H. B. 4087


(By Delegate Louisos)
[Introduced January 24, 2006; referred to the
Committee on Industry and Labor, Economic Development and Small Business then the Judiciary.]





A BILL to amend and reenact §21A-5-16 of the Code of West Virginia, 1931, as amended; and to amend and reenact §23-2-5a of said code, all relating to allowing the purchaser of at least fifty percent of a business in default of payments, interest or penalties for unemployment compensation and workers compensation to recover from the owners or investors of the business in default.

Be it enacted by the Legislature of West Virginia:
That §21A-5-16 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that §23-2-5a of said code be amended and reenacted, all to read as follows:
CHAPTER 21A. UNEMPLOYMENT COMPENSATION.
ARTICLE 5. EMPLOYER COVERAGE AND RESPONSIBILITY.

§21A-5-16. Collection of payments.
(a) The commissioner in the name of the state may commence a civil action against an employer who, after due notice, defaults in any payment, interest or penalty thereon required by this chapter. Civil actions under this section shall be given preference on the calendar of the court over all other civil actions except petitions for judicial review under article seven of this chapter and cases arising under the workers' compensation law. Upon prevailing in any such civil action, the commissioner is entitled to recover attorneys' fees and costs of action from the employer.
(b) Any payment, interest and penalty thereon due and unpaid under this chapter is a debt due the state in favor of the commissioner. It is a personal obligation of the employer immediately due and owing and is, in addition thereto, a lien that may be enforced as other judgment liens are enforced through the provisions of chapter thirty-eight of this code and the same shall be deemed by the circuit court to be a judgment lien for this purpose against all the property of the employer: Provided, That no such lien is enforceable as against a purchaser (including lien creditor) of real estate or personal property for a valuable consideration, without notice, unless docketed as provided in article ten-c, chapter thirty-eight of this code.
(c) In addition to all other civil remedies prescribed herein the commissioner may in the name of the state, after giving appropriate notice as required by due process, distrain upon any personal property, including intangibles, of any employer delinquent for any payment, interest and penalty thereon. If the commissioner has good reason to believe that such property or a substantial portion thereof is about to be removed from the county in which it is situated, upon giving appropriate notice, either before or after the seizure, as is proper in the circumstances, he or she may likewise distrain in the name of the state before such delinquency occurs. For purposes of effecting a distraint under this subsection, the commissioner may require the services of a sheriff of any county in the state in levying distress in the county in which the sheriff is an officer and in which the employer's personal property is situated. A sheriff so collecting any payments, interest and penalties thereon is entitled to compensation as provided by law for his or her services in the levy and enforcement of executions. Upon prevailing in any distraint action, the commissioner is entitled to recover his or her attorney fees and costs of action from the employer.
(d) In case a business subject to the payments, interest and penalties thereon imposed under this chapter is operated in connection with a receivership or insolvency proceeding in any state court in this state, the court under whose direction such business is operated shall, by the entry of a proper order or decree in the cause, make provision, so far as the assets in administration will permit, for the regular payment of such payments as the same become due.
(e) The Secretary of State of this state shall withhold the issuance of any certificate of dissolution or withdrawal in the case of any corporation organized under the laws of this state, or organized under the laws of another state and admitted to do business in this state, until notified by the commissioner that all payments, interest and penalties thereon against any such corporation which is an employer under this chapter have been paid or that provision satisfactory to the commissioner has been made for payment.
(f) In any case where an employer defaults in payments, interest or penalties thereon, for as many as two calendar quarters, which quarters need not be consecutive, and remains delinquent after due notice, the commissioner may bring action in the circuit court of Kanawha County to enjoin that employer from continuing to carry on the business in which such liability was incurred: Provided, That the commissioner may as an alternative to this action require such delinquent employer to file a bond in the form prescribed by the commissioner with satisfactory surety in an amount not less than fifty percent more than the payments, interest and penalties due.
(g) Amounts of payments and penalties collected under this section shall be deposited to the credit of the unemployment compensation trust fund. Amounts of interest, attorneys' fees and costs collected under this section shall be paid into the employment security special administration fund. Any such amounts are not to be treated by the Auditor or Treasurer as part of the general revenue of the state.
(h) Any purchaser of at least fifty percent of a business having employees covered under the provisions of this chapter in default, was in default at the time of purchase or may be found to have been in default in the future may recover from the business its owners or investors any payment, interest and penalty due by filing a civil action against the former owner, or investors of the business in default or that has defaulted or may be found to have defaulted in the future in any payment required by this chapter or law in effect at the time of the purchase. The purchaser is also entitled to recover attorneys' fees and costs of the action. If the contract of sale provides that the purchaser agrees to accept liability for the default, the purchaser is precluded from recovery.
CHAPTER 23. WORKERS' COMPENSATION.

ARTICLE 2. EMPLOYERS AND EMPLOYEES SUBJECT TO CHAPTER; EXTRATERRITORIAL COVERAGE.

§23-2-5a. Collection of premiums from defaulting employers; interest and penalties; civil remedies; creation and enforcement of lien against employer and purchaser; duty of Secretary of State to register liens; distraint powers; insolvency proceedings; Secretary of State to withhold certificates of dissolution; injunctive relief; bond; attorney fees and costs.

(a) The Workers' Compensation Commission in the name of the state may commence a civil action against an employer who, after due notice, defaults in any payment required by this chapter. If judgment is against the employer, the employer shall pay the costs of the action. A civil action under this section shall be given preference on the calendar of the court over all other civil actions. Upon prevailing in a civil action, the commission is entitled to recover its attorneys' fees and costs of action from the employer.
(b) In addition to the provisions of subsection (a) of this section, any payment, interest and penalty due and unpaid under this chapter is a personal obligation of the employer immediately due and owing to the commission and shall, in addition, be a lien enforceable against all the property of the employer: Provided, That the lien shall not be enforceable as against a purchaser (including a lien creditor) of real estate or personal property for a valuable consideration without notice, unless docketed as provided in section one, article ten-c, chapter thirty-eight of this code: Provided, however, That the lien may be enforced as other judgment liens are enforced through the provisions of said chapter and the same is considered deemed by the circuit court to be a judgment lien for this purpose.
(c) In addition to all other civil remedies prescribed, the commission may in the name of the state, after giving appropriate notice as required by due process, distrain upon any personal property, including intangible property, of any employer delinquent for any payment, interest and penalty thereon. If the commission has good reason to believe that the property or a substantial portion of the property is about to be removed from the county in which it is situated, upon giving appropriate notice, either before or after the seizure, as is proper in the circumstances, the commission may likewise distrain in the name of the state before the delinquency occurs. For that purpose, the commission may require the services of a sheriff of any county in the state in levying the distress in the county in which the sheriff is an officer and in which the personal property is situated. A sheriff collecting any payment, interest and penalty thereon is entitled to the compensation as provided by law for his or her services in the levy and enforcement of executions. Upon prevailing in any distraint action, the commission is entitled to recover its attorneys' fees and costs of action from the employer.
(d) In case a business subject to the payments, interest and penalties thereon imposed under this chapter is operated in connection with a receivership or insolvency proceeding in any state court in this state, the court under whose direction the business is operated shall, by the entry of a proper order or decree in the cause, make provisions, so far as the assets in administration will permit, for the regular payment of the payments, interest and penalties as they become due.
(e) The Secretary of State of this state shall withhold the issuance of any certificate of dissolution or withdrawal in the case of any corporation organized under the laws of this state or organized under the laws of any other state and admitted to do business in this state, until notified by the commission that all payments, interest and penalties thereon against the corporation which is an employer under this chapter have been paid or that provision satisfactory to the commission has been made for payment.
(f) In any case when an employer required to subscribe to the fund defaults in payments of premium, premium deposits, penalty or interest thereon, for as many as two reporting periods, which reporting periods need not be consecutive, and remains in default after due notice, the commission may bring action in the circuit court of Kanawha County to enjoin the employer from continuing to carry on the business in which the liability was incurred: Provided, That the commission may as an alternative to this action require the delinquent employer to file a bond in the form prescribed by the commission with satisfactory surety in an amount not less than fifty percent more than the payments, interest and penalties due.
(g) Any purchaser of at least fifty percent of a business having employees covered under the provisions of this chapter in default, was in default at the time of purchase or may be found to have been in default in the future may recover from the business its owners or investors any payment, interest and penalty due by filing a civil action against the former owner, or investors of the business in default or that has defaulted or may be found to have defaulted in the future in any payment required by this chapter or law in effect at the time of the purchase. The purchaser is also entitled to recover attorneys' fees and costs of the action. If the contract of sale provides that the purchaser agrees to accept liability for the default, the purchaser is precluded from recovery.



NOTE: The purpose of this bill is to allow the purchaser of at least fifty percent of a business in default of payments, interest or penalties for unemployment compensation and workers' compensation to recover from the owners or investors of the business in default.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.