| 1 | 1 | | 24 LC 52 0566 |
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| 2 | 2 | | House Bill 1515 |
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| 3 | 3 | | By: Representatives Taylor of the 173 |
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| 4 | 4 | | rd |
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| 5 | 5 | | and Cheokas of the 151 |
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| 6 | 6 | | st |
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| 7 | 7 | | |
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| 8 | 8 | | A BILL TO BE ENTITLED |
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| 9 | 9 | | AN ACT |
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| 10 | 10 | | To amend Titles 33 and 34 of the Official Code of Georgia Annotated, relating to insurance |
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| 11 | 11 | | 1 |
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| 12 | 12 | | and labor and industrial relations, respectively, so as to provide for the registration and2 |
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| 13 | 13 | | regulation of professional employer organizations; to provide for certain regulatory powers,3 |
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| 14 | 14 | | duties, and authority of the Commissioner of Insurance and the Commissioner of Labor over4 |
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| 15 | 15 | | professional employer organizations; to exclude such organizations from certain definitions5 |
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| 16 | 16 | | related to insurance; to provide for definitions; to provide for the registration of such6 |
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| 17 | 17 | | organizations with the Commissioner of Insurance; to provide for certain fees; to provide for7 |
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| 18 | 18 | | the restriction of the use of certain terms; to provide for complaints; to provide for rules and8 |
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| 19 | 19 | | regulations; to provide for a co-employment relationship; to provide for no effect on existing9 |
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| 20 | 20 | | collective bargaining agreements or other contracts; to provide for legislative construction;10 |
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| 21 | 21 | | to clarify rights, duties, and obligations of clients and professional employer organizations;11 |
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| 22 | 22 | | to clarify employer and employee statuses; to provide for the disciplinary actions; to provide12 |
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| 23 | 23 | | for the applicability of Chapter 8 of Title 34, the "Employment Security Law"; to repeal13 |
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| 24 | 24 | | obsolete provisions; to provide for the posting of a surety bond; to provide for conforming14 |
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| 25 | 25 | | changes; to provide for a short title; to provide for related matters; to provide an effective15 |
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| 26 | 26 | | date; to repeal conflicting laws; and for other purposes.16 |
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| 27 | 27 | | BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:17 |
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| 28 | 28 | | H. B. 1515 |
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| 29 | 29 | | - 1 - 24 LC 52 0566 |
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| 30 | 30 | | PART I |
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| 31 | 31 | | 18 |
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| 32 | 32 | | SECTION 1-1.19 |
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| 33 | 33 | | Title 33 of the Official Code of Georgia Annotated, relating to insurance, is amended in Code20 |
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| 34 | 34 | | Section 33-2-11, relating to examination of insurers and organizations and effect of insurer's21 |
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| 35 | 35 | | change of domicile from Georgia, by revising subsection (c) as follows:22 |
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| 36 | 36 | | "(c) The Commissioner shall in like manner examine each insurer or rating organization23 |
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| 37 | 37 | | applying for authority to do business in this state or any professional employer organization |
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| 38 | 38 | | 24 |
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| 39 | 39 | | registering with the department to do business in this state."25 |
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| 40 | 40 | | SECTION 1-2.26 |
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| 41 | 41 | | Said title is further amended in Code Section 33-23-1, relating to definitions relative to27 |
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| 42 | 42 | | agents, agencies, subagents, counselors, and adjusters, by revising subsection (b) as follows:28 |
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| 43 | 43 | | "(b) The definitions of agent, subagent, and counselor in subsection (a) of this Code29 |
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| 44 | 44 | | section shall not be deemed to include:30 |
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| 45 | 45 | | (1) An attorney at law admitted to practice in this state, when handling the collections31 |
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| 46 | 46 | | of premiums or advising clients as to insurance as a function incidental to the practice of32 |
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| 47 | 47 | | law or who adjusts losses which are incidental to the practice of his or her profession;33 |
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| 48 | 48 | | (2) Any representative of ocean marine insurers;34 |
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| 49 | 49 | | (3) Any representative of farmers' mutual fire insurance companies as defined in35 |
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| 50 | 50 | | Chapter 16 of this title;36 |
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| 51 | 51 | | (4) A salaried employee of a credit or character reporting firm or agency not engaged in37 |
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| 52 | 52 | | the insurance business who may, however, report to an insurer;38 |
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| 53 | 53 | | (5) A person acting for or as a collection agency;39 |
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| 54 | 54 | | (6) A person who makes the salary deductions of premiums for employees or, under a40 |
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| 55 | 55 | | group insurance plan, a person who serves the master policyholder of group insurance in41 |
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| 56 | 56 | | administering the details of such insurance for the employees or debtors of the master42 |
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| 57 | 57 | | H. B. 1515 |
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| 58 | 58 | | - 2 - 24 LC 52 0566 |
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| 59 | 59 | | policyholder or of a firm or corporation by which the person is employed and who does |
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| 60 | 60 | | 43 |
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| 61 | 61 | | not receive insurance commissions for such service; provided, further, that an44 |
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| 62 | 62 | | administration fee not exceeding 5 percent of the premiums collected paid by the insurer45 |
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| 63 | 63 | | to the administration office shall not be construed to be an insurance commission;46 |
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| 64 | 64 | | (7) Persons exempted from licensure as provided in subsection (h) of Code47 |
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| 65 | 65 | | Section 33-23-4; or |
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| 66 | 66 | | 48 |
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| 67 | 67 | | (8) An individual who collects claim information from, or furnishes claim information49 |
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| 68 | 68 | | to, insureds or claimants, who conducts data entry, and who enters data into an automated50 |
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| 69 | 69 | | claims adjudication system, provided that the individual is an employee of a licensed51 |
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| 70 | 70 | | independent adjuster or its affiliate where no more than 25 such persons are under the52 |
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| 71 | 71 | | supervision of one licensed independent adjustor or licensed agent; or53 |
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| 72 | 72 | | (9) A professional employer organization to the extent that such organization collects54 |
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| 73 | 73 | | information; obtains, offers, or provides life, accident and sickness, disability income,55 |
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| 74 | 74 | | workers' compensation, and other types of insurance coverage; establishes retirement56 |
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| 75 | 75 | | plans; and has or obtains, offers, or provides other types of employee benefits and57 |
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| 76 | 76 | | discusses such benefits."58 |
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| 77 | 77 | | PART II59 |
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| 78 | 78 | | SECTION 2-1.60 |
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| 79 | 79 | | This Act shall be known and may be cited as the "Better Small Business Employee Benefits61 |
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| 80 | 80 | | Act."62 |
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| 81 | 81 | | SECTION 2-2.63 |
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| 82 | 82 | | Title 34 of the Official Code of Georgia Annotated, relating to labor and industrial relations,64 |
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| 83 | 83 | | is amended by amending Chapter 11, which is reserved, as follows:65 |
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| 84 | 84 | | H. B. 1515 |
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| 85 | 85 | | - 3 - 24 LC 52 0566 |
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| 86 | 86 | | "CHAPTER 11 |
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| 87 | 87 | | 66 |
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| 88 | 88 | | 34-11-1.67 |
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| 89 | 89 | | As used in this chapter: |
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| 90 | 90 | | 68 |
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| 91 | 91 | | (1) 'Client' means any person who enters into a professional employer agreement with69 |
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| 92 | 92 | | a professional employer organization.70 |
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| 93 | 93 | | (2) 'Co-employer' means either a professional employer organization or a client.71 |
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| 94 | 94 | | (3) 'Co-employment relationship' means an arrangement wherein the rights, duties, and72 |
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| 95 | 95 | | obligations of an employer which arise out of an employment arrangement are allocated73 |
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| 96 | 96 | | between the parties to such arrangements.74 |
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| 97 | 97 | | (4) 'Commissioner' means the Commissioner of Labor.75 |
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| 98 | 98 | | (5) 'Covered employee' means an individual working under a co-employment76 |
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| 99 | 99 | | relationship between a PEO and a client pursuant to a professional employer agreement77 |
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| 100 | 100 | | subject to this chapter.78 |
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| 101 | 101 | | (6) 'Department' means the Department of Labor.79 |
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| 102 | 102 | | (7) 'Limited registrant' means a PEO that:80 |
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| 103 | 103 | | (A) Is domiciled and registered or licensed in another state;81 |
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| 104 | 104 | | (B) Has 50 or fewer covered employees; and82 |
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| 105 | 105 | | (C) Maintains no principal place of business in this state.83 |
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| 106 | 106 | | (8) 'PEO group' means two or more PEO entities that are majority owned or commonly84 |
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| 107 | 107 | | controlled by the same entity or parent company.85 |
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| 108 | 108 | | (9) 'Professional employer agreement' means a contract between a client and a PEO86 |
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| 109 | 109 | | which provides:87 |
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| 110 | 110 | | (A) For the co-employment of covered employees;88 |
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| 111 | 111 | | (B) An express allocation of the client's rights and obligations as an employer to the89 |
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| 112 | 112 | | co-employee and allocation of such rights and obligations to the co-employee assigned90 |
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| 113 | 113 | | to the PEO; and91 |
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| 114 | 114 | | H. B. 1515 |
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| 115 | 115 | | - 4 - 24 LC 52 0566 |
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| 116 | 116 | | (C) That the PEO and the client assume the responsibilities required by this chapter.92 |
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| 117 | 117 | | (10) 'Professional employer organization' or 'PEO' means any person engaged in the93 |
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| 118 | 118 | | business of providing professional employer services.94 |
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| 119 | 119 | | (11) 'Professional employer services' means the service of entering into co-employment95 |
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| 120 | 120 | | relationships in which all or a majority of the employees providing services to a client are96 |
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| 121 | 121 | | covered employees pursuant to a professional employer agreement.97 |
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| 122 | 122 | | (12) 'Registrant' means a PEO registered with the Department of Insurance pursuant to98 |
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| 123 | 123 | | Code Section 34-11-2.99 |
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| 124 | 124 | | 34-11-2.100 |
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| 125 | 125 | | (a) As used in this Code section, the term:101 |
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| 126 | 126 | | (1) 'Commissioner' means the Commissioner of Insurance.102 |
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| 127 | 127 | | (2) 'Department' means the Department of Insurance.103 |
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| 128 | 128 | | (b) Beginning July 1, 2026, except as otherwise provided in this chapter, no person shall104 |
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| 129 | 129 | | provide, advertise, or otherwise hold itself out as providing professional employer services105 |
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| 130 | 130 | | in this state, unless such person is registered with the department in accordance with this106 |
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| 131 | 131 | | chapter. The department shall begin accepting applications for registration no later than107 |
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| 132 | 132 | | January 2, 2025. Only a firm, corporation, professional corporation, partnership,108 |
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| 133 | 133 | | association, or other entity may apply with the department for registration to provide109 |
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| 134 | 134 | | professional employer services in this state.110 |
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| 135 | 135 | | (c) Each applicant for registration shall provide the department with the following:111 |
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| 136 | 136 | | (1) The name or names under which the PEO conducts business;112 |
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| 137 | 137 | | (2) The address of the principal place of business of the PEO;113 |
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| 138 | 138 | | (3) The address of each office it maintains in this state;114 |
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| 139 | 139 | | (4) The PEO's taxpayer or employer identification number;115 |
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| 140 | 140 | | (5) A list by jurisdiction of each name under which the PEO has operated in the116 |
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| 141 | 141 | | preceding two years;117 |
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| 142 | 142 | | H. B. 1515 |
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| 143 | 143 | | - 5 - 24 LC 52 0566 |
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| 144 | 144 | | (6) A statement of ownership, which shall include the name and address of any person118 |
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| 145 | 145 | | that, individually or in a business relationship with one or more other persons, owns or119 |
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| 146 | 146 | | controls at least 25 percent or more of the equity interests of the PEO;120 |
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| 147 | 147 | | (7) A statement of management, which shall include the name of any person who serves121 |
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| 148 | 148 | | as chief executive officer, president, or secretary or otherwise has been empowered with122 |
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| 149 | 149 | | the authority to act as an officer of the PEO; and123 |
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| 150 | 150 | | (8) A financial statement, prepared in accordance with generally accepted accounting124 |
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| 151 | 151 | | principles by an independent, certified public accountant licensed to practice in the125 |
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| 152 | 152 | | jurisdiction in which such accountant is located. A PEO group may submit combined or126 |
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| 153 | 153 | | consolidated financial statements to meet the requirements of this paragraph. A PEO that127 |
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| 154 | 154 | | has not had sufficient operating history to be able to provide such records shall meet the128 |
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| 155 | 155 | | financial requirements set forth in this Code section and present financial statements as129 |
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| 156 | 156 | | requested by the department.130 |
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| 157 | 157 | | (d) In the event a PEO not registered in this state becomes knowledgeable that a client has131 |
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| 158 | 158 | | covered employees in this state, the PEO shall:132 |
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| 159 | 159 | | (1) Notify the department within 30 days of such knowledge and file a limited133 |
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| 160 | 160 | | registration application under subsection (g) of this Code section; or134 |
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| 161 | 161 | | (2) If the number of covered employees exceeds 50, the department may allow for a135 |
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| 162 | 162 | | temporary registration while registration applications are being prepared and evaluated. 136 |
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| 163 | 163 | | In its evaluation for such temporary registration, the department may consider whether137 |
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| 164 | 164 | | the PEO is currently registered or licensed in another state and if temporary registration138 |
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| 165 | 165 | | is in the best interests of the covered employees based in this state.139 |
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| 166 | 166 | | (e) A registrant shall renew its registration annually by making a filing in a form140 |
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| 167 | 167 | | determined by the department, which shall provide for the registrants to notify the141 |
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| 168 | 168 | | department of any changes in the information provided in its most recent registration filing. 142 |
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| 169 | 169 | | A registrant's existing registration shall remain in effect while such renewal application is143 |
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| 170 | 170 | | under review.144 |
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| 171 | 171 | | H. B. 1515 |
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| 172 | 172 | | - 6 - 24 LC 52 0566 |
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| 173 | 173 | | (f) A PEO group applying for renewal may satisfy the registration and financial reporting145 |
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| 174 | 174 | | requirements of this chapter by filing combined or consolidated filings, provided that each146 |
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| 175 | 175 | | member of the PEO group attests to be responsible for meeting the requirements set forth147 |
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| 176 | 176 | | in this chapter on behalf of each member of the group.148 |
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| 177 | 177 | | (g) A PEO shall be eligible to be a limited registrant if such PEO submits a request for149 |
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| 178 | 178 | | limited registration on a form provided by the department and the department finds that150 |
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| 179 | 179 | | such PEO is domiciled outside this state and is licensed or registered as a professional151 |
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| 180 | 180 | | employer organization in another state. A limited registrant shall not maintain an office152 |
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| 181 | 181 | | in this state or have more than 50 covered employees employed or domiciled in this state153 |
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| 182 | 182 | | at any time. Limited registrants shall be registered for a maximum period of one year and154 |
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| 183 | 183 | | may be considered for renewal as a limited registrant as set forth by the department.155 |
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| 184 | 184 | | (h) The department shall maintain a directory of professional employer organizations156 |
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| 185 | 185 | | registered under this chapter and shall make such directory readily available on the157 |
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| 186 | 186 | | department's public website and by any other means deemed appropriate by the department.158 |
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| 187 | 187 | | (i) The department shall, to the extent practical, accept electronic filings, including, but not159 |
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| 188 | 188 | | limited to, applications, documents, reports, and other filings required under this chapter. 160 |
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| 189 | 189 | | The department may provide for the acceptance of electronic filings and other assurance161 |
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| 190 | 190 | | by an independent and qualified assurance organization approved by the department that162 |
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| 191 | 191 | | provides satisfactory assurance of compliance and security. The department may permit163 |
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| 192 | 192 | | a PEO to be authorized to agree that such an approved assurance organization may act on164 |
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| 193 | 193 | | the PEO's behalf in complying with the registration requirements of this chapter.165 |
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| 194 | 194 | | (j) All records, reports, and other information obtained from or on behalf of a PEO, except166 |
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| 195 | 195 | | to the minimum extent necessary for the proper administration by the department or to167 |
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| 196 | 196 | | comply with the provisions of Article 4 of Chapter 18 of Title 50 shall be confidential and168 |
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| 197 | 197 | | shall not be published or open to public inspection other than to public employees in the169 |
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| 198 | 198 | | performance of their public duties.170 |
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| 199 | 199 | | H. B. 1515 |
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| 200 | 200 | | - 7 - 24 LC 52 0566 |
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| 201 | 201 | | (k) The Commissioner of Insurance shall adopt such and regulations as are reasonable and171 |
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| 202 | 202 | | necessary to effectuate the provisions of this Code section.172 |
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| 203 | 203 | | 34-11-3.173 |
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| 204 | 204 | | (a) The Commissioner of Insurance shall establish by rules and regulations the amount of174 |
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| 205 | 205 | | the fees for the initial and renewal registration of a PEO, initial and renewal registration of175 |
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| 206 | 206 | | a PEO group, and limited and temporary registration of a PEO or a PEO group.176 |
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| 207 | 207 | | (b) The amount of the fees established by the Commissioner of Insurance shall be limited177 |
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| 208 | 208 | | as follows:178 |
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| 209 | 209 | | (1) The initial registration fee of a PEO shall not exceed $500.00, and the renewal179 |
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| 210 | 210 | | registration fee of a PEO shall not exceed $250.00;180 |
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| 211 | 211 | | (2) The initial registration fee of a PEO group shall not exceed $500.00 per group181 |
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| 212 | 212 | | member, and the renewal registration fee of a PEO group shall not exceed $250.00 per182 |
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| 213 | 213 | | group member;183 |
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| 214 | 214 | | (3) The limited registration fee of a PEO shall not exceed $250.00, and the limited184 |
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| 215 | 215 | | registration fee of a PEO group shall not exceed $250.00 per group member;185 |
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| 216 | 216 | | (4) The temporary registration fee of a PEO shall not exceed $500.00, and the temporary186 |
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| 217 | 217 | | registration fee of a PEO group shall not exceed $500.00 per group member; and187 |
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| 218 | 218 | | (5) Such fees shall not exceed the amount reasonably necessary for the registration and188 |
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| 219 | 219 | | regulation of professional employer organizations.189 |
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| 220 | 220 | | 34-11-4.190 |
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| 221 | 221 | | (a) Any applicant, either for an initial registration or a renewal, shall submit financial191 |
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| 222 | 222 | | statements, in accordance with paragraph (8) of subsection (c) of Code Section 34-11-2,192 |
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| 223 | 223 | | that prove that the applicant has positive working capital.193 |
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| 224 | 224 | | (b) The Commissioner of Insurance shall adopt such and regulations as are reasonable and194 |
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| 225 | 225 | | necessary to effectuate the provisions of this Code section.195 |
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| 226 | 226 | | H. B. 1515 |
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| 227 | 227 | | - 8 - 24 LC 52 0566 |
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| 228 | 228 | | 34-11-5.196 |
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| 229 | 229 | | (a) It shall be unlawful for any person to use the term 'PEO,' 'professional employer197 |
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| 230 | 230 | | organization,' 'staff leasing,' 'staff leasing company,' 'registered staff leasing company,'198 |
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| 231 | 231 | | 'employee leasing,' 'employee leasing company,' 'administrative employer,' or any other199 |
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| 232 | 232 | | title deemed by the Department of Insurance to be representative of professional employer200 |
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| 233 | 233 | | services without being registered as a PEO with the Department of Insurance.201 |
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| 234 | 234 | | (b) It shall be unlawful for any person to knowingly provide false or otherwise fraudulent202 |
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| 235 | 235 | | information to the Department of Insurance in support of any application for registration,203 |
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| 236 | 236 | | renewal, or in any report required under this chapter.204 |
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| 237 | 237 | | (c) Any complaints regarding a professional employer organization shall be filed with the205 |
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| 238 | 238 | | Department of Insurance, and any complaints filed with the Department of Labor shall be206 |
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| 239 | 239 | | forwarded to the Department of Insurance; provided, however that the Department of207 |
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| 240 | 240 | | Insurance and the Department of Labor shall cooperate in the documentation, investigation,208 |
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| 241 | 241 | | and resolution of any complaints received and in any disciplinary actions.209 |
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| 242 | 242 | | (d) The Commissioner of Insurance shall adopt such and regulations as are reasonable and210 |
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| 243 | 243 | | necessary to effectuate the provisions of this Code section.211 |
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| 244 | 244 | | 34-11-6.212 |
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| 245 | 245 | | (a) In a co-employment relationship:213 |
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| 246 | 246 | | (1) The client is entitled to enforce those rights, and obligated to provide and perform214 |
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| 247 | 247 | | those employer obligations, allocated to such client by the professional employer215 |
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| 248 | 248 | | agreement and this chapter;216 |
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| 249 | 249 | | (2) The client is entitled to enforce any right and obligated to perform any obligation of217 |
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| 250 | 250 | | an employer not specifically allocated to the PEO in the professional employer agreement218 |
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| 251 | 251 | | or this chapter; and219 |
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| 252 | 252 | | (3) For purposes of any law of this state where employer coverage and employee220 |
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| 253 | 253 | | eligibility is determined based on the number of covered employees employed by the221 |
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| 254 | 254 | | H. B. 1515 |
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| 255 | 255 | | - 9 - 24 LC 52 0566 |
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| 256 | 256 | | employer, the client as an employer shall only be required to count covered employees222 |
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| 257 | 257 | | of the client, and not employees of other clients of the PEO or of the PEO itself.223 |
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| 258 | 258 | | (b) Except as specifically provided in this chapter, the co-employment relationship224 |
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| 259 | 259 | | between the client and the PEO, and between each co-employer and each covered225 |
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| 260 | 260 | | employee, shall be governed by a professional employer agreement. Each professional226 |
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| 261 | 261 | | employer agreement shall provide for the following:227 |
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| 262 | 262 | | (1) The allocation of rights, duties, and obligations of each co-employer for each228 |
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| 263 | 263 | | co-employee;229 |
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| 264 | 264 | | (2) The allocation of rights, duties, and obligations to the PEO regarding payroll230 |
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| 265 | 265 | | processing. The PEO shall pay wages to covered employees; shall withhold, collect, and231 |
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| 266 | 266 | | remit payroll related and unemployment taxes; and may make payments for employee232 |
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| 267 | 267 | | benefits. This shall not be interpreted as to include any obligation between a client and233 |
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| 268 | 268 | | a covered employee for payments beyond or in addition to the covered employee's salary,234 |
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| 269 | 269 | | draw, or regular rate of pay, including, but not limited to, severance pay, deferred235 |
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| 270 | 270 | | compensation, profit sharing, vacation, sick, or other paid time off pay, unless the PEO236 |
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| 271 | 271 | | has expressly agreed to assume liability for such payments in the professional employer237 |
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| 272 | 272 | | agreement;238 |
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| 273 | 273 | | (3) The right to hire, discipline, and terminate a covered employee shall be allocated to239 |
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| 274 | 274 | | both the client and the PEO; provided, however, that the PEO's right shall be limited to240 |
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| 275 | 275 | | such employment decisions as may be necessary to fulfill the PEO's responsibilities under241 |
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| 276 | 276 | | this chapter and a valid professional employer agreement; and242 |
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| 277 | 277 | | (4) The responsibility to purchase and obtain adequate workers' compensation coverage243 |
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| 278 | 278 | | for covered employees shall be specifically allocated to either the client or the PEO in the244 |
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| 279 | 279 | | professional employer agreement.245 |
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| 280 | 280 | | (c) A PEO shall provide written notice to each covered employee whose co-employment246 |
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| 281 | 281 | | is made effective by a professional employer agreement of the general nature of the247 |
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| 282 | 282 | | co-employment relationship between and among the PEO, the client, and such covered248 |
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| 283 | 283 | | H. B. 1515 |
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| 284 | 284 | | - 10 - 24 LC 52 0566 |
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| 285 | 285 | | employee. Such notice shall be delivered as designated within the professional employer249 |
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| 286 | 286 | | agreement but shall not exceed 60 days.250 |
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| 287 | 287 | | (d) A PEO registered with the Department of Insurance and in compliance with this251 |
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| 288 | 288 | | chapter shall not be required to obtain a license from the Commissioner of Insurance under252 |
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| 289 | 289 | | Chapter 23 of Title 33 unless such PEO is selling, soliciting, or negotiating insurance253 |
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| 290 | 290 | | outside of the exclusion provided for in Code Section 33-23-1. A PEO registered with the254 |
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| 291 | 291 | | Department of Insurance and in compliance with this chapter shall not be considered to be255 |
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| 292 | 292 | | engaged in the sale, solicitation, or negotiation of an insurance contract or acting as a256 |
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| 293 | 293 | | third-party administrator by marketing, selling, or administering professional employer257 |
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| 294 | 294 | | services including employee benefits to co-employees. Such employee benefits may258 |
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| 295 | 295 | | include, but are not limited to, health and other insurance products procured by the PEO259 |
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| 296 | 296 | | from a licensed agent and carrier for the benefit of co-employees.260 |
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| 297 | 297 | | 34-11-7.261 |
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| 298 | 298 | | (a) A professional employer agreement shall have no effect on existing collective262 |
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| 299 | 299 | | bargaining agreements. Nothing in this chapter shall alter the rights or obligations of any263 |
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| 300 | 300 | | client, professional employer organization, or worksite employee under the federal264 |
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| 301 | 301 | | National Labor Relations Act or any state law.265 |
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| 302 | 302 | | (b) Nothing in this chapter or in any professional employer agreement shall:266 |
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| 303 | 303 | | (1) Diminish, abolish, or remove rights of covered employees to a client or obligations267 |
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| 304 | 304 | | of such client to a covered employee existing prior to the effective date of a professional268 |
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| 305 | 305 | | employer agreement;269 |
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| 306 | 306 | | (2) Affect, modify, or amend any contractual relationship or restrictive covenant between270 |
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| 307 | 307 | | a covered employee and any client in effect at the time a professional employer271 |
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| 308 | 308 | | agreement becomes effective;272 |
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| 309 | 309 | | (3) Prohibit or amend any contractual relationship or restrictive covenant that is entered273 |
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| 310 | 310 | | into subsequently between a client and a covered employee, provided that a PEO shall274 |
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| 311 | 311 | | H. B. 1515 |
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| 312 | 312 | | - 11 - 24 LC 52 0566 |
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| 313 | 313 | | bear no liability arising from any such contractual relationship or restrictive covenant275 |
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| 314 | 314 | | unless the PEO and the client have each expressly agreed to such an exception, which276 |
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| 315 | 315 | | shall become an addendum to the professional employment agreement; or277 |
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| 316 | 316 | | (4) Create any new or additional enforceable right of a covered employee against a PEO278 |
|---|
| 317 | 317 | | that is not expressly provided by the professional employer agreement or this chapter.279 |
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| 318 | 318 | | (c) Nothing contained in this chapter or any professional employer agreement shall affect,280 |
|---|
| 319 | 319 | | modify, or amend any state, local, or federal licensing, registration, or certification281 |
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| 320 | 320 | | requirement applicable to any client or covered employee.282 |
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| 321 | 321 | | (d) A covered employee who is required by law or any rule or regulation promulgated283 |
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| 322 | 322 | | thereunder to be licensed, registered, or certified shall be deemed to be solely an employee284 |
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| 323 | 323 | | of the client for purposes of any such license, registration, or certification requirement.285 |
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| 324 | 324 | | (e) A PEO shall not be deemed to engage in any occupation, trade, profession, or other286 |
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| 325 | 325 | | activity that is subject to licensing, registration, or certification requirements, or is287 |
|---|
| 326 | 326 | | otherwise regulated by a governmental entity solely by entering into and maintaining a288 |
|---|
| 327 | 327 | | co-employment relationship with a covered employee who is subject to such requirements289 |
|---|
| 328 | 328 | | or regulation.290 |
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| 329 | 329 | | (f) A client shall have the sole right of direction and control of the professional or licensed291 |
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| 330 | 330 | | activities of covered employees. Such covered employees and clients shall remain subject292 |
|---|
| 331 | 331 | | to regulation by the regulatory or governmental entity responsible for licensing,293 |
|---|
| 332 | 332 | | registration, or certification of such covered employees or clients.294 |
|---|
| 333 | 333 | | (g) For purposes of determination of tax credits and other economic incentives provided295 |
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| 334 | 334 | | by this state or other governmental entity and based on employment, covered employees296 |
|---|
| 335 | 335 | | shall be deemed employees solely of the client. A client shall be entitled to the benefit of297 |
|---|
| 336 | 336 | | any tax credit, economic incentive, or other benefit arising as the result of the employment298 |
|---|
| 337 | 337 | | of covered employees of such client. Notwithstanding that the PEO shall be the W-2299 |
|---|
| 338 | 338 | | reporting employer, the client shall continue to qualify for any such benefit, incentive, or300 |
|---|
| 339 | 339 | | H. B. 1515 |
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| 340 | 340 | | - 12 - 24 LC 52 0566 |
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| 341 | 341 | | credit. If the grant or amount of any such incentive is based on number of employees, then301 |
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| 342 | 342 | | each client shall be treated as employing only those covered co-employees.302 |
|---|
| 343 | 343 | | (h) With respect to a bid, contract, purchase order, or agreement entered into with this state303 |
|---|
| 344 | 344 | | or a political subdivision of this state, a client company's status as a small business certified304 |
|---|
| 345 | 345 | | as a minority business enterprise, women owned business, or veteran owned business or305 |
|---|
| 346 | 346 | | as a historically underutilized business shall not be affected because such client has a306 |
|---|
| 347 | 347 | | professional employment agreement with a PEO or otherwise transacts business with a307 |
|---|
| 348 | 348 | | PEO.308 |
|---|
| 349 | 349 | | 34-11-8.309 |
|---|
| 350 | 350 | | (a) A client and a registered PEO operating under a professional employer agreement shall310 |
|---|
| 351 | 351 | | each be deemed an employer for the purposes of sponsoring retirement and welfare benefit311 |
|---|
| 352 | 352 | | plans for its covered employees.312 |
|---|
| 353 | 353 | | (b) A fully insured welfare benefit plan offered to the covered employees of a single PEO313 |
|---|
| 354 | 354 | | shall be treated as a single employer welfare benefit plan. A plan or arrangement shall be314 |
|---|
| 355 | 355 | | considered fully insured only if all benefits payable are guaranteed under a contract or315 |
|---|
| 356 | 356 | | policy of insurance issued by an insurer licensed or otherwise authorized to transact the316 |
|---|
| 357 | 357 | | business of insurance in this state pursuant to Title 33.317 |
|---|
| 358 | 358 | | (c) For purposes of Chapter 60 of Title 33, the 'Small Business Employee Choice of318 |
|---|
| 359 | 359 | | Benefits Health Insurance Plan Act,' a PEO shall be considered the employer of all of its319 |
|---|
| 360 | 360 | | covered employees and all covered co-employees of one or more clients who are320 |
|---|
| 361 | 361 | | participating in any health benefit plan sponsored by such single PEO shall be considered321 |
|---|
| 362 | 362 | | employees of that PEO.322 |
|---|
| 363 | 363 | | (d) If a PEO offers any health benefit plan to its covered employees which is not fully323 |
|---|
| 364 | 364 | | insured by an authorized insurer, the plan shall:324 |
|---|
| 365 | 365 | | (1) Utilize a third-party administrator licensed to do business in this state;325 |
|---|
| 366 | 366 | | H. B. 1515 |
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| 367 | 367 | | - 13 - 24 LC 52 0566 |
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| 368 | 368 | | (2) Hold all plan assets, including participant contributions, in a trust account consistent326 |
|---|
| 369 | 369 | | with the requirements of Section 403 of the federal Employee Retirement Income327 |
|---|
| 370 | 370 | | Security Act of 1974, 29 U.S.C. Section 1001, et seq.;328 |
|---|
| 371 | 371 | | (3) Provide sound reserves for such plan as determined using generally accepted329 |
|---|
| 372 | 372 | | actuarial standards of practice and consistent with the prudence and loyalty standards of330 |
|---|
| 373 | 373 | | care for fiduciaries provided for under the federal Employee Retirement Income Security331 |
|---|
| 374 | 374 | | Act of 1974, 29 U.S.C. Section 1001, et seq.; and332 |
|---|
| 375 | 375 | | (4) Provide written notice to each covered employee participating in the benefit plan that333 |
|---|
| 376 | 376 | | the plan is self-funded or is not fully insured.334 |
|---|
| 377 | 377 | | 34-11-9.335 |
|---|
| 378 | 378 | | (a) The party to which the duty belongs to obtain workers' compensation coverage from336 |
|---|
| 379 | 379 | | a carrier authorized to do business in this state for covered employees in compliance with337 |
|---|
| 380 | 380 | | Chapter 9 of this title shall be expressed in the professional employer agreement.338 |
|---|
| 381 | 381 | | (b) Both the client and the PEO shall be considered the employer for purposes of workers'339 |
|---|
| 382 | 382 | | compensation coverage. The protection of the exclusive remedy provision of Chapter 9 of340 |
|---|
| 383 | 383 | | this title shall apply to the PEO, the client, and to all covered employees and other341 |
|---|
| 384 | 384 | | employees of the client irrespective of which co-employer obtains such workers'342 |
|---|
| 385 | 385 | | compensation coverage.343 |
|---|
| 386 | 386 | | 34-11-10.344 |
|---|
| 387 | 387 | | (a) Upon finding that a PEO, an owner or manager of a PEO, or a person offering PEO345 |
|---|
| 388 | 388 | | services has committed a violation of a provision in Title 33, Code Sections 34-11-2,346 |
|---|
| 389 | 389 | | 34-11-3, 34-11-4, or 34-11-5, or the rules and regulations or an order of the Commissioner347 |
|---|
| 390 | 390 | | of Insurance, in addition to all other penalties provided for under Title 33, the348 |
|---|
| 391 | 391 | | Commissioner of Insurance shall have the authority to:349 |
|---|
| 392 | 392 | | (1) Deny an application for registration or refuse to renew a registration;350 |
|---|
| 393 | 393 | | H. B. 1515 |
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| 394 | 394 | | - 14 - 24 LC 52 0566 |
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| 395 | 395 | | (2) Place any registration on probation for a time period and subject to conditions;351 |
|---|
| 396 | 396 | | (3) Suspend, revoke, or restrict a registration;352 |
|---|
| 397 | 397 | | (4) Impose an administrative penalty in an amount not to exceed $2,000.00 for each and353 |
|---|
| 398 | 398 | | every violation; and354 |
|---|
| 399 | 399 | | (5) Issue an order to cease and desist and provided for in Code Section 33-2-24.355 |
|---|
| 400 | 400 | | (b) Except as provided for in subsection (a) of this Code section, the Commissioner of356 |
|---|
| 401 | 401 | | Labor is authorized to take action against any person in violation of this title or any rule or357 |
|---|
| 402 | 402 | | regulation promulgated thereof.358 |
|---|
| 403 | 403 | | (c) The hearing and any administrative review thereof shall be conducted in accordance359 |
|---|
| 404 | 404 | | with Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act.'360 |
|---|
| 405 | 405 | | 34-11-11.361 |
|---|
| 406 | 406 | | Nothing contained in this chapter shall affect the rights and obligations established under362 |
|---|
| 407 | 407 | | Chapter 8 of Title 34, the 'Employment Security Law,' or any rules or regulations363 |
|---|
| 408 | 408 | | promulgated pursuant to such chapter.364 |
|---|
| 409 | 409 | | 34-11-12.365 |
|---|
| 410 | 410 | | This chapter shall not be applicable to:366 |
|---|
| 411 | 411 | | (1) Arrangements wherein a person, whose principal business activity is not entering into367 |
|---|
| 412 | 412 | | professional employer agreements, does not hold itself out as a PEO, shares employees368 |
|---|
| 413 | 413 | | with a commonly owned company within the meaning of Section 414(b) and (c) of the369 |
|---|
| 414 | 414 | | Internal Revenue Code of 1986; or370 |
|---|
| 415 | 415 | | (2) Temporary help contracting firms as defined in Code Section 34-8-46.371 |
|---|
| 416 | 416 | | 34-11-13.372 |
|---|
| 417 | 417 | | The commissioner may adopt such regulations as are reasonable and necessary to373 |
|---|
| 418 | 418 | | effectuate the provisions of this chapter. Reserved."374 |
|---|
| 419 | 419 | | H. B. 1515 |
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| 420 | 420 | | - 15 - 24 LC 52 0566 |
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| 421 | 421 | | PART III |
|---|
| 422 | 422 | | 375 |
|---|
| 423 | 423 | | SECTION 3-1.376 |
|---|
| 424 | 424 | | Said title is further amended by revising Code Section 34-7-6, relating to professional377 |
|---|
| 425 | 425 | | employer organizations, rights, powers, and responsibility, as follows:378 |
|---|
| 426 | 426 | | "34-7-6.379 |
|---|
| 427 | 427 | | (a) As used in this Code section, the term 'professional employer organization' means an |
|---|
| 428 | 428 | | 380 |
|---|
| 429 | 429 | | employee leasing company as defined in Code Section 34-8-32 that has established a381 |
|---|
| 430 | 430 | | coemployment relationship with another employer, pays the wages of the employees of the382 |
|---|
| 431 | 431 | | coemployer, reserves a right of direction and control over the employees of the383 |
|---|
| 432 | 432 | | coemployer, and assumes responsibility for the withholding and payment of payroll taxes384 |
|---|
| 433 | 433 | | of the coemployer.385 |
|---|
| 434 | 434 | | (b) A professional employer organization may collect information to evaluate costs; may386 |
|---|
| 435 | 435 | | obtain life, accident and sickness, disability income, workers' compensation, and other387 |
|---|
| 436 | 436 | | types of insurance coverage; may establish retirement plans; may have other types of388 |
|---|
| 437 | 437 | | employee benefits; and may discuss such benefits with prospective coemployers and their389 |
|---|
| 438 | 438 | | employees.390 |
|---|
| 439 | 439 | | (c) A coemployer of a professional employer organization shall retain sufficient direction391 |
|---|
| 440 | 440 | | and control over the employees involved in a coemployment relationship as is necessary392 |
|---|
| 441 | 441 | | to conduct its business operations and fulfill its obligations to such employees. Unless393 |
|---|
| 442 | 442 | | otherwise agreed in writing, such coemployer shall be considered to be the sole employer394 |
|---|
| 443 | 443 | | of such employees for licensing purposes, provided that nothing contained in this Code395 |
|---|
| 444 | 444 | | section shall be deemed to prohibit a professional employer organization and its396 |
|---|
| 445 | 445 | | coemployer from agreeing that the professional employer organization shall be considered397 |
|---|
| 446 | 446 | | to be an employer for licensing purposes. The professional employer organization shall398 |
|---|
| 447 | 447 | | give written notice of such an agreement to the appropriate licensing agency and to the399 |
|---|
| 448 | 448 | | employees involved.400 |
|---|
| 449 | 449 | | H. B. 1515 |
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| 450 | 450 | | - 16 - 24 LC 52 0566 |
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| 451 | 451 | | (d) It is the intent of this Code section that professional employer organizations shall be401 |
|---|
| 452 | 452 | | considered to be employers under this title and are required to comply with the provisions402 |
|---|
| 453 | 453 | | of Code Sections 34-8-32, 34-8-34, and 34-8-172. Professional employer organizations403 |
|---|
| 454 | 454 | | and their coemployer clients are entitled to exclusive remedy under Code Section 34-9-11. 404 |
|---|
| 455 | 455 | | Reserved."405 |
|---|
| 456 | 456 | | SECTION 3-2.406 |
|---|
| 457 | 457 | | Said title is further amended by revising Code Section 34-8-32, relating to employee leasing407 |
|---|
| 458 | 458 | | company, as follows:408 |
|---|
| 459 | 459 | | "34-8-32.409 |
|---|
| 460 | 460 | | (a) As used in this chapter, the term 'employee leasing company' means an independently410 |
|---|
| 461 | 461 | | established business entity which engages in the business of providing leased employees411 |
|---|
| 462 | 462 | | to any other employing unit under the following conditions:412 |
|---|
| 463 | 463 | | (1) Negotiates with clients or customers for such matters as time, place, type of work,413 |
|---|
| 464 | 464 | | working conditions, quality, and price of service;414 |
|---|
| 465 | 465 | | (2) Determines assignments of individuals to its clients or customers, even if the415 |
|---|
| 466 | 466 | | individuals retain the right to refuse specific assignments;416 |
|---|
| 467 | 467 | | (3) Sets the rate of pay of the individuals, whether or not through negotiation;417 |
|---|
| 468 | 468 | | (4) Pays the individuals from its accounts; and418 |
|---|
| 469 | 469 | | (5) Hires and terminates individuals who perform services for the clients or customers.419 |
|---|
| 470 | 470 | | (b) Individuals performing services for an employee leasing company shall be considered420 |
|---|
| 471 | 471 | | employees of the employee leasing company. The employee leasing company shall file421 |
|---|
| 472 | 472 | | required reports in accordance with regulations prescribed by the Commissioner and pay422 |
|---|
| 473 | 473 | | contributions on wages paid to such employees.423 |
|---|
| 474 | 474 | | (c) Individuals who perform services for temporary help contracting firms as that term is424 |
|---|
| 475 | 475 | | defined in Code Section 34-8-46 shall not be considered employees of an employee leasing425 |
|---|
| 476 | 476 | | company. Reserved."426 |
|---|
| 477 | 477 | | H. B. 1515 |
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| 478 | 478 | | - 17 - 24 LC 52 0566 |
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| 479 | 479 | | SECTION 3-3. |
|---|
| 480 | 480 | | 427 |
|---|
| 481 | 481 | | Said title is further amended by revising Code Section 34-8-34, relating to employing unit,428 |
|---|
| 482 | 482 | | as follows:429 |
|---|
| 483 | 483 | | "34-8-34.430 |
|---|
| 484 | 484 | | As used in this chapter, the term 'employing unit' means any individual, the legal431 |
|---|
| 485 | 485 | | representative of a deceased individual, or any type of organization, including any432 |
|---|
| 486 | 486 | | partnership, association, trust, estate, joint-stock company, insurance company, or433 |
|---|
| 487 | 487 | | corporation, whether domestic or foreign, employee leasing company |
|---|
| 488 | 488 | | professional434 |
|---|
| 489 | 489 | | employer organization, common paymaster, or the receiver, trustee in bankruptcy, trustee,435 |
|---|
| 490 | 490 | | or successor thereof which has or had in its employ one or more individuals performing436 |
|---|
| 491 | 491 | | services for it within this state. Each individual performing services within this state for437 |
|---|
| 492 | 492 | | any employing unit which maintains two or more separate establishments within this state438 |
|---|
| 493 | 493 | | shall be deemed to be employed by a single employing unit for all the purposes of this439 |
|---|
| 494 | 494 | | chapter. Each individual employed to perform or to assist in performing the work of any440 |
|---|
| 495 | 495 | | agent or employee of an employing unit shall be deemed to be employed by such441 |
|---|
| 496 | 496 | | employing unit for all the purposes of this chapter, whether such individual was hired or442 |
|---|
| 497 | 497 | | paid directly by such employing unit or by such agent or employee, provided the443 |
|---|
| 498 | 498 | | employing unit had actual or constructive knowledge of such work."444 |
|---|
| 499 | 499 | | SECTION 3-4.445 |
|---|
| 500 | 500 | | Said title is further amended by revising Code Section 34-8-172, relating to surety bond446 |
|---|
| 501 | 501 | | required of employee leasing company, as follows:447 |
|---|
| 502 | 502 | | "34-8-172.448 |
|---|
| 503 | 503 | | The Commissioner shall require any employee leasing company, as defined in Code449 |
|---|
| 504 | 504 | | Section 34-8-32, professional employer organization or PEO group to post a surety bond450 |
|---|
| 505 | 505 | | or such equivalent financial securities as approved by the Commissioner in such an amount451 |
|---|
| 506 | 506 | | as needed to cover the total of any potential tax liability which may reasonably be expected452 |
|---|
| 507 | 507 | | H. B. 1515 |
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| 508 | 508 | | - 18 - 24 LC 52 0566 |
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| 509 | 509 | | to be incurred by such employer. In the event an employee leasing company a professional453 |
|---|
| 510 | 510 | | employer organization or PEO group is unable to procure such bond or security, the454 |
|---|
| 511 | 511 | | employee leasing company the professional employer organization or PEO group may455 |
|---|
| 512 | 512 | | report such employees as being in the employment of its client employers, notwithstanding456 |
|---|
| 513 | 513 | | any provision of Code Section 34-8-32 to the contrary."457 |
|---|
| 514 | 514 | | SECTION 3-5.458 |
|---|
| 515 | 515 | | Said title is further amended by revising subsection (c) of Code Section 34-8-195, relating459 |
|---|
| 516 | 516 | | to determination of eligibility for unemployment benefits generally, eligibility while in460 |
|---|
| 517 | 517 | | training, and deductions and withholdings from compensation, as follows:461 |
|---|
| 518 | 518 | | "(c) An individual shall not be deemed to be unemployed in any week such individual462 |
|---|
| 519 | 519 | | refuses an intermittent or temporary assignment without good cause when the assignment463 |
|---|
| 520 | 520 | | offered is comparable to previous work or assignments performed by the individual or464 |
|---|
| 521 | 521 | | meets the conditions of employment previously agreed to between the individual and the465 |
|---|
| 522 | 522 | | employer. Such individual may be considered unemployed with respect to any week an466 |
|---|
| 523 | 523 | | assignment or work is not offered by the employer; provided, however, that an employee467 |
|---|
| 524 | 524 | | of a temporary help contracting firm, an employee leasing company, or a professional468 |
|---|
| 525 | 525 | | employer organization as defined in Code Section 34-7-6 34-11-1 will be presumed to have469 |
|---|
| 526 | 526 | | voluntarily left employment without good cause if the employee does not contact the470 |
|---|
| 527 | 527 | | temporary help contracting firm, employee leasing company, or professional employer471 |
|---|
| 528 | 528 | | organization for reassignment upon completion of an assignment; provided, further, that472 |
|---|
| 529 | 529 | | such failure to contact the temporary help contracting firm, employee leasing company, or473 |
|---|
| 530 | 530 | | professional employer organization will not be considered a voluntary departure from474 |
|---|
| 531 | 531 | | employment unless the employee has been advised in writing of the obligation to contact475 |
|---|
| 532 | 532 | | such employer upon completion of assignments and has been advised in writing that476 |
|---|
| 533 | 533 | | unemployment benefits may be denied for failure to do so."477 |
|---|
| 534 | 534 | | H. B. 1515 |
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| 535 | 535 | | - 19 - 24 LC 52 0566 |
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| 536 | 536 | | SECTION 3-6. |
|---|
| 537 | 537 | | 478 |
|---|
| 538 | 538 | | Said title is further amended by revising subsection (c) of Code Section 34-9-11, relating to479 |
|---|
| 539 | 539 | | exclusivity of rights and remedies granted to employee under chapter and immunity granted480 |
|---|
| 540 | 540 | | to construction design professionals, as follows:481 |
|---|
| 541 | 541 | | "(c) The immunity provided by this subsection shall apply and extend to the businesses482 |
|---|
| 542 | 542 | | using the services of a temporary help contracting firm, as such term is defined in Code483 |
|---|
| 543 | 543 | | Section 34-8-46, or an employee leasing company |
|---|
| 544 | 544 | | a professional employer organization,484 |
|---|
| 545 | 545 | | as such term is defined in Code Section 34-8-32 34-11-1, when the benefits required by this485 |
|---|
| 546 | 546 | | chapter are provided by either the temporary help contracting firm or the employee leasing486 |
|---|
| 547 | 547 | | company professional employer organization or the business using the services of either487 |
|---|
| 548 | 548 | | such firm or company. A temporary help contracting firm or an employee leasing company488 |
|---|
| 549 | 549 | | a professional employer organization shall be deemed to be a statutory employer for the489 |
|---|
| 550 | 550 | | purposes of this chapter."490 |
|---|
| 551 | 551 | | PART IV491 |
|---|
| 552 | 552 | | SECTION 4-1.492 |
|---|
| 553 | 553 | | This Act shall become effective upon its approval by the Governor or upon its becoming law493 |
|---|
| 554 | 554 | | without such approval.494 |
|---|
| 555 | 555 | | SECTION 4-2.495 |
|---|
| 556 | 556 | | All laws and parts of laws in conflict with this Act are repealed.496 |
|---|
| 557 | 557 | | H. B. 1515 |
|---|
| 558 | 558 | | - 20 - |
|---|