GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 2015

H 1

HOUSE BILL 854

Short Title: WC/Amend "Employment" and "Employer" Defs.		(Public)
Sponsors:	Representative Wray (Primary Sponsor). For a complete list of Sponsors, refer to the North Carolina General Assembly Web Site.
Referred to:	Judiciary IV.

April 15, 2015

A BILL TO BE ENTITLED

AN ACT amending the definitions of the terms "employment" and "employer" under the north carolina workers' compensation act.

The General Assembly of North Carolina enacts:

SECTION 1. G.S. 97‑2 reads as rewritten:

"§ 97‑2. Definitions.

When used in this Article, unless the context otherwise requires:

(1) Employment. – The term "employment" includes employment by the State and all political subdivisions thereof, and all public and quasi‑public corporations therein and all private employments in which ~~three~~ one or more employees are regularly employed in the same business or ~~establishment or in which one or more employees are employed in activities which involve the use or presence of radiation,~~ establishment, except agriculture and domestic services, unless 10 or more full‑time nonseasonal agricultural workers are regularly employed by the employer and an individual sawmill and logging operator with less than 10 employees, who saws and logs less than 60 days in any six consecutive months and whose principal business is unrelated to sawmilling or logging.

(2) Employee. – The term "employee" means every person engaged in an employment under any appointment or contract of hire or apprenticeship, express or implied, oral or written, including aliens, and also minors, whether lawfully or unlawfully employed, but excluding persons whose employment is both casual and not in the course of the trade, business, profession, or occupation of his employer, and as relating to those so employed by the State, the term "employee" shall include all officers and employees of the State, including such as are elected by the people, or by the General Assembly, or appointed by the Governor to serve on a per diem, part‑time or fee basis, either with or without the confirmation of the Senate; as relating to municipal corporations and political subdivisions of the State, the term "employee" shall include all officers and employees thereof, including such as are elected by the people. The term "employee" shall include members of the North Carolina National Guard while on State active duty under orders of the Governor and members of the North Carolina State Defense Militia while on State active duty under orders of the Governor. The term "employee" shall include deputy sheriffs and all persons acting in the capacity of deputy sheriffs, whether appointed by the sheriff or by the governing body of the county and whether serving on a fee basis or on a salary basis, or whether deputy sheriffs serving upon a full‑time basis or a part‑time basis, and including deputy sheriffs appointed to serve in an emergency, but as to those so appointed, only during the continuation of the emergency. The sheriff shall furnish to the board of county commissioners a complete list of all deputy sheriffs named or appointed by him immediately after their appointment and notify the board of commissioners of any changes made therein promptly after such changes are made. Any reference to an employee who has been injured shall, when the employee is dead, include also the employee's legal representative, dependents, and other persons to whom compensation may be payable: Provided, further, that any employee, as herein defined, of a municipality, county, or of the State of North Carolina, while engaged in the discharge of the employee's official duty outside the jurisdictional or territorial limits of the municipality, county, or the State of North Carolina and while acting pursuant to authorization or instruction from any superior officer, shall have the same rights under this Article as if such duty or activity were performed within the territorial boundary limits of their employer.

~~Every executive officer elected or appointed and empowered in accordance with the charter and bylaws of a corporation shall be considered as an employee of such corporation under this Article.~~

Any such executive officer of a corporation may, notwithstanding any other provision of this Article, be exempt from the coverage of the corporation's insurance contract by such corporation's specifically excluding such executive officer in such contract of insurance, and the exclusion to remove such executive officer from the coverage shall continue for the period such contract of insurance is in effect, and during such period such executive officers thus exempted from the coverage of the insurance contract shall not be employees of such corporation under this Article.

The president, vice president, secretary, or treasurer of a corporation is deemed an employee for the purposes of this Article. A partner with respect to a partnership that employs the partner, a member or manager of a limited liability company, and a sole proprietor with respect to such sole proprietorship are employees covered by this Article if one or more employees are regularly employed in the same business or establishment.

A president, vice president, secretary, or treasurer of a corporation who owns a ten percent (10%) or more membership interest in the corporation or a partner or sole proprietor by written agreement with that officer's insurer or group self‑insurance fund may elect, by name or position, not to be covered by the provisions of this Article. The "ten percent (10%) or more" requirement contained in this paragraph does not apply to a noncompensated corporate officer of a not‑for‑profit corporation. The election shall not be limited, but shall apply to all trades, businesses, or occupations conducted by the corporation, partnership, limited liability company, or sole proprietorship. The election shall be binding upon (i) the employing corporation, partnership, limited liability company, or sole proprietorship and (ii) the surviving spouse, relatives, personal representatives, heirs, or dependents of the officer, partner, member, manager, or sole proprietor who made the election. No salary or compensation received by a bona fide corporate officer, partner, member, manager, or sole proprietor who made an election under this subdivision shall be used in computing the premium rate for workers' compensation insurance.

All county agricultural extension service employees who do not receive official federal appointments as employees of the United States Department of Agriculture and who are field faculty members with professional rank as designated in the memorandum of understanding between the North Carolina Agricultural Extension Service, North Carolina State University, A & T State University, and the boards of county commissioners shall be deemed to be employees of the State of North Carolina. All other county agricultural extension service employees paid from State or county funds shall be deemed to be employees of the county board of commissioners in the county in which the employee is employed for purposes of workers' compensation.

The term "employee" shall also include members of the Civil Air Patrol currently certified pursuant to G.S. 143B‑1031(a) when performing duties in the course and scope of a State‑approved mission pursuant to Subpart C of Part 5 of Article 13 of Chapter 143B of the General Statutes.

"Employee" shall not include any person performing voluntary service as a ski patrolman who receives no compensation for such services other than meals or lodging or the use of ski tow or ski lift facilities or any combination thereof.

Any sole proprietor or partner of a business or any member of a limited liability company may elect to be included as an employee under the workers' compensation coverage of such business if he is actively engaged in the operation of the business and if the insurer is notified of his election to be so included. Any such sole proprietor or partner or member of a limited liability company shall, upon such election, be entitled to employee benefits and be subject to employee responsibilities prescribed in this Article.

~~Employee"~~ "Employee" shall include an authorized pickup firefighter of the North Carolina Forest Service of the Department of Agriculture and Consumer Services when that individual is engaged in emergency fire suppression activities for the North Carolina Forest Service. As used in this section, "authorized pickup firefighter" means an individual who has completed required fire suppression training as a wildland firefighter and who is available as needed by the North Carolina Forest Service for emergency fire suppression activities, including immediate dispatch to wildfires and standby for initial attack on fires during periods of high fire danger.

It shall be a rebuttable presumption that the term "employee" shall not include any person performing services in the sale of newspapers or magazines to ultimate consumers under an arrangement whereby the newspapers or magazines are to be sold by that person at a fixed price and the person's compensation is based on the retention of the excess of the fixed price over the amount at which the newspapers or magazines are charged to the person.

…."

SECTION 2. G.S. 97‑31.1 does not apply to this act.

SECTION 3. This act is effective when it becomes law.