                           QMfice’oftly !Zlttornep @eneral
                                  &ate of Gxas
DAN MORALES
 .ATTTORSEY
       GESERAL                            August 12,1993

     Honorable 0. H. “Ike”Harris              OpinionNo. DM-243
     Chair
     Committee on State Affairs               Re: Whether a person who provides “common
     Texas State Senate                       workers” to “third party users” under V.T.C.S.
     P.O. Box 12068                           article 522la-10 is an employer for purposes of
     Austin, Texas 78711                      providing workers’ compensation and un-
                                              employmentinsuranw (RQ-540)

     Dear senator Hanis:

            Article 522la-10, V.T.C.S. (the “act”), adopted in 1991. imposes licensing and
     other requirements on persons who provide “common workers” to “third party users.”
     Acts 1991, 72d Leg., ch. 480, at 1708. You ask whether a such a peraon is the
     “employer”of a common worker for purposes of providing workers’compensation and
     unemployment insurance. You ask this question with respect to two time periods:
     September 1. 1991 to December 31, 1991, and January 1, 1992 to the present. We
     conclude that a person who provides “common workers” to “third party users” is an
     employer of such common workers under the act and is responsiblefor providing workers’
     compensation and unemployment insurance during both time periods, to the extent
     required of employers by other law.

             Before answeringyour question we briefly examinethe ads provisions. Section 2
     of the act provides in pertinent part:
              DEPINITIONS.         In this Act:
                . .

              (2) “Common worker” means an individual who performs labor
              involving physical tasks that do not require a particular skill, training
              in a particular occupation, craft, or trade, or practical knowledge of
              the principles or processes of an art, science, cm& or trade.
                .     .

              (8) “Temporary common worker agent” or “temporary ccmtnon
              worker agency”means a temporary common worker employer.
              (9) ‘Temporary common worker, employer” means a person dial
              provides common worker empIoy?es to a thirdpar@ user.




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Honorable 0. H. “Ike”Harris - Page 2 (DM-243)




          (10)“Thirdparlyuser”meansapersonwhousesthesavicesofa
          wmmon worker provided by a temporary common worker employer.
          p3nphasisadded.J
Section 4 provides that a person must have a license to operate as a “temporary wmmon
worker employer” in the state., Section 5 provides for the issuance of licenses by the
Department of Licensing and Regulation. Section 6 places various duties and restrictions
on “license holders.” It limits the charges that may be imposed on wmmon workers and
the deductions that may be made &nn their wages; establishes conditions for the premises
on which wmmon workers wait for assignments; provides that the license holder is an
“employer”;and establishes record keeping requirements.

       Section 7 exempts certain entities firorn the req&ements of the Ilct, including
“temporary skilled labor age%” “employee leasing en&i*” “labor union hbing halls”
andI3overmental programs. Section 8 governs wncurren t mgulation of license holders
by municipaIitiu or other govemmed sltbdivisions. Section 9 provides for annual
Iicuue tknewal. Section 10 provides penalties for violations of the act and administrative
ndesorordaradoptedtbaamda.

        Sections 11 and 12, which 8ppear to have prompted your requw govern the
el%cdvedatesofdiEerentpartsoftheact.        Section 11 providesthat”aperaonisnot
requircdtoobuinalicaw”untilJunrary1.1992,~tbottbedepprtmaamust~o~
ruleaforadministeringtheactbythatdate.*   Section12providesthattheacttakesetFect
sepader 1,199l. “except that section!j4 and 10 take e!Ibct January 1.1992.”

       wrthrrspecttoywquestions,wefintaddnssthetimepaiodJanuary1.l992to
the present. We wnchde that a person who operates as a “temporary wmmon worker
employer,”i.e.. a person who provides common worker anployees to a third party user, is
the anployer of the wmmon worker employees for this period. This is the clear import of
subsection (0 of section 6. which provides:
          A license holder is the employer of the common worker. A license
          holdermayhire,reassign,wntro~direo&anddischargethelicense
          holder%empIoyeea.
Section 4 of the act prohibii a person who opemtes as a temporary common worker
employer &om doing so without a License. Thus, we conclude that a temponuy common
worker employer has au of the responsibiities to his employees attendant with the
employe&mployee relationship, including the obligation to provide workers’ wmpen-
sation or unemployment insurance to the extmt imposed on employers by other law. &e,
e.g., V.T.C.S. art. 8308-3.23 (“employer”election to obtain workers’wmpensation wver-
age for employees); art. 522%5 (“employer”unemployment insurance contributions).




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Honorable 0. H. “Ike”Harris - Page 3       (DM-243)




        Our wnchtsion is no di&rent for the time period from September 1, 1991 to
Dewmbu 3 1.1991. Section 11 delays the.effective date of section 4, the provision which
requires a person who operates as a “temporary wtnmon worker employer” to obtain a
license, and section 10, the provision which provides crimimd penalties for violations of
the act. It does not delay the eSbctive date of any other provision, inchtding the various
requirements set forth in section 6. As noted above, under section 6, s&section (f), a
liwnse holder, a person who operate-sas a “temporary common worker employer,”is the
employer of the common worker employeeswhich he or she provides to third party users.
We beliewethat such a person was an employer during this time period even though he or
she was not required to obtain a licenseuntil January 1, 1992, and therefore may not have
had a license and bear a kense holder until that date. The requirements of section 6 are
obviously intended to apply to ah persons who operate as “temporary wtnmon worker
employerq” not just those who have obtained licenses. This reading is consistent with
section1oftheactwhichde&resthatitis”~                  to provide for the health, safety and
weBire of workers throughout the state” and that the act “shah be carried out in
accordanw with this putpose.”

        Awordingly, we wnchde that since September 1, 1991, a person who has
provided wnunon workers to third party users has been the “employer”of those common
workers under article 5221a-10, V.T.C.S., regardless whether he or she obtained a Ihnse
as r@red by the act. Therefore, such a person has been responsible for providing
workers’wmpensation and unemployment itwtam ikom September 1.1991 to the
present, to the extent requhed of employersby other law.




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Hottom& 0. H. “Ike”H&S      - Page 4    W-243)




                                SUMMARY
              SinccSqtmberI.       1991,apuaonw&ohprovickdwmmon
          workeratotbirdpulylJK!lahasbeenthc”anployeFofthosc
          wmmon workers tmda V.T.C.S. article 5221a-10, rqadkss
          whetherhcoraheobtaiacdalicuue8srequiredbythcact.          Stir
          person has been rcsponiik for proidbg workers’compensation and
          UMnploymen-              fromseptrmbsr1,1991tothepresem,to
          theexte4ltqliredofanployersbyothcrkw.




                                                  DAN     MORALES
                                                  AttOlIK!yGGlIdOfTtX&?

WlLL PRYOR
FhtAsaktaaAttonteyGateral

MARYKELLER
Deputy Attomey General fbr Litigation

RENEAHlcKs
state solkitor

MADELEINE B. JOHNSON
Chair, Opiion Committee




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