H. B. 2430
(By Delegates Doyle and Tabb)
[Introduced February 16, 2009; referred to the
Committee on Energy, Industry and Labor, Economic
Development and Small Business then the Judiciary.]
A BILL to amend and reenact §23-2-1 and §23-2-1a of the Code of
West Virginia, 1931, as amended; and to amend and reenact
§29-22A-10 of said code, all relating to providing workers'
compensation coverage for certain employees who perform duties
attendant to racing activities.
Be it enacted by the Legislature of West Virginia:
That §23-2-1 and §23-2-1a of the Code of West Virginia, 1931,
as amended, be amended and reenacted; and that §29-22A-10 of said
code be amended and reenacted, all to read as follows:
CHAPTER 23. WORKERS' COMPENSATION.
ARTICLE 2. EMPLOYERS AND EMPLOYEES SUBJECT TO CHAPTER;
EXTRATERRITORIAL COVERAGE.
§23-2-1. Employers subject to chapter; elections not to provide
certain coverages; notices; filing of business
registration certificates.
(a) The State of West Virginia and all governmental agencies
or departments created by it, including county boards of education,
political subdivisions of the state, any volunteer fire department
or company and other emergency service organizations as defined by
article five, chapter fifteen of this code, and all persons, firms,
associations and corporations regularly employing another person or
persons for the purpose of carrying on any form of industry,
service or business in this state, are employers within the meaning
of this chapter and are required to subscribe to and pay premium
taxes into the Workers' Compensation Fund for the protection of
their employees and are subject to all requirements of this chapter
and all rules prescribed by the Workers' Compensation Commission
with reference to rate, classification and premium payment:
Provided, That rates will be adjusted by the commission to reflect
the demand on the compensation fund by the covered employer.
(b) The following employers are not required to subscribe to
the fund, but may elect to do so:
(1) Employers of employees in domestic services;
(2) Employers of five or fewer full-time employees in
agricultural service;
(3) Employers of employees while the employees are employed
without the state except in cases of temporary employment without
the state;
(4) Casual employers. An employer is a casual employer when the number of his or her employees does not exceed three and the
period of employment is temporary, intermittent and sporadic in
nature and does not exceed ten calendar days in any calendar
quarter;
(5) Churches;
(6) Employers engaged in organized professional sports
activities,
including except that employers of trainers,
and
jockeys,
engaged in thoroughbred horse racing exercise riders and
any other employees of a person or entity engaged in racing
activities at a horse or dog racetrack licensed in this state are
required to subscribe and obtain workers' compensation coverage for
those employees; or
(7) Any volunteer rescue squad or volunteer police auxiliary
unit organized under the auspices of a county commission,
municipality or other government entity or political subdivision;
volunteer organizations created or sponsored by government
entities, political subdivisions; or area or regional emergency
medical services boards of directors in furtherance of the purposes
of the Emergency Medical Services Act of article four-c, chapter
sixteen of this code:
Provided, That if any of the employers
described in this subdivision have paid employees, to the extent of
those paid employees, the employer shall subscribe to and pay
premium taxes into the Workers' Compensation Fund based upon the
gross wages of the paid employees but with regard to the volunteers, the coverage remains optional.
(8) Any employer whose employees are eligible to receive
benefits under the federal Longshore and Harbor Workers'
Compensation Act, 33 U.S.C. §901,
et seq., but only for those
employees eligible for those benefits.
(c) Notwithstanding any other provision of this chapter to the
contrary, whenever there are churches in a circuit which employ one
individual clergyman and the payments to the clergyman from the
churches constitute his or her full salary, such circuit or group
of churches may elect to be considered a single employer for the
purpose of premium payment into the Workers' Compensation Fund.
(d) Employers who are not required to subscribe to the
Workers' Compensation Fund may voluntarily choose to subscribe to
and pay premiums into the fund for the protection of their
employees and in that case are subject to all requirements of this
chapter and all rules
and regulations prescribed by the commission
with reference to rates, classifications and premium payments and
shall afford to them the protection of this chapter, including
section six of this article, but the failure of the employers to
choose to subscribe to and to pay premiums into the fund shall not
impose any liability upon them other than any liability that would
exist notwithstanding the provisions of this chapter.
(e) Any foreign corporation employer whose employment in this
state is to be for a definite or limited period which could not be considered "regularly employing" within the meaning of this section
may choose to pay into the Workers' Compensation Fund the premiums
provided
for in this section, and at the time of making application
to the Workers' Compensation Commission, the employer shall furnish
a statement under oath showing the probable length of time the
employment will continue in this state, the character of the work,
an estimate of the monthly payroll and any other information which
may be required by the commission. At the time of making
application the employer shall deposit with the commission to the
credit of the Workers' Compensation Fund the amount required by
section five of this article. That amount shall be returned to the
employer if the employer's application is rejected by the
commission. Upon notice to the employer of the acceptance of his
or her application by the commission, he or she is an employer
within the meaning of this chapter and subject to all of its
provisions.
(f) Any foreign corporation employer choosing to comply with
the provisions of this chapter and to receive the benefits under
this chapter shall, at the time of making application to the
commission in addition to other requirements of this chapter,
furnish the commission with a certificate from the Secretary of
State, where the certificate is necessary, showing that it has
complied with all the requirements necessary to enable it legally
to do business in this state and no application of a foreign corporation employer shall be accepted by the commission until the
certificate is filed.
(g) The following employers may elect not to provide coverage
to certain of their employees under the provisions of this chapter:
(1) Any political subdivision of the state including county
commissions and municipalities, boards of education, or emergency
services organizations organized under the auspices of a county
commission may elect not to provide coverage to any elected
official. The election not to provide coverage does not apply to
individuals in appointed positions or to any other employees of the
political subdivision;
(2) If an employer is a partnership, sole proprietorship,
association or corporation, the employer may elect not to include
as an "employee" within this chapter, any member of the
partnership, the owner of the sole proprietorship or any corporate
officer or member of the board of directors of the association or
corporation. The officers of a corporation or an association shall
consist of a president, a vice president, a secretary and a
treasurer, each of whom is elected by the board of directors at the
time and in the manner prescribed by the bylaws. Other officers
and assistant officers that are considered necessary may be elected
or appointed by the board of directors or chosen in any other
manner prescribed by the bylaws and, if elected, appointed or
chosen, the employer may elect not to include the officer or assistant officer as an "employee" within the meaning of this
chapter:
Provided, That except for those persons who are members
of the board of directors or who are the corporation's or
association's president, vice president, secretary and treasurer
and who may be excluded by reason of their positions from the
benefits of this chapter even though their duties,
responsibilities, activities or actions may have a dual capacity of
work which is ordinarily performed by an officer and also of work
which is ordinarily performed by a worker, an administrator or an
employee who is not an officer, no other officer or assistant
officer who is elected or appointed shall be excluded by election
from coverage or be denied the benefits of this chapter merely
because he or she is an officer or assistant officer if, as a
matter of fact:
(A) He or she is engaged in a dual capacity of having the
duties and responsibilities for work ordinarily performed by an
officer and also having duties and work ordinarily performed by a
worker, administrator or employee who is not an officer;
(B) He or she is engaged ordinarily in performing the duties
of a worker, an administrator or an employee who is not an officer
and receives pay for performing the duties in the capacity of an
employee; or
(C) He or she is engaged in an employment palpably separate
and distinct from his or her official duties as an officer of the association or corporation;
(3) If an employer is a limited liability company, the
employer may elect not to include as an "employee" within this
chapter a total of no more than four persons, each of whom are
acting in the capacity of manager, officer or member of the
company.
(h) In the event of election under subsection (g) of this
section, the employer shall serve upon the commission written
notice naming the positions not to be covered and shall not include
the "employee's" remuneration for premium purposes in all future
payroll reports, and the partner, proprietor or corporate or
executive officer is not considered an employee within the meaning
of this chapter after the notice has been served. Notwithstanding
the provisions of subsection (g), section five of this article, if
an employer is delinquent or in default or has not subscribed to
the fund even though it is obligated to do so under the provisions
of this article, any partner, proprietor or corporate or executive
officer shall not be covered and shall not receive the benefits of
this chapter.
(I) "Regularly employing" or "regular employment" means
employment by an employer which is not a casual employer under this
section.
(j) Upon the termination of the commission, the criteria
governing which employer shall or may subscribe to the Workers' Compensation Commission shall also govern which employers shall or
may purchase workers' compensation insurance under article two-c of
this chapter.
§23-2-1a. Employees subject to chapter.
(a) Employees subject to this chapter are all persons in the
service of employers and employed by them for the purpose of
carrying on the industry, business, service or work in which they
are engaged, including, but not limited to:
(1) Persons regularly employed in the state whose duties
necessitate employment of a temporary or transitory nature by the
same employer without the state;
(2) Every person in the service of the state or of any
political subdivision or agency thereof, under any contract of
hire, express or implied, and every appointed official or officer
thereof while performing his or her official duties;
(3) Checkweighmen employed according to law;
(4) All members of rescue teams assisting in mine accidents
with the consent of the owner who, in such case, shall be deemed
the employer, or at the direction of the Director of the Department
of Mines;
(5) All forest firefighters who, under the supervision of the
Director of the
Department Division of Natural Resources or his or
her designated representative, assist in the prevention,
confinement and suppression of any forest fire;
and
(6) Students while participating in a work-based learning
experience with an employer approved as a part of the curriculum by
the county board. The county board shall be the employer of record
of students while participating in unpaid work-based experiences
off school premises with employers other than the county board.
Students in unpaid work-based learning experiences shall be
considered to be paid the amount of wages so as to provide the
minimum workers' compensation weekly benefits required by section
six, article four of this chapter;
and
(7) All employees of employers of trainers, jockeys, exercise
riders and any other employees of a person or entity engaged in
racing activities at a horse or dog racetrack licensed in this
state.
(b) The right to receive compensation under this chapter shall
not be affected by the fact that a minor is employed or is
permitted to be employed in violation of the laws of this state
relating to the employment of minors, or that he or she obtained
his or her employment by misrepresenting his or her age.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 22A. RACETRACK VIDEO LOTTERY.
§29-22A-10. Accounting and reporting; commission to provide
communications protocol data; distribution of net
terminal income; remittance through electronic
transfer of funds; establishment of accounts and nonpayment penalties; commission control of
accounting for net terminal income; settlement of
accounts; manual reporting and payment may be
required; request for reports; examination of
accounts and records.
(a) The commission shall provide to manufacturers, or
applicants applying for a manufacturer's permit, the protocol
documentation data necessary to enable the respective
manufacturer's video lottery terminals to communicate with the
commission's central computer for transmitting auditing program
information and for activation and disabling of video lottery
terminals.
(b) The gross terminal income of a licensed racetrack shall be
remitted to the commission through the electronic transfer of
funds. Licensed racetracks shall furnish to the commission all
information and bank authorizations required to facilitate the
timely transfer of moneys to the commission. Licensed racetracks
must provide the commission thirty days' advance notice of any
proposed account changes in order to assure the uninterrupted
electronic transfer of funds. From the gross terminal income
remitted by the licensee to the commission, the commission shall
deduct an amount sufficient to reimburse the commission for its
actual costs and expenses incurred in administering racetrack video
lottery at the licensed racetrack, and the resulting amount after the deduction is the net terminal income. The amount deducted for
administrative costs and expenses of the commission may not exceed
four percent of gross terminal income:
Provided, That any amounts
deducted by the commission for its actual costs and expenses that
exceeds its actual costs and expenses shall be deposited into the
State Lottery Fund. For the fiscal years ending June 13, 2006,
2007, 2008, 2009, 2010 and 2011 the term "actual costs and
expenses" shall include transfers of no more than $20 million in
any year to the Revenue Center Construction Fund created by
subsection (l), section eighteen, article twenty-two of this
chapter for the purpose of constructing a state office building.
For all fiscal years beginning on or after July 1, 2001, the
commission
shall may not receive an amount of gross terminal income
in excess of the amount of gross terminal income received during
the fiscal year ending on June 13, 2001, but four percent of any
amount of gross terminal income received in excess of the amount of
gross terminal income received during the fiscal year ending on
June 13, 2001, shall be deposited into the fund established in
section eighteen-a, article twenty-two of this chapter.
(c) Net terminal income shall be divided as set out in this
subsection. For all fiscal years beginning on or after June 1,
2001, any amount of net terminal income received in excess of the
amount of net terminal income received during the fiscal year
ending on June 13, 2001, shall be divided as set out in section ten-b of this article. The licensed racetrack's share is in lieu
of all lottery agent commissions and is considered to cover all
costs and expenses required to be expended by the licensed
racetrack in connection with video lottery operations. The
division shall be made as follows:
(1) The commission shall receive thirty percent of net
terminal income, which shall be paid into the State Lottery Fund as
provided in section ten-a of this article;
(2) Until July 1, 2005, fourteen percent of net terminal
income at a licensed racetrack shall be deposited in the special
fund established by the licensee, and used for payment of regular
purses in addition to other amounts provided for in article
twenty-three, chapter nineteen of this code, on and after July 1,
2005, the rate shall be seven percent of net terminal income;
(3) The county where the video lottery terminals are located
shall receive two percent of the net terminal income:
Provided,
That:
(A) Beginning July 1, 1999, and thereafter, any amount in
excess of the two percent received during the fiscal year
one
thousand nine hundred ninety-nine by a county in which a racetrack
is located that has participated in the West Virginia thoroughbred
development fund since on or before June 1, 1999, shall be divided
as follows:
(i) The county shall receive fifty percent of the excess amount; and
(ii) The municipalities of the county shall receive fifty
percent of the excess amount, said fifty percent to be divided
among the municipalities on a per capita basis as determined by the
most recent decennial United States census of population; and
(B) Beginning the July 1, 1999, and thereafter, any amount in
excess of the two percent received during the fiscal year 1999 by
a county in which a racetrack other than a racetrack described in
paragraph (A) of this proviso is located and where the racetrack
has been located in a municipality within the county since on or
before January 1, 1999, shall be divided, if applicable, as
follows:
(i) The county shall receive fifty percent of the excess
amount; and
(ii) The municipality shall receive fifty percent of the
excess amount; and
(C) This proviso shall not affect the amount to be received
under this subdivision by any other county other than a county
described in paragraph (A) or (B) of this proviso;
(4) One percent of net terminal income shall be paid for and
on behalf of all employees of the licensed racing association by
making a deposit into a special fund to be established by the
Racing Commission to be used for payment into the pension plan for
all employees of the licensed racing association;
(5) The West Virginia Thoroughbred Development Fund created
under section thirteen-b, article twenty-three, chapter nineteen of
this code and the West Virginia Greyhound Breeding Development Fund
created under section ten of said article shall receive an equal
share of a total of not less than one and one-half percent of the
net terminal income;
(6) The West Virginia Racing Commission shall receive one
percent of the net terminal income which shall be deposited and
used as provided in section thirteen-c, article twenty-three,
chapter nineteen of this code.
(7) A licensee shall receive forty-six and one-half percent of
net terminal income,
less an amount required for the payment of any
premiums for workers' compensation coverage for the employees of
employers of trainers, jockeys, exercise riders and any other
employees of a person or entity engaged in racing activities at a
horse or dog racetrack licensed in this state, which amount shall
be deducted from the licensee's share under this subdivision by the
commission and remitted to the entity from which such coverage is
being provided as required by the provisions of section one-a,
article two, chapter twenty-three of this code in a manner
sufficiently timely to avoid default in the payment of such
premiums.
(8) (A) The Tourism Promotion Fund established in section
twelve, article two, chapter five-b of this code shall receive three percent of the net terminal income:
Provided, That for the
fiscal year beginning July 1, 2003, the Tourism Commission shall
transfer from the Tourism Promotion Fund $5 million of the three
percent of the net terminal income described in this section and
section ten-b of this article into the fund administered by the
West Virginia economic development authority pursuant to section
seven, article fifteen, chapter thirty-one of this code, $5 million
into the Capitol Renovation and Improvement Fund administered by
the Department of Administration pursuant to section six, article
four, chapter five-a of this code and $5 million into the tax
reduction and federal funding increased compliance fund; and
(B) Notwithstanding any provision of paragraph (A) of this
subdivision to the contrary, for each fiscal year beginning after
June 13, 2004, this three percent of net terminal income and the
three percent of net terminal income described in paragraph (B),
subdivision (8), subsection (a), section ten-b of this article
shall be distributed as provided in this paragraph as follows:
(i) One and three hundred seventy-five hundredth percent of
the total amount of net terminal income described in this section
and in section ten-b of this article shall be deposited into the
Tourism Promotion Fund created under section twelve, article two,
chapter five-b of this code;
(ii) Three hundred seventy-five hundredth percent of the total
amount of net terminal income described in this section and in section ten-b of this article shall be deposited into the
Development Office Promotion Fund created under section three-b,
article two, chapter five-b of this code;
(iii) Five-tenths percent of the total amount of net terminal
income described in this section and in section ten-b of this
article shall be deposited into the Research Challenge Fund created
under section ten, article one-b, chapter eighteen-b of this code;
(iv) Six thousand eight hundred seventy-five thousandth
percent of the total amount of net terminal income described in
this section and in section ten-b of this article shall be
deposited into the Capitol Renovation and Improvement Fund
administered by the Department of Administration pursuant to
section six, article four, chapter five-a of this code; and
(v) Six hundred twenty-five thousandth percent of the total
amount of net terminal income described in this section and in
section ten-b of this article shall be deposited into the 2004
Capitol Complex Parking Garage Fund administered by the Department
of Administration pursuant to section five-a, article four, chapter
five-a of this code;
(9) (A) On and after June 1, 2005, seven percent of net
terminal income shall be deposited into the Workers' Compensation
Debt Reduction Fund created in section five, article two-d, chapter
twenty-three of this code:
Provided, That in any fiscal year when
the amount of money generated by this subdivision totals $11 million, all subsequent distributions under this subdivision shall
be deposited in the special fund established by the licensee and
used for the payment of regular purses in addition to the other
amounts provided for in article twenty-three, chapter nineteen of
this code;
(B) The deposit of the seven percent of net terminal income
into the Worker's Compensation Debt Reduction Fund pursuant to this
subdivision shall expire and not be imposed with respect to these
funds and shall be deposited in the special fund established by the
licensee and used for payment of regular purses in addition to the
other amounts provided
for in article twenty-three, chapter
nineteen of this code, on and after the first day of the month
following the month in which the Governor certifies to the
Legislature that: (i) The revenue bonds issued pursuant to article
two-d, chapter twenty-three of this code, have been retired or
payment of the debt service provided for; and (ii) that an
independent certified actuary has determined that the unfunded
liability of the old fund, as defined in chapter twenty-three of
this code, has been paid or provided
for in its entirety; and
(10) The remaining one percent of net terminal income shall be
deposited as follows:
(A) For the fiscal year beginning July 1, 2003, the veterans
memorial program shall receive one percent of the net terminal
income until sufficient moneys have been received to complete the veterans memorial on the grounds of the State Capitol Complex in
Charleston, West Virginia. The moneys shall be deposited in the
State Treasury in the Division of Culture and History special fund
created under section three, article one-i, chapter twenty-nine of
this code:
Provided, That only after sufficient moneys have been
deposited in the fund to complete the veterans memorial and to pay
in full the annual bonded indebtedness on the veterans memorial,
not more than $20,000 of the one percent of net terminal income
provided for in this subdivision shall be deposited into a special
revenue fund in the State Treasury, to be known as the "John F.
'Jack' Bennett Fund". The moneys in this fund shall be expended by
the Division of Veterans Affairs to provide for the placement of
markers for the graves of veterans in perpetual cemeteries in this
state. The Division of Veterans Affairs shall promulgate
legislative rules pursuant to the provisions of article three,
chapter twenty-nine-a of this code specifying the manner in which
the funds are spent, determine the ability of the surviving spouse
to pay for the placement of the marker and setting forth the
standards to be used to determine the priority in which the
veterans grave markers will be placed in the event that there are
not sufficient funds to complete the placement of veterans grave
markers in any one year, or at all. Upon payment in full of the
bonded indebtedness on the veterans memorial, $100,000 of the one
percent of net terminal income provided for in this subdivision shall be deposited in the special fund in the Division of Culture
and History created under section three, article one-i, chapter
twenty-nine of this code and be expended by the Division of Culture
and History to establish a West Virginia Veterans Memorial Archives
within the Cultural Center to serve as a repository for the
documents and records pertaining to the veterans memorial, to
restore and maintain the monuments and memorial on the capitol
grounds:
Provided, however, That $500,000 of the one percent of
net terminal income shall be deposited in the State Treasury in a
special fund of the Department of Administration, created under
section five, article four, chapter five-a of this code, to be used
for construction and maintenance of a parking garage on the State
Capitol Complex; and the remainder of the one percent of net
terminal income shall be deposited in equal amounts in the Capitol
Dome and Improvements Fund created under section two, article four,
chapter five-a of this code and cultural facilities and Capitol
Resources Matching Grant Program Fund created under section three,
article one of this chapter.
(B) For each fiscal year beginning after June 13, 2004:
(i) $500,000 of the one percent of net terminal income shall
be deposited in the State Treasury in a special fund of the
Department of Administration, created under section five, article
four, chapter five-a of this code, to be used for construction and
maintenance of a parking garage on the State Capitol Complex; and
(ii) The remainder of the one percent of net terminal income
and all of the one percent of net terminal income described in
paragraph (B), subdivision (9), subsection (a), section ten-b of
this article twenty-two-a shall be distributed as follows: The net
terminal income shall be deposited in equal amounts into the
Capitol Dome and Capitol Improvements Fund created under section
two, article four, chapter five-a of this code and the Cultural
Facilities and Capitol Resources Matching Grant Program Fund
created under section three, article one, chapter twenty-nine of
this code until a total of $1.5 million is deposited into the
Cultural Facilities and Capitol Resources Matching Grant Program
Fund; thereafter, the remainder shall be deposited into the Capitol
Dome and Capitol Improvements Fund.
(d) Each licensed racetrack shall maintain in its account an
amount equal to or greater than the gross terminal income from its
operation of video lottery machines, to be electronically
transferred by the commission on dates established by the
commission. Upon a licensed racetrack's failure to maintain this
balance, the commission may disable all of a licensed racetrack's
video lottery terminals until full payment of all amounts due is
made. Interest shall accrue on any unpaid balance at a rate
consistent with the amount charged for state income tax delinquency
under chapter eleven of this code. The interest shall begin to
accrue on the date payment is due to the commission.
(e) The commission's central control computer shall keep
accurate records of all income generated by each video lottery
terminal. The commission shall prepare and mail to the licensed
racetrack a statement reflecting the gross terminal income
generated by the licensee's video lottery terminals. Each licensed
racetrack shall report to the commission any discrepancies between
the commission's statement and each terminal's mechanical and
electronic meter readings. The licensed racetrack is solely
responsible for resolving income discrepancies between actual money
collected and the amount shown on the accounting meters or on the
commission's billing statement.
(f) Until an accounting discrepancy is resolved in favor of
the licensed racetrack, the commission may make no credit
adjustments. For any video lottery terminal reflecting a
discrepancy, the licensed racetrack shall submit to the commission
the maintenance log which includes current mechanical meter
readings and the audit ticket which contains electronic meter
readings generated by the terminal's software. If the meter
readings and the commission's records cannot be reconciled, final
disposition of the matter shall be determined by the commission.
Any accounting discrepancies which cannot be otherwise resolved
shall be resolved in favor of the commission.
(g) Licensed racetracks shall remit payment by mail if the
electronic transfer of funds is not operational or the commission notifies licensed racetracks that remittance by this method is
required. The licensed racetracks shall report an amount equal to
the total amount of cash inserted into each video lottery terminal
operated by a licensee, minus the total value of game credits which
are cleared from the video lottery terminal in exchange for winning
redemption tickets, and remit the amount as generated from its
terminals during the reporting period. The remittance shall be
sealed in a properly addressed and stamped envelope and deposited
in the United States mail no later than noon on the day when the
payment would otherwise be completed through electronic funds
transfer.
(h) Licensed racetracks may, upon request, receive additional
reports of play transactions for their respective video lottery
terminals and other marketing information not considered
confidential by the commission. The commission may charge a
reasonable fee for the cost of producing and mailing any report
other than the billing statements.
(i) The commission has the right to examine all accounts, bank
accounts, financial statements and records in a licensed
racetrack's possession, under its control or in which it has an
interest and the licensed racetrack shall authorize all third
parties in possession or in control of the accounts or records to
allow examination of any of those accounts or records by the
commission.
NOTE: The purpose of this bill is to provide workers'
compensation coverage for certain employees who perform duties
attendant to racing activities.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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