Professional employer organizations (PEOs) began their rise after the adoption of the Tax Equity and Fiscal Responsibility Act of 1982 cleared a path for the creation and expansion of such entities. Over 700 professional employer organizations operate in all 50 states. According to the National Association of Professional Employer Organizations, between two and three million employees work under a PEO arrangement and PEO’s as an industry earned $61 billion in gross revenues in 2007 (gross revenues are the total payrolls plus the fees charged by the PEO).
PEO contracts are co-employment arrangements whereby the professional employer organization and the client with whom they contract both retain some right of control over the individual worker or workers collectively. Such relationship is wholly different than a leased employee or the use of a borrowed servant as detailed in the three previous articles. Leased employees and borrowed servants are under the absolute control (as defined by the prior articles) of the special employer. Co-employment vests responsibility and control with both parties to the contract.
The National Association of Professional Employer Organizations (NAPEO) explains these responsibilities in their Website as follows:
The PEO relationship involves a contractual allocation and sharing of employer responsibilities between the PEO and the client. This shared employment relationship is called co-employment.
As co-employers with their client companies, PEOs contractually assume substantial employer rights, responsibilities, and risk through the establishment and maintenance of an employer relationship with the workers assigned to its clients. More specifically, a PEO establishes a contractual relationship with its clients whereby the PEO:
• Co-employs workers at client locations, and thereby assumes responsibility as an employer for specified purposes of the workers assigned to the client locations.
• Reserves a right of direction and control of the employees.
• Shares or allocates with the client employer responsibilities in a manner consistent with maintaining the client’s responsibility for its product or service.
• Pays wages and employment taxes of the employee out of its own accounts.
• Reports, collects and deposits employment taxes with state and federal authorities.
• Establishes and maintains an employment relationship with its employees that is intended to be long term and not temporary.
• Retains a right to hire, reassign and fire the employees.
When evaluating the employer role of either the PEO or the client, the facts and circumstances of each employer obligation should be examined separately, because neither party alone is responsible for performing all of the obligations of employment. Each party will be solely responsible for certain obligations of employment, while both parties will share responsibility for other obligations. When the facts and circumstances of a PEO arrangement are examined appropriately, both the PEO and the client will be found to be an employer for some purposes, but neither party will be found to be “the” employer for all purposes.
NCCI and PEO Arrangements
NCCI has continued to monitor the workers’ compensation issues and problems created when employers choose to join a professional employer organization. A 2005 report printed in NCCI’s Workers’ Compensation Issues Report delineates and briefly discusses many of the continuing issues. A few of the problems/issues discussed in the NCCI article include:
• Experience Modification Calculations: Most states require the PEO to individually monitor and report the claims experience of each individual client. The purpose is to thwart the efforts of employers with bad experience to escape their problems by joining a PEO for a couple of years then coming back out and starting over. Since individual experience must be monitored and reported, the employer’s experience mod will be correct based on its experience; they will not get a 1.0 when they leave the PEO unless that is what they have earned;
• The ability of executive officers to exclude themselves (if allowed by law); and/or the ability of sole proprietors or partners to include themselves (if allowed by law). The ability to include or exclude members of an LLC (based on the applicable state law);
• Problems that might arise if the employer/client hires an uninsured subcontractor. Is the PEO’s workers’ compensation carrier required to pay as the statutory employer?
• Problems that arise out of PEO’s being insured in State Assigned Risk pools; and
• Are the proper endorsements in place? For example, NCCI states in this article that the Alternate Employer Endorsement is not intended for use in co-employment situations. However, without using this endorsement there is a problem when trying to effectuate and confirming the proper dovetailing of coverage between the employer/client and the PEO (this will be shown below).
The report from NCCI specifically lists and highlights more problems than those listed above.
Four endorsements are available for use in co-employment situations (an additional form may be necessary depending on the jurisdiction as detailed below). Two are client-specific and two are designed to be attached to the PEO’s policy. Contractual agreement between the PEO and the employer regarding which entity is responsible for providing workers’ compensation benefits governs which endorsements are used.
Employer/Client is responsible for providing workers’ compensation. When the employer/client is contractually responsible for providing the benefits, two endorsements dovetail to provide the necessary or required workers’ compensation benefits:
• Labor Contractor Endorsement (WC 00 03 20 A). This endorsement is attached to the client’s (the leasing employer’s) policy. Attachment of this endorsement extends benefits to the leased employees from the employer’s policy and essentially provides additional insured status to the scheduled PEO. The use of this endorsement is coupled with the…
• Labor Contractor Exclusion Endorsement (WC 00 03 21). Attached to the PEO’s workers’ compensation policy, this exclusionary endorsement excludes coverage for employees leased to the client(s) scheduled in the form. This endorsement is used when the client leases employees on an “other-than-short term” basis and such client is charged with providing the workers’ compensation benefits.
PEO is responsible for providing workers’ compensation protection. As above, two endorsements, one attached to the employer’s/client’s policy and the second to the PEO’s, work in tandem to assure that coverages mesh as per the contractual agreement that the PEO will extend workers’ compensation benefits to the workers.
• Employee Leasing Client Exclusion Endorsement (WC 00 03 22). Attach this endorsement to the employer’s/client’s workers’ compensation policy to exclude the extension of workers’ compensation benefits to employees leased on a long-term basis from the labor contractor (PEO) scheduled in the policy. Only used when the PEO is responsible for providing coverage. The employer/client must confirm that the PEO attaches the…
• Professional Employer Organization (PEO) Extension Endorsement (WC 00 03 20 B). Workers’ compensation and employers’ liability benefits extend exclusively from the PEO’s when this endorsement is attached to the PEO’s policy. This extension only applies to employees leased to the client(s) listed on the schedule.
• Alternate Employer Endorsement (WC 00 03 01 A). Although NCCI states that this endorsement is not properly used in co-employment situations and even the form itself does not contemplate its use in these relationships; if the insured is located in a state that has not approved the PEO Extension Endorsement discussed above, this may be the only way to extend coverage from the PEO’s form to protect the employer/client. This endorsement is attached to the PEO’s policy naming the employer/client as the alternate employer. The use of this form in co-employment contracts is not recommended and should be avoided if possible.
Workers’ Compensation Policies for Employers in PEOs
As evidenced by the above discussion, it is absolutely essential that the employer/client have in place a workers’ compensation policy even when the PEO is contractually providing coverage. Since both entities are legally employers and in fact are the “employers of record,” such contractual arrangement does not preclude the necessity of coverage.
Exposure to a workers’ compensation claim still exists if an uninsured subcontractor is hired, if there are employees hired outside of the leasing contract (temporary workers, etc.) or any of the other potential gaps in protection as studied, reported and monitored by NCCI. And while it may seem like a weak argument, without a workers’ compensation policy in force, the employer/client has nothing to which these endorsements can attach attesting that coverage is extended from another party.
Lastly, if the PEO loses its coverage or goes out of business suddenly, the employer is in violation of the law until coverage can be replaced. Certainly many employers have received notice that the PEO with whom they were contracted is no longer in business. When I owned my agency I had a PEO (I bought it with that set up, I did not create it). I received a fax one evening stating that the PEO would cease to operate the next day; workers’ compensation coverage had to be placed, immediately, and I became responsible for payroll administration and other functions inherent in human resources management with just a few hours notice.
Employers should carry the workers’ compensation policy even if it must be set up using “If Any” payrolls. The cost is very low for the protection it provides. A central theme of risk management is “don’t risk a lot for a little.” The small premium may avoid big problems.