PRINTER'S NO. 2098
No. 1480 Session of 1998
INTRODUCED BY SCHWARTZ, COSTA AND HUGHES, JUNE 15, 1998
REFERRED TO LABOR AND INDUSTRY, JUNE 15, 1998
AN ACT
1 Providing for workers in contingent and part-time jobs;
2 prohibiting certain forms of discrimination; and providing
3 for powers and duties of the Department of General Services
4 and for remedies.
5 The General Assembly of the Commonwealth of Pennsylvania
6 hereby enacts as follows:
7 Section 1. Short title.
8 This act shall be known and may be cited as the Contingent
9 and Part-time Workers Rights Act.
10 Section 2. Definitions.
11 The following words and phrases when used in this act shall
12 have the meanings given to them in this section unless the
13 context clearly indicates otherwise:
14 "Benefits." Include, but are not limited to, accrual of
15 seniority, credit for length of service, holidays, vacations,
16 sick leave and other leave, disability and health insurance,
17 health and welfare and pension benefits.
18 "Casual employment." Work scheduled on an occasional or
1 intermittent basis, without a regular schedule.
2 "Client company." An enterprise that receives services or
3 functions from another enterprise and that meets the criteria
4 for a joint employer.
5 "Contingent job." A job in which an individual does not have
6 an explicit or implicit contract for long-term full-time
7 employment. This includes:
8 (1) Casual employment.
9 (2) Contractor employment.
10 (3) Day labor employment.
11 (4) Home-based employment.
12 (5) Leased employment.
13 (6) On-call employment.
14 (7) Part-time employment.
15 (8) Seasonal employment.
16 (9) Temporary agency employment.
17 (10) Temporary direct hire employment.
18 (11) Temporary employment.
19 "Contractor employment." Employment in which a worker is
20 employed by a company that has contracted with a client company
21 to provide services or functions.
22 "Day labor employment." Employment in which a worker is
23 hired for a day or on a day-to-day basis to perform unskilled or
24 semiskilled tasks.
25 "Employer." Includes any individual, organization, including
26 the Commonwealth and all of its political subdivisions,
27 partnership, association, trust, estate, joint stock company,
28 insurance company or corporation, whether domestic or foreign,
29 or receiver or trustee in bankruptcy or the legal representative
30 of a deceased person which has 50 or more individuals in that
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1 entity's employment during any day or portion of any day.
2 "Full-time employment." A job with regularly scheduled work
3 of more than 32 hours per week or greater than 64 hours in a
4 biweekly period.
5 "Home-based employment." Employment in which a person
6 produces goods or delivers services in or about a home,
7 apartment, tenement or room in a residential establishment for
8 an employer who suffers or permits this production or service
9 delivery, regardless of the source, whether obtained from an
10 employer or elsewhere, of the materials used by the homeworker
11 in the production.
12 "Independent contractor." A worker who meets all of the
13 following criteria:
14 (1) The individual is free from direction and control
15 over the performance of the work.
16 (2) The service is performed either outside the usual
17 course of the business for which it is performed or is
18 performed outside all places of business of the enterprise
19 for which it is performed.
20 (3) The individual is customarily engaged in an
21 independent trade, occupation, profession or business.
22 The failure to withhold Federal or State income taxes,
23 unemployment compensation or workers' compensation from an
24 employee's wages shall not be used for the purposes of making a
25 determination under this definition.
26 "Joint employer." A contractor and a client where the
27 employees of the contractor perform work that is an ongoing
28 component of the client's enterprise and in which one or more of
29 the following exists:
30 (1) The contractor's employees are required to follow
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1 the client's instructions concerning the specifics of how and
2 when the services are to be performed.
3 (2) The contractor's employees perform the services on a
4 regular basis on premises owned or managed by the client.
5 (3) The capital goods used by the contractor's employees
6 in performing the services in question are provided by, or
7 substantially financed, directly or indirectly by the client.
8 "Leased employment." Employment in which an individual
9 performs services for a client company through a leasing
10 organization where the provision of the individual's services is
11 pursuant to an agreement between the client company and the
12 leasing organization.
13 "On-call employment." Employment in which a worker reports
14 to work only when asked by the worker's employer to do so, as
15 opposed to having a regular schedule.
16 "Part-time employment." Regularly scheduled work of not more
17 than 32 hours per week or more than 32 hours per week as long as
18 no greater than 64 hours in a biweekly period.
19 "Prorate." Either of the following:
20 (1) To offer the proportion of each of the benefits
21 offered to full-time employees, including full-time employees
22 in contingent jobs, to part-time employees, which for each
23 benefit is equal to the ratio of part-time hours worked to
24 full-time hours worked.
25 (2) For insurance benefit purposes, to offer the same
26 insurance coverage to part-time employees as full-time
27 employees, but with an employer premium contribution which is
28 equal to the ratio of part-time hours worked to full-time
29 hours worked.
30 "Seasonal employment." A job which provides no work for at
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1 least 90 days.
2 "Temporary agency employment." Work performed by a person
3 who is hired and remunerated by an agency which provides the
4 worker to a client company, where there is no implicit or
5 explicit contract for long-term employment.
6 "Temporary direct hire employment. Work performed by a person
7 who is hired and remunerated by the company for which the worker
8 provides services, where there is no implicit or explicit
9 contract for long-term employment.
10 "Temporary employment." Work with an established employment
11 period of one year or less.
12 Section 3. Wage discrimination.
13 No employer, including joint employers at a client worksite,
14 shall discriminate in any way in the payment of wages as between
15 full-time and part-time employees, whether or not the employees
16 are employed in permanent or contingent jobs. However,
17 variations in rates of pay shall not be prohibited when based
18 upon a difference in the type of work performed or seniority.
19 Section 4. Terms and conditions of employment and benefits.
20 Any employer who provides benefits to the employer's
21 employees may not discriminate against employees in contingent
22 jobs in the terms and conditions of employment and the provision
23 of benefits. Any employer shall provide the same benefits to
24 employees in contingent jobs that the employer offers to any
25 full-time employees. However, the employer may prorate the
26 benefits of part-time employees. An employer who offers health
27 insurance, disability insurance or health and welfare benefits
28 to any of its full-time employees must offer the same benefits
29 to all full-time employees, including employees in full-time
30 contingent jobs, if the employees in full-time contingent jobs
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1 have been employed by the employer for a minimum of 15 weeks.
2 Any part-time employees must be provided benefits on a prorated
3 basis by prorating the employer's share of the premium
4 contribution, if they have been employed by the employer for a
5 minimum of 15 weeks.
6 Section 5. Construction.
7 Nothing in this act shall be construed to diminish or
8 otherwise affect the requirements, guarantees or protections
9 under any bargaining agreement, company policy or Federal or
10 State law which provides for greater or additional benefits than
11 those required under this act.
12 Section 6. Misclassification of employees.
13 Misclassification by any employer of a worker as an
14 independent contractor shall constitute a violation of this act.
15 Section 7. State contractors.
16 Any employer who receives in excess of $25,000 per year in
17 funding or payment for services under any contract with the
18 Commonwealth shall be subject to rules and regulations,
19 promulgated by the Department of General Services, regarding the
20 employment of workers in contingent jobs. The regulations shall
21 include a cap on the percentage of contingent jobs and on the
22 percentage of the payroll which may be used to hire workers in
23 contingent jobs. The cap shall be no greater than 50% of the
24 average number contingent jobs found in the private sector.
25 Section 8. Enforcement.
26 (a) Investigation by department.--The department shall
27 investigate complaints made to it concerning violations of this
28 act and shall, upon its own initiative, conduct investigations
29 as it deems appropriate and advisable to develop information on
30 possible violations of this act. An employee may bring an action
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1 in a court of appropriate jurisdiction 90 days after filing a
2 complaint with the department if the department has failed to
3 resolve the complaint to the satisfaction of the employee.
4 (b) Injunctive relief.--In addition to any other remedy at
5 law or in equity or under this act, the department may apply for
6 relief by injunction to enforce compliance with or to restrain
7 violations of this act or any rule, regulation or order made
8 under this act.
9 (c) Remedies.--A court, in rendering a judgment in an action
10 brought under this act, shall order, as the court considers
11 appropriate, reinstatement of the employee, the payment of back
12 wages, full reinstatement of full fringe benefits and seniority
13 rights, actual damages or any combination of these remedies. A
14 court shall also award the complainant all or a portion of the
15 costs of litigation, including reasonable attorney fees and
16 witness fees, if the court determines that the award is
17 appropriate.
18 (d) Regulations.--The department shall adopt regulations
19 establishing procedures and criteria necessary to carry out the
20 provisions of this section.
21 Section 9. Effective date.
22 This act shall take effect in 60
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