H. B. 4376
(By Delegates Ashley, Staton,
Perdue and Amores)
[Introduced February 3, 2000; referred to the
Committee on the Judiciary.]
A BILL to amend article two, chapter twenty-three of the code of
West Virginia, one thousand nine hundred thirty-one, as
amended, by adding thereto a new section, designated section
one-e, relating to providing that workers' compensation
coverage for leased employees is a joint responsibility
between the employee leasing employer and its client employer;
and exempting clients of bona fide temporary help employers
from joint and several liability for temporary workers leased
to the clients.
Be it enacted by the Legislature of West Virginia:
That article two, chapter twenty-three of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto a new section, designated section one-e, to read as follows:
ARTICLE 2. EMPLOYERS AND EMPLOYEES SUBJECT TO CHAPTER;
EXTRATERRITORIAL COVERAGE.
§23-2-1e. Responsibilities relating to leased employees.
(a) For the purposes of this section:
(1) "Client employer" means a person who enters into an
agreement with an employee leasing employer to lease any or all of
its regular employees;
(2) "Employee leasing agreement" means an agreement, executed
between an employee leasing employer and a client employer,
pursuant to which an employee leasing employer provides one or more
individuals to perform services for a client employer on an ongoing
basis;
(3) "Employee leasing employer" means a person engaged in the
business of providing individuals to perform ongoing services for
an indefinite period or an extended period for client employers
pursuant to one or more employee leasing agreements executed
between the leasing employer and the client employer. "Employee
leasing employer" does not include labor organizations; and
(4) "Temporary help employer" means a person who hires its own
employees and provides them to another business entity as temporary full or part-time personnel to provide services for a brief finite
period in special or unusual situations such as employee absences,
temporary skill shortages, seasonal workloads and special work
assignments and projects. A temporary help employer is presumed to
be an employee leasing employer until it demonstrates to the
commissioner, that it is not an employee leasing employer, pursuant
to subsection (f) of this section.
(b) There is joint and several liability between an employee
leasing employer and its client employers for all employer
responsibilities provided in this chapter on account of an
individual leased to a client employer. If the employee leasing
employer and client employer have a written employee leasing
agreement providing the employee leasing employer is responsible
for all employer responsibilities under this chapter and a copy of
the contract is filed with the commissioner, the commissioner shall
first look to the employer leasing employer when enforcing
provisions of this chapter. In the event the employee leasing
employer does not meet its obligations under this chapter in a
timely manner the commissioner shall notify the client employer who
shall comply with the obligations. The commissioner shall maintain
any agreement provided under this subsection as a confidential document. An agreement submitted under this subsection is exempt
from the public disclosure requirements contained in article one,
chapter twenty-nine-b of this code.
(c) The premium tax due on account of a leased employee shall
be determined and paid based on the experience rating of the client
employer for which the leased employee performs services, if the
client employer has sufficient experience to be rated, otherwise
the premium tax shall be the rate approved for an employer that is
not experience rated.
(d) The commissioner shall administer this section and shall
propose rules for approval by the compensation programs performance
council in accordance with the provisions of section seven,
article three, chapter twenty-one-a of this code, to carry out the
provisions of this section.
(e) Both the employee leasing employer and its client employer
are entitled to the protections provided in this chapter for
employers if they are otherwise eligible for those protections
under the other provisions of this chapter.
(f) There is an affirmative requirement placed on every
temporary help employer to establish to the satisfaction of the
commissioner, using a procedure to be established by the commissioner, that it is not an employee leasing employer. The
commissioner shall treat a temporary help employer as an employee
leasing employer, until it satisfies this requirement. An employer
claiming to be a temporary help employer on the effective day of
this section has until the thirtieth day of October, two thousand,
to meet the requirement of this subsection if it chooses not to be
treated as an employee leasing employer.
(g) An employer using the services of a bona fide temporary
help employer is not jointly and severally liable with the
temporary help employer for all employer responsibilities provided
in this chapter on account of a worker leased to the employer,
unless the commissioner determines an employer-employee
relationship exists between the leasing employer and the temporary
worker using the usual common law rule applicable in determining
when an employer-employee relationship exists.
(h) The commissioner may propose rules for approval by the
compensation programs performance council in accordance with the
provisions of section seven, article three, chapter twenty-one-a
of this code, to further distinguish employee leasing employers
from temporary help employers.
(i) The provisions of this section are in addition to, and do not alter, the usual common law rule applicable in determining
when an employer-employee relationship exists.
NOTE: The purpose of this bill is to specify that providing
Workers' Compensation coverage for leased employees is a joint
responsibility between the employee leasing employer and its client
employer.
This section is new; therefore, strike-throughs and
underscoring have been omitted.