DAN MORALES 

.ATTTORSEY GESERAL 

QMfice’of tly !Zlttornep @eneral 

&ate of Gxas 

Honorable 0. H. “Ike” Harris 

Chair 

Committee on State Affairs 

Texas State Senate 

P.O. Box 12068 

Austin, Texas 78711 

August 12,1993 

Opinion No. DM-243 

Re: Whether a person who provides “common 

workers” to “third party users” under V.T.C.S. 

article 522la-10 is an employer for purposes of 

providing workers’ compensation and unemployment insuranw (RQ-540) 

Dear senator Hanis: 

Article 522la-10, V.T.C.S. (the “act”), adopted in 1991. imposes licensing and 

other requirements on persons who provide “common workers” to “third party users.” 

Acts 1991, 72d Leg., ch. 480, at 1708. You ask whether a such a peraon is the 

“employer” of a common worker for purposes of providing workers’ compensation and 

unemployment insurance. You ask this question with respect to two time periods: 

September 1. 1991 to December 31, 1991, and January 1, 1992 to the present. We 

conclude that a person who provides “common workers” to “third party users” is an 

employer of such common workers under the act and is responsible for providing workers’ 

compensation and unemployment insurance during both time periods, to the extent 

required of employers by other law. 

Before answering your question we briefly examine the ads provisions. Section 2 

of the act provides in pertinent part: 

DEPINITIONS. In this Act: 

. . 

(2) “Common worker” means an individual who performs labor 

involving physical tasks that do not require a particular skill, training 

in a particular occupation, craft, or trade, or practical knowledge of 

the principles or processes of an art, science, cm& or trade. 

. . 

(8) “Temporary common worker agent” or “temporary ccmtnon 

worker agency” means a temporary common worker employer. 

(9) ‘Temporary common worker, employer” means a person dial 

provides common worker empIoy?es to a thirdpar@ user. 

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Honorable 0. H. “Ike” Harris - Page 2 (DM-243) 

(10)“Thirdparlyuser”meansapersonwhousesthesavicesofa 

wmmon worker provided by a temporary common worker employer. 

p3nphasisadded.J 

Section 4 provides that a person must have a license to operate as a “temporary wmmon 

worker employer” in the state., Section 5 provides for the issuance of licenses by the 

Department of Licensing and Regulation. Section 6 places various duties and restrictions 

on “license holders.” It limits the charges that may be imposed on wmmon workers and 

the deductions that may be made &nn their wages; establishes conditions for the premises 

on which wmmon workers wait for assignments; provides that the license holder is an 

“employer”; and establishes record keeping requirements. 

Section 7 exempts certain entities firorn the req&ements of the Ilct, including 

“temporary skilled labor age%” “employee leasing en&i*” “labor union hbing halls” 

andI3 overmental programs. Section 8 governs wncurren t mgulation of license holders 

by municipaIitiu or other govemmed sltbdivisions. Section 9 provides for annual 

Iicuue tknewal. Section 10 provides penalties for violations of the act and administrative 

ndesorordaradoptedtbaamda. 

Sections 11 and 12, which 8ppear to have prompted your requw govern the 

el%cdvedatesofdiEerentpartsoftheact. Section 11 providesthat”aperaonisnot 

requircdtoobuinalicaw”untilJunrary1.1992,~tbottbedepprtmaamust~o~ 

ruleaforadministeringtheactbythatdate.* Section12providesthattheacttakesetFect 

sepader 1,199l. “except that section!j 4 and 10 take e!Ibct January 1.1992.” 

wrthrrspecttoywquestions,wefintaddnssthetimepaiodJanuary1.l992to 

the present. We wnchde that a person who operates as a “temporary wmmon worker 

employer,” i.e.. a person who provides common worker anployees to a third party user, is 

the anployer of the wmmon worker employees for this period. This is the clear import of 

subsection (0 of section 6. which provides: 

A license holder is the employer of the common worker. A license 

holdermayhire,reassign,wntro~direo&anddischargethelicense 

holder% empIoyeea. 

Section 4 of the act prohibii a person who opemtes as a temporary common worker 

employer &om doing so without a License. Thus, we conclude that a temponuy common 

worker employer has au of the responsibiities to his employees attendant with the 

employe&mployee relationship, including the obligation to provide workers’ wmpensation or unemployment insurance to the extmt imposed on employers by other law. &e, 

e.g., V.T.C.S. art. 8308-3.23 (“employer” election to obtain workers’ wmpensation wverage for employees); art. 522%5 (“employer” unemployment insurance contributions). 

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Honorable 0. H. “Ike” Harris - Page 3 (DM-243) 

Our wnchtsion is no di&rent for the time period from September 1, 1991 to 

Dewmbu 3 1.1991. Section 11 delays the. effective date of section 4, the provision which 

requires a person who operates as a “temporary wtnmon worker employer” to obtain a 

license, and section 10, the provision which provides crimimd penalties for violations of 

the act. It does not delay the eSbctive date of any other provision, inchtding the various 

requirements set forth in section 6. As noted above, under section 6, s§ion (f), a 

liwnse holder, a person who operate-s as a “temporary common worker employer,” is the 

employer of the common worker employees which he or she provides to third party users. 

We beliewe that such a person was an employer during this time period even though he or 

she was not required to obtain a license until January 1, 1992, and therefore may not have 

had a license and bear a kense holder until that date. The requirements of section 6 are 

obviously intended to apply to ah persons who operate as “temporary wtnmon worker 

employerq” not just those who have obtained licenses. This reading is consistent with 

section1oftheactwhichde&resthatitis”~ to provide for the health, safety and 

weBire of workers throughout the state” and that the act “shah be carried out in 

accordanw with this putpose.” 

Awordingly, we wnchde that since September 1, 1991, a person who has 

provided wnunon workers to third party users has been the “employer” of those common 

workers under article 5221a-10, V.T.C.S., regardless whether he or she obtained a Ihnse 

as r@red by the act. Therefore, such a person has been responsible for providing 

workers’ wmpensation and unemployment itwtam ikom September 1.1991 to the 

present, to the extent requhed of employers by other law. 

p. 1254 
Hottom& 0. H. “Ike” H&S - Page 4 W-243) 

SUMMARY 

SinccSqtmberI. 1991,apuaonw&ohprovickdwmmon 

workeratotbirdpulylJK!lahasbeenthc”anployeFofthosc 

wmmon workers tmda V.T.C.S. article 5221a-10, rqadkss 

whetherhcoraheobtaiacdalicuue8srequiredbythcact. Stir 

person has been rcsponiik for proidbg workers’ compensation and 

UMnploymen- fromseptrmbsr1,1991tothepresem,to 

theexte4ltqliredofanployersbyothcrkw. 

DAN MORALES 

AttOlIK!yGGlIdOfTtX&? 

WlLL PRYOR 

FhtAsaktaaAttonteyGateral 

MARYKELLER 

Deputy Attomey General fbr Litigation 

RENEAHlcKs 

state solkitor 

MADELEINE B. JOHNSON 

Chair, Opiion Committee 

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