31A-40-204. Rights and obligations unaffected -- Licensed, registered, or certified
occupations or professions.
(1) This chapter does not and a professional employer agreement may not affect, modify,
or amend a:
(a) collective bargaining agreement; or
(b) right or obligation of a client, professional employer organization, or covered
employee under:
(i) the federal National Labor Relations Act, 29 U.S.C. Sec. 151 et seq.;
(ii) the federal Railway Labor Act, 45 U.S.C. Sec. 151 et seq.; or
(iii) a state law similar to a federal law described in this Subsection (1)(b).
(2) (a) A professional employer agreement may not:
(i) diminish, abolish, or remove a right of a covered employee to a client or an obligation
of the client to a covered employee that exists on or before the day on which the professional
employer agreement takes effect;
(ii) affect, modify, or amend a contractual relationship or restrictive covenant between a
covered employee and a client in effect on the day on which the professional employer agreement
takes effect; or
(iii) prohibit or amend a contractual relationship or restrictive covenant that is entered
into between a covered employee and a client after the day on which the professional employer
agreement takes effect.
(b) A professional employer organization is not responsible or liable in connection with,
or arising out of, a contractual relationship or restrictive covenant described in Subsection (2)(a)
unless the professional employer organization specifically agrees to be responsible in writing.
(3) This chapter does not and a professional employer agreement may not create an
enforceable right of a covered employee against a professional employer organization that is not
specifically provided by the professional employer agreement or this chapter.
(4) (a) Except as provided in this Subsection (4), this chapter does not and a professional
employer agreement may not affect, modify, or amend a state, local, or federal license,
registration, or certification requirement applicable to a client or a covered employee.
(b) If a covered employee is required by federal or state law to be licensed, registered, or
certified, the covered employee is considered to be solely an employee of the client for purposes
of the license, registration, or certification requirement.
(c) A professional employer organization is not considered to engage in an activity that is
subject to licensing, registration, or certification by a local, state, or federal government or is
regulated by a local, state, or federal government solely by entering into or maintaining a
coemployment relationship with a covered employee who is:
(i) subject to licensing, registration, or certification; or
(ii) regulated by the local, state, or federal government.
(d) A client has the sole right to direct or control a professional, licensed, registered, or
certified activity of:
(i) a covered employee; and
(ii) the client's business.
(e) Notwithstanding this chapter, a covered employee and client remain subject to
regulation by the local, state, or federal government responsible for licensing, registration, or
certification of the covered employee or client.
Enacted by Chapter 318, 2008 General Session
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Last revised: Thursday, May 28, 2009