Revision: Jan. 17, 2019, 5:43 p.m.
SB 61 - AS INTRODUCED
SENATE BILL 61
SPONSORS: Sen. Cavanaugh, Dist 16
This bill permits an employer or industry organization to file a civil action against an employer for violations of the rights of construction and labor industry employees.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Nineteen
Be it Enacted by the Senate and House of Representatives in General Court convened:
281-A:4-c Private Action to Enforce Payment of Workers' Compensation Insurance Premiums.
I. An action filed under this section shall be authorized and governed by RSA 507:18.
II. An employer domiciled in this state which customarily performs construction labor or provides construction labor services on construction sites, or any industry organization that represents at least 25 dues paying members who are domiciled in this state and who customarily performs construction labor or provides construction labor services on construction sites, may file an action in any court of competent jurisdiction against an employer engaged in generally the same trade, business, occupation, field, or industry to recover workers' compensation insurance premium amounts that were required to be paid by the defendant employer pursuant to RSA 281-A.
III. Within 20 days of filing an action under this section, the plaintiff employer or industry organization shall serve a copy of the action on the commissioner of the department of labor and on any insurance carrier that was, or is, at the time the action was filed, entitled to collect unpaid workers' compensation insurance premium amounts. An insurance carrier shall have 30 days from receiving a copy of the action to intervene or seek arbitration against the defendant employer to recover or collect workers' compensation insurance premium amounts claimed in the action which may be owed to the insurance carrier. After 30 days, the insurance carrier shall be not be permitted to recover or collect such amounts sought in the action, unless it obtains the written consent of the plqintiff employer or industry organization. If the plaintiff employer or industry organization provides written consent, the court may grant intervenor status to the insurance carrier. Any award in favor of the insurance carrier shall be the sole property of the insurance carrier. If the insurance carrier intervenes or seeks arbitration to collect amounts sought in the action, then the court may stay the action as to the plaintiff employer or industry organization, pending the adjudication of the insurance carrier's claims, after which time the court may act in its discretion. The insurance carrier shall notify the court of the decision, award, or settlement within 20 days of same.
IV. No settlement or arbitration agreement between an insured and an insurance carrier shall prohibit or limit an employer or industry organization from filing an action under this section to recover other amounts that should have been properly paid to cover employees under this section and which the insurance carrier did not recover by such agreement or otherwise. The parties to any settlement or arbitration award shall, upon demand and without condition, fully disclose any settlement or arbitration award to the employee or employee organization that filed the civil action.
V. Unless the insurance carrier has been granted intervenor status in the action, the prevailing employer or industry organization shall forward all amounts recovered, except an award of attorney fees and costs, to the state treasurer for deposit into the general fund.
VI. Nothing contained in this section shall limit or prohibit the state or any of its political subdivisions, or any public entity, from bringing an action under this section against any employer. The court may consider and order the offset of any amounts recovered, or which are likely recoverable, by an action pursuant to this section.
VII. This section shall not affect, or apply to, insurance contracts that were executed before the effective date of this section. No action under this section shall be filed for at least 90 days after the expiration of any valid workers' compensation policy in force at the time.
VI.(a) An industry organization domiciled in the state of Vermont that represents at least 25 dues paying members who reside or are domiciled in New Hampshire and who customarily perform construction labor or provide construction labor services on construction sites in New Hampshire may file a civil action to enforce a violation of the failure of a construction industry employer to classify its construction workers as employees properly pursuant to RSA 281-A:2, VI(a) or (b), or to remedy a violation for nonpayment of wages due pursuant to RSA 275:43 for construction labor performed on a construction project in New Hampshire. Such action may include other wages due from such employee for labor not performed on a construction site. The labor need not have been performed by any member of such organization.
(b) Within 90 days of the filing of an action, the employer may petition the court for a hearing and, if granted, may present its payroll records and any other evidence sufficient for the court, including by and through its clerk, to determine whether the action lacks merit. Upon conclusion of such hearing, if the court deems that no violation has occurred, it may dismiss the action and require the industry organization to pay the employer's court costs and reasonable attorneys' fees.
(c) The industry organization that filed the action shall provide a copy of the complaint to the commissioner of the department of labor within 10 days of the filing of the complaint. If the industry organization prevails, any employee affected by the employer's violation shall be awarded twice the damages as liquidated damages for any lost wages and other benefits, and shall also be awarded court costs and reasonable attorneys' fees. The industry organization shall forward 10 percent of the award to the state treasurer to be deposited into the general fund to offset the costs of other wage law enforcement efforts by the state or the commissioner of the department of labor. From the remainder of the award, less court costs and reasonable attorneys' fees, the industry organization shall distribute equal shares to any employees covered under this paragraph.
(d) An action filed under this paragraph shall be authorized and governed by RSA 507:18.
Private Enforcement of Rights Affecting the Public Interest
507:18 Private Enforcement of Rights Affecting the Public Interest. A court may award court costs and reasonable attorneys' fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: ?
I. A significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons.
II. The necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate; and
III. Such costs and fees should not, in the interest of justice, be paid out of any recovery.