Keywords:Employment Agency; Commission; Fee.

The answer is not an unqualified "Yes." Employment Agency Law is based on Contract Law which, in turn, has its origins in the English Common Law. Over a period of years, this field of law has been expanded by legal decisions that have defined and clarified the relationship between the agency, the employer and the candidate.

To obtain your placement fee you must be able to prove that there was (1) a legally binding contract, meeting of the minds, or mutual understanding (2) under which the employer agreed to pay you a defined fee (3) if a candidate introduced by you is hired by the company and (4) if it is part of the contract that the candidate remained on the job for the agreed period of time. If you cannot prove the above by a preponderance of credible evidence, then you won't be paid.

Was there a contract or mutual understanding?

By merely sending a resume or even arranging for an interview, you have not proven that there was an agreement between your firm and the employer. Much more has to be shown. The employer might argue that he thought that you were being paid by the candidate or that you were an outreach firm paid to find jobs for dismissed personnel. The employer may also argue that although he knew he was dealing with a personnel agency, he never agreed to pay a fee or a specified fee.

A contract does not necessarily have to be in writing or contain all of the terms to be enforceable. If it is conceded or you prove that your fee letter was sent and received and that your candidate was hired, then under the law you have proven an offer and acceptance and that, as a result, a contract exists between the parties. The leading case on this subject is John Wm. Costello Assoc. v. Standard Metals, 99 A.D.2d 227 (A.D. 1st Dep't 1984).

If you made the placement but failed to prove the terms of the agreement then you may still be able to recover a fee under the equitable doctrine of quantum meruit what the court perceives to be the fair and reasonable value of the services you performed.

Was a candidate introduced to the employer by your firm?

Many job seekers register with a number of agencies, send out their own resumes, and do their own telephone job searches. Companies often receive unsolicited resumes by fax, mail or otherwise from agencies which they either keep or throw away. When a candidate is eventually hired one month, two months or even a year later, several agencies may claim credit for the same placement. The employer may even argue that he did not know that the candidate was presented by an agency or by your firm. He may argue that the candidate presented himself or was presented by other employees.

You will have to prove by credible evidence that your agency was responsible for introducing the candidate and bringing about the placement. There have been instances when a candidate sent to a particular company to be interviewed for a position is diverted by the person who interviews him or her to accept a job with another company that may or may not be affiliated with the company that you directed the candidate to. In such an instance, and depending on the circumstances, you may have a claim against the employer or against the person that diverted or prevented the completion of the placement under the doctrine of an implied contract, under a claim that there has been a tortious interference with your contract.

Must a candidate remain on the job for a specific period of time?

The law does not require a guarantee period unless you make it part of your agreement. An employment agency fees is ordinarily deemed earned when the employee is hired. Wexler v. Veerman, 276 A.D. 1021, 95 N.Y.S.2d 684. Where the job calls for simple skills, no guarantee period is necessary or a short period of time will be sufficient to confirm that the candidate is suitable for the job and happy with his position. A thirty, sixty, or even a ninety day period may, however, be required where the position calls for special skills or experience to assure the employer that it has, in fact, found a suitable candidate. Where a guarantee period is part of the agreement, then you must be able to prove its terms and that the employee remained on the job for that required minimum period of time.

When and if a dispute arises with your client company which cannot be resolved in a fair and equitable manner, then the recovery of your fee will depend upon a logical and persuasive presentation of your facts, and that in turn will depend upon the practice and procedure your firm has been following in the conduct of its business. A properly trained staff that follows defined procedures can eliminate or at least reduce the instances in which legal assistance or a court of law become necessary for you to receive payment for the services you rendered to the business community. Where litigation becomes necessary, then the proper documentary proof and a logical and concise recital of the facts will be necessary to recover in a court of law.