice thereof to [him or her] 49 them, such default shall constitute a default in payment of compensation 50 due pursuant to the provisions of section twenty-six of this article and 51 judgment therefor shall be entered in accordance therewith, all other 52 provisions of said section to be deemed applicable with respect thereto, 53 except to the extent that said provisions may be clearly inconsistent 54 with the provisions of this section. All sums collected from an unin- 55 sured employer with respect to any claim for compensation referred to in 56 this section but not payable from the fund, except fines collected fromS. 7487 3 1 such employer pursuant to section fifty-two of this chapter whether such 2 collection is made prior or subsequent to entry of judgment against such 3 employer, shall be deemed in payment of an applicable first in satisfac- 4 tion of any compensation and benefits due from such employer with 5 respect to such claim and security demand, if any, in connection there- 6 with and only when such obligations are satisfied in full shall the 7 balance of said sums collected, if any, be deemed payment in satisfac- 8 tion of and applicable to the assessments above prescribed in this 9 section. 10 (d) All sums recovered from uninsured employers on judgments entered 11 for failure to pay assessments as hereinbefore provided and for failure 12 to pay compensation and benefits which were paid from the fund herein 13 created, shall upon such recovery be paid into said fund. 14 (e) All awards made on or after July first, nineteen hundred sixty- 15 nine for every case of injury causing death for which there are no 16 persons entitled to compensation, and where there are persons entitled 17 to compensation but the total amount of such compensation is less than 18 two or five thousand dollars as the case may be exclusive of funeral 19 benefits, pursuant to the provisions of subdivision three of section 20 twenty-five-a of this article shall be paid into the uninsured employ- 21 ers' fund. 22 (f) As promptly as practicable after July first, nineteen hundred 23 ninety-one and annually thereafter as soon as practicable after January 24 first in each succeeding year, the chair shall ascertain the condition 25 of the uninsured employers' fund. The chair shall transfer to the fund 26 out of the moneys collected pursuant to subdivision two of section one 27 hundred fifty-one of this chapter an amount which will raise the net 28 cash assets of the fund to the level of either the amount spent by the 29 fund in the prior year, or the amount estimated to be expended by the 30 fund in the succeeding year, whichever is greater, except that such 31 requirement shall not apply between August first, two thousand eight and 32 August first, two thousand fifteen to the extent that section fifty-a of 33 this chapter permits the fund to be at a different level. 34 3. The commissioner of taxation and finance shall be the custodian of 35 the uninsured employers' fund and shall invest any surplus moneys there- 36 of in securities which constitute legal investments for savings banks 37 under the laws of this state and in interest bearing certificates of 38 deposit of a bank or trust company located and authorized to do business 39 in this state or of a national bank located in this state secured by a 40 pledge of direct obligations of the United States or of the state of New 41 York, or in accordance with the provisions of section ninety-eight-a of 42 the state finance law, in an amount equal to the amount of such certif- 43 icates of deposit, and may sell any of the securities or certificates of 44 deposit in which such fund is invested, if necessary for the proper 45 administration or in the best interest of such fund. Disbursements from 46 such fund as provided by this section shall be paid by the commissioner 47 of taxation and finance upon vouchers signed by the [chairman] chair. 48 The commissioner of taxation and finance, as custodian of such fund, 49 as soon as practicable after August first, nineteen hundred sixty-two 50 and annually thereafter, shall furnish to the [chairman] chair of the 51 board a statement of the fund, setting forth the balance of moneys in 52 the said fund as of the time of the preceding statement, the income of 53 the fund, a summary of payments out of the fund on account of compen- 54 sation ordered to be paid therefrom by the board, medical and other 55 expenses, and all other charges against the fund in the interim and 56 setting forth the balance of the fund remaining to its credit as of theS. 7487 4 1 end of the period being reported. Such statement shall be open to public 2 inspection in the office of the [chairman] chair, and a copy thereof 3 shall be transmitted by the [chairman] chair to the superintendent of 4 financial services. The superintendent of financial services may examine 5 into the condition of such fund at any time on [his] their own initi- 6 ative or on request of the [chairman] chair. [He] They shall verify the 7 receipts and disbursements of the fund, and shall ascertain the liabil- 8 ity of the fund upon all cases in which awards of compensation have been 9 made and charged against said fund and shall render a report of such 10 facts to the [chairman] chair. Such report shall also be open to public 11 inspection in the office of the [chairman] chair. 12 4. Upon notice to the representative of the fund, the board, if in its 13 discretion it deems the interests of the fund will be best served there- 14 by, may compromise the amount for which judgment has been entered 15 against an employer pursuant to this section and the judgment entered 16 may be modified accordingly. Such compromise shall be effective without 17 the necessity of obtaining the approval of any other state official 18 thereto, but shall not reduce the amount of benefits payable to or on 19 behalf of any claimant under this section. 20 5. The [chairman] chair of the [workmen's] workers' compensation board 21 shall appoint an employee of the board who is an attorney at law duly 22 admitted to practice in the state of New York to serve as the represen- 23 tative of the fund created under this section and shall assign to assist 24 [him] such attorney in the discharge of [his] their duties as such 25 representative under the provisions of this section, such other employ- 26 ees of the board as the [chairman] chair deems necessary for this 27 purpose. Such representative may apply to the [chairman] chair for 28 authority to hire such medical and other experts and to defray the 29 expense thereof and of such witnesses as are necessary to a proper 30 defense of the claim within an amount in the discretion of the [chair-31man] chair and, if authorized, such amount shall be a charge against 32 said fund. The representative of the fund may appear for and represent 33 the interest of the fund in any case in court involving the rights of 34 the fund against another not in the same employ as the employee who 35 received benefits under this chapter and whose injury or death was 36 caused by the negligence or wrong of such other. 37 6. Whenever it appears, in a claim for benefits under this chapter, 38 that the employer may have failed to secure the payment of compensation 39 in accordance with section fifty of this chapter, the fund shall be 40 given notice of all proceedings in the claim. In such event, the 41 provisions of this chapter with respect to procedure, the right to be 42 heard and the right to apply to the board for review of a referee's 43 decision and to appeal to the courts shall be reserved to the claimant, 44 to the uninsured employer, and to the fund. Upon the application of the 45 representative of the fund for a modification or rescission or review of 46 an award, the board may review any award, decision or order and, on such 47 review, may affirm, reverse, or modify any decision or award as the law 48 and the facts may require, or take such other action as may be in the 49 interest of justice. An appeal to the appellate division of the supreme 50 court, third department, or to the court of appeals shall not operate as 51 a stay of the payments by the uninsured employer or by the fund of the 52 compensation required by the terms of the award or of the payment of the 53 doctor's bills found to be fair and reasonable. Where such award is 54 reduced or rescinded upon appeal, the uninsured employer or the fund, 55 whichever made payment, shall be entitled to reimbursement in a sum 56 equal to the compensation in dispute paid by such party to the respond-S. 7487 5 1 ent pending adjudication of the appeal, and, if the claim for workers' 2 compensation is disallowed, to a sum equal to the amount of the doctor's 3 bills paid by such party pending adjudication of the appeal. Such 4 reimbursement shall be paid from administration expenses as provided in 5 section one hundred fifty-one of this chapter upon vouchers approved by 6 the chair. To the extent of any reimbursement to the fund, the uninsured 7 employer shall be entitled to reimbursement from the fund for payments 8 made into the fund in accordance with subdivision one of this section. 9 6-a. In the event that the board is unable to determine the identity 10 of the responsible insurance carrier for the employer within thirty days 11 of the filing of a new claim, the board shall: 12 (a) appoint the uninsured employers' fund as the responsible party 13 until such time as the identity of the responsible insurance carrier for 14 the employer is determined. Upon such appointment, the uninsured employ- 15 ers' fund shall immediately commence payments and provide medical care 16 in accordance with the provisions of this chapter; 17 (b) schedule a hearing to determine the identity of the responsible 18 insurance carrier for the employer and to determine such claim for 19 compensation in accordance with the provisions of subdivision one of 20 this section; and 21 (c) provide notice of such claim and hearing to the employer by certi- 22 fied mail, return receipt requested, with a direction that the employer 23 provide proof of having insurance in effect as provided by section ten 24 of this article. 25 7. All the rights, powers, and benefits of the employer under section 26 twenty-nine of this [chapter] article shall become the rights, powers 27 and benefits of the fund in any case in which the fund has paid or is 28 paying compensation to an injured employee or [his] their dependents 29 under this section. If the employer has also paid compensation to or on 30 behalf of the injured employee or [his] their dependents in such case 31 any recovery by the fund pursuant to subdivision one of section twenty- 32 nine of this article shall first be applied to repayment of any awards 33 paid by the fund to or on behalf of the injured employee or [his] their 34 dependents in such case, the balance then applied to any outstanding 35 unsatisfied demand for security in said case and assessments imposed 36 against the employer pursuant to the provisions of this section, the 37 remainder, if any, to be returned to the employer. If the employer has 38 also paid compensation to or on behalf of the injured employee or [his] 39 their dependents in such case, that portion, if any, of a recovery by 40 the fund pursuant to subdivision two of section twenty-nine of this 41 article which is in excess of the total amount of compensation awarded 42 to or on behalf of such injured employee or [his] their dependents and 43 the reasonable and necessary expenditures incurred in effecting such 44 recovery shall be apportioned between the injured employee or [his] 45 their dependents and the fund in the manner provided in said subdivision 46 two. The balance of said recovery shall first be applied to reimburse 47 the fund for its reasonable and necessary expenditures in effecting such 48 recovery and the remainder shall be applied to repayment of any award 49 paid by the fund to or on behalf of the injured employee or [his] their 50 dependents in such case. If there still remains a balance it shall first 51 be applied to the outstanding unsatisfied demand for security, if any, 52 in said case and assessments, if any, imposed against the employer 53 pursuant to the provisions of this section; the remainder, if any, to be 54 returned to the employer. 55 7-a. Notwithstanding any other provision of section twenty-nine of 56 this article to the contrary, a compromise by the claimant of [his orS. 7487 6 1her] their cause of action as set forth in said section twenty-nine of 2 this article, in an amount less than the sum paid to or on behalf of the 3 claimant from the uninsured employers' fund, shall be made only with the 4 written consent of the chair. 5 8. The provisions of this section with respect to the liability of the 6 uninsured employers' fund to pay awards against uninsured defaulting 7 employers shall apply only to claims wherein the injury shall occur on 8 or after the first day of October, nineteen hundred sixty-two, or where- 9 in death shall occur as the result of an injury sustained on or after 10 the aforesaid first day of October. 11 9. The [chairman] chair may make reasonable regulations for the proc- 12 essing and payment of compensation out of the uninsured employers' fund. 13 10. The liability of the [chairman] chair, the commissioner of taxa- 14 tion and finance, the fund and the state of New York with respect to 15 payment of any compensation, benefits, expenses, fees or disbursements 16 properly chargeable against the uninsured employers' fund shall be 17 limited to the assets in said fund and they shall not otherwise in any 18 way or manner be liable for the making of any such payment. 19 11. All assessments payable pursuant to the provisions of this section 20 shall be liens against the assets of the employer liable therefor with- 21 out limit of amount, subordinate, however, to claims for unpaid wages 22 and prior recorded liens. 23 12. Whenever the term employer is used in this section it shall be 24 deemed to include without limitation a contractor liable for the payment 25 of compensation pursuant to section fifty-six of [the workmen's compen-26sation law] this chapter. 27 13. Notwithstanding any other provision of this chapter, in any case 28 of injury or death to the president, secretary, treasurer or any other 29 officer charged with the obligation of obtaining workers' compensation 30 insurance, of a corporation, any awards of compensation or medical 31 expenses payable to or on behalf of such officer or to [his] their 32 surviving spouse, children and dependents as defined by section sixteen 33 of this article made against the corporation as an uninsured employer 34 solely because of the injury or death of such officer, shall in no event 35 be the liability of the uninsured employers' fund and shall not be paya- 36 ble therefrom. 37 14. Notwithstanding any other provision of this chapter, in any case 38 of injury or death to a self-employed person or to a partner of a part- 39 nership as defined in section ten of the partnership law, any awards of 40 compensation or medical expenses payable to or on behalf of such self- 41 employed person or partner of a partnership or to [his] their surviving 42 spouse, children and dependents as defined by section sixteen of this 43 article made against the self-employed person or partnership as an unin- 44 sured employer solely because of the injury or death of such self-em- 45 ployed person or partner, shall in no event be the liability of the 46 uninsured employers' fund and shall not be payable therefrom. 47 15. Notwithstanding any other provision of this chapter, in any case 48 of injury or death to a self-employed person or to a member of a limited 49 liability company as defined in section one hundred two of the limited 50 liability company law, any awards of compensation or medical expenses 51 payable to or on behalf of such self-employed person or member of a 52 limited liability company or to their surviving spouse, children and 53 dependents as defined by section sixteen of this article made against 54 the self-employed person or limited liability company as an uninsured 55 employer solely because of the injury or death of such self-employedS. 7487 7 1 person or member, shall in no event be the liability of the uninsured 2 employers' fund and shall not be payable therefrom. 3 § 2. Section 52 of the workers' compensation law, as amended by chap- 4 ter 6 of the laws of 2007, subdivision 5 as amended by section 19 of 5 part GG of chapter 57 of the laws of 2013, is amended to read as 6 follows: 7 § 52. Effect of failure to secure compensation. 1. (a) Failure to 8 secure the payment of compensation for five or less employees within a 9 twelve month period shall constitute a misdemeanor, and is punishable by 10 a fine of not less than one thousand nor more than five thousand 11 dollars. Failure to secure the payment of compensation for more than 12 five employees within a twelve month period shall constitute a class E 13 felony, and is punishable by a fine of not less than five thousand 14 dollars nor more than fifty thousand dollars in addition to any other 15 penalties otherwise provided by law. It shall be an affirmative defense 16 to any criminal prosecution under this section that the employer took 17 reasonable steps to secure compensation. 18 (b) Where any person has previously been convicted of a failure to 19 secure the payment of compensation within the preceding five years, upon 20 conviction for a subsequent violation such person shall be guilty of a 21 class D felony, and fined not less than ten thousand nor more than fifty 22 thousand dollars in addition to any other penalties including fines 23 otherwise provided by law. 24 (c) Where the employer is a corporation, limited liability company, 25 limited liability partnership or partnership, the president, secretary 26 [and], treasurer, member or members and partner or partners thereof 27 shall be liable for failure to secure the payment of compensation under 28 this section. It shall be an affirmative defense to any action against 29 any officer of a corporation, member of a limited liability company or 30 partner of a limited liability partnership or partnership under this 31 section that the officer, member or partner took reasonable steps to 32 ensure that the corporation, limited liability company, limited liabil- 33 ity partnership or partnership secured compensation, that proper inter- 34 nal procedures were in effect to do so, and that proper internal 35 controls existed to monitor compliance with said procedures. 36 (d) If at any time an employer intentionally and materially under- 37 states or conceals payroll, or intentionally and materially misrepre- 38 sents or conceals employee duties so as to avoid proper classification 39 for calculation of premium paid to secure compensation, or intentionally 40 and materially misrepresents or conceals information pertinent to the 41 calculation of premium paid to secure compensation, such employer shall 42 be deemed to have failed to secure compensation and shall be subject to 43 the sanctions applicable to this section. 44 (e) A stop-work order issued because an employer is deemed to have 45 failed to secure compensation under section one hundred forty-one-a of 46 this chapter shall have no effect upon an employer's or carrier's duty 47 to provide benefits under this chapter or upon any of the employer's or 48 carrier's rights and defenses. 49 2. All fines imposed under this chapter, except as herein otherwise 50 provided, shall be paid directly and immediately by the officer or 51 member collecting the same to the [chairman] chair, and shall be paid by 52 [him] them into the uninsured employers' fund created under section 53 twenty-six-a of this chapter, provided, however, that all such fines 54 collected by justices of towns and villages shall be paid to the state 55 comptroller in accordance with the provisions of section twenty-seven of 56 the town law and section 4-410 of the village law respectively.S. 7487 8 1 3. In any prosecution hereunder the failure of the employer to file 2 with the [chairman] chair, within ten days after demand, a statement 3 subscribed by the employer and affirmed by [him] them as true under the 4 penalties of perjury showing specifically (a) the name of the stock 5 company, mutual corporation or reciprocal insurer in which such employer 6 is insured and the number and the date of issuance and term of such 7 policy of insurance, or (b) that the said employer is insured with the 8 state fund in which case [he] they shall give the number of such policy 9 of insurance, the date of issuance and term thereof, or (c) that the 10 said employer has been authorized to do business as a self-insurer 11 pursuant to section fifty of this article, giving the date of said 12 authorization, or (d) a legal reason, if any, why said employer is not 13 required to secure compensation, shall constitute prima facie evidence 14 that the employer has failed to secure compensation as herein required. 15 The statement to be filed herein shall be subscribed by the employer or 16 if the employer is a corporation, limited liability company, limited 17 liability partnership or partnership by one of the officers, members or 18 partners herein named in which [he] they shall state that [he has] they 19 have read such statement subscribed by [him] them and knows the contents 20 thereof and that same is true of [his] their own knowledge. 21 4. If, however, there has been an accident and the board shall have 22 made an award against the employer as a non-insured employer, the making 23 of such award, except in a case where the employer had secured compen- 24 sation insurance which was in effect at the time of the accident but the 25 carrier later became insolvent, shall constitute prima facie evidence of 26 an employment by the employer of an employee in an occupation in which 27 the said employer was required to carry compensation and of the failure 28 of the employer to secure the payment of workers' compensation on the 29 date of the accident involved in said award. A certified copy of such 30 award shall be received as competent evidence of the making thereof in 31 any criminal prosecution hereunder. 32 5. The chair, upon finding that an employer has failed for a period of 33 not less than ten consecutive days to make the provision for payment of 34 compensation required by section fifty of this article, may impose upon 35 such employer, in addition to all other penalties, fines or assessments 36 provided for in this chapter, a penalty of up to two thousand dollars 37 for each ten day period of non-compliance or a sum not in excess of two 38 times the cost of compensation for its payroll for the period of such 39 failure, which sum shall be paid into the uninsured employers' fund 40 created under section twenty-six-a of this chapter. When an employer 41 fails to provide business records sufficient to enable the chair to 42 determine the employer's payroll for the period requested for the calcu- 43 lation of the penalty provided in this section, the imputed weekly 44 payroll for each employee, corporate officer, sole proprietor, or part- 45 ner shall be the New York state average weekly wage, multiplied by 1.5. 46 Where the employer is a corporation, limited liability company, limited 47 liability partnership or partnership, the president, secretary [and], 48 treasurer, member and partner thereof shall be liable for the penalty. 49 If the employer shall within thirty days after notice of the imposition 50 of a penalty by the chair pursuant to this subdivision make an applica- 51 tion in affidavit form for a redetermination review of such penalty the 52 chair shall make a decision in writing on the issues raised on such 53 application. 54 § 3. Subdivision 3 of section 131 of the workers' compensation law, 55 as added by chapter 6 of the laws of 2007, is amended to read as 56 follows:S. 7487 9 1 (3) The chair, upon finding that an employer has failed to keep true 2 and accurate records as required by this section, may impose upon such 3 employer, in addition to all other penalties, fines or assessments 4 provided for in this chapter, one thousand dollars for each ten day 5 period of non-compliance or a sum not in excess of two times the cost of 6 compensation for its payroll for the period of such violation, which sum 7 shall be paid into the uninsured employers' fund created under section 8 twenty-six-a of this chapter. When an employer fails to provide business 9 records sufficient to enable the chair to determine the employer's 10 payroll for the period requested for the calculation of the penalty 11 provided in this section, the imputed weekly payroll for each employee, 12 corporate officer, sole proprietor, member, or partner shall be the New 13 York state average weekly wage, multiplied by 1.5. Where the employer is 14 a corporation, limited liability company, limited liability partnership 15 or partnership the corporation, limited liability company, limited 16 liability partnership or partnership, and any of the following shall be 17 liable for the penalty provided in this subdivision: the president, 18 secretary [and], treasurer, member or members and partner or partners, 19 respectively. If the employer shall within thirty days after notice of 20 the imposition of a penalty by the chair pursuant to this subdivision 21 make an application in affidavit form for a redetermination review of 22 such penalty, the chair shall make a decision in writing on the issues 23 raised on such application. 24 § 4. Subdivision 1 of section 220 of the workers' compensation law, as 25 amended by section 18 of part SS of chapter 54 of the laws of 2016, is 26 amended to read as follows: 27 1. Any employer who fails to make provision for payment of disability 28 or family leave benefits as required by section two hundred eleven of 29 this article within ten days following the date on which such employer 30 becomes a covered employer as defined in section two hundred two of this 31 article shall be guilty of a misdemeanor and upon conviction be punisha- 32 ble by a fine of not less than one hundred nor more than five hundred 33 dollars or imprisonment for not more than one year or both, except that 34 where any person has previously been convicted of a failure to make 35 provisions for payment of disability or family leave benefits within the 36 preceding five years, upon conviction for a second violation such person 37 shall be fined not less than two hundred fifty nor more than one thou- 38 sand two hundred fifty dollars in addition to any other penalties 39 including fines otherwise provided by law, and upon conviction for a 40 third or subsequent violation such person may be fined up to two thou- 41 sand five hundred dollars in addition to any other penalties including 42 fines otherwise provided by law. Where the employer is a corporation, 43 limited liability company, limited liability partnership or partnership, 44 the president, secretary, treasurer, member, partner, or officers exer- 45 cising corresponding functions, shall each be liable under this section. 46 § 5. This act shall take effect immediately.
