Bill 2777

                    Current Status

Bill Number:               2777
Ratification Number:       157
Act Number                 107
Introducing Body:          House
Subject:                   Private employment agencies

(A107, R157, H2777)

AN ACT TO AMEND CHAPTER 25 OF TITLE 41, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO PRIVATE EMPLOYMENT AGENCIES, SO AS TO REMOVE LICENSING AND ENFORCEMENT PROCEDURES FROM THE DEPARTMENT OF LABOR AND ESTABLISH NEW PROCEDURES FOR SUCH AGENCIES UNDER THE SECRETARY OF STATE AND TO CHANGE THE METHOD OF ENFORCING THE PRESENT REQUIREMENTS RELATING TO THE DUTIES OF LICENSEES, RECORDS, PROHIBITED CONDUCT, ENFORCEMENT AND THE EMPLOYMENT AGENCY BOARD.

Be it enacted by the General Assembly of the State of South Carolina:

Private employment agencies

SECTION 1. Chapter 25 of Title 41 of the 1976 Code, as last amended by Act 553 of 1978, is further amended to read:

"CHAPTER 25

Private Personnel Agencies

Section 41-25-10. This chapter may be cited as the 'South Carolina Private Personnel Agency Act'.

Section 41-25-20. For the purposes of this chapter:

(a) 'Secretary' means the Secretary of State or his designated representative.

(b) 'Personnel agency' shall include any person who charges fees, all or any part of which is in consideration of such person procuring or attempting to procure employment for applicants seeking employment and for procuring or attempting to procure employees for employers seeking applicants, unless covered under other provisions of law.

(c) 'Personnel agency' shall not include:

(1) Any placement office conducted by an incorporated bar association, hospital, association of registered professional nurses, registered medical institution, or by an incorporated association or society of professional engineers, or by an incorporated association or society of land surveyors, or by an incorporated association or society of registered architects;

(2) Any organization operated by or under the exclusive control of a bona fide nonprofit education, religious, charitable or eleemosynary institution;

(3) Temporary help services;

(4) Any organization operated by a governmental authority.

(d) 'Placement fee' means any thing of value, paid, or directed to be paid, including retainer fees, for the service of procuring or attempting to procure employment for persons seeking employment or for procuring or attempting to procure employees for employers seeking applicants.

(e) 'Person' means any individual, company, society, association, corporation, manager, contractor, subcontractor, partnership, bureau, agency, service, office or the agent or employee of the foregoing.

(f) 'Applicant' means anyone performing or seeking to perform work, service or labor of any kind and who had for this purpose visited or contacted an employment agency.

(g) 'Employer' means any person who engages or who seeks to engage applicants for employment.

Section 41-25-30. (a) No person shall engage in the personnel agency business in this State unless he has first procured a license for such agency as provided in this chapter.

(b) An application for license shall be made to the Secretary for each location. If the agency is owned by an individual, Ille application shall be made by him; if it is owned by a partnership, the application shall be made by all of the partners; if it is owned by a corporation, association or society, the application shall be made by the president, vice-president, secretary and treasurer and by any person owning twenty percent or more of the stock thereof.

(c) Each application shall be written and in such form as may be prescribed by the Secretary and shall state the name and address of the applicant; the name under which the agency is to be conducted; the street and number of the building or place where the business is to be conducted; the business or occupations engaged in by the applicant previously; whether the applicant has previously held or applied, whether granted or denied, for a personnel agency license anywhere within the United States, its possessions or territories the name and address of the individual who will actually direct and operate the placement activities of the agency; and the name and present address of the last employer of such individual; a verification from a newspaper of the greatest circulation in the county of the applicant's location that a Public Notification containing the information required in the application has been included in such newspaper on at least one occasion prior to the filing; and a certification by a duly licensed member of the South Carolina Bar that all requirements of the laws of the State of South Carolina have been met.

(d) The application shall be accompanied by a fee in the amount of fifty dollars and verification of bond in the amount of three thousand dollars or other security in an amount equal to twenty-five thousand dollars, in a form approved by the Attorney General deposited with the Secretary. The aggregate liability of the surety for all breaches of the conditions of the bond shall, in no event, exceed the sum of such bond. The surety on the bond shall have the right to cancel such bond upon giving thirty days notice to the Secretary and thereafter shall be relieved of liability for any breach of condition occurring after the effective date of such cancellation. The application fee shall be paid only with the initial application by an agency. Every personnel agency shall file with the Secretary a license update between January first and January fifteenth of each year.

(e) All claims or suits brought against any licensee may be brought in the name of the person damaged upon the bond deposited with the Secretary and may be transferred and assigned as other claims for damages in civil suits. The amount of damages claimed by the plaintiff, and not the penalty designated in the bond, shall determine the jurisdiction of the court in which the action is brought. If a licensee has departed from the State with intent to defraud his creditors or to avoid the service of a summons in an action brought under this section, service shall be made upon the surety. A copy of the summons shall be mailed to the last known post office address of the residence of the licensee as shown by the records of the Secretary. Such service shall be deemed to be made when not less than the number of days shall have intervened between the date of service and the return of the same as provided by law.

(f) No license shall be granted to conduct an agency in a residence or rooms used for living purposes or where boarders or lodgers are kept or where meals are served or where persons sleep or, in connection with a building or premises where intoxicating liquors are sold to be consumed on premises, except cafes and restaurants in office buildings.

(g) No license may be issued if the applicant has had a previous application which was denied or a license which has been revoked. No person shall own, either wholly or in part, nor manage an employment agency who has previously been denied or had revoked his license to operate an employment agency.

Section 41-25-40. Every licensed employment agency in the State shall:

(a) Openly and in a place accessible to applicants and employees alike, display the agency's license.

(b) Make available to each applicant a copy of every contract between the agency and the applicant which shall have printed on it or attached to it a copy of the fee and placement fee schedules of the employment agency.

(c) Guarantee, to the applicant through contractual agreement between the agency and the applicant who pays a placement fee, every job placement for a minimum period of ninety calendar days. Should the position end in less than ninety calendar days, regardless of the cause for termination, the fee or service charge for services rendered shall be adjusted to and shall not exceed the amount of the original fee prorated over ninety calendar days from the beginning date of employment. Should the applicant not report for work, regardless of the reason, there shall be no fee charged to the applicant.

Section 41-25-50. Any person who acts as a personnel agency in the State, or his employees may not:

(a) Knowingly induce or attempt to induce an employee to quit his employment for the purpose of obtaining other employment through such agency; provided, however, nothing herein shall be construed as prohibiting any personnel agency from assisting any employee in obtaining other employment if such agency has been so requested by the employee or when the employee is not to be charged a fee. No personnel agency shall knowingly induce or attempt to induce any employee it has placed to leave that employment unless it is requested to do so by the employee and he shall have first contacted the personnel agency.

(b) Knowingly publish or cause to be published any false, fraudulent or misleading information, representation, promise, notice or advertisement.

(c) Refer any employee or applicant for employment to a place where a strike or lockout exists without furnishing the employee or applicant with a written statement as to the existence of such strike or lockout, if the agency had knowledge of such facts.

(d) Send or cause to be sent any applicant to any place the employment agency knows or reasonably should have known is maintained for immoral or illicit purposes.

(e) Impose a fee for the registration of an applicant except for the furnishing of an employment referral that results in the applicant obtaining employment.

(f) Engage or attempt to engage in splitting or sharing, with an employer, an agent or other employee of an employer, or other person to whom personnel service has been furnished, a payment received by a personnel agency from a person seeking employment or from an employer.

(g) Procure or attempt to procure the discharge of a person from his current employment.

(h) Advertise in any media, including a newspaper, trade publication, billboard, radio, television, card, printed notice, circular, contract, letterhead, or any other material made for public distribution, except an envelope, without clearly stating that the advertisement is by a firm providing a private personnel service, either by stating the firm name or using the words 'personnel agency' in the advertisement.

(i) Use or cause to be used any fictitious name as a contact person for an applicant or employer or a name which is not the correct name of the personnel agency itself or the individual employee within the agency who is handling the job order.

Section 41-25-60. Any person or employer seeking employees or a person seeking employment shall not:

(a) Make any false statement or conceal any material fact for the purpose of obtaining employees, or employment, by or through a private personnel agency.

(b) Engage or attempt to engage in the splitting or sharing of fees or payments for services of a personnel service with any person to whom this act is applicable.

(c) Intentionally or knowingly refuse to pay any fee due to an agency for a placement made with such employer.

Section 41-25-70. Any person who knowingly violates Sections 41-25-30, 41-25-40, 41-25-50 or 41-25-60 shall be deemed guilty of a misdemeanor and, upon conviction, shall be fined not more than five hundred dollars or be imprisoned for not more than one year, or both. In addition, anyone convicted of the violations shall forfeit his right to operate as a private personnel agency and shall immediately surrender his license to the Secretary. Failure to so surrender shall subject the licensee to a misdemeanor with the same penalty as above prescribed in this section with each day of noncompliance constituting a separate offense.

Section 41-25-80. (a) A person who knowingly violates Sections 41-25-50 and 41-25-60 shall be liable to the person adversely affected by the violation for three times the amount of actual damages incurred plus court costs and reasonable attorneys' fees.

(b) In an action filed under this section, a plaintiff may seek and the court, in its discretion, may grant:

(1) An order enjoining the defendant in the suit from violating Sections 41-25-50 and 41-25-60;

(2) Any order necessary to restore to the person any property acquired by the defendant in the suit in violation of Sections 41-25-50 and 41-25-60;

(3) Other relief that the court considers proper, including, if the court's judgement against the defendant in the suit is not satisfied within three months after the date of the final judgment, the appointment of a receiver, the revocation of a license or certificate authorizing the defendant in the suit to engage in business in this State, or an order enjoining the defendant in the suit from acting as a personnel service.

Section 41-25-90. The provisions of this chapter may be enforced by any state agency having jurisdiction and authority to enforce this chapter, including, but not limited to:

(a) Secretary of State

(b) Department of Labor

(c) Attorney General

(d) Department of Consumer Affairs

(e) South Carolina Law Enforcement Division

(f) Circuit solicitors

(g) Local law enforcement agencies

(h) Any person who has been damaged by or has knowledge of any violation of the provisions of this chapter."

Time effective

SECTION 2. This act shall take effect upon approval by the Governor.