Florida Senate - 2011                                    SB 1360
       
       
       
       By Senator Bogdanoff
       
       
       
       
       25-00679A-11                                          20111360__
    1                        A bill to be entitled                      
    2         An act relating to employee leasing companies;
    3         amending s. 468.525, F.S.; revising the provisions
    4         that must be addressed in a contractual arrangement
    5         between an employee leasing company and a client
    6         company; providing that the leasing company is
    7         responsible for securing workers’ compensation
    8         coverage; requiring the client company to identify its
    9         contractors and nonleased employees to the leasing
   10         company within specified times; requiring the leasing
   11         company to give 10 days’ notice before terminating an
   12         agreement; amending s. 468.529, F.S.; providing that
   13         during the term of a leasing agreement, employees who
   14         are directly hired by a client company or who commence
   15         work for the client company become employees of the
   16         leasing company; requiring a client company that
   17         directly hires nonleased employees to have an in-force
   18         workers’ compensation policy covering these employees;
   19         providing that a leasing company’s insurer may recover
   20         from a client company a certain amount of premium and
   21         administrative costs in specified circumstances;
   22         providing that responsibility for workers’
   23         compensation for leased employees is by way of a
   24         multiple coordinated policy issued to the leasing
   25         company; providing for calculating the client
   26         company’s workers’ compensation premium while under
   27         contract with a leasing company; requiring a leasing
   28         company to notify employees if the leasing agreement
   29         is terminated; specifying when coverage ends after the
   30         agreement is terminated; requiring a leasing company
   31         to provide the client company with records relating to
   32         its loss experience during the term of the agreement;
   33         amending s. 627.192, F.S.; deleting provisions
   34         relating to an employee leasing company and its
   35         workers’ compensation insurer, to conform; providing
   36         an effective date.
   37  
   38  Be It Enacted by the Legislature of the State of Florida:
   39  
   40         Section 1. Subsection (4) of section 468.525, Florida
   41  Statutes, is amended to read:
   42         468.525 License requirements.—
   43         (4) The employee leasing company’s contractual arrangements
   44  with its client companies must shall satisfy the following
   45  conditions, whereby the leasing company:
   46         (a) Reserves a right of direction and control over leased
   47  employees assigned to the client’s location. However, a client
   48  may retain such sufficient direction and control over the leased
   49  employees as is necessary to conduct the client’s business and
   50  without which the client would be unable to conduct its
   51  business, discharge any fiduciary responsibility that it may
   52  have, or comply with any applicable licensure, regulatory, or
   53  statutory requirement of the client.
   54         (b) Assumes responsibility for the payment of wages to the
   55  leased employees without regard to payments by the client to the
   56  leasing company.
   57         (c) Assumes full responsibility for the payment of payroll
   58  taxes and collection of taxes from payroll on leased employees.
   59         (d) Is the entity that secures the workers’ compensation
   60  coverage for the leased employees.
   61         (e)(d) Retains authority to hire, terminate, discipline,
   62  and reassign the leased employees. However, the client company
   63  may have the right to accept or cancel the assignment of any
   64  leased employee.
   65         (f)(e) Retains a right of direction and control over
   66  management of safety, risk, and hazard control at the worksite
   67  or sites affecting its leased employees, including:
   68         1. Responsibility for performing safety inspections of
   69  client equipment and premises.
   70         2. Responsibility for the promulgation and administration
   71  of employment and safety policies.
   72         3. Responsibility for the management of workers’
   73  compensation claims, claims filings, and related procedures.
   74         (g)(f)Gives Has given written notice of the relationship
   75  between the employee leasing company and the client company to
   76  each leased employee it assigns to perform services at the
   77  client’s worksite.
   78         (h) Requires the client company to provide to the leasing
   79  company, in writing, the names and addresses of all parties with
   80  whom it has a contractor relationship at the time of entering
   81  into the employee leasing arrangement. The client company must
   82  notify the leasing company within 48 hours after entering into a
   83  subcontractor relationship with a third party or immediately
   84  upon commencement of such contract work, whichever occurs first.
   85         (i) Requires the client company to provide to the leasing
   86  company, in writing, the names of any direct, nonleased
   87  employees employed by the client company at the time of entering
   88  into the employee leasing arrangement.
   89         (j) Provides 10 days’ notice to the client company before
   90  terminating the employee leasing agreement, during which time
   91  the client company may cure any contract defaults or
   92  deficiencies. If the deficiency is not cured within 10 days, the
   93  contract is terminated.
   94         Section 2. Section 468.529, Florida Statutes, is reordered
   95  and amended to read:
   96         468.529 Licensee’s insurance; employment tax; benefit
   97  plans.—
   98         (1) A licensed employee leasing company is the employer of
   99  the leased employees, except that this provision does is not
  100  intended to affect the determination of any issue arising under
  101  Pub. L. No. 93-406, the Employee Retirement Income Security Act,
  102  Pub. L. No. 93-406, as amended from time to time.
  103         (a) An employee leasing company is solely shall be
  104  responsible for the timely payment of unemployment taxes
  105  pursuant to chapter 443, and shall be responsible for obtaining
  106  providing workers’ compensation coverage pursuant to this part
  107  and chapter 440. However, no
  108         (b) A licensed employee leasing company may not shall
  109  sponsor a plan of self-insurance for health benefits, except as
  110  may be permitted by the provisions of the Florida Insurance Code
  111  or, if applicable, by Pub. L. No. 93-406, the Employee
  112  Retirement Income Security Act, Pub. L. No. 93-406, as amended
  113  from time to time. For purposes of this section, a “plan of
  114  self-insurance” excludes shall exclude any arrangement where an
  115  admitted insurance carrier has issued a policy of insurance
  116  which is primarily responsible for the obligations of the health
  117  plan.
  118         (2) An initial or renewal license may not be issued to an
  119  any employee leasing company unless the employee leasing company
  120  first files with the board evidence that the leasing company has
  121  secured of workers’ compensation coverage for all leased
  122  employees in this state. Each employee leasing company shall
  123  maintain and make available to its workers’ compensation carrier
  124  the following information:
  125         (a) The correct name and federal identification number of
  126  each client company.
  127         (b) A listing of all covered employees provided to each
  128  client company, by classification code.
  129         (c) The total eligible wages by classification code and the
  130  premiums due to the carrier for the employees provided to each
  131  client company.
  132         (4)(3) A licensed employee leasing company shall, within 30
  133  days after initiation or termination of an employee leasing
  134  agreement, notify its workers’ compensation insurance carrier,
  135  the Division of Workers’ Compensation of the Department of
  136  Financial Services, and the state agency providing unemployment
  137  tax collection services under contract with the Agency for
  138  Workforce Innovation through an interagency agreement pursuant
  139  to s. 443.1316 of both the initiation or the termination of the
  140  company’s relationship with a any client company.
  141         (5) During the term of an employee leasing agreement with a
  142  client company, a person becomes an employee of the leasing
  143  company upon the direct hiring of such person by the client
  144  company, the commencement of work for the client company by such
  145  person, or the direct hiring of the person by the leasing
  146  company, whichever occurs first. A client company that directly
  147  hires nonleased employees must report those employees to the
  148  employee leasing company within 48 hours after hiring, and the
  149  client company must have an in-force workers’ compensation
  150  policy covering such directly hired, nonleased employees. If an
  151  employee leasing company becomes liable for the payment of
  152  workers’ compensation benefits to an employee of the leasing
  153  company who was directly hired by the client company and the
  154  client company has failed to report such hiring within 48 hours
  155  after hiring, the employee leasing company’s insurer, or the
  156  leasing company if self-insured, may recover from the client
  157  company the amount of premium and administrative costs that
  158  would have been owed by the client company if the employee had
  159  been reported.
  160         (6) Responsibility for obtaining workers’ compensation
  161  coverage for leased employees shall be by way of a multiple
  162  coordinated policy issued to the employee leasing company.
  163         (a) During the first year that a client company enters into
  164  an employee leasing agreement with an employee leasing company,
  165  the client company’s experience modification factor shall be
  166  applied to the premium paid by the leasing company and charged
  167  to the client company for workers’ compensation coverage.
  168         (b) During the second year that a client company enters
  169  into an employee leasing agreement with an employee leasing
  170  company, the premium paid by the leasing company and charged to
  171  the client company shall be based on the average of the leasing
  172  company’s and client company’s experience modification factors.
  173         (c) During the third year that a client company enters into
  174  an employee leasing agreement with an employee leasing company,
  175  and thereafter, the leasing company’s experience modification
  176  factor shall be applied to the premium paid by the leasing
  177  company and charged to the client company for workers’
  178  compensation coverage.
  179         (7) If an employee leasing arrangement is terminated, the
  180  leasing company must send notice of such termination by first
  181  class mail to the last known address of each leased employee who
  182  was assigned to the terminated client company. The notification
  183  must state the date the employee leasing arrangement was
  184  terminated. If the client company is a contractor or involved in
  185  the construction industry, the employee leasing company must
  186  send notice of the termination to all contractors with whom the
  187  client company contracted.
  188         (a) A leased employee who continues to be employed by a
  189  terminated client company is not covered by the workers’
  190  compensation policy of the employee leasing company as of the
  191  11th day after the leasing company terminated its relationship
  192  with the client company.
  193         (b) Upon termination of the employee leasing agreement, the
  194  employee leasing company shall provide to the client company the
  195  records regarding the loss experience of the workers’
  196  compensation insurance for the company during the term of the
  197  employee leasing agreement.
  198         (8) Subject to any limitation set forth in chapter 440 or
  199  s. 627.192(7), s. 440.11(2) applies to the employee leasing
  200  company, the client company, and all other persons set forth s.
  201  440.11(2) only if workers’ compensation coverage is secured for
  202  leased employees by the leasing company.
  203         (3)(4) An initial or renewal license may not be issued to
  204  any employee leasing company unless the employee leasing company
  205  first provides evidence to the board, as required by board rule,
  206  that the employee leasing company has paid all of the employee
  207  leasing company’s obligations for payroll, payroll-related
  208  taxes, workers’ compensation insurance, and employee benefits.
  209  All disputed amounts must be disclosed in the application.
  210         (9)(5) The provisions of this section are subject to
  211  verification by department or board audit.
  212         Section 3. Section 627.192, Florida Statutes, is amended to
  213  read:
  214         627.192 Workers’ compensation insurance; employee leasing
  215  arrangements.—
  216         (1) The purpose of this section is to ensure that an
  217  employer who leases some or all of its workers properly obtains
  218  workers’ compensation insurance coverage for all of its
  219  employees, including those leased from or coemployed with
  220  another entity, and that the premium paid by an employee leasing
  221  company is commensurate with exposure and anticipated claim
  222  experience for all employees.
  223         (2) For purposes of the Florida Insurance Code:
  224         (a) “Employee leasing” has shall have the same meaning as
  225  set forth in s. 468.520(4).
  226         (b) “Experience rating modification” means a factor applied
  227  to a premium to reflect a risk’s variation from the average
  228  risk. The experience modification is determined by comparing
  229  actual losses to expected losses, using the risk’s own past
  230  experience.
  231         (c) “Leased employee” means a person performing services
  232  for a lessee under an employee leasing arrangement.
  233         (d) “Lessee” means an entity that which obtains all or part
  234  of its workforce from another entity through an employee leasing
  235  arrangement or which employs the services of an entity through
  236  an employee leasing arrangement.
  237         (e) “Lessor” means an employee leasing company, as set
  238  forth in part XI of chapter 468, engaged in the business of or
  239  holding itself out as being in the business of employee leasing.
  240  A lessor may also be referred to as an employee leasing company.
  241         (f) “Premium subject to dispute” means that the insured has
  242  provided a written notice of dispute to the insurer or service
  243  carrier, has initiated a any applicable proceeding for resolving
  244  such disputes as prescribed by law or rating organization
  245  procedures approved by the office, or has initiated litigation
  246  regarding the premium dispute. The insured must have detailed
  247  the specific areas of dispute and provided an estimate of the
  248  premium the insured believes to be correct. The insured must
  249  have paid any undisputed portion of the bill.
  250         (3) A lessor that obtains coverage in the voluntary
  251  workers’ compensation market may elect, with the voluntary
  252  market insurer’s knowledge and consent, to secure the coverage
  253  on leased employees through a workers’ compensation policy
  254  issued to the lessor. The insurer of the lessor may, in its
  255  discretion, take all reasonable steps to ascertain exposure
  256  under the policy and collect the appropriate premium by:
  257         (a) Requiring the lessor to provide a complete description
  258  of lessor’s operations.
  259         (b) Requiring periodic reporting by the lessor of covered
  260  lessees’ payroll, classifications, claims information, loss
  261  data, and jurisdictions with exposure. This reporting may be
  262  supplemented by a requirement for lessees to submit to the
  263  carrier Internal Revenue Service Form 941 or its equivalent on a
  264  quarterly basis.
  265         (c) Auditing the lessor’s operations.
  266         (d) Using other reasonable measures to determine the
  267  appropriate premium.
  268         (3)(4) A lessor that applies for coverage or is covered by
  269  a workers’ compensation insurance policy must through the
  270  voluntary market shall also maintain and furnish to the insurer
  271  on an annual basis, and as the insurer may otherwise reasonably
  272  require, sufficient information to permit the calculation of an
  273  experience modification factor for each lessee upon termination
  274  of the employee leasing relationship. Information accruing
  275  during the term of the leasing arrangement which is used to
  276  calculate an experience modification factor for a lessee upon
  277  termination of the leasing relationship shall continue to be
  278  used in the future experience ratings of the lessor. Such
  279  information includes shall include:
  280         (a) The lessee’s corporate name.
  281         (b) The lessee’s taxpayer or employer identification
  282  number.
  283         (c) Payroll summaries and class codes applicable to each
  284  lessee, and, if requested by the insurer, a listing of all
  285  leased employees associated with a given lessee.
  286         (d) Claims information grouped by lessee, and any other
  287  information maintained by or readily available to the lessor
  288  which that is necessary for the calculation of an experience
  289  modification factor for each lessee.
  290         (4)(5) In addition to any other provision of law, any
  291  material violation of this section by a lessor an employee
  292  leasing company is grounds for cancellation or nonrenewal of the
  293  lessor’s insurance policy provided that the lessor employee
  294  leasing company has been provided a reasonable opportunity to
  295  cure the violation. If a lessor an employee leasing company has
  296  received notice that its workers’ compensation insurance policy
  297  will be canceled or nonrenewed, the lessor must leasing company
  298  shall notify by certified mail, within 5 15 days after receipt
  299  of the notice, notify by certified mail all of the lessees for
  300  which there is an employee leasing arrangement covered under the
  301  policy to be canceled., except Notice is not required if the
  302  lessor employee leasing company has obtained another insurance
  303  policy with an effective date that is the same as the date of
  304  cancellation or nonrenewal.
  305         (5)(6) If the employee leasing arrangement with a lessee is
  306  terminated, the lessee shall be assigned an experience
  307  modification factor that which reflects its experience during
  308  the experience period specified by the approved experience
  309  rating plan, including, if applicable, experience incurred for
  310  leased employees under the employee leasing arrangements. The
  311  lessor employee leasing company shall notify the insurer of its
  312  intent to terminate any lessee relationship before prior to
  313  termination when feasible. When prior notice is not feasible,
  314  the employee leasing company shall notify its insurer within 5
  315  working days following actual termination.
  316         (6)(7) This section does shall not affect have any effect
  317  on the statutory obligation, if any, of a lessee to secure
  318  workers’ compensation coverage for employees that the lessee
  319  does not coemploy or lease pursuant to an employee leasing
  320  arrangement.
  321         (7)(8) A lessee may shall not enter into an employee
  322  leasing relationship or be eligible for workers’ compensation
  323  coverage in the voluntary market if the lessee owes its current
  324  or a prior insurer any premium for workers’ compensation
  325  insurance, or if the lessee owes its current or prior lessor
  326  employee leasing company amounts due under the service
  327  agreement, except for premium or amounts due that are subject to
  328  dispute. For the purposes of this section and compliance with
  329  other laws and regulations, a lessor may rely on a sworn
  330  statement by the lessee that the lessee has met any and all
  331  prior premium or fee obligations, unless the lessor has actual
  332  knowledge to the contrary.
  333         (8)(9) Insurers shall conduct annual audits of payroll and
  334  classifications of lessors employee leasing companies in order
  335  to ensure that the appropriate premium is charged for workers’
  336  compensation coverage. The audits shall be conducted to ensure
  337  that all sources of payment by lessors to employees,
  338  subcontractors, and independent contractors have been reviewed
  339  and the accuracy of classifications of employees has been
  340  verified. Insurers may provide for more frequent audits of
  341  lessors based on such factors as amount of premium, type of
  342  business, loss ratios, or other relevant factors. Payroll and
  343  classification verification audit rules of insurers must
  344  include, but need not be limited to, use by the insurer of state
  345  and federal reports of employee income, payroll and other
  346  accounting records, certificates of insurance maintained by
  347  subcontractors, and duties of employees.
  348         (9)(10) If a lessor or a lessee fails to provide reasonable
  349  access to payroll and classification records for a payroll and
  350  classification audit, the insured shall pay a premium to the
  351  insurer a premium not to exceed three times the most recent
  352  estimated annual premium. However, the lessor is not subject to
  353  such penalty if the failure to obtain the needed records is the
  354  direct result of the acts or omissions of the lessee.
  355         Section 4. This act shall take effect upon becoming a law.