Reply to: Can an Agency ask me to wait to get paid until they get paid

[ComplianceLady]

Hi All and thanks for all your replies.

I sought independent legal advice myself on where I stood with everything that had gone on, it seemed a small amount to pay for peace of mind Although it didn't give me an definitive answer it did highlight some interesting points.

1. Agency has paid for June work
2. Client / Agency one of them hasn't yet uploaded or signed off the July timesheets
3. Client has paid all outstanding invoices to agency
4. I can no longer be sure there relationship has broken down irretrievably
5. Solicitor says agency have a pretty good handcuff clause as I signed it twice to say it was fair (once as a goodwill letter)
6. Solicitor says I have a pretty good change of breaking said clause as there was not financial penalty included (5 and 6 are at odds I know)
7. Opt-out clause and when it was signed are apparently very important. If the client was unaware of the opt-out BEFORE you are introduced (yes this includes interview) then it can invalidate the restriction and opt in then applies.
8. A similar argument was put forward for when I signed the opt-out. (I haven't had a contract yet which I signed before interview so I am a little wary of this)

Please don't shoot me down for writing this I am simply passing on what I have been told so that someone else may benefit in the future

7 isn't strictly correct. It has to be communicated before introduction or supply. Most agencies have it on their client schedule issued prior to an assignment so it would be rare for that not to happen. Lots of quick turnaround placements might not be valid as the contractor didn't opt out before start date but usually professional contracts are done in advance so are valid. Even when opted in a handcuff clause can apply, it just limits how harsh it can be.

[SussexSeagull]

If the agent-client relationship has broken down independent of anything you have or haven't done it would be virtually impossible for the agent to prove financial loss due to any continuing relationship you may have with the client.

[jacquibo]

Update 2

Hi All and thanks for all your replies.

I sought independent legal advice myself on where I stood with everything that had gone on, it seemed a small amount to pay for peace of mind Although it didn't give me an definitive answer it did highlight some interesting points.

1. Agency has paid for June work
2. Client / Agency one of them hasn't yet uploaded or signed off the July timesheets
3. Client has paid all outstanding invoices to agency
4. I can no longer be sure there relationship has broken down irretrievably
5. Solicitor says agency have a pretty good handcuff clause as I signed it twice to say it was fair (once as a goodwill letter)
6. Solicitor says I have a pretty good change of breaking said clause as there was not financial penalty included (5 and 6 are at odds I know)
7. Opt-out clause and when it was signed are apparently very important. If the client was unaware of the opt-out BEFORE you are introduced (yes this includes interview) then it can invalidate the restriction and opt in then applies.
8. A similar argument was put forward for when I signed the opt-out. (I haven't had a contract yet which I signed before interview so I am a little wary of this)

Please don't shoot me down for writing this I am simply passing on what I have been told so that someone else may benefit in the future

[BiA1987]

Hey,

Just reading and noted some similarities to a thread I'm awaiting publication by moderators. You might be covered by conduct regulations, and if so, the agency isn't allowed not to pay you if they haven't been paid, or even if timesheets haven't been approved. So if they're talking about not paying you for work already done, it might be worth having a full and frank conversation about it.

[quackhandle]

Probably worth saying don't do anything obvious with the client until after the agency has paid you, don't give them a reason (no matter how tenuous ) to avoid payment.

And get everything confirmed in writing/email rather than stuff said over the phone, pimps are liable to try stuff on in these situations.

Welcome to contracting. Good luck with the next gig.

qh

[LondonManc]

Probably worth saying don't do anything obvious with the client until after the agency has paid you, don't give them a reason (no matter how tenuous ) to avoid payment.

Correct.

[eek]

Two things here:

Firstly, do you know if the client has the money to engage you directly? The non-compete clause is null and void because if the agency cannot provide a service to the client, then they cannot compete. Case closed.

Secondly, get the money already owed - as others have already said, Dunning is your friend.

Probably worth saying don't do anything obvious with the client until after the agency has paid you, don't give them a reason (no matter how tenuous ) to avoid payment.

[LondonManc]

It appears today, that the client / agency relationship has totally broken down and the contract terminated.

I don't have anything in writing yet just via a call but all kinds of threats being made about the non compete clause which makes the original question rather irrelevant now.

I did however, establish that the person who asked my if I would wait to get paid did not have any kind of authority to do so.

Two things here:

Firstly, do you know if the client has the money to engage you directly? The non-compete clause is null and void because if the agency cannot provide a service to the client, then they cannot compete. Case closed.

Secondly, get the money already owed - as others have already said, Dunning is your friend.

[eek]

I believe the next step is to read up on the Dunning Process but I am sure better qualified people than me will confirm that.

Debt Collection and Debt Recovery from Safe Collections used to post here - ask them what to actually do to chase the agency for payment...

[eek]

It appears today, that the client / agency relationship has totally broken down and the contract terminated.

I don't have anything in writing yet just via a call but all kinds of threats being made about the non compete clause which makes the original question rather irrelevant now.

I did however, establish that the person who asked my if I would wait to get paid did not have any kind of authority to do so.

If the agency relationship has completely broken down then the non compete clause is irrelevant, the agency doesn't have any work to offer you at that client.

However, as the client clearly doesn't have the funds to continue the project you really shouldn't be wasting anymore time on them, prioritise finding another contract.

[SussexSeagull]

I believe the next step is to read up on the Dunning Process but I am sure better qualified people than me will confirm that.

[jacquibo]

Update

It appears today, that the client / agency relationship has totally broken down and the contract terminated.

I don't have anything in writing yet just via a call but all kinds of threats being made about the non compete clause which makes the original question rather irrelevant now.

I did however, establish that the person who asked my if I would wait to get paid did not have any kind of authority to do so.

[jacquibo]

Given that you don’t know what your rights are when the agency wants to alter the contract...... I’d read your contract again.

Unfortunately re reading the contract (even for the 4th tine) hasn't changed what's in it.

The payment terms are clear 30 days plus, there are all the normal clauses for non production of timesheets and the 6 month non compete clause with the addition of an addendum letter regarding to the protection of goodwill. They were kind enough to include an Assignment Schedule to reiterate the terms. So my original question was really to ask to see if others had experienced this situation and what they had done.

[SussexSeagull]

I begrudge the move to what seems to be the now near standard 30 days payment terms. Any more than that, especially when you might never actually get paid, is just passing the risk on to you.

You are nearer the client and situation so your call but my Spidey Sense would be tingling, even in the current depressed market.

[Lance]

No nothing in the contract about that. TFH I wouldn't have signed one that did

Given that you don’t know what your rights are when the agency wants to alter the contract...... I’d read your contract again.