Assembly Bill No. 198–Committee on
Government Affairs

 

(On Behalf of the Department of Transportation)

 

February 26, 2003

____________

 

Referred to Committee on Government Affairs

 

SUMMARY—Makes changes to Public Employees’ Retirement System concerning certain retroactive payments and agency review of certain decisions. (BDR 23‑547)

 

FISCAL NOTE:  Effect on Local Government: No.

                           Effect on the State: No.

 

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

 

AN ACT relating to the Public Employees’ Retirement System; creating a rebuttable presumption that a person is an independent contractor and not an employee of a public agency under certain circumstances; authorizing a public employer that receives notification that a current employee was not properly enrolled in the System to appeal that determination to a hearing officer of the Hearings Division of the Department of Administration; providing that, with respect to a final determination that a current employee was not properly enrolled in the System, the period during which the employee was not properly enrolled as computed by the System for the purpose of calculating benefits must not exceed 3 years under certain circumstances; changing the periods within which an employee and employer must pay contributions and interest after a final determination that the employee was not properly enrolled in the System; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

2-1  Section 1. Chapter 286 of NRS is hereby amended by adding

2-2  thereto the provisions set forth as sections 2, 3 and 4 of this act.

2-3  Sec. 2.  1.  If a public agency contracts for the services of a

2-4  person pursuant to a written contract between that person and the

2-5  public agency, there is a rebuttable presumption that the person is

2-6  an independent contractor and not an employee of the public

2-7  agency.

2-8  2.  To rebut the presumption described in subsection 1, a

2-9  person described in that subsection may, without limitation,

2-10  adduce evidence showing that:

2-11      (a) The written contract was invalid; and

2-12      (b) The public agency wrongfully, purposely and willfully

2-13  treated him as an independent contractor.

2-14      Sec. 3.  1.  A public employer that receives notification from

2-15  the System that a current employee was not properly enrolled in

2-16  the System by the public employer pursuant to subsection 6 of

2-17  NRS 286.460 may file a notice of appeal with the System and with

2-18  the Hearings Division of the Department of Administration within

2-19  60 days after the public employer receives the notification.

2-20      2.  Within a reasonable time after receipt of the notice of

2-21  appeal, a hearing officer of the Hearings Division shall hold a

2-22  contested hearing on the appeal in substantial compliance with the

2-23  provisions of NRS 233B.121 to 233B.1235, inclusive, 233B.125

2-24  and 233B.126. The employee who is the subject of the notification

2-25  given pursuant to subsection 6 of NRS 286.460 must be given

2-26  notice of the hearing in the same manner as the public employer

2-27  that filed the notice of appeal. The employee may participate in the

2-28  hearing.

2-29      3.  With respect to a contested hearing held pursuant to

2-30  subsection 2:

2-31      (a) The hearing officer may, upon application of any party to

2-32  the hearing, issue subpoenas requiring the attendance and

2-33  testimony of witnesses at the proceeding.

2-34      (b) The hearing officer may, upon the motion of a party, direct

2-35  that an opposing party participate in a discovery conference at

2-36  which both parties and their counsel may put questions to the

2-37  other party and receive answers, or request and receive copies of

2-38  relevant documents or examine relevant documents and records

2-39  and any other physical evidence which the opposing party intends

2-40  to use at the hearing.

2-41      (c) The hearing officer, or any agent or agency designated by

2-42  the Hearing Division for such purposes, may administer oaths and

2-43  affirmations and examine witnesses.

2-44      4.  The hearing officer shall issue a decision within 30 days

2-45  after the hearing and mail a copy of the decision to the public

3-1  employer and to the employee. The decision of the hearing officer

3-2  is a final decision for purposes of judicial review.

3-3  Sec. 4.  Except as otherwise required as a result of NRS

3-4  286.537, with respect to a final determination that a current

3-5  employee was not properly enrolled in the System, if the applicable

3-6  public employer contracted for the employee’s services pursuant to

3-7  a written contract and the employee did not successfully rebut the

3-8  presumption described in section 2 of this act, the period during

3-9  which the employee was not properly enrolled as computed by the

3-10  System for the purpose of calculating benefits must not exceed

3-11  3 years.

3-12      Sec. 5.  NRS 286.460 is hereby amended to read as follows:

3-13      286.460  1.  Each participating public employer which pays

3-14  compensation to its officers or employees in whole or in part from

3-15  money received from sources other than money appropriated from

3-16  the State General Fund, shall pay public employer contributions, or

3-17  the proper portion thereof, to the System from the money of the

3-18  department, board, commission or agency.

3-19      2.  Public employer contributions for compensation paid from

3-20  the State General Fund must be paid directly by each department,

3-21  board, commission or other agency concerned, and allowance

3-22  therefor must be made in the appropriation made for each

3-23  department, board, commission or other state agency.

3-24      3.  All participating public employers that are required to make

3-25  payments pursuant to this section shall file payroll reports not later

3-26  than 15 days after the end of the reporting period, together with the

3-27  remittance of the amount due to the System. The 15-day limit is

3-28  extended 1 working day for each legal holiday that falls within the

3-29  15-day period and is officially recognized by the public employer.

3-30      4.  Payroll reports must contain accurate payroll information

3-31  and be filed in a form prescribed by the Board. If the payroll reports

3-32  are not filed or the amounts due are not remitted within the time

3-33  provided, a penalty on the unpaid balance due must be assessed at a

3-34  rate of 4 percent more than the prime rate of interest as published in

3-35  the Wall Street Journal , [(]Western Edition , [)] for the first date

3-36  the payment or report becomes delinquent.

3-37      5.  A notice of the penalty assessed must be mailed by certified

3-38  mail to the chief administrator of the delinquent public employer.

3-39  The public employer shall pay the assessment within 90 days after

3-40  receipt of the notice or an additional penalty of 1 percent of the

3-41  assessment per month must be imposed until paid. Refusal or failure

3-42  by the public employer to pay the assessment within 12 months after

3-43  receipt is a misdemeanor on the part of the chief administrator of the

3-44  delinquent public employer. The [Retirement] Board may accept, no

3-45  later than 30 days after the notice is received, an appeal from a

4-1  public employer for waiver or reduction of a penalty assessed on

4-2  account of extenuating circumstances and make any adjustment it

4-3  deems necessary.

4-4  6.  [Except as otherwise required as a result of NRS 286.537,

4-5  upon notification] If the System determines that a current employee

4-6  was not properly enrolled in the System by the public employer, the

4-7  System shall notify the public employer within 15 days after

4-8  making the determination. Except as otherwise required as a

4-9  result of NRS 286.537, if a final determination is made that a

4-10  current employee was not properly enrolled in the System by the

4-11  public employer, the employee shall pay , within [90 days] 1 year

4-12  after the final determination that the employee was not properly

4-13  enrolled in the System, all the employee [and employer]

4-14  contributions and [the] interest that [is] are due as computed by the

4-15  System from the first day the employee was eligible for

4-16  membership. [The] Within 90 days after the employee pays all the

4-17  employee contributions and interest that are due, the public

4-18  employer [is entitled to recover from the employee the employee]

4-19  shall pay all the employer contributions and interest [thereon.] that

4-20  are due as computed by the System from the first day the employee

4-21  was eligible for membership. The employee is not eligible to

4-22  receive benefits until all contributions and interest due from the

4-23  employee and the public employer have been paid.

4-24      7.  As used in this section, “reporting period” means the

4-25  calendar month for which members’ compensation and service

4-26  credits are reported and certified by participating public employers.

4-27  Compensation paid during each month must be reported separately,

4-28  and retroactive salary increases must be identified separately for

4-29  each month to which they apply.

 

4-30  H