Current through Register Vol. XLI, No. 50, December 13, 2024
Section 85-10-5 - Avoiding Primary Contractor Liability5.1. In order to avoid liability under subdivision 4.1.a, the primary contractor must obtain a valid, current certificate of good standing for the subcontractor. The certificate of good standing can be obtained either from the commission or from the subcontractor. If the certificate of good standing was issued for some earlier quarter than the calendar quarter immediately preceding the current quarter, then the certificate cannot be relied upon. The certificate of good standing is valid only if it is issued for the immediately preceding quarter; provided, however, since current premium tax payments are only due within thirty (30) days after a quarter ends, if a certificate of good standing is issued during the first month of any quarter, then it will be considered valid if issued, in whole or in part, for the next preceding quarter. In addition, if the proffered certificate of good standing is fraudulent on its face, then the primary contractor can become liable under subdivision 4.1.a.5.2. In order to avoid liability under subdivision 4.1.b, the primary contractor must first give notice to the commission that the primary contractor wishes to be notified by the commission if the subcontractor defaults. The primary contractor must provide the commission with the subcontractor's and the primary contractor's correct name, address, and federal employers' identification number (FEIN) or its equivalent as well as the policy numbers that are assigned by the commission to the primary contractor and to the subcontractor. The primary contractor is encouraged to use the attached form for this purpose. While other forms of notice, including computer print-outs, will be accepted, such notices must contain, at a minimum, the information and signature requested in the form. The primary contractor may use additional sheets attached to the form to indicate other subcontractors who are working at the same job site. If the primary contractor's notice is accurate and complete, then, before liability can be imposed by the commission under the provisions of W. Va. Code § 23-2-1d, the commission must notify the primary contractor of the subcontractor's default in order to provide an opportunity for the primary contractor to take corrective action. The liability then begins as specified in subdivision 5.3.b. Notice of default by the commission to the primary contractor is complete upon placing the notice in the first class United States mail, postage prepaid, and addressed to the primary contractor at the address furnished to the commission by the primary contractor.5.3. Determination of the beginning date of the primary contractor's liability under subdivision 4.1.b shall be accomplished as follows. 5.3.a. Before any employer attains default status, these actions must either occur or fail to occur as indicated. In the usual course for a usual employer account, payment is due by the last day of the month following the quarter for which payment is being made. For instance, for the first fiscal calendar quarter (July through September), the payment is due on or before October 31st. If payment is not made by that date, the commission is obligated to issue a delinquency notice to the employer informing it, among other things, that it is now delinquent and that payment must be made on or before the last day of the third month following the quarter for which payment is due. In the above example, payment would be due on or before December 31st. Failure to make payment by that date places the employer in default if the delinquency notice by the commission was timely made. The delinquency notice must be issued within sixty (60) days of the end of the quarter for which payment is due. In the above example, the delinquency notice must be issued on or before November 30th. These requirements are contained in W. Va. Code § 23-2-5(b).5.3.b. For purposes of primary contractor liability, in the example set forth in subdivision 5.3.a, the notice of default by the commission to the primary contractor cannot be issued until sometime in January. This is the beginning of the second quarter after the quarter for which payment is due. The subcontractor does not become default until December 31st and, thus, no notice of default could be issued before that date. According to W. Va. Code § 23-2-1d(b)(2), unless the primary contractor takes corrective action, the primary contractor's liability would then begin with the first day of the third quarter following the end of the quarter for which payment is due; that is, for the quarter beginning on April 1st. The primary contractor's liability for its contractor's payments begins with payments due in that third quarter. Payments that were due for the July through September quarter, payments that were due for the October through December quarter, and payments that were due for the January through March quarter are not the liability of the primary contractor under subdivision 4.1.b.5.3.c. It sometimes occurs, for a variety of reasons, that the delinquency notice to the employer that is described in subdivision 5.3.a is not timely made within sixty (60) days. Should that happen regarding a subcontractor affected by W. Va. Code § 23-4-1d, then the time period described in subdivision 5.3.b may be affected. W. Va. Code § 23-2-5(b), is understood to require at least a thirty (30) day notice to the employer before it shall be in default status. If in the example set forth in subdivisions 5.3.a and 5.3.b, the delinquency notice was not issued until December 14th (i.e., the seventy-fifth day), then the payment in order to avoid default would not be due until January 13th (thirty days from the issuance of the late delinquency notice). Default would begin on January 14th. Even later issuance of the delinquency notice would move the default date back accordingly. In the event a notice of default is issued less than thirty (30) days before the end of the quarter, liability will not be imposed upon the primary contractor until the first day after the end of the next quarter. Accordingly, in the example set forth in subdivisions 5.3.a and 5.3.b, if the notice is issued between March 2nd and March 31st, the primary contractor's liability would not begin until July 1st.5.3.d. If an employer is required to file its payroll report and pay its premium taxes on a basis other than quarterly, then the time periods for curing delinquencies and the primary contractor's notification of the subcontractor's default shall be accordingly adjusted.5.4. The corrective action that a primary contractor can take to avoid subdivision 4.1.b liability is either to arrange payment of the amounts due to the commission prior to the start of the primary contractor's liability or to terminate the subcontract prior to that date. Payments may be made by the subcontractor, the primary contractor, or other third party. A reinstatement agreement covering all of a subcontractor's periods of delinquency and default may be considered based upon the best interests of the fund. 5.4.a. The commission may enter into a reinstatement agreement with the primary contractor and subcontractor as co-signators. The primary contractor becomes liable for payment to the fund of the premium taxes as if the premium taxes were incurred by the primary contractor.5.5. In the event that the primary contractor elects to terminate its subcontract, W. Va. Code § 23-2-1d, provides that a subcontractor's failure to make required payments is good and sufficient cause to terminate the contract regardless of any contrary provision in the contract.5.6. Exclusively for the purposes of W. Va. Code § 23-2-1d, and of this rule, a certificate of good standing issued by the commission furnishes an irrebuttable presumption that the subcontractor is in good standing with the commission for the period in question. The presumption does not apply to any other section of chapter 23 of the W. Va. Code. Even if it is later determined that the certificate was issued in error, for any reason, the certificate prevents the imposition of the subdivision 4.1.a liability. For example, if clerical error resulted in the commission issuing a certificate of good standing for a subcontractor whose record with the commission clearly shows it to be in default, the certificate still operates to protect the primary contractor from liability. The erroneously issued certificate does not affect the subcontractor's own liability to the commission. Similarly, if the commission's records indicated that a subcontractor was in good standing and a certificate is then issued, then a later determination, which shows that the subcontractor was not in fact in good standing, does not invalidate the certificate with regard to the primary contractor. This is the case even if the subcontractor acted fraudulently or criminally to conceal its actual record, unless the primary contractor acted in concert to aid the fraud.5.7. Under this rule no liability will arise if all of the subcontractor's employees are appropriately and lawfully covered by another state's or jurisdiction's workers' compensation laws. Hence, if an Ohio employer provides workers' compensation coverage through the Ohio state fund to its employees who may be sent into West Virginia on a temporary or transient basis to work on a given contract, then neither this rule nor W. Va. Code § 23-2-1d, are applicable. If any one of those employees is to be covered or must be covered by West Virginia's workers' compensation program, then the gross wages for that employee must be reported and premium taxes paid. In that case, all of the provisions of this rule would be applicable to such a subcontractor to the extent of the reportable gross wages.