 |
 |
|
|
|
|
| search a lawyer |
|
|
| ACTS, STATUTES |
|
|
|
|
|
|
|
|
|
|
|
|
| Home > Statutes > Usa Arizona |
|
USA Statutes : arizona
Title : Labor
Chapter : EMPLOYMENT SERVICES
|
|
23-501 Definitions
In this article, unless the context otherwise requires:
1. "Department" means the department of economic security.
2. "Director" means the director of the department.
3. "Disabled person" or "handicapped person" means any individual who has a
physical or mental disability and a substantial handicap to employment, which is of such
a nature that vocational rehabilitation services may reasonably be expected to render him
fit to engage in a gainful occupation, including a gainful occupation which is more
consistent with his capacities and abilities, or for whom vocational rehabilitation
services are necessary for the purpose of extended evaluation to determine rehabilitation
potential.
4. "Division" means the department of economic security.
5. "Maintenance" means money payments not to exceed the estimated cost of
subsistence during vocational rehabilitation.
6. "Physical restoration" means medical, surgical or therapeutic treatment
necessary to correct or reduce the employment handicap of a disabled person and includes
medical, psychiatric, dental and surgical treatment, nursing service, hospital care not
to exceed ninety days, convalescent home care, drugs, medical and surgical supplies and
prosthetic appliances and other related services as defined in the vocational
rehabilitation act, as amended.
7. "Prosthetic appliance" means an artificial device necessary to support or take
the place of a part of the body, or to increase the acuity of a sense organ.
8. "Vocational rehabilitation" or "vocational rehabilitation service" means a
service determined by the director to be necessary to enable a disabled person to engage
in a remunerative occupation and includes medical and vocational diagnosis, vocational
guidance, counsel and placement, rehabilitation, training, physical restoration,
transportation, occupational licenses, customary occupational tools and equipment,
maintenance and training books and materials, follow up, evaluation and work adjustment
and other related services as defined in the vocational rehabilitation act, as amended.
23-502 Rehabilitation services
The department shall provide vocational rehabilitation service to disabled persons
eligible therefor as provided by this article.
23-503.01 Coordination of vocational rehabilitation services
The department shall coordinate its provision of vocational rehabilitation services
to mentally retarded persons with its provision of mental retardation services to such
persons, including the areas of evaluation of applicants for either type of services and
the development of program and rehabilitation plans for mentally retarded persons.
23-503 Duties and powers
The department shall cooperate in carrying out the purposes of federal statutes
pertaining to vocational rehabilitation. The division may adopt methods of
administration found by the federal government necessary for the proper and efficient
operation of agreements relating to vocational rehabilitation, and shall comply with
conditions deemed necessary to secure the full benefits of such federal statutes. The
division may:
1. Cooperate with other departments, divisions, agencies and institutions in
providing for the vocational rehabilitation of disabled persons and studying the problems
involved therein, and in establishing, developing and providing programs, facilities and
services deemed necessary or desirable.
2. Enter into reciprocal agreements with other states to provide for vocational
rehabilitation of residents of the states concerned.
23-504 Merchandising businesses for the blind
A. The department of economic security shall make surveys of merchandising business
opportunities for and license persons who have no vision or acuity, or have a central
visual acuity of 20/200 or less in the better eye, with the best correction by single
magnification, or who have a field defect in which the peripheral field has been
contracted to such an extent that the widest diameter of visual field subtends an angular
distance no greater than 20 degrees, to operate such businesses on state, county or
municipal property where such businesses may be properly and satisfactorily operated by
blind persons all in accordance with the provisions of the Randolph-Sheppard act, as
amended by Public Law 93-516, title 20, United States Code, sections 107 through
107f. For the purposes of this section "merchandising business" shall include but not be
limited to food service operations, including cafeterias, snack bars and vending machines
for food and beverages and souvenir and gift shops.
B. The head or governing body of each department or agency and of each county or
municipality or other local government entity having control of state, county or other
local government property shall cooperate with the department of economic security in
surveys of property under their control to find suitable locations for the operation of
merchandising businesses by blind persons, and after it has been determined that there is
need for a merchandising business and after the department of economic security has
determined that such a business may be properly and satisfactorily operated by a blind
person grant space to the department of economic security for the operation of a
merchandising business by a licensed blind person and cooperate with the department of
economic security in the installation of such merchandising business.
C. Notwithstanding the provisions of section 41-792.01, the head or governing body
of each department or agency of the state and of each county or city having control of
public property shall not charge any rent or other assessment for the use or occupancy of
the space granted for the operation of merchandising businesses by licensed blind
persons.
D. Any person licensed under this section to operate a merchandising business has
the right of appeal under section 23-507.
E. Preference to the blind is not mandatory for those merchandising businesses
operated by public educational institutions where merchandising facilities are provided
as an integral part of service to students or as a training program to students, nor for
major food services provided by hospitals or residential institutions of the state as a
direct service to patients, inmates, trainees or otherwise institutionalized persons.
23-506 Eligibility for assistance
A. Vocational rehabilitation service shall be provided to a disabled person,
resident in the state, whose vocational rehabilitation in the judgment of the director
after investigation can satisfactorily be achieved, or to any such person who is eligible
for rehabilitation service under the terms of an agreement with the federal government or
with another state. Unless otherwise provided by law, the following vocational
rehabilitation services shall be provided at public cost only to disabled persons
determined to require financial assistance:
1. Physical restoration not including curative treatment for acute or transitory
conditions.
2. Transportation not otherwise provided to determine the eligibility of the
individual and the nature and extent of the rehabilitation services necessary.
3. Occupational licenses.
4. Customary occupational tools and equipment.
5. Maintenance.
6. Training books and materials.
B. The right of a disabled person to maintenance granted under the provisions of
this section may not be transferred or assigned.
23-507 Hearings
A person applying for or receiving vocational rehabilitation service who is
aggrieved by an action of the division may appeal to the director, subject to rules and
regulations of the department.
23-508 Administrative funds
A. The state treasurer shall be the custodian of monies received from the federal
government for the purpose of carrying out any federal law relating to vocational
rehabilitation, and shall disburse them and any state monies available for vocational
rehabilitation purposes in the manner provided by law.
B. The legislature shall annually appropriate to the department from the general
fund such funds as may be necessary to carry out the purposes of this article.
23-521 Employment agent defined
A. "Employment agent" means all persons, firms, corporations or associations which
for a fee, commission or charge that is collected from persons seeking employment either:
1. Furnish to persons seeking employment information enabling or tending to enable
the persons to secure employment, including vocational guidance or employment counseling
services.
2. Furnish to employers seeking laborers or other help of any kind information
enabling or tending to enable the employers to secure help.
3. Keep a register of persons seeking employment or help, whether the agents
conduct their operations at a fixed place of business, on the streets or as transients
and also whether the operations constitute the principal business of the agents or only a
sideline or an incident to another business.
B. "Employment agent" does not mean:
1. An employer who procures help for himself only.
2. An employee of such an employer who procures help for him and does not act in a
similar capacity for any other employer.
3. A person, firm, corporation or association that does not charge or collect a fee
or commission from a person seeking employment or for assisting that person to obtain
employment.
4. A person, firm, corporation or association that satisfies all of the following:
(a) Is engaged in the business of providing electronic media services.
(b) Provides classified listings or performs employment research, or both, for
employers and persons seeking employment.
(c) Does not charge or collect a fee or commission for the successful placement of
a person seeking employment.
C. Nothing in this section shall be construed to include a recognized labor union.
23-522.01 Employment advisory council; members; terms; meetings
A. There shall be an ARIZONA employment advisory council.
B. The council shall be composed of seven members appointed by the industrial
commission. Each member of the council shall be a citizen of the United States,
domiciled in this state for at least two years immediately preceding his appointment and
of good character. Of the appointive members, three shall have, for at least three years
immediately preceding their appointment, occupied executive or managerial positions in
the private employment agency industry in this state and four shall be citizens of this
state occupied in commerce or industry in this state for at least three years.
C. Each member of the council shall hold office until the appointment and
qualification of his successor. The terms of the initial members of the council shall
expire as follows: two members, January 1, 1971, two members, January 1, 1972, three
members, January 1, 1973. Subsequent appointments shall be made for a term of three
years. Vacancies occurring in the membership of the council for any cause shall be
filled by appointment for the balance of the unexpired term. The governor may remove any
member of the council for misconduct, incompetency, neglect of duty, or other good cause.
D. The council shall meet at least once in each calendar quarter of each year. All
meetings of the council shall be open and public and all records of the council shall be
open to inspection, except as otherwise prescribed by law. Four members shall constitute
a quorum for the transaction of business. The council shall elect from its members, each
for a term of one year, a chairman and vice chairman, and may appoint such committees as
it deems necessary to carry out its duties. The director of the commission shall serve
ex officio as the secretary of the council, but shall not be a member of the council.
E. Each member of the council shall serve without compensation, but shall be
entitled to reimbursement for expenses, travel and subsistence in the performance of his
duties.
23-522.02 Council powers and duties
The council shall:
1. Inquire into the needs of the employment agency industry, and make such
recommendations as may be deemed important and necessary for the welfare of the state,
public health, and welfare and progress of the employment agency industry.
2. Confer and advise with the industrial commission and the director in regard to
how the employment agents may best serve the state, the public and the employment agency
industry.
3. Approve any rules and regulations which may be adopted, amended or repealed by
the industrial commission.
4. Collect such necessary information and data as the director may deem necessary
to the proper administration of this article.
5. Consider and make recommendations to the industrial commission and director with
respect to all matters relating to employment agencies in the state, including, but not
limited to applicants for licenses and complaints against agencies.
6. Conduct research, as the council deems necessary, on matters pertaining to the
operation and conduct of employment agencies and related matters in the state.
7. Publish findings and make such recommendations as the council may deem necessary
to the governor, the industrial commission and the director.
23-522 Supervision of employment agents by industrial commission
The industrial commission shall supervise employment agents to the extent necessary
to enforce and administer adequately all laws and lawful orders designed to prevent
fraud, misrepresentation, false statements or other unauthorized acts of an employment
agent.
23-523 Powers and duties of commission
The commission shall:
1. Fix and order reasonable rules promulgated by the advisory council and approved
by the commission for the conduct of the business of employment agents necessary to carry
out the provisions of this article.
2. With the advice of the advisory council, prescribe the form of books, registers
or records to be kept by the employment agent, the reports to be made to the commission
and the refunds to be made to applicants who fail to secure employment.
3. Order other measures reasonably necessary to protect the public, persons seeking
employment or employees seeking help, against fraud, misrepresentation or other
unauthorized acts of an employment agent.
23-524 Investigative powers of commission
A. A commissioner or deputy of the commission may at any reasonable time enter the
place of business of an employment agent for the purpose of examining the records or
registers kept by the employment agent and bring to the attention of the agent any law,
rule or regulation as promulgated by the advisory council, or failure on the part of the
employment agent to comply therewith. An employment agent shall not refuse admittance to
a commissioner or deputy of the commission to the agent's place of business.
B. An employment agent receiving from the commission forms calling for information
required by the commission in carrying out the provisions of this article, with
directions to complete them, shall answer fully and correctly each question therein
propounded, and if unable to answer any question, shall give a good and sufficient reason
for such failure. All such answers shall be verified by two witnesses, and returned to
the commission within the period fixed by the commission.
23-525 Placement of labor by municipal clerks
A. The clerk of every city and town in which there is no public employment office
or employment agency licensed under the provisions of this article may solicit, receive
and record applications of persons seeking employment for any period of time, and of
persons desiring to employ labor. An employer shall pay to the clerk twenty-five cents
for each time the clerk assists in furnishing labor.
B. The clerk of every city and town serving under the terms of this article shall,
on or before the first day of each month, report all placements made by him to the
commission to be compiled as part of the general employment statistics of the state.
23-526 License; examination
A. No person, firm, association or corporation shall act as an employment agent for
profit, or receive any fee, charge, commission or other compensation, directly or
indirectly, for services as an employment agent without first obtaining from the
industrial commission a license therefor, as provided in this article.
B. Prior to the initial issuance of an employment agent license, those persons
determined by the commission to be involved in the actual operation of the employment
agency shall take a written examination prepared by the director with the assistance of
the advisory council. The examination shall be given at least once each month and shall
be designed to demonstrate to the commission that the person has sufficient knowledge of
the applicable laws and regulations, including, but not limited to:
1. Laws pertaining to employment agents.
2. Rules and regulations pertaining to employment agents.
3. Laws pertaining to employment discrimination.
4. Other pertinent labor laws.
23-527 Application for license; cash deposit or surety bond; deposit
A. A person, firm, corporation or association desiring a license as employment
agent shall make application for a license to the industrial commission, and shall
accompany the application with a minimum cash deposit of one thousand dollars or surety
bond in the amount determined by the commission, not to exceed five thousand dollars,
conditioned that the agent will conform in all particulars to the requirements of law
relating to the business of employment agent. The cash deposit or surety bond shall at
all times be maintained at the minimum of one thousand dollars or the amount determined
by the commission not to exceed five thousand dollars.
B. Cash deposits received by the industrial commission pursuant to subsection A of
this section shall be deposited as a separate account in the administrative fund
established by section 23-1081. Monies in the separate account are continuously
appropriated for the purposes provided.
23-528 Annual renewal of license; annual fees
A. Each license shall be valid for one year from the date of issue and may be
renewed annually for a like period of time. The commission shall give the licensee
forty-five days' prior written notice of the expiration of the license.
B. Every employment agency licensed under the provisions of this article shall pay
a fee for an initial license or renewal license as follows:
1. For an agency with fewer than three placement counselors, one hundred dollars.
2. For an agency operating with three to eight placement counselors, two hundred
dollars.
3. For an agency operating with more than eight placement counselors, three hundred
dollars.
C. For the purpose of determining the annual license fee which an employment agency
shall pay, the applicant shall state in its application, the average number of placement
counselors employed by the applicant's employment agency during the preceding licensed
year. In the event that the applicant has not previously conducted an employment agency
under the provisions of this article, he shall state the average number of placement
counselors which he reasonably expects will be employed by the employment agency during
the year for which the license is to be issued. All fees shall be paid to the industrial
commission, and deposited, pursuant to sections 35-146 and 35-147, in the state general
fund. 23-529 Revocation of license; hearing; notice of findings; appeal
A. The industrial commission may take disciplinary action against a licensee
charged with the commission of any of the following acts:
1. Fraud or misrepresentation in the application or qualification examination for a
license.
2. Gross negligence, incompetence, bribery or other misconduct in his profession.
3. Aiding or abetting an unlicensed person to evade the provisions of this article
or knowingly combining or conspiring with an unlicensed person, or allowing one's
registration to be used by an unlicensed person or acting as agent, partner, associate or
otherwise, of an unlicensed person with intent to evade provisions of this article.
B. The industrial commission shall have authority to make investigations, employ
investigators and conduct hearings to determine whether a license issued under this
article should be revoked or suspended upon a complaint made in writing and under oath
when the industrial commission receives an oral or written complaint not made under oath,
investigates such complaint and determines that there is sufficient evidence to warrant a
hearing, the commission may direct the secretary to file a verified complaint charging
the licensee with commission of an offense under this article subject to disciplinary
action. The secretary shall then serve upon the accused, by registered mail, a copy of
the complaint setting forth the charge or charges to be heard and notice of the time and
place of the hearing. The hearing shall be held no sooner than thirty days after the
mailing of the notice.
C. The accused may appear personally or by his attorney at the hearing, present
witnesses and evidence in his defense and cross-examine witnesses.
D. If a majority of the members of the commission determine that the licensee has
committed a violation, the commission shall revoke or suspend the license or, in lieu of
revocation or suspension, levy a fine not to exceed one thousand dollars. The revoked or
suspended license may be reissued upon the affirmative vote of a majority of the members
of the commission. If the license of an agent who is a principal of a firm or executive
officer of a corporation is suspended or revoked for cause attributable to the firm or
corporation, such revocation or suspension may be deemed just cause for revocation or
suspension of the licenses of all or any other principal or officers of the firm or
corporation.
E. Decisions of the industrial commission under this section shall be subject to
judicial review pursuant to title 12, chapter 7, article 6.
23-530 Filing of schedule of fees or charges; regulation
A. Every applicant for a license shall file with the commission, within a time
fixed by the commission, a schedule of the fees or charges made by the employment agent
to applicants for employment and for help for any services rendered to the applicants,
together with all rules or regulations that may in any manner affect the fees charged or
to be charged for any service.
B. No license shall be issued or renewed to an applicant unless such fees and rules
or regulations are reasonable.
C. It is unlawful for an employment agent to charge, demand, collect or receive a
greater compensation for any service performed by him than specified in the schedule
filed with the commission, and no employment agent shall charge a registration fee
without permission from the commission.
D. Nothing in this article shall be construed to regulate employer paid fees.
23-531 Applicant's receipt for services of agent
A. Every licensee conducting an employment agency shall give every applicant for
employment from whom a fee is received, a receipt which shall state the name and address
of the employment agent, the name of the applicant, the date, and the amount of the
fee. There shall be printed on the face of the receipt in prominent type the
following: "This agency is licensed by the industrial commission of the state of
ARIZONA."
B. All receipts shall be made and numbered in original and duplicate. The original
shall be given to the applicant paying the fee and the duplicate shall be kept on file at
the employment agency. The receipts used by the licensed agents shall be approved by the
commission.
23-532 Return of agent's fee to applicant
A. No employment agent, or agent thereof, shall send an applicant out for
employment without having a bona fide order from the prospective employer to do so.
B. If an applicant is sent out and fails to obtain employment as represented the
employment agent shall, upon demand, refund any fee the applicant has paid.
C. If the employment agent refuses or fails to make a prompt refund, upon demand,
as provided in this section, the applicant may apply to the commission for a hearing. If
the commission upon investigation finds that the applicant is entitled to a refund it
shall issue an order to that effect, and shall pay the refund to the applicant from the
cash deposit or bond of the employment agent. Either party to any such controversy may
appeal within five days from the issuance of an order to the superior court of the county
in which the business of the employment agent is located.
23-533 Duty of agent to determine truthfulness of representation made to applicants
Every employment agent shall reasonably assure himself that any representations
whatever, whether spoken, written or advertised in printed form, which he makes with
regard to any employment, work or situation, and which leads or may lead persons to seek
such employment, work or situation, are true and cover all the material facts affecting
the employment in question.
23-534 False statements or representations
A. No person, firm, association, corporation or any employee or agent thereof,
shall knowingly make a false statement to any person furnishing or seeking employment
regarding any employment, work or situation, its nature, location, duration, wages or
salary attached thereto, or the circumstances surrounding the employment, work or
situation.
B. No employment agent shall offer or hold himself out as in a position to secure
or furnish employment without having an order therefor from an employer or misrepresent
any other material matter in connection with any employment, work or situation he offers
or holds himself out in a position to secure.
23-535 Splitting of fees prohibited
No employment agent or employee or agent thereof shall divide or offer to divide, or
share directly or indirectly, a fee, charge or compensation received from an applicant
for employment with an employer, superintendent, manager, foreman or any other person who
hires help or to whom help is furnished by an employment agent. It is unlawful for any
employer, superintendent, manager, foreman or any other person who hires help to receive
any compensation or valuable consideration from an applicant for employment or from an
employment agent for giving employment to the applicant or to an employee furnished by an
employment agent.
23-536 Violations; classification
A person, firm, association or corporation who acts as an employment agent without a
license as provided in this article is guilty of a class 6 felony.
23-551 Definitions
In this article, unless the context otherwise requires:
1. "Day labor" means labor or employment that is under a contract between a day
labor service agency and a third party employer, that is occasional or irregular and that
is for a limited time period.
2. "Day laborer" means an individual who contracts for day labor employment with a
day labor service agency.
3. "Day labor service agency" means an entity that provides day laborers to third
party employers and that charges the third party employers for this service.
4. "Third party employer" means a person that contracts with a day labor service
agency for the employment of day laborers.
23-552 Exemptions
This article does not apply to:
1. Business entities registered as farm labor contractors.
2. Temporary help services engaged in supplying white-collar employees, secretarial
employees, clerical employees or skilled laborers.
3. Labor union hiring halls.
4. Labor bureau or employment offices operated by a business entity for the sole
purpose of employing an individual for its own use.
23-553 Day labor service agency; third party employer; duties A. A day labor service agency shall compensate day laborers for work performed by providing or making available commonly accepted negotiable instruments that are payable in cash, on demand, at a financial institution. B. At the time of payment of wages, a day labor service agency shall provide each day laborer with an itemized statement showing in detail each deduction made from the wages. C. In no event shall any deductions made by a day labor agency, other than those required by federal or state law, bring the day laborer's pay below federal minimum wage for the hours worked. D. A day labor service agency shall not restrict the right of a day laborer to accept a permanent position with a third party employer to whom the day laborer has been referred to for work or restrict the right of a third party employer to offer employment to a day laborer. 23-561 Definitions
In this article, unless the context otherwise requires:
1. "Administrative fee" means the fee that is charged to a client by a professional
employer organization for professional employer services. Administrative fee does not
include any amount of the fee that is applied to wages, salaries, benefits, workers'
compensation, payroll taxes, withholding or other assessments that the professional
employer organization pays to or on behalf of covered employees under a professional
employer agreement.
2. "Client" means a person who contracts with a professional employer organization
under a professional employer agreement. A client does not include a professional
employer organization.
3. "Co-employer" means a professional employer organization or a client.
4. "Co-employment relationship" means all of the following:
(a) A relationship between co-employers if the rights, duties and obligations of an
employer that arise out of an employment relationship are allocated between co-employers
subject to a professional employer agreement and this article, and the relationship is
intended to be an ongoing relationship and not a temporary or project specific
relationship.
(b) A relationship between a professional employer organization and a covered
employee that is subject to a professional employer agreement and this article, that
allows the professional employer organization to enforce those rights and that requires
the professional employer organization to perform those duties and obligations allocated
to the professional employer organization by the professional employer agreement or this
article.
(c) A relationship between a client and a covered employee that is subject to a
professional employer agreement and this article, that allows the client to enforce those
rights and requires the client to perform those employer obligations allocated to the
client by the professional employer agreement or this article or that are not otherwise
allocated by the professional employer agreement or this article.
5. "Covered employee":
(a) Means an individual who has a co-employment relationship with a professional
employer organization and a client, if the individual:
(i) Has executed a written notice of the co-employment relationship with a
professional employer organization.
(ii) Is a party to a co-employment relationship with a professional employer
organization and a client.
(iii) Is subject to a professional employer agreement under this article.
(b) Includes an individual who is an officer, director, shareholder, partner or
manager of a client if the professional employer agreement includes the individual as a
covered employee and the individual acts as a manager or performs services for the
client.
6. "Person" means any individual, partnership, corporation, limited liability
company or other legally recognized entity.
7. "Professional employer agreement" means a written contract between a
professional employer organization and a client that provides for:
(a) The co-employment of covered employees.
(b) The allocation and sharing between the client and the professional employer
organization of employer responsibilities with respect to a covered employee, including
hiring, firing and disciplinary responsibilities.
(c) Any other responsibility required by this article.
8. "Professional employer organization":
(a) Means any person who is engaged in the business of providing professional
employer services whether or not the person uses the term professional employer
organization, staff leasing company, registered staff leasing company, employee leasing
company or any other name.
(b) Does not include:
(i) Any person whose principal business activity is not entering into professional
employer agreements and who does not hold itself out as a professional employer
organization.
(ii) A person who shares employees with a commonly owned company as defined by
sections 414(b) and 414(c) of the internal revenue code.
(iii) Arrangements by a person who assumes responsibility for the product that is
produced or service that is performed by the person and who retains and exercises the
primary discretion and control over the work performed by the person whose services are
supplied under the arrangement.
(iv) A person who hires temporary help for the purpose of supporting or
supplementing a client's employees.
9. "Professional employer services" means the service of entering into a
co-employment relationship under this article in which all or a majority of the employees
who provide services to a client or to a division or work unit of the client are covered
employees.
10. "Registrant" means a professional employer organization that is registered under
this article.
11. "Temporary help services" means services by a person consisting of:
(a) Recruiting and hiring the person's own employees.
(b) Finding other organizations that need the services of employees who are
recruited and hired by the person.
(c) Assigning employees to perform work for other organizations to support that
organization's workforces, including covering employee absences, skill shortages or
seasonal workloads or performing special assignments or projects.
(d) Customarily attempting to reassign the employees to other organizations when
the employees complete each assignment.
23-562 Professional employer agreements; rights; notice A. A professional employer agreement shall: 1. Govern the co-employment relationship between the client and the professional employer organization and between each co-employer and each covered employee. 2. Reserve to the client the right to direct and control covered employees to the extent necessary to conduct the client's business and to discharge any fiduciary responsibility or to comply with any licensing requirement that applies to the client or a covered employee. 3. Require the professional employer organization to pay the wages of covered employees, to withhold, collect, report and remit payroll-related and unemployment taxes and to make payment for employee benefits for covered employees. For the purposes of this paragraph, wages do not include obligations between a client and a covered employee that exceed a covered employee's salary, bonuses, commissions, severance pay, deferred compensation, profit sharing or vacation, sick or other paid time off pay unless the professional employer organization expressly agrees to assume liability for the additional obligations in the professional employer agreement. 4. Permit both the professional employer organization and client to have a right to hire, terminate and discipline covered employees. 5. Specify whether the client or the professional employer organization will purchase and maintain the workers' compensation policy for covered employees from a carrier that is licensed to conduct business in this state. If the professional employer organization purchases the workers' compensation policy, the professional employer organization shall maintain and, if requested by the client on termination of the agreement, be able to provide to the client records regarding the loss experience related to the workers' compensation insurance that is provided to the covered employees. B. A professional employer agreement shall not: 1. Affect, modify or amend any collective bargaining agreement or any rights or obligations of any client, professional employer organization or covered employee that are required under the federal national labor relations act, the federal railway labor act or this title. 2. Affect, modify or amend any state, local or federal licensing, registration or certification that is required by any client or covered employee. 3. With respect to a bid, contract, purchase order or agreement entered into with this state or a political subdivision of this state, affect the status of a client's company as a small, minority-owned, disadvantaged or woman-owned business enterprise or as a historically underutilized business because the client entered into a professional employment agreement with a professional employer organization. 4. Diminish, abolish or remove any rights of covered employees to any clients or obligations of clients to any covered employees that existed before the effective date of a professional employer agreement. 5. Terminate an employment relationship that existed before the effective date of a professional employer agreement. 6. Establish new or additional enforceable rights of a covered employee against a professional employer organization that are not specifically allocated to the professional employer organization under the professional employer agreement or this article. C. Unless specifically provided in a professional employer agreement or this article: 1. The client shall perform all responsibilities that otherwise apply to an employer in an employment relationship. 2. The professional employer organization shall perform only the responsibilities that are specifically required under this article or a professional employer agreement. The rights, duties and obligations of a professional employer organization as a co-employer with respect to any covered employee are limited to the responsibilities that are contained in the professional employer agreement and that arise during the term of co-employment by the professional employer organization for the covered employees. D. Every professional employer organization that enters into a professional employer agreement shall provide notice to each covered employee who is affected by the agreement. The notice may be included in the form of the employment documents that a covered employee completes for the professional employer organization. 23-563 Registration requirements; confidentiality
A. Every professional employer organization that provides professional employer
services in this state shall register with the secretary of state. The secretary of state
shall maintain a list of all registrants under this section. The secretary of state may
prescribe forms necessary for the administration of this section.
B. Every professional employer organization that registers under this section shall
provide the secretary of state the following:
1. The name or names under which the professional employer organization conducts
business.
2. The address of the principal place of business of the professional employer
organization and the address of each office that the professional employer organization
maintains in this state.
3. The professional employer organization's taxpayer or employer identification
number.
4. A list by state of each name under which the professional employer organization
has operated in the preceding five years, including any alternative names, names of
predecessors and, if known, names of successor business entities.
5. A statement of ownership that includes the names and business experience of
every person who owns or controls twenty-five per cent or more of the equity interest of
the professional employer organization.
6. A statement of management that includes the names and business experience of any
person who serves as president or chief executive officer of the professional employer
organization or any other person who has the authority to act as a senior executive
officer of the professional employer organization.
7. A financial statement that sets forth the financial conditions of the
professional employer organization, that is prepared with generally accepted accounting
principles and that is compiled, reviewed or audited by an independent certified public
accountant. The financial statement shall be dated no earlier than one hundred eighty
days before the date on which the financial statement is filed with the secretary of
state. A professional employer organization may submit compiled, reviewed or audited
financial statements.
8. A statement by a certified professional accountant that the applicant is current
with obligations that relate to payroll, payroll-related taxes, workers' compensation
insurance premiums for covered employees and employee benefits for the previous four
calendar quarters.
9. A certification that is signed by the chief executive officer of the
professional employer organization and that states the submitted financial statement is a
true and accurate representation of the financial status of the professional employer
organization as of the date the financial statement was prepared.
C. Except for proper administrative purposes, all records, reports, financial
statements and other information that is obtained from a professional employer
organization under this article by the secretary of state are confidential and are not
subject to inspection pursuant to title 39, chapter 1, article 2.
23-564 Initial registration; fee A. Beginning March 1, 2006, every professional employer organization in this state shall file an initial registration with the secretary of state. The initial registration shall remain valid until the professional employer organization's first completed fiscal year that is more than one year after March 1, 2006. B. If a professional employer organization is not conducting business in this state before March 1, 2006, the professional employer organization shall file an initial registration with the secretary of state before conducting business in this state. C. Every professional employer organization shall pay an initial registration fee established by the secretary of state when an initial registration is filed with the secretary of state. D. The secretary of state shall determine by rule the fees to be charged under this article. 23-565 Renewal registration; fee
Within one hundred twenty days of a registrant's completed fiscal year, each
registrant shall file a renewal registration with the secretary of state. The renewal
registration shall include any changes to the information that was filed in the
registrant's most recent registration. Each professional employer organization shall pay
a renewal registration fee established by the secretary of state when the renewal
registration is filed with the secretary of state. Each renewal registration shall
include the information required under section 23-563, subsection B, paragraphs 7, 8 and
9. 23-566 Group registration
Only for purposes of registration with the secretary of state, if two or more
professional employer organizations are held under common control of another person or
persons who are acting in concert, the professional employer organizations may file a
registration under this article as a professional employer organization group. A
professional employer organization group may satisfy the reporting and financial
requirements under this article on a consolidated basis. 23-567 Limited registration; fee
A. Notwithstanding section 23-564 or 23-565, a professional employer organization
may file a limited registration with the secretary of state on a form prescribed by the
secretary of state if all of the following apply:
1. The professional employer organization is domiciled outside of this state and is
licensed or registered as a professional employer organization in another state that has
requirements that are substantially similar to the requirements under this article.
2. The professional employer organization does not maintain an office in this
state.
3. The professional employer organization does not directly solicit clients located
or domiciled in this state.
4. The professional employer organization does not have more than fifty covered
employees who are employed or domiciled in this state on any given day.
B. A limited registration shall be valid for one year and shall be renewed annually
within one hundred twenty days of a registrant's completed fiscal year. Each professional
employer organization shall pay a limited registration fee established by the secretary
of state when the limited registration is filed or renewed with the secretary of state.
C. If a professional employer organization seeks to file a limited registration
with the secretary of state, the professional employer organization shall provide the
secretary of state with sufficient information and documentation that indicates that the
professional employer organization qualifies for a limited registration. 23-568 Alternative registration; fee A. The secretary of state may establish by rule an alternative registration that accepts an affidavit or certification of a bonded, independent and qualified assurance organization that certifies the qualifications of a professional employer organization under sections 23-564, 23-565 or 23-566. The secretary of state shall approve any bonded, independent and qualified assurance organization that issues an affidavit or certification under this subsection. B. An alternative registration is valid for one year and shall be renewed annually within one hundred twenty days of a registrant's completed fiscal year. Each professional employer organization shall pay an alternative registration fee established by the secretary of state when the alternative registration is filed or renewed with the secretary of state. 23-569 Financial capability; bonding; exception
A. Every professional employer organization that is located in this state shall
maintain either of the following:
1. A minimum net worth of at least one hundred thousand dollars.
2. A bond, an irrevocable letter of credit or securities that have a minimum market
value of one hundred thousand dollars. The bond shall be held by a depository designated
by the secretary of state in order to secure the payment of all taxes, wages, benefits or
other entitlements including amounts expended by the industrial commission's special fund
under section 23-907 that are due to be paid by the professional employer organization
with respect to covered employees if the professional employer organization fails to make
the required payments. Any bond, irrevocable letter of credit or securities that are
deposited under this subsection shall not be included for the purposes of calculating the
minimum net worth of the professional employer organization under this subsection.
B. This section does not apply to professional employer organizations that file a
limited registration under section 23-567. 23-570 Liability
A. Unless otherwise expressly provided by a professional employer agreement or
otherwise required by law, a client:
1. Shall be solely responsible for:
(a) The quality, adequacy and safety of the goods or services produced or sold in
the client's business.
(b) Directing, supervising, training and controlling the work of covered employees
with respect to the business activities of the client.
(c) The acts, errors or omissions of covered employees when directing, supervising,
training and controlling the covered employees' work.
2. Shall not be liable for the acts, errors or omissions of a professional employer
organization or any covered employee of the client and the professional employer
organization if the covered employee is acting under the express direction and control of
the professional employer organization.
B. This section does not limit any contractual liability or obligation required
under a professional employer agreement or limit the liabilities and obligations of any
professional employer organization or client required by this article.
C. For the purposes of general liability insurance, fidelity bonds, surety bonds,
employer's liability that is not covered under workers' compensation and liquor liability
insurance that is carried by the professional employer organization, a covered employee
is not an employee of the professional employer organization unless the covered employee
is specifically included by reference in the professional employer agreement and
applicable prearranged employment contract, insurance contract or bond.
23-571 Tax obligations and incentives
A. This article does not relieve a client from paying any tax liability that is due
under title 42 or 43.
B. Any tax on professional employer services shall be limited to the administrative
fees.
C. For the purposes of tax credits and any other economic incentives provided by
this state that are based on employment, covered employees shall be deemed employees of
either the client or the professional employer organization. Either the client or the
professional employer organization, but not both, shall be entitled to the benefit of any
tax credit, economic incentive or any other benefit resulting from the employment of
covered employees of the client. If the amount of any credit or incentive is based on the
number of employees, only the covered employees who actually work for the client shall be
considered employed and the covered employees who work for other clients of the
professional employer organization shall not be considered.
23-572 Services not insurance A registrant under this article is not engaged in the sale of insurance by offering, marketing, selling, administering or providing professional employer organization services or employee benefit plans for covered employees. 23-573 Rights; duties A. Covered employees may enforce those rights against a professional employer organization that are allocated to the professional employer organization or that are shared between the professional employer organization and the client under a professional employer agreement or this article. B. Any other rights, duties or obligations that are enforceable by an employee under the laws of this state shall remain enforceable against the client. 23-574 Covered employees; licensing A. A covered employee who is required to be licensed, registered or certified under the laws of this state shall be deemed an employee of the client for purposes of the license, registration or certification requirement. B. A professional employer organization shall not be deemed to be engaged in any occupation, trade, profession or other activity that is subject to licensing, registration or certification requirements under the laws of this state solely on the basis of entering into and maintaining a co-employment relationship with a covered employee who is required to be regulated or certified. C. Unless otherwise expressly agreed to by a client in a professional employment agreement, a client shall maintain the right to direct and control the professional or licensed activities of the covered employees and the client's business. 23-575 Violations; classification; civil penalties; rules A. A person who offers to provide or actually provides professional employer services or uses the name professional employer organization, staff leasing, employee leasing or administrative employee or any other title representing a professional employer service without first registering with the secretary of state pursuant to section 23-563 is guilty of a class 1 misdemeanor. B. A person who knowingly provides false or fraudulent information to the secretary of state under this article is guilty of a class 1 misdemeanor. C. A person who is a controlling person of a professional employer organization and who collects payments from a client representing wages, taxes, benefit payments or insurance payments and fails to remit the funds to the appropriate government or private entity within a reasonable time is guilty of theft as provided in section 13-1802. D. A person who is a controlling person of a client of a professional employer organization and who fraudulently or falsely procures or attempts to procure services or benefits from a registered professional employer organization without having monies that are adequate to compensate the professional employer organization is guilty of a class 4 felony. E. If a person wilfully fails to comply with any requirement of this article, knowingly makes a material misrepresentation to the secretary of state, violates subsection A, B or C of this section or is guilty of an offense relating to the operation of a professional employer organization, the secretary of state: 1. Shall impose a civil penalty not to exceed one thousand dollars against the person for each violation. The secretary of state shall deposit, pursuant to sections 35-146 and 35-147, penalties collected pursuant to this paragraph in the state general fund. 2. May deny an application for registration. 3. May revoke, restrict or refuse to renew a registration. 4. May place a registrant on probation for a period of time determined by rules adopted by the secretary of state. F. The secretary of state shall adopt rules for hearings and penalties for violations of this article or rules adopted under this article. 23-576 Professional employer organization fund; use; exemption A. The professional employer organization fund is established consisting of fees collected pursuant to this article. The secretary of state shall administer the fund. B. Monies in the fund are subject to legislative appropriation and shall be used by the secretary of state for the purposes of administering this article. C. Monies in the fund are exempt from the provisions of section 35-190 relating to lapsing of appropriations.
|
|
|
|
