§ 28-36-15 - Penalty for failure to secure compensation – Personal liability of corporate officers.
SECTION 28-36-15
§ 28-36-15 Penalty for failure to securecompensation – Personal liability of corporate officers. – (a) Any employer required to secure the payment of compensation under chapters29 – 38 of this title who knowingly fails to secure that compensationshall be guilty of a felony and shall be subject to imprisonment for up to two(2) years. In addition to the foregoing, the employer shall be subject to acivil penalty punished by a fine not to exceed one thousand dollars ($1,000)for each day of noncompliance with the requirements of this title. The directorshall institute any and all reasonable measures to comprehensively monitor,investigate, and otherwise discover all employer noncompliance with thissection and shall establish rules and regulations governing these measures.Each day shall constitute a separate and distinct offense for calculation ofthe penalty. Where that employer is a corporation the president, vicepresident, secretary, treasurer, and other officers of the corporation, shallbe severally liable for the fine, penalty or imprisonment as provided in thissection for the failure of that corporation to secure the payment ofcompensation. The president, vice president, secretary, treasurer, and otherofficers of the corporation shall also be severally personally liable, jointlywith the corporation for any compensation or other benefit which may accrueunder those chapters in respect to any injury which may occur to any employeeof that corporation while it fails to secure the payment of compensation asrequired by those chapters.
(b) Where the employer is a limited liability company, themanagers and managing members who knowingly fail to secure the payment ofcompensation under chapters 29 – 38 of this title shall be guilty of afelony and shall be subject to imprisonment for up to two (2) years. Themanagers and managing members shall also be severally liable for the fine,penalty or imprisonment as provided in this section for the failure of thatcompany to secure the payment of compensation. The managers and managingmembers shall be severally personally liable, jointly with the company, for anycompensation or other benefit which may accrue under those chapters in respectto any injury which may occur to any employee of that company while it fails tosecure the payment of compensation as required by those chapters.
(c) Where the employer is a partnership, or a registeredlimited liability partnership, the partners who knowingly fail to secure thepayment of compensation under chapters 29 – 38 of this title shall beguilty of a felony and shall be subject to imprisonment for up to two (2)years. The partners shall also be severally liable for the fine, penalty, orimprisonment as provided in this section for the failure of that partnership tosecure the payment of compensation. The partners shall be severally personallyliable, jointly with the partnership, for any compensation or other benefitwhich may accrue under those chapters in respect to any injury which may occurto any employee of that partnership while it fails to secure the payment asrequired by those chapters.
(d) Where the employer is a limited partnership or aregistered limited liability limited partnership, the general partners whoknowingly fail to secure the payment of compensation under chapters 29 –38 of this title shall be guilty of a felony and shall be subject toimprisonment for up to two (2) years. The general partners shall also beseverally liable for the fine, penalty or imprisonment as provided in thissection for the failure of that limited partnership to secure the payment ofcompensation. The general partners shall be severally personally liable,jointly with the limited partnership, for any compensation or other benefitwhich may accrue under those chapters in respect to any injury which may occurto any employee of that partnership while it fails to secure the payment ofcompensation as required by those chapters.
(e) All criminal actions for any violation of this sectionshall be prosecuted by the attorney general. The attorney general shallprosecute actions to enforce the payment of penalties and fines at the requestof the director. The workers' compensation court shall have jurisdiction overall civil actions filed pursuant to this section.
The court shall consider the following factors in assessing acivil penalty: gravity of offense, resources of the employer, effect of thepenalty on employees of the company, the reason for the lapse in coverage, andthe recommendation of the director. Following a review of the factors set forthabove, the court may suspend all or a part of a civil penalty or shallestablish a time table for compliance with any court order.
(f) As soon as practicable after the director receives noticeof noncompliance under this section, the director shall determine whether causeexists for the imposition of a civil penalty. Unless the director determinesthat the noncompliance was unintentional or the result of a clerical error andsubject to the administrative proceedings under subsection (g) of this section,the director shall commence an action in the workers' compensation court toassess a civil penalty against the employer as set forth in subsection (a) ofthis section and shall refer the matter to the attorney general for prosecutionof criminal charges.
(2) The director shall bring a civil action in the workers'compensation court to collect all payments and penalties ordered and not paid.All civil actions for any violations of this chapter or of any of the rules orregulations promulgated by the director, or for the collection of payments inaccordance with § 28-37-13, 28-33-17.3(a)(2) or 28-33-17.3(a)(3) or civilpenalties under this chapter, shall be prosecuted by any qualified member ofthe Rhode Island bar whom the director may designate, in the name of thedirector, and the director is exempt from giving surety for costs in anyproceedings.
(g) In the case of unintentional noncompliance ornoncompliance resulting from clerical error where the uninsured period is lessthan one year from the date of discovery and there were no employees injuredduring the uninsured period and the employer has not been subject to any otherfindings of noncompliance with these chapters, the director shall assess anadministrative penalty of not less than the estimated annual workers'compensation insurance premium for that employer and not more than triple thatamount. Any party has the right to appeal the orders of the director. Suchappeal shall be to the workers' compensation court in the first instance andthereafter from the workers' compensation court to the Rhode Island supremecourt in accordance with § 28-35-30.
(h) The director shall collect all payments under thischapter under the rules and regulations that may be set forth by the director.All fines collected pursuant to this section shall be deposited to a restrictedreceipt account to be administered by the director of the department of laborand training in his or her sole discretion to carry out chapters 29 – 38of this title.
(i) In that the operation of a commercial enterprise withoutthe required workers' compensation insurance is a crime and creates a clear andpresent danger of irreparable harm to employees who are injured while theemployer is uninsured, the director shall suspend the operation of the businessimmediately and until workers' compensation and employers' liability insuranceis secured consistent with these chapters. The director shall lift thesuspension upon receipt of satisfactory proof of insurance and evidencesufficient to satisfy the director that the employer is in full compliance withthese chapters. Any party has the right to appeal the suspension to theworkers' compensation court where the matter shall proceed pursuant to theworkers' compensation court rules of procedure.
(2) In the event that the employer shall fail to comply withthe director's order of suspension, the director may apply immediately to theworkers' compensation court for an order directing the employer to comply withthe director's prior orders.
(3) Actions filed with the workers' compensation courtpursuant to this section shall not be subject to a pretrial conference inaccordance with § 28-35-20 but shall be assigned consistent with theworkers' compensation court rules of procedure.
(4) Interest shall accrue on unpaid penalties during thependency of any appeal at the rate per annum provided in § 9-21-10.
(j) These provisions shall take effect upon passage except§ 28-29-2(6)(iv) which shall take effect on January 1, 2006.