Opinion No. H-1236

Thomas H. Haynie

Attorney General of Texas — Opinion.
September 1, 1978

JOHN L. HILL, Attorney General of Texas

Honorable Thomas H. Haynie Chairman Texas Private Employment Agency Regulatory Board Sam Houston State Office Building Austin, Texas

Re: Whether an advance fee resume service is a private employment agency under article 5221a-6, V.T.C.S.

Dear Mr. Haynie:

You have requested our opinion as to whether an advance fee resume service is a private employment agency under article 5221a-6, V.T.C.S.

You state that a company commonly referred to as an `advance fee resume service’ furnishes to individuals seeking employment `a prepared resume and a list or pre-addressed mailing labels of potential employers.’ The resume service charges a flat fee for its service, payable in advance. The names of prospective employers are ordinarily obtained from trade journals and governmental sources, and there is no direct contact between the resume service and the prospective employer on behalf of a particular employee or with respect to a particular job opening. The resume service frequently advertises its services through the broadcast and print media, with a specific disclaimer that it is a private employment agency.

A `private employment agency’ is defined by statute as

any person, place or establishment within this state who for a fee or without a fee offers or attempts, either directly or indirectly, to procure employment for employees or procures or attempts to procure employees for employers, except as hereinafter exempted from the provisions hereof.

V.T.C.S. art. 5521a-6, § 1(e) (emphasis added). On the basis of the description you have furnished us, we believe it is clear that an advance fee resume service is not within the definition of a `private employment agency,’ for the reason that it neither `offers . . . to procure employment for employees’ nor `procures or attempts to procure employees for employers.’ See Miller v. Eldridge, 286 S.W. 999 (Tex.Civ.App.-Amarillo 1926, writ dism’d).

In the situation you describe, an advance fee resume service does not contact an employer on behalf of a prospective employee. Nor does it locate prospective employees for employers, as does a `management search consultant’ under section 1(b) of the statute. See Attorney General Opinion H-699 (1975). We do not believe that the regulatory scope of article 5221a-6 may ordinarily be extended to include those entities which maintain contact with only the prospective employee. Since there is no direct contact between the resume service and the employer or his agent, we believe Texas courts would hold that the service is not a `private employment agency’ for purposes of article 5221a-6.

SUMMARY
Where there is no direct contact between the resume service and a prospective employer or his agent, an advance fee resume service, as described, is not a `private employment agency’ for purposes of article 5221a-6, V.T.C.S.

Very truly yours,

John L. Hill Attorney General of Texas

APPROVED:

David M. Kendall First Assistant

C. Robert Heath Chairman Opinion Committee