H*2777 Session 104 (1981-1982)
H*2777(Rat #0157, Act #0107 of 1981) General Bill, By H.C. Granger
A Bill to amend Chapter 25 of Title 41, as amended, Code of Laws of South
Carolina, 1976, relating to private employment agencies, so as to remove
licensing and enforcement procedures from the Department of Labor and
establish new procedures for such agencies under the Secretary of State and to
change the method of enforcing the present requirements relating to the duties
of licensees, records, prohibited conduct, enforcement and the Employment
Agency Board.-at
04/14/81 House Introduced and read first time HJ-1818
04/14/81 House Referred to Committee on Labor, Commerce and
Industry HJ-1819
04/28/81 House Committee report: Favorable Labor, Commerce and
Industry HJ-2069
04/30/81 House Amended HJ-2156
04/30/81 House Read second time HJ-2157
05/01/81 House Read third time and sent to Senate HJ-2187
05/05/81 Senate Introduced and read first time SJ-4
05/05/81 Senate Referred to Committee on Labor, Commerce and
Industry SJ-4
05/27/81 Senate Committee report: Favorable Labor, Commerce and
Industry SJ-25
05/28/81 Senate Read second time SJ-17
06/02/81 Senate Read third time and enrolled SJ-11
06/10/81 House Ratified R 157 HJ-3169
06/12/81 Signed By Governor
06/12/81 Effective date 06/12/81
06/12/81 Act No. 107
06/25/81 Copies available
(A107, R157, H2777)
AN ACT TO AMEND CHAPTER 25 OF TITLE 41, AS AMENDED, CODE OF LAWS OF SOUTH
CAROLINA, 1976, RELATING TO PRIVATE EMPLOYMENT AGENCIES, SO AS TO REMOVE
LICENSING AND ENFORCEMENT PROCEDURES FROM THE DEPARTMENT OF LABOR AND ESTABLISH
NEW PROCEDURES FOR SUCH AGENCIES UNDER THE SECRETARY OF STATE AND TO CHANGE THE
METHOD OF ENFORCING THE PRESENT REQUIREMENTS RELATING TO THE DUTIES OF LICENSEES,
RECORDS, PROHIBITED CONDUCT, ENFORCEMENT AND THE EMPLOYMENT AGENCY BOARD.
Be it enacted by the General Assembly of the State of South Carolina:
Private employment agencies
SECTION 1. Chapter 25 of Title 41 of the 1976 Code, as last amended by Act 553
of 1978, is further amended to read:
"CHAPTER 25
Private Personnel Agencies
Section 41-25-10. This chapter may be cited as the 'South Carolina Private
Personnel Agency Act'.
Section 41-25-20. For the purposes of this chapter:
(a) 'Secretary' means the Secretary of State or his designated representative.
(b) 'Personnel agency' shall include any person who charges fees, all or any
part of which is in consideration of such person procuring or attempting to
procure employment for applicants seeking employment and for procuring or
attempting to procure employees for employers seeking applicants, unless covered
under other provisions of law.
(c) 'Personnel agency' shall not include:
(1) Any placement office conducted by an incorporated bar association,
hospital, association of registered professional nurses, registered medical
institution, or by an incorporated association or society of professional
engineers, or by an incorporated association or society of land surveyors, or by
an incorporated association or society of registered architects;
(2) Any organization operated by or under the exclusive control of a bona
fide nonprofit education, religious, charitable or eleemosynary institution;
(3) Temporary help services;
(4) Any organization operated by a governmental authority.
(d) 'Placement fee' means any thing of value, paid, or directed to be paid,
including retainer fees, for the service of procuring or attempting to procure
employment for persons seeking employment or for procuring or attempting to
procure employees for employers seeking applicants.
(e) 'Person' means any individual, company, society, association, corporation,
manager, contractor, subcontractor, partnership, bureau, agency, service, office
or the agent or employee of the foregoing.
(f) 'Applicant' means anyone performing or seeking to perform work, service or
labor of any kind and who had for this purpose visited or contacted an employment
agency.
(g) 'Employer' means any person who engages or who seeks to engage applicants
for employment.
Section 41-25-30. (a) No person shall engage in the personnel agency business
in this State unless he has first procured a license for such agency as provided
in this chapter.
(b) An application for license shall be made to the Secretary for each
location. If the agency is owned by an individual, Ille application shall be made
by him; if it is owned by a partnership, the application shall be made by all of
the partners; if it is owned by a corporation, association or society, the
application shall be made by the president, vice-president, secretary and
treasurer and by any person owning twenty percent or more of the stock thereof.
(c) Each application shall be written and in such form as may be prescribed by
the Secretary and shall state the name and address of the applicant; the name
under which the agency is to be conducted; the street and number of the building
or place where the business is to be conducted; the business or occupations
engaged in by the applicant previously; whether the applicant has previously held
or applied, whether granted or denied, for a personnel agency license anywhere
within the United States, its possessions or territories the name and address of
the individual who will actually direct and operate the placement activities of
the agency; and the name and present address of the last employer of such
individual; a verification from a newspaper of the greatest circulation in the
county of the applicant's location that a Public Notification containing the
information required in the application has been included in such newspaper on
at least one occasion prior to the filing; and a certification by a duly licensed
member of the South Carolina Bar that all requirements of the laws of the State
of South Carolina have been met.
(d) The application shall be accompanied by a fee in the amount of fifty
dollars and verification of bond in the amount of three thousand dollars or other
security in an amount equal to twenty-five thousand dollars, in a form approved
by the Attorney General deposited with the Secretary. The aggregate liability of
the surety for all breaches of the conditions of the bond shall, in no event,
exceed the sum of such bond. The surety on the bond shall have the right to
cancel such bond upon giving thirty days notice to the Secretary and thereafter
shall be relieved of liability for any breach of condition occurring after the
effective date of such cancellation. The application fee shall be paid only with
the initial application by an agency. Every personnel agency shall file with the
Secretary a license update between January first and January fifteenth of each
year.
(e) All claims or suits brought against any licensee may be brought in the name
of the person damaged upon the bond deposited with the Secretary and may be
transferred and assigned as other claims for damages in civil suits. The amount
of damages claimed by the plaintiff, and not the penalty designated in the bond,
shall determine the jurisdiction of the court in which the action is brought. If
a licensee has departed from the State with intent to defraud his creditors or
to avoid the service of a summons in an action brought under this section,
service shall be made upon the surety. A copy of the summons shall be mailed to
the last known post office address of the residence of the licensee as shown by
the records of the Secretary. Such service shall be deemed to be made when not
less than the number of days shall have intervened between the date of service
and the return of the same as provided by law.
(f) No license shall be granted to conduct an agency in a residence or rooms
used for living purposes or where boarders or lodgers are kept or where meals are
served or where persons sleep or, in connection with a building or premises where
intoxicating liquors are sold to be consumed on premises, except cafes and
restaurants in office buildings.
(g) No license may be issued if the applicant has had a previous application
which was denied or a license which has been revoked. No person shall own, either
wholly or in part, nor manage an employment agency who has previously been denied
or had revoked his license to operate an employment agency.
Section 41-25-40. Every licensed employment agency in the State shall:
(a) Openly and in a place accessible to applicants and employees alike, display
the agency's license.
(b) Make available to each applicant a copy of every contract between the
agency and the applicant which shall have printed on it or attached to it a copy
of the fee and placement fee schedules of the employment agency.
(c) Guarantee, to the applicant through contractual agreement between the
agency and the applicant who pays a placement fee, every job placement for a
minimum period of ninety calendar days. Should the position end in less than
ninety calendar days, regardless of the cause for termination, the fee or service
charge for services rendered shall be adjusted to and shall not exceed the amount
of the original fee prorated over ninety calendar days from the beginning date
of employment. Should the applicant not report for work, regardless of the
reason, there shall be no fee charged to the applicant.
Section 41-25-50. Any person who acts as a personnel agency in the State, or
his employees may not:
(a) Knowingly induce or attempt to induce an employee to quit his employment
for the purpose of obtaining other employment through such agency; provided,
however, nothing herein shall be construed as prohibiting any personnel agency
from assisting any employee in obtaining other employment if such agency has been
so requested by the employee or when the employee is not to be charged a fee. No
personnel agency shall knowingly induce or attempt to induce any employee it has
placed to leave that employment unless it is requested to do so by the employee
and he shall have first contacted the personnel agency.
(b) Knowingly publish or cause to be published any false, fraudulent or
misleading information, representation, promise, notice or advertisement.
(c) Refer any employee or applicant for employment to a place where a strike
or lockout exists without furnishing the employee or applicant with a written
statement as to the existence of such strike or lockout, if the agency had
knowledge of such facts.
(d) Send or cause to be sent any applicant to any place the employment agency
knows or reasonably should have known is maintained for immoral or illicit
purposes.
(e) Impose a fee for the registration of an applicant except for the furnishing
of an employment referral that results in the applicant obtaining employment.
(f) Engage or attempt to engage in splitting or sharing, with an employer, an
agent or other employee of an employer, or other person to whom personnel service
has been furnished, a payment received by a personnel agency from a person
seeking employment or from an employer.
(g) Procure or attempt to procure the discharge of a person from his current
employment.
(h) Advertise in any media, including a newspaper, trade publication,
billboard, radio, television, card, printed notice, circular, contract,
letterhead, or any other material made for public distribution, except an
envelope, without clearly stating that the advertisement is by a firm providing
a private personnel service, either by stating the firm name or using the words
'personnel agency' in the advertisement.
(i) Use or cause to be used any fictitious name as a contact person for an
applicant or employer or a name which is not the correct name of the personnel
agency itself or the individual employee within the agency who is handling the
job order.
Section 41-25-60. Any person or employer seeking employees or a person seeking
employment shall not:
(a) Make any false statement or conceal any material fact for the purpose of
obtaining employees, or employment, by or through a private personnel agency.
(b) Engage or attempt to engage in the splitting or sharing of fees or payments
for services of a personnel service with any person to whom this act is
applicable.
(c) Intentionally or knowingly refuse to pay any fee due to an agency for a
placement made with such employer.
Section 41-25-70. Any person who knowingly violates Sections 41-25-30,
41-25-40, 41-25-50 or 41-25-60 shall be deemed guilty of a misdemeanor and, upon
conviction, shall be fined not more than five hundred dollars or be imprisoned
for not more than one year, or both. In addition, anyone convicted of the
violations shall forfeit his right to operate as a private personnel agency and
shall immediately surrender his license to the Secretary. Failure to so surrender
shall subject the licensee to a misdemeanor with the same penalty as above
prescribed in this section with each day of noncompliance constituting a separate
offense.
Section 41-25-80. (a) A person who knowingly violates Sections 41-25-50 and
41-25-60 shall be liable to the person adversely affected by the violation for
three times the amount of actual damages incurred plus court costs and reasonable
attorneys' fees.
(b) In an action filed under this section, a plaintiff may seek and the court,
in its discretion, may grant:
(1) An order enjoining the defendant in the suit from violating Sections
41-25-50 and 41-25-60;
(2) Any order necessary to restore to the person any property acquired by the
defendant in the suit in violation of Sections 41-25-50 and 41-25-60;
(3) Other relief that the court considers proper, including, if the court's
judgement against the defendant in the suit is not satisfied within three months
after the date of the final judgment, the appointment of a receiver, the
revocation of a license or certificate authorizing the defendant in the suit to
engage in business in this State, or an order enjoining the defendant in the suit
from acting as a personnel service.
Section 41-25-90. The provisions of this chapter may be enforced by any state
agency having jurisdiction and authority to enforce this chapter, including, but
not limited to:
(a) Secretary of State
(b) Department of Labor
(c) Attorney General
(d) Department of Consumer Affairs
(e) South Carolina Law Enforcement Division
(f) Circuit solicitors
(g) Local law enforcement agencies
(h) Any person who has been damaged by or has knowledge of any violation of
the provisions of this chapter."
Time effective
SECTION 2. This act shall take effect upon approval by the Governor. |