Reply to: Backdated opt-out tied to payment

[mcskiver]

That's exactly what I did - told the guy I wasn't leaving 'til he signed my timesheets, hence the argument. It was certainly a lesson learned...

[Turion]

I always try to avoid opting out because a few years ago I did have a client who refused to sign my timesheet (or rather, avoided it for a few weeks). When I spoke to the agency about it, it turned out that the client had spent all of that time trying to negotiate my rate down with the agency behind my back, as he'd taken me on at a higher rate than he wanted to pay.

In this instance the agency washed their hands of it because i'd opted out - they had no legal obligation to pay me unless the client paid them, even though i'd worked there for two weeks.... So in the end I had to have a big row in the office with the client - very embarrassing and not something i'd ever want to repeat - which concluded with him signing my timesheets and me leaving the contract immediately (which I was doing anyway because he was clearly not someone to rely on).

Opting out is just that - optional. It p*sses me off that agencies (and this is the second one in as many contracts) get away with insisting that I "have to opt out to get paid". Why aren't the government cracking down on these illegal practices?

Anyway, sorry - rant over....

This agency would have washed their hands even if you had opted in and it would have taken you months and £££ to try to sort by going legal. You would have ended up going back to the client in either case as it's simpler.

You were at fault by allowing the situation to occur in the first place. Always keep a handle on essentials like timesheet and invoicing which must be done promptly, as is done by any real business. If the weekly timesheet signer is not going to be around on Friday, make sure that you know someone else who can sign. Alternatively, get him to sign in advance. One final thing - at end of contract never ever leave the site without all timesheets signed. If necessary stick to the TS signer like a sh!t stain on a sheet on the last day.

[mcskiver]

I always try to avoid opting out because a few years ago I did have a client who refused to sign my timesheet (or rather, avoided it for a few weeks). When I spoke to the agency about it, it turned out that the client had spent all of that time trying to negotiate my rate down with the agency behind my back, as he'd taken me on at a higher rate than he wanted to pay.

In this instance the agency washed their hands of it because i'd opted out - they had no legal obligation to pay me unless the client paid them, even though i'd worked there for two weeks.... So in the end I had to have a big row in the office with the client - very embarrassing and not something i'd ever want to repeat - which concluded with him signing my timesheets and me leaving the contract immediately (which I was doing anyway because he was clearly not someone to rely on).

Opting out is just that - optional. It p*sses me off that agencies (and this is the second one in as many contracts) get away with insisting that I "have to opt out to get paid". Why aren't the government cracking down on these illegal practices?

Anyway, sorry - rant over....

[basshead]

Another piece of leverage you have is not turning up at the client. Explain to the client what the agent is doing and why you are considering not turning up before you do it. Then the client can kick off at the agent.

[SueEllen]

This sounds like nonsense from the agency, and probably not legal if you were not opted out to start with. But why not just sign it, keep them happy and business continues as usual.

Why bother with all this legalistic bluster, when it is not necessary. Main thing is to keep getting paid without any hassle.

The reason to bother in this case is legal protection - plus photocopying and going to the post office isn't exactly hard.

The agent in this case has already thought of one reason to withhold payment in a way that could be considered a breach of contract, and is therefore showing they are not trustworthy.

If you got involved in dispute again such as the client deciding not to pay them and the agency then turns around and refuses to pay you, or at the end of the contract the client decides they want to re-hire you direct after a few weeks break, then the date on the opt-out clause and the fact that it was not received and sent back by you until after you had been introduced to the client would help you. (A search on this board will reveal incidences of this.)

And as I stated before most people/companies are advised to settle by lawyers if it looks like the other party can easily prove when they dated and sent documents.

[Turion]

This sounds like nonsense from the agency, and probably not legal if you were not opted out to start with. But why not just sign it, keep them happy and business continues as usual.

Why bother with all this legalistic bluster, when it is not necessary. Main thing is to keep getting paid without any hassle.

[TheFaQQer]

Very convoluted all you need to do is send the copy to the agency via recorded delivery and keep the slip. Also change the date on the original to the date you've signed it* and keep the envelope the original was sent to you in.

I've had legal disputes in the past where dates of documents being signed and posted where disputed, the fact I sent anything that could end up being disputed by recorded delivery meant the other side always settled even if I've had to go before a judge first.

If the agency still refuses to pay you have to follow debt recovery procedures and take them to court, which is easier as you have more evidence now of their dishonesty.

*Important a good lawyer will argue you delayed posting it

I like the thought that the only evidence they could ever produce to argue that you were opted out would be stamped "COPY" all over it to show that they never got it signed at the right time.

were

[mcskiver]

Thanks again for all the replies, but the thing is why should I sign it at all?

Is the gist of your points that I should sign it in order to get paid - using today's date rather than that on the form - then just refuse to honour it?

Also, as mentioned earlier, I can't keep anything to do with it being posted to me as it was sent as an e-mail attachment - not by post. They did e-mail it to me when I started the contract I think, but I didn't fill it in because I didn't want to opt out.

[SueEllen]

You can file a complaint with whatever the DTI is called these days about the agency - get the blackmail (for that is what it is) in writing first, so that you have evidence.

Take the form, and write "ORIGINAL" on it in big letters. Sign it.

Take a photocopy of the signed form, and write "COPY" on it.

Post the copy to the agency. At the same time, send the original to yourself recorded delivery. Do not open the letter when it arrives - the agency then has something that shows that it is a copy. You then have the original, and proof of when it was sent in the event of any dispute.

Very convoluted all you need to do is send the copy to the agency via recorded delivery and keep the slip. Also change the date on the original to the date you've signed it* and keep the envelope the original was sent to you in.

I've had legal disputes in the past where dates of documents being signed and posted where disputed, the fact I sent anything that could end up being disputed by recorded delivery meant the other side always settled even if I've had to go before a judge first.

If the agency still refuses to pay you have to follow debt recovery procedures and take them to court, which is easier as you have more evidence now of their dishonesty.

*Important a good lawyer will argue you delayed posting it

[thunderlizard]

One option is this:
(1) get some proper legal advice, which will confirm what Malvolio et al have just said
(2) sign the thing in order to get paid
(3) tell the agency what you've just done and why you won't be honouring the opt-out.

[Hicks]

If they are refusing to pay you on such flimsy (and probably illegal) grounds (a) they are probably on the way out themselves and (b) you should drop them and go direct since they are clearly intending breaching their contract (and (c) they are effectively demanding money with menaces...)

You can't opt out reptrospectively anyway, only at renewal. Plus it is nothing to do with the agency at all, the decision can only be made by YourCo and you in combination.

Name and Shame - not Roy Rogers Associated by any chance...

How is this scenario different to when you interview for a new contract without having specified your desire to opt in or out and are therefore automatically opted in?

Surely, you are in the same position in that it is a renewal (therefore already know the client) and if you were opted in at the start of the contract on what grounds can you change this to opting out at renewal?

[mcskiver]

Commerce Partners...

[Pondlife]

Also name and shame so others can be aware of such carppy tactics/

[mcskiver]

Cheers for the replies. I've had the form e-mailed to me, so i'm not sure I need to post it to myself as proof - the e-mail should do?

They've also sent a letter in the same e-mail specifying again that my payment is subject to me signing the opt-out:

"Please return the above documents, along with both signed copies of the Schedule and Terms and the Opt Out form to us within 10 days. We will be unable to process your payments until these documents have been received."

I'm going to send them everything except the opt-out on Monday when I get everything together, and if they insist on the opt-out I think i'll tell them i'm going to go direct with the client (my current contract runs out on Tuesday). If they refuse it looks like i've got a strong case, but i'll have to find a solicitor...

[Sockpuppet]

You can file a complaint with whatever the DTI is called these days about the agency - get the blackmail (for that is what it is) in writing first, so that you have evidence.

Take the form, and write "ORIGINAL" on it in big letters. Sign it.

Take a photocopy of the signed form, and write "COPY" on it.

Post the copy to the agency. At the same time, send the original to yourself recorded delivery. Do not open the letter when it arrives - the agency then has something that shows that it is a copy. You then have the original, and proof of when it was sent in the event of any dispute.

Actually I'd sent it to your solicitor and get them to certify it as unsigned at x date. Then take a copy and sign it and return it.

For what its worth skip the bull crap and just go legal on their ass. When they are past due on thier account +£50 onto the amount + interest. Then go to court.