(1) Except
to the extent otherwise expressly provided by the applicable professional
employer agreement:
(a) a client shall be
solely responsible for the quality, adequacy or safety of the goods or service
produced or sold in the client's business;
(b) a client shall be solely responsible for
directing, supervising, training and controlling the work of the covered
employees with respect to the business activities of the client and solely
responsible for the acts, errors or omissions of the covered employees with
regard to such activities;
(c) a
client shall be solely responsible for the payment of any wages to covered
employees and to make payments for employee benefits for covered
employees;
(d) a client shall be
solely responsible for safety, risk and hazard control at the worksite and
compliance with related state and federal laws;
(e) upon termination of the PEO relationship,
the client shall be solely responsible for providing employees with information
regarding the handling of claims and benefits;
(f) a client shall not be liable for the
acts, errors or omissions of a PEO, or of any covered employee of the client
and a PEO, when such covered employee is acting under the express direction and
control of the PEO;
(g) a PEO shall
not be liable for the acts, errors or omissions of a client, or of any covered
employee of the client, when such covered employee is acting under the express
direction and control of the client;
(h) nothing in 454 CMR 30.07(1) shall serve
to limit any contractual liability or obligation specifically provided in the
written professional employer agreement;
(i) a covered employee shall not be, solely
as the result of being a covered employee of a PEO, an employee of the PEO for
purposes of general liability insurance, fidelity bonds, surety bonds,
employer's liability that is not covered by workers' compensation or liquor
liability insurance carried by the PEO unless the covered employees are
included by specific reference in the professional employer agreement and
applicable prearranged employment contract, insurance contract or
bond;
(j) nothing in 454 CMR
30.07(1) shall in any way limit the liabilities and obligations of any PEO or
client to covered employees as required by 454 CMR 30.00;
(k) the client shall be solely responsible
for notifying the PEO of all covered employees; provided however, that where
the client has failed to notify the PEO, the client will be deemed to be the
sole employer of the employee; and
(l) the client shall retain all records in
compliance with state and federal law including, but not limited to M.G.L. c.
149, § 52C, M.G.L. c. 151, § 15, and 29 CFR Part 516; provided,
however, that if an obligation under 454 CMR 30.07(1) is allocated to a PEO
under the professional service agreement, the PEO shall disclose to a covered
employee, upon request, the documents retained under 454 CMR 30.07(1) as
required by state and federal law.
(2)
Workers
Compensation. Workers' compensation shall be provided to covered
employees at each client company either by the PEO or by the client company of
the covered employee pursuant to the Workers' Compensation Law, M.G.L. c. 152.
The professional employer agreement shall specify the allocation of
responsibilities between the PEO and the client for workplace safety, risk and
hazard control including the responsibility for disclosing information about
workplace injuries and illness required by the federal Occupational Safety and
Health Act and for performing workplace safety inspections of all premises
where covered employees are employed. To the extent the PEO has assumed
responsibility in the professional employer agreement, the PEO shall maintain
responsibility for the management of workers' compensation claims.
(a) Where the PEO has workers' compensation
coverage and has executed an alternate employer endorsement naming the client
as an additional insured, both the client and the PEO shall be considered the
employer for purpose of coverage under M.G.L. c. 152.
(b) Where the client has workers'
compensation coverage and has executed an alternate employer endorsement naming
the PEO as an additional insured, both the client and the PEO shall be
considered the employer for the purpose of coverage under M.G.L. c.
152.
(3)
Unemployment Insurance. For purposes of the
Unemployment Insurance law, M.G.L. c. 151A, covered employees of a PEO shall be
considered the employees of the client and the PEO shall be responsible for the
payment of contributions, penalties and interest on wages paid by the PEO to
its covered employees during the term of the applicable professional employer
agreement.
The PEO shall report and pay all required contributions to the
Department of Unemployment Assistance using the state employer account number
and the experience rate of the client company pursuant to the Unemployment
Insurance law, and the regulations promulgated pursuant to M.G.L. c.
151A.
(4)
Employment Benefits and Protections. Except as
otherwise provided in this chapter, for the purposes of federal, state or local
laws relating to employee count including, but not limited to, paid and unpaid
leave, health and transportation benefits and protection under fair employment
laws, the employee count shall include all of the client company's employees,
including the client's employees who are covered employees under the PEO
relationship between the client and the PEO.
