§ 922 — General requirements and provisions

New York § 922

• Jurisdiction: New York
• Law LAB: Labor
• Art. 31: New York Professional Employer Act

Text

§ 922. General requirements and provisions. 1. A professional employer\norganization shall meet the following standards:\n (a) Have a written professional employer agreement between the client\nand the professional employer organization setting forth the\nresponsibilities and duties of each party. The professional employer\nagreement shall contain a description of the type of services to be\nrendered by the professional employer organization and the respective\nrights and obligations of the parties and the professional employer\nagreement shall also provide that the professional employer\norganization:\n (i) reserves a right of direction and control over the worksite\nemployees. However, the client shall maintain such direction and control\nover the worksite employees as is necessary to conduct the client's\nbusiness and without which the client would be unable to conduct its\nbusiness, discharge any fiduciary responsibility which it may have, or\ncomply with any applicable licensure;\n (ii) assumes responsibility for the withholding and remittance of\npayroll-related taxes and employee benefits for worksite employees and\nfor which the professional employer organization has contractually\nassumed responsibility from its own accounts, as long as the\nprofessional employer agreement between the client and professional\nemployer organization remains in force; and\n (iii) retains authority to hire, terminate and discipline the worksite\nemployees.\n (b) Provide written notice of the general nature of the relationship\nbetween the professional employer organization and the client to the\nworksite employees located at the client worksite.\n 2. A professional employer organization shall be considered an\nemployer for the purposes of withholding state income tax of the\nworksite employees pursuant to section six hundred seventy-one of the\ntax law.\n 3. As long as the professional employer organization's professional\nemployer agreement with a client remains in force, the professional\nemployer organization shall have a right to and shall assume the\nfollowing responsibilities:\n (a) pay wages and collect, report and remit employment taxes of its\nworksite employees from its own accounts;\n (b) pay unemployment insurance as required by the unemployment\ninsurance law;\n (c) secure and provide required workers' compensation coverage for its\nworksite employees either in its own name or in its client's name.\n 4. Both the client and the professional employer organization shall be\nconsidered the employer for the purpose of coverage under the workers'\ncompensation law and both the professional employer organization and its\nclient shall be entitled to protection of the exclusive remedy provision\nof the workers' compensation law irrespective of which entity secures\nand provides such workers' compensation coverage.\n 5. A registered professional employer organization shall be deemed for\npurposes of state law an employer for purposes of sponsoring welfare\nbenefit plans for its worksite employees. Worksite employees\nparticipating in that professional employer organization's fully insured\nwelfare benefit plan or plans shall be considered employees\nparticipating in a single employer welfare benefit plan or plans. A\nfully insured welfare benefit plan or plans offered by a registered\nprofessional employer organization to its employees and/or worksite\nemployees shall not be considered for purposes of state law a multiple\nemployer welfare arrangement.\n 6. Subject to any contrary provisions contained in the written\nprofessional employer agreement between the client and the professional\nemployer organization, the professional employer arrangement that exists\nbetween a professional employer organization and its client or clients\nshall be interpreted for the purposes of insurance and bonding as\nfollows:\n (a) Nothing in this section shall serve to limit any contractual\nliability, as may be expressly agreed upon, between the professional\nemployer organization and the client, nor shall this section in any way\nlimit the liabilities of any professional employer organization or\nclient as defined elsewhere in this article; and\n (b) Worksite employees are not automatically deemed pursuant to this\nsection to be employees of the professional employer organization for\npurposes of general liability, insurance, automobile insurance, fidelity\nbonds, surety bonds, employer's liability which is not covered by\nworkers' compensation, or liquor liability insurance carried by the\nprofessional employer organization unless the worksite employees are\nincluded by specific reference in the professional employer agreement\nand applicable prearranged employment contract, insurance contract or\nbond.\n 7. The sale of professional employer services in conformance with the\nprovisions of this article shall not constitute the sale of insurance\nfor purposes of the insurance law. However, no professional employer\norganization shall function or hold itself out as an insurer, insurance\nbroker or insurance agent unless appropriately licensed by this state.\n 8. Worksite employees whose services are subject to sales tax shall be\ndeemed the employees of the client for purposes of collecting and\nlevying sales tax on the services performed by the worksite employee.\n