34:8-71 Registration, annual reporting.

5. a. (1) Every initial registration and subsequent annual reporting shall be accompanied by a financial statement prepared in accordance with generally accepted accounting principles and audited by an independent certified public accountant, which statement shall show a positive working capital, computed as current assets minus current liabilities. The financial statement shall be without qualification as to the going concern status of the employee leasing company.

(2) At the time of an application for an initial registration an employee leasing company shall submit to the department an audited financial statement prepared within 13 months of the application. Thereafter, an employee leasing company shall file with the department on an annual basis, within 180 days of the end of the employee leasing company's fiscal year, a current audited financial statement. An employee leasing company may request the department for an extension for this filing, which shall be accompanied by a letter from the employee leasing company's independent certified public accountant stating the reasons for the requested extension and the anticipated date of the completion of the audited financial statement.

b. (1) An employee leasing company that does not have a positive working capital may provide to the department, in lieu thereof, a bond, irrevocable letter of credit, or securities with a minimum market value equaling the amount necessary to achieve a positive working capital plus up to $100,000, such additional amount to be determined by the commissioner or his designee. The securities so deposited shall include authorizations to the commissioner, or his designee, to sell those securities in an amount sufficient to pay any taxes, wages, benefits or other entitlement due a covered employee, if the employee leasing company does not make those payments when due. The provisions of this paragraph shall not apply to an employee leasing company group registered pursuant to subsection e. of section 4 of P.L.2001, c.260 (C.34:8-70).

(2) The commissioner, or his designee, may also require that bond or deposit if the commissioner finds that the leasing company has had its license or registration suspended, denied, or limited in any other jurisdiction; or that there have been instances in which the employee leasing company has not paid covered employees' wages or benefits when due, or failed to make timely payment of any federal or state payroll taxes or unemployment compensation contributions when due, or for other good cause.

(3) Any bond or securities deposited under this subsection shall not be included for the purpose of the calculation of positive working capital required by subsection a. of this section.

c. An employee leasing company shall submit to the commissioner, or his designee, within 60 days after the end of each calendar quarter, a certification by an independent certified public accountant that all applicable federal and state payroll taxes for covered employees in this State have been paid on a timely basis for that quarter. If the commissioner or his designee does not receive that certification within the 60-day period, the department shall notify the employee leasing company within five business days of the expiration of the 60-day period. If that certification is not received within 10 business days following the notification by the department, the department shall notify the client companies listed on the employee leasing company's annual report required pursuant to section 4 of this act that the certification was not received.

d. Two or more employee leasing companies that are majority owned by the same ultimate parent company, entity or person may comply with the provisions of this section pursuant to subsection e. of section 4 of P.L.2001, c.260 (C.34:8-70).

e. The department may adopt, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.) rules and regulations to permit, to the extent authorized pursuant to the "Uniform Electronic Transactions Act," P.L.2001, c.116 (C.12A:12-1 et seq.), employee leasing companies to electronically file applications, documents, reports and other filings required by P.L.2001, c.260 (C.34:8-67 et seq.). The department may also adopt, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), rules to provide for the acceptance of electronic filings and other assurance by an assurance organization that provides satisfactory assurance of compliance acceptable to the department consistent with or in lieu of the requirements of section 4 of P.L.2001, c.260 (C.34:8-70) and of this section and other requirements of P.L.2001, c.260 (C.34:8-67 et seq.) or the rules promulgated pursuant to it. The rules may permit an employee leasing company or an employee leasing company group to authorize an assurance organization to act on behalf of an employee leasing company or an employee leasing company group in complying with P.L.2001, c.260 (C.34:8-67 et seq.) and any rules and regulations adopted pursuant thereto, including electronic filings of information and payment of fees that may be required. The rules and regulations adopted pursuant to this subsection may include, but need not be limited to, an identification of those other provisions of P.L.2001, c.260 (C.34:8-67 et seq.) that may be complied with through an independent assurance organization. Use of an approved assurance organization shall be optional and not mandatory for an employee leasing company or an employee leasing company group. Nothing in this subsection shall limit or change the department's authority to register or rescind the registration of an employee leasing company or to investigate or enforce any provision of P.L.2001, c.260 (C.34:8-67 et seq.).

L.2001, c.260, s.5; amended 2011, c.118, s.4.