Senate Bill No. 126–Senator Carlton

 

February 13, 2001

____________

 

Referred to Committee on Commerce and Labor

 

SUMMARY—Prohibits certain discrimination against employee and prospective employee for filing claim for workers’ compensation. (BDR 53‑856)

 

FISCAL NOTE:            Effect on Local Government: No.

                                    Effect on the State: No.

 

~

 

EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

AN ACT relating to workers’ compensation; prohibiting employers from discriminating against employees and prospective employees who have filed claims for workers’ compensation when employers are hiring employees or determining terms and conditions of employment; allowing an employee or prospective employee to bring a civil action against an employer who engages in such discrimination; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

1-1    Section 1. NRS 616A.020 is hereby amended to read as follows:

1-2    616A.020  1.  The rights and remedies provided in chapters 616A to

1-3  616D, inclusive, of NRS for an employee on account of an injury by

1-4  accident sustained arising out of and in the course of the employment shall

1-5  be exclusive, except as otherwise provided in those chapters, of all other

1-6  rights and remedies of the employee, his personal or legal representatives,

1-7  dependents or next of kin, at common law or otherwise, on account of such

1-8  injury.

1-9    2.  The terms, conditions and provisions of chapters 616A to 616D,

1-10  inclusive, of NRS for the payment of compensation and the amount thereof

1-11  for injuries sustained or death resulting from such injuries shall be

1-12  conclusive, compulsory and obligatory upon both employers and

1-13  employees coming within the provisions of those chapters.

1-14    3.  The exclusive remedy provided by this section to a principal

1-15  contractor extends, with respect to any injury by accident sustained by an

1-16  employee of any contractor in the performance of the contract, to every

1-17  architect, land surveyor or engineer who performs services for:

1-18    (a) The contractor;

1-19    (b) The owner of the property; or

1-20    (c) Any such beneficially interested persons.

2-1    4.  The exclusive remedy provided by this section applies to the owner

2-2  of a construction project who provides industrial insurance coverage for the

2-3  project by establishing and administering a consolidated insurance program

2-4  pursuant to NRS 616B.710 to the extent that the program covers the

2-5  employees of the contractors and subcontractors who are engaged in the

2-6  construction of the project.

2-7    5.  [If] Except as otherwise provided in section 4 of this act, if an

2-8  employee receives any compensation or accident benefits under chapters

2-9  616A to 616D, inclusive, of NRS, the acceptance of such compensation or

2-10  benefits shall be in lieu of any other compensation, award or recovery

2-11  against his employer under the laws of any other state or jurisdiction and

2-12  such employee is barred from commencing any action or proceeding for

2-13  the enforcement or collection of any benefits or award under the laws of

2-14  any other state or jurisdiction.

2-15    Sec. 2.  NRS 616B.033 is hereby amended to read as follows:

2-16    616B.033  1.  Every policy of insurance issued pursuant to chapters

2-17  616A to 617, inclusive, of NRS must contain a provision for the

2-18  requirements of subsection 5 and a provision that insolvency or bankruptcy

2-19  of the employer or his estate, or discharge therein, or any default of the

2-20  employer does not relieve the insurer from liability for compensation

2-21  resulting from an injury otherwise covered under the policy issued by the

2-22  insurer.

2-23    2.  No statement in an employer’s application for a policy of industrial

2-24  insurance voids the policy as between the insurer and employer unless the

2-25  statement is false and would have materially affected the acceptance of the

2-26  risk if known by the insurer, but in no case does the invalidation of a policy

2-27  as between the insurer and employer affect the insurer’s obligation to

2-28  provide compensation to claimants arising before the cancellation of the

2-29  policy. If the insurer is required pursuant to this subsection to provide

2-30  compensation under an invalid policy, the insurer is subrogated to the

2-31  claimant’s rights against the employer.

2-32    3.  If an insurer or employer intends to cancel or renew a policy of

2-33  insurance issued by the insurer pursuant to chapters 616A to 617, inclusive,

2-34  of NRS, the insurer or employer must give notice to that effect in writing to

2-35  the administrator and to the other party fixing the date on which it is

2-36  proposed that the cancellation or renewal becomes effective. The notices

2-37  must comply with the provisions of NRS 687B.310 to 687B.355, inclusive,

2-38  and must be served personally on or sent by first-class mail or electronic

2-39  transmission to the administrator and the other party. If the employer has

2-40  secured insurance with another insurer which would cause double

2-41  coverage, the cancellation must be made effective as of the effective date

2-42  of the other insurance.

2-43    4.  As between any claimant and the insurer, no defense based on any

2-44  act or omission of the insured employer, if different from the insurer, may

2-45  be raised by the insurer.

2-46    5.  For the purposes of chapters 616A to 617, inclusive, of NRS, as

2-47  between the employee and the insurer:

3-1    (a) Except as otherwise provided in NRS 616C.065, notice or

3-2  knowledge of the injury to or by the employer is notice or knowledge to or

3-3  by the insurer;

3-4    (b) Jurisdiction over the employer is jurisdiction over the insurer; and

3-5    (c) [The] Except as otherwise provided in section 4 of this act, the

3-6  insurer is bound by and subject to any judgments, findings of fact,

3-7  conclusions of law, awards, decrees, orders or decisions rendered against

3-8  the employer in the same manner and to the same extent as the employer.

3-9    Sec. 3.  NRS 616C.215 is hereby amended to read as follows:

3-10    616C.215  1.  [If] Except as otherwise provided in section 4 of this

3-11  act, if an injured employee or, in the event of his death, his dependents,

3-12  bring an action in tort against his employer to recover payment for an

3-13  injury which is compensable pursuant to the provisions of chapters 616A to

3-14  616D, inclusive, or chapter 617 of NRS and, notwithstanding the

3-15  provisions of NRS 616A.020, receive payment from the employer for that

3-16  injury:

3-17    (a) The amount of compensation the injured employee or his dependents

3-18  are entitled to receive pursuant to the provisions of chapters 616A to 616D,

3-19  inclusive, or chapter 617 of NRS, including any future compensation, must

3-20  be reduced by the amount paid by the employer.

3-21    (b) The insurer, or in the case of claims involving the uninsured

3-22  employer’s claim fund or a subsequent injury fund the administrator, has a

3-23  lien upon the total amount paid by the employer if the injured employee or

3-24  his dependents receive compensation pursuant to the provisions of chapters

3-25  616A to 616D, inclusive, or chapter 617 of NRS.

3-26  This subsection is applicable whether the money paid to the employee or

3-27  his dependents by the employer is classified as a gift, a settlement or

3-28  otherwise. The provisions of this subsection do not grant to an injured

3-29  employee any right of action in tort to recover damages from his employer

3-30  for his injury.

3-31    2.  When an employee receives an injury for which compensation is

3-32  payable pursuant to the provisions of chapters 616A to 616D, inclusive, or

3-33  chapter 617 of NRS and which was caused under circumstances creating a

3-34  legal liability in some person, other than the employer or a person in the

3-35  same employ, to pay damages in respect thereof:

3-36    (a) The injured employee, or in case of death his dependents, may take

3-37  proceedings against that person to recover damages, but the amount of the

3-38  compensation the injured employee or his dependents are entitled to

3-39  receive pursuant to the provisions of chapters 616A to 616D, inclusive, or

3-40  chapter 617 of NRS, including any future compensation, must be reduced

3-41  by the amount of the damages recovered, notwithstanding any act or

3-42  omission of the employer or a person in the same employ which was a

3-43  direct or proximate cause of the employee’s injury.

3-44    (b) If the injured employee, or in case of death his dependents, receive

3-45  compensation pursuant to the provisions of chapters 616A to 616D,

3-46  inclusive, or chapter 617 of NRS, the insurer, or in case of claims involving

3-47  the uninsured employers’ claim fund or a subsequent injury fund the

3-48  administrator, has a right of action against the person so liable to pay

4-1  damages and is subrogated to the rights of the injured employee or of his

4-2  dependents to recover therefor.

4-3    3.  When an injured employee incurs an injury for which compensation

4-4  is payable pursuant to the provisions of chapters 616A to 616D, inclusive,

4-5  or chapter 617 of NRS and which was caused under circumstances entitling

4-6  him, or in the case of death his dependents, to receive proceeds under his

4-7  employer’s policy of uninsured or underinsured vehicle coverage:

4-8    (a) The injured employee, or in the case of death his dependents, may

4-9  take proceedings to recover those proceeds, but the amount of

4-10  compensation the injured employee or his dependents are entitled to

4-11  receive pursuant to the provisions of chapters 616A to 616D, inclusive, or

4-12  chapter 617 of NRS, including any future compensation, must be reduced

4-13  by the amount of proceeds received.

4-14    (b) If an injured employee, or in the case of death his dependents,

4-15  receive compensation pursuant to the provisions of chapters 616A to 616D,

4-16  inclusive, or chapter 617 of NRS, the insurer, or in the case of claims

4-17  involving the uninsured employers’ claim fund or a subsequent injury fund

4-18  the administrator, is subrogated to the rights of the injured employee or his

4-19  dependents to recover proceeds under the employer’s policy of uninsured

4-20  or underinsured vehicle coverage. The insurer and the administrator are not

4-21  subrogated to the rights of an injured employee or his dependents under a

4-22  policy of uninsured or underinsured vehicle coverage purchased by the

4-23  employee.

4-24    4.  In any action or proceedings taken by the insurer or the

4-25  administrator pursuant to this section, evidence of the amount of

4-26  compensation, accident benefits and other expenditures which the insurer,

4-27  the uninsured employers’ claim fund or a subsequent injury fund have paid

4-28  or become obligated to pay by reason of the injury or death of the

4-29  employee is admissible. If in such action or proceedings the insurer or the

4-30  administrator recovers more than those amounts, the excess must be paid to

4-31  the injured employee or his dependents.

4-32    5.  In any case where the insurer or the administrator is subrogated to

4-33  the rights of the injured employee or of his dependents as provided in

4-34  subsection 2 or 3, the insurer or the administrator has a lien upon the total

4-35  proceeds of any recovery from some person other than the employer,

4-36  whether the proceeds of such recovery are by way of judgment, settlement

4-37  or otherwise. The injured employee, or in the case of his death his

4-38  dependents, are not entitled to double recovery for the same injury,

4-39  notwithstanding any act or omission of the employer or a person in the

4-40  same employ which was a direct or proximate cause of the employee’s

4-41  injury.

4-42    6.  The lien provided for pursuant to subsection 1 or 5 includes the total

4-43  compensation expenditure incurred by the insurer, the uninsured

4-44  employers’ claim fund or a subsequent injury fund for the injured

4-45  employee and his dependents.

4-46    7.  An injured employee, or in the case of death his dependents, or the

4-47  attorney or representative of the injured employee or his dependents, shall

4-48  notify the insurer, or in the case of claims involving the uninsured

5-1  employers’ claim fund or a subsequent injury fund the administrator, in

5-2  writing before initiating a proceeding or action pursuant to this section.

5-3    8.  Within 15 days after the date of recovery by way of actual receipt of

5-4  the proceeds of the judgment, settlement or otherwise:

5-5    (a) The injured employee or his dependents, or the attorney or

5-6  representative of the injured employee or his dependents; and

5-7    (b) The third-party insurer,

5-8  shall notify the insurer, or in the case of claims involving the uninsured

5-9  employers’ claim fund or a subsequent injury fund the administrator, of the

5-10  recovery and pay to the insurer or the administrator, respectively, the

5-11  amount due pursuant to this section together with an itemized statement

5-12  showing the distribution of the total recovery. The attorney or

5-13  representative of the injured employee or his dependents and the third-

5-14  party insurer are jointly and severally liable for any amount to which an

5-15  insurer is entitled pursuant to this section if the attorney, representative or

5-16  third-party insurer has knowledge of the lien provided for in this section.

5-17    9.  An insurer shall not sell its lien to a third-party insurer unless the

5-18  injured employee or his dependents, or the attorney or representative of the

5-19  injured employee or his dependents, refuses to provide to the insurer

5-20  information concerning the action against the third party.

5-21    10.  In any trial of an action by the injured employee, or in the case of

5-22  his death by his dependents, against a person other than the employer or a

5-23  person in the same employ, the jury must receive proof of the amount of all

5-24  payments made or to be made by the insurer or the administrator. The court

5-25  shall instruct the jury substantially as follows:

5-26    Payment of workmen’s compensation benefits by the insurer, or in the

5-27  case of claims involving the uninsured employers’ claim fund or a

5-28  subsequent injury fund the administrator, is based upon the fact that a

5-29  compensable industrial accident occurred, and does not depend upon blame

5-30  or fault. If the plaintiff does not obtain a judgment in his favor in this case,

5-31  he is not required to repay his employer, the insurer or the administrator

5-32  any amount paid to him or paid on his behalf by his employer, the insurer

5-33  or the administrator.

5-34    If you decide that the plaintiff is entitled to judgment against the

5-35  defendant, you shall find his damages in accordance with the court’s

5-36  instructions on damages and return your verdict in the plaintiff’s favor in

5-37  the amount so found without deducting the amount of any compensation

5-38  benefits paid to or for the plaintiff. The law provides a means by which any

5-39  compensation benefits will be repaid from your award.

5-40    11.  To calculate an employer’s premium, the employer’s account with

5-41  the private carrier must be credited with an amount equal to that recovered

5-42  by the private carrier from a third party pursuant to this section, less the

5-43  private carrier’s share of the expenses of litigation incurred in obtaining the

5-44  recovery, except that the total credit must not exceed the amount of

5-45  compensation actually paid or reserved by the private carrier on the injured

5-46  employee’s claim.

5-47    12.  As used in this section, “third-party insurer” means an insurer that

5-48  issued to a third party who is liable for damages pursuant to subsection 2, a

5-49  policy of liability insurance the proceeds of which are recoverable pursuant

6-1  to this section. The term includes an insurer that issued to an employer a

6-2  policy of uninsured or underinsured vehicle coverage.

6-3    Sec. 4.  Chapter 616D of NRS is hereby amended by adding thereto a

6-4  new section to read as follows:

6-5    1.  An employer shall not:

6-6    (a) Fail or refuse to hire a prospective employee; or

6-7    (b) Discharge or otherwise discriminate against an employee when

6-8  determining his terms and conditions of employment, including, without

6-9  limitation, his compensation, his eligibility for promotion, his eligibility

6-10  for a transfer desired by the employee, the necessity for a transfer

6-11  unwanted by the employee, or his eligibility for reemployment after a

6-12  layoff,

6-13  because he has filed a claim for compensation pursuant to the provisions

6-14  of chapters 616A to 616D, inclusive, or chapter 617 of NRS.

6-15    2.  Notwithstanding the provisions of NRS 616C.295 to 616C.390,

6-16  inclusive, a prospective employee who is denied employment or an

6-17  employee who is discharged or otherwise discriminated against in

6-18  violation of subsection 1 may bring a civil action against the employer

6-19  who violates the provisions of subsection 1 to obtain:

6-20    (a) Any wages and benefits lost as a result of the violation;

6-21    (b) An order of reinstatement without loss of position, seniority and

6-22  benefits;

6-23    (c) An order directing the employer to offer employment to the

6-24  prospective employee;

6-25    (d) In addition to the amount awarded pursuant to paragraph (a),

6-26  damages in an amount not to exceed the amount of lost wages and

6-27  benefits; and

6-28    (e) Such punitive damages as the facts may warrant.

6-29    3.  The court shall award reasonable costs, including court costs and

6-30  attorney’s fees, to the prevailing party in an action brought pursuant to

6-31  this section.

6-32    4.  The remedy provided for in this section is the exclusive remedy for

6-33  an action brought pursuant to this section.

6-34    Sec. 5.  NRS 616D.030 is hereby amended to read as follows:

6-35    616D.030  1.  [No] Except as otherwise provided in section 4 of this

6-36  act as against a self-insured employer, no cause of action may be brought

6-37  or maintained against an insurer or a third-party administrator who violates

6-38  any provision of this chapter or chapter 616A, 616B, 616C or 617 of NRS.

6-39    2.  The administrative fines provided for in NRS 616B.318 and

6-40  616D.120 are the exclusive remedies for any violation of this chapter or

6-41  chapter 616A, 616B, 616C or 617 of NRS committed by an insurer or a

6-42  third-party administrator.

6-43    Sec. 6.  NRS 617.017 is hereby amended to read as follows:

6-44    617.017  1.  The rights and remedies provided in this chapter on

6-45  account of an occupational disease sustained by an employee, arising out of

6-46  and in the course of the employment, are exclusive, except as otherwise

6-47  provided in this chapter, of all other rights and remedies of the employee,

6-48  his personal or legal representative, dependents or next of kin, at common

6-49  law or otherwise, on account of the disease.

7-1    2.  The terms, conditions and provisions of this chapter for the payment

7-2  of compensation and the amount thereof for such diseases sustained or

7-3  death resulting from such diseases are conclusive, compulsory and

7-4  obligatory upon both employers and employees coming within the

7-5  provisions of this chapter.

7-6    3.  The exclusive remedy provided by this section to a principal

7-7  contractor extends, with respect to any occupational disease sustained by

7-8  an employee of any contractor in the performance of the contract, to every

7-9  architect or engineer who performs services for the contractor or any such

7-10  beneficially interested persons.

7-11    4.  [If] Except as otherwise provided in section 4 of this act, if an

7-12  employee receives any compensation or medical benefits under this

7-13  chapter, the acceptance of the compensation or benefits is in lieu of any

7-14  other compensation, award or recovery against his employer under the laws

7-15  of any other state or jurisdiction and the employee is barred from

7-16  commencing any action or proceeding for the enforcement or collection of

7-17  any benefits or award under the laws of any other state or jurisdiction.

 

7-18  H