Untitled Texas Attorney General Opinion

k/l OFFICE OF THE ATTORNEY GENERAL ., Aummv. TEXAS PRICE DANIEL pmRNEY GENERAL Ivovember14, 1947 Hon. M. B. Morgan, Commlssloner Opinion No. V-430 Bureau of Labor Statistics Austin, Texas Re: Whether an emplog- ment agency which collects its fees from employers ln- stead of employees 1s covered by Art. 5221a-4, V. C. S.,( and a related ques- tlon. Bear Sir: Your oNgina request for an oplnioti,dated~Sep- tember 23; havlugbeea withdrawn and later revived by your letter of October 20, we'quote in part from both of your requests: ". . :. A limited partnershipunder the name of Man-Ser-Co.,Ltd.,'managed,bpJames H. Bash, proposes to operate as iollows: !'Man-Ser-Co.,Ltd., will undertake to.sell employers upon the propositionthat they can hire employees.whoare bettea'stiited to their needs if they will engage the services of Man-Ser-Co.,Ltd. to study their job requirements,then to advertise for such employees as they require., Man-Ser-Co., Ltd., will subject the applicants to intelligence, experience,education,psychologicaland'aptitude tests to determlne.thelrfitness for the particu- lar work which the successfulapplicant wlll'be required to do for the employer. The advertise- ments will be ~runin the dally newspapers in the name of Man-&r-Co., Ltd. The applicantswill re- port to the offices of Man-Ser-Co.;Ltd. The ad- vertisementsmay be by means of cards, circulars, signs, In newspapers or other publications,and will set PoFth the name and address of Man-Ser-Co., Ltd. The statementscontained therein will be true and not misleading. Man-Ser-Co.,Ltd., will not Hon. M. B. Morgan, page 2, V-430. procure common laborers oreagriculturalwork- ers . At no tlme.will any aPPlicant for em- ployment, Including the successfulapplicant, pay or promise to pay anythingwhatsoever to Man-Ser-Co.,Ltd. The entire compensationof Man-Ser-Co.,Ltd., will come from the employer. . . . . ~"Ourquestions are: ,"l. Will it be permissibleto allow " fan agenay to operate who charges only the employer? "2; What control-$hallwe have in re- gard to fees? Shall the charges td the employersbe the ssme'as 'that stipulatedby the law for em- ployees?' With regard to $XIF first question, the pertinent parts of Article 5221a-4 read as follows: %&Ion 1,. '(b)~'Feel means anything of value includingmoney,or other valuable con- ., tilderationor services br.,thepromise of any Lo of the foregoing reoelved by an employment " '(e) Tmploymedt or Labor Agent"mear;s'~r;y"personin this State who f6r a fee offers ;or~attemptsto procure or procties employment fdr employees,,orwithout a fee of- fers'or attempts to proctipeor.proo~ss employ- ineitfo?.commonl%or&s or ixgrlcultural workers, dr,an? person who for a fee offers .orattempts to procure or~procures.employees for employers',nor withoutis fee offers or,at$emptsto procure',or prohre* common laborers,oragriculturalworkers for etiployers,or',anyperson;,regardlessof whether a.fee~is.,rqceivedor due,.offersor at- ~tempts to supply'or supplies the services $f corn- ;"mon pr ag+?ult~aI workers to.:+nypeTson. ~Unquestlonably,employm6nt@enc.lies relying upon employers'fortheir fees are covered by the abov&statute. Hon. M. B. Morgan, page 3, V-430 Such agency aomes within the particular pt of the definitionof "em+?oymentor labor agent which,speclf- ically reSers to any pers?n nho for a fee offers or attempts to procure or procures employees.foremployers". The definitionof "f&e" in the statute Is lncluspve of the SitwtiOn you have reference to where the e pays a fee to the agency for choosing quallfle+-= personnel. Reducing the definitionof "fee" to its essential compo- nents, for appllcatlonto your fact situation, it reads as follows: _'; "lb) 'Fee' means anythlng~b? value . A . received by an employmentagency from . . . v person seeking employmentor employees . . . The logical interpretationof the above lang- uage is that it refers to disjunctivepositions and means "fromany person seeking employmentor any persria seeking employees. The alternative interpretationwould.be that the enunclatlon means "from any person seeking employment or Srom employees." We think the latter interpretationto be an unlikely and illogical disjunctive as it would render ineff.ectlve the part@ular part of the statute quoted above ~vhlchdefines an employment agency as including the sltua- tlotiwhere a person, for a fee, procures employees foti employers. We therefore answer your first question to the effect tbst;an employment agency operating at the~behest of the employer,charging Sees of the employer alotie;is authortiedto do so by the provisfons of Artlcl6 522la+ and is covered by the provisions and requ-lrementstherein relating to all employment agencies, except as hereit+fter noted. Your next question relates to the control of the Oommlsslonof the,Bureau OS Labor Statlstlcs over the amount OS the fees charged the employer by the employment agency. !Pheprovislons.ofthe'statute applging to the fees to be charged nead as follows: '174 Eon. M. B. Morgan, Page 4, v-43O "Sec. 11. Where a fee.1s charged for.ob- taining employment,such fee In no event shall exieed the sun'of Three ($3) Dollars, which may be collected,from the'applicantonly after em- ployment has been obtained and acceptedby the applicant;provided, however, employmentor labor agents engaged exclusivelyin providing employmentfor skilled, professional,or cl&i- cal positionsmay charge, with the written con- sent of the applicant, a fee, not to exceed thirty (30) per centum of the first month's sal- ary, which may.be collected from the applicant only after employmenthas be&n obtained and ac- cepted by the applicant." It will be seen that this Section applies only where a fee.Is charged for obtaining employment. This pro- vision of the statute has no aDnllcatlonwhere a fee Is charged for obtaining employees: There'canbe no'doubt that the undevtatute is to protect those seeking employmentfrom exploitationby an employm&ntagency that mlght be tempted to take advantage of'the vulnerability of the employmentseeker. This considerationdoes not obtail where the employers are seeking competent em lo ees' and are --+iF-' willing to pay a fee to an employmentagency t t proposes to furnish such employees. We advise you as to your second question that the Commi6slonerof the Buieau of Labor Statistlcti is not au- thorized to control the amount of the fee that an einploy- ment agency may charge an employer for obtainingemployees. In this holding, we follow Opinion No. O-7299, previouslyrendered by this department. SUMMARY An employmentagency which operatesby charging employers a fee for obtaining employees is authorizedto do so by the provisionsof Art. 5221a-4,V. C. S., except that the amount of the fee to be charged employersby the employment Hon. M. B. Morgan, page 5, V-430 . is not llmlted by the provisions-&d-7-;JLrfs -4 --:, 2%% 11 of ht. 5221a-4 since this Section relates only to the fee which an employment agency may charge employees. Very truly yours ATTORNEYW?RRALOFTRXAS . BY RJC:rt APPROVED: