NY Work Comp L § 52 (2021)
2021 New York Laws WKC - Workers' Compensation Article 4 - Security for Compensation 52 - Effect of Failure to Secure Compensation.

§  52.  Effect  of  failure  to secure compensation. 1. (a) Failure to secure the payment of compensation for five or less employees  within  a twelve month period shall constitute a misdemeanor, and is punishable by a  fine  of  not  less  than  one  thousand  nor more than five thousand dollars.  Failure to secure the payment of compensation  for  more  than five  employees  within a twelve month period shall constitute a class E felony, and is punishable by a fine  of  not  less  than  five  thousand dollars  nor  more  than fifty thousand dollars in addition to any other penalties otherwise provided by law. It shall be an affirmative  defense to  any  criminal  prosecution under this section that the employer took reasonable steps to secure compensation.  (b) Where any person has previously been convicted  of  a  failure  to secure the payment of compensation within the preceding five years, upon conviction  for  a subsequent violation such person shall be guilty of a class D felony, and fined not less than ten thousand nor more than fifty thousand dollars in addition to  any  other  penalties  including  fines otherwise provided by law.  (c)  Where the employer is a corporation, the president, secretary and treasurer thereof shall be liable for failure to secure the  payment  of compensation  under  this section. It shall be an affirmative defense to any action against any officer of a corporation under this section  that the officer took reasonable steps to ensure that the corporation secured compensation,  that  proper internal procedures were in effect to do so, and that proper internal controls existed  to  monitor  compliance  with said procedures.  (d)   If   at  any  time  an  employer  intentionally  and  materially understates  or  conceals  payroll,  or  intentionally  and   materially misrepresents  or  conceals  employee  duties  so  as  to  avoid  proper classification for calculation of premium paid to  secure  compensation, or  intentionally  and  materially misrepresents or conceals information pertinent to the calculation of premium  paid  to  secure  compensation, such  employer shall be deemed to have failed to secure compensation and shall be subject to the sanctions applicable to this section.  (e) A stop-work order issued because an employer  is  deemed  to  have failed  to  secure compensation under section one hundred forty-one-a of this chapter shall have no effect upon an employer's or  carrier's  duty to  provide benefits under this chapter or upon any of the employer's or carrier's rights and defenses.   2. All fines imposed under this chapter, except  as  herein  otherwise provided,  shall  be  paid  directly  and  immediately  by  the  officer collecting the same to the chairman, and shall be paid by him  into  the uninsured  employers'  fund  created  under section twenty-six-a of this chapter, provided, however, that all such fines collected by justices of towns and villages shall be paid to the state comptroller in  accordance with  the provisions of section twenty-seven of the town law and section 4-410 of the village law respectively.   3. In any prosecution hereunder the failure of the  employer  to  file with  the chairman, within ten days after demand, a statement subscribed by the employer and affirmed by him  as  true  under  the  penalties  of perjury  showing  specifically (a) the name of the stock company, mutual corporation or reciprocal insurer in which such employer is insured  and the  number  and  the  date  of  issuance  and  term  of  such policy of insurance, or (b) that the said employer is insured with the state  fund in  which case he shall give the number of such policy of insurance, the date of issuance and term thereof, or (c) that  the  said  employer  has been  authorized  to  do  business as a self-insurer pursuant to section fifty of this article, giving the date of said authorization, or  (d)  a legal  reason,  if  any,  why  said  employer  is not required to secure  compensation, shall constitute prima facie evidence  that  the  employer has  failed  to secure compensation as herein required. The statement to be filed herein shall be subscribed by the employer or if  the  employer is  a  corporation by one of the officers herein named in which he shall state that he has read such statement subscribed by him  and  knows  the contents thereof and that same is true of his own knowledge.   4.  If,  however,  there has been an accident and the board shall have made an award against the employer as a non-insured employer, the making of such  award,  except  in  a  case  where  the  employer  had  secured compensation  insurance  which was in effect at the time of the accident but the carrier later became insolvent,  shall  constitute  prima  facie evidence  of  an  employment  by  the  employer  of  an  employee  in an occupation in which the said employer was required to carry compensation and of the failure of the employer to secure  the  payment  of  workers' compensation  on  the  date  of  the  accident involved in said award. A certified copy of such award shall be received as competent evidence  of the making thereof in any criminal prosecution hereunder.   5. The chair, upon finding that an employer has failed for a period of not  less than ten consecutive days to make the provision for payment of compensation required by section fifty of this article, may impose  upon such  employer, in addition to all other penalties, fines or assessments provided for in this chapter, a penalty of up to  two  thousand  dollars for  each ten day period of non-compliance or a sum not in excess of two times the cost of compensation for its payroll for the  period  of  such failure,  which  sum  shall  be  paid into the uninsured employers' fund created under section twenty-six-a of this  chapter.  When  an  employer fails  to  provide  business  records  sufficient to enable the chair to determine the employer's  payroll  for  the  period  requested  for  the calculation  of the penalty provided in this section, the imputed weekly payroll for  each  employee,  corporate  officer,  sole  proprietor,  or partner  shall  be the New York state average weekly wage, multiplied by 1.5. Where the employer is a corporation, the president,  secretary  and treasurer thereof shall be liable for the penalty. If the employer shall within  thirty  days  after notice of the imposition of a penalty by the chair pursuant to this subdivision make an application in affidavit form for a redetermination review of such penalty  the  chair  shall  make  a decision in writing on the issues raised on such application.