Minnesota Session Laws - 1983, Regular Session

  

                         Laws of Minnesota 1983 

                        CHAPTER 375--S.F.No. 1189
           An act relating to employment; exempting search firms 
          from employment agency licensing; subjecting certain 
          search firms to fee and bond requirements; requiring 
          certain statements, fees, and bonds to be submitted at 
          the time a search firm is established; prohibiting 
          certain practices; requiring certain practices; 
          amending Minnesota Statutes 1982, sections 184.22, 
          subdivision 2, and by adding subdivisions; 184.29; 
          184.30, subdivision 1; 184.37; 184.38, subdivisions 6, 
          8, 9, 10, 11, 17, 18, 19, and by adding a subdivision; 
          and 184.41. 
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
    Section 1.  Minnesota Statutes 1982, section 184.22, 
subdivision 2, is amended to read: 
    Subd. 2.  [EXEMPTIONS.] Except as otherwise specifically 
provided, the provisions of sections 184.21 to 184.41 shall do 
not apply to any person, firm, corporation, partnership, or 
association engaged in the business of a management consultant, 
or management search consultant or personnel consulting 
firm (hereafter "search firm") provided that if:  (1) the search 
firm is retained by, acts solely on behalf of and is only 
compensated on a noncontingency basis solely by an the employer, 
pursuant to a written or oral retainer agreement specifying the 
particular search or consultation assignment, to identify, 
appraise or recommend an individual or individuals for 
consideration for an executive or professional position for a 
beginning annual base salary (exclusive of bonuses or 
commissions) of at least $27,000, which amount shall be adjusted 
every second year by an amount equal to the percentage change in 
the Consumer Price Index recorded by the U.S. Department of 
Labor position to be filled; and (2) in no instance does will 
any individual candidate who is identified, appraised or 
recommended by the search firm for consideration for an 
executive or professional position employment become liable in 
whole or in part to pay a fee of any kind, directly or 
indirectly, on account of any service performed by the search 
firm; and (3) in no instance shall does the search firm or its 
agents solicit, persuade or induce any individual to terminate 
his or her employment with an employer with whom the search firm 
has placed an that individual; and (4) the search firm shall 
does not carry on any other activity that comes within the 
definition of employment agency as hereinbefore defined.  Each 
search firm shall file annually with the commissioner a sworn 
statement indicating whether or not it has conducted its 
business during the past year in a manner consistent with the 
above provisions, exempting search firms from regulation as 
employment agencies.  The statement shall must include, in 
addition to other information the commissioner may by rule 
require requires, a representation as to whether the search firm 
has placed any advertisements in the "help wanted" columns of 
newspapers published in Minnesota.  If the commissioner at any 
time has reason to believe that the search firm has not 
conducted its business in a manner consistent with the above 
four conditions, the commissioner is authorized to may inspect 
the relevant records of the search firm for the purpose of 
confirming whether the search firm has maintained its exempt 
status during the year.  If it is determined, either by written 
admission by the search firm or by a finding of fact in a court 
of law or by a hearing officer pursuant to chapter 14, that any 
of the four conditions were not met, the search firm shall 
thereafter be considered an employment agency and be subject to 
the provisions of sections 184.21 to 184.41.  In the event If an 
employment agency offers services which are the same or similar 
to those offered by a search firm, or in the event if a search 
firm offers services which are the same or similar to those 
offered by an employment agency, the person or entity offering 
these combined employment agency and search firm services shall 
identify itself to the public by displaying the name in which it 
is registered with the commission as a licensed employment 
agency; provided, that no registered search firm may offer 
licensed employment agency services at the same location. 
    Sec. 2.  Minnesota Statutes 1982, section 184.22, is 
amended by adding a subdivision to read:  
    Subd. 3.  [REGISTRATION.] Before starting business in this 
state, any firm established as an exempt firm under subdivision 
2 shall (1) file a sworn statement with the commissioner 
indicating whether or not it will conduct its business in a 
manner consistent with the provisions of subdivision 2 and other 
information the commissioner by rule requires, (2) pay the 
registration fee required by section 184.29, and (3) furnish the 
bond required by section 184.30.  A search firm registration may 
not be transferred to another search firm, unless written notice 
of the transfer is given to the commissioner.  
    Sec. 3.  Minnesota Statutes 1982, section 184.22, is 
amended by adding a subdivision to read:  
    Subd. 4.  [CONTINUED EXEMPTION.] A search firm exempted 
under subdivision 2 prior to the effective date of this act is 
not subject to the provisions of section 184.29, 184.30, 184.37, 
or 184.38.  
    Sec. 4.  Minnesota Statutes 1982, section 184.22, is 
amended by adding a subdivision to read: 
    Subd. 5.  [FEE PAYMENT PROHIBITED.] No employer may require 
any job candidate placed with the employer by a search firm to 
pay, directly or indirectly, all or part of the search firm's 
fee.  
    Sec. 5.  Minnesota Statutes 1982, section 184.29, is 
amended to read:  
    184.29 [FEES.] 
    Before a license shall be is granted to an applicant such, 
the applicant shall pay the following fee: 
    (a) An employment agent shall pay an annual license fee of 
$200 for each license.  
     (b) A search firm exempt under section 184.22, subdivision 
2, shall pay an annual registration fee of $200, accompanying 
the annual statement to the commissioner.  
    Applicants (c) An applicant for a counselor's license shall 
pay a license fee of $10 and a renewal fee of $5.  
    Applicants (d) An applicant for an employment agency 
manager's license shall pay a license fee of $10 and a renewal 
fee of $5.  
    Sec. 6.  Minnesota Statutes 1982, section 184.30, 
subdivision 1, is amended to read: 
    Subdivision 1.  Every application for an employment 
agency's license shall, and every annual report required to be 
filed under section 184.22, subdivision 2, must be accompanied 
by a surety bond approved by the department in the penal sum 
amount of $10,000 for each location, with one or more sureties 
or a duly authorized surety company to be approved by the 
department and.  The bond must be filed in the office of the 
secretary of state, and conditioned that the employment agency 
and each member, shareholder, director, or officer of a firm, 
partnership, corporation, or association operating as such an 
employment agency will conform to and not violate any of the 
terms or requirements comply with the provisions of sections 
184.21 to 184.40 or violate the covenants of and any contract 
made by such the employment agent in the conduct of said the 
business.  Action on this bond may be brought by and prosecuted 
in the name of any A person damaged by any a breach or of 
any condition thereof of the bond may bring an action on the 
bond, and successive actions may be maintained thereon on it.  
    Sec. 7.  Minnesota Statutes 1982, section 184.37, is 
amended to read: 
    184.37 [CONTRACTS WITH APPLICANTS FOR EMPLOYMENT.] 
    Subdivision 1.  [EMPLOYMENT AGENTS.] Every employment agent 
shall contract, in writing, with every applicant for employment 
for services to be rendered to the applicant by the employment 
agent, which contract shall contain the date, the name and 
address of the employment agency, the name of the employment 
agent, the service charge to be made to the applicant, and the 
time and method of payments, and, on either the face or back of 
the contract, shall appear the definition of "accept," "method 
of payment," "temporary position," and "charge for permanent 
position which proves to be temporary."  
    Subd. 2.  [SEARCH FIRMS.] Every search firm must give to 
each job candidate a written statement confirming that the 
candidate will in no instance become liable in whole or in part 
to pay a fee of any kind, directly or indirectly, on account of 
any service performed by the search firm.  A copy of this 
statement must be kept on file by the search firm for at least 
one year.  
    Sec. 8.  Minnesota Statutes 1982, section 184.38, 
subdivision 6, is amended to read: 
    Subd. 6.  (a) No employment agent or search firm shall send 
out any applicant for employment without having obtained a job 
order, and if no employment of the kind applied for existed at 
the place to which the applicant was directed, the employment 
agent or search firm shall refund to the applicant, within 48 
hours of demand, any sums paid by the applicant for 
transportation in going to and returning from the place. 
    (b) Nothing in this chapter shall be construed to prevent 
an employment agent or search firm from directing an applicant 
to an employer where the employer has previously requested that 
he be accorded interviews with applicants of certain types and 
qualifications, even though no actual vacancy existed in the 
employer's organization at the time the applicant was so 
directed; nor shall it prevent the employment agent or search 
firm from attempting to sell the services of an applicant to the 
employer even though no order has been placed with the 
employment agent or search firm; provided, that prior to 
scheduling an interview with an employer, when no opening 
currently exists with that employer, the applicant is clearly 
informed that no opening exists at that time. 
    Sec. 9.  Minnesota Statutes 1982, section 184.38, 
subdivision 8, is amended to read: 
    Subd. 8.  No employment agent or search firm shall 
knowingly cause to be printed or published a false or fraudulent 
notice or advertisement for help or for obtaining work or 
employment.  For purposes of this subdivision the phrase "false 
or fraudulent notice or advertisement" shall include the 
following: 
    (a) The advertisement of any job for which there is no bona 
fide oral or written job order and completed job order form in 
existence at the time the advertisement is placed; 
    (b) The inclusion in any advertisement of any information 
concerning the identity, availability, features, or requirements 
of any advertised job when such information is not substantiated 
by, and included in, the supporting job order form; 
    (c) The advertisement of any job opening of the type 
described in subdivision 6, clause (b); 
    (d) The advertisement of any job without the inclusion in 
the advertisement of the "job order number" required in 
subdivision 18; 
    (e) If an applicant appears at any agency or search firm in 
response to the advertisement of a particular job, the failure 
to attempt placement of the applicant in the advertised job; 
provided however, that the agency or search firm may refuse to 
attempt such placement if the reason(s) for the refusal are 
clearly and truthfully disclosed to the applicant either orally 
or in writing. 
    Sec. 10.  Minnesota Statutes 1982, section 184.38, 
subdivision 9, is amended to read: 
    Subd. 9.  No employment agent or search firm shall place or 
assist in placing any person in unlawful employment. 
    Sec. 11.  Minnesota Statutes 1982, section 184.38, 
subdivision 10, is amended to read: 
    Subd. 10.  No employment agent or search firm shall fail to 
state in any advertisement, proposal, or contract for 
employment, that there is a strike or lockout at the place of 
proposed employment, if he the agent or firm has knowledge that 
such condition exists. 
    Sec. 12.  Minnesota Statutes 1982, section 184.38, 
subdivision 11, is amended to read: 
    Subd. 11.  Any person, firm, or corporation who shall No 
employment agency or its employee may split, divide, or share, 
directly or indirectly, any fee, charge, or compensation 
received from any employee employer or applicant with any 
employer, or person in any way connected with the employer's 
business thereof,.  No search firm or its employee may split, 
divide, or share, directly or indirectly, any fee, charge, or 
compensation received from any employer with any person 
connected in any way with the employer's business.  A violation 
of this subdivision shall be punished by a fine of not less than 
$100, and not more than $1,000, or on failure to pay such the 
fine by imprisonment for a period not to exceed one year, or 
both, at the discretion of the court. 
    Sec. 13.  Minnesota Statutes 1982, section 184.38, 
subdivision 17, is amended to read: 
    Subd. 17.  Except for applicant information given in the 
course of normal agency or firm operations, no employment agent 
or search firm shall voluntarily sell, give, or otherwise 
transfer any files, records, or other information relating to 
his employment agency or search firm applicants and employers to 
any person other than a licensed employment agent or registered 
search firm or a person who agrees to obtain an employment 
agency license or register as a search firm.  Every employment 
agent or search firm who ceases to engage in the business of or 
act as an employment agent or search firm shall notify the 
department of such fact within 30 days thereof, and shall advise 
the department as to the disposition of all files and other 
records relating to his employment agency or search firm 
business. 
    Sec. 14.  Minnesota Statutes 1982, section 184.38, 
subdivision 18, is amended to read: 
    Subd. 18.  Every job order communicated to an agency or 
search firm shall be recorded by the agency or search firm on a 
job order form which form shall contain specific information as 
prescribed by the department.  A job order form shall be filled 
out for each job order prior to any attempt to advertise the job 
opening or to place persons in said job.  Such forms shall each 
be assigned a separate number and shall be maintained by the 
agency or search firm for a period of one year. 
    Sec. 15.  Minnesota Statutes 1982, section 184.38, 
subdivision 19, is amended to read: 
    Subd. 19.  No person shall be required to pay a fee to an 
employment agency for a position, whether temporary or 
permanent, if the applicant withdraws acceptance of a the 
position within three days, excluding Saturday, Sunday and legal 
holidays, of signing an acceptance form and notifies the agency 
in writing of the withdrawal, provided that the applicant did 
not actually start the job.  The three day withdrawal period 
applies regardless of who is to pay the fee to the employment 
agency.  
    Sec. 16.  Minnesota Statutes 1982, section 184.38, is 
amended by adding a subdivision to read: 
    Subd. 20.  No employment agent or search firm shall 
knowingly misrepresent to any employer the educational 
background, skills, or qualifications of any job candidate; or 
knowingly misrepresent to a job candidate the responsibilities, 
salary, or other features of any position of employment.  
    Sec. 17.  Minnesota Statutes 1982, section 184.41, is 
amended to read: 
    184.41 [VIOLATIONS.] 
    Any person who shall engage engages in the business of or 
act acts as an employment agent or counselor without first 
procuring a license as required by section 184.22, and any 
employment agent, manager, or counselor who shall violate 
violates the provisions of this chapter, shall be and any exempt 
firm which violates any of the applicable provisions of this 
chapter, is guilty of a misdemeanor.  
    In addition to the penalties for commission of a 
misdemeanor, the department may proceed by bring an action for 
an injunction against any person who shall engage engages in the 
business of or act acts as an employment agent or counselor 
without first procuring the license required under section 
184.22, or who engages in the business of or acts as a search 
firm without first filing the registration required under 
section 184.22, subdivision 3, and against any employment agent, 
manager, or counselor, or search firm who shall violate 
violates the applicable provisions of this chapter.  If an 
agency, a manager, or a counselor, or search firm is found 
guilty of a misdemeanor in any action relevant to the operation 
of an agency, or search firm the department may suspend or 
revoke the license or registration of the agency, manager, or 
counselor, or search firm. 
    Approved June 14, 1983