Mr. Gary Pon Department of Labor and Employment Division of Labor 1313 Sherman Street Denver, Colorado 80203
Dear Mr. Pon:
I am writing in response to the request of your office for a formal legal opinion concerning the legality of fees charged by an employment agency prior to the applicant accepting or beginning employment. Some of these issues were addressed in an informal opinion dated March 10, 1982 written by Robert S. Hyatt, assistant attorney general. More recently, your office requested a formal opinion on May 7, 1982 relating to the above stated issue.
QUESTION PRESENTED AND CONCLUSION
Your request for an attorney general's opinion is based on the question of whether or not private employment agencies licensed under C.R.S. 1973, 12-24-101 et seq., as amended, can legally charge applicants a fee prior to an applicant accepting or beginning employment procured through efforts of the employment agency.
No prohibition against such fee arrangements was found in the statute and, in fact, the statute allows for creative fee arrangements so long as the extended fee arrangement set forth at 12-2-111 is first offered.
ANALYSIS
C.R.S. 1973, 12-24-110(1) states in part:
Fees paid by an applicant to a private employment agency shall be computed on the basis of permanent employment, unless agreed otherwise or unless such permanent employment shall be deemed temporary under the provisions of this subsection (1).
(emphasis provided). The words "unless agreed otherwise" apply to the computation on the basis of permanent employment. It therefore allows for a computation to be agreed upon between the employment agency and the applicant which is not based on permanent employment.
Although the above provision is not directed at when a fee must be paid, C.R.S. 1973, 12-24-111(3) does address payment terms generally which would include when a fee must be paid. C.R.S. 1973, 12-24-111(3) states:
Nothing in this section shall be construed to prohibit an agreement between the applicant and the agency for payment terms different from those contained in this section so long as the extended payment option shall have been offered first to the applicant.
This section allows any reasonable agreement to exist between the applicant and the agency regarding payment terms so long as the extended payment option has been offered first to the applicant. Therefore, an arrangement arrived at between the applicant and the agency regarding the payment of a fee to be paid to the agency by the applicant prior to the accepting or beginning employment procured through efforts of the employment agency is legal so long as the extended payment option was first offered to the applicant and the applicant refused said option.
SUMMARY
In conclusion, it is my opinion that private employment agencies licensed under C.R.S. 1973, 12-24-101 et seq., as amended, can legally charge applicants a fee prior to the applicant accepting or beginning employment procured through the effort of the employment agency.
Very truly yours,
J.D. MacFARLANE Attorney General
EMPLOYMENT AGENCIES FEES EMPLOYMENT
C.R.S. 1973, 12-24-101 C.R.S. 1973, 12-24-110(1) C.R.S. 1973, 12-24-111(3)
LABOR EMPLOYMENT DEPT. Labor, Div. of Industrial Commission
Private employment agencies licensed under C.R.S. 1973, 12-24-101et seq., can legally charge applicants a fee prior to the applicant accepting or beginning employment procured through the efforts of the employment agency.