Published on July 14th, 2011 by Alan L Sklover
Question: I accepted a position through a temp agency and the same employer the temp agency is working for wants to hire me directly for a different position. I have not been given a start date by the temp agency.
Even though I signed papers accepting the position offered to me by the temp agency, can I turn it down, and instead accept the position being offered to me directly by the same employer? I’d prefer the job with the employer, because it also offers benefits.
Green Bay, Wisconsin
Answer: Dear Julie,
I’m really glad you submitted this question because, while many clients have asked me this question, this is the first time it was submitted by one of our blog visitors. As you will see, I’m unable to be more specific with some aspects of my answer, because I don’t know some very important facts of what has happened. Though I’m not licensed to practice law in Wisconsin, these are my thoughts:
1. Almost for sure you can “back out” of your acceptance of the position with the agency. Since you did not start the job working for the agency, the agreement you accepted to do so can be essentially ignored. It is what we call in law an “executory contract,” which means “un-begun” by either side, and therefore capable of being abandoned by either side without effect.
2. If you did not sign another agreement with the agency that says, in effect, “I won’t work directly for any of the agency’s customers,” then you are free to do so. Your relations with the agency – including any obligations you have to it – are governed by your agreements (if any) with the agency. Often temp agencies have job candidates sign agreements that say, in effect, “I won’t take a job with any employer you introduce me to.” If you signed an agreement like that, you can’t work directly for the employer. If you didn’t sign an agreement like that, you can. If the agency did not get you to sign such an agreement, it is their problem, not yours.
3. It’s also possible the employer signed an agreement with the agency that says, in effect, “We won’t hire any job candidates you introduce to us.” This would be the most common situation. If the employer did sign such an agreement with the agency, it is the employer – not you – who can’t enter into an agreement with you without concern of a lawsuit. Again, if the agency failed to get the employer to sign such an agreement, it is their problem, not the employers.
4. Most likely, the employer will have to pay a “placement fee” to the agency, and that will be it. This is the most probable outcome of the situation. In fact, this very thing – an agreement between the agency and the employer that the agency is deemed to have earned a “placement fee” if any of its candidates gets hired by the employer – is what I have seen most often. This really does not affect you, but rather the agency and the employer.
5. I suggest you take the job directly with the employer, and see what happens. There’s an old saying, “Don’t ask permission; if necessary, ask forgiveness.” This path forward would seem to me to be the best way to proceed, though it may be a bit anxiety-provoking to you. Just remember: (a) it seems you are valued as an employee, and (b) benefits sure do help.
I hope this is helpful, and I’d love to hear how it all works out.
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