16 TAC §§72.1, 72.10, 72.20, 72.70, 72.71, 72.81, 72.90
The Texas Department of Licensing and Regulation ("Department")
adopts amendments to existing rules at 16 Texas Administrative Code, §§72.1,
72.10, 72.20, 72.70, 72.71, 72.81, and 72.90, regarding the staff leasing
services program. Section 72.70 is adopted with changes to the text as published
in the December 5, 2003, issue of the
Texas Register
(28 TexReg 10857). Sections 72.1, 72.10, 72.20, 72.71, 72.81, and
72.90 are adopted without changes and will not be republished.
The rules are amended to correct references to statutes and rules and to
make changes to reflect statutory changes made by Senate Bill 279, Acts of
the 78th Legislature. The rules are amended in several places to replace the
term "commissioner" with "executive director" and to remove unnecessary and
duplicative language.
The amendments are made to implement provisions of Senate Bill 279, 78th
Legislature, including the change from two-year licenses to one-year licenses,
and to update statutory references. The Department also deletes language in §72.90
(b) and (c) concerning administrative penalties and sanctions because the
procedures for an administrative hearing are defined in the Government Code
and in other rules regarding department procedures.
The rule adoption is necessary to make the rules concise and to make them
more accurately reflect the statute.
The Department drafted and distributed the proposed rules to persons internal
and external to the agency. Written comments were received from a staff leasing
company concerning
§72.70. Responsibility of
Licensee.
The commenter suggested including language to clarify that
even though the licensee must notify each assigned employee in writing of
its obligation to pay wages, a staff leasing services company may process
payments for wages it has not contracted to pay at the request or direction
of its clients. The Department agrees and has made the appropriate changes.
The commenter also suggested clarifying what medium can be used to provide
notice to each assigned employee of its obligation to pay wages as required
by Section 91.302(c) of the Code. The Department agrees and has incorporated
the suggested changes.
The amendments are adopted under Texas Labor Code, Chapter 92
and Texas Occupations Code, Chapter 51, which authorizes the Department to
adopt rules as necessary to implement this chapter and any other law establishing
a program regulated by the Department.
The statutory provisions affected by the adoption are those set forth in
Texas Labor Code, Chapter 92 and Texas Occupations Code, Chapter 51. No other
statutes, articles, or codes are affected by the adoption.
§72.70.Responsibility of Licensee.
(a)
All licensees shall notify assigned employees and clients
of the name, mailing address, and telephone number of the department. The
notice shall also contain a statement that unresolved complaints concerning
a licensee or questions concerning the regulation of staff leasing services
may be addressed to the department. All licensees shall notify in writing
each assigned employee that, pursuant to §91.032(c) of the Code, a client
company is solely obligated to pay any wages for which:
(1)
obligation to pay is created by an agreement, contract,
plan, or policy between the client company and the assigned employee; and
(2)
the staff leasing services company has not contracted to
pay.
(A)
Notwithstanding §72.70(a), the staff leasing company
may process payments for wages that it has not contracted to pay at the request
or direction of clients.
(B)
The notice required by §72.70(a) shall be made a part
of all contractual agreements between licensees and clients. The notification
shall appear in a typeface no smaller than the body of the contract and shall
be printed in bold face, all capital letters or contrasting color of ink,
so as to be set out from the surrounding written material in a conspicuous
manner.
(C)
Each assigned employee of a licensee shall be provided
the notice required by subsection (a). The notice shall be provided either
as:
(i)
a wallet size card;
(ii)
a notice printed not less often than once every six months
on a pay stub; or
(iii)
a separate piece of paper provided to the assigned employee
which may be part of a contract or other agreement with the assigned employee.
(D)
The licensee shall have each assigned employee sign a document
indicating they received the required notification set forth in §72.70(a),
which shall be kept on file for two years after employment is terminated.
The signed notice may be included as part of a contract or other agreement
with the assigned employee or may be a separate document.
(b)
License applications and licensee information required
on the application shall be updated within 45 days after any material change
to any of the information provided on original or renewal applications.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on March 12, 2004.
TRD-200401868
William H. Kuntz, Jr.
Executive Director
Texas Department of Licensing and Regulation
Effective date: April 1, 2004
Proposal publication date: December 5, 2003
For further information, please call: (512) 463-7348