North Dakota: Employee Misclassification Can Result in “Dual” Liabilities for Employer

Answering seven certified questions from a magistrate judge for the U.S. District Court for the District of North Dakota, that state’s Supreme Court concluded that to the extent that a worker could show that her purported employer intentionally and not inadvertently misrepresented the amount of payroll upon which a workers’ compensation premium was owed to Workforce Safety and Insurance (“WSI”), or intentionally and not inadvertently failed to secure coverage for employees, she could both file a claim with the WSI for workers compensation benefits and a civil action against the “employer” for damages under the dual remedies language of N.D. Cent. Code § 65–09–02. That an employer was allowed/required “to correct” its payroll statements at the end of the relevant coverage period to reflect wages paid to employees that it had erroneously characterized as independent contractors did not limit the right of the worker to seek dual remedies. The Court stressed that while the North Dakota Workforce Safety and Insurance Act generally provides the exclusive remedy for an employee who suffers a compensable injury, the employer must comply with the Act’s requirements for the exclusive remedy provisions to apply.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is the co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance.

See Vail v. S/L Servs., Inc., 2017 ND 202, 2017 N.D. LEXIS 204 (Aug. 11, 2017)

See generally Larson’s Workers’ Compensation Law, § 102.02.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law