CHAPTER 461
Professional Employer Organizations
461.02 Registration requirements.
461.03 Financial capability.
461.04 Rights, duties, and obligations unaffected.
461.05 Disciplinary proceedings.
461.01
461.01
Definitions. In this chapter:
461.01(1)
(1) "Applicant" means a professional employer organization or a professional employer group that applies for registration under
s. 461.02.
461.01(2)
(2) "Client" means any person that enters into a written contract with a professional employer organization or a professional employer group for the provision of the nontemporary, ongoing workforce of the person.
461.01(3)
(3) "Controlling person" means any of the following:
461.01(3)(a)
(a) A person who, individually or acting in concert with one or more other persons, owns or controls, directly or indirectly, 25 percent or more of the ownership interest of an applicant or registrant.
461.01(3)(b)
(b) A person who serves as president or chief executive officer of an applicant or registrant or who otherwise has the authority to act as the senior executive officer of an applicant or registrant.
461.01(4)
(4) "Professional employer group" means 2 or more professional employer organizations that are controlled by the same person.
461.01(5)
(5) "Professional employer organization" means a person that is engaged in the business of entering into written contracts for the provision of the nontemporary, ongoing employee workforce of a client and providing services under those contracts and that under those contracts has the obligation to pay the employees providing services for those clients from its own accounts, regardless of whether the person uses the term "professional employer organization," "PEO," "staff leasing company," "registered staff leasing company," "employee leasing company," or "administrative employer," or uses any other name, as part of the person's business name or to describe the person's business. "Professional employer organization" does not mean a temporary help agency, as defined in
s. 102.01 (2) (f), or a temporary help company, as defined in
s. 108.02 (24m).
461.01(6)
(6) "Registrant" means a professional employer organization or a professional employer group that is registered under
s. 461.02.
461.01 History
History: 2007 a. 189;
2009 a. 174.
461.02
461.02
Registration requirements. 461.02(1)
(1)
Registration required; use of titles. 461.02(1)(a)(a) No person may operate as a professional employer organization or professional employer group, advertise that the person is a professional employer organization or professional employer group, or otherwise hold itself out as a professional employer organization or professional employer group unless the person first registers with the department as provided in this section.
461.02(1)(b)
(b) No person may designate as the person's title, or append to the person's name the words or letters, "professional employer organization," "P.E.O.," "professional employer group," "P.E.G.," "staff leasing company," "registered staff leasing company," "employee leasing company," or "administrative employer," or other similar titles or letters, or use these titles, words, or letters to describe the person's business or represent that the person or the person's business is registered or licensed as "professional employer organization," "P.E.O.," "professional employer group," "P.E.G.," "staff leasing company," "registered staff leasing company," "employee leasing company," or "administrative employer," unless the person is registered by the department under this chapter.
461.02(2)
(2) Except as provided in
sub. (7) (b), an applicant for registration under this section shall submit to the department an application for registration on a form prescribed by the department, together with the registration fee determined by the department under
s. 440.03 (9) (a) and all of the following:
461.02(2)(a)
(a) The name or names under which the applicant conducts business.
461.02(2)(b)
(b) The address of the principal place of business of the applicant and of each office that the applicant maintains in this state.
461.02(2)(c)
(c) A list by jurisdiction of each name under which the applicant has operated in the 5 years preceding the date of the application, including any alternate names of the applicant, the names of any predecessor business entities of the applicant, and, if known, the names of any successor business entities of the applicant.
461.02(2)(d)
(d) A statement of ownership, which shall include the name and business experience of every controlling person, as defined in
s. 461.01 (3) (a), of the applicant.
461.02(2)(e)
(e) A statement of management, which shall include the name and business experience of every controlling person, as defined in
s. 461.01 (3) (b), of the applicant.
461.02(2)(f)1.1. Except as provided under
subd. 2., a financial statement that sets forth the financial condition of the applicant as of a date that is not more than 13 months preceding the date of the application, that is prepared in accordance with generally accepted accounting principles, and that has been audited by an independent certified public accountant. The financial statement shall be without qualification as to the going concern status of the applicant. A professional employer group may meet the requirements of this subdivision by submitting a combined or consolidated audited financial statement. An applicant that does not have sufficient operating history to have an audited financial statement that is based on at least 12 months of operating history may meet the requirements of this subdivision by submitting financial statements that have been reviewed by an independent certified public accountant.
461.02(2)(f)2.
2. Subdivision 1. does not apply to a professional employer organization or professional employer group applying for registration under
sub. (5).
461.02(3)(a)(a) Each professional employer organization or professional employer group that is operating in this state on July 1, 2009, shall register with the department by no later than 180 days after that date.
461.02(3)(b)
(b) Any person that is not operating as a professional employer organization or a professional employer group in this state on July 1, 2009, shall register with the department before operating as a professional employer organization or professional employer group in this state.
461.02(4)
(4) Registration renewal; extension for filing updated financial statement. 461.02(4)(a)(a) Renewal applications shall be submitted, together with the applicable renewal fee determined by the department under
s. 440.03 (9) (a), to the department on a form provided by the department on or before the applicable renewal date specified under
s. 440.08 (2) (a). Except as provided in
pars. (b) and
(c) and
sub. (7) (b), the renewal application shall be accompanied by a financial statement, as that term is used in
sub. (2) (f) 1., updated to reflect the current financial condition of the registrant.
461.02(4)(b)
(b) A registrant may apply to the department for an extension of the time within which to submit the updated financial statement required under
par. (a) by providing with the renewal application a letter from the certified public accountant who is auditing the registrant's financial statement stating the reasons for the delay and the anticipated completion date of the audit.
461.02(4)(c)
(c) A professional employer organization or professional employer group applying to renew a registration issued under
sub. (5) is not required to submit a financial statement under this subsection.
461.02(5)(a)(a) Except as provided in
sub. (7) (b), a professional employer organization or professional employer group that is domiciled outside this state, that is registered or licensed as a professional employer organization or professional employer group in another state, that does not maintain an office in this state or directly solicit clients that are located or domiciled in this state, and that has no more than 50 employees performing services for clients in this state on any given day may apply for small operations registration under this section by filing with the department a small operations registration form prescribed by the department and paying the initial credential fee determined by the department under
s. 440.03 (9) (a). An applicant that is seeking small operations registration shall, in addition to the information required under
sub. (2) (a) to
(e), provide the department with information and documentation showing that the applicant meets the qualifications specified in this paragraph for small operations registration.
461.02(5)(b)
(b) Except as provided in
sub. (7) (b), a professional employer organization or professional employer group seeking small operations registration that has employees performing services for clients in this state on July 1, 2009, shall register with the department as provided in
sub. (3) (a).
461.02(5)(c)
(c) Except as provided in
sub. (7) (b), a professional employer organization or professional employer group seeking small operations registration that does not have employees performing services for clients in this state on July 1, 2009, shall register with the department as provided in
sub. (3) (b), before contracting with a client in this state.
461.02(5)(d)
(d) Except as provided in
sub. (7) (b), a professional employer organization or professional employer group registered under this subsection that wishes to renew its small operations registration shall, in addition to complying with
sub. (4), provide the department with information and documentation showing that the professional employer organization or professional employer group continues to meet the qualifications specified in
par. (a) for small operations registration.
461.02(5)(e)
(e) A professional employer organization or professional employer group registered under this subsection is not required to comply with the financial capability requirement under
s. 461.03.
461.02(6)
(6) Professional employer group registration. Except as provided in
sub. (7) (b), 2 or more professional employer organizations that are part of a professional employer group may register under this section or renew a registration by providing the information required under
sub. (2),
(4), or
(5) on a combined or consolidated basis, paying the initial credential or renewal fee determined by the department under
s. 440.03 (9) (a), and guaranteeing each other's obligations. If a professional employer group provides a combined or consolidated financial statement under
sub. (2) (f) 1. that includes the financial condition of entities that are not part of the professional employer group, the person controlling the professional employer group shall guarantee the obligations of the professional employer organizations in the professional employer group.
461.02(7)(a)(a) The department shall by rule provide for registration of a professional employer organization or professional employer group on acceptance by the department of a registration form, financial statement, or any other information or documentation required under
sub. (2),
(4),
(5), or
(6),
s. 461.03, or rules promulgated under
s. 461.06 in the form of an electronic record, as defined in
s. 137.11 (7) and, if a signature is required, on acceptance of an electronic signature, as defined in
s. 137.11 (8).
461.02(7)(b)
(b) The department may by rule provide for registration of a professional employer organization or professional employer group without compliance with
sub. (2),
(4),
(5), or
(6),
s. 461.03, or rules promulgated under
s. 461.06 on acceptance by the department of assurance provided by a bonded, independent, and qualified assurance organization that has been approved by the department that provides assurance satisfactory to the department that the professional employer organization or professional employer group is qualified to operate as a professional employer organization or a professional employer group in this state.
461.02(7)(c)
(c) This subsection does not limit the authority of the department to require a professional employer organization or professional employer group to register as provided in
sub. (2),
(4),
(5), or
(6), to maintain proof of financial capability as required under
s. 461.03, or to comply with this chapter and the rules promulgated under
s. 461.06; to investigate an applicant or registrant and deny registration or renewal registration under
sub. (8), or to investigate an applicant, registrant. or controlling person and take disciplinary action under
s. 461.05.
461.02(8)
(8) Issuance of registration. The department shall investigate each applicant or registrant who submits to the department an application for registration or registration renewal under this section, together with the applicable registration or registration renewal fee, to determine whether the applicant or registrant is qualified for registration or for renewal registration. Except as provided in
s. 440.12 and
440.13, the department shall issue a registration or renewal registration if, after completing the investigation, the department determines that the applicant or registrant meets the requirements under this chapter and rules promulgated under
s. 461.06 for issuance or renewal of a registration and is satisfied that the applicant or registrant will comply with this chapter and those rules.
461.02(9)
(9) List of registrants; confidentiality. 461.02(9)(am)(am) The department shall maintain and periodically update a list of all professional employer organizations and professional employer groups registered under this section, and shall make the list available on the department's Internet Web site. The list shall include the address of each registrant.
461.02(9)(bm)
(bm) Except as provided in
par. (am), all records maintained by the department that contain any information obtained from an applicant or registrant are confidential and not open to public inspection or copying under
s. 19.35 (1) unless one of the following applies:
461.02(9)(bm)1.
1. Disclosure of the record is necessary for the administration of this section.
461.02(9)(bm)2.
2. A court of competent jurisdiction in this state orders the department to release the record.
461.02(9)(bm)3.
3. The requester is the department of children and families or a county child support agency under
s. 59.53 (5), the request is made under
s. 49.22 (2m), and the request is limited to the name, home address, and business address of the applicant, registrant, or controlling person who is the subject of the request and any financial information about the applicant, registrant, or controlling person contained in the record.
461.02(9)(bm)4.
4. The department of revenue requests the record for the purpose of locating a person, or the assets of a person, who has failed to file tax returns, who has underreported taxable income, or who is a delinquent taxpayer; identifying fraudulent tax returns; or providing information for tax-related prosecutions.
461.02 History
History: 2007 a. 189;
2009 a. 29,
174,
180.
461.03
461.03
Financial capability. Except as provided in
s. 461.02 (5) (e) or
(7) (b), a professional employer organization or professional employer group shall maintain one of the following:
461.03(1)
(1) Working capital requirement. Working capital, as defined by generally accepted accounting principals, of not less than $100,000, as shown in the financial statement submitted to the department under
s. 461.02 (2) (f) 1.,
(4), or
(6). If a professional employer organization or professional employer group has less than $100,000 in working capital, the department may issue a registration or renewal registration contingent on the registrant meeting the working capital requirement of this subsection no later than 180 days after the issuance of the registration or renewal registration. During the period of contingent registration, the registrant shall submit quarterly financial statements to the department accompanied by an attestation by the chief executive officer of the registrant that all wages, salaries, employee benefits, worker's compensation insurance premiums, payroll taxes, unemployment insurance contributions, and other amounts that are payable to or with respect to an employee of the registrant performing services for a client were paid by the registrant when due.
461.03(2)
(2) Alternative commitment. A bond, certificate of deposit, escrow account, or irrevocable letter of credit in an amount that is not less than $100,000 or, if the financial statement submitted to the department under
s. 461.02 (2) (f) 1.,
(4), or
(6) indicates a deficit in working capital, a bond, certificate of deposit, escrow account, or irrevocable letter of credit in an amount that is not less than $100,000 plus an amount that is sufficient to cover that deficit. The commitment described in this subsection shall be in a form approved by the department, shall be held in a depository designated by the department, and shall secure the payment by the professional employer organization or professional employer group of any wages, salaries, employee benefits, worker's compensation insurance premiums, payroll taxes, unemployment insurance contributions, or other amounts that are payable to or with respect to an employee performing services for a client if the professional employer organization or professional employer group does not make those payments when due. The commitment shall be established in favor of or be made payable to the department, for the benefit of the state and any employee to whom or with respect to whom the professional employer organization or professional employer group does not make a payment described in this subsection when due. The professional employer organization or professional employer group shall file with the department any agreement, instrument, or other document that is necessary to enforce the commitment against the professional employer organization or professional employer group, or against any relevant 3rd party, or both.
461.03 History
History: 2007 a. 189;
2009 a. 174.
461.04
461.04
Rights, duties, and obligations unaffected. 461.04(1)(1)
Professional employer organization and professional employer group not insurance. A professional employer organization or professional employer group that offers, markets, sells, administers, or provides services that include the provision of employee benefit plans for the employees of the professional employer organization or professional employer group performing services for a client is not engaged in the business or sale of insurance or in the business of an employee benefit plan administrator under
ch. 633. This subsection shall be liberally construed to permit professional employer organizations and professional employer groups to provide employee benefit plans as provided in this subsection without being considered to be engaged in the business or sale of insurance or in the business of an employee benefit plan administrator under
ch. 633. If a professional employer organization or professional employer group provides life insurance, health care, or disability income benefits for its employees performing services for a client, all of the following apply:
461.04(1)(a)
(a) The professional employer organization or professional employer group shall fully insure payment of those benefits by having in force a plan or policy of insurance issued by an insurer authorized to do business in this state.
461.04(1)(b)
(b) Subject to any eligibility requirements imposed by the plan or policy under
par. (a), the insurer under
par. (a) shall accept and insure all employees of the professional employer organization or professional employer group performing services for a client and all beneficiaries of those employees.
461.04(2)
(2) Insurer not small employer insurer. An insurer that contracts with a professional employer organization or professional employer group that has more than 50 employees performing services for one or more clients is not a small employer insurer, as defined in
s. 635.02 (8), with respect to the contract between the insurer and the professional employer organization or professional employer group.
461.04(3)
(3) Licensing. Nothing in this chapter or in any contract for the provision of the nontemporary, ongoing workforce of a client may be construed to affect or impair any federal, state, or local licensing, registration, or certification requirement that is applicable to a client or to an employee performing services for a client.
461.04(4)
(4) Tax credits and other economic development incentives; taxes, assessments, expenditures, and benefits. 461.04(4)(b)
(b) For purposes of determining tax credits, other economic development incentives provided by the state or a local governmental unit that are based on providing employment, or any other benefits that arise out of the employment of an employee of a professional employer organization or professional employer group who is performing services for a client, such an employee is considered to be an employee solely of the client, and the client is entitled to the benefit of the tax credit, economic development incentive, or other benefit. If the amount of a tax credit, incentive, or benefit described in this paragraph is based on the number of employees employed by a client, only those employees of a professional employer organization or professional employer group who are performing services for the client shall be treated as employees employed by the client, and employees of the professional employer organization or professional employer group who are performing services for the professional employer organization or professional employer group or for another client shall not be treated as employees employed by the client. On request of a client that is seeking a tax credit, incentive, or other benefit described in this paragraph or on request of an agency of this state or local governmental unit that is responsible for administering such a tax credit, incentive, or benefit, a professional employer organization or professional employer group shall provide any employment information requested and reasonably required by the agency or local governmental unit that is necessary to support a claim, application, or other action by the client.
461.04(4)(c)
(c) Taxes, assessments, expenditures, or benefits required by the state or a local governmental unit to be paid by an employer on a per employee basis shall be paid by, assessed against, or charged to a client if the employee is providing services for that client or by a professional employer organization or professional employer group if the employee is providing services to the professional employer organization or professional employer group and not assigned to or providing services for a specific client. Benefits or monetary consideration provided or paid to an employee by a professional employer organization or professional employer group shall be credited against the obligations required to be paid by, assessed against, or charged to the client if the benefits or monetary consideration provided or paid to the employee satisfy the requirements imposed by the state or local governmental unit.
461.04 History
History: 2007 a. 189;
2009 a. 29,
174.
