2016 North Dakota Century Code Title 65 Workforce Safety and Insurance Chapter 65-04 The Fund and Premium Payments Thereto
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CHAPTER 65-04
THE FUND AND PREMIUM PAYMENTS THERETO
65-04-01. Classification of employments - Premium rates - Requirements.
1. The organization shall classify employments with respect to their degrees of hazard,
determine the risks of different classifications, and fix the rate of premium for each of
the classifications sufficiently high to provide for:
a. The payment of the expenses of administration of the organization;
b. The payment of compensation according to the provisions and schedules
contained in this title; and
c. The maintenance by the fund of adequate reserves and surplus to the end that it
may be kept at all times in an entirely solvent condition.
2. In the exercise of the powers and discretion conferred upon it, the organization shall fix
and maintain for each class of occupation, the lowest rate which still will enable it to
comply with the other provisions of this section.
3. The organization shall establish premium rates annually on an actuarial basis. The
statewide average premium rate level may not deviate by more than five percentage
points from the recommended actuarial indicated premium level for that year.
4. Before the effective date of any premium rate change, including a change in the
minimum premium, the organization shall hold a public hearing on the rate change.
Chapter 28-32 does not apply to a hearing held by the organization under this
subsection.
65-04-02. Reserves - Surplus.
1. The organization shall maintain adequate financial reserves to ensure the solvency of
the fund and the payment of future benefit obligations, based upon actuarially sound
principles. The discount rate used in evaluating the financial reserves may not exceed
six percent. The level of financial reserves plus available surplus determined as of
June thirtieth of each year must be at least one hundred twenty percent but may not
exceed one hundred forty percent of the actuarially established discounted reserve.
2. If the level of financial reserves plus available surplus determined as of June thirtieth
of any year is below one hundred twenty percent of the actuarially established
discounted reserve, the organization may not issue premium dividends and,
notwithstanding section 65-04-01, the organization shall modify recommended
premium rate levels so that the organization is estimated to come into compliance
within the following two years.
3. If the level of financial reserves plus available surplus determined as of June thirtieth
of any year is above one hundred forty percent of the actuarially established
discounted reserve, the organization shall issue premium dividends in a fiscally
prudent manner so that the organization is estimated to come into compliance with the
requirements of subsection 1 within the following two years. However, premium
dividends issued may not exceed fifty percent of the preceding year's premium in any
given year.
4. If the level of financial reserves plus available surplus determined as of June thirtieth
of any year is between one hundred twenty percent and one hundred thirty percent of
the actuarially established discounted reserve, the organization may not issue
premium dividends.
5. If the level of financial reserves plus available surplus determined as of June thirtieth
of any year is one hundred thirty percent to one hundred forty percent of the actuarially
established discounted reserve, the organization may issue premium dividends.
However, premium dividends issued may not exceed forty percent of the preceding
year's premium in any given year, and the level of financial reserves plus available
surplus may not be reduced below one hundred thirty percent.
6. For the purposes of this section, "available surplus" means net assets as stated on the
statement of net assets of the organization, but does not include funds designated or
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7.
obligated to specific programs or projects pursuant to a directive or specific approval
by the legislative assembly.
The independent annual financial audit of the organization must report the
organization's financial reserves.
65-04-03. Accounts to be kept for classifications and employers.
The organization shall keep an accurate account of the moneys paid in premiums by each
of the several classes of occupations or industries and of the disbursements on account of
injuries to and deaths of employees thereof, and it also shall keep an account of the moneys
received from each individual employer and of the amount disbursed from the fund on account
of injuries to and deaths of employees of each employer.
65-04-03.1. State entities account - Continuing appropriation - Report to budget
section.
1. The organization shall establish a single workforce safety and insurance account for
state entities covered by chapter 32-12.2. The organization shall use the combined
payroll, premium, and loss history of selected agencies to determine future experience
rates, dividends, assessments, and premiums. Classifications and premium rates must
be based on the hazards and risks of the different occupations covered by this
account. The payroll reporting period for this account is for a fiscal year of July first
through June thirtieth. The office of management and budget shall furnish combined
payroll information to the organization in a format prescribed by the organization.
2. Workforce safety and insurance premiums from state entities covered by chapter
32-12.2 must be deposited in the risk management workers' compensation fund. The
state investment board shall invest this fund in accordance with chapter 21-10. Funds
received as contributions from state entities, all other payments deposited in this fund,
and interest and income received on investments are appropriated on a continuing
basis for the purposes of this fund. The purposes of this fund are to pay workforce
safety and insurance premiums for state agencies, workforce safety and insurance
claims costs not covered by the deductible contract, and costs associated with
workers' compensation loss control programs. The risk management division of the
office of management and budget shall administer this fund. Section 54-44.1-11 does
not apply to this fund.
3. A state entity covered by chapter 32-12.2 shall participate in the risk management
workforce safety and insurance program unless exempted by the director of the office
of management and budget.
4. The risk management division of the office of management and budget shall
administer the account's internal workforce safety and insurance return-to-work
program. Every state entity is required to participate in the return-to-work program. The
program may include assigning employees to agencies other than the agency for
which the employee worked on the date of the injury.
5. The office of management and budget may adopt rules to administer the risk
management workforce safety and insurance program.
65-04-04. Employers obligated to pay premiums - Premium and certificates to be
mailed.
Each employer subject to this title shall pay into the fund annually the amount of premiums
determined and fixed by the organization for the employment or occupation of the employer.
The amount must be determined by the classifications, rules, and rates made and published by
the organization and must be based on a proportion of the annual expenditure of money by the
employer for the service of persons subject to the provisions of this title. The organization shall
mail to the employer a certificate specifying that the payment has been made. The certificate,
attested by the seal of the organization, is prima facie evidence of the payment of the premium.
Notwithstanding the provisions of section 65-04-15, the certificate may reflect the employer has
paid the minimum premium and has no employees for the period indicated on the certificate. If
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an employer defaults on premium payments after a certificate has been issued, the organization
may revoke that employer's certificate. The organization shall provide that premiums to be paid
by school districts, multidistrict special education units, area career and technology centers, and
regional education associations, townships, and all public corporations or agencies, except
municipal corporations, fall due at the end of the fiscal year of that entity, and that premiums to
be paid by all municipal corporations fall due at the end of the calendar year, and may make
provisions so that premiums of other employers fall due on different or specified dates. For the
purpose of effectuating different or specified due dates, the organization may carry new or
current risks for a period of less than one year and not to exceed eighteen months, either by
request of the employer or action of the organization. An employer subject to this chapter shall
display in a conspicuous manner at the workplace and in a sufficient number of places to
reasonably inform employees of the fact, a certificate of premium payment showing compliance
with this chapter and the toll-free telephone number used to report unsafe working conditions
and actual or suspected workforce safety and insurance fraud. Any employer subject to this
chapter is liable to pay a civil penalty of two hundred fifty dollars for failure to display the notice
of compliance and the toll-free telephone number as required by this section.
65-04-04.1. Determination of weekly
veteran-on-the-job trainee.
Repealed by S.L. 1997, ch. 538, § 1.
wage
for
premium
purposes
to
65-04-04.2. Basis of calculating premiums.
1. For each year, the amount of an employee's wages subject to premium calculations
must be determined as an amount equal to seventy percent of the statewide average
annual wage, hereafter referred to as limited payroll, rounded to the nearest one
hundred dollars, determined by the organization on or before July first as calculated by
job service North Dakota under subsection 3 of section 52-04-03.
2. The rates for each classification must be determined by:
a. Estimating the revenue needed by each employment classification;
b. Estimating the total limited payroll to be reported by all employers in each
employment classification for the year; and
c. Dividing the estimated revenue needed by an employment classification by the
estimated total limited payroll in that classification to determine the required
average premium for that classification rate.
65-04-04.3. Employer relief for third-party recovery.
The organization, upon recovery of its subrogation interest after a third-party lawsuit under
section 65-01-09, shall give relief to the employer from the date of injury for the amount of the
recovery up to the actual amount expended on a claim charged against the employer's account.
For purposes of this section, "relief" means the amount of money recovered by the organization
in a third-party action will be deducted from the amount charged against the employer's
experience rating.
65-04-05. Employer to furnish payroll information to organization - Determination of
status - Report of actual and estimated payrolls.
Repealed by S.L. 2001, ch. 578, § 17.
65-04-05.1. Sections 65-04-04 and 65-04-05 retroactive.
Repealed by S.L. 1951, ch. 344, § 11.
65-04-06. Organization to specify method of providing information - Verification may
be required.
Information required by the organization shall be furnished by employers on preprinted
forms provided free of charge, or in another manner specified by the organization. If an
employer is unable to provide the information required, the employer shall submit to the
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organization in writing good and sufficient reason therefor. The organization and its
representatives may require any employer to submit information verified under oath within the
time period fixed by it or by law.
65-04-07. County superintendents of schools to report school district clerks to
organization.
Repealed by S.L. 1995, ch. 176, § 2.
65-04-08. County auditors to report auditors and clerks to organization.
Repealed by S.L. 1997, ch. 538, § 1.
65-04-09. All public contracts involving labor to be reported to organization.
Repealed by S.L. 1997, ch. 538, § 1.
65-04-10. Provision relating to workforce safety and insurance required in
contractor's bonds.
There must be inserted in every bond given by a contractor doing work for the state of North
Dakota or for any political subdivision thereof, in addition to the general provisions for the faithful
and complete performance of all work required under the contract, this further provision: That
the contractor has made, or will make, prior to the commencement of any work by the contractor
or any subcontractor under the contract, full and true report to the organization of the payroll
expenditures for the employees to be engaged in the work, and that the contractor has paid, or
will pay, the premium thereon prior to the commencement of the work.
65-04-11. Organization may make examinations under oath to secure payroll
information.
The director, the organization, or any person employed by the organization for that purpose
may examine under oath any employer, or any officer, agent, or employee of any employer, for
the purpose of ascertaining any information which the employer is required under this title to
furnish to the organization.
65-04-12. Penalties for failure to obtain coverage or to make payroll reports - How
collected - Disposition.
Repealed by S.L. 2001, ch. 578, § 17.
65-04-13. Books, records, and payrolls of employers subject to audit and inspection Penalty for refusal to permit inspection.
All books, records, and payrolls of the employers of the state, showing or reflecting in any
way upon the amount of wage expenditure of the employers, are open always for inspection by
the organization or any of its traveling auditors, inspectors, or assistants for the purpose of
ascertaining the correctness of the reports, wage expenditures, the number of employees, and
any other information necessary for the organization to administer this title. An employer who
refuses to submit the employer's books, records, and payrolls for inspection by the organization,
or its auditor, inspector, or assistant presenting written authority from the organization, is subject
to a penalty of five hundred dollars for each offense. The organization shall collect the penalty
by civil action in the name of the state and shall deposit a penalty collected under this section to
the credit of the fund.
65-04-14. False payroll report - Liability of employer - Collection and disposition of
penalty.
Repealed by S.L. 2001, ch. 578, § 17.
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65-04-15. Information in employer's files confidential - Exceptions - Penalty if
employee of organization divulges information.
1. The information contained in an employer's file is confidential and not subject to
disclosure under chapter 44-04 and section 6 of article XI of the Constitution of North
Dakota, is for the exclusive use and information of the organization or its agents in the
discharge of the organization's official duties, and is not open to the public nor usable
in any court in any court action or proceeding unless the organization is a party to that
court action or proceeding. The information contained in the file, however, may be
tabulated and published by the organization in statistical form for the use and
information of the state departments and of the public.
2. An employer file includes all documents and data pertaining to a person that pays
premium to the organization, except for information relating to a grant award under
section 65-03-04 which the organization is specifically authorized to disclose or under
section 65-03-04 which does not disclose payroll or premium information as provided
in subsection 3.
3. Upon request, the organization shall disclose the rate classification of an employer to
the requester; however, the organization may not disclose any information that would
reveal the amount of payroll upon which that employer's premium is being paid or the
amount of premium the employer is paying. The organization may disclose whether an
employer's file is active, canceled, closed, pending, delinquent, or uninsured. The
information in the employer's file may not be released in aggregate form, except to
those persons contracting with the organization for exchange of information pertaining
to the administration of this title, except upon written authorization by the employer for
a specified purpose, or at the discretion of the organization with regard to delinquent
and uninsured employers. Disclosure by a public servant of information contained in
an employer's report, except as otherwise allowed by law, is a violation of section
12.1-13-01. Anyone who is convicted under section 12.1-13-01 is disqualified from
holding any office or employment with the organization.
4. The organization may, upon request of the state tax commissioner or the secretary of
state, furnish to them a list of employers showing only the names, addresses, and
organization file identification numbers of such employers as those files relate to this
chapter; provided, that any such list so furnished must be used by the tax
commissioner or the secretary of state only for the purpose of administering their
duties. The organization may provide any state or federal agency information obtained
pursuant to the administration of this title. Any information so provided must be used
only for the purpose of administering the duties of that state or federal agency.
5. Whenever the organization obtains information on activities of a contractor doing
business in this state of which officials of the secretary of state, job service North
Dakota, or tax commissioner may be unaware and that may be relevant to the duties
of those officials, the organization shall provide any relevant information to those
officials for the purpose of administering their duties.
6. The organization may provide any state agency or a private entity with a list of names
and addresses of employers for the purpose of jointly publishing or distributing
publications or other information pursuant to section 54-06-04.3. Any information so
provided may only be used for the purpose of jointly publishing or distributing
publications or other information as provided in section 54-06-04.3.
65-04-16. Adjustment of premium paid on estimated payroll.
In the event that the amount of premium collected from any employer at the beginning of
any premium period is ascertained and calculated by using as a basis the estimated
expenditures for wages for the period of time covered by such premium payments, an
adjustment of the amount of such premiums shall be made at the end of said period, and the
actual amount of such premium shall be determined from the actual expenditure of wages for
said period.
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65-04-17. Experience rating of employers.
The organization may establish a system for the experience rating of risks of employers
contributing to the fund, and such system shall provide for the credit rating and the penalty
rating of individual risks within such limitations as the organization may establish from time to
time.
In calculating the experience rating, the organization shall determine the minimum rate for
each employment classification by multiplying the required average premium rate by twenty-five
hundredths to get the minimum rate assigned to an employer with a positive experience rating.
The organization may not amend its experience rating system by emergency rulemaking.
65-04-17.1. Retrospective rating program.
The organization may establish a program to provide retrospective rating. The organization
may not require an employer to participate in the program, but it may refuse to allow an
employer to participate when it determines that refusal is appropriate. The organization shall
establish formulas, based on sound actuarial principles, for premium calculation under the
program. Sections 65-04-01, 65-04-04, and 65-04-04.2 do not apply to retrospective premiums
allowed under this section. Any moneys held by the organization for future claim payments must
accrue interest at a reasonable rate as determined by the organization. The organization may
execute a contract with an employer to establish a retrospective rating plan for that employer.
The contract is binding on the employer and the organization for the term identified in the
contract. The term identified in the contract may extend past the end of the biennium in which
the contract is executed but the term may not exceed ten years. The organization shall
determine the amount of the deposit premium to be paid by an employer participating in the
program. The amount of the deposit premium must be based on current rates, payroll, and
experience rate factors. The organization shall establish the maximum premium liability of a
participating employer. The maximum premium is not subject to the limitations of section
65-04-17. The organization may provide refunds from the workforce safety and insurance fund
when it is determined appropriate under the retrospective rating formula established. The
organization shall provide any refund due within thirty days after the date of the retrospective
premium valuation. The organization may impose a penalty if an employer fails to pay additional
premium due within thirty days after the retrospective premium valuation. The organization may
require an employer to provide a bond, letter of credit, or other security approved by the
organization to guarantee payment of future employer obligations incurred by a retrospective
rating plan. The organization may charge an employer participating in the program a
nonrefundable surcharge for the purpose of assisting retirement of any unfunded liability of the
fund.
65-04-18. Subsequent injury or aggravation of previous injury or condition of
employee - Charge to employer's risk - Charge of part of claim to subsequent injury fund.
Whenever a subsequent injury or aggravation of a previous injury or pre-existing condition
occurs to an employee, the risk of the employer for whom such person was working at the time
of such subsequent injury or aggravation shall be charged only with the amount of the awards
resulting from such subsequent injury or aggravation. Whenever such subsequent injury or
aggravation results in further disability or an aggravation of a pre-existing injury or condition, the
compensation which is in excess of the amount to which the injured employee would have been
entitled solely by reason of the subsequent injury or aggravation shall be charged to the
subsequent injury fund and not to the classification or the risk to which the subsequent injury or
aggravation is charged.
65-04-19. Organization to determine premium due from employer - Mailing of
premium billing statement as notice of amount due.
The organization shall determine the amount of premium due from every employer subject
to this title for the twelve months next succeeding the date of expiration of a previous period of
insurance or next succeeding the date at which the organization received information that an
employer is subject to the title. The organization shall order the premium to be paid into the fund
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and shall mail a copy of the premium billing statement to the employer. Mailing of the premium
billing statement constitutes notice to the employer of the amount due.
65-04-19.1. Premium discount for implementation of risk management programs.
Any employer who achieves the benchmarks outlined by the organization's risk
management programs is eligible for a discount in the annual premium for the year following the
year in which the risk management program's benchmarks are achieved.
65-04-19.2. State agency participation in risk management program.
Repealed by S.L. 2003, ch. 564, § 14.
65-04-19.3. Premium calculation programs - Authority.
The organization may create and implement actuarially sound employer premium
calculation programs, including dividends, group insurance, premium deductibles, and
reimbursement for medical expense assessments. Programs created or modified under this
section are not subject to title 28-32 and may include requirements or incentives for the early
reporting of injuries. An employer with a deductible policy under this section, who chooses to
pursue a third-party action under section 65-01-09 after an injured worker and the organization
have chosen not to pursue the third-party action, may keep one hundred percent of the recovery
obtained, regardless of the expense incurred in covering the injury and regardless of any
contrary provision in section 65-01-09. If the employer pursues the third-party action pursuant to
this section, neither the organization nor the injured worker has any liability for sharing in the
expense of bringing that action.
65-04-20. Installment payment of premiums - Interest required.
An employer, subject to section 65-04-22, may pay the annual premium in installments.
Interest must be charged at the prevailing base rate posted by the Bank of North Dakota
plus two and one-half percent. The interest charged must be at least six percent per annum.
Interest must be charged on all premiums deferred under this section. Upon default in payment
of any installment, the penalties apply which are provided in sections 65-04-22 and 65-04-33.
65-04-21. Utilization of public funds for payment of premiums due the fund.
The state of North Dakota or any municipality thereof, whenever necessary, may use any
funds of the state or municipality, as the case may be, except such funds as are raised by
special levies, for the payment of premiums due the fund for insurance upon employees of such
state or municipality. If there are no funds on hand with which the premium payments may be
made, the state or a municipality thereof may issue special warrants against its general fund for
the payment of such premiums, and such warrants shall be paid in their order the same as any
other warrants of the state or municipality.
65-04-22. Organization may make premium due immediately - When premium is in
default.
The organization may require payment of a premium, including an advance premium,
security deposit, or any other instrument that is mutually acceptable to the organization and the
employer, within any time which, in the judgment of the organization, is reasonable and
necessary to secure the payment of the premium by any employer. The premium, whether paid
in full or in installments, shall be in default one month from the payment due date specified in
the premium billing statement.
Default of any installment payment will, at the option of the organization, make the entire
remaining balance of the premium due and payable. The organization may declare an employer
uninsured at any time after forty-five days have passed from the due date specified in the
premium billing statement and the employer has failed to make a payment to the organization.
The organization may decline coverage to any employer that has been determined to be
uninsured under this section or where a premium delinquency remains unresolved.
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65-04-22.1. Retroactive payment not required.
When the organization reviews a potential employment relationship involving an
independent contractor who has a valid identification number issued under section 34-05-01.4
and determines that the party described as an independent contractor is an employee for
purposes of workforce safety and insurance premiums, rather than an independent contractor,
the organization may not require the party determined to be the employer to pay premiums for
that employee, or any interest, penalty, or delinquency fee with respect to those premiums,
retroactive to the date the relationship with the employee began, unless, however, the
organization determines that the employer willfully and intentionally entered the relationship with
the purpose of avoiding workforce safety and insurance premium payments. The organization
may require the payment of premiums for that employee as of the date the order declaring an
employment relationship becomes final.
65-04-23. Penalties for default in payment of premiums, penalties, and interest.
Repealed by S.L. 2001, ch. 578, § 17.
65-04-24. Organization to bring suit for premiums in default.
When an employer defaults on payment of premium, penalties, or interest, the organization
may bring suit for the collection of premium, accrued penalties and interest, and any additional
penalties and interest that may accrue. The organization may adjust or compromise the
account. The organization may retain counsel on a contingent fee basis to represent the
organization in any proceeding relating to the collection of amounts due under this title. The
organization shall charge attorney's fees and costs to the organization's general fund. In any
action for the collection of amounts due the organization under this title, the court may not
review or consider the action of the organization regarding the acceptance or payment of any
claim.
65-04-25. Service of nonresident employer in suit for premium or in suit against an
uninsured employer.
If the employer in an action to collect delinquent premiums or for injuries sustained in the
employer's employment for which the employer did not carry the required insurance is a
nonresident of this state, or a foreign corporation or limited liability company doing business in
this state, service of the summons may be made upon any agent, representative, or foreman of
said employer in this state, or in the case of a foreign corporation, its director, and if there is no
agent, representative, or foreman, or in the case of a foreign corporation, director, upon whom
service can be made in this state, service upon the secretary of state constitutes personal
service upon that nonresident employer or corporation's director who has either failed to secure
the necessary coverage or who is delinquent in the employer's premiums, or service may be
made in any other manner designated by law. The organization may retain counsel who is
licensed in another state to represent the organization on a contingent fee basis in any
proceeding relating to the collection of amounts due the organization under this title. All
attorney's fees and costs incurred under this section are a charge to the general fund.
65-04-26. Lien priority and filing - Remedies available in action for delinquent
premiums - Exemptions restricted.
The claim of the organization in bankruptcy, probate, insolvency, and receivership
proceedings for premiums in default and penalties is a lien with the same priority as prior
income tax liens, except that this lien is not enforceable against a purchaser, including a lien
creditor, of real estate or personal property for valuable consideration without notice. Notice of
this lien must be filed in the place and manner provided for in section 57-38-49. A certificate of
the organization that premiums and penalties are due for the period stated in the certificate is
prima facie evidence of this fact. In any action brought for the recovery of premiums in default
and penalties, the remedies of garnishment or attachment, or both, are available. No
exemptions except absolute exemptions under section 28-22-02 may be allowed against any
levy under execution pursuant to judgment recovered in the action.
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65-04-26.1. Corporate officer personal liability.
1. An officer or director of a corporation, or manager or governor of a limited liability
company, or partner of a limited liability partnership, or employee of a corporation or
limited liability company having twenty percent stock ownership who has control of or
supervision over the filing of and responsibility for filing premium reports or making
payment of premiums or reimbursements under this title and who fails to file the
reports or to make payments as required, is personally liable for premiums under this
chapter and reimbursement under section 65-05-07.2, including interest, penalties,
and costs if the corporation or limited liability company does not pay to the
organization those amounts for which the corporation or limited liability company is
liable.
2. The personal liability of any person as provided in this section survives dissolution,
reorganization, bankruptcy, receivership, or assignment for the benefit of creditors. For
the purposes of this section, all wages paid by the corporation or limited liability
company must be considered earned from any person determined to be personally
liable.
3. After review of the evidence in the employer's file, the organization shall determine
personal liability under this section. The organization shall issue a decision under this
section pursuant to section 65-04-32.
65-04-27. Payment of claims - Employers in default.
The payment of a judgment rendered in an action brought against an employer for the
collection of defaulted premiums or the voluntary payment of the amount of premium, penalties,
and costs prior to judgment entitles the employer and that employer's employees to the benefits
provided in this title from the date of the payment. The organization shall pay an employee who
sustains an injury while working for an employer whose premium is in default the same as the
employee would receive if the employee were working for an employer whose premium is not in
default.
65-04-27.1. Injunctive relief - Procedure.
1. a. To protect the lives, safety, and well-being of wageworkers, to ensure fair and
equitable contributions to the workforce safety and insurance fund among all
employers, and to protect the workforce safety and insurance fund, the
organization may institute injunction proceedings in the name of the state of North
Dakota against certain employers to prohibit them from employing others in those
employments defined as hazardous by this title:
(1) When it has been brought to the attention of the organization that the
employer has unlawfully employed uninsured workers in violation of section
65-04-33;
(2) When the employer defaults in the payment of insurance premiums,
reimbursements, penalties, or interest into the fund; or
(3) When the organization, in exercise of the authority granted it by section
65-03-01, finds that it is necessary to enjoin and restrain certain employers
and employments to protect the lives and safety of the employees because
of the employer's failure or refusal to comply with necessary and proper
safety rules.
b. The courts of this state have jurisdiction to grant preventive relief under the
circumstances described in subdivision a.
2. Chapter 32-06 as it relates to injunction applies to proceedings instituted under this
section to the extent that chapter is applicable.
3. In addition to chapter 32-06, when the court has granted an immediate temporary
injunction at the time of the commencement of the action, the defendant employer may
have a hearing by the court on the merits of the case without delay. Upon three days'
written notice to the organization, the court shall proceed to hearing on the merits and
render its decision.
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4.
5.
In addition to chapter 32-06, when the court has not granted an immediate temporary
injunction at the time of the commencement of the action and the time for answer has
expired, either party may have a hearing by the court on the merits of the case. Upon
ten days' notice by either party to the other, the court shall proceed to hearing on the
merits and render its decision.
Any court of competent jurisdiction in this state shall impose a fine of at least one
thousand dollars against an employer who has violated an injunction granted under
this section. The court shall impose a fine for each violation, in addition to any other
penalty provided by law.
65-04-28. Complying employers not liable for injuries to or deaths of employees Common-law actions barred.
Employers who comply with the provisions of this chapter shall not be liable to respond in
damages at common law or by statute for injury to or death of any employee, wherever
occurring, during the period covered by the premiums paid into the fund.
65-04-29. Employers carrying on nonhazardous employment may come under law Employee's option.
Any employer carrying on any employment not defined as hazardous under section
65-01-02 who complies with this title and who pays into the fund the premiums provided for
under this chapter is covered under the fund and is not liable to respond in damages at common
law or by statute for injuries to or the death of any employee, wherever occurring, during the
period covered by such premiums. Any employee who elects before injury not to come under
workforce safety and insurance may do so by notifying the organization and the employer of
such election in writing.
65-04-30. State treasurer is custodian of fund - Deposit - Disbursement on vouchers.
The state treasurer is the custodian of the fund and all payments of awards of the
organization for disbursements other than travel and administrative expenses must be paid by
the state treasurer upon warrant-checks authorized and prepared by the organization. Warrants
drawn upon the fund and paid by the state treasurer must be returned to the organization and
must be kept in the files of the organization. The organization shall submit to the office of
management and budget once each month a monthly financial statement showing the receipts,
disbursements, investments, and status of the fund. The treasurer may deposit any portion of
the fund not needed for immediate use in the manner and subject to the requirements
prescribed by law for the deposit by the treasurer of state funds. Any interest earned by any
portion of the fund which is deposited by the state treasurer under this section must be collected
by the state treasurer and placed to the credit of the fund.
65-04-31. Investment of fund.
Investment of the fund must be under the supervision of the state investment board in
accordance with chapter 21-10. For purposes of this section, the director is the official signatory
for the organization on any check, document, or other legal instrument relating to or resulting
from the investment of organization funds.
65-04-32. Decisions by organization - Disputed decisions.
Notwithstanding any provisions to the contrary in chapter 28-32, the following procedures
apply when the organization issues a decision under this chapter or section 65-05-07.2:
1. The organization may issue a notice of decision based on an informal internal review
of the record and shall serve notice of the decision on the parties by regular mail. The
organization shall include with the decision a notice of the employer's right to
reconsideration.
2. An employer has thirty days from the day the notice of decision was mailed to file a
written petition for reconsideration. The employer is not required to file the request
through an attorney. The request must state the reason for disagreement with the
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organization's decision and the desired outcome. The request may be accompanied by
additional evidence not previously submitted to the organization. The organization
shall reconsider the matter by informal internal review of the information of record.
Absent a timely and sufficient request for reconsideration, the notice of decision is final
and may not be reheard or appealed.
Within sixty days after receiving a petition for reconsideration, unless settlement
negotiations are ongoing, the organization shall serve on the parties by certified mail
an administrative order including its findings of fact, conclusions of law, and order, in
response to the petition for reconsideration. The organization may serve an
administrative order on any decision made by informal internal review without first
issuing a notice of decision and receiving a request for reconsideration.
A party has thirty days from the date of service of an administrative order to file a
written request for rehearing. The request must state specifically each alleged error of
fact and law to be reheard and the relief sought. Absent a timely and sufficient request
for rehearing, the administrative order is final and may not be reheard or appealed.
Rehearings must be conducted as hearings under chapter 28-32 to the extent that
chapter does not conflict with this section.
An employer may appeal a posthearing administrative order to district court in
accordance with chapter 65-10. Chapter 65-10 does not preclude the organization
from appealing to district court a final order issued by a hearing officer under this title.
65-04-33. Failure to secure coverage - Noncompliance - Failure to submit necessary
reports - Penalty.
1. An employer may not employ any person, or receive the fruits of the labor of any
person, in a hazardous employment as defined in this title, without first applying for
workforce safety and insurance coverage for the protection of employees by notifying
the organization of the intended employment, the nature of the intended employment,
and the estimated payroll expenditure for the coming twelve-month period.
2. An employer who willfully misrepresents to the organization or its representative the
amount of payroll upon which a premium under this title is based, or who willfully fails
to secure coverage for employees, is liable to the state in the amount of two thousand
dollars plus three times the difference between the premium paid and the amount of
premium the employer should have paid. The organization shall collect a penalty
imposed under this subsection in a civil action in the name of the state, and the
organization shall deposit a penalty collected under this subsection to the credit of the
workforce safety and insurance fund. An employer who willfully misrepresents to the
organization or its representative the amount of payroll upon which a premium under
this title is based, or who willfully fails to secure coverage for employees, is guilty of a
class A misdemeanor. If the premium due exceeds five hundred dollars, the penalty for
willful failure to secure coverage or willful misrepresentation to the organization or its
representative is a class C felony. If the employer is a corporation or a limited liability
company, the president, secretary, treasurer, or person with primary responsibility is
liable for the failure to secure workforce safety and insurance coverage under this
subsection. In addition to the penalties prescribed by this subsection, the organization
may initiate injunction proceedings as provided for in this title to enjoin an employer
from unlawfully employing uninsured workers. The cost of an investigation under this
subsection which results in a criminal conviction may be charged to the employer's
account and collected by civil action.
3. An employer who is uninsured is liable for any premiums plus penalties and interest
due on those premiums, plus a penalty of twenty-five percent of all premiums due
during the most recent year of noncompliance. An additional five percent penalty is
due for each year of noncompliance before the most recent year beginning on the date
the organization became aware of the employer's uninsured status, resulting in the
penalty for the second most recent year being thirty percent, for the third most recent
year being thirty-five percent, for the fourth most recent year being forty percent, for
the fifth most recent year being forty-five percent, and for the sixth most recent year
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being fifty percent. In addition, the organization may assess a penalty of five thousand
dollars for each premium period the employer was uninsured. The organization may
not assess a penalty for more than six years of past noncompliance. The organization
may assess additional penalties, from the date the organization became aware of the
employer's uninsured status continuing until the effective date of coverage, equal to
twenty-five percent of the premium due for that period. In addition, the organization
may assess an employer the actual cost and reserves of any claim attributable to the
employer during the time the employer was uninsured. The penalties for employers are
in addition to any other penalties by law. The organization may reduce the penalties
provided for under this section. An employer may not appeal an organization decision
not to reduce a penalty under this subsection.
An employer who fails or refuses to furnish to the organization the annual payroll
report and estimate or who fails or refuses to furnish other information required by the
organization under this chapter is subject to a penalty established by the organization
of two thousand dollars. Upon the request of the organization, the employer shall
furnish the organization any of that employer's payroll records, annual payroll reports,
and other information required by the organization under this chapter and an estimate
of payroll for the advance premium year. If the employer fails or refuses to provide the
records within thirty days of a written request from the organization, the employer is
subject to a penalty not to exceed one hundred dollars for each day until the
organization receives the records, in addition to the five thousand dollar penalty set
forth above. The organization may not assess a penalty that exceeds one hundred fifty
dollars under this subsection against an organized township. The organization may
reduce penalties for employers under this subsection. However, an employer may not
appeal an organization decision not to reduce a penalty. The organization shall notify
an employer by regular mail of the amount of premium and penalty due the
organization from the employer. If the employer fails to pay that amount within thirty
days, the organization may collect the premium, penalties, and interest due by civil
action. In that action, the court may not review or consider the action of the
organization regarding the acceptance or payment of a claim filed when the employer
was uninsured. No exemptions except absolute exemptions under section 28-22-02
are allowed against any levy under executions pursuant to a judgment recovered in
the action.
When an employer defaults in the payment of any premium, any installment of the
premium, any penalty or interest, or in the filing of any bond required under this
chapter, the employer at the time of default is subject to a penalty not to exceed two
hundred fifty dollars plus two percent of the amount of premiums, penalties, and
interest in default, and beginning one month after default, a penalty of two percent of
the amount of premiums, penalties, and interest in default for each month or fraction of
a month the premium, penalty, or interest remains unpaid.
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