Current through Register Vol. 39, No. 6, September 16, 2024
(a) Types of
Contracts. There must be a contract for any service if a fee is charged to the
applicant. An applicant may enter into either or both of the following types of
contracts with a private personnel service:
(1) A contract for employment placement with
payment of a fee contingent on acceptance of employment;
(2) A fee contract for services including,
but not limited to, career and occupational counseling, resume and letter
writing, networking assistance, interviewing techniques, job prospecting and
salary negotiations.
(b)
Applicant to Receive Copy of Contract. At the time of execution an applicant
shall receive a copy of the contract signed by the applicant and the private
personnel service.
(c) Name of
Applicant. The applicant's name shall be typed or printed adjacent to the place
for the applicant's signature.
(d)
Contract for Employment Placement. All contracts for employment placement with
an applicant shall set forth in clear and unambiguous terms the respective
rights and obligations of the applicant and the private personnel service and
shall include the following:
(1) A statement
of the fees to be charged the applicant at various salary levels;
(2) If compensation is based, in whole or in
part, on commissions, a description of how the private personnel service
determines its fees;
(3) An
explanation of when the applicant becomes obligated to pay a fee;
(4) Where the private personnel service has
no refund policy, yet compensation is based, in whole or in part, on
commissions, the private personnel service must give further information to the
applicant in either the contract or a supplement to the contract that is also
executed by the applicant and the private personnel service (i.e., an addendum
on the closing statement). It shall inform both the applicant and the employer
in writing of the provisions of
G.S.
95-47.3A governing fee reimbursements from
employers;
(5) If the private
personnel service chooses to be liable for any potential fee reimbursement
under G.S. 95-47.3A, the service must
provide to the applicant a clear description of how it provides the fee
reimbursement. This description must be provided in either the contract or a
supplement to the contract that is also executed by the applicant and the
private personnel service (i.e., an addendum on the closing statement). The
following is sample language that will fulfill this requirement:
REIMBURSEMENTS. If the applicant pays a service fee which is
based, in whole or in part, on commissions and the applicant fails to earn at
least 80 percent of the compensation amount stated by the employer in the job
order, the applicant may file a written complaint with the Department of Labor
in accordance with
G.S.
95-47.3A. (Name of private personnel service)
shall only pay a reimbursement within 10 days of receiving a written final
determination from the Department of Labor that a reimbursement is due.
(e) Contract for Other
Services. All contracts for other services with an applicant shall include the
following:
(1) A statement of what services
will be provided and the fees for the various services;
(2) A statement that the applicant becomes
obligated to pay a fee once the service(s) is/are provided;
(3) A statement that the private personnel
service does not guarantee that the applicant will obtain employment as a
result of its services.
(f) Definitions. If the following undefined
terms or provisions are used in a contract with an applicant, they shall be
deemed to have the following meanings:
(1)
Acceptance - A position is accepted when the applicant begins work or agrees to
begin work on a fixed date at an agreed remuneration for a specific
employer.
(2) Placement or
Employment - All placements or employment shall be considered to be of an
indefinite term unless clearly disclosed in the closing document.
(3) Fee or Service Charge - The amount
charged the applicant for any services rendered by the private personnel
service.
(A) A fee or service charge for
employment placement is due:
(i) When the
applicant accepts employment as a result of a referral to an employer by the
private personnel service within one year after the referral.
(ii) When the applicant fails to secure or
does not accept the position to which the applicant was originally referred,
but accepts another position with the employer or with another employer to whom
the first employer refers the applicant within one year as a result, directly
or indirectly, of the original referral.
(B) A fee or service charge for any other
service is due after the service is rendered.
(4) Fee Schedule - A percentage or set fee on
file with, and clearly stated in a manner approved by, the Commissioner for all
fees to be charged the applicant.
(5) Base Salary or Earnings - A fixed
compensation for services paid to a person on a regular basis.
(6) Termination of Employment:
(A) Termination by employer - An employee may
be considered at fault for the following reasons (also includes termination for
cause, discharge for just cause, and similar language):
(i) Willful absence from duty;
(ii) Having been convicted, subsequent to his
or her employment, of a crime reflecting upon his or her employment;
(iii) Being impaired by alcohol or a
controlled substance on the job;
(iv) Being disorderly or insubordinate on the
job;
(v) Violating written company
policies or rules;
(vi)
Misrepresenting or withholding, without the knowledge of the licensee, any
information regarding the applicant's ability to perform an essential core
function with or without an accommodation.
(B) Termination by employee - An employee has
"just cause" (also includes reasonable cause, good cause, justification, and
similar language) for voluntarily terminating employment within the length of
time upon which the fee was based and is due a prorated refund of the fee (if
the private personnel service has a refund policy) when the conditions of
employment were either knowingly misrepresented or withheld from the applicant
by the private personnel service and said conditions would have, if known at
the time of acceptance, caused the applicant to have reasonably refused
employment. Such conditions of employment shall include, but not be limited to:
(i) Probationary or trial periods;
(ii) Bankruptcy or cessation of operation by
the employer;
(iii) Failure to pay
wages when due;
(iv) Conditions at
the place of employment which are injurious to the employee's health or
safety;
(v) Change in remuneration
or lower status than was agreed to when the position was accepted.
In calculating the prorated refund, the length of time upon
which the fee was based will be determined in days and that number of days will
be divided into the fee to calculate the fee paid per day. Then the amount of
the refund will be calculated by multiplying the number of days worked by the
fee paid per day and subtracting the result of that multiplication from the
total fee paid. For example, the calculation would be as follows: the fee paid
by the applicant was three thousand six hundred and fifty dollars ($3,650) and
the length of time upon which the fee was based was one year (beginning January
1) so the fee paid per day was ten dollars ($10); the applicant worked January
1 through June 30 or 181 days. The number of days worked times the fee paid per
day is one thousand eight hundred and ten dollars ($1,810) which is subtracted
from the fee three thousand six hundred and fifty dollars ($3,650) for a refund
due of one thousand eight hundred and forty dollars ($1,840).
(g) Refund
Policy. A private personnel service shall abide by the refund policy (if any)
stated on its contract by paying any refund due under the terms of the contract
within 15 days of:
(1) Receiving a request
from any applicant; or
(2) If the
refund is in dispute, upon receiving a written final determination that a
refund is due. Such determination may be issued by the Commissioner, an
arbitrator, or a court of law.
Authority
G.S.
95-47.3;
95-47.4;
95-47.9;
Eff. February
27, 1995;
Pursuant to
G.S.
150B-21.3A, rule is necessary without
substantive public interest Eff. July 22,
2018.
