NDT C.S.H.B. 1465 75(R)    BILL ANALYSIS


LICENSING & ADMINISTRATIVE PROCEDURES
C.S.H.B. 1465
By: Haggerty
4-1-97
Committee Report (Substituted)



BACKGROUND 

The staff leasing industry became a regulated industry in Texas in 1993.
Licensing of staff leasing services companies is administered by the
Department of Licensing and Regulation.   

PURPOSE

C.S.H.B. 1465 amends the original legislation to clarify certain
provisions and update the law to coincide with changes in the industry
since 1993.  

RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not expressly grant any
additional rulemaking authority to a state officer, department, agency or
institution. 

SECTION BY SECTION ANALYSIS

SECTION 1. Amends Section 91.001, Labor Code (Definitions) by amending
definitions of "assigned employee", "controlling person", "staff leasing
services", and "temporary help service". Adds definitions of "common
ownership", "governmental entity", "offer", and "net worth". Deletes
definitions of "public company" and "temporary employee". 

SECTION 2. Amends Sections 91.002(a) and (c), Labor Code (Rules) by
deletes requirement that Department adopt specific rules Provides that,
notwithstanding any other provision of Chapter 91, Chapter 91 does not
preempt the authority of any other state agency to regulate staff leasing
services. 

SECTION 3. Amends Section 91.003(b), Labor Code (Interagency Cooperation)
by changing the reference to Texas Employment Commission to Texas
Workforce Commission. 

SECTION 4. Adds Section 91.004(c), Labor Code (Effect of Other Law on
Clients and Employees) by providing that a license holder is not engaged
in the unauthorized practice of a regulated profession when entering into
an agreement with a client company and its assigned employees. 

SECTION 5. Amends Section 91.012, Labor Code (General License
Requirements) by deleting the reference to and definition of the vague
standard of "good moral character" as it relates to the qualification of a
controlling person. 

SECTION 6. Amends Section 91.013(a), Labor Code (Background
Investigations) by requiring background investigations for original
license applications only.  

SECTION 7. Amends Sections 91.014(b) and (d), Labor Code (Net Worth
Requirements) by permitting the use of a bond, in addition to guarantees,
letters of credit or other securities, to satisfy net worth requirements.
Requires documents submitted to establish net worth to be prepared no
earlier than nine, rather than six, months prior to submission to the
Department. Provides that information submitted to the Department is
subject to the open records act, except information relating to client
company identities, net worth, financial statements and federal tax
returns. 

SECTION 8. Amends Section 91.015, Labor Code (License Application) by
requiring the Department to require an applicant for a license to provide
information necessary to determine if the applicant meets the licensing
requirements. Requires the Department to provide written notice to an
applicant detailing the basis for denying a license prior to denial of a
license. Deletes specific language relating to denial or revocation of
licenses since those Department actions will be governed by the
Department's general administrative penalty authority. Allows an applicant
or license holder the opportunity to remove an unsuitable controlling
person in order to avoid a negative Department ruling regarding the
unsuitability of that person. Provides that the Department is not required
to reevaluate a controlling person if that person changes employment from
one license holder to another. 

SECTION 9. Amends Section 91.016, Labor Code (License Issuance; Term) by
requiring the Department to notify an applicant within 30 days of any
deficiencies in their application. Allows for a two-year, instead of one
year, license and doubles the maximum license fee. Requires an applicant
or licenser holder to disclose to the Department the addition of a new
controlling person no later than 45 days after that person assumes that
position. Requires the Department to notify the applicant or license
holder within 20 days if the Department intends not to approve that
person.   

SECTION 10. Amends Section 91.017(a), Labor Code (Fees) by changing the
one-year license term to a two-year license term and doubles the maximum
license fee from $3000 to $6000. 

SECTION 11. Adds Sections 91.018(d), (e) and (f), Labor Code (License Not
Assignable; Change of Name or Location) to allow use of trade names, trade
marks, service marks or parent company names in advertising, proposals,
contracts and other written materials. 

SECTION 12. Amends Section 91.019, Labor Code (Limited License) by
revising the basis for issuance of limited licenses. 

SECTION 13. Amends Section 91.020(a), Labor Code (Grounds for Disciplinary
Action) by adding the ground of offering staff leasing services without a
license.  

SECTION 14. Amends Section 91.021, Labor Code (Disciplinary Procedures,
Reinstatement) by requiring the use of administrative sanctions by the
Department authorized under Article 9100. V.T.C.S. and deleting the
specific sanctions currently in Chapter 91. 

SECTION 15. Adds Section 91.031(c), Labor Code (Agreement; Notice) by
requiring that the written notice required to be given to assigned
employees informing them of the staff leasing services agreement be given
to them no later than the first pay day after those individual become
assigned employees. 

SECTION 16. Amends Section 91.032, Labor Code (Contract Requirements) by
revising contract requirements to state that the staff leasing services
company retains a, not the, right of direction and control and right to
hire, fire, discipline and reassign employees. Provides that a client
company is responsible for direction and control over an assigned employee
to the extent necessary to conduct the business of the client company.
Provides that a client company is solely responsible for the goods and
services produced by the client company. 

SECTION 17. Amends Section 91.041(b), Labor Code (Employee Benefit Plans;
Required Disclosure; Other Reports) by clarifying the wording as it
relates to disclosures of benefit plans to assigned employees. 

SECTION 18. Amends Section 91.044, Labor Code (Unemployment Taxes;
Payroll) by changing the reference to the Texas Employment Commission to
the Texas Workforce Commission. Deletes a redundant notification
requirement.   

SECTION 19. Amends Section 91.048, Labor Code (Require Information) by
deleting the  requirement that controlling person biographies be
notarized. 

SECTION 20. Amends Section 91.061, Labor Code (Prohibited Acts) by
creating an offense for offering staff leasing services without a license
and using the terms "professional employer organization" or
"administrative employer" without a license. 

SECTION 21. Adds Section 201.030, Labor Code, (Staff Leasing Services
Company) by defining a staff leasing services company as defined by
Section 91.001, Labor Code. 

SECTION 22. Adds Section 207.045(i), Labor Code to treat staff leasing
services companies in the same manner as temporary help services company
for the purposes of unemployment compensation. 

SECTION 23. Provides that Chapter 91, Labor Code, applies only to licenses
issued or renewed after the effective date of the Act. 

SECTION 24. Provides that Section 207.045(i) as amended applies only to a
claim for unemployment benefits filed on or after the effective date of
the Act. 

SECTION 25. Creates September 1, 1997 effective date.

SECTION 26. Emergency clause.

COMPARISON OF ORIGINAL TO SUBSTITUTE


H.B. 1465 lowered the level of regulation from licensure to registration.
In doing so, H.B. 1465 also deleted the requirement for background
investigations for controlling persons; deleted net worth requirements;
reduced the maximum fee to from $3000 to $1000; deleted the limited
license provision; changed the ground of "engaging" in staff leasing
services without a license to "performing" staff leasing services without
a certificate of registration; reduced the minimum administrative penalty
from $1000 to $500; revised contract requirements by removing the
requirements that a staff leasing services company retain the right of
direction and control over assigned employees and that a staff leasing
services company be required to pay wages to assigned employees regardless
of payment to the staff leasing services company by the client company;
provided that a staff leasing services company assume administrative, not
general responsibility for payment and collection of payroll; provided
that a staff leasing services company reserves, rather than retains, a
contractual right, rather than the right of direction and  
control, over employment policies; provided that if a staff leasing
services company maintained a policy provided by the Texas Worker's
Compensation Insurance Fund, that the staff leasing services company pay
premium based on the experience rating of the client company for the first
two years; deleted the provision that a staff leasing services company and
client company be coemployers for the purposes of workers' compensation;
provided that a client company be protected by exclusive remedy if the
staff leasing company maintain workers' compensation insurance coverage
only for its non-assigned employees; and deleted language that allowed
plans for self-insurance if permitted under ERISA.