Case Information
*1 k/l OFFICE OF
THE ATTORNEY GENERAL ., Aummv. TEXAS
PRICE DANIEL pmRNEY GENERAL Ivovember 14, 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Your oNgina request for an oplnioti, dated~ Sep- tember 23; havlugbeea withdrawn and later revived by your letter of October 20, we'quote in part from both of your requests: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 partnership under the name of Man-Ser-Co., Ltd.,'managed,bp James H. Bash, proposes to operate as iollows:
!'Man-Ser-Co., Ltd., will undertake to. sell employers upon the proposition that they can hire employees.who are 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, psychological and'aptitude tests to determlne.thelr fitness for the particu- lar work which the successful applicant wlll'be required to do for the employer. The advertise- ments will be ~run in the dally newspapers in the name of Man-&r-Co., Ltd. The applicants will re- port to the offices of Man-Ser-Co.;Ltd. The ad- vertisements may 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 statements contained therein will be true and not misleading. Man-Ser-Co., Ltd., will not
Hon. M. B. Morgan, page 2, V-430.
procure common laborers ore agricultural work- ers . At no tlme.will any aPPlicant for em- ployment, Including the successful applicant, pay or promise to pay anything whatsoever to Man-Ser-Co., Ltd. The entire compensation of Man-Ser-Co., Ltd., will come from the employer. . . . .
~"Our questions are:
,"l. Will it be permissible to allow " fan agenay to operate who charges only the employer?
"2 ; What control-$hall we have in re- gard to fees? Shall the charges td the employers be the ssme'as 'that stipulated by the law for em- ployees?'
With regard to $XIF first question, the pertinent parts of Article 5221a-4 read as follows: %&Ion 1,. '(b)~ 'Feel means anything of value including money,or other valuable con- ., Lo tilderation or services br.,the promise of any of the foregoing reoelved by an employment " '(e) Tmploymedt or Labor Agent"mear;s'~r;y"person in this State who f6r a fee offers ;or~attempts to procure or procties employment fdr employees, ,or without a fee of- fers'or attempts to proctipe or.proo~ss employ- ineit fo?.common l%or&s or ixgrlcultural workers, dr, an? person who for a fee offers .or attempts to procure or~procures.employees for employers', nor withoutis fee offers or,at$empts to procure',or prohre* common laborers,or agricultural workers for etiployers, or',any person; ,regardless of whether a.fee~is.,rqceived or due,.offers or at- ~tempts to supply'or supplies the services $f corn- ;"mon pr ag+?ult~aI workers to.:+ny peTson. ~Unquestlonably, employm6nt @enc.lies relying upon employers'for their fees are covered by the abov&statute.
Hon. M. B. Morgan, page 3, V-430
Such agency aomes within the particular pt of the definition of "em+?oyment or labor agent which,speclf- ically reSers to any pers?n nho for a fee offers or attempts to procure or procures employees .for employers".
The definition of "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 definition of "fee" to its essential compo- nents, for appllcatlon to your fact situation, it reads as follows:
_';
"lb) 'Fee' means anythlng~b? value . A .
received by an employment agency from . . . v
person seeking employment or employees . . .
The logical interpretation of the above lang- uage is that it refers to disjunctive positions and means "fromany person seeking employment or any persria seeking employees. The alternative interpretation would.be that the enunclatlon means "from any person seeking employment or Srom employees." We think the latter interpretation to be an unlikely and illogical disjunctive as it would render ineff.ectlve the part@ular part of the statute quoted above ~vhlch defines an employment agency as including the sltua- tloti where 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 authortied to do so by the provisfons of Artlcl6 522la+ and is covered by the provisions and requ-lrements therein relating to all employment agencies, except as hereit+fter noted.
Your next question relates to the control of the Oommlsslon of the,Bureau OS Labor Statlstlcs over the amount OS the fees charged the employer by the employment agency.
!Phe provislons.of the'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'applicant only after em- ployment has been obtained and accepted by the applicant; provided, however, employment or labor agents engaged exclusively in providing employment for skilled, professional, or cl&i- cal positions may 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 employment has 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 aDnllcatlon where a fee Is charged for obtaining employees: There'can be no'doubt that the undevtatute is to protect those seeking employment from exploitation by an employm&nt agency that mlght be tempted to take advantage of'the vulnerability of the employment seeker. This consideration does not obtail where the employers are seeking competent em lo ees' and are willing to pay a fee to an employment agency t t proposes --+iF-' to furnish such employees.
We advise you as to your second question that the Commi6sloner of 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 obtaining employees.
In this holding, we follow Opinion No. O-7299, previously rendered by this department.
SUMMARY An employment agency which operates by charging employers a fee for obtaining employees is authorized to do so by the provisions of Art.
5221a-4, V. C. S., except that the amount of the fee to be charged employers by the employment *5 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: