Senate Bill sb7062pb

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    Florida Senate - 2005   (PROPOSED COMMITTEE BILL)     SPB 7062

    FOR CONSIDERATION By the Committee on Banking and Insurance





    597-1365A-05

  1                      A bill to be entitled

  2         An act relating to employee leasing companies;

  3         amending s. 468.521, F.S.; revising the

  4         criteria for the appointment of members of the

  5         Board of Employee Leasing Companies; amending

  6         s. 468.525, F.S.; requiring that an applicant

  7         for a renewal license as an employee leasing

  8         company have a specified net worth; deleting

  9         provisions authorizing certain companies to

10         submit financial statements that are reviewed

11         rather than audited by a certified public

12         accountant; amending s. 468.529, F.S.;

13         requiring that an employee leasing company make

14         certain information available to the Division

15         of Workers' Compensation of the Department of

16         Financial Services; providing an administrative

17         fine for failure or refusal to submit the

18         required reports, forms, or notices; amending

19         s. 627.192, F.S.; requiring workers'

20         compensation insurers providing coverage for

21         employee leasing companies to provide certain

22         information to the rating organization;

23         requiring a report by the rating organization

24         to the lessee; providing an effective date.

25  

26  Be It Enacted by the Legislature of the State of Florida:

27  

28         Section 1.  Subsection (2) of section 468.521, Florida

29  Statutes, is amended to read:

30         468.521  Board of Employee Leasing Companies;

31  membership; appointments; terms.--

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    Florida Senate - 2005   (PROPOSED COMMITTEE BILL)     SPB 7062
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 1         (2)  Five members of the board shall be chosen from

 2  individuals already engaged in the employee leasing industry

 3  and must be licensed pursuant to this part. One of the

 4  licensed members must be in an employee leasing company that

 5  has an annual gross Florida payroll for its leased employees

 6  which is among the smallest 20 percent of licensed employee

 7  leasing companies in the state at the time of the member's

 8  appointment and each reappointment. The remaining two board

 9  members must shall be residents of this state and must not be,

10  or ever have been, connected with the business of employee

11  leasing, one of the remaining two board members must represent

12  small employers, and the other remaining board member must

13  have experience in the field of insurance regulation.

14         Section 2.  Paragraphs (b) and (e) of subsection (3) of

15  section 468.525, Florida Statutes, are amended to read:

16         468.525  License requirements.--

17         (3)  Each employee leasing company licensed by the

18  department shall have a registered agent for service of

19  process in this state and at least one licensed controlling

20  person. In addition, each licensed employee leasing company

21  shall comply with the following requirements:

22         (b)  An applicant for an initial or renewal employee

23  leasing company license shall have a tangible accounting net

24  worth of not less than $50,000.

25         (e)  Each employee leasing company or employee leasing

26  company group shall submit annual financial statements audited

27  by an independent certified public accountant, with the

28  application and within 120 days after the end of each fiscal

29  year, in a manner and time prescribed by the board, provided

30  however, that any employee leasing company or employee leasing

31  company group with gross Florida payroll of less than $2.5

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    Florida Senate - 2005   (PROPOSED COMMITTEE BILL)     SPB 7062
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 1  million during any fiscal year may submit financial statements

 2  reviewed by an independent certified public accountant for

 3  that year.

 4         Section 3.  Section 468.529, Florida Statutes, is

 5  amended to read:

 6         468.529  Licensee's insurance; employment tax; benefit

 7  plans.--

 8         (1)  A licensed employee leasing company is the

 9  employer of the leased employees, except that this provision

10  is not intended to affect the determination of any issue

11  arising under Pub. L. No. 93-406, the Employee Retirement

12  Income Security Act, as amended from time to time. An employee

13  leasing company shall be responsible for timely payment of

14  unemployment taxes pursuant to chapter 443, and shall be

15  responsible for providing workers' compensation coverage

16  pursuant to chapter 440. However, no licensed employee leasing

17  company shall sponsor a plan of self-insurance for health

18  benefits, except as may be permitted by the provisions of the

19  Florida Insurance Code or, if applicable, by Pub. L. No.

20  93-406, the Employee Retirement Income Security Act, as

21  amended from time to time. For purposes of this section, a

22  "plan of self-insurance" shall exclude any arrangement where

23  an admitted insurance carrier has issued a policy of insurance

24  primarily responsible for the obligations of the health plan.

25         (2)  An initial or renewal license may not be issued to

26  any employee leasing company unless the employee leasing

27  company first files with the board evidence of workers'

28  compensation coverage for all leased employees in this state.

29  Each employee leasing company shall maintain and make

30  available to its workers' compensation carrier and the

31  

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    Florida Senate - 2005   (PROPOSED COMMITTEE BILL)     SPB 7062
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 1  Division of Workers' Compensation of the Department of

 2  Financial Services the following information:

 3         (a)  The correct name and federal identification number

 4  of each client company.

 5         (b)  A listing of all covered employees provided to

 6  each client company, by classification code.

 7         (c)  The total eligible wages by classification code

 8  and the premiums due to the carrier for the employees provided

 9  to each client company.

10         (3)  A licensed employee leasing company shall within 5

11  30 days after initiation or termination notify its workers'

12  compensation insurance carrier, the Division of Workers'

13  Compensation of the Department of Financial Services, and the

14  state agency providing unemployment tax collection services

15  under contract with the Agency for Workforce Innovation

16  through an interagency agreement pursuant to s. 443.1316 of

17  both the initiation or the termination of the company's

18  relationship with any client company.

19         (4)  Reports, forms, or notices required under

20  subsections (2) and (3) shall be filed with the Division of

21  Workers' Compensation of the Department of Financial Services

22  by employee leasing companies at such times and in such form

23  and format as the Department of Financial Services prescribes

24  by rule. Any employee leasing company that fails or refuses to

25  timely send such reports, forms, or notices required under

26  subsections (2) and (3) shall be subject to an administrative

27  fine by the division not to exceed $1,000 for each failure or

28  refusal.

29         (5)(4)  An initial or renewal license may not be issued

30  to any employee leasing company unless the employee leasing

31  company first provides evidence to the board, as required by

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    Florida Senate - 2005   (PROPOSED COMMITTEE BILL)     SPB 7062
    597-1365A-05




 1  board rule, that the employee leasing company has paid all of

 2  the employee leasing company's obligations for payroll,

 3  payroll-related taxes, workers' compensation insurance, and

 4  employee benefits. All disputed amounts must be disclosed in

 5  the application.

 6         (6)(5)  The provisions of this section are subject to

 7  verification by department or board audit.

 8         Section 4.  Section 627.192, Florida Statutes, is

 9  amended to read:

10         627.192  Workers' compensation insurance; employee

11  leasing arrangements.--

12         (1)  The purpose of this section is to ensure that an

13  employer who leases some or all of its workers properly

14  obtains workers' compensation insurance coverage for all of

15  its employees, including those leased from or coemployed with

16  another entity, and that premium paid by an employee leasing

17  company is commensurate with exposure and anticipated claim

18  experience for all employees.

19         (2)  For purposes of the Florida Insurance Code:

20         (a)  "Employee leasing" shall have the same meaning as

21  set forth in s. 468.520(4).

22         (b)  "Experience rating modification" means a factor

23  applied to a premium to reflect a risk's variation from the

24  average risk. The experience modification is determined by

25  comparing actual losses to expected losses, using the risk's

26  own past experience.

27         (c)  "Leased employee" means a person performing

28  services for a lessee under an employee leasing arrangement.

29         (d)  "Lessee" means an entity which obtains all or part

30  of its workforce from another entity through an employee

31  

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    Florida Senate - 2005   (PROPOSED COMMITTEE BILL)     SPB 7062
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 1  leasing arrangement or which employs the services of an entity

 2  through an employee leasing arrangement.

 3         (e)  "Lessor" means an employee leasing company, as set

 4  forth in part XI of chapter 468, engaged in the business of or

 5  holding itself out as being in the business of employee

 6  leasing. A lessor may also be referred to as an employee

 7  leasing company.

 8         (f)  "Premium subject to dispute" means that the

 9  insured has provided a written notice of dispute to the

10  insurer or service carrier, has initiated any applicable

11  proceeding for resolving such disputes as prescribed by law or

12  rating organization procedures approved by the office, or has

13  initiated litigation regarding the premium dispute. The

14  insured must have detailed the specific areas of dispute and

15  provided an estimate of the premium the insured believes to be

16  correct. The insured must have paid any undisputed portion of

17  the bill.

18         (3)  A lessor that obtains coverage in the voluntary

19  workers' compensation market may elect, with the voluntary

20  market insurer's knowledge and consent, to secure the coverage

21  on leased employees through a workers' compensation policy

22  issued to the lessor. The insurer of the lessor may, in its

23  discretion, take all reasonable steps to ascertain exposure

24  under the policy and collect the appropriate premium by:

25         (a)  Requiring the lessor to provide a complete

26  description of lessor's operations.

27         (b)  Requiring periodic reporting by the lessor of

28  covered lessees' payroll, classifications, claims information,

29  loss data, and jurisdictions with exposure. This reporting may

30  be supplemented by a requirement for lessees to submit to the

31  

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    Florida Senate - 2005   (PROPOSED COMMITTEE BILL)     SPB 7062
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 1  carrier Internal Revenue Service Form 941 or its equivalent on

 2  a quarterly basis.

 3         (c)  Auditing the lessor's operations.

 4         (d)  Using other reasonable measures to determine the

 5  appropriate premium.

 6         (4)  A lessor that applies for coverage or is covered

 7  through the voluntary market shall also maintain and furnish

 8  to the insurer on an annual basis, and as the insurer may

 9  otherwise reasonably require, sufficient information to permit

10  the calculation of an experience modification factor for each

11  lessee upon termination of the employee leasing relationship.

12  The insurer shall periodically report to its rating

13  organization such information submitted by each lessor, as

14  required by the rating organization. Information accruing

15  during the term of the leasing arrangement which is used to

16  calculate an experience modification factor for a lessee upon

17  termination of the leasing relationship shall continue to be

18  used in the future experience ratings of the lessor. If

19  available, the rating organization shall report the experience

20  modification factor for a lessee within 30 days after such a

21  request by the lessee. Such information shall include:

22         (a)  The lessee's corporate name.

23         (b)  The lessee's taxpayer or employer identification

24  number.

25         (c)  Payroll summaries and class codes applicable to

26  each lessee, and, if requested by the insurer, a listing of

27  all leased employees associated with a given lessee.

28         (d)  Claims information grouped by lessee, and any

29  other information maintained by or readily available to the

30  lessor that is necessary for the calculation of an experience

31  modification factor for each lessee.

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    Florida Senate - 2005   (PROPOSED COMMITTEE BILL)     SPB 7062
    597-1365A-05




 1         (5)  In addition to any other provision of law, any

 2  material violation of this section by an employee leasing

 3  company is grounds for cancellation or nonrenewal of the

 4  lessor's insurance policy provided that the employee leasing

 5  company has been provided a reasonable opportunity to cure the

 6  violation. If an employee leasing company has received notice

 7  that its workers' compensation insurance policy will be

 8  canceled or nonrenewed, the leasing company shall notify by

 9  certified mail, within 15 days after receipt of the notice,

10  all of the lessees for which there is an employee leasing

11  arrangement covered under the policy to be canceled, except

12  notice is not required if the employee leasing company has

13  obtained another insurance policy with an effective date that

14  is the same as the date of cancellation or nonrenewal.

15         (6)  If the employee leasing arrangement with a lessee

16  is terminated, the lessee shall be assigned an experience

17  modification factor which reflects its experience during the

18  experience period specified by the approved experience rating

19  plan, including, if applicable, experience incurred for leased

20  employees under the employee leasing arrangements. The

21  employee leasing company shall notify the insurer of its

22  intent to terminate any lessee relationship prior to

23  termination when feasible. When prior notice is not feasible,

24  the employee leasing company shall notify its insurer within 5

25  working days following actual termination.

26         (7)  This section shall not have any effect on the

27  statutory obligation, if any, of a lessee to secure workers'

28  compensation coverage for employees that the lessee does not

29  coemploy or lease pursuant to an employee leasing arrangement.

30         (8)  A lessee shall not enter into an employee leasing

31  relationship or be eligible for workers' compensation coverage

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    Florida Senate - 2005   (PROPOSED COMMITTEE BILL)     SPB 7062
    597-1365A-05




 1  in the voluntary market if the lessee owes its current or a

 2  prior insurer any premium for workers' compensation insurance,

 3  or if the lessee owes its current or prior employee leasing

 4  company amounts due under the service agreement, except for

 5  premium or amounts due that are subject to dispute. For the

 6  purposes of this section and compliance with other laws and

 7  regulations, a lessor may rely on a sworn statement by the

 8  lessee that the lessee has met any and all prior premium or

 9  fee obligations, unless the lessor has actual knowledge to the

10  contrary.

11         (9)  Insurers shall conduct annual audits of payroll

12  and classifications of employee leasing companies in order to

13  ensure that the appropriate premium is charged for workers'

14  compensation coverage. The audits shall be conducted to ensure

15  that all sources of payment by lessors to employees,

16  subcontractors, and independent contractors have been reviewed

17  and the accuracy of classifications of employees has been

18  verified. Insurers may provide for more frequent audits of

19  lessors based on such factors as amount of premium, type of

20  business, loss ratios, or other relevant factors. Payroll and

21  classification verification audit rules of insurers must

22  include, but need not be limited to, use by the insurer of

23  state and federal reports of employee income, payroll and

24  other accounting records, certificates of insurance maintained

25  by subcontractors, and duties of employees.

26         (10)  If a lessor or a lessee fails to provide

27  reasonable access to payroll and classification records for a

28  payroll and classification audit, the insured shall pay a

29  premium to the insurer not to exceed three times the most

30  recent estimated annual premium. However, the lessor is not

31  subject to such penalty if the failure to obtain the needed

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    Florida Senate - 2005   (PROPOSED COMMITTEE BILL)     SPB 7062
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 1  records is the direct result of the acts or omissions of the

 2  lessee.

 3         Section 5.  This act shall take effect January 1, 2006.

 4  

 5            *****************************************

 6                          SENATE SUMMARY

 7    Revises various provisions governing employee leasing
      companies. Revises the membership of the Board of
 8    Employee Leasing Companies. Requires that an employee
      leasing company make certain information available to the
 9    Division of Workers' Compensation of the Department of
      Financial Services. Provides an administrative fine for
10    failure or refusal to submit the required reports, forms,
      or notices. (See bill for details.)
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