Untitled Texas Attorney General Opinion

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The Attorney General of Texas
JIM MAlTOX De:c:ember 31. 1984
Attorney General
Mr. Allen Parker. Sr. Opinion No. JM-293
Supreme Court BulldIng
P. 0. BOX 12549 Commieaioner
Austin. TX. 79711.2549 Texas Department of ‘Labor and Ret Whether certain services
512l4752501 Standards fall within the definition of
Tdex 9101S74.1387
P. 0. Box 12157 a “personnel service” under
Telecopier 512/4750299
Austin, Texas 78711 article 5221a-7. V.T.C.S.
714 Jackson. Suite 700 Dear Commissioner Par’ker:
O~llss. TX. 75202.4506
2111742.9944
You have requlrated our opinion of whether businesses which
provide
4924 Alberta Ave., Suite l(K)
El Paso. TX. 79905-2793 any or all of . . . [certain] additional services.
91Y533.34S4 either in conjunction with or instead of [a pre-
pared resume and a list of preaddressed mailing
A Texas, suite 700
labels of potential employees]. . . .
Houston. TX. 77092.3111
713J2255999 which were the sole services provided by the advanced fee resume
service dealt with .Ln Attorney General Opinion H-1236 (19781, are
within the scope of the renulatlon of “personnel service” by article
a06 Broadway. Suits 312
Lubbock. TX. 794013479
5221a-7, V.T.C:S., 8s that term is defined In section l(5).
SW747.5238
‘Personnel Service’ meana a person who for a fee
or wlthou,: a fee offers or attempts to procure
4309 N. Tenth. Suite S
dire&l cz indirect1 permanent employment for an
McAllen. TX. 79501.lSS5
512lSS2-4547 eo4f.r an employer. (Emphasis
200 Main Plaza, suite 400 For the reasons set: forth below, ve conclude that all the types of
San Aitonlo. TX. 792952797
services about vhich you have asked fall vlthin the ambit of the
51212254191
regulation of personnel employment services contained In article
5221a-7.
An Equal OppQrtunW
Alflrmatlve Actlon E~plovw The additional services about which you inquire are as follovs:
111 ctKK3tNction and implementation of a
‘marketinll plan’ vhich may include psychological
and/or aptitude testing to assist the applicant in
identifying career or industry testing to assist
p. 1306
Mr. Allen Parker, Sr. - Page 1; (JM-293)
the applicant in identifying career or industry
goals;
(21 how to get interviews. how to perform and
negotiate during and after interviews;
[3] the provis:Lon of names of specific persons
authorized to hire and looking for applicants
[4] the proviliion of information concerning
work conditions. quality of employment, advance-
ment probabilities, and income tax consequences;
[5] the granting of the right to contact the
service at a late:: date for advice in connection
with the job search; or
[6] direct contact by the service with hiring
employers. . . .
We do not believe that the holding in Attorney General Opinion E-1236
(1978) is dispositive of whether the six types of services rendered by
the businesses you have Inquired about fall within the definition of a
“personnel service.”
Article 5221a-7, the ulrrent statute governing personnel employ-
ment services, and its predlxessors -- Acts 1923, 38th Leg., ch. 41,
at 75 (arts. 5208-5221); Acts 1943, 48th Leg., ch. 67, at 86 (art.
5221a-4); Acts 1949, 51st L,zg., ch. 245, at 453 (art. 522la-6); Acts
1969. 61st Leg., ch. 871, at 2625 (amended art. 5221a-6); and Acts
1979, 66th Leg., ch. 263, at 570 (art. 5221a-7) -- have been
construed by this office :I number of times. See. e.g., Attorney
General Opinions MU-106 (l’U9) ; H-1236 (1978); H-629 (1975); M-750
(1970); UW-471 (1958); V-1035 (1950); V-430 (1947); O-7299 (1946);
O-6879 (1945).
In 1945. this office c,Jnstrued article 5221a-4. which defined an
“employment or labor agent,” to include any person who
offers or attempt!; to procure or procures employ-
ment for employees . . . or . . . offers or
attempts to procure or procures employees for
employers. . . . (:Emphasls added)
section 1(3)(e), as prohibit,ing the payment of fees by an applicant
for employment unless
p. 1307
Plr. Allen Parkar, Sr. - Page 3 (JM-293)
the employment hat; been obtained . . . by the
applicant. Any fee or charges made to or paid by
the applicant prior to this event is contrary to
and an attempt to circumvent the statute. The
payment of fees are contingent upon obtaining
employment . . . by the applicant.
Attorney General Opinion O-,51)79 (1945). This reasoning was affirmed
in Attorney General Opinian O-7299 (1946) which, in holding that
employers could be charged fees for certain services, found that
the purpose of the act is to protect prospective
employees vho may be in severe need of employment
from the stronger position of the employment
agencies. . . . ‘ilowever, the agency cannot use
this practice [charging employers certain fees] in
such a way that t1.e applicant is charged more than
the legal fee.
Similarly. In again approving the charging of unregulated fees to
employers for obtaining employees.. as opposed to the statutory fees
allowed by article 5221a-4 to be charged to employees for obtaining
employment, this office point,ed out that
There can be no doubt that the underlying purpose
of the statute is to protect those seeking
employment from exploitation by an employment
agency that might be tempted to take advantage of
the vulnerability of the employment seeker.
Attorney General Opinion V-430 (1947).
In 1949 the 1egislatu::e replaced article 5221a-4 vith both the
Private Employment Agency Act, article 5221a-6, and the Labor Agency
Act, article 5221a-5. Acts 1949. Slst Leg., ch. 245. at 453 (art.
5221a-6); Acts 1949. Slat Leg., ch. 234. at 434 (art. 5221a-5). The
first construction of art.lcle 5221a-6, which defined a .private
employment agent as anyoa~e who “offers or attempts to procure
employment for amployees or procure[s] or attempta to procure
employees for amployers. . . .‘I section l(a), noted that
[T]he law seek.6 to place responsibility on the
person or agency in actual contact vith these
persons [prospect.lve employees] by requiring a
license . . . [hl order to regulate] actual
procurement of and contact with applicant
employees. . . .
p. 1308
Mr. Allen Psrker. Sr. - Page h (Jib293)
Attorney General Opinion V-la35 (1950). Thereafter. this office had
occasion to reiterate its previous holdings regarding the nature and
scope of the regulation of Ilrlvate employment businesses by article
5221a-6 in Attorney General Opinion WU-471 (1958) as folloWs:
The authority for private employment agents or
agencies to charge fees for their services Is
provided in Secticsn 8 of Article 5221a-6. It
reads as follovs:
‘Sec. 8. Private Employment Agents or
Agencies as defined by this Act and who are
engaged in tha! business of attempting to
``;tetrmptl;yment for employees or procures
to procure employees for
employers in skilled, professional, or
clerical positions may charge, with the
written consent of the applicant, a fee, not
to exceed forty per cents (40%) of the first
month’s sala&whlch may be collected from
the applicant c~nly after employment has been
obtained and accepted by the applicant.’
(emphasis addeirthroughout this opinion)
The statute is free from ambiguities. The only
fee which a llcenrled employment agent or agency is
authorized to charge and collect from a job appli-
cant is 40% of t,h.e first month’s salary as set
forth in Sectiou 0 above.
. . . .
Clearly the intent of the Legislature was to
authorize private employment agencies to charge a
placement fee not to exceed forty (40) per centum
of the applicant’s first month’s salary. No other
fee of any sort :ls authorized by the statute and
under no conditions can the authorized fee or any
other fee, be charged prior to the applicant’s
obtaining and acce%pting employment.
In the instant case the ‘search fee’ is charged
the applicant prior to his obtaining and accepting
employment and, in fact, the only purpose for the
fee is to assist him in securing employment. That
the parent organization is an out of state concern
makes no differenc:e. The whole mode of operation
p. 1309
Mr. Allen Parker, Sr. - Page !i (Jh-293)
is designed to accomplish exactly what the statute
intended to prevea t , that is, the charging of any
fee prior to the applicant’s obtaining and
accepting eaployment and the charging of a greater
fee than that at.thorired by Section 8 of the
statute.
The opinion of this office Is that the charging
of a ’search f ue’ prior to the applicant’s
obtaining and accepting employment vould amount to
a registration fee and would be in violation of
Article 5221a-6, Vernon’s Clvll Statutes, which
prohibits a fee to be collected by a private
employment agency prior to the applicant’s
obtalnlng and acce,p ting employment.
Thus, when article 5221a-6 was amended in 1969, it had been the
consistent construction of this office that the purpose of the subject
regulatory scheme was to protect prospective employees from
overreaching by private employment agencies and that a key element of
that scheme was the unamhtguous prohibition of such agencies from
charging or collecting any fee whatsoever prior to the obtaining of
employment by or for applicants. At that time the words “either
directly or Indirectly” were added to the deflnltion of a private
employment agency as set out in section l(e) to modify and broaden
such an agency’s legally dofining purpose “to procure employment for
employees. . . .” V.T.C.S. art. 5221a-7. 11(S). Also, the limitation
on the authority of such an agency to charge any fee to an applicant
for employment, previously found in section 11 of article 5221a-4 and
then in section 8 of article 5221a-6 as originally enacted, was
reformulated in section 13(a)(l) of the amended article 5221a-6 to
prohibit the imposition of
any fees for the registration of applicants for
employment or any fee of applicants except for
furnishing of empl~oymentobtained directly through
the efforts of suC!n agency; (Emphasis added).
* . . .
Acts 1969. 61st Leg.. -t, at 2630 (art. 5221a-6. 113(a)(l)).While
neither the words “either directly or indirectly” added to section
l(e). nor the restatement of the longstanding limitation on fees
charged to employees have been the subject of any specific analysis,
this office reaffirmed the holdings of Attorney General Opinions
O-7299 (1946) and V-430 (1947) that the basic purpose of the
predecessor statute, article 52218-4. was to protect vulnerable
employment seekers from exploitation by overreaching employment
p. 1310
Mr. Allen Parker, Sr. - Page CI (JM-293)
agencies. Attoroey General Opinion M-750 (1970). In 1971, article
5221a-6. section 13(a)(l). wi,s amended to prohibit
any fees for the registration of applicants for
employment or any other fee of applicants except
for the furnishing; of employment referrals which
result in the applicant obtaining employ-
ment. . . . (Emph.~3is added).
Acts 1971, 62nd Leg., ch. 772, at 2424. In 1975 this office
reiterated Attorney Genera:; Opinion M-750’s reaffirmation of the
underlying purpose of the sta,te’s regulation of the private employment
agency business. Attorney Gmeral Opinion H-629 (1975).
As you indicated, Attorney General Opinion E-1236 (1978) seems to
suggest a limitation on the previously adopted scope of the statutory
regulation. Even that opinion, however, recognized the breadth of the
operative word “procure” in the definition of a “private employment
agency” when It cited Miller v. Eldrid e, 286 S.W. 999 (Tex. Civ. App.
- Amarillo 1926. writ -4ein,
dilm d). the word “procure” is
understood as Webster defit,ed it: “‘
to bring about; to effect; to
cause’. . . .” Id. at 1000. Hence, someone “procures” a thing when
he is instrument~in bring:tng it about. When this verb is i modified
by the word “indirectly” th#%re can be no doubt of the broad scope of
the coverage of the statute.
The word ‘indi~:r!ctly’ is defined by Webster as
‘not resulting di:rectly from an act or cause but
more or less rem’telv connected with or nrowinn
out of it.’ This definition has received a&rovai
in Amicable Life Ins. Co. v. O’Reilly. Tex. Civ.
Auu. 97 S.W.2d 24(: 247, writ of error dismissed:
‘il~ndirectll means not direct . . . circuitous,
oblique; as, an Indirect road; not leading to an
aim or result by the plainest cause or method or
by obvious means, but obliquely or by remote
means; roundabout; not resulting directly fc
act or ~eause, but nore or less remotely connected
with or growing oc; of it. . . .’
Maryland Casualty Co. v. Sctarlsck.
-- 31 P. Supp. 931 (S.D. Tex. 1939).
The word ‘indirectly’ was before the Dallas
Court of Civil Appeals in Fanners’ State Bank v.
Mincher, 267 S.W. 996. Citing that definition,
the Supreme Cour~t of Nebraska in State v.
Pielsticker, 118 Neb. 419. 225, N.W. 51, 52, said:
mIndirectly” signifies the doing by an obscure
p. 1311
Mr. Allen Parker, Sr. - Page '7 (JM-293)
circuitous method something which is prohibited
from being done directly, and includes all methods
of doing the thlr,g prohibited except the direct
one. Farmers' State Bank v. Mincher (Tex. Civ.
~ppp.) 267 S.W. 996.' (Emphasis in original),
Amicable Life Insurance Co. v. O'Reilly, 97 S.W.2d 246 (Tex. WV. App.
- Beaumont 1936, writ dinpd). Hence, the addition of the words
"either directly or indirectly,, in the 1969 revision of the subject
statutory regulatory schem: served to reinforce the then quarter
century old construction of the purpose of the act.
Whether any one of the specific services about which you inquire,
either separately or in conjunction with other services, would bring a
business which offered it 01: them within the ambit of article 5221a-7
is a fact question and depelvis on the application of the standard set
out in the statute's definition of a "personnel service,, to the
specific facts of any particular situation. Any business which
purports to attempt, even indirectly, to bring about the eventuality
of employment for a prospect,lve employee is covered by article 5221a-7
and may not charge any fos except as a 'result of the applicant
obtaining employment.
SUMMARY
Whether businesses which provide various
additional servic,,s beyond merely a prepaid resume
and a list of preaddressed mailing labels of
potential amploye~zs come within the scope of the
regulation of personnel employment services by
article 5221a-7. ,,,T.C.S.. is a fact question. If
such services conotitute offering or attempting to
be an instrumeatal cause in bringing about
employment for prospective employees, even if the
procurement of :such employment is remotely
connected with suc'h services, they are covered by
article 5221a-7, 'I..T.C.S.
Attorney General of Texas
TOMGREEN
First Assistant Attorney General
p. 1312
Mr. Allen Parker, Sr. - Page 8 (JM-293)
DAVID R. RICHARDS
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Colin Carl
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Colin Carl
Susan Garrison
p. 1313