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| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
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| SENATE BILL |
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| INTRODUCED BY BROWNE, PIPPY, RAFFERTY, McILHINNEY, TOMLINSON, FOLMER, BREWSTER, FARNESE, STACK AND BLAKE, MAY 16, 2011 |
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| REFERRED TO LABOR AND INDUSTRY, MAY 16, 2011 |
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| AN ACT |
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1 | Providing for the registration and regulation of professional |
2 | employer organizations and for powers and duties of the |
3 | Department of Labor and Industry; and imposing penalties. |
4 | The General Assembly of the Commonwealth of Pennsylvania |
5 | hereby enacts as follows: |
6 | CHAPTER 1 |
7 | PRELIMINARY PROVISIONS |
8 | Section 101. Short title. |
9 | This act shall be known and may be cited as the Professional |
10 | Employer Organization Registration and Recognition Act. |
11 | Section 102. Definitions. |
12 | The following words and phrases when used in this act shall |
13 | have the meanings given to them in this section unless the |
14 | context clearly indicates otherwise: |
15 | "Administrative fee." The fee charged to a client by a |
16 | professional employer organization for professional employer |
17 | services. The administrative fee shall not be deemed to include |
18 | any amount of a fee by the professional employer organization |
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1 | that is for wages and salaries, benefits, workers' compensation, |
2 | payroll taxes, withholding or other assessment paid by the |
3 | professional employer organization to or on behalf of covered |
4 | employees under the professional employer agreement. |
5 | "Client." Any person who enters into a professional employer |
6 | agreement with a professional employer organization. |
7 | "Coemployer." A professional employer organization or |
8 | client. |
9 | "Coemployment relationship." A relationship which is |
10 | intended to be an ongoing relationship rather than a temporary |
11 | or project specific one, wherein the rights, duties and |
12 | obligations of an employer which arise out of an employment |
13 | relationship have been allocated between coemployers pursuant to |
14 | a professional employer agreement and this act. |
15 | "Controlling person." A person that owns, directly or |
16 | indirectly, 10% or more of the equity interest in a professional |
17 | employer organization. |
18 | "Covered employee." An individual coemployed by a |
19 | professional employer organization and a client who meets the |
20 | following criteria: |
21 | (1) The individual has received written notice of co- |
22 | employment with the professional employer organization. |
23 | (2) The individual's coemployment relationship is |
24 | pursuant to a professional employer agreement subject to this |
25 | act. |
26 | Subject to section 504, individuals who are officers, directors, |
27 | shareholders, partners and managers of the client and who are |
28 | operational managers or perform day-to-day operational services |
29 | for the client are covered employees only to the extent that the |
30 | client and the professional employer organization expressly |
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1 | agree in the professional employer agreement. |
2 | "Department." The Department of Labor and Industry of the |
3 | Commonwealth. |
4 | "Direct hire employee." An individual who is an employee of |
5 | either the client or the PEO within the meaning of the act of |
6 | June 2, 1915 (P.L.736, No.338), known as the Workers' |
7 | Compensation Act, and who is not a covered employee. |
8 | "Insurer." A legal entity authorized or licensed to transact |
9 | insurance business in accordance with the laws of this |
10 | Commonwealth. |
11 | "Licensed producer." An individual or business entity that |
12 | is licensed as an insurance producer by the Insurance Department |
13 | in accordance with the provisions of Article VI-A of the act of |
14 | May 17, 1921 (P.L.789, No.285), known as The Insurance |
15 | Department Act of 1921. |
16 | "Master policy basis." An agreement under which a single |
17 | workers' compensation policy issued to the professional employer |
18 | organization provides coverage for more than one client and may |
19 | provide coverage to the professional employer organization with |
20 | respect to its direct hire employees. Two or more clients that |
21 | are insured under the same policy solely because they are under |
22 | common ownership are considered a single client for purposes of |
23 | this definition. |
24 | "Multiple coordinated policy basis." An agreement under |
25 | which a separate workers' compensation policy is issued to the |
26 | professional employer organization on behalf of each client or |
27 | group of affiliated clients with payment obligations and certain |
28 | policy communications related to such workers' compensation |
29 | policy coordinated through the professional employer |
30 | organization. |
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1 | "PEO group." Two or more professional employer organizations |
2 | that are majority owned or commonly controlled by the same |
3 | entity, parent or controlling person. |
4 | "Person." Any individual, partnership, corporation, limited |
5 | liability company, association or any other form of legally |
6 | recognized entity. |
7 | "Professional employer agreement." A contract by and between |
8 | a client and a professional employer organization that provides: |
9 | (1) for the coemployment of covered employees; |
10 | (2) for the allocation of employer rights and |
11 | obligations between the client and the professional employer |
12 | organization with respect to the covered employees; and |
13 | (3) that the professional employer organization and the |
14 | client assume the responsibilities required by this act. |
15 | "Professional employer organization" or "PEO." Any person |
16 | engaged in the business of providing professional employer |
17 | services. |
18 | "Professional employer services." The business of entering |
19 | into coemployment relationships under this act. |
20 | "Registrant." A professional employer organization |
21 | registered under this act. |
22 | "Secretary." The Secretary of Labor and Industry of the |
23 | Commonwealth. |
24 | "Temporary help services." Services consisting of a person: |
25 | (1) recruiting and hiring its own employees; |
26 | (2) finding other organizations that need the services |
27 | of those employees; |
28 | (3) assigning those employees to perform work at or |
29 | services for the other organizations to support or supplement |
30 | the other organizations' work forces, or to provide |
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1 | assistance in special work situations, including, but not |
2 | limited to, employee absences, skill shortages, seasonal |
3 | workloads or to perform special assignments or projects; and |
4 | (4) customarily attempting to reassign the employees to |
5 | other organizations when they finish each assignment. |
6 | Section 103. Scope. |
7 | A person engaged in the business of providing professional |
8 | employer services shall be subject to registration and |
9 | regulation under this act regardless of its use of the term or |
10 | conducting business as a professional employer organization, |
11 | PEO, staff leasing company, registered staff leasing company, |
12 | employee leasing company, administrative employer or any other |
13 | name. The following shall not be deemed to be professional |
14 | employer organizations or the providing of professional |
15 | employment services for purposes of this act: |
16 | (1) Arrangements wherein a person, whose principal |
17 | business activity is not entering into professional employer |
18 | arrangements and which does not hold itself out as a PEO, |
19 | shares employees with a commonly owned company within the |
20 | meaning of section 414(b) and (c) of the Internal Revenue |
21 | Code of 1986 (Public Law 99-514, 26 U.S.C. § 1 et seq.). |
22 | (2) Independent contractor arrangements. |
23 | (3) Providing temporary help services. |
24 | Section 104. Construction. |
25 | (a) Collective bargaining agreements.--Nothing contained in |
26 | this act or in any professional employer agreement shall affect, |
27 | modify or amend any existing collective bargaining agreement, |
28 | specifically limit or affect any future collective bargaining |
29 | agreement, or affect, modify or amend any rights or obligations |
30 | of any client, PEO or covered employee under the National Labor |
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1 | Relations Act (49 Stat. 449, 29 U.S.C. § 151 et seq.), the |
2 | Railway Labor Act (Public Law 69-257, 44 Stat. 577) or the act |
3 | of June 1, 1937 (P.L.1168, No.294), known as the Pennsylvania |
4 | Labor Relations Act. For purposes of determining the number of |
5 | workers for existing and prospective collective bargaining |
6 | agreements, each client shall be treated as employing its direct |
7 | hire employees and only those covered employees coemployed by |
8 | the client. |
9 | (b) Employment arrangements.--Nothing in this act or in any |
10 | professional employer agreement shall: |
11 | (1) Diminish, abolish or remove rights of covered |
12 | employees of a client or obligations of such client to a |
13 | covered employee existing prior to the effective date of the |
14 | professional employer agreement. |
15 | (2) Affect, modify or amend any contractual relationship |
16 | or restrictive covenant between a covered employee and any |
17 | client in effect at the time a professional employer |
18 | agreement becomes effective, nor shall it prohibit or amend |
19 | any contractual relationship or restrictive covenant that is |
20 | entered into subsequently between a client and a covered |
21 | employee. A PEO shall have no responsibility or liability in |
22 | connection with, or arising out of, any existing or new |
23 | contractual relationship or restrictive covenant unless the |
24 | PEO has specifically agreed otherwise in writing. |
25 | (3) Eliminate any right otherwise existing in law, |
26 | except as provided in this act. |
27 | (4) Create any right or cause of action not otherwise |
28 | existing in law except as specifically set forth in the |
29 | professional employer agreement or this act. |
30 | (c) Licensing.--Nothing contained in this act or any |
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1 | professional employer agreement shall affect, modify or amend |
2 | any Federal, State or local licensing, registration or |
3 | certification requirement applicable to any client or covered |
4 | employee. The following apply: |
5 | (1) A covered employee who must be licensed, registered |
6 | or certified according to law or regulation is deemed solely |
7 | an employee of the client for purposes of the license, |
8 | registration or certification requirement. |
9 | (2) A PEO shall not be deemed to engage in any |
10 | occupation, trade, profession or other activity that is |
11 | subject to licensing, registration or certification |
12 | requirements, or is otherwise regulated by a governmental |
13 | entity, solely by entering into and maintaining a |
14 | coemployment relationship with a covered employee who is |
15 | subject to such requirements or regulation. |
16 | (3) A client shall have the sole right of direction and |
17 | control of the professional or licensed activities of covered |
18 | employees and of the client's business. Covered employees and |
19 | clients shall remain subject to regulation by the regulatory |
20 | or governmental entity responsible for licensing, |
21 | registration or certification of the covered employees or |
22 | clients. |
23 | (d) Tax credits and other incentives.--For purposes of |
24 | determination of tax credits and other economic incentives |
25 | provided by the Commonwealth or other government entity and |
26 | based on employment, covered employees shall be deemed employees |
27 | solely of the client. A client shall be entitled to the benefit |
28 | of any tax credit, economic incentive or other benefit arising |
29 | as the result of the employment of covered employees of the |
30 | client. If the grant or amount of any incentive is based on the |
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1 | number of employees, then each client shall be treated as |
2 | employing its direct hire employees and those covered employees |
3 | coemployed by the client. Covered employees working for other |
4 | clients of the PEO shall not be counted. Each PEO will provide, |
5 | upon request by a client or an agency or department of the |
6 | Commonwealth, employment information reasonably required by any |
7 | agency or department of the Commonwealth responsible for |
8 | administration of a tax credit or economic incentive and |
9 | necessary to support any request, claim, application or other |
10 | action by a client seeking the tax credit or economic incentive. |
11 | (e) Disadvantaged business.--With respect to a bid, |
12 | contract, purchase order or agreement entered into with the |
13 | Commonwealth or a political subdivision of the Commonwealth, a |
14 | client company's status or certification as a small, minority- |
15 | owned, disadvantaged or woman-owned business enterprise or as a |
16 | historically underutilized business is not affected because the |
17 | client company has entered into an agreement with a PEO or uses |
18 | the services of a PEO. |
19 | (f) Other entity as employer.--Nothing in this act shall be |
20 | construed to designate any entity other than the client as the |
21 | employer of any employee performing services for or on its |
22 | behalf while employed directly or indirectly by a PEO for any |
23 | purposes other than those specifically designated in this act. |
24 | Persons performing services for or on behalf of a client shall |
25 | be deemed to be employees of the client for all purposes other |
26 | than those specifically designated in this act where persons may |
27 | be considered employees of a PEO. |
28 | CHAPTER 3 |
29 | REGISTRATION |
30 | Section 301. Registration. |
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1 | (a) Registration requirements.--The department shall |
2 | register a PEO or PEO group only if the PEO or the PEO group |
3 | meets all requirements of this act. A PEO seeking limited |
4 | registration pursuant to subsection (e) shall provide the |
5 | department with information and documentation necessary to show |
6 | that the PEO qualifies for limited registration. |
7 | (b) Registration information.--An application for |
8 | registration shall include the following information: |
9 | (1) The name or names under which the PEO or the PEO |
10 | group members conduct business and the legal name. |
11 | (2) The address of the principal place of business of |
12 | the PEO or the PEO group members and the address of each |
13 | office maintained in this Commonwealth. |
14 | (3) The taxpayer or employer identification number of |
15 | the PEO or the PEO group members. |
16 | (4) A list by state of each name under which the PEO or |
17 | the PEO group members has operated in the preceding five |
18 | years, including any alternative names, names of predecessors |
19 | and, if known, successor business entities. |
20 | (5) A statement of ownership, which shall include the |
21 | name and evidence of the business experience of any |
22 | controlling person. |
23 | (6) A statement of management, which shall include the |
24 | name and evidence of the business experience of any person |
25 | who serves as president, chief executive officer or otherwise |
26 | has the authority to act as senior executive officer of the |
27 | PEO or PEO group member. |
28 | (7) A financial statement that sets forth the financial |
29 | condition of the PEO or PEO group and meets the following |
30 | requirements: |
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1 | (i) The financial statement shall be prepared in |
2 | accordance with generally accepted accounting principles. |
3 | (ii) The financial statement shall be audited by an |
4 | independent certified public accountant licensed to |
5 | practice in the jurisdiction in which the accountant is |
6 | located and shall be without qualification as to the |
7 | going concern status of the PEO. A PEO or PEO group may |
8 | submit a combined or consolidated audited financial |
9 | statement to meet the requirements of this subparagraph. |
10 | (iii) The financial statement shall cover the PEO or |
11 | PEO group's most recent fiscal year. If a financial |
12 | statement for the most recent fiscal year is not |
13 | available at the time the application is filed, the |
14 | department may grant the PEO or PEO group an extension of |
15 | time to submit the financial statement, allow the PEO or |
16 | PEO group to submit the immediately preceding financial |
17 | statement or, if the PEO or PEO group does not have |
18 | sufficient operating history to have a financial |
19 | statement for a complete fiscal year, allow the PEO or |
20 | PEO group to submit a financial statement for a shorter |
21 | period of time that is reviewed by a certified public |
22 | accountant. |
23 | (8) The provisions of the professional employer |
24 | agreements in use or that will be used by the PEO or PEO |
25 | group in this Commonwealth. |
26 | (9) A complete list of current clients with covered |
27 | employees who perform services within this Commonwealth at |
28 | the time of registration. |
29 | (10) Evidence of current workers' compensation insurance |
30 | policies issued to or through the PEO insuring covered |
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1 | employees located in this Commonwealth. |
2 | (11) Designation of a registered agent for acceptance of |
3 | service of process in this Commonwealth. |
4 | (12) All additional information required by the |
5 | department to demonstrate that the PEO or PEO group meets the |
6 | requirements for the applicable registration. |
7 | (c) Timely application and duration of registration.-- |
8 | (1) An initial registration, if granted by the |
9 | department, shall be effective through the end of the |
10 | calendar year following the year in which the application for |
11 | registration is filed with the department. All other |
12 | registrations shall be effective for 12 months from the |
13 | effective date indicated by the department. |
14 | (i) Each PEO or PEO group operating within this |
15 | Commonwealth as of the effective date of this act shall |
16 | file its application for initial registration no later |
17 | than 30 days after the effective date of this act. |
18 | (ii) Each PEO not operating within this Commonwealth |
19 | as of the effective date of this act shall receive its |
20 | initial registration prior to commencement of operations |
21 | within this Commonwealth. |
22 | (2) A PEO or PEO group that will continue its operations |
23 | beyond the termination of its initial registration or its |
24 | most recent renewal registration shall file an application to |
25 | renew its registration with the department no later than 90 |
26 | days before the end of the current registration. If a timely |
27 | application for renewal is filed, the current registration |
28 | shall remain effective until the department grants or denies |
29 | the application for renewal. |
30 | (d) PEO group registration.--PEOs in a PEO group may satisfy |
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1 | the application, reporting and financial requirements of this |
2 | act on a combined or consolidated basis, provided that each |
3 | member of the PEO group guarantees the obligations under this |
4 | act of each other member of the PEO group. In the case of a PEO |
5 | group that submits a combined or consolidated audited financial |
6 | statement, including entities that are not PEOs or that are not |
7 | in the PEO group, a controlling person of the PEO group under |
8 | the consolidated or combined statement must guarantee the |
9 | obligations of the PEOs in the PEO group. |
10 | (e) Limited registration.-- |
11 | (1) A PEO or PEO group is eligible for a limited |
12 | registration under this act if the PEO or PEO group meets the |
13 | following: |
14 | (i) Is domiciled outside this Commonwealth and is |
15 | licensed or registered as a PEO or PEO group in another |
16 | jurisdiction having PEO registration or licensing |
17 | requirements, including those related to financial |
18 | capability as set forth in section 303, that, in the |
19 | estimation of the department, are at least as stringent |
20 | as those set forth in this act. |
21 | (ii) Does not maintain an office in this |
22 | Commonwealth. |
23 | (iii) Does not directly solicit clients with covered |
24 | employees who may perform services within this |
25 | Commonwealth. |
26 | (iv) Does not have more than 50 covered employees |
27 | who may perform services in this Commonwealth on any |
28 | given day. |
29 | (2) Section 303 shall not apply to applicants for |
30 | limited registration. |
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1 | (f) List.--The department shall maintain a list of PEOs and |
2 | PEO groups registered under this act that is readily available |
3 | to the public by electronic or other means. |
4 | (g) Forms.--Applications for registration shall be made in |
5 | the manner prescribed by the department. The department may |
6 | prescribe forms necessary to promote the efficient |
7 | administration of this section. |
8 | (h) Electronic filing and compliance.--The department may to |
9 | the extent practical provide for the acceptance of electronic |
10 | filings in conformance with the act of December 16, 1999 |
11 | (P.L.971, No.69), known as the Electronic Transactions Act, |
12 | including applications, documents, reports and other filings |
13 | required by this act. The department may provide for the |
14 | acceptance of electronic filings and other assurance from an |
15 | independent and qualified assurance organization approved by the |
16 | department that provides satisfactory assurance of compliance |
17 | acceptable to the department in lieu of the requirements of this |
18 | section and section 303 and other requirements of this act or |
19 | the rules promulgated pursuant to this act. If the department |
20 | provides for the acceptance of electronic filings under this |
21 | section, a PEO or PEO group may authorize an assurance |
22 | organization, approved by the department, to act on the PEO's or |
23 | PEO group's behalf in complying with the registration |
24 | requirements of this act, including electronic filings of |
25 | information and payment of registration fees. Nothing in this |
26 | subsection shall limit or change the department's authority to |
27 | register or terminate registration of a PEO or PEO group or to |
28 | investigate or enforce any provision of this act. |
29 | (i) Record confidentiality.--All financial statements, any |
30 | person's personal identifying information, employer |
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1 | identification numbers, a Federal employment identification |
2 | number, provisions of the professional employer agreements and |
3 | client lists obtained by the department from a PEO or PEO group |
4 | under this act shall not be public records under the act of |
5 | February 14, 2008 (P.L.6, No.3), known as the Right-to-Know Law. |
6 | The department shall make available such personal identifying |
7 | information, employer identification numbers, a Federal |
8 | employment identification number, provisions of the professional |
9 | employer agreements and client lists obtained by the department |
10 | from a PEO or PEO group under this act to a rating organization |
11 | licensed pursuant to section 712(a) of the act of June 2, 1915 |
12 | (P.L.736, No.338), known as the Workers' Compensation Act, as |
13 | required to comply with that rating organization's statutory |
14 | obligations. Information obtained under this subsection shall |
15 | only be used by the rating organization to comply with those |
16 | statutory duties either prescribed under the Workers' |
17 | Compensation Act or required by the Insurance Department |
18 | pursuant to its statutory authority under the act of May 17, |
19 | 1921 (P.L.789, No.285), known as The Insurance Department Act of |
20 | 1921, or the act of May 17, 1921 (P.L.682, No.284), known as The |
21 | Insurance Company Law of 1921, and shall not be considered |
22 | public records under the Right-to-Know Law. |
23 | (j) Appeals.-- |
24 | (1) If the department denies an application for |
25 | registration or revokes a registration under section 701, the |
26 | PEO or PEO group may appeal the department's determination to |
27 | the secretary. The appeal must be received by the department |
28 | within 30 days after the date of the determination. |
29 | (2) An appeal of a determination by the department |
30 | denying an application for a renewal registration or revoking |
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1 | a registration shall operate as a supersedeas while the |
2 | appeal is pending. The effective date of a denial or |
3 | revocation subject to this subsection shall not be prior to |
4 | the expiration of the appeal period under paragraph (1). |
5 | (3) Proceedings under this section are subject to 2 |
6 | Pa.C.S. Ch. 5 Subch. A (relating to practice and procedure of |
7 | Commonwealth agencies) and Ch. 7 Subch. A (relating to |
8 | judicial review of Commonwealth agency action). |
9 | Section 302. Fees. |
10 | (a) Fees.--Except as provided in subsection (b), the |
11 | department shall charge the following fees for applications |
12 | under this act: |
13 | (1) Initial PEO registration, $500. |
14 | (2) Initial PEO group registration, $750. |
15 | (3) Renewal registration, $250. |
16 | (4) Limited registration, $250. |
17 | (b) Amended fees.--No less than 60 days after publishing |
18 | notice of an intent to revise fees in the Pennsylvania Bulletin, |
19 | the department may revise the fees to be charged under |
20 | subsection (a) or establish additional fees. Fees as revised or |
21 | established by the department shall not exceed amounts |
22 | reasonably necessary for the administration of this act. The |
23 | department shall retain the application fees for the purposes of |
24 | administering this act. |
25 | Section 303. Financial capability. |
26 | (a) Working capital.--Except as provided in section 301(e), |
27 | each registrant shall maintain either: |
28 | (1) positive working capital at registration or renewal |
29 | as reflected in the financial statements provided under |
30 | section 301(b)(7); or |
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1 | (2) if the registrant does not meet the requirement in |
2 | paragraph (1), the registrant shall provide one or more of |
3 | the instruments set forth in subsection (b) with a minimum |
4 | aggregate value sufficient to establish positive working |
5 | capital plus $100,000. The instruments shall secure payment |
6 | by the registrant of all taxes, wages, benefits or other |
7 | entitlements due to or with respect to covered employees if |
8 | the registrant fails to make payment when due. |
9 | (b) Instruments.--The following instruments may be |
10 | maintained to comply with subsection (a)(2): |
11 | (1) A surety bond on a form prescribed by the department |
12 | issued by an insurer authorized to transact surety business |
13 | in this Commonwealth by the Insurance Department. The |
14 | following shall apply: |
15 | (i) The surety company shall possess a current A.M. |
16 | Best Rating of B+ or better or a Standard and Poor's |
17 | rating of claims paying ability of A or better. |
18 | (ii) The PEO shall replace the bond with a new bond |
19 | issued by a surety company with an acceptable rating or |
20 | with another instrument under this subsection if the |
21 | surety company's rating falls below the acceptable rating |
22 | after the bond is issued. If the bond is not replaced |
23 | within 60 days, the department may draw on the surety |
24 | bond and deposit the proceeds with the State Treasurer to |
25 | secure payment as set forth in subsection (a)(2). |
26 | (2) An instrument held under a trust agreement |
27 | prescribed by the department and maintained to secure payment |
28 | as set forth in subsection (a)(2). The following shall apply: |
29 | (i) The deposit shall consist of cash, bonds or |
30 | other evidence of indebtedness issued, assumed or |
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1 | guaranteed by the United States of America or by an |
2 | agency or instrumentality of the United States; |
3 | investments in common funds or regulated investment |
4 | companies which invest primarily in Federal Government or |
5 | State government agency obligations; or bonds or other |
6 | security issued by the Commonwealth and backed by the |
7 | Commonwealth's full faith and credit. |
8 | (ii) The securities shall be held in a Commonwealth |
9 | chartered bank and trust company or trust company as |
10 | defined in section 102 of the act of November 30, 1965 |
11 | (P.L.847, No.356), known as the Banking Code of 1965, or |
12 | a federally chartered bank or foreign bank with a branch |
13 | office and trust powers in this Commonwealth. |
14 | (3) An irrevocable letter of credit using provisions |
15 | required by the department issued by and payable at a branch |
16 | office of a commercial bank located in the United States. The |
17 | letter of credit shall state that the terms of the letter of |
18 | credit automatically renew annually unless the letter of |
19 | credit is specifically nonrenewed by the issuing bank 60 days |
20 | or more prior to the anniversary date of its issuance. The |
21 | following shall apply: |
22 | (i) At the time of issuance of the letter of credit, |
23 | the issuing bank or its holding company shall have a B/C |
24 | or better rating or 2.5 or better score by Thomson |
25 | BankWatch, or the issuing bank shall have a CD rating of |
26 | BBB or better by Standard & Poor's Corporation. |
27 | (ii) The registrant shall replace the letter of |
28 | credit with a new letter of credit issued by a bank with |
29 | an acceptable credit rating or with another acceptable |
30 | form of security if a bank's rating falls below the |
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1 | acceptable rating after the letter of credit is issued. |
2 | If the letter of credit is not replaced within 60 days, |
3 | the department shall be entitled to draw on the letter of |
4 | credit and will deposit the proceeds to secure payment as |
5 | set forth in subsection (a)(2). |
6 | (iii) The registrant shall execute a trust agreement |
7 | on a form prescribed by the department with a |
8 | Commonwealth chartered bank and trust company or trust |
9 | company as defined in section 102 of the Banking Code of |
10 | 1965 or a federally chartered bank or foreign bank with a |
11 | branch office and trust powers in this Commonwealth. The |
12 | trust agreement must accommodate proceeds from a letter |
13 | of credit drawn on by the department. |
14 | (c) Certification.--Within 60 days after the end of each |
15 | calendar quarter, a registrant shall submit to the department a |
16 | certification by a senior manager that all applicable Federal, |
17 | State and local taxes and required insurance premiums have been |
18 | paid for all covered employees in this Commonwealth on a timely |
19 | basis for that quarter. |
20 | CHAPTER 5 |
21 | PEO DUTIES AND AGREEMENTS |
22 | Section 501. Duties and contractual relationship. |
23 | (a) Allocation of rights, duties and obligations.--Except as |
24 | specifically provided in this act, nothing in this act shall be |
25 | deemed to affect or alter any provision of Pennsylvania law. |
26 | Specifically: |
27 | (1) The client shall be entitled to exercise all rights, |
28 | and shall be obligated to perform all duties and |
29 | responsibilities, otherwise applicable to an employer in an |
30 | employment relationship. |
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1 | (2) The PEO shall be entitled to exercise only those |
2 | rights, and obligated to perform only those duties and |
3 | responsibilities, specifically required by this act or set |
4 | forth in the professional employer agreement. The rights, |
5 | duties and obligations of the PEO as coemployer with respect |
6 | to any covered employee shall be limited to those arising |
7 | pursuant to the professional employer agreement and this act |
8 | during the term of coemployment by the PEO of the covered |
9 | employee. |
10 | (3) Unless otherwise expressly agreed by the PEO and the |
11 | client in a professional employer agreement, the client |
12 | retains the exclusive right to direct and control the covered |
13 | employees as is necessary to conduct the client's business, |
14 | to discharge any of client's fiduciary responsibilities or to |
15 | comply with any licensure requirements applicable to the |
16 | client or to the covered employees. |
17 | (b) Contractual relationship.--Except as provided by law, |
18 | the coemployment relationship between the client and the PEO, |
19 | and between each coemployer and each covered employee, shall be |
20 | governed by the professional employer agreement. The PEO shall |
21 | ensure that each professional employer agreement is reduced to |
22 | writing and signed by both the client and the PEO and each |
23 | professional employer agreement shall provide: |
24 | (1) The allocation of rights, duties and obligations as |
25 | described in subsection (a). |
26 | (2) That the PEO shall have responsibility to pay wages |
27 | to covered employees; to withhold, collect, report and remit |
28 | payroll-related taxes and may remit unemployment taxes in |
29 | accordance with section 504; and, to the extent the PEO has |
30 | assumed responsibility in the professional employer |
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1 | agreement, to make payments for employee benefits for covered |
2 | employees. As used in this paragraph, the term "wages" does |
3 | not include any obligation between a client and a covered |
4 | employee for payments beyond or in addition to the covered |
5 | employee's salary, draw or regular rate of pay, such as |
6 | bonuses, commissions, severance pay, deferred compensation, |
7 | profit sharing or vacation, sick or other paid time off pay, |
8 | unless the PEO has expressly agreed to assume liability for |
9 | these payments in the professional employer agreement. |
10 | (3) Nothing in this act or in a professional employer |
11 | agreement shall relieve a client from compliance with the |
12 | Commonwealth's wage and labor laws, including the act of May |
13 | 13, 1915 (P.L.286, No.177), known as the Child Labor Law, the |
14 | act of August 15, 1961 (P.L.987, No.442), known as the |
15 | Pennsylvania Prevailing Wage Act, the act of July 14, 1961 |
16 | (P.L.637, No.329), known as the Wage Payment and Collection |
17 | Law, and the act of January 17, 1968 (P.L.11, No.5), known as |
18 | The Minimum Wage Act of 1968. If the client is a health care |
19 | facility as defined in section 2 of the act of October 9, |
20 | 2008 (P.L.1376, No.102), known as the Prohibition of |
21 | Excessive Overtime in Health Care Act, the client shall |
22 | comply with that act. No professional employer organization |
23 | shall knowingly engage in or assist in the violation of the |
24 | statutes referenced in this paragraph. |
25 | (4) That the PEO shall have a right to hire, discipline |
26 | and terminate a covered employee as may be necessary to |
27 | fulfill the PEO's responsibilities under this act and the |
28 | professional employer agreement. The client shall have a |
29 | right to hire, discipline and terminate a covered employee. |
30 | (5) The PEO or client has the responsibility to provide |
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1 | workers' compensation coverage for covered employees, in |
2 | compliance with section 503, which responsibility shall be |
3 | specifically allocated in the professional employer agreement |
4 | to either the client or the PEO in accordance with section |
5 | 503(a). |
6 | (c) Notice to terminate.--With respect to each professional |
7 | employer agreement entered into by the PEO, the PEO shall |
8 | provide the procedures by which the client or PEO may terminate |
9 | the professional employer agreement, including any fees or costs |
10 | payable upon termination, and that except as otherwise expressly |
11 | provided or required by law, all services provided by the PEO to |
12 | the client shall cease immediately as of the effective date of |
13 | the termination. |
14 | (d) Notice to covered employees and clients.-- |
15 | (1) With respect to each professional employer agreement |
16 | entered into by a PEO, the PEO shall provide written notice |
17 | to each covered employee affected by the agreement of the |
18 | general nature of the coemployment relationship between and |
19 | among the PEO, the client and the covered employee. |
20 | (2) If the PEO is providing benefits to covered |
21 | employees pursuant to a PEO sponsored welfare benefit plan, |
22 | the PEO shall provide specific notice to the client as to |
23 | services provided by the PEO concerning those benefits. These |
24 | responsibilities include those related to administration, |
25 | which includes Consolidated Omnibus Budget Reconciliation Act |
26 | (COBRA) administration, plan administration, enrollment and |
27 | renewal services pursuant to their professional employer |
28 | agreement. The notice may be contained in the professional |
29 | employer agreement or in a separate notice. |
30 | (e) Specific responsibilities.--Except to the extent |
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1 | otherwise expressly provided by the applicable professional |
2 | employer agreement: |
3 | (1) A client shall be solely responsible for the |
4 | quality, adequacy or safety of the goods or services produced |
5 | or sold in client's business. |
6 | (2) A client shall be solely responsible for directing, |
7 | supervising, training and controlling the work of the covered |
8 | employees with respect to the business activities of the |
9 | client and solely responsible for the acts, errors or |
10 | omissions of the covered employees with regard to these |
11 | activities. |
12 | (3) A client shall not be liable for the acts, errors or |
13 | omissions of a PEO or of any covered employee of the client |
14 | and a PEO when the covered employee is acting under the |
15 | express direction and control of the PEO. |
16 | (4) A PEO shall not be liable for the acts, errors or |
17 | omissions of a client or of any covered employee of the |
18 | client when the covered employee is acting under the express |
19 | direction and control of the client. |
20 | (5) Nothing in this subsection shall serve to limit any |
21 | contractual liability or obligation specifically provided in |
22 | the written professional employer agreement. |
23 | (6) A covered employee is not, solely as the result of |
24 | being a covered employee of a PEO, an employee of the PEO for |
25 | purposes of general liability insurance, fidelity bonds, |
26 | surety bonds, employer's liability which is not covered by |
27 | workers' compensation or liquor liability insurance carried |
28 | by the PEO unless the covered employee is included by |
29 | specific reference in the professional employer agreement and |
30 | applicable prearranged employment contract, insurance |
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1 | contract or bond. |
2 | (f) Professional employer services not insurance.--A PEO |
3 | under this act is not engaged in the sale of insurance or in |
4 | acting as a third party administrator by offering, marketing, |
5 | selling, administering or providing professional employer |
6 | services which include services and employee benefit plans for |
7 | covered employees. |
8 | (g) Taxation.-- |
9 | (1) Covered employees whose services are subject to |
10 | sales tax shall be deemed the employees of the client for |
11 | purposes of collecting and levying sales tax on the services |
12 | performed by the covered employee. Nothing contained in this |
13 | act shall relieve a client of any sales tax liability with |
14 | respect to its goods or services. |
15 | (2) Any tax upon professional employer services or any |
16 | business license or other fee which is based upon gross |
17 | receipts shall be limited to the administrative fee of the |
18 | PEO. |
19 | (3) Any tax assessed on a per capita or per employee |
20 | basis shall be assessed against the client for covered |
21 | employees and against the PEO for its employees who are not |
22 | covered employees coemployed with a client. |
23 | (4) In the case of tax imposed or calculated upon the |
24 | basis of total payroll, the PEO shall be eligible to apply |
25 | any small business allowance or exemption available to the |
26 | client for the covered employees for purpose of computing the |
27 | tax. |
28 | Section 502. Benefit plans. |
29 | (a) Retirement and welfare benefit plans.--A client and a |
30 | PEO shall each be deemed an employer for purposes of sponsoring |
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1 | retirement and welfare benefit plans for its covered employees. |
2 | (b) Construction.--A fully insured welfare benefit plan |
3 | offered to the covered employees of a single PEO shall be |
4 | considered for purposes of Commonwealth law and regulation to be |
5 | a single employer welfare benefit plan and shall not be |
6 | considered a multiple employer welfare arrangement. |
7 | (c) Insurance Company Law.--For purposes of section 621.2 of |
8 | the act of May 17, 1921 (P.L.682, No.284), known as The |
9 | Insurance Company Law of 1921, a PEO shall be considered the |
10 | employer of all of its covered employees, and all covered |
11 | employees of one or more clients participating in a health |
12 | benefit plan sponsored by a single PEO shall be considered |
13 | employees of the PEO. |
14 | (d) Plans not fully insured.--If a PEO offers to its covered |
15 | employees any health benefit plan which is not fully insured by |
16 | an insurer, the plan shall: |
17 | (1) Utilize a third-party administrator licensed to do |
18 | business in this Commonwealth. |
19 | (2) Hold all plan assets, including participant |
20 | contributions, in a trust account. |
21 | (3) Provide sound reserves as determined by an actuary |
22 | using generally accepted actuarial standards of practice. |
23 | (4) Provide written notice to each covered employee |
24 | participating in the benefit plan that the plan is self- |
25 | insured or is not fully insured. |
26 | Section 503. Workers' compensation. |
27 | (a) Requirement for coverage of covered employees.-- |
28 | (1) Both the PEO and the client shall be an employer of |
29 | covered employees assigned to the client for purposes of this |
30 | act and the act of June 2, 1915 (P.L.736, No.338), known as |
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1 | the Workers' Compensation Act. |
2 | (2) The responsibility to provide workers' compensation |
3 | coverage for the covered employees shall be specifically |
4 | allocated in the professional employer agreement to either |
5 | the client or the PEO. |
6 | (3) When the responsibility to provide workers' |
7 | compensation coverage is specifically allocated in the |
8 | professional employer agreement to the PEO, the PEO must |
9 | elect to provide coverage for all covered employees assigned |
10 | to that client pursuant to subsection (b)(3), (4) or (5). |
11 | (4) When the responsibility to provide workers' |
12 | compensation coverage is specifically allocated in the |
13 | professional employer agreement to the client, the client |
14 | must provide coverage pursuant to subsection (b)(1) or (2). |
15 | (b) Methods of coverage.--A client and a registered PEO that |
16 | have entered into a professional employer agreement may meet |
17 | their statutory obligation under the Workers' Compensation Act |
18 | for coverage as employers for the covered employees by any of |
19 | the following: |
20 | (1) The client obtaining a standard workers' |
21 | compensation policy from an insurer authorized to provide |
22 | workers' compensation coverage covering the client's covered |
23 | employees. Separate experience modification, risk |
24 | classifications, merit rating adjustments, construction |
25 | classification premium adjustments or certified safety |
26 | committee program credits shall be applied to the exposures |
27 | of the client covered by a policy obtained under this |
28 | paragraph based on the client's entire Pennsylvania |
29 | operations notwithstanding coverage provided under additional |
30 | professional employer agreements pursuant to paragraphs (3), |
|
1 | (4) and (5). |
2 | (2) The client being approved by the department to self- |
3 | insure or group self-insure its workers' compensation |
4 | obligations for the client's covered employees. |
5 | (3) The PEO purchasing workers' compensation insurance |
6 | on a multiple coordinated policy basis from an insurer |
7 | authorized to provide workers' compensation coverage to the |
8 | PEO and to the client with respect to the covered employees |
9 | assigned to the client. Each policy written on a multiple |
10 | coordinated policy basis shall be issued to the PEO as |
11 | primary named insured and must identify both the PEO and the |
12 | client as insureds. The following apply: |
13 | (i) Separate experience data must be reported to the |
14 | licensed rating organization for workers' compensation |
15 | insurance for each multiple coordinated policy in a |
16 | format complying with requirements of the approved |
17 | statistical plan for workers' compensation coverage. |
18 | (ii) Risk classifications shall be assigned to each |
19 | client based on the totality of that client's |
20 | Pennsylvania operations regardless of whether workers |
21 | engaged therein are provided under one or more |
22 | professional employer agreements or are direct hire |
23 | employees of the client. |
24 | (iii) If applicable, separate experience |
25 | modification, merit rating adjustments, construction |
26 | classification premium adjustment or certified safety |
27 | committee program credits shall be applied to the |
28 | exposures of each client covered by a multiple |
29 | coordinated policy based on the client's entire |
30 | Pennsylvania operations whether coverage is being |
|
1 | provided for the client's exposures under the client's |
2 | own policy or on a master policy basis or multiple |
3 | coordinated policy basis under one or more professional |
4 | employer agreements, or some combination thereof. |
5 | (iv) Policies written in accordance with this |
6 | paragraph by the same insurer with the PEO as named |
7 | insured may be combinable for premium discount and other |
8 | purposes including a retrospective rating program or any |
9 | other approved pricing program. Such programs may be |
10 | based on the combined total standard premium and losses |
11 | of all such policies issued to the PEO as the primary |
12 | named insured. |
13 | (v) Nothing in this paragraph shall prohibit a |
14 | professional employer organization from participating in |
15 | a large deductible program, retrospective rating program |
16 | or any other rating program approved for and written |
17 | under a workers' compensation policy offered by an |
18 | insurer. Further, nothing in this paragraph shall |
19 | restrict an insurer from collecting workers' compensation |
20 | premium based on the totality of the exposure under these |
21 | multiple coordinated policies and applying rates and |
22 | discounts consistent with those approved for the insurer |
23 | pursuant to the rating program. |
24 | (4) The PEO being duly qualified and approved by the |
25 | department to self-insure its workers' compensation |
26 | obligations, including direct employees and covered |
27 | employees. |
28 | (5) The PEO purchasing workers' compensation insurance |
29 | on a master policy basis from an insurer authorized to |
30 | provide workers' compensation coverage. The insurer or |
|
1 | licensed producer shall provide a certificate of insurance |
2 | evidencing workers' compensation coverage to each client and |
3 | to the PEO with respect to the covered employees of that |
4 | client. The following apply: |
5 | (i) When coverage is provided under a master policy, |
6 | the insurer must report separate experience data to the |
7 | licensed rating organization for workers' compensation |
8 | insurance for each client insured within any master |
9 | policy in a format complying with the requirements of the |
10 | approved statistical plan for workers' compensation |
11 | coverage. |
12 | (ii) Risk classifications shall be assigned to each |
13 | client based on the totality of that client's |
14 | Pennsylvania operations regardless of whether workers |
15 | engaged therein are provided under one or more |
16 | professional employer agreements or are direct hire |
17 | employees of the client. |
18 | (iii) If applicable, separate experience |
19 | modification, merit rating adjustments, construction |
20 | classification premium adjustments or certified safety |
21 | committee program credits shall be applied to the |
22 | exposures of each client covered by a master policy based |
23 | on the client's entire Pennsylvania operations whether |
24 | coverage is being provided for the client's exposures |
25 | under the client's own policy or on a master policy basis |
26 | or multiple coordinated policy basis under one or more |
27 | professional employer agreements, or some combination |
28 | thereof. |
29 | (iv) Nothing in this paragraph shall prohibit a |
30 | professional employer organization from participating in |
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1 | a large deductible program, retrospective rating program |
2 | or any other rating program approved for and written |
3 | under a workers' compensation policy offered by an |
4 | insurer. Further, nothing in this paragraph shall |
5 | restrict an insurer from collecting workers' compensation |
6 | premium based on the totality of the exposure under the |
7 | master policy and applying rates and discounts consistent |
8 | with those approved for the insurer pursuant to the |
9 | rating program. |
10 | (c) Employee coverage.--Direct hire employees of and covered |
11 | employees assigned to a client shall all be collectively covered |
12 | either by the State Workers' Insurance Fund or by insurers |
13 | authorized to transact workers' compensation insurance in the |
14 | voluntary market. Covered employees insured by the State |
15 | Workers' Insurance Fund may only be covered pursuant to a policy |
16 | issued to the client under subsection (b)(1) or on a multiple |
17 | coordinated policy basis issued pursuant to subsection (b)(3). |
18 | (d) Client obligation.-- |
19 | (1) A client retains the statutory obligation to provide |
20 | workers' compensation coverage for employees that are not |
21 | covered employees pursuant to the professional employer |
22 | agreement. Nothing in this paragraph shall preclude a client |
23 | from purchasing a workers' compensation policy insuring both |
24 | its covered employees and its direct hire employees. |
25 | (2) If a client's insurer or the client, if self- |
26 | insured, has issued coverage for direct hire employees, and |
27 | an injured employee is entitled to workers' compensation |
28 | benefits but there is a dispute as to whether the employee is |
29 | a direct hire employee of the client or a covered employee of |
30 | the PEO, the client's insurer or the client, if self-insured, |
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1 | shall pay the benefits, subject to reimbursement of claims |
2 | costs and loss adjustment expenses by the PEO's insurer if it |
3 | is determined that the claimant is a covered employee of the |
4 | PEO. |
5 | (3) If the client does not have coverage for direct hire |
6 | employees, either through an insurer or by self-insurance, |
7 | and an injured employee is entitled to workers' compensation |
8 | benefits but there is a dispute as to whether the employee is |
9 | a direct hire employee of the client or a covered employee of |
10 | the PEO, the PEO's insurer or the PEO, if self-insured, shall |
11 | pay the benefits, subject to reimbursement of claims costs |
12 | and loss adjustment expenses by the client, if it is |
13 | determined that the claimant is not a covered employee of the |
14 | PEO. |
15 | (e) Policy issuance permitted.--Subject to subsection (b), |
16 | and notwithstanding the provisions of section 653 of the act of |
17 | May 17, 1921 (P.L.682, No.284), known as The Insurance Company |
18 | Law of 1921, insurers may issue multiple coordinated policies |
19 | and master policies covering fewer than all of a client's |
20 | employees pursuant to subsection (b)(3) and (5). |
21 | (f) Notice of coverage to the client.-- |
22 | (1) If coverage is provided under a policy issued to the |
23 | PEO for covered employees of the PEO, the PEO shall give |
24 | clear and conspicuous written notice to the client that: |
25 | (i) The client of the PEO has a continuing |
26 | obligation to provide coverage under the Workers' |
27 | Compensation Act for direct hire employees of the client |
28 | who are not covered employees and not otherwise covered |
29 | under a policy described in this section. |
30 | (ii) While coverage provided under a policy issued |
|
1 | to the PEO is in force, the PEO will be responsible for |
2 | paying all premium obligations, including any audit |
3 | adjustments and policyholder assessments, and will be |
4 | entitled to any premium refunds. The written notice to |
5 | the client shall further explain that although the PEO |
6 | will charge the client amounts that reflect or include |
7 | the cost of coverage, these charges are not considered |
8 | insurance premium obligations of the client. If there is |
9 | a policy deductible, the written notice to the client |
10 | shall further explain that the PEO is responsible for |
11 | reimbursing the insurer for the deductible and may not |
12 | seek recovery from the client. |
13 | (2) The written notice to the client shall explicitly |
14 | state that: |
15 | (i) If the professional employer organization |
16 | terminates the professional employment agreement with the |
17 | client, termination of workers' compensation coverage by |
18 | the insurer shall be effective the sooner of: |
19 | (A) Sixty days after notice of intent to |
20 | terminate workers' compensation coverage by the |
21 | insurer has been given by the professional employer |
22 | organization to the client. |
23 | (B) Fifteen days after notice of intent to |
24 | terminate workers' compensation coverage by the |
25 | insurer for nonpayment has been given by the |
26 | professional employer organization to the client. |
27 | (C) The date on which workers' compensation |
28 | coverage for the covered employees is transferred to |
29 | the client's workers' compensation policy or other |
30 | coverage. |
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1 | (ii) The requirements under paragraph (1) shall |
2 | continue to apply to workers' compensation coverage |
3 | provided by the insurer after the notice is given |
4 | pursuant to subparagraph (i). |
5 | (iii) The client shall pay for all workers' |
6 | compensation coverage provided by the insurer, including |
7 | reasonable administrative expenses, subsequent to the |
8 | termination of the professional employer agreement by the |
9 | professional employer organization. |
10 | (iv) If workers' compensation coverage is provided |
11 | through a workers' compensation insurance policy issued |
12 | to the professional employer organization on behalf of |
13 | the client who has been given notice pursuant to |
14 | subparagraph (i), the professional employer organization |
15 | shall notify the affected insurer of the notice. |
16 | (g) Notice to department.--If the professional employer |
17 | agreement provides for the PEO to provide workers' compensation |
18 | insurance for covered employees, the PEO shall: |
19 | (1) Notify the department that it has insured covered |
20 | employees assigned to a client for workers' compensation on a |
21 | multiple coordinated policy basis pursuant to subsection |
22 | (b)(3) or through self-insurance in accordance with |
23 | subsection (b)(4) or on a master policy basis pursuant to |
24 | subsection (b)(5) within 15 days after the effective date of |
25 | the professional employer agreement. |
26 | (2) Notify the department of any cancellation or |
27 | termination of a professional employer agreement under which |
28 | the PEO has assumed the obligation to provide workers' |
29 | compensation insurance for covered employees within ten days |
30 | following the date the notification of cancellation or |
|
1 | termination of the professional employer agreement is issued |
2 | to the client. |
3 | (3) Notify the department of any cancellation or |
4 | termination of workers' compensation coverage for covered |
5 | employees by the PEO's insurer, or any change in insurers for |
6 | covered employees, within ten days of the effective date of |
7 | cancellation, termination or change of insurers. |
8 | (h) Notice by insurer or licensed producer.--The insurer or |
9 | licensed producer of a workers' compensation policy sponsored by |
10 | a PEO for covered employees shall provide the department with |
11 | copies of all notices of coverage, cancellation or nonrenewal |
12 | related to that policy. The PEO shall notify the insurer or |
13 | licensed producer of the requirement under this subsection. |
14 | (i) Exclusive remedy.-- |
15 | (1) The Workers' Compensation Act shall provide the |
16 | exclusive remedy for injuries suffered by direct hire and |
17 | covered employees in the course and scope of their employment |
18 | or coemployment with the PEO and client where the PEO or |
19 | client has secured workers' compensation insurance or self- |
20 | insured their workers' compensation obligations as required |
21 | by the Workers' Compensation Act, this act and the |
22 | professional employer agreement. Both the PEO and the client |
23 | shall be entitled to the exclusiveness of remedy under |
24 | section 303 of the Workers' Compensation Act regardless of |
25 | which provided such coverage. |
26 | (2) Nothing in this act may include within the coverage |
27 | of the Workers' Compensation Act individuals, services or |
28 | remuneration that are otherwise excluded from the Workers' |
29 | Compensation Act. |
30 | (j) Cost.--The professional employer organization shall not |
|
1 | make any materially inaccurate, misleading or fraudulent |
2 | representations to the client regarding the cost of workers' |
3 | compensation coverage. If the professional employer organization |
4 | charges the client an itemized amount for workers' compensation |
5 | coverage, the professional employer organization shall provide |
6 | the client with an accurate and concise description of the basis |
7 | upon which it was calculated and the services that are included. |
8 | A professional employer organization shall not charge a client |
9 | an itemized amount for workers' compensation coverage that is |
10 | materially inconsistent with the actual amounts that the |
11 | professional employer organization is charged by the insurer, |
12 | given reasonably anticipated loss-sensitive charges, if |
13 | applicable, reasonable recognition of the professional employer |
14 | organization's costs and a margin for profit. |
15 | (k) Applicability.--This section shall apply to new and |
16 | renewal workers' compensation policies issued to professional |
17 | employer organizations on or after the effective date of this |
18 | act. |
19 | Section 504. Unemployment compensation insurance. |
20 | (a) Employer.--Notwithstanding any other provision of this |
21 | act, the following shall apply: |
22 | (1) A professional employer agreement under this act |
23 | shall constitute an arrangement included in section 4(j)(2.1) |
24 | of the act of December 5, 1936 (2nd Sp.Sess., 1937 P.L.2897, |
25 | No.1), known as the Unemployment Compensation Law. |
26 | (2) Nothing in this act shall be construed: |
27 | (i) To affect the responsibilities of the client as |
28 | the employer of covered employees for purposes of the |
29 | Unemployment Compensation Law. |
30 | (ii) To affect the responsibility of the PEO to file |
|
1 | reports pursuant to section 315(a)(4) of the Unemployment |
2 | Compensation Law. |
3 | (iii) To preclude the applicability of section 4(j) |
4 | (2.1) or any other provisions of the Unemployment |
5 | Compensation Law to any arrangement or person not |
6 | governed by this act. |
7 | (b) Procedure.-- |
8 | (1) A client may authorize a PEO to file employer |
9 | reports pursuant to section 304 of the Unemployment |
10 | Compensation Law and pay unemployment compensation |
11 | contributions, interest and penalties on the client's behalf. |
12 | (2) An authorization, filing or payment under this |
13 | subsection shall be made in the manner prescribed by the |
14 | department. |
15 | (3) This subsection shall not be construed to allow |
16 | multiple employer reports to be filed on a client's |
17 | unemployment compensation account for a calendar quarter. |
18 | CHAPTER 7 |
19 | ENFORCEMENT |
20 | Section 701. Enforcement. |
21 | (a) Prohibited acts.--A person commits a misdemeanor of the |
22 | third degree if that person: |
23 | (1) Offers, provides, advertises or holds itself out as |
24 | providing professional employer services or uses the names |
25 | PEO, professional employer organization, staff leasing, |
26 | employee leasing, administrative employer or other title |
27 | representing professional employer services without first |
28 | becoming registered under this act. |
29 | (2) Knowingly and willingly misrepresents a material |
30 | fact or fails to disclose a material fact in conjunction with |
|
1 | any application, registration, renewal or in any report |
2 | required under this act. |
3 | (b) Inspection and disciplinary action.-- |
4 | (1) Upon petition of the department, a court of |
5 | competent jurisdiction may enjoin a PEO from taking action |
6 | under or violating this act. |
7 | (2) The department may conduct audits, inspections and |
8 | investigations as necessary to administer and enforce this |
9 | act. The books and records of a PEO and a client shall be |
10 | available to the department for inspection and copying at |
11 | reasonable times. The department may examine an individual |
12 | under oath or affirmation and issue subpoenas to compel the |
13 | attendance of witnesses and the production of documents. |
14 | (3) The department may revoke the registration of a PEO |
15 | or PEO group, or may impose an administrative penalty in an |
16 | amount not to exceed $1,000 for each violation, or both, if |
17 | after notice and hearing, the PEO or PEO group: |
18 | (i) Knowingly violates any provision of this act. |
19 | (ii) Ceases to meet any requirement of this act. |
20 | (iii) Knowingly misrepresents a material fact in |
21 | conjunction with any application, registration or renewal |
22 | or in any report required under this act. |
23 | (iv) Fails to disclose a material fact in |
24 | conjunction with any application, registration or renewal |
25 | or in any report required under this act. |
26 | CHAPTER 21 |
27 | MISCELLANEOUS PROVISIONS |
28 | Section 2101. Effective date. |
29 | This act shall take effect in 180 days. |
|