is my opt out valid?

[huntygowk]

I've read the sticky and feel I have a good understanding of the opt in/out issue.

However, I'm unclear of where I stand with my current contract, can any one give any advice?

I'm on my third contract renewal.

The first contract (11 month duration) I signed an opt out clause with my the agency before I started with the client.
1st renewal (15-Dec-2012 - 31-May-2013, 5 1/2 month duration), I signed an opt out clause 20 days after the renewal had started. I believe this applied to any future contracts and that for the first renewal I was actually opted in.

2nd Renewal (5 month duration - 1st June 2013 to 1st November 2013), 6 months later, I signed an opt out clause 2 days before my renewal started. I think this contract was already covered by my previous opt out, so have really just opted out twice.

The client , for procurement reasons, has requested for the next contract I either work direct or via a different agency.
it's my understanding that the last opt out I signed applies to my existing contract ending on 1st November, and that according to their terms I can't work with the client without paying a 20% penalty until 5 months has passed.

I'm unclear if the opt out agreement I signed (it was sent via email) is actually valid or not. I'm getting the sinking feeling that it does. Any advice?

If I told my agency I am opting out from today would this allow me to work direct for client or via another agency?

Thanks for any help.



The agency terms are as follows:

"During the Contract Term or thereafter for a period equivalent to the period of supply under this agreement
(but not being less than 3 months nor more than 6 months) either directly or indirectly (whether under a contract
of services or a contract for services or through any third party) provide similar consultancy services to the Client
or End User except by contract through [Agency Name] unless the Supplier shall first have paid to [Agency Name] a fee of 20% of
the total remuneration agreed to be paid for the Services by the Client or End User for the relevant period of
supply (but not exceeding 6 months) plus VAT"

[northernladuk]

Valid or not you are in for a serious bun fight here. I guess it will be unlikely it comes down to legalities and instead will just be fought out between the parties through discussion and agreement. You need to have the client on your side here as it is possible that the old agency will just cause such a fuss with threats of legal action that the new one and client may just wash their hands of it. They may also try and befuddle everyone with handcuff clauses but the bottom line is the client is dropping them so there is no loss to the agency so the handcuff will be unenforceable. There maybe something in the upper contract between client and agency though but that is up to them to sort out and if the decision has been made to switch agency they must have or be prepared to deal with that.

The details are very important here as well... Did you Opt In BEFORE you were introduced the client? Not sure this is valid thought as I don't know if opt out is per contract or per relationship with agent. The fact you have signed so many could be taken as a sign you wanted to so the argument about whether you signed could be negated by the reality that you wanted to opt out so many times. That is an argument for a court though I would think.

[kevpuk]

<snip>
The details are very important here as well... Did you Opt In BEFORE you were introduced the client? <snip>

Very much the (most) important part....I wasn't aware of the ramifications until recently, and recall I went to meet the client well in advance of signing any forms whatsoever = although I signed Opt-out (in my green~ness) it is likely not valid, should it ever matter

[huntygowk]

Thanks for the replies.

Casting my memoryback, the very first time I signed an opt out was after I had been for the interview and told I'd got the contract. So in terms of signing 'before being introduced' to the client I think I most definitely did not.

Whether this has any impact on the future instances I signed the opt out I'm not sure.

Maybe I'll just go and appeal to the agency's better nature and be honest about it...say the client wants my services but they can't employ me through the agency again so they won't be getting any repeat business out of them anyway. (Am I living in cloud cuckoo land here...)

won't take any contractor from them again if they're arsey about my situation so I think they'd be shooting themselves in the foot.

Thanks for the advice though, it's kind of cleared a few things up in that it's not a straightforward yes/no.

[northernladuk]

Very much the (most) important part....I wasn't aware of the ramifications until recently, and recall I went to meet the client well in advance of signing any forms whatsoever = although I signed Opt-out (in my green~ness) it is likely not valid, should it ever matter

This is true but I have a nagging feeling this, if it went to the legal eagles, would be quite a complex situation.

Firstly they would need to argue the introduction to client OR commencement of work. This doesn't seem to have been tested and agents think it is either. I believe the commencement of work is for situations where you already knew the client so invalidating the first option. It is unclear and very arguable so have to sort that first.

Second, they would need to find out if it is valid on a contract by contract basis or on a single relationship between contractor/agent/client. It maybe possible to argue that signing the opt out after interview on the first contract may invalidate it for that contract but maybe valid for future ones. Could they view it that it is valid as he signed it 11 months before commencement of the 2nd contract if you get my meaning. It was too late for the first but could you argue it was very early for the 2nd?

I would also be interested to know how the OP accepted extensions. If the contract was signed after the extension started could he be caught by implied contract so if he started work he would have accepted the conditions from the previous one which was also the opt out?

I think the legal issues will be an utter nightmare and his best option by far is to negotiate this one.

Maybe I'll just go and appeal to the agency's better nature and be honest about it...say the client wants my services but they can't employ me through the agency again so they won't be getting any repeat business out of them anyway. (Am I living in cloud cuckoo land here...)

I think it is up to the client to do this. They should have an upper contract with the agency which I assume from what you are saying they will be cancelling as well so the original agency will no longer become a supplier. If this is the case should it not be part or wholly the clients responsibility to make sure you can work for them again without penalty, or cover the penalty to the agency? The client has enforced the change so surely should take a lions share of the responsibility?

[SueEllen]

The law on opt-outs isn't written very clearly.

The agency will argue that your opt out is valid because you signed it before you were supplied to the client.

A solicitor, if you choose to hire one, will tell the agency to bug off as they will argue as the opt-out isn't valid.

Either way there would still have to be a break between the client hiring you direct.

I suggest you base your argument on the fact that the agency hasn't lost any money because the client has dropped them. In addition I would have a look at your handcuff clauses as they may be so badly written they can't be enforced at all.

I suggest you get a solicitor to have a look at the handcuff clauses now. (Yes you have to pay but this is why you should always get your contract reviewed for this before you sign it.) If the agency tries to threaten you, you then get that solicitor to write a letter threatening them with legal action if they cause trouble.

[huntygowk]

I think if anything I've found out it's a complicated issue. One that i can't figure out on my own.

So I'll be getting in touch with solicitor to find out where I stand.

One thing for certain though, I'll be opting in (or I should really say 'not opting out'!) from now on.

I'll post what I find out here. Might be useful for someone else.

Thanks for the help!