Current Status Bill Number:View additional legislative information at the LPITS web site.2887 Ratification Number:228 Act Number:149 Introducing Body:House Subject:The South Carolina Private Personnel Placement Services Act
(A149, R228, H2887)
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 RENAME THE CHAPTER "THE SOUTH CAROLINA PRIVATE PERSONNEL PLACEMENT SERVICES ACT"; TO RAISE THE INITIAL APPLICATION FEE FROM FIFTY TO TWO HUNDRED DOLLARS AND TO MAKE THE APPLICATION FEE NONREFUNDABLE; TO REQUIRE AN INITIAL FEE OF FIFTY DOLLARS; TO REQUIRE A THIRTY-DAY WAITING PERIOD FOR A LICENSE; TO GIVE THE SECRETARY OF STATE AUTHORITY ON THE BASIS OF NONCOMPLIANCE OR WRITTEN COMPLAINT TO DENY ISSUANCE OR TO REVOKE THE LICENSE; TO PROHIBIT A SURETY ON THE BOND REQUIRED FOR A LICENSE FROM CANCELLING THE BOND WITHOUT PERMISSION OF THE SECRETARY OF STATE; TO MAKE FAILURE TO MAINTAIN IN EFFECT THE REQUIRED BOND GROUNDS FOR REVOKING A LICENSE; TO REQUIRE AN ANNUAL LICENSE RENEWAL FEE OF FIFTY DOLLARS DURING THE MONTH OF DECEMBER AND TO MAKE FAILURE TO PAY THE ANNUAL LICENSE FEE AND OTHER NONCOMPLIANCE FACTORS REASONS FOR DENYING OR REVOKING A LICENSE; TO REQUIRE NOTICE TO BE SENT TO THE SECRETARY OF STATE WHEN CHANGING A LOCATION; TO REQUIRE A LICENSE BE RETURNED TO THE SECRETARY OF STATE WHEN A BUSINESS IS CLOSED OR SOLD; TO MAKE A LICENSE NONTRANSFERABLE; TO PROVIDE THAT PRIVATE PERSONNEL PLACEMENT SERVICES MAY NOT CHARGE AN APPLICANT A FEE UNTIL A SERVICE HAS BEEN RENDERED THAT RESULTED IN THE APPLICANT ACCEPTING AND COMMENCING EMPLOYMENT, ADVERTISE WITHOUT STATING THE PERSONNEL PLACEMENT SERVICE NAME AND CLEARLY IDENTIFYING ITSELF AS A PRIVATE PERSONNEL PLACEMENT SERVICE; TO PROVIDE THAT PRIVATE PERSONNEL PLACEMENT SERVICES OUTSIDE THE BOUNDARIES OF THIS STATE MAY NOT BE ALLOWED BY AN ADVERTISER IN THIS STATE TO ADVERTISE WITHOUT STATING THE FIRM'S NAME AND ADDRESS AND USING WORDING THAT IDENTIFIES IT AS A PRIVATE PERSONNEL PLACEMENT SERVICE; TO PROVIDE THAT CERTAIN PRIVATE PERSONNEL PLACEMENT INFORMATION IS CONFIDENTIAL BELONGING TO THE PERSONNEL SERVICE AND PROVIDE PROTECTION AGAINST REMOVAL OR USE OF THE INFORMATION BY FORMER EMPLOYEES; AND TO PROVIDE THAT ALL PRIVATE PERSONNEL AGENCIES LICENSED AS OF EFFECTIVE DATE OF THIS ACT ARE NOT REQUIRED TO APPLY FOR A NEW LICENSE.
Be it enacted by the General Assembly of the State of South Carolina:
Private Personnel Placement Services Act enacted
SECTION 1. Chapter 25 of Title 41 of the 1976 Code, as last amended by Act 107 of 1981, is amended to read:
"CHAPTER 25
Private Personnel Placement Services
Section 41-25-10. This chapter may be cited as the 'South Carolina Private Personnel Placement Services Act'.
Section 41-25-20. For the purposes of this chapter:
(a) 'Secretary' means the Secretary of State or his designated representative.
(b) 'Private Personnel Placement Service' includes any person who charges fees, whether direct or indirect all or any part of which may be in consideration of the person procuring or attempting to procure employment for applicants seeking employment and for procuring or attempting to procure employees for employers seeking applicants, regardless of what the services are called, which shall include, but not be restricted to, executive search firms, outplacement services, career counseling services, consultants or resume services that perform job market sourcing for applicants, corporate or private business services, and other professional consultants and all who market or advertise personnel services on a 'third party' basis, unless covered under other provisions of law.
(c) 'Private Personnel Placement Service' does 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 educational, 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 or charges by persons performing services as defined in item (b) of this section.
(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 been in contact with a Private Personnel Placement Service.
(g) 'Employer' means any person who engages or who seeks to engage applicants for employment.
Section 41-25-30. (a) No person or firm shall engage in the private personnel placement service business in South Carolina unless the person or firm has a current license for the business as provided in this chapter.
(b) An application for license must be made to the Secretary for each location. If the agency is owned by an individual, the application must be made by him; if it is owned by a partnership, the application must be made by all of the partners; if it is owned by a corporation, association, or society, the application must be made by the president, vice-president, secretary, and treasurer, and by any person owning twenty percent or more of the stock.
(c) Each application must 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 private personnel placement service 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; and the name and present address of the last employer of the 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 the 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 must be accompanied by an application fee in the amount of two hundred dollars and a license fee of fifty dollars and verification of a surety 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 and deposited with the Secretary. The Secretary shall issue a license after a thirty-day waiting period following receipt of the application unless there is a reason for the Secretary to believe on the basis of a complaint and investigation that the applicant is not in compliance with the provisions of this chapter. The application for a license must be denied and the license fee refunded if the Secretary determines that the applicant is not in compliance. The application fee may not be refunded.
(e) The aggregate liability of the surety for all breaches of the bond may not exceed the sum of the bond. The surety on the bond shall have the right to cancel the bond upon giving thirty days written notice to the Secretary and the Private Personnel Placement Service and thereafter is relieved of liability for any breach of condition occurring after the effective date of the cancellation. Failure to maintain a surety bond in force or have other security filed with the Secretary equal to twenty-five thousand dollars constitutes disqualification for retaining a license. The Secretary shall allow ten working days, after notification to the licensee for requalification before revoking that license. The business may not operate until proof of surety bond, or other security equal to twenty-five thousand dollars has been established with the Secretary.
(f) All licenses are issued for a period of one year beginning January first through December thirty-first unless turned in or revoked by the Secretary. All licenses must be renewed annually.
(g) The Secretary shall mail annual license renewal forms to the last known address of each licensee by November first. If license renewal forms are not received by any licensee for any cause, then that licensee must request a license renewal form from the Secretary's office. Every licensee shall file an annual license renewal in a form and manner suitable to the Secretary postmarked not later than the last day of December. The renewal form must be accompanied by a renewal fee of fifty dollars. If license renewal forms are not received by the Secretary's office the first week of January, the Secretary shall notify the licensee in writing that the licensee must pay a fifty dollar late penalty and that the licensee has thirty days from the date of notice for that licensee to comply with licensing requirements. If compliance is not met within the specified time, the Secretary shall deny license renewal, return the license fee, and notify that business to cease operation and make public notification of closure of the service in the newspaper of the greatest circulation in the county in which it is located.
(h) If a written complaint by any person to the Secretary reveals that a licensee or firm is not in compliance with the provisions of Section 41-25-30, the Secretary shall notify the licensee or firm of the alleged violation in writing and allow thirty days from the date of notice for response and compliance to the provisions of this chapter. If no response is received within thirty days, the Secretary shall investigate the alleged violation and if the licensee or firm is found to be in violation of the provisions of this chapter, deny or revoke that license.
(i) 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 must be made upon the surety. A copy of the summons must be mailed to the last known post office address of the residence of the licensee as shown by the records of the Secretary.
The service must 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.
(j) No license may be granted to conduct a private personnel placement service 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.
(k) 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 a private personnel placement service who has previously been denied or had revoked his license to operate a private personnel placement service. The Secretary, depending upon the seriousness of the offense causing the denial or revocation of the license, may, after a suitable period of three months to one year, allow the person, upon full compliance, to reapply for a license.
(l) If a licensee relocates its offices prior to the filing of the annual renewal notice, that licensee shall submit a written notice of the change of address to the Secretary containing a notarized statement that the new location conforms to licensing requirements.
(m) If a licensee ceases to operate or goes out of business, that licensee shall notify the Secretary in writing of such action and shall return the license to the Secretary.
(n) If a business is sold to a new owner, the previous owner will notify the Secretary in writing of such action and shall return the license to the Secretary and state to whom the business is being sold. That business may not operate until the new owner has obtained a new license.
(o) Private Personnel Placement Services licenses are absolutely and unconditionally nontransferable.
Section 41-25-40. Every licensed private personnel placement service in the State shall:
(a) Openly and in a place accessible to applicants and employees alike, display the license.
(b) Make available to each applicant a copy of every contract between the private personnel placement service and the applicant which shall have printed on it or attached to it a copy of the fee and placement fee schedules.
(c) Guarantee, to the applicant through contractual agreement between the private personnel placement service 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 must 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 may be no fee charged to the applicant.
Section 41-25-50. Any person who acts as a private personnel placement service in the State, or his employees may not:
(a) 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 has first contacted the private personnel placement service.
(b) Knowingly publish or cause to be published any false, fraudulent or misleading information, representation, promise, notice, or advertisement.
(c) Knowingly 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 the strike or lockout, if the agency had knowledge of the facts.
(d) Knowingly send or cause to be sent any applicant to any place the private personnel placement service knows or reasonably should have known is maintained for immoral or illicit purposes.
(e) Impose a fee for the registration of an applicant.
(f) Impose a fee to an applicant for placement services or job referral or employment consulting services except when the services rendered result in that applicant accepting employment and establishes a confirmed starting date.
(g) 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 private personnel placement service has been furnished, a payment received by a private personnel placement service from a person seeking employment or from an employer.
(h) Procure or attempt to procure the discharge of a person from his current employment.
(i) 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 stating the firm name and if the firm name does not include words identifying it as providing private personnel placement service then additional words must be used such as Personnel Agency, Personnel Consultant, Fee Paid, or other wording that establishes the identity as a Private Personnel Placement Service in the advertisement.
(j) Conduct placement services from any location other than the location stated on the license.
(k) 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 private personnel placement service itself or the individual employee within the service who is handling the job order.
Section 41-25-60. Any person who acts as a private personnel placement service doing business in South Carolina but is located outside the jurisdiction of the other provisions of this chapter may not be allowed to advertise by 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 private personnel placement services, stating the firm name, address, and using the words personnel placement service, personnel agency, consultants, fee paid, or other wording that establishes the identity as a private personnel placement service in the advertisement, if the firm name does not include such words.
Section 41-25-70. 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 placement service.
(b) Engage or attempt to engage in the splitting or sharing of fees or payments for services of a private personnel placement service with any person to whom this chapter is applicable.
(c) Intentionally or knowingly refuse to pay any fee due to a private personnel placement service for placement services rendered.
Section 41-25-80. Private personnel placement service information is confidential, and must be considered and protected as follows:
All records and files of the private personnel placement service of all applicants, all customers, all job orders, which include their names, addresses, telephone numbers, and all related data for each, is confidential and belongs to the firm regardless of the medium on which it is recorded. The improper use or removal from the firm of all or any part of this data by a current or former employee is prohibited without written authority from the owner of the private personnel placement service and its use by a former employee is prohibited for a period of one hundred and eighty days from the date of that person's separation from the firm.
Section 41-25-90. Any person who knowingly violates Sections 41-25-30, 41-25-40, 41-25-50, 41-25-60, 41-25-70, or 41-25-80 is guilty of a misdemeanor and, upon conviction, must 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 must be denied his right to operate as a private personnel placement service and shall immediately surrender his license to the Secretary.
Failure to surrender the license 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 41-25-100. (a) A person who knowingly violates Sections 41-25-50, 41-25-60, 41-25-70, and 41-25-80 is 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, 41-25-60, 41-25-70, and 41-25-80;
(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, 41-25-60, 41-25-70, and 41-25-80; or
(3) Other relief that the court considers proper, including, if the court's judgment 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 41-25-110. 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."
Applicability of provisions
SECTION 2. The provisions of this act apply to all private personnel placement services licensed as of passage of this act, except that those already licensed are not required to apply for a new license.
Time effective
SECTION 3. This act shall take effect upon approval by the Governor.