Law:Title 15. Occupations Related To Employment (Texas)

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Contents

Chapter 2501. Personnel Services

Subchapter A. General Provisions

Section  2501.001.  Definitions.

In this chapter:

(1)  "Applicant" means a person who:

(A)  engages the services of a personnel service to secure employment; or

(B)  is placed with an employer by a personnel service.

(2)  "Commission" means the Texas Commission of Licensing and Regulation.

(3)  "Counselor" means a person who:

(A)  interviews and refers an applicant to a prospective employer; or

(B)  solicits job orders from an employer.

(3-a)  "Department" means the Texas Department of Licensing and Regulation.

(4)  "Employer" means a person who employs or seeks to employ an employee.

(4-a)  "Executive director" means the executive director of the department.

(5)  "Fee" means anything of value, including valuable consideration or a service or the promise of valuable consideration or a service, directly or indirectly received by a personnel service as payment from a person seeking employment.

(6)  "Job order" means a verbal or written notice of a job opening from an employer.

(7)  "Owner" means a person who possesses a proprietary interest in a personnel service.

(8)  "Person" means an individual, partnership, association, corporation, legal representative, trustee in bankruptcy, or receiver.

(9)  "Personnel service" means a person who, regardless of whether for a fee, directly or indirectly offers or attempts to obtain permanent employment for an applicant or obtains or attempts to obtain a permanent employee for an employer. The term does not include a newspaper of general circulation or other publication that primarily communicates information, other than information relating to employment positions, and that does not claim to adapt the information provided to the needs or desires of an individual applicant. The term includes a person who offers the facilities of or advertises as:

(A)  an executive search or consulting service;

(B)  an out-placement service;

(C)  an overseas placement service;

(D)  a job listing service;

(E)  a personnel consulting service; or

(F)  a resume service that provides job market investigation, research, or evaluation.

(10)  "Service file" means a job order, resume, application, workpaper, or other record containing information relating to:

(A)  an applicant;

(B)  an employer;

(C)  an employment position; or

(D)  the operation of a personnel service.

Added by Acts 2001, 77th Leg., ch. 1421, Sec. 6, eff. June 1, 2003. Amended by Acts 2003, 78th Leg., ch. 816, Sec. 11.001, eff. Sept. 1, 2003.



Section  2501.002.  Exception.

This chapter does not apply to:

(1)  a personnel service operated by the United States, this state, or a municipality of this state;

(2)  a personnel service operated by a person who does not assess a fee if the personnel service is operated in conjunction with the person's own business exclusively to employ help for that business;

(3)  a labor union; or

(4)  a professional counselor licensed under Chapter 503.

Added by Acts 2001, 77th Leg., ch. 1421, Sec. 6, eff. June 1, 2003.



Subchapter B. Certificate Of Authority

Section  2501.051.  Certificate Required.

A person may not own a personnel service that operates in this state unless the person holds a certificate of authority issued under this chapter.

Added by Acts 2001, 77th Leg., ch. 1421, Sec. 6, eff. June 1, 2003.



Section  2501.052.  Management Search Consultants.

(a) In this section, "management search consultant" means a personnel service that:

(1)  is retained by, acts solely on behalf of, and is compensated only by an employer; and

(2)  does not directly or indirectly collect a fee from an applicant as payment for a service performed by the personnel service.

(b)  This subchapter does not apply to a management search consultant.

Added by Acts 2001, 77th Leg., ch. 1421, Sec. 6, eff. June 1, 2003.



Section  2501.053.  Notice.

(a) Not later than the 30th day before the date a personnel service begins operating in this state, the owner of the service must file notice with the executive director.

(b)  The notice must include:

(1)  the address of each location at which the personnel service is to operate its business on a daily basis;

(2)  the assumed name, if any, under which the personnel service will operate;

(3)  the name and residence address of each owner; and

(4)  a statement that each owner has read and is familiar with this chapter.

(c)  The notice must be signed and sworn to by the owner before a notary public or other officer authorized to administer oaths.

Added by Acts 2001, 77th Leg., ch. 1421, Sec. 6, eff. June 1, 2003. Amended by Acts 2003, 78th Leg., ch. 816, Sec. 26.070, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1276, Sec. 14A.702, eff. Sept. 1, 2003.



Section  2501.054.  Security Required.

(a) An owner who files a notice under Section 2501.053 shall file with the notice a bond in the amount of $5,000 that is:

(1)  executed with a good and sufficient surety;

(2)  payable to the state; and

(3)  conditioned that the obligor will not violate this chapter.

(b)  In lieu of a bond under Subsection (a), the owner may deposit $5,000 in cash.

(c)  A bond filed under Subsection (a) must state that a person aggrieved by a violation of this chapter by the principal or an agent or representative of the principal is entitled to bring an action on the bond.

(d)  An owner of a personnel service may satisfy the requirements of this section by filing one bond for the personnel service, regardless of the number of locations at which the personnel service is to operate its business on a daily basis.

Added by Acts 2001, 77th Leg., ch. 1421, Sec. 6, eff. June 1, 2003.



Section  2501.055.  Issuance Of Certificate; Term.

(a) On receipt of a notice filed under Section 2501.053, the executive director shall issue to the owner a certificate of authority to do business as a personnel service not later than the 15th day after the date the notice is filed if the owner:

(1)  pays the filing fee required for the certificate; and

(2)  complies with the requirements of Section 2501.054.

(b)  A certificate of authority is valid for the period set by the Texas Commission of Licensing and Regulation.

Added by Acts 2001, 77th Leg., ch. 1421, Sec. 6, eff. June 1, 2003. Amended by Acts 2003, 78th Leg., ch. 816, Sec. 26.071, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1276, Sec. 14A.703, eff. Sept. 1, 2003.



Section  2501.056.  Display Of Certificate.

An owner shall display a certificate of authority issued under this chapter in a prominent place in each location at which the personnel service operates its business on a daily basis.

Added by Acts 2001, 77th Leg., ch. 1421, Sec. 6, eff. June 1, 2003.



Section  2501.057.  Renewal Of Certificate.

The executive director shall issue a renewal of a certificate of authority on the receipt of:

(1)  a renewal notice from the owner that contains the information required by Section 2501.053;

(2)  a renewal fee; and

(3)  security that complies with Section 2501.054.

Added by Acts 2001, 77th Leg., ch. 1421, Sec. 6, eff. June 1, 2003. Amended by Acts 2003, 78th Leg., ch. 816, Sec. 26.072, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1276, Sec. 14A.704, eff. Sept. 1, 2003.



Subchapter C. Prohibited Practices

Section  2501.101.  Prohibited Practices.

(a) An owner, operator, counselor, agent, or employee of a personnel service may not:

(1)  share or attempt to share a fee paid by a person seeking employment or an employer with an employer or an agent or employee of an employer or another person provided services by the personnel service;

(2)  make or cause to be made a false promise, misrepresentation, or misleading statement or give or cause to be given misleading information to an applicant;

(3)  refer an applicant to an employer unless the personnel service has a job order for the referral;

(4)  advertise a position unless the personnel service has a job order verifiable by the employer;

(5)  procure or attempt to procure the discharge of a person from the person's current employment;

(6)  induce, solicit, or attempt to induce or solicit an employee to terminate current employment in order to obtain new employment if the current employment was obtained through that personnel service or a personnel service that has a common ownership with that personnel service unless the employee initiates the new contact;

(7)  deliver, disclose, distribute, or otherwise communicate to or receive from a person a service file or information contained in a service file, except as authorized by the personnel service that owns the file;

(8)  advertise in any medium, 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;

(9)  refer an applicant to a place where the personnel service has knowledge of the existence of a strike or lockout unless the personnel service informs the applicant in writing of the strike or lockout before the referral is made; or

(10)  refer an applicant to employment harmful to the applicant's health or morals if the personnel service has knowledge of the harmful condition.

(b)  An employer or a person seeking employment may not:

(1)  make a false statement or conceal any material fact to obtain an employee or employment by or through a personnel service; or

(2)  share or attempt to share with a person subject to this chapter a fee paid or another payment made for the services of a personnel service.

Added by Acts 2001, 77th Leg., ch. 1421, Sec. 6, eff. June 1, 2003.



Section  2501.102.  Imposition Of Fee Prohibited Before Employment Offer Accepted.

Notwithstanding any refund policy, an owner, operator, counselor, agent, or employee of a personnel service may not impose a fee on an applicant until the applicant accepts an offer of employment resulting from an employment referral made by the personnel service.

Added by Acts 2001, 77th Leg., ch. 1421, Sec. 6, eff. June 1, 2003.



Section  2501.103.  Charging Of Fee In Excess Of Certain Amount Prohibited If Employment Terminated.

An owner, operator, counselor, agent, or employee of a personnel service may not charge an applicant a fee that exceeds 20 percent of the applicant's gross wages if:

(1)  the employment accepted by the applicant as a result of a referral by the personnel service lasts less than 30 days; and

(2)  the applicant terminates the employment for good cause.

Added by Acts 2001, 77th Leg., ch. 1421, Sec. 6, eff. June 1, 2003.



Subchapter D. Enforcement

Section  2501.151.  Enforcement.

(a) The executive director shall enforce Section 2501.102 and may investigate a personnel service as necessary to enforce that section.

(b)  The attorney general shall assist the executive director on request.

Added by Acts 2001, 77th Leg., ch. 1421, Sec. 6, eff. June 1, 2003. Amended by Acts 2003, 78th Leg., ch. 816, Sec. 26.074, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1276, Sec. 14A.707, eff. Sept. 1, 2003.



Section  2501.152.  Complaint And Investigation. (a)

A person may file with the executive director a complaint alleging a violation of Section 2501.102.

(b)  On receipt of a complaint, the executive director shall investigate the alleged violation and may:

(1)  inspect any records relevant to the complaint; and

(2)  subpoena those records and any necessary witnesses.

Added by Acts 2001, 77th Leg., ch. 1421, Sec. 6, eff. June 1, 2003. Amended by Acts 2003, 78th Leg., ch. 816, Sec. 11.002, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1276, Sec. 14A.707, eff. Sept. 1, 2003.



Section  2501.153.  Hearing.

(a) If the executive director determines as a result of an investigation that a violation of Section 2501.102 may have occurred, the commission shall hold a hearing.

(b)  A hearing under this section shall be conducted in the manner provided for a contested case under Chapter 2001, Government Code.

(c)  The commission shall render a decision on the alleged violation after the hearing is concluded.

Added by Acts 2001, 77th Leg., ch. 1421, Sec. 6, eff. June 1, 2003. Amended by Acts 2003, 78th Leg., ch. 816, Sec. 11.003, eff. Sept. 1, 2003.



Section  2501.154.  Sanctions.

(a) If, after a hearing, the commission determines that a personnel service has violated Section 2501.102, the commission may, as appropriate:

(1)  issue a warning to the personnel service; or

(2)  suspend or revoke the certificate of authority issued to the personnel service.

(b)  If, after a hearing, the commission determines that a personnel service has violated Section 2501.102, the commission may award the complainant an amount equal to the amount of the fee charged by the personnel service.

Added by Acts 2001, 77th Leg., ch. 1421, Sec. 6, eff. June 1, 2003. Amended by Acts 2003, 78th Leg., ch. 816, Sec. 11.004, eff. Sept. 1, 2003.



Subchapter E. Civil Liability

Section  2501.201.  Liability For Damages.

(a) In this section, "knowingly" means actual awareness of the act or practice that is the alleged violation. Actual awareness may be inferred if any objective manifestation indicates that the person acted with actual awareness.

(b)  A person who violates this chapter is liable to a person adversely affected by the violation for:

(1)  actual damages; or

(2)  if the person adversely affected establishes that the violation was committed knowingly, three times the amount of actual damages.

(c)  Damages recoverable in an action under this section are subject to reduction by an amount equal to an amount awarded under Section 2501.154 based on the same conduct.

Added by Acts 2001, 77th Leg., ch. 1421, Sec. 6, eff. June 1, 2003.



Section  2501.202.  Injunction And Other Remedies.

A plaintiff in an action filed under Section 2501.201 may obtain:

(1)  an order enjoining the defendant from violating this chapter;

(2)  any order necessary to restore to the plaintiff any property acquired by the defendant in violation of this chapter; or

(3)  other relief the court considers proper, including:

(A)  the appointment of a receiver if the judgment against the defendant is not satisfied within three months after the date of the final judgment;

(B)  the revocation of a certificate authorizing the defendant to engage in business in this state; or

(C)  an order enjoining the defendant from acting as a personnel service.

Added by Acts 2001, 77th Leg., ch. 1421, Sec. 6, eff. June 1, 2003.



Section  2501.203.  Award Of Attorney's Fees.

(a) A plaintiff who prevails in an action filed under Section 2501.201 is entitled to receive court costs and reasonable and necessary attorney's fees.

(b)  On finding that an action filed under Section 2501.201 is groundless and was brought in bad faith or for the purpose of harassment, the court may award court costs and reasonable attorney's fees to the defendant.

Added by Acts 2001, 77th Leg., ch. 1421, Sec. 6, eff. June 1, 2003.



Section  2501.204.  Deceptive Trade Practice.

A violation of this chapter is a false, misleading, or deceptive act or practice within the meaning of Section 17.46, Business & Commerce Code, and any public or private right or remedy authorized by Subchapter E, Chapter 17, Business & Commerce Code, may be used to enforce this chapter.

Added by Acts 2001, 77th Leg., ch. 1421, Sec. 6, eff. June 1, 2003.



Subchapter F. Penalties

Section  2501.251.  Criminal Penalty.

(a) A person commits an offense if the person knowingly violates this chapter.

(b)  An offense under this section is a Class A misdemeanor.

Added by Acts 2001, 77th Leg., ch. 1421, Sec. 6, eff. June 1, 2003.



Section  2501.252.  Trade Secret.

A service file is a trade secret for purposes of Section 31.05, Penal Code.

Added by Acts 2001, 77th Leg., ch. 1421, Sec. 6, eff. June 1, 2003.



Section  2501.253.  Administrative Penalty.

(a) In addition to the amount awarded to a complainant under Section 2501.154(b), the executive director may impose on the personnel service an administrative penalty equal to two times the amount awarded under that subsection. A penalty collected under this section shall be deposited in the state treasury.

(b)  A penalty imposed under this section is in lieu of a criminal penalty provided by this chapter for a violation of Section 2501.102.

Added by Acts 2001, 77th Leg., ch. 1421, Sec. 6, eff. June 1, 2003. Amended by Acts 2003, 78th Leg., ch. 816, Sec. 26.075, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1276, Sec. 14A.710, eff. Sept. 1, 2003.



Section  2501.254.  Effect On Other Remedies And Enforcement Powers.

This chapter does not affect a public or private remedy or enforcement power available under other law.

Added by Acts 2001, 77th Leg., ch. 1421, Sec. 6, eff. June 1, 2003.


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