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tember 23; havlugbeea withdrawn and later revived by your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: