N.D. Cent. Code § 65-01-08 : — WORKFORCE SAFETY AND INSURANCE01 - GENERAL PROVISIONS —01-08 - Contributing employer and staffing service relieved from liability for injury to employee

1. If a local or out-of-state employer secured the payment of compensation to that employer's employees by contributing premiums to the fund, the employee, and the parents in the case of a minor employee, or the representatives or beneficiaries of either, do not have a claim for relief against the contributing employer or against any agent, servant, or other employee of the employer for damages for personal injuries, but shall look solely to the fund for compensation.

2. If a client company contracts with a staffing service for an employee's services, the client company and the staffing service are immune from any claim for relief by that employee or by another employee of the client company or staffing service, to the same extent granted under this title to contributing employers if the client company or staffing service secured the payment of compensation in accordance with this title.

Although an account must include the name of the staffing service, the employee is considered an employee of the client company and staffing service for purposes of application of immunity for injuries incurred by or caused by that employee.

3. For purposes of this section:

a. "Client company" means a person that contracts to receive services within the course of that person's usual business from a staffing service or that contracts to lease any or all of that person's employees from a staffing service.

b. "Staffing service" means an employer in the business of providing the employer's employees to persons to perform services within the course of that person's usual businesses. The term includes professional employer organizations' staff leasing companies, employee leasing organizations, and temporary staffing companies. The term "staffing service" must be broadly construed to encompass entities that offer services provided by a professional employer organization, staff leasing company, employee leasing organization, or temporary staffing company regardless of the term used.

(1) Within the meaning of staffing service as used in this section, "temporary staffing" or "temporary staffing service" means an arrangement by which an employer hires its own employees and assigns the employees to a client company to support or supplement the client company's workforce in a special work situation, including:

(a) An employee absence;

(b) A temporary skill shortage;

(c) A seasonal workload; or

(d) A special assignment or project with a targeted end date.

(2) The term does not include arrangements in which the majority of the client company's workforce has been assigned by a temporary staffing service for a period of more than twelve consecutive months.

4. A staffing service that provides only temporary staffing services is the employee's employer. The temporary staffing service shall maintain a workforce safety and insurance account in the temporary staffing service's name and report the wages for those workers annually to the organization. All other staffing services shall:

a. Report payroll detail as directed by the organization for each North Dakota client company.

b. Maintain complete and separate records of the payroll of the staffing service's client companies. Claims must be separately identified by the staffing service for each client company.

c. Share employer responsibilities with the client company, including retention of the authority to hire, terminate, discipline, and reassign employees. If the contractual agreement between a staffing service and a client company is terminated, the employees become the sole employees of the client company.

d. Notify the organization of the client company's name, workforce safety and insurance account number, and the date the staffing service began providing services to the client company. The staffing service shall provide this information upon entering an agreement with a client company, but no later than fifteen days from the effective date of the written agreement.

e. Supply the organization with a copy of the agreement between the staffing service and client company.

f. Notify the organization upon termination of any agreement with a client company, but no later than fifteen days from the effective date of termination.

g. Notify the staffing service's client companies of an uninsured status for failure to pay workforce safety and insurance premiums within fifteen days of notice by the organization.

5. A staffing service that provides both temporary and long-term employees is subject to the reporting requirements associated with the type of employee provided to the client company.

a. The organization shall maintain all employer data for each client company requiring coverage under this title. If a client company enters an agreement with a staffing service, the organization shall generate a master billing for the staffing service detailing the staffing service's client companies.

b. Rate classifications for employees provided by a staffing service must be those which would apply as if the work were performed by the employees of the client company. A client company is eligible for organization safety discount and dividend programs. If a client company enters an agreement with a staffing service, the client company shall retain the client company's experience rate, if applicable.

c. Both a staffing service and client company under this section are considered employers for purposes of section 65-04-26.1. A staffing service that provides employees to a client company that has been determined to be uninsured or ineligible for coverage under sections 65-04-27.1 and 65-04-33 may not secure workforce safety and insurance coverage for those employees.

a. The organization shall determine whether an entity is a staffing service. If the organization determines an entity is a staffing service, the organization may further determine if the entity is a temporary staffing service. In rendering either determination, the organization may issue a decision under section 65-04-32. If the organization determines an entity is not a staffing service, the client company shall maintain a workforce safety and insurance account and pay the premium for coverage of the employees.

b. The factors the organization may consider in determining whether an entity is a staffing service include the number of client companies handled by the staffing service, the length of time the staffing service has been in existence, the extent to which the staffing service extends services to the general public, the degree to which the client company and staffing service are separate and unrelated business entities, the repetition of officers or managers between the client company and staffing service, and the extent to which a client company has an ownership or other interest in the staffing service. The organization also may consider the scope of the services provided by the staffing service, the relationship between the staffing service and the client company's workers, the written agreement between the staffing service and the client company, and any other factor deemed relevant by the organization.

c. The organization may require information from any staffing service, including a list of current client company accounts, staffing assignments, payroll information, and rate classification information. A client company shall provide any information requested by the organization regarding any staffing service.

8. The organization may adopt rules consistent with this section which further define client company and staffing service and which provide a procedure by which the organization may determine whether an entity meets these definitions.

N.D.C.C. § 65-01-08

Amended by S.L. 2019, ch. 524 (HB 1072),§ 2, eff. 8/1/2019.