Is this clause in my temp agency agreement fair?
April 22, 2011 4:49 PM   Subscribe

Is it fair for my temp agency to prevent me from being hired on full time at the current business I'm contracted with?

I was hired as a contract worker through a temp agency at a large company. There have been recent talks about converting me to a full time employee, however, I was reading through my temp agency contract and found this clause:

"Employee acknowledges that he/she will assist in maintaining its business relationship with the client. Employee agrees that he/she will not perform any services for the client, as an employee, contractor or consultant except through , during the term of the contract and for 120 days after Employee stops performing services under this contract."

I've been working the current contract for about 3 months, and previously worked a year through the same agency and company for an entire year under a different contract. I would really like to work full time at this company, but will I really have to wait 120 days before I can start working full time for them? Or, is there away to bypass this?
posted by bettershredder to Work & Money (11 answers total) 1 user marked this as a favorite
Some states have restrictions on non-competition agreements like those, making them unenforceable. Your attorney can tell you whether you're in one of those states.
posted by deadmessenger at 4:52 PM on April 22, 2011

Best answer: That's not what that clause means. They can hire you, they just need to pay the agency off.

The agency wants you to get hired FT, because I guarantee there is more language in there about the fee the agency gets when the company wants to hire you.

The idea of what you quoted is that they can't poach you without paying. If that wasn't there, people could call up an agency, get someone they liked, "fire" him, then hire him right back directly, thus cutting out the agency and saving money.
posted by drjimmy11 at 4:56 PM on April 22, 2011 [10 favorites]

have you spoken to them about the possibility of getting hired FT by the company with which you are contracted? that would be where i would start. i've recently gotten employment as a contract employer through a creative agency and they are very supportive should i be offered a full-time opportunity through the same employer, or any other FT opportunity that might come my way.
posted by violetk at 4:56 PM on April 22, 2011

The people at Large Company also have a contract with the temp agency, which probably contains a clause about L.C. having to pay off the temp agency if they decide to hire you directly as a result of your contract work. If so, I would assume they know this, and would be prepared to hold up that end of the bargain if they brought you on full time.
posted by contessa at 4:56 PM on April 22, 2011 [1 favorite]

What I was always told by Kelly was that if the company indicates they want to hire you, you're supposed to tell Kelly right away. You officially work for the agency, not the company; if the company wants you, they can buy out the rest of your contract and hire you before the contract is up (in my experience with two temp agencies, the contracts are three or four months).
posted by WorkingMyWayHome at 4:57 PM on April 22, 2011

Everything is negotiable. To the extent your temping company is interested in "maintaining its business relationship with the client," they are probably interested in placing good people full-time with that client, as the client will be more likely to rely on them in the future for quality talent. Be sure that whoever is interested in hiring you at the client company is working directly with your supervisor at the temp agency to assure that everyone feels it's on the up-and-up (if you don't know who's working with who, ask explicitly). The agency may even get a finder's fee for placing you.

Fair warning: if there's bad blood between the parties, and/or either side is not very adept at handling transitions like this, you may get caught in the crossfire and have to move on to the next thing. Be ready for that to happen (but hope it doesn't).
posted by rkent at 4:59 PM on April 22, 2011

As a follow-up, I wouldn't panic about this *at all.* If it is a large company in the US, I'd be willing to bet they employ literally hundreds of people from your agency, and have converted dozens to full-time in the past.

You can ask to make sure, but this stuff is all pretty routine because big companies do it all the time.
posted by drjimmy11 at 5:03 PM on April 22, 2011

There are ways to bypass this, just depends on the Statement of Work between the company and the agency. Half my team members are contractors from various agencies and recently we were able to hire on a developer without that person waiting any period of time nor did we have to pay any fees. How? We knew we'd be hiring more contractors and gave them exclusivity to four 6+ month positions. The math worked in their favor.

Now, the company can just pay the fee, hire you and go about their business, it depends on what the company policy is. I could have paid the conversion fee, but frankly I just didn't want to, agencies can be a pain in the ass and I'd knew we could give them more business.

I would think the hiring manager at the company is well aware of what the terms are and wouldn't pursue you for a full time position if it was out of the realm of possibility.
posted by SoulOnIce at 5:44 PM on April 22, 2011

Dr. Jimmy11 is exactly right: this is routine. But the language about the convert-to-full-time fee is more likely in the employer-agency contract, not yours.
posted by LonnieK at 4:16 AM on April 23, 2011

The contract you signed with the agency isn't worth the paper it is printed on. You most likely live and work in an "At will" State. Meaning that you can be hired or fired at the whim and will of the employer. To prove this ask your agency if the contracting company no longer needs you will you be paid through the end of the contract? Of course not. So the only meaning of the contract is between the agency and the employer. If the agency ever wants to place another contractor at the employer then they will not interfere with them bringing you on full time. Whatever compensation is due is between the agency and the employer.
posted by Gungho at 5:54 AM on April 23, 2011

Yes, it's about the temp agency not losing their cut, and nothing to do with you. I've been on both sides: hired full-time out of a temp position, and hiring temps as a manager. It probably says nothing about it in your contract, but the employer's contract pretty much says something like, if you hire the temp full-time before they've worked 120 days, they need to pay the temp agency for the agency's fees up until the 120-day limit; beyond that there's a smaller fee.

However, there's always flexibility; I was surprised when one day the temp agency sent me one of my own laid-off employees, who was eligible for re-hire. I brought it up with the temp agency: if you send her for the two days that I need help, does that mess up my ability to rehire her if work picks up? They sent me something in writing that she would be exempt from the temp-to-hire fees and restrictions because of our previous relationship.

So, if your new/future employer is happy to hire you, and you want to be hired by them, all it'll take is a conversation with the temp agency and maybe some money from the employer to the temp agency. Make sure everybody is talking, and it should happen.

If anybody asks you for money to make the hire happen, that's probably not a good situation.
posted by AzraelBrown at 6:52 AM on April 23, 2011

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