SECTION .0100 – PRIVATE PERSONNEL SERVICES REGULATIONS
13 NCAC 17 .0101 DEFINITIONS
As used in G.S. 95, Article 5A and this Chapter, unless the
context clearly requires otherwise:
(1) "Accept an employer's offer of
employment," as used in G.S. 95-47.1(1), means to consent orally or in
writing to take the job the employer is offering. This offer or acceptance may
be made directly between the employer and the applicant or may be communicated
through a representative of the private personnel service acting as the
applicant's agent.
(2) "Advertising" means any material or
method used by a private personnel service for solicitation or promotion of
business. This includes, but is not limited to, newspapers, radio, television,
the internet, business cards, invoices, letterheads, or other forms that may be
used in combination with the solicitation and promotion of business.
(3) "Communication," as used in G.S.
95-47.1(4), means a written communication.
(4) "Days" means calendar days.
(5) "Division" means the Private Personnel
Service Office of the North Carolina Department of Labor.
(6) "Employer fee paid personnel consulting
service" means any business that consults with employers in locating and
placing employees where the sole obligation for the placement fee is assumed by
the employer in all circumstances and the applicant is never obligated for the
fee, directly or indirectly, even if the applicant quits or is terminated for
cause.
(7) "Employment agency" or "agency"
means a private personnel service as defined in G.S. 95-47.1(16).
(8) "Existing licensed business," as used in
G.S. 95-47.2(f), means any existing licensed private personnel service or job
listing service.
(9) "Indirectly" being responsible for a fee
to a private personnel service includes the applicant paying, or repaying, any
portion of the fee paid to the private personnel service by the employer or any
other person.
(10) "Material information," as used in G.S.
95-47.2(d)(3)a, and the rules in this Section means any facts or knowledge that
are relevant to operating a private personnel service.
(11) "Meeting between an employer and an
applicant" as used in G.S. 95-47.1(10) and the rules in this Chapter
includes but is not limited to interviews in person, conducted by telephonic
conference, video conference, or other electronic means.
(12) "Operate" means to engage in the business
of a private personnel service within the State of North Carolina. Within the
State of North Carolina includes, but is not limited to, any of the following:
(a) Property, offices, or employees located in
North Carolina;
(b) Use of a North Carolina phone number;
(c) Use of a North Carolina address;
(d) Interviewing applicants in North Carolina;
(e) Placing applicants in North Carolina;
(f) Collecting money from applicants in North
Carolina;
(g) Directing North Carolina applicants to
interviews;
(h) Directing applicants to interviews with
North Carolina employers; and
(i) Advertising in North Carolina.
(13) "Partnership" and "corporation,"
when used in the context of owners of a private personnel service, mean any
similar state-chartered legal entity. Examples of similar state-chartered
legal entities include, but are not limited to, limited liability partnerships
and limited liability corporations.
(14) "Person who uses or attempts to use the
services of a private personnel service" as used in G.S. 95-47.1(2)
includes applicants without regard to how or by whom the contact between the
applicant and the private personnel service is initiated.
(15) "Premises," as used in G.S.
95-47.2(d)(3)c., means the property occupied by any owner or manager of the
private personnel service where the business of the private personnel service
is conducted. Two businesses occupy the same premises if a person can move
from one to the other without traveling through a public area available to
non-customers.
(16) "Private personnel service industry" means
all private personnel services that are or may be required to be licensed to
operate in the State of North Carolina.
(17) "Refund policy" means a voluntary refund
policy adopted by the private personnel service. It does not mean the fee
reimbursement provisions mandated by G.S. 95-47.3A and such a fee reimbursement
shall not be considered as a refund policy which would trigger operation of the
"Termination of Employment" provisions under Rule .0107(f)(6) of this
Section.
(18) "Responsible for the operation" means to
conduct the daily administrative functions required to direct and control the
business. This includes, but is not limited to, current and ongoing knowledge
and oversight of the following: all placement functions; hours the business
operates; hiring, supervision, and dismissal of the business' personnel; the
finances and financial records of the business; advertising; job orders;
compliance with G.S. 95, Article 5A; and the needs of applicants and employers
who work with the business to receive placement and hiring assistance. It
further means that the person is available during working hours to answer
questions and respond to the needs of applicants, employers, the business' own
employees, and the Private Personnel Service Office.
(19) Except in G.S. 95-47.2(d)(1), in G.S.
95-47.2(d)(3)b.2 and in G.S. 95-47.2(d)(3)b.3, "rules",
"regulations", or "rules or regulations" as used in G.S.
95, Article 5A and in this Chapter refer to administrative rules adopted by the
Department of Labor pursuant to G.S. 95, Article 5A and G.S. 150B.
(20) "Temporary help service" means any
business which employs persons whom it assigns to assist its customers. The
employer-employee relationship exists between the temporary help service and
the employee. If a temporary help service ever charges the employee a fee for
help in securing employment with an employer other than itself, then the service
is a private personnel service.
History Note: Authority G.S. 95-47.9;
Eff. February 27, 1995;
Amended Eff. April 1, 2001.
13 NCAC 17 .0102 LICENSING
PROCEDURES
(a) Each application for a private personnel service
license shall be made on forms prescribed and furnished by the Commissioner and
shall contain the following information in addition to the information required
by G.S. 95-47.2:
(1) The proposed mailing address, and telephone
number of the private personnel service;
(2) Four personal or business references who
are not related to or currently employed by the applicant;
(3) Whether the private personnel service will
be affiliated in any way with a loan agency or collection agency;
(4) Whether the private personnel service will
operate under a franchise agreement;
(5) Whether the applicant, owner, officer,
director or manager ever made an application for a license to operate a private
personnel service in North Carolina or elsewhere;
(6) Whether the applicant, owner, officer,
director or manager ever had a license revoked, suspended, or refused, or has
been subjected to any disciplinary action by any governmental body;
(7) Whether the applicant, owner, officer,
director or manager has ever been convicted of a crime other than parking
violations and misdemeanor traffic offenses;
(8) Whether the applicant, owner, officer,
director or manager of the service has any additional ownership investment
interest in other businesses;
(9) The name and address of a newspaper of
general circulation in the area where the applicant now resides;
(10) A copy of all contracts and forms to be used
with applicants;
(11) A copy of the fee schedule and a copy of the
refund policy (if applicable) used with persons seeking employment and
employers;
(12) If the applicant is a corporation, a copy of
the Articles of Incorporation;
(13) If the applicant is a partnership, a copy of
the Partnership Agreement;
(14) The Surety Bond required by G.S. 95-47.2(j);
and
(15) Any other names, aliases, assumed business
names, trade names, or doing business as ("DBA") names under which
each applicant has operated.
(b) Assumed Name or Assumed Business Name. If the private
personnel service has filed an assumed name with the register of deeds in its
county, as required by North Carolina law (G.S. 66-68), the owner must notify
the Division in writing of the assumed name. This notification shall be
considered a request for an amendment to the application.
(c) Release of Information Authorization:
(1) By applicant:
(A) Each applicant for a private personnel service
license shall sign a Release of Information authorizing the Commissioner to
conduct a personal background investigation for purposes of determining the
applicant's suitability to operate a private personnel service.
(B) The release shall be executed before a notary
public.
(2) By officer, director or manager:
(A) The officer, director or manager of a private
personnel service, not covered by Subparagraph (d)(1) of this Rule, shall sign
a Release of Information authorizing the Commissioner to conduct a criminal
background investigation for purposes of determining the suitability of that
person to operate a private personnel service.
(B) The release shall be executed before a notary
public.
(d) Interview with the Division. Each individual applicant
shall come to the Division for an interview as part of the application process.
(e) Right to Protest. Individuals have a right to protest
the issuance of a license in accordance with G.S. 95-47.2(d)(1):
(1) In determining whether the protest is of
such a nature that a hearing should be conducted and for a cause on which
denial of a license may properly be based, the Commissioner will look to the
reasons for denying a license found in G.S. 95-47.2(d)(3) and G.S. 95-47.2(e).
(2) The hearing shall be conducted in
accordance with the provisions of G.S. 150B‑38 through G.S. 150B‑42.
(f) Denial of License. Upon completion of the
investigation, the Commissioner shall determine whether or not a license should
be issued. In addition to the reasons for denial in G.S. 95, Article 5A, a
license shall be denied if the applicant has failed to submit all of the
necessary information and paperwork which is described under Licensing
Procedures in Rule .0102 of this Chapter.
(g) Notice of Approval. If the Commissioner approves a
private personnel service license, the applicant shall be notified and the
license shall be issued.
(h) Notice of Opportunity to Withdraw:
(1) If the application for a license is
incomplete, the applicant shall be notified by telephone of this fact at least
seven days prior to the end of the 30 day investigative period. The applicant
may either complete the application within that seven days or withdraw the
application.
(2) If the applicant elects to withdraw the
application, the Division will deem any supporting documents which the Division
has obtained, such as the criminal background check and references, current for
an additional 30 days within which time the applicant may refile the
application.
(3) Failure to withdraw an incomplete
application (one that omits material information) before the end of the
original 30 day investigative period shall result in the denial of a private
personnel service license. However, the applicant may re-apply.
(i) Notice of Denial. If the Commissioner denies a private
personnel service license, the applicant shall be notified of this fact by
certified mail sent to his or her last known address.
History Note: Authority G.S. 95-47.2; 95-47.3; 95-47.9;
Eff. February 27, 1995.
13 NCAC 17 .0103 DURATION AND RENEWAL OF LICENSE
(a) Period Issued. A license to operate a private
personnel service shall be valid for one year from the date of issuance, which
is the date that appears on the actual license.
(b) Renewal:
(1) At least 60 days prior to the date of
expiration, the Commissioner shall notify each licensee in writing of the
expiration of the license.
(2) Renewal applications, completed on a form
provided by the Private Personnel Service Office, shall be submitted to the
Private Personnel Service Office at least 30 days prior to the expiration date
of the license. The renewal application shall be executed before a notary
public and shall include all material changes in the operation of the private
personnel service from the latest application for licensure or renewal or shall
certify that no such changes have occurred.
(3) The Commissioner shall deny the application
for renewal of license if any grounds exist that would have caused denial of
the original license application or if the private personnel service has any
unrectified violations of G.S. 95, Article 5A or the rules in this Section.
History Note: Authority G.S. 95-47.2; 95-47.9;
Eff. February 27, 1995;
Amended Eff. April 1, 2001.
13 NCAC 17 .0104 CHANGE OF PRIVATE PERSONNEL SERVICE
STATUS
(a) Change of Private Personnel Service Name:
(1) Licensees desiring to change the name of
their private personnel service must give the Commissioner 30 days advance
written notice.
(2) In addition, the licensee must obtain a
rider to the surety bond showing the new name and submit it to the Division
before the new name can become final.
(3) In addition, when a change in name requires
a new filing of an assumed business name, a copy of the new filing must be
provided to the Commissioner before the new name can become final.
(4) A change in the name does not require a new
license, only an amendment to the current license.
(5) After completion of the requirements in
this Paragraph, the licensee shall return his current license to the Division
for such amendment and reissuance.
(b) Change of Private Personnel Service Location:
(1) Licensees desiring to change the location
of their private personnel service must give the Commissioner 30 days advance
written notice.
(2) A change in the location of the private
personnel service does not require a new license, only an amendment to the
current license.
(3) The licensee shall return his current
license to the Division for such amendment and reissuance.
(c) Assignment/Transfer of License:
(1) Licensees desiring to assign or transfer
their license to a new owner must give the Commissioner 30 days advance written
notice.
(2) In addition, the proposed new owner must
file an application for license with the Commissioner and obtain a new surety
bond.
(3) After completion of the requirements in
this Paragraph, the Commissioner shall issue a temporary license in accordance
with G.S. 95-47.2(i).
(d) Relinquishment of License. Licensees desiring to
relinquish their license must:
(1) Notify the Commissioner in writing;
(2) Return the actual license to the Division;
and
(3) Comply with the provisions in G.S. 95-47.5
and Rule .0109 of this Chapter.
(e) Cancellation of the Bond by the Surety:
(1) Upon receipt of a Notice of Cancellation of
the bond by the surety, the Commissioner shall advise the licensee in writing
of such cancellation. The Division must receive a new bond prior to the
effective date of cancellation of the existing bond.
(2) If a new bond is not received prior to the
cancellation of the existing bond, the Commissioner shall advise the licensee
in writing that the Commissioner will seek injunctive relief to suspend
operation of the private personnel service under G.S. 95-47.10 pending receipt
of the surety bond required by G.S. 95-47.2(j).
(3) Failure to maintain the surety bond at all
times shall be grounds for revocation of the license by the Commissioner.
(f) Disassociation of Manager:
(1) Should any manager become disassociated
with a licensee for any reason, the licensee shall notify the Commissioner of
this fact within 10 days and shall at that time designate another manager
unless there was more than one manager and the remaining manager(s) will be
managing the private personnel service without replacement of the
disassociating manager.
(2) A newly designated manager shall sign a
Release of Information authorization pursuant to Rule .0102 of this Chapter.
(3) Upon completion of the investigation and
approval of the newly designated manager, the licensee shall return his current
license to the Division for such amendment and reissuance.
History Note: Authority G.S. 95-47.2; 95-47.9;
Eff. February 27, 1995.
13 NCAC 17 .0105 FEE REIMBURSEMENT
This Rule addresses requests for fee reimbursement by an
applicant who accepts employment, the compensation for which is based, in whole
or in part, on commission and who pays a fee based on the commission-based earnings.
(1) Complaints Against Employers:
(a) Filing the Complaint. Any applicant using a
private personnel service desiring to file a complaint involving a fee
reimbursement from an employer in accordance with G.S. 95-47.3A(a) shall file a
written complaint with the Commissioner, signed before a notary public. The
complaint shall be filed either within 60 days of the date last employed or
after one year of employment, whichever is earlier.
(b) Contents of the Complaint. The complaint
shall state the name and address of the employer complained against, the
licensee's name and address, and shall fully detail the nature of the
complaint.
(c) Copy of Complaint to Employer. When a
complaint is filed, the Commissioner shall serve a copy of the complaint upon
the employer complained against either personally, by certified mail, by
overnight express, or faxed as long as the employer acknowledges receipt.
Likewise, the Commissioner shall send a copy of the complaint by the same means
to the licensee responsible for making the placement. The employer and the
licensee shall respond to the complaint within 10 days of the receipt of the
complaint. The response shall include copies of all written receipts and
agreements which either the employer or the licensee has in its possession
concerning the particular complaint and other material as requested by the
Division.
(2) Complaints Against Private Personnel Services:
(a) Filing the Complaint. Any applicant using a
private personnel service desiring to file a complaint involving a fee
reimbursement where the private personnel service is responsible for any
potential fee reimbursement in accordance with G.S. 95-47.4(h) shall file a
written complaint with the Commissioner, signed before a notary public. The
complaint shall be filed either within 60 days of the date last employed or
after one year of employment, whichever is earlier.
(b) Contents of the Complaint. The complaint
shall state the name and address of the licensee complained against and shall
fully detail the nature of the complaint.
(c) Copy of Complaint to Licensee. When the
complaint is filed, the Commissioner shall serve a copy of the complaint upon
the licensee complained against either personally, by certified mail, by
overnight express, or faxed as long as the licensee acknowledges receipt. The
licensee shall respond to the complaint within 10 days of the receipt of the
complaint. The response shall include copies of all written receipts and
agreements which the licensee has in its possession concerning the particular
complaint and other material as requested by the Division.
(3) Investigation:
(a) The Commissioner shall investigate the
complaint to determine whether the applicant is entitled to a fee
reimbursement.
(b) If the employer is liable for a potential
fee reimbursement, the burden of proof is on the employer to show that a
statement by the employer in the licensee's written job order of potential or
anticipated commission-based earnings is realistic under the circumstances.
(c) If the private personnel service is liable
for a potential fee reimbursement, the burden of proof is on the private
personnel service to show that a statement in the licensee's written job order
of potential or anticipated commission-based earnings is realistic under the
circumstances.
(d) In addition, the Commissioner may consider
such factors including, but not limited to, the following:
(i) What compensation other people in the same
job as the applicant are making or have made;
(ii) The market and economy;
(iii) Competition.
The Commissioner shall look at
these factors in the context of the complainant's job training, relative
experience, number of hours worked, number of calls made in person or over the
phone, and a determination of the complainant's ability and effort to do the
job.
(4) Determination. The Commissioner shall make a
determination within 60 days from the date of the filing of the complaint and
shall notify both the complainant, and either the licensee or the employer, as
is appropriate, of the determination.
(5) Hearing:
(a) Request for Hearing. Either party may file
a written request for a hearing before the Commissioner within seven days from
the receipt of notice of the Commissioner's determination.
(b) Notice of Hearing. Notice of the hearing
shall be given in accordance with G.S. 150B-38.
(c) Conduct of Hearing.
(i) Parties may appear in their own behalf or
be represented by counsel. When an attorney represents a party, he or she
shall advise the Commissioner of his or her name, address and telephone number
in advance of the hearing as soon as practicable after assuming representation.
(ii) All witnesses at the hearing shall testify
under oath or affirmation.
(iii) The Commissioner may issue subpoenas
requiring the attendance and testimony of witnesses and take depositions as
deemed necessary.
(iv) Within 30 days after the conclusion of a
hearing, the Commissioner shall render a decision in writing. Copies of the
Commissioner's findings and order shall be sent by certified mail to the
parties.
(v) A party aggrieved by the Commissioner's
decision may seek a review of the decision in accordance with G.S. 150B‑43
through G.S. 150B‑52.
History Note: Authority G.S. 95-47.3A; 95-47.9;
Eff. February 27, 1995.
13 NCAC 17 .0106 JOB ORDERS
(a) Bona Fide Job Order Required. No private personnel
service shall offer or hold itself out as being able to secure a specific
position of employment for an applicant without having a bona fide job order.
A bona fide job order is one which:
(1) Is recorded on a form;
(2) Contains, at a minimum, the following:
(A) Name and title of the person communicating the job
order to the private personnel service;
(B) Date recorded or last verified, whichever is most
recent;
(C) Name and address of the employer;
(D) Job title and requirements;
(E) Wages or salary, including any bonus that is
included in the stated anticipated annual earnings;
(F) Anticipated hours worked;
(G) Any compensation that is based on commission;
(H) Whether it is the applicant or the employer that is
responsible for the placement fee; and
(I) Name of the person recording the job order.
(b) Private Personnel Service Responsible for Explaining
Conditions of Employment. At a minimum, the private personnel service shall
fully disclose to the applicant all of the required information in Subparagraph
(a)(2) of this Rule. The private personnel service shall ask the employer for
the following information, at a minimum, and shall disclose it to the applicant
if received from the employer:
(1) Name and title of person to whom the
applicant is to report for an interview;
(2) Requisite education and experience; and
(3) All known conditions of employment,
including regular and overtime wages, commissions, benefits, hours, work
schedule, whether overtime is expected, whether overtime is included in the
expected annual earnings and actual days worked per week.
(c) Disclosure requirements. Disclosure required by this
Rule shall occur prior to the applicant's interview with the employer. The
private personnel service shall base its disclosure upon documents received
from the employer or conversations with the employer which shall be reduced to
writing. Disclosure shall be accurate to the best of the private personnel service's
knowledge.
(d) Commission-based Compensation:
(1) If an applicant is to be compensated, in
whole or in part, by commissions and the employer will be responsible for a
potential fee reimbursement, then the job order must also be signed by the employer.
(2) A private personnel service may, however,
forego the written job order requirement if it is willing to assume liability
for a potential fee reimbursement in accordance with G.S. 95-47.4(f) and G.S.
95-47.4(h)(2).
(e) Job Order Verification.
At least once a month, the private personnel service shall verify job orders
for which applicants are referred or for which advertisements are placed.
History Note: Authority G.S. 95-47.3A; 95-47.6;
95-47.9;
Eff. February 27, 1995;
Amended Eff. April 1, 2001.
13 NCAC 17 .0107 CONTRACTS
(a) Types of Contracts. There must be a contract for any
service if a fee is charged to the applicant. An applicant may enter into
either or both of the following types of contracts with a private personnel
service:
(1) A contract for employment placement with
payment of a fee contingent on acceptance of employment;
(2) A fee contract for services including, but
not limited to, career and occupational counseling, resume and letter writing,
networking assistance, interviewing techniques, job prospecting and salary
negotiations.
(b) Applicant to Receive Copy of Contract. At the time of
execution an applicant shall receive a copy of the contract signed by the
applicant and the private personnel service.
(c) Name of Applicant. The applicant's name shall be typed
or printed adjacent to the place for the applicant's signature.
(d) Contract for Employment Placement. All contracts for
employment placement with an applicant shall set forth in clear and unambiguous
terms the respective rights and obligations of the applicant and the private
personnel service and shall include the following:
(1) A statement of the fees to be charged the
applicant at various salary levels;
(2) If compensation is based, in whole or in
part, on commissions, a description of how the private personnel service
determines its fees;
(3) An explanation of when the applicant
becomes obligated to pay a fee;
(4) Where the private personnel service has no
refund policy, yet compensation is based, in whole or in part, on commissions,
the private personnel service must give further information to the applicant in
either the contract or a supplement to the contract that is also executed by
the applicant and the private personnel service (i.e., an addendum on the closing
statement). It shall inform both the applicant and the employer in writing of
the provisions of G.S. 95-47.3A governing fee reimbursements from employers;
(5) If the private personnel service chooses to
be liable for any potential fee reimbursement under G.S. 95-47.3A, the service
must provide to the applicant a clear description of how it provides the fee
reimbursement. This description must be provided in either the contract or a
supplement to the contract that is also executed by the applicant and the
private personnel service (i.e., an addendum on the closing statement). The
following is sample language that will fulfill this requirement:
REIMBURSEMENTS. If the applicant
pays a service fee which is based, in whole or in part, on commissions and the
applicant fails to earn at least 80 percent of the compensation amount stated
by the employer in the job order, the applicant may file a written complaint
with the Department of Labor in accordance with G.S. 95-47.3A. (Name of
private personnel service) shall only pay a reimbursement within 10 days of
receiving a written final determination from the Department of Labor that a
reimbursement is due.
(e) Contract for Other Services. All contracts for other
services with an applicant shall include the following:
(1) A statement of what services will be
provided and the fees for the various services;
(2) A statement that the applicant becomes
obligated to pay a fee once the service(s) is/are provided;
(3) A statement that the private personnel
service does not guarantee that the applicant will obtain employment as a
result of its services.
(f) Definitions. If the following undefined terms or
provisions are used in a contract with an applicant, they shall be deemed to
have the following meanings:
(1) Acceptance - A position is accepted when
the applicant begins work or agrees to begin work on a fixed date at an agreed
remuneration for a specific employer.
(2) Placement or Employment - All placements or
employment shall be considered to be of an indefinite term unless clearly
disclosed in the closing document.
(3) Fee or Service Charge - The amount charged
the applicant for any services rendered by the private personnel service.
(A) A fee or service charge for employment placement is
due:
(i) When the applicant accepts employment as a
result of a referral to an employer by the private personnel service within one
year after the referral.
(ii) When the applicant fails to secure or does not
accept the position to which the applicant was originally referred, but accepts
another position with the employer or with another employer to whom the first
employer refers the applicant within one year as a result, directly or
indirectly, of the original referral.
(B) A fee or service charge for any other service is due
after the service is rendered.
(4) Fee Schedule - A percentage or set fee on
file with, and clearly stated in a manner approved by, the Commissioner for all
fees to be charged the applicant.
(5) Base Salary or Earnings - A fixed
compensation for services paid to a person on a regular basis.
(6) Termination of Employment:
(A) Termination by employer - An employee may be
considered at fault for the following reasons (also includes termination for
cause, discharge for just cause, and similar language):
(i) Willful absence from duty;
(ii) Having been convicted, subsequent to his or her
employment, of a crime reflecting upon his or her employment;
(iii) Being impaired by alcohol or a controlled
substance on the job;
(iv) Being disorderly or insubordinate on the job;
(v) Violating written company policies or rules;
(vi) Misrepresenting or withholding, without the
knowledge of the licensee, any information regarding the applicant's ability to
perform an essential core function with or without an accommodation.
(B) Termination by employee - An employee has "just
cause" (also includes reasonable cause, good cause, justification, and
similar language) for voluntarily terminating employment within the length of
time upon which the fee was based and is due a prorated refund of the fee (if
the private personnel service has a refund policy) when the conditions of
employment were either knowingly misrepresented or withheld from the applicant
by the private personnel service and said conditions would have, if known at
the time of acceptance, caused the applicant to have reasonably refused
employment. Such conditions of employment shall include, but not be limited
to:
(i) Probationary or trial periods;
(ii) Bankruptcy or cessation of operation by the
employer;
(iii) Failure to pay wages when due;
(iv) Conditions at the place of employment which are
injurious to the employee's health or safety;
(v) Change in remuneration or lower status than was
agreed to when the position was accepted.
In calculating the prorated refund, the length of time upon
which the fee was based will be determined in days and that number of days will
be divided into the fee to calculate the fee paid per day. Then the amount of
the refund will be calculated by multiplying the number of days worked by the
fee paid per day and subtracting the result of that multiplication from the
total fee paid. For example, the calculation would be as follows: the fee
paid by the applicant was three thousand six hundred and fifty dollars ($3,650)
and the length of time upon which the fee was based was one year (beginning
January 1) so the fee paid per day was ten dollars ($10); the applicant worked
January 1 through June 30 or 181 days. The number of days worked times the fee
paid per day is one thousand eight hundred and ten dollars ($1,810) which is
subtracted from the fee three thousand six hundred and fifty dollars ($3,650)
for a refund due of one thousand eight hundred and forty dollars ($1,840).
(g) Refund Policy. A private personnel service shall abide
by the refund policy (if any) stated on its contract by paying any refund due
under the terms of the contract within 15 days of:
(1) Receiving a request from any applicant; or
(2) If the refund is in dispute, upon receiving
a written final determination that a refund is due. Such determination may be
issued by the Commissioner, an arbitrator, or a court of law.
History Note: Authority G.S. 95-47.3; 95-47.4; 95-47.9;
Eff. February 27, 1995.
13 NCAC 17 .0108 RECORDS
(a) Job Orders or Job Specifications. Every private
personnel service shall maintain records of job orders or job specifications
for two years from the date on which the job order was last verified.
(b) Licensees Going Out of Business. If a licensee goes
out of business records must be maintained pursuant to this Rule. Those
records must be available to the Commissioner and the licensee must inform the
Commissioner in writing as to where its records will be kept.
History Note: Authority G.S. 95-47.5; 95-47.9;
Eff. February 27, 1995.
13 NCAC 17 .0109 ADVERTISING
(a) Bona Fide Job Order Required. No licensee shall
publish or cause to be published any advertisement soliciting persons to
register for a specific job unless the licensee has on file a bona fide job
order covering all known conditions of employment set forth in the
advertisement.
(b) False or Misleading Advertisements. No licensee shall
circulate any false or misleading information by advertisements or make any
statements known to be false to any applicant or employer.
(c) Advertising of Salaries. All salaries, where the
dollar amount is advertised, must be substantiated by the job order.
History Note: Authority G.S. 95-47.6; 95-47.9;
Eff. February 27, 1995.
13 NCAC 17 .0110 PROHIBITED ACTS
A private personnel service shall not engage in any of the
following activities or conduct:
(1) Accept an advance fee from an applicant for any of
its services;
(2) Coerce an applicant into accepting employment by
applying or using duress, undue influence, fraud or misrepresentation.
History Note: Authority G.S. 95-47.6; 95-47.9;
Eff. February 27, 1995.
13 NCAC 17 .0111 PENALTY
Any fine levied pursuant to G.S. 95-47.9(d) shall be in the
amount of two hundred and fifty dollars ($250.00).
History Note: Authority G.S. 95-47.9;
Eff. February 27, 1995.
SECTION .0200 - GENERAL PROVISIONS
13 NCAC 17 .0201 ACCEPTING FEES FROM APPLICANT AND
EMPLOYER
If a private personnel service accepts a fee in a single
placement from both an applicant and an employer it shall disclose that fact
and the fact that it does not represent the applicant exclusively to the
applicant. The required disclosures shall be in writing.
History Note: Authority G.S. 95-47.2; 95-47.6;
Eff. April 1, 2001.
13 NCAC 17 .0202 ACTIVITIES OF BUSINESS CONSIDERED TO
BE A PRIVATE PERSONNEL SERVICE
(a) A business that engages in the activities below, and is
not covered by G.S. 95-47.1(16)a (16)f; shall be considered to be a private
personnel service if it:
(1) operates in North Carolina;
(2) operates for profit or is a nonprofit
business that charges a fee;
(3) holds, or may hold, the applicant liable
for a direct or indirect fee to the business; and
(4) performs one of the following:
(A) secures employment for the applicant with any
employer other than itself; or
(B) by any form of advertising, holds itself out to
applicants as able to:
(i) secure employment with any employer other than
itself; or
(ii) provide information or service of any kind
purporting to promote, lead to, or result in employment for the applicant with
an employer other than the business itself.
(b) "Secure [or secures] employment for the
applicant," as used in Items (a)(4)(A)and (a)(4)(B)(i) of this Rule means find work
or a job in any location or for any duration. Examples of a business that
secures employment for an applicant may include: employment agency; staffing
service; model or talent agency; job listing service; escort service; computer
consultant; nurses pool; nurses service; medical care service such as
respiratory therapist or home health care agency; companion care service; home,
pet, or baby sitting service; nanny or au pair agency; outplacement service;
head hunter; retained search business; contingency search business; employee
leasing service; career coach; career consultant; or temporary service.
(c) Examples of activities that "provide information
or service of any kind purporting to promote, lead to, or result in employment
for the applicant with an employer other than the business itself" as used
in Subpart (a)(4)(B)(ii) of this Rule shall include, but not be limited to, the
following:
(1) recommending a specific potential employer
to an applicant;
(2) preparing a résumé or cover letters to be
sent to an employer suggested or recommended by the business;
(3) setting up an appointment on behalf of an
applicant, or otherwise making contact with a prospective employer on behalf of
an applicant;
(4) counseling an applicant on techniques for
job search, interview, salary or benefits negotiations, or any other job
seeking methodology to be used with a potential employer suggested or
recommended by the business;
(5) advertising to applicants that the business
can help the applicant find employment. Examples of such advertising include:
"job hunting?" "help people find a job;" "open the
floodgates to employment opportunity;" "take care of the pragmatic
details of career research" or "take care of creation of a client's
personal marketing materials" where the business suggests specific
potential employers; provides access to "inside job leads,"
"unpublished information," or the "hidden job market;" or
provides "outplacement;" or
(6) conducting industry research for an
applicant in order to determine specific potential employers.
(d) The name of the business, or description of services
the business offers, does not control whether the Commissioner finds the
service to be a private personnel service.
History Note: Authority G.S. 95-47.1; 95-47.4; 95-47.6;
Eff. April 1, 2001.
13 NCAC 17 .0203 RESERVED FOR FUTURE CODIFICATION
13 NCAC 17 .0204 REVIEW OF LICENSEE'S RECORDS
In matters relating to complaints, licensure and
re-licensure, the license applicant or private personnel service shall permit
the Commissioner to inspect records required by G.S. 95, Article 5A and the
rules in this Chapter.
History Note: Authority G.S. 95-47.2; 95-47.3A;
95-47.5; 95-47.6; 95-47.8; 95-47.9; 95-47.14; 95-47.15;
Eff. April 1, 2001.
13 NCAC 17 .0205 DISCLOSURE OF FINANCIAL
RELATIONSHIPS
Unless clearly disclosed in writing in advance, the private
personnel service shall not, directly or indirectly, receive a fee from a
collection agency (as defined in G.S. 58-70-15) or a loan agency (as defined in
G.S. 105-88).
History Note: Authority: G.S. 95-47.2; 95-47.3;
95-47.3A; 95-47.4; 95-47.6; 95-47.9;
Eff. April 1, 2001.