Woes Around Opt-Out and Payment

[trundrumbalind]

Hi guys,
A contract which I was placed at through a recruiter recently ended when the client went into administration. Now trying to recuperate costs. I'm owed two months worth. As soon as the company was told it was going under, I phoned and told my recruiter. They said they'd get back to me the next week but there was a chance I wouldn't be paid if they couldn't be paid themselves.

The next Monday, the funds for month 1 arrived in my account (hooray but a tad unexpected). Today, I receive an email with an update basically saying that so far they haven't been paid but were continuing to chase things up but if they didn't receive money, neither would I.

First question, is there any legal course at which the recruiter could ask me to send the money back?

Second issue is regarding the next payment which is to be made next month... There is a clause in my contract:

"For the avoidance of doubt, unless [Recruiter name] has received a Notice of Opt Out the Company shall be entitled to the Fees regardless of whether [Recruiter name] receives any payment from the Client."

This sounds good but did I opt out? Well, when starting the contract, I was told "Your contract and opt out form will be sent to you shortly via EchoSign". EchoSign is an Adobe platform for managing, storing and signing contracts by the way. Now... the *contract* has a field saying "Contractor Opted-Out" with a "Yes" next to it. I've signed this document. Not good... But, I never received nor signed any separate opt-out document. So question two is: do I have legal course to receive that money or say I never actually opted-out?

There is nothing in the contract explicitly specifying that they wouldn't pay me in a situation such as this...

Any help would be greatly appreciated.

[NotAllThere]

If your contract doesn't say that you don't get paid if they don't, then start the dunning process with the agency as soon as they are late paying your invoices.

You are probably legally not opted out since most agencies don't seem to understand the conditions for opting out, so that gives you another reason why they must cough up.

However, if they're on a shoestring, you don't want to risk tumbling them over the edge and then you get nothing. In your place (after a quick chat with a lawyer to make sure that I'm not on shaky ground) I would tell them that the debt they owe you is irrelevant to the debt their former customer has left behind, but if necessary you will give them time to pay.

[trundrumbalind]

If your contract doesn't say that you don't get paid if they don't, then start the dunning process with the agency as soon as they are late paying your invoices.

You are probably legally not opted out since most agencies don't seem to understand the conditions for opting out, so that gives you another reason why they must cough up.

However, if they're on a shoestring, you don't want to risk tumbling them over the edge and then you get nothing. In your place (after a quick chat with a lawyer to make sure that I'm not on shaky ground) I would tell them that the debt they owe you is irrelevant to the debt their former customer has left behind, but if necessary you will give them time to pay.

Thanks very much for your quick reply! Feel a bit better... Do you have any insight regarding the money they, I'm guessing mistakenly, sent already and if they could ask for it back? The second payment is only for half a month (the company just went into administration last week) so it's less important but still, I want to get *something* out of this and that first full month would be nice.

My thoughts on why I received that payment are that the payments are either automated or the news of the company going into administration never made it to the payment people on time (I got paid on Monday and the company went into admin on Thursday). I feel I just got lucky there...

The agency is a large one and so I don't think they're on a shoestring but I guess you never know!

[eek]

Did you opt out prior to signing the contract. You could do with mavolio appearing to give his viewpoint but from memory an opt out is only valid if they received it prior to introducing you to the client.

If they asked for the opt out after you were interviewed (I believe) it's too late.

Do you have IPSE membership as their helpline should be able to help

[trundrumbalind]

Did you opt out prior to signing the contract. You could do with mavolio appearing to give his viewpoint but from memory an opt out is only valid if they received it prior to introducing you to the client.

If they asked for the opt out after you were interviewed (I believe) it's too late.

Do you IPSE membership as their helpline should be able to help

Check out the quote in my original post from their "Welcome email". They never explicitly asked for opt-out, I guess just assumed and I never signed an opt-out form or contract. My only worry is a "Contractor opted-out" field saying "Yes" (in print) on the actual contract I signed.

In one email, under a list of "I need the following information from you in order to get you set up as a contractor on our payroll at [Recruiter name]:" there is a bulletpoint:

"Opt In/Out Declaration (this will be signed with your contract)"

However I replied to this point: "I don't think I have anything like this. Can you assist please?" But there was never any follow-up. Just the contract with the field specified above.

[gables]

Did you opt out prior to signing the contract. You could do with mavolio appearing to give his viewpoint but from memory an opt out is only valid if they received it prior to introducing you to the client.

If they asked for the opt out after you were interviewed (I believe) it's too late.

Do you have IPSE membership as their helpline should be able to help

This is as I understand it and even signing an opt-out afterwards might give the agency the impression you're out, you are in fact in.

[LondonManc]

Why would you think you were paid by mistake? You were paid what was owed to you as per your contract with the agency. They cannot come back for it if there's an invoice and approved timesheet. Beyond that, NAT's post stands.

[dingdong]

Most implementations of Docusign and Echosign will immediately send you an email as a record after you have electronically agreed to a contract using their service.

[missinggreenfields]

This is as I understand it and even signing an opt-out afterwards might give the agency the impression you're out, you are in fact in.

This is how most contractors understand it (ie introduced to the client so they know who you are). This is not how most agents understand it (ie introduced into the client environment).

Given that the contract and emails etc specifies that to opt out you must sign the opt out form and the contract I don't see how anyone can argue that the OP opted out, regardless of the interpretation of when you can opt out.

[trundrumbalind]

Why would you think you were paid by mistake? You were paid what was owed to you as per your contract with the agency. They cannot come back for it if there's an invoice and approved timesheet. Beyond that, NAT's post stands.

Oh I definitely don't think it was a mistake in that regard! I just think they would have meant to withhold that month's payment when they learned of the administration but maybe some inter-office drop in communication allowed the payment to go through anyway. A mistake for them that is.