                                                               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       tember 23; havlugbeea withdrawn and later revived by your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



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