Section .0100 – Private Personnel Services Regulations

Link to law: http://reports.oah.state.nc.us/ncac/title 13 - labor/chapter 17 - private personnel services/chapter 17 rules.html
Published: 2015

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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.