Untitled Texas Attorney General Opinion ( 1955 )

March 2, 1955 Mr. M. B. Morgan Opinion No. S-153 Commissioner Bureau of Labor Statistics Re: Applicability of the Capitol Station Private Employment Austin 11, Texas Agency Law, Article 5221a-6, V.C.S., to a voluntary associa- tion of undergraduate Dear Mr. Morgan: and vocational nurses. Your request for an opinion relates to a group of undergraduate and licensed vocational nurses who have organ- ized a voluntary association and set up a non-profit nurses registry to which they pay monthly dues or assessments to pay the registrar's salary and Incidental expenses of the registry. It has been reported to your office that the association registrar makes placements for the member nurses by contacting hospitals and offering to supply nurses when they are needed. The nurse is usually en- gaged by the hospital and paid by the patient for her services s In view of the above facts you ask these ques- tions which we paraphrase as follows: 1. Would the practice of solicitation or adver- tisement either for members for the association or for employment for the members of such association make the association subject to the Private Employment Agency Law? 2. If the above question is answered in the negative, to what extent may such association go in the solicitation of membership as well as soliciting emplog- ment for the members of the association through hospitals and physicians without being in violation of the Private Rmployment Agency Law. Would such registrar be prohibited from recommending to the various hospitals that they use the service of the registry? Mr. M. B. Morgan, page 2 (S-153) The sedtions of the Private Employment Agency Law, Article 5221a-6, Vernon’s Civil Statutes, pertaining to your questions are: “Section 1, (e) ‘Private Etnployment Agent’ means any person in this State who for a fee or without a fee offers or attempts to procure employment for employees. . .” “Section 2. . . . The provisions of this Act shall not apply . . . to any nurses’ organl- zation operated without profit when conducted by registered nurses for the enrollment of its professional members only for the purpose of proviSflng professional service to the public; . . . The queEition which arises Is whether this associa- tion is within the exemption set out in Section 2 above. In Attorne General’s opinions numbered O-6879 (1945) and O-7369 (19 g 6) this office passed on the question of member- ship fees charged by a nurses organization. In O-7369 it is stated: “The facts indicate that a group of undergraduate and practical nurses are seeking to form a VoluntaFg association and hire 8 person to keep a record of their employment and assess themselves a sufficient amount per month to pay the salary of the person so employed, and all other Incidental expenses. It is the opinion of this department that such voluntary organization does not come within the definition of an employment or labor agent. . .” These opinions were rendered under Section 2 of Article 5221a-4, :.C.S., which provided for the exemption in these words: . . . the provisions of said Act shall not apply . . . to any nurses’ organizations operated not for nroflt, to be conducted by recognized professional registered nurses for the enrollment of its professional members only for the purpose of providing professional service to the public.’ Mr. M. B. Morgan, page 3 (S-153) Said section was repealed and r.eenacted by Sec- tion 2 of Article 5221a-6 ~above. The only difference was the omission of the words "recognized professional" from the current act. Thus under the facts given and In accord with our prior opinions we must hold that this association would be within the exception given in Section 2 of the Act. Having placed this Association within the excep- tion given in Section 2, we turn to your first question which is that when there has been an overt act of solicita- tion of members or an attempt to procure employment for the members of the Association is the Association within the exception? Once an organization has met the tests of profit and control, which were the basis of opinions O-5424, O- 6879, and O-7369, the fact that the modus operandi of the organization as to procurement of employment may be similar to organizations operating for profit would not change the basic structure of the organization nor the reason for al- lowing such exception. The Legislature stated In the Article in question, *for the purpose of providing professional ser- vices to the public,* which would reasonably contemplate some kind of advertisement or active campaign to make hospi- tals and physicians as well as the public aware of the pro- fessional services which can be rendered by the nurses. It Is our opinion that your first question should be answered negatively. As to your second question which deals with the extent of such solicitation, it is our opinion that this would be a subject to be governed by the ethics of the societies of which these nurses are members, SUMMARY Solicitation of members and employment by an association of undergraduate and licensed vocations1 nurses does not remove such organi- zation. from the exception provided in Section 2 of Article 5221a-6a, V.C.S. Mr. M. B. Morgan, page 4 (S-153) The extentto; which such-prganlfatio? may go to procure employment for Its memDers 18 CO be governed by'the societies in which said nurses are registered. APPROVEDr Yours very truly, J.~ Fred dimes JOHN BEN SHEPPERD State Affairs Division Attorney General :: J. A. Amis, Jr. Reviewer BY John Reevea Reviewer Aesiatant Robert 5. Trottl First Assistant