H*2887 Session 106 (1985-1986)
H*2887(Rat #0228, Act #0149 of 1985) General Bill, By
House Labor, Commerce and Industry
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 rename the
Chapter "The South Carolina Private Personnel Placement Services Act"; to
raise the initial application fee from fifty to two hundred dollars and to
make the application fee nonrefundable; to require an initial fee of fifty
dollars; to require a thirty-day waiting period for a license; to give the
Secretary of State authority on the basis of noncompliance or written
complaint to deny issuance or to revoke the license; to prohibit a surety on
the bond required for a license from cancelling the bond without permission of
the Secretary of State; to make failure to maintain in effect the required
bond grounds for revoking a license; to require an annual license renewal fee
of fifty dollars during the month of December and to make failure to pay the
annual license fee and other noncompliance factors reasons for denying or
revoking a license; to require notice to be sent to the Secretary of State
when changing a location; to require a license be returned to the Secretary of
State when a business is closed or sold; to make a license nontransferable; to
provide that private personnel placement services may not charge an applicant
a fee until a service has been rendered that resulted in the applicant
accepting and commencing employment, advertise without stating the personnel
placement service name and clearly identifying itself as a private personnel
placement service; to provide that private personnel placement services
outside the boundaries of this State may not be allowed by an advertiser in
this State to advertise without stating the firm's name and address and using
wording that identifies it as a private personnel placement service; to
provide that certain private personnel placement information is confidential
belonging to the personnel service and provide protection against removal or
use of the information by former employees; and to provide that all private
personnel agencies licensed as of effective date of this Act are not required
to apply for a new license.
04/24/85 House Introduced, read first time, placed on calendar
without reference HJ-2654
04/30/85 House Debate adjourned HJ-2752
04/30/85 House Reconsidered HJ-2754
04/30/85 House Read second time HJ-2755
05/01/85 House Read third time and sent to Senate HJ-2796
05/02/85 Senate Introduced and read first time SJ-1913
05/02/85 Senate Referred to Committee on Labor, Commerce and
Industry SJ-1914
05/08/85 Senate Committee report: Favorable Labor, Commerce and
Industry SJ-1985
05/30/85 Senate Read second time SJ-2402
05/30/85 Senate Unanimous consent for third reading on next
legislative day SJ-2404
05/31/85 Senate Read third time and enrolled SJ-2429
06/06/85 Ratified R 228
06/11/85 Signed By Governor
06/11/85 Effective date 06/11/85
06/11/85 Act No. 149
06/19/85 Copies available
(A149, R228, H2887)
AN ACT TO AMEND CHAPTER 25 OF TITLE 41, AS AMENDED, CODE OF LAWS OF SOUTH
CAROLINA, 1976, RELATING TO PRIVATE EMPLOYMENT AGENCIES, SO AS TO RENAME THE
CHAPTER "THE SOUTH CAROLINA PRIVATE PERSONNEL PLACEMENT SERVICES ACT";
TO RAISE THE INITIAL APPLICATION FEE FROM FIFTY TO TWO HUNDRED DOLLARS AND TO
MAKE THE APPLICATION FEE NONREFUNDABLE; TO REQUIRE AN INITIAL FEE OF FIFTY
DOLLARS; TO REQUIRE A THIRTY-DAY WAITING PERIOD FOR A LICENSE; TO GIVE THE
SECRETARY OF STATE AUTHORITY ON THE BASIS OF NONCOMPLIANCE OR WRITTEN COMPLAINT
TO DENY ISSUANCE OR TO REVOKE THE LICENSE; TO PROHIBIT A SURETY ON THE BOND
REQUIRED FOR A LICENSE FROM CANCELLING THE BOND WITHOUT PERMISSION OF THE
SECRETARY OF STATE; TO MAKE FAILURE TO MAINTAIN IN EFFECT THE REQUIRED BOND
GROUNDS FOR REVOKING A LICENSE; TO REQUIRE AN ANNUAL LICENSE RENEWAL FEE OF FIFTY
DOLLARS DURING THE MONTH OF DECEMBER AND TO MAKE FAILURE TO PAY THE ANNUAL
LICENSE FEE AND OTHER NONCOMPLIANCE FACTORS REASONS FOR DENYING OR REVOKING A
LICENSE; TO REQUIRE NOTICE TO BE SENT TO THE SECRETARY OF STATE WHEN CHANGING A
LOCATION; TO REQUIRE A LICENSE BE RETURNED TO THE SECRETARY OF STATE WHEN A
BUSINESS IS CLOSED OR SOLD; TO MAKE A LICENSE NONTRANSFERABLE; TO PROVIDE THAT
PRIVATE PERSONNEL PLACEMENT SERVICES MAY NOT CHARGE AN APPLICANT A FEE UNTIL A
SERVICE HAS BEEN RENDERED THAT RESULTED IN THE APPLICANT ACCEPTING AND COMMENCING
EMPLOYMENT, ADVERTISE WITHOUT STATING THE PERSONNEL PLACEMENT SERVICE NAME AND
CLEARLY IDENTIFYING ITSELF AS A PRIVATE PERSONNEL PLACEMENT SERVICE; TO PROVIDE
THAT PRIVATE PERSONNEL PLACEMENT SERVICES OUTSIDE THE BOUNDARIES OF THIS STATE
MAY NOT BE ALLOWED BY AN ADVERTISER IN THIS STATE TO ADVERTISE WITHOUT STATING
THE FIRM'S NAME AND ADDRESS AND USING WORDING THAT IDENTIFIES IT AS A PRIVATE
PERSONNEL PLACEMENT SERVICE; TO PROVIDE THAT CERTAIN PRIVATE PERSONNEL PLACEMENT
INFORMATION IS CONFIDENTIAL BELONGING TO THE PERSONNEL SERVICE AND PROVIDE
PROTECTION AGAINST REMOVAL OR USE OF THE INFORMATION BY FORMER EMPLOYEES; AND TO
PROVIDE THAT ALL PRIVATE PERSONNEL AGENCIES LICENSED AS OF EFFECTIVE DATE OF THIS
ACT ARE NOT REQUIRED TO APPLY FOR A NEW LICENSE.
Be it enacted by the General Assembly of the State of South Carolina:
Private Personnel Placement Services Act enacted
SECTION 1. Chapter 25 of Title 41 of the 1976 Code, as last amended by Act 107
of 1981, is amended to read:
"CHAPTER 25
Private Personnel Placement Services
Section 41-25-10. This chapter may be cited as the 'South Carolina Private
Personnel Placement Services Act'.
Section 41-25-20. For the purposes of this chapter:
(a) 'Secretary' means the Secretary of State or his designated representative.
(b) 'Private Personnel Placement Service' includes any person who charges fees,
whether direct or indirect all or any part of which may be in consideration of
the person procuring or attempting to procure employment for applicants seeking
employment and for procuring or attempting to procure employees for employers
seeking applicants, regardless of what the services are called, which shall
include, but not be restricted to, executive search firms, outplacement services,
career counseling services, consultants or resume services that perform job
market sourcing for applicants, corporate or private business services, and other
professional consultants and all who market or advertise personnel services on
a 'third party' basis, unless covered under other provisions of law.
(c) 'Private Personnel Placement Service' does not include:
(1) Any placement office conducted by an incorporated bar association,
hospital, association of registered professional nurses, registered medical
institution, or by an incorporated association or society of professional
engineers, or by an incorporated association or society of land surveyors, or by
an incorporated association or society of registered architects;
(2) Any organization operated by or under the exclusive control of a bona
fide nonprofit educational, religious, charitable, or eleemosynary institution;
(3) Temporary help services;
(4) Any organization operated by a governmental authority.
(d) 'Placement fee' means any thing of value, paid, or directed to be paid,
including retainer fees, for the service of procuring or attempting to procure
employment for persons seeking employment or for procuring or attempting to
procure employees for employers seeking applicants or charges by persons
performing services as defined in item (b) of this section.
(e) 'Person' means any individual, company, society, association, corporation,
manager, contractor, subcontractor, partnership, bureau, agency, service, office
or the agent or employee of the foregoing.
(f) 'Applicant' means anyone performing or seeking to perform work, service,
or labor of any kind and, who had, for this purpose visited or been in contact
with a Private Personnel Placement Service.
(g) 'Employer' means any person who engages or who seeks to engage applicants
for employment.
Section 41-25-30. (a) No person or firm shall engage in the private personnel
placement service business in South Carolina unless the person or firm has a
current license for the business as provided in this chapter.
(b) An application for license must be made to the Secretary for each
location. If the agency is owned by an individual, the application must be made
by him; if it is owned by a partnership, the application must be made by all of
the partners; if it is owned by a corporation, association, or society, the
application must be made by the president, vice-president, secretary, and
treasurer, and by any person owning twenty percent or more of the stock.
(c) Each application must be written and in such form as may be prescribed by
the Secretary and shall state the name and address of the applicant; the name
under which the agency is to be conducted; the street and number of the building
or place where the business is to be conducted; the business or occupations
engaged in by the applicant previously; whether the applicant has previously held
or applied, whether granted or denied, for a private personnel placement service
license anywhere within the United States, its possessions or territories; the
name and address of the individual who will actually direct and operate the
placement activities; and the name and present address of the last employer of
the individual; a verification from a newspaper of the greatest circulation in
the county of the applicant's location that a public notification containing the
information required in the application has been included in the newspaper on at
least one occasion prior to the filing; and a certification by a duly licensed
member of the South Carolina Bar that all requirements of the laws of the State
of South Carolina have been met.
(d) The application must be accompanied by an application fee in the amount
of two hundred dollars and a license fee of fifty dollars and verification of a
surety bond in the amount of three thousand dollars or other security in an
amount equal to twenty-five thousand dollars, in a form approved by the Attorney
General and deposited with the Secretary. The Secretary shall issue a license
after a thirty-day waiting period following receipt of the application unless
there is a reason for the Secretary to believe on the basis of a complaint and
investigation that the applicant is not in compliance with the provisions of this
chapter. The application for a license must be denied and the license fee
refunded if the Secretary determines that the applicant is not in compliance.
The application fee may not be refunded.
(e) The aggregate liability of the surety for all breaches of the bond may not
exceed the sum of the bond. The surety on the bond shall have the right to
cancel the bond upon giving thirty days written notice to the Secretary and the
Private Personnel Placement Service and thereafter is relieved of liability for
any breach of condition occurring after the effective date of the cancellation.
Failure to maintain a surety bond in force or have other security filed with the
Secretary equal to twenty-five thousand dollars constitutes disqualification for
retaining a license. The Secretary shall allow ten working days, after
notification to the licensee for requalification before revoking that license.
The business may not operate until proof of surety bond, or other security equal
to twenty-five thousand dollars has been established with the Secretary.
(f) All licenses are issued for a period of one year beginning January first
through December thirty-first unless turned in or revoked by the Secretary. All
licenses must be renewed annually.
(g) The Secretary shall mail annual license renewal forms to the last known
address of each licensee by November first. If license renewal forms are not
received by any licensee for any cause, then that licensee must request a license
renewal form from the Secretary's office. Every licensee shall file an annual
license renewal in a form and manner suitable to the Secretary postmarked not
later than the last day of December. The renewal form must be accompanied by a
renewal fee of fifty dollars. If license renewal forms are not received by the
Secretary's office the first week of January, the Secretary shall notify the
licensee in writing that the licensee must pay a fifty dollar late penalty and
that the licensee has thirty days from the date of notice for that licensee to
comply with licensing requirements. If compliance is not met within the
specified time, the Secretary shall deny license renewal, return the license fee,
and notify that business to cease operation and make public notification of
closure of the service in the newspaper of the greatest circulation in the county
in which it is located.
(h) If a written complaint by any person to the Secretary reveals that a
licensee or firm is not in compliance with the provisions of Section 41-25-30,
the Secretary shall notify the licensee or firm of the alleged violation in
writing and allow thirty days from the date of notice for response and compliance
to the provisions of this chapter. If no response is received within thirty
days, the Secretary shall investigate the alleged violation and if the licensee
or firm is found to be in violation of the provisions of this chapter, deny or
revoke that license.
(i) All claims or suits brought against any licensee may be brought in the
name of the person damaged upon the bond deposited with the Secretary and may be
transferred and assigned as other claims for damages in civil suits. The amount
of damages claimed by the plaintiff, and not the penalty designated in the bond,
shall determine the jurisdiction of the court in which the action is brought.
If a licensee has departed from the State with intent to defraud his creditors
or to avoid the service of a summons in an action brought under this section,
service must be made upon the surety. A copy of the summons must be mailed to
the last known post office address of the residence of the licensee as shown by
the records of the Secretary.
The service must be deemed to be made when not less than the number of days
shall have intervened between the date of service and the return of the same as
provided by law.
(j) No license may be granted to conduct a private personnel placement service
in a residence or rooms used for living purposes or where boarders or lodgers are
kept or where meals are served or where persons sleep or, in connection with a
building or premises where intoxicating liquors are sold to be consumed on
premises, except cafes and restaurants in office buildings.
(k) No license may be issued if the applicant has had a previous application
which was denied or a license which has been revoked. No person shall own,
either wholly or in part, nor manage a private personnel placement service who
has previously been denied or had revoked his license to operate a private
personnel placement service. The Secretary, depending upon the seriousness of
the offense causing the denial or revocation of the license, may, after a
suitable period of three months to one year, allow the person, upon full
compliance, to reapply for a license.
(l) If a licensee relocates its offices prior to the filing of the annual
renewal notice, that licensee shall submit a written notice of the change of
address to the Secretary containing a notarized statement that the new location
conforms to licensing requirements.
(m) If a licensee ceases to operate or goes out of business, that licensee
shall notify the Secretary in writing of such action and shall return the license
to the Secretary.
(n) If a business is sold to a new owner, the previous owner will notify the
Secretary in writing of such action and shall return the license to the Secretary
and state to whom the business is being sold. That business may not operate
until the new owner has obtained a new license.
(o) Private Personnel Placement Services licenses are absolutely and
unconditionally nontransferable.
Section 41-25-40. Every licensed private personnel placement service in the
State shall:
(a) Openly and in a place accessible to applicants and employees alike,
display the license.
(b) Make available to each applicant a copy of every contract between the
private personnel placement service and the applicant which shall have printed
on it or attached to it a copy of the fee and placement fee schedules.
(c) Guarantee, to the applicant through contractual agreement between the
private personnel placement service and the applicant who pays a placement fee,
every job placement for a minimum period of ninety calendar days. Should the
position end in less than ninety calendar days, regardless of the cause for
termination, the fee or service charge for services rendered must be adjusted to
and shall not exceed the amount of the original fee prorated over ninety calendar
days from the beginning date of employment. Should the applicant not report for
work, regardless of the reason, there may be no fee charged to the applicant.
Section 41-25-50. Any person who acts as a private personnel placement service
in the State, or his employees may not:
(a) Knowingly induce or attempt to induce any employee it has placed to leave
that employment unless it is requested to do so by the employee and he has first
contacted the private personnel placement service.
(b) Knowingly publish or cause to be published any false, fraudulent or
misleading information, representation, promise, notice, or advertisement.
(c) Knowingly refer any employee or applicant for employment to a place where
a strike or lockout exists without furnishing the employee or applicant with a
written statement as to the existence of the strike or lockout, if the agency had
knowledge of the facts.
(d) Knowingly send or cause to be sent any applicant to any place the private
personnel placement service knows or reasonably should have known is maintained
for immoral or illicit purposes.
(e) Impose a fee for the registration of an applicant.
(f) Impose a fee to an applicant for placement services or job referral or
employment consulting services except when the services rendered result in that
applicant accepting employment and establishes a confirmed starting date.
(g) Engage or attempt to engage in splitting or sharing, with an employer, an
agent or other employee of an employer, or other person to whom private personnel
placement service has been furnished, a payment received by a private personnel
placement service from a person seeking employment or from an employer.
(h) Procure or attempt to procure the discharge of a person from his current
employment.
(i) Advertise in any media, including a newspaper, trade publication,
billboard, radio, television, card, printed notice, circular, contract,
letterhead, or any other material made for public distribution, except an
envelope, without stating the firm name and if the firm name does not include
words identifying it as providing private personnel placement service then
additional words must be used such as Personnel Agency, Personnel Consultant, Fee
Paid, or other wording that establishes the identity as a Private Personnel
Placement Service in the advertisement.
(j) Conduct placement services from any location other than the location
stated on the license.
(k) Use or cause to be used any fictitious name as a contact person for an
applicant or employer or a name which is not the correct name of the private
personnel placement service itself or the individual employee within the service
who is handling the job order.
Section 41-25-60. Any person who acts as a private personnel placement service
doing business in South Carolina but is located outside the jurisdiction of the
other provisions of this chapter may not be allowed to advertise by any media,
including a newspaper, trade publication, billboard, radio, television, card,
printed notice, circular, contract, letterhead, or any other material made for
public distribution, except an envelope, without clearly stating that the
advertisement is by a firm providing private personnel placement services,
stating the firm name, address, and using the words personnel placement service,
personnel agency, consultants, fee paid, or other wording that establishes the
identity as a private personnel placement service in the advertisement, if the
firm name does not include such words.
Section 41-25-70. Any person or employer seeking employees or a person seeking
employment shall not:
(a) Make any false statement or conceal any material fact for the purpose of
obtaining employees, or employment, by or through a private personnel placement
service.
(b) Engage or attempt to engage in the splitting or sharing of fees or
payments for services of a private personnel placement service with any person
to whom this chapter is applicable.
(c) Intentionally or knowingly refuse to pay any fee due to a private
personnel placement service for placement services rendered.
Section 41-25-80. Private personnel placement service information is
confidential, and must be considered and protected as follows:
All records and files of the private personnel placement service of all
applicants, all customers, all job orders, which include their names, addresses,
telephone numbers, and all related data for each, is confidential and belongs to
the firm regardless of the medium on which it is recorded. The improper use or
removal from the firm of all or any part of this data by a current or former
employee is prohibited without written authority from the owner of the private
personnel placement service and its use by a former employee is prohibited for
a period of one hundred and eighty days from the date of that person's separation
from the firm.
Section 41-25-90. Any person who knowingly violates Sections 41-25-30, 41-25-40,
41-25-50, 41-25-60, 41-25-70, or 41-25-80 is guilty of a misdemeanor and, upon
conviction, must be fined not more than five hundred dollars or be imprisoned for
not more than one year, or both. In addition, anyone convicted of the violations
must be denied his right to operate as a private personnel placement service and
shall immediately surrender his license to the Secretary.
Failure to surrender the license shall subject the licensee to a misdemeanor
with the same penalty as above prescribed in this section with each day of
noncompliance constituting a separate offense.
Section 41-25-100. (a) A person who knowingly violates Sections 41-25-50,
41-25-60, 41-25-70, and 41-25-80 is liable to the person adversely affected by
the violation for three times the amount of actual damages incurred plus court
costs and reasonable attorneys' fees.
(b) In an action filed under this section, a plaintiff may seek and the court,
in its discretion, may grant:
(1) An order enjoining the defendant in the suit from violating Sections
41-25-50, 41-25-60, 41-25-70, and 41-25-80;
(2) Any order necessary to restore to the person any property acquired by the
defendant in the suit in violation of Sections 41-25-50, 41-25-60, 41-25-70, and
41-25-80; or
(3) Other relief that the court considers proper, including, if the court's
judgment against the defendant in the suit is not satisfied within three months
after the date of the final judgment, the appointment of a receiver, the
revocation of a license or certificate authorizing the defendant in the suit to
engage in business in this State, or an order enjoining the defendant in the suit
from acting as a personnel service.
Section 41-25-110. The provisions of this chapter may be enforced by any state
agency having jurisdiction and authority to enforce this chapter, including, but
not limited to:
(a) Secretary of State
(b) Department of Labor
(c) Attorney General
(d) Department of Consumer Affairs
(e) South Carolina Law Enforcement Division
(f) Circuit solicitors
(g) Local law enforcement agencies
(h) Any person who has been damaged by or has knowledge of any violation of the
provisions of this chapter."
Applicability of provisions
SECTION 2. The provisions of this act apply to all private personnel placement
services licensed as of passage of this act, except that those already licensed
are not required to apply for a new license.
Time effective
SECTION 3. This act shall take effect upon approval by the Governor. |