NORTH CAROLINA GENERAL ASSEMBLY

1979 SESSION

 

 

CHAPTER 780

HOUSE BILL 1028

 

 

AN ACT TO REWRITE THE PROVISIONS OF ARTICLE 5 OF THE GENERAL STATUTES CHAPTER 95 AND AMENDMENTS THERETO ENTITLED "REGULATIONS OF EMPLOYMENT AGENCIES".

 

The General Assembly of North Carolina enacts:

 

Section 1.  Article 5 of Chapter 95 of the General Statutes is rewritten to read:

"Article 5.

"Regulation of Private Personnel Services.

"§ 95-37.  Definitions. — As used in this Article, unless the context clearly requires otherwise:

(1)        'Accept' employment means to accept an employer's offer of employment or to begin work for an employer.

(2)        'Applicant', except where it refers to an applicant for a private personnel services license, means any person who uses or attempts to use the services of a private personnel service in seeking employment.

(3)        'Commissioner' means the North Carolina Commissioner of Labor or any person designated by the Commissioner as the representative of the Commissioner.

(4)        'Complaint' means a communication to the Commissioner or department alleging facts that could support issuance of a warning or citation under G.S. 95-42.

(5)        'Contract' means any agreement between a private personnel service and an applicant obligating the applicant to pay a fee or any agreement subsequent to such contract reducing the obligations of the private personnel service to the applicant under the contract.

(6)        'Employee' means a person performing work or services of any kind or character for compensation.

(7)        'Employer' means a person employing or seeking to employ a person for compensation, or any representative or employee of such employer.

(8)        'Employment' means any service or engagement rendered or undertaken for wages, salary, commission, or other form of compensation.

(9)        'Fee' means anything of value, including money or other valuable consideration or services or the promise of any of the foregoing, required or received by a private personnel service, in payment for any of its services, or act rendered or to be rendered by any private personnel service.

(10)      'Interview' means a meeting between an employer and an applicant to discuss potential employment.

(11)      'Job order' means an oral or written communication from an employer authorizing a private personnel service to refer applicants for a position the employer has available.

(12)      'Licensee' means any person licensed by the Commissioner to operate a private personnel service.

(13)      'Manager' of a private personnel service means the person who is responsible for the operation of an office of a private personnel service.

(14)      'Owner' of a private personnel service means the sole proprietor of a private personnel service operated as a sole proprietorship; any partner in a partnership that owns or operates a private personnel service; any stockholder with a financial interest greater than 10 percent (10%) in a corporation that owns or operates a private personnel service.

(15)      'Person' means any individual, association, partnership or corporation.

(16)      'Private personnel service' means any business operated in the State of North Carolina by any person for profit which secures employment or by any form of advertising holds itself out to applicants as able to secure employment or to provide information or service of any kind purporting to promote, lead to or result in employment for the applicant with any employer other than itself, where any applicant may become liable for the payment of a fee to the private personnel service, either directly or indirectly. 'Private personnel service' does not include:

a.         any educational, religious, charitable, fraternal or benevolent organization which charges no fee for services rendered in securing employment or providing information about employment;

b.         any employment service operated by the State of North Carolina, the Government of the United States, or any city, county, or town, or any agency thereof;

c.         any temporary help service that at no time advertises or represents that its employee may, with the approval of the temporary help service, be employed by one of its client companies on a permanent basis;

d.         any newspaper of general circulation or other business engaged primarily in communicating information other than information about specific positions of employment and that does not purport to adapt the information provided to the needs or desires of an individual subscriber;

e.         employment offices that charge no fee to the applicant other than union dues or to the employer and which are used solely for the hiring of employees under a valid union contract by the employer subscribing to this contract;

(17)      'Refer' an applicant means to submit resumes to an employer, arrange interviews between an applicant and an employer, or to provide an employer with the name of an applicant.

"§ 95-38.  License required. — (a) No person shall open, keep, maintain, own, operate or carry on a private personnel service unless the person has first procured a license therefor as provided in this Article.

(b)        An application for license shall be made to the Commissioner. If the private personnel service is owned by an individual, the application shall be made by that individual; if the service is owned by a partnership, the application shall be made by all partners; if the service is owned by a corporation, the application shall be made by all stockholders who own at least twenty percent (20%) of the issued and outstanding voting stock of the corporation, or if the service is owned by an association, society, or corporation in which no one individual owns at least twenty percent (20%) of the issued and outstanding voting stock, the application shall be made by the president, vice-president, secretary and treasurer of the owner, by whatever title designated. The application shall state the name and address of the individual who is responsible for the direction and operation of the placement activities of the private personnel service whether that individual be one of the applicants or another person; whether or not that individual has ever been employed in a private personnel service; the name and address of each of the license applicant's prior employers during the five years immediately preceding the license application; and such other information relating to the good moral character of that individual as the Commissioner may require. No change in such persons shall take place without prior notification to the Commissioner.

(c)        Each application for license shall be in writing and in the form prescribed by the Commissioner, and shall state truthfully the name under which the business is to be conducted; the street and number of the building or place where the business is to be conducted.

(d)        Upon the receipt of an application for a license the Commissioner:

(1)        shall publish a notice of the pending application in a newspaper of general circulation in the area of the proposed location of the employment agency and may publish the notice in a newspaper of general circulation in each area in which the applicant (or if a corporation, the president and majority shareholder) has resided during the five years preceding the time of the application. The notice shall include a statement informing individuals of their right to protest the issuance of a license by filing within 10 days written comments with the Commissioner. The protest shall be in writing and signed by the person filing the protest or by his authorized agent or attorney, and shall state reasons why the license should not be granted. Upon the filing of a protest, the Commissioner, if he determines the protest to be of such a nature that a hearing should be conducted and that the protest is for a cause on which denial of a license may properly be based, shall appoint a time and place for a hearing on the application and shall give at least seven days' notice of that time and place to the license applicant and to the person filing the protest. The hearing shall be conducted in accordance with the provisions of the rules of the Administrative Procedure Act;

(2)        shall investigate the character, criminal record and business integrity of each applicant for agency license and shall investigate the criminal records of all persons listed as agency owners, officers, directors or managers. The applicant and all agency owners, officers, directors and managers shall assist the department in obtaining necessary information by authorizing the release of all relevant information;

(3)        upon completion of the investigation, or 30 days after the application was received, whichever is later, but in no case more than 45 days after the application was received, shall determine whether or not a license should be issued. The license shall be denied for any of the following reasons:

a.         if the applicant for agency license, or the president or majority shareholder of a corporate applicant, omits or falsifies any material information asked for in the application and required by the Commissioner;

b.         if any owner, officer, director or manager of the employment agency:

I.          has been convicted in any state of the criminal offense of embezzlement, obtaining money under false pretenses, forgery, conspiracy to defraud or any similar offense involving fraud or moral turpitude;

II.         was an owner, officer, director or manager of an employment agency or other business whose license was revoked or that was otherwise caused to cease operation by action of any State or federal agency or court because of violations of law or regulation relating to deceptive or unfair practices in the conduct of business;

III.       as an owner or manager of an employment agency or other business or as an employment counselor was found by any State or federal agency or court to have violated any law or regulation relating to deceptive or unfair practices in the conduct of business; or

IV.       in any other demonstrable way engaged in deceptive or unfair practices in the conduct of business;

c.         if the employment agency will be operated on the same premises as a loan agency (as defined in G.S. 105-88) or collection agency (as defined in G.S. 66-42).

(e)        If it appears upon the hearing or from the inspection, examination or investigation made by the Commissioner that the owners, partners, corporation, officers or the agency manager are not persons of good moral character or that the license applicant has not complied with the provisions of this Article, the application shall be denied and a license shall not be granted. The Commissioner shall find facts to substantiate his denial of the issuance of a license. Each application shall be granted or refused within 30 days from the date of its filing, or if a hearing is held, within 45 days. Any license heretofore or hereafter issued shall expire 12 months from the date of its issuance, and shall be renewed as hereinafter provided unless sooner revoked by the Commissioner.

(f)         No license shall be granted to a person to operate as a private personnel service where the name of the business is similar or identical to that of any existing licensed business (except where a franchiser has licensed two or more persons to use the same name within the State) or directly or indirectly expresses or connotes any limitation, specification or discrimination contrary to current State or federal laws against discrimination in employment.

(g)        Every license shall contain the name of the person licensed and shall designate the city in which the license is issued, the name of the manager and date of the license. The license shall be displayed in a conspicuous place in the area where job applicants are received by the agency.

(h)        A license granted as provided in this Article shall not be valid for any person other than the person to whom it is issued or for any place other than that designated in the license and shall not be assigned or transferred without the consent of the Commissioner, whose consent must be based on the standards contained in this Article. Applications for consent to assign or transfer shall be made in the same manner as an application for a license, and all the provisions of this Article shall apply to applications for consent. The location of a private personnel service shall not be changed without notice to the Commissioner, and any change of location shall be endorsed upon the license. A person who has obtained a license in accordance with the provisions of this Article may apply for additional licenses to conduct additional private personnel services in accordance with the provisions of this Article. The manner of application, and the conditions and terms applicable to the issuance of the additional licenses shall be the same as for an original license. The same agency manager may be designated in all such licenses.

(i)         Temporary license. If ownership of a licensed private personnel service is transferred, the department shall issue a temporary license to any new owner or successor if it appears to the department that issuance of such a license would serve the public interest. A temporary license shall be effective for a period of 90 days and shall not be renewed.

(j)         Each licensee shall, before the license is issued or renewed, deposit with the department a bond payable to the State of North Carolina and executed by a surety company duly authorized to transact business in the State of North Carolina in the amount of five thousand dollars ($5,000) and upon condition that the private personnel service will pay to applicants all refunds due under this Article and regulations adopted hereunder if the private personnel service terminates its business.

"§ 95-39. Fees and contracts, filing with Commissioner. — (a) Every license applicant shall file with the Commissioner a schedule of fees or charges made by the private personnel service to applicants for employment for any services rendered, stating clearly the conditions under which the private personnel service refunds or does not refund a fee, together with all rules or regulations that may in any manner affect the fees charged or to be charged for any service. Changes in the schedule may be made, but no change shall become effective until seven calendar days after the filing thereof with the Commissioner. It is unlawful for a private personnel service to charge, demand, collect or receive a greater compensation from an applicant for employment for any service performed than as specified in the schedule filed with the Commissioner.

(b)        Every license applicant shall file with the Commissioner a copy of the contract which the private personnel service will require applicants for employment to execute.

"§ 95-39.1.  Contracts. — (a) A contract between a private personnel service and an applicant shall be in writing, labeled as a contract, physically separate from any application and made in duplicate. One copy shall be given to the applicant and the other shall be kept by the private personnel service as required by G.S. 95-39.2(2).

(b)        Any contract that obligates an applicant to pay a fee to the private personnel service shall include:

(1)        the name, address and telephone number of the private personnel service;

(2)        the name of the applicant;

(3)        the date the contract was signed;

(4)        a clear schedule of the fees to be charged to the applicant at various salary levels;

(5)        a clear explanation of when the applicant becomes obligated to pay a fee;

(6)        a clear refund policy (or no refund policy) that conforms to the requirements of G.S. 95-39.1(f) and (g);

(7)        if the applicant is obligated whether or not the applicant accepts employment, a clear explanation of the services provided and a statement that the private personnel service does not guarantee that the applicant will obtain employment as a result of its services;

(8)        a statement, in a type size no smaller than nine point, directly above the place for the applicant's signature, that reads as follows: 'I have read and received a copy of this CONTRACT, which I understand makes me legally obligated to pay a fee under conditions outlined below.' In the preceding statement the word 'CONTRACT' and no others shall be in all capitals; and

(9)        a statement that the private personnel service is licensed and regulated by the Commissioner and the address at which a copy of laws and regulations governing private personnel services may be obtained.

(c)        A copy of each contract form to be used with applicants shall be filed with the Commissioner. Until the private personnel service receives written notification from the Commissioner that the form conforms to the requirements of this Article and regulations adopted hereunder, it shall not be used with applicants.

(d)        A private personnel service shall not require an applicant to sign a contract with the private personnel service before the applicant has had an opportunity to read the contract and discuss the contract with an employee of the personnel agency who regularly arranges contacts and assists in negotiations between employers and applicants. A private personnel service shall not coerce an applicant into signing a contract by applying or using duress, undue influence, fraud or misrepresentation sufficient to invalidate the contract under North Carolina law.

(e)        Any contract that obligates an applicant to pay a fee to the private personnel service when the applicant accepts employment shall be physically separate from any contract that obligates an applicant to pay a fee whether or not the applicant accepts employment. A private personnel service shall not require an applicant to sign one contract as a prerequisite to signing another contract or to pay a fee as a prerequisite to signing a contract. Express violations of this subsection are the following:

(1)        refusal to allow an applicant to contract for counseling, job information or resume writing services, if the applicant does not agree to pay an additional fee upon acceptance of employment; and

(2)        refusal to allow an applicant to contract for services which obligate the applicant only upon acceptance of employment, if the applicant does not agree to pay a registration fee or to contract for counseling, resume writing or other services.

(f)         If a private personnel service has a refund policy, included on each contract that obligates an applicant upon acceptance of employment will be a statement defining:

a.         the length of the period of time covered by the refund policy;

b.         the exact manner of computing the refund so that the amount of refund due the applicant will be clear;

c.         the conditions under which a refund becomes due to the applicant. The conditions of the refund, if other than unconditional policy is used, shall contain a definition of the reasons for which a refund will not be made. A refund will not be denied except for a reason so stated in the definition of the contract;

d.         a personnel service shall abide by the refund policy stated on its contract by promptly paying to applicants any refund due under the terms of the contract.

(g)        If a private personnel service has no refund policy, the private personnel service shall include on each contract that obligates an applicant upon acceptance of employment, in a type size no smaller than nine point, a statement that reads as follows:

'__________________ (name of private personnel service) will make NO REFUND under any circumstances of fees paid by the applicant.' In the preceding statement the words NO REFUND and no others shall be in all capitals.

"§ 95-39.2.  Records. — Every private personnel service shall maintain for a period of two years, the following records:

(1)        job orders or job specifications.

(2)        executed applicant contracts.

(3)        information on all placements made, including the employer's name and address; name and address of applicant placed; salary of the position; amount of fee charged; and refunds, where applicable.

"§ 95-40.  Prohibited acts. — A private personnel service shall not engage in any of the following activities or conduct:

(1)        induce or attempt to induce any employee placed by that private personnel service to terminate his employment in order to obtain other employment through the private personnel service; or procure or attempt to procure the discharge of any person from his employment.

(2)        publish or cause to be published any false or fraudulent information, representation, promise, notice or advertisement.

(3)        advertise in newspapers or otherwise, unless the advertising contains the name of the private personnel service and the word 'personnel service'.

(4)        direct an applicant to visit or call upon an employer for the purpose of obtaining employment without having first obtained a job order or authorization from the employer for the interview. A private personnel service may attempt to sell the services of an applicant to an employer from whom no job order has been received and may charge a fee if the efforts result in the applicant's being employed.

(5)        send or cause to be sent any person to any employer where the private personnel service knows that the prospective employment is or would be in violation of State or federal laws governing minimum wages or child labor, or has been notified that a labor dispute is in progress, without notifying the applicant of that fact, or knowingly arrange an interview for an employment or occupation prohibited by law.

(6)        send or cause to be sent any person to any place which the private personnel service knows is maintained for immoral or illicit purposes.

(7)        divide or share, either directly or indirectly, the fees collected by the private personnel service, with contractors, sub-contractors, employers or their agents, foremen or anyone in their employ, or if the contractors, sub‑contractors or employers be a corporation, any of the officers, directors or employees of the corporation to whom applicants for employment are sent.

(8)        make, cause to be made, or use any name, sign or advertising device bearing a name which is similar to or may reasonably be confused with the name of a federal, State, city, county or other governmental unit or agency.

(9)        knowingly make any false or misleading promise or representation or give any false or misleading information to any applicant or employer in regard to any employment, work or position, its nature, location, duration, compensation or the circumstances surrounding any employment, work or position including the availability thereof.

(10)      accept a registration fee from an applicant.

(11)      impose or attempt to collect any fee from any applicant unless that applicant accepts employment with an employer to which the applicant was directly or indirectly introduced by the private personnel service.

(12)      a fee may be charged for resume writing provided the private personnel service does not require the applicant to become obligated for any other services.

"§ 95-41.  Personnel Service Advisory Council. — (a) There is hereby established the North Carolina Private Personnel Service Advisory Council. The council shall be composed of 12 members appointed by the Commissioner. Each member of the council shall be domiciled in this State for at least three years immediately preceding his appointment and be of good moral character. At least five members shall have occupied for at least three years immediately preceding their appointment, and shall occupy at the time of appointment, executive or managerial positions in the private personnel service industry in North Carolina; and at least three shall have occupied, for at least three years immediately preceding their appointment, executive or managerial positions as personnel officers in companies which regularly utilize the services of private personnel services in obtaining employees. Members of the council shall serve without salary.

(b)        Each member of the council shall hold office until the appointment and qualification of his successor. The terms of the initial members of the council shall expire as follows: four members, July 1, 1980; four members, July 1, 1981; four members, July 1, 1982. Subsequent appointments shall be made for terms of three years. Vacancies occurring in the membership of the council for any cause shall be filled by appointment for the balance of the unexpired term. The Commissioner may remove any member of the council for misconduct, incompetency, neglect of duty, or other good cause.

(c)        The council shall meet at least once in each calendar quarter of each year. All meetings of the council shall be open and public and all records of the council shall be open to inspection, except as otherwise prescribed by law. Seven members shall constitute a quorum for the transaction of business. The council shall elect from its members, each for term of one year, a chairman and vice-chairman, and may appoint such committees as it deems necessary to carry out its duties. The Commissioner or his designee shall serve ex officio as the secretary of the council, but shall not be a member of the council.

"§ 95-41.1.  Duties of Personnel Service Advisory Council. — The Advisory Council shall:

(1)        Inquire into the nature of the private personnel service industry, and make such recommendations as may be deemed important and necessary for the welfare of the citizens of the State, the public health and welfare and the progress of the private personnel service industry.

(2)        Confer and advise with the Commissioner in regard to how private personnel services may best serve the State, the public and the private personnel service industry.

(3)        Assist the Commissioner in the formulation, adoption, amendment or repeal of any rules or regulations authorized by this Article. Both the Commissioner and a majority of a properly constituted quorum of the Advisory Council must review any such rules or regulations, or amendments or repeals thereof, before they become effective.

(4)        Collect such necessary information and data as the council deems necessary to the proper administration of this Article.

(5)        Consider and make recommendations to the Commissioner with respect to all matters relating to the private personnel service industry in the State, including, but not limited to, applicants for licenses and complaints against private personnel services.

(6)        Publish findings and make such recommendations as the council may deem necessary to the Commissioner.

"§ 95-42.  Enforcement. — (a) This Article shall be enforced by the Commissioner. The Commissioner or any duly authorized agent, deputies or assistants designated by the Commissioner, may upon receipt of a complaint that a private personnel service has violated a specific section of this Article, inspect those records relevant to the complaint which this Article requires the private personnel service to retain. The Commissioner may also subpoena those records and witnesses and may conduct investigations of any employer or other person where the Commissioner has reasonable grounds for believing that the employer or person has conspired or is conspiring with a private personnel service to violate this Article.

(b)        The Commissioner may make reasonable administrative rules within the standards set in this Article. Before such rules are presented to the Advisory Council, the Commissioner shall conduct a public hearing, giving due notice thereof to all interested parties and shall afford the opportunity for written comments. No rule shall become effective until 60 days after the public hearing and Advisory Council approval, and copies thereof shall be furnished to all private personnel services at least 30 days prior to the effective date of the rule.

(c)        Complaints against any licensed person shall be made in writing to the Commissioner, or be sent in affidavit form without a personal appearance of the complainant. If the complaint alleges a violation of this Article, the Commissioner shall cause an investigation to be made. If, as a result of the investigation, the Commissioner has reason to believe that a material violation of this Article has been committed by a private personnel service, the Commissioner may hold a hearing. Reasonable notice thereof, not less than 10 days, shall be given in writing to the licensed person involved by serving upon him either personally, by registered or certified mail, or by leaving the same with the manager, a copy of the complaint. A hearing shall be held before the Commissioner with reasonable promptness but in no event later than 30 calendar days from the date of the filing of the complaint. The Commissioner, when investigating any matters pertaining to the granting, issuing, transferring, renewing, revoking, suspending or cancelling of any license may take such testimony as he deems necessary on which to base official action. When taking such testimony he may subpoena witnesses and also direct the production before him of necessary and material books and papers. A daily calendar of all hearings shall be kept by the Commissioner and shall be posted in a conspicuous place in his public office for at least one day before the date of the hearings. The Commissioner shall render his decision within eight calendar days from the date of the completion of the hearing. The Commissioner shall keep a record of all such complaints and hearings.

(d)        If at the hearing conducted pursuant to subsection (c) of this section, it has been shown that the private personnel service or any employee of that personnel service is guilty of violating the provisions of this Article, the Commissioner may issue warnings, or levy a fine against the personnel service which shall not exceed two hundred and fifty dollars ($250.00), and, for repeated willful violations, may suspend or revoke the license of the personnel service. Whenever the Commissioner suspends or revokes the license of any private personnel service, or levies a fine against a service, the determination is subject to judicial review in proceedings brought pursuant to the Administrative Procedure Act. Whenever a license is revoked, another license shall not be issued to the same person within three years from the date of the revocation. The Commissioner, Deputy Commissioner, or Director, Private Personnel Service Division may conduct hearings and act upon applications for licenses, and may revoke or suspend such licenses, or levy fines.

(e)        Any person who operates as a private personnel service without first obtaining the appropriate license (1) shall be guilty of a misdemeanor and upon conviction shall be subject to a fine not to exceed two thousand dollars ($2,000), or imprisonment for not more than one year, or both, by any court of competent jurisdiction; and (2) be subject to a civil penalty of not less than fifty dollars ($50.00) nor more than one hundred dollars ($100.00) for each day the private personnel service operates without a license, the penalty not to exceed a total of two thousand dollars ($2,000). Actions to recover civil penalties shall be initiated by the Attorney General and any such penalties collected shall be deposited to the General Fund.

"§ 95-43.  Power of Commissioner to seek injunction. — The Commissioner may apply to courts having jurisdiction for injunctions to prevent violations of this Chapter or of rules issued pursuant thereto, and such courts are empowered to grant such injunctions regardless of whether criminal prosecution or other action has been or may be instituted as a result of such violation. A single act of unauthorized or illegal practice shall be sufficient, if shown, to invoke the injunctive relief of this section or criminal or civil penalties under G.S. 95-42(e).

"§ 95-44.  Government employment agencies unaffected. — This Article shall not in any manner affect or apply to the State of North Carolina, the government of the United States, or to any city, county or town, or any agency of any of those governments.

"§ 95-44.1.  License taxes placed upon agencies not affected. — This Article is not intended to conflict with or affect any license tax placed upon private personnel services by the revenue laws of North Carolina, but instead shall be construed as supplementary thereto in exercising the police powers of the State.

"§ 95-45.  Severability. — If any provision of this Article or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications, and to this end the provisions of this Article are severable."

Sec. 2.  A new Article 5A is added to Chapter 95 of the General Statutes to read:

"Article 5A.

"Regulation of Job Listing Services.

"§ 95-46.  Definitions. — Definitions of terms used in this Article shall be the same as in Chapter 95, Article 5 (Regulation of Private Personnel Services), with the words 'job listing service' substituted, where appropriate, for the words 'private personnel service'. 'Job listing service' means any business operated in the State of North Carolina by any person for profit which publishes, either orally or in writing, lists of specific positions of employment available with any employer other than itself or which holds itself out to applicants as able to provide information about specific positions of employment available with any employer other than itself, which charges a fee to any applicant for its services or purported services and which performs none of the activities of a private personnel service other than the publishing of job listings. 'Job listing service' does not include:

(1)        any educational, religious, charitable, fraternal or benevolent organization which charges no fee for services rendered in providing information about employment;

(2)        any employment service operated by the State of North Carolina, the Government of the United States, or any city, county or town, or any agency thereof;

(3)        any temporary help service that charges no fee for services rendered in providing information about employment;

(4)        any newspaper of general circulation or other business engaged primarily in communicating information other than information about specific positions of employment and that does not purport to adapt the information provided to the needs or desires of an individual subscriber;

(5)        employment offices that charge no fee to the applicant other than union dues and which are used solely for the hiring of employees under a valid union contract by the employers subscribing to this contract.

"§ 95-46.1.  License required. — No person shall operate a job listing service in North Carolina without first obtaining a license from the Commissioner. A job listing service shall have a separate license for each location at which it maintains an office.

"§ 95-46.2.  Violation of this Article; criminal and civil penalty. — Any person who violates the provisions of this Article by operating a job listing service without a valid license from the Commissioner shall be subject, under current regulations adopted pursuant to this Article, to criminal and civil penalties in the same amount and under substantially the same procedure as that provided under G.S. 95-42(e) for a person operating a private personnel service.

"§ 95-46.3.  Licensing procedure. — The procedure, under regulations adopted prior to this Article, for the issuance, denial and renewal of job listing service licenses and other aspects of the licensing of job listing services by the Commissioner shall be substantially the same as that provided under Article 5 of this Chapter for the licensing of private personnel services.

"§ 95-46.4.  Enforcement. — Under regulations adopted pursuant to this Article, a job listing service may be issued a warning, citation or notice of violation, or may have its license revoked or suspended, or its licensee reprimanded, censured or placed on probation in substantially the same manner and under substantially the same procedure as that provided for a private personnel service under Article 5 of this Chapter.

"§ 95-46.5.  Certain practices prohibited. — Under regulations adopted pursuant to this Article, a job listing service shall abide by provisions substantially the same as those provided under G.S. 95-40(7) (kickbacks), G.S. 95-40(9)(misrepresentation), G.S. 95-38(d)(3)c. (loan or collection agencies) and G.S. 95-38(j) (bond required) for a private personnel service.

"§ 95-46.6.  Contracts. — A contract between a job listing service and an applicant shall be in writing, labeled as a contract, physically separate from any application form and made in duplicate, and shall include:

(1)        a clear explanation of the services provided and the amount of the fee;

(2)        in a typesize no smaller than nine point, a statement that reads 'I understand that_________(name of job listing service) does not guarantee that I will obtain employment through its services. I understand that__________(name of job listing service) does not refund fees for any reason,' unless the job listing service agrees in the contract to refund to the applicant any fee the applicant paid to the job listing service if within three months of paying such a fee the applicant has not accepted an employment position listed in a publication of the job listing service;

(3)        a statement that the job listing service is not a private personnel service or employment agency, that no additional fee will be charged to the applicant upon acceptance of employment and that the job listing service will not set up interviews or otherwise arrange direct contacts between an employer and the applicant; and

(4)        a statement that the job listing service is licensed and regulated by the Commissioner and the address at which a copy of regulations governing job listing services may be obtained.

A copy of each contract form to be used with applicants shall be filed with the Commissioner. Until the job listing service receives written notification from the Commissioner that the form conforms to the requirements of this Article and regulations adopted hereunder, it shall not be used with applicants. A job listing service shall not accept a fee from any applicant before the applicant has read and received a copy of the contract.

"§ 95-46.7.  Advertising and publication. — (a) In conducting any form of advertising, a job listing service shall identify itself by its business name and identify itself as a job listing service by using in the name or elsewhere in the advertising the term 'job listing service'.

(b)        Prior to advertising or publishing information about an available job, a job listing service shall receive a job order and shall record the job order, the date it was received and the name of the employer representative or other business who gave the job order to the job listing service. No description or representation of an employment position shall be stated in any advertising or other publication, unless the information is included on the recorded job order for the position. Information about a single employment position shall not be used in more than one advertisement or listing in a single issue of any publication.

(c)        A job listing service shall not publish or cause to be published any information which it knows or reasonably ought to know is false or deceptive or which it has no reasonable basis for believing to be true.

(d)        In conducting any form of advertising, a job listing service shall not use the term 'no fee' or any other term indicating that applicants will not be financially obligated to the job listing service.

"§ 95-46.8.  Fee receipts. — A job listing service shall give every applicant from whom payment is received a receipt stating the name and address of the job listing service, the name of the applicant, the date and the amount of the payment.

"§ 95-46.9.  Prohibited job listings. — A job listing service shall not publish information about a position of employment with an employer that the job listing service knows or has reason to know:

(1)        has included false information in the job order; or

(2)        has a strike or lockout at its business, unless the applicant is so informed in the publication; or

(3)        is engaging in unlawful or immoral activity; or

(4)        is in financial or other difficulty likely to lead to imminent cessation of operation, unless the applicant is so informed in the publication; or

(5)        is an employer in which the job listing service or any owner of the job listing service has a financial interest greater than ten percent (10%), unless the applicant is so informed in the publication.

"§ 95-46.10.  Records of the job listing service. — Each job listing service shall maintain and make available for inspection by the Commissioner the following records of the operation of the job listing service for the 18 months immediately preceding:

(1)        the job listing service's copies of all contracts executed with applicants;

(2)        copies of all fee receipts;

(3)        copies of all advertising and job lists published orally or in writing, indexed or attached to the recorded job order (including the date it was received and the name of the employer representative or other business who gave it) for each position advertised or listed, and records of the dates advertisements were run on publications issued; and

(4)        any records required by the Commissioner under regulations adopted pursuant to this Article.

"§ 95-46.11.  Administration of this Article. — This Article shall be enforced under the general supervision of the Commissioner, who shall have the same powers and duties in the enforcement of this Article as in the enforcement of Article 5 of this Chapter.

"§ 95-46.12.  Review of job listing services. — After the Commissioner receives written statements from two or more applicants complaining that the applicant failed to obtain employment as a result of the services of a job listing service, the Commissioner may contact other applicants who have paid a fee to the job listing service for the purpose of determining what percentage of such applicants obtain employment as a result of the services of the job listing service. After gathering information from such applicants and following the requirements of due process, the Commissioner shall place the survey results in the public records.

"§ 95-47.  Severability. — If any provision of this Article or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications, and to this end the provisions of this Article are severable."

Sec. 3.  G.S. 143-34.11 is amended by deleting line 25 of the section which reads as follows:

"Chapter 95, Article 5, entitled 'Regulation of Employment Agencies'."

Sec. 4.  Effective date. This Article shall become effective on July 1, 1979, and shall apply to all employment agencies operating on or after that date. Any agency license issued by the department prior to that date shall remain in full force and effect under the terms of the license until the first anniversary date of the issuance of the license following July 1, 1979, at which time the license shall be renewed under procedures established by the department, unless the department finds that the agency has not substantially complied with the laws and regulations governing employment agencies in North Carolina and that the agency licensee is not of a character likely to abide by this Article and regulations adopted hereunder.

In the General Assembly read three times and ratified, this the 5th day of June, 1979.