Provided By Touchstone Consulting Group Workers Compensation Employer Penalties

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1 Provided By Touchstone Consulting Group Workers Compensation Employer New Jersey s workers compensation laws determine the benefits available to employees who are injured in the course and scope of employment. An injury qualifies for workers compensation coverage if the damage or harm an employee suffers is work-related. Workers compensation laws in New Jersey determine the penalties employers face if they fail to comply with state requirements. The New Jersey Division of Workers Compensation (DWC), part of the New Jersey Department of Labor and Workforce Development, has the authority to enforce compliance throughout the state. FAILURE TO MAINTAIN ADEQUATE COVERAGE Employers that do not maintain adequate coverage for their workers compensation liability through an insurance policy or through self-insurance are subject to criminal and administrative penalties. The DWC considers an employer s workers compensation coverage to be inadequate if the employer fails to produce proof of coverage upon request. Proof of coverage, which must indicate the effective dates of coverage, includes: A copy of a current certificate of insurance issued by a provider licensed in New Jersey; A sworn affidavit by the agent of an insurance provider stating the employer s policy number and the effective dates of coverage; Documents showing that an application for coverage has been filed with the New Jersey Compensation Rating and Inspection Bureau (CRIB); or A copy of the certificate of approval for self-insurance issued by the New Jersey Department of Banking and Insurance (DBI). Criminal An employer that fails to obtain or maintain adequate coverage may be charged as a disorderly person, punishable by a fine of up to $1,000, imprisonment for up to six months or both. Failure to maintain adequate coverage includes: Misrepresenting one or more employees as independent contractors; and Providing false or misleading information concerning the number of employees. Employers that knowingly fail to maintain adequate coverage are also subject to stopwork orders issued by the DWC (see below for more information on stop-work orders). Officers of a corporation may be personally liable for the corporation s failure to secure coverage if the officers are actively engaged in the corporate business. Corporate officers include the president, vice-president, secretary and treasurer of a business. This guide is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. It is provided for general informational purposes only. It broadly summarizes state statutes and regulations generally applicable to private employers, but does not include references to other legal resources unless specifically noted. Readers should contact legal counsel for legal advice. Contractors may become liable for any compensation due to an injured employee hired by a subcontractor if the subcontractor does not have adequate coverage. However, New Jersey law allows contractors to seek reimbursement from violating subcontractors Zywave, Inc. All rights reserved. JPA 05/15

2 Administrative In addition to criminal penalties, the DWC may also impose a $5,000 fine on employers that are uninsured or allow their coverage to lapse for up to 10 days. Additional $5,000 fines are possible for every subsequent 10-day period the employer is without adequate coverage. Employers may also be required to pay extra $1,000 fines if they cannot produce sufficient proof of adequate coverage. The DWC will allow employers the opportunity to present evidence against an alleged violation of the coverage requirements. Upon evaluating the evidence, the initial penalty may be dismissed or partially abated. The DWC considers the following factors when making an abatement decision: The length of time the employer was without adequate coverage; Whether a compensable injury occurred while the employer was inadequately covered; Whether the employer has a past history of violations (this includes violations made by entities in which the employer was an owner, officer or principal shareholder); The employer s good faith efforts; The size of the employer s business; and Any other material factor. Stop-Work Orders Employers are subject to stop-work orders if they knowingly: Fail to provide adequate workers compensation coverage for their employees; Misrepresent one or more employees as independent contractors; or Provide false, incomplete or misleading information regarding the number of employees. Knowingly means the employer has: Previously obtained workers compensation insurance and the insurance has been cancelled, discontinued or not renewed; Been advised of the need for workers compensation coverage by the DWC or any other governmental agency; or Received one or more penalties for violating workers compensation coverage requirements (including failure to obtain coverage, failure to qualify for self-insurance, misreporting or misrepresenting the number of employees, and misreporting or misrepresenting employees as independent contractors). Stop-work orders are issued by the DWC within 72 hours of the conclusion of an investigation. Employers that receive a stop-work order must typically cease all business operations until the order expires. This applies to every site affected by the violation. A stop-work order becomes effective when it s delivered to the employer. Stop-work orders are effective against an affected employer s successor firm, corporation or partnership. Employers that receive a stop-work order may challenge the order with the DWC within 10 days of the date when the order was issued. The DWC will issue a decision on the stop-work order challenge within 48 hours of a hearing. Employers that fail to comply with a stop-work order are subject to a fine of between $1,000 and $5,000 for each day of violating the order. EMPLOYER IDENTIFICATION NUMBER Employers are required to submit their employer identification number to their insurance provider. This identification is issued by the New Jersey Department of Labor and Workforce Development. 2

3 Employers that refuse or fail to provide this number to their insurance provider may be ordered to pay a $1,000 penalty for each failure or refusal to provide this number. The penalty may be waived for employers that can show reasonable cause for not providing this information. Employers that are exempt from or not subject to the state s unemployment compensation laws may request their workers compensation insurance provider and the DWC to assign them an identification number. FAILURE TO PAY BENEFITS Employers that unreasonably or negligently delay or refuse to pay temporary disability compensation are subject to fines and penalties if they have actual knowledge or if they receive notice of an employee injury. The penalty may add an additional amount of compensation due to the injured employee, equal to up to 25 percent of the compensation that was originally due. Employers may also be required to compensate an injured employee for any reasonable legal fees he or she incurred to collect on any unpaid amount. The DWC will automatically assume that an employer has unreasonably or negligently delayed or refused to pay temporary disability compensation if the employer has not made any required payments within 30 days of when payment was required by law or court order. Employers that withhold lawful compensation from injured employees (or their dependents) for 60 days or more after a judgment or order for compensation is issued may be ordered to pay simple interest on any unpaid compensation, at a rate determined by a court. In addition, the DWC may impose a $1,000 fine and a penalty equal to 15 percent of the award due to an injured employee on any employer that fails to pay benefits as required by law. These penalties are payable to the Uninsured Employer s Fund (UEF). Employers that fail to pay these penalties to the fund within 10 days of when a notice of payment is mailed to them are subject to a judgment against them. CONTRIBUTIONS TO THE UNINSURED EMPLOYER S FUND (UEF) The UEF exists to provide benefits to injured employees when their employers do not have adequate workers compensation coverage or fail to make benefit payments. Unless an appeal is filed, the UEF covers unpaid medical and temporary disability benefits that remain unpaid after 45 days. The UEF does not generally cover any compensation not included in a workers compensation award. The DWC may require employers that default on their payment obligations to reimburse the fund for any payments made to an injured employee. JUDICIAL PENALTIES In addition to the penalties described above, a workers compensation judge may require an employer that has violated New Jersey s workers compensation laws to pay up to $5,000 for unreasonable delays in payment of benefits, simple interest on any unpaid amount and any reasonable legal fees required to enforce a judgment, order, statute or regulation. Workers compensation judges also have the discretion to close the proof or evidence, suppress or deny a claim, suppress or deny a defense, and even exclude evidence or witnesses against an employer that has violated New Jersey s workers compensation laws. Workers compensation judges may also hold contempt hearings for employers that fail to follow a court order. Any penalty or fine assessed against a violating employer will not count against the employer s expense base for the purpose of calculating that employer s future insurance rate. RETALIATION AND DISCRIMINATION New Jersey law prohibits employers from discharging or in any other way discriminating against an employee because the employee has claimed or attempted to claim workers compensation benefits. Similarly, employers are prohibited from discriminating against any employee who testifies or is about to testify against the employer in any workers compensation proceeding. 3

4 Employers that discriminate or retaliate against their employers may face a fine of between $100 and $1,000, imprisonment for up to 60 days or both. In addition, employers may be required to restore a discharged employee to his or her employment and compensate him or her for any loss of wages due to the discrimination or retaliation. An exception may be allowed if the employee is no longer qualified to perform the duties of the position. Employers cannot pass discrimination or retaliation liability or costs to their insurance providers. VIOLATION OF RECORDING AND REPORTING REQUIREMENTS Employers that violate recordkeeping and reporting requirements may be subject to a fine of between $10 and $50, and any other penalty specifically associated with a particular record or report. Accident Report, Final Report Employers may be required to pay a penalty of: $10 for the first time they fail to submit a report of injury or a final report; $25 for a second violation; and $50 for a third and any subsequent violations. Failure to submit a report includes failing to submit the report electronically, failing to supply required information to another party or failing to submit a complete and accurate report. Payment Reports In addition to injury reports, the DWC requires employers to maintain a record of the benefits they pay to injured employees. Employers must periodically submit these reports to the DWC for inspection. Employers that fail to submit a completed report by July 31 of each year may be subject to a $100 penalty for each 30-day period the report remains unfiled after July 31, up to a maximum of $500. Fraud Workers compensation fraud in New Jersey is a crime in the fourth degree, punishable by a fine of up to $10,000, imprisonment for up to 9 months or both. New Jersey workers compensation laws define fraud as purposely or knowingly: Making a false or misleading statement, representation or submission regarding a material fact of a workers compensation claim with the purpose of wrongfully obtaining benefits; Misclassifying employees or engaging in a deceptive leasing practice for the purpose of evading the full payment of benefits or insurance premiums; or Coercing, soliciting, encouraging (directly or through a third party) any individual to make a false or misleading statement, representation or submission of a material fact related to a claim for benefits or premiums for the purpose of wrongfully obtaining the benefits or evading the full payment of insurance premiums. In addition to any applicable criminal charges, employers or individuals that wrongfully obtain benefits or evade the full payment of insurance premiums through fraud may face civil penalties, including damages, reasonable costs and attorney fees. Individuals who obtain benefits through fraud may also lose the right to current and future benefits and may be required to repay any sum received, plus interest, to the employer or insurer that provided the benefits. The DWC may deduct a sufficient amount from future benefits to help repay fraudulently paid benefits. DESIGNATION OF CONTACT Employers are required to designate a contact person to be responsible for responding to any issue concerning medical and temporary disability benefits. The contact person must be able to answer concerns regarding unfiled claims or claim petitions that have not been answered. 4

5 Employers must provide to the DWC the contact person s full name, telephone number, address, address and fax number. Employers must also notify the DWC about any changes to the contact person s information. Employers that fail to comply with the contact person provisions may be ordered to pay a $2,500 fine for each day of noncompliance. MORE INFORMATION Contact Touchstone Consulting Group or visit the Division of Workers Compensation website for more information on workers' compensation laws in New Jersey. 5

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