Jeff On Call: Can I Re-recruit a Placed Candidate?

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Q: Can I re-recruit a placed candidate?

Yes. There is absolutely no statute or case anywhere prohibiting this.

However, there are three intentional torts lurking in the background:

An intentional tort is a non-contractual civil wrong. If you are found liable for committing it, the law allows unlimited punitive and exemplary damages to be awarded in the discretion of the judge or jury. That’s where the huge jury verdicts come from.

Hundreds of federal and state courts have written opinions on this issue. The foundation is a feisty U.S. Supreme Court decision rendered in 1915 (Truax v. Raich, 239 US 33, 60 L Ed 131) that stated:

The fact that employment is at the will of the parties respectively does not make it at the will of others . . . and by the weight of authority, the unjustified interference . . . is actionable, although the employment is at will.

Almost a century of court review, and the law is still the same.

The three intentional torts that expose recruiters are:

Inducing Breach of Contract:

This means causing someone (like an employee) to break his contract with another (like an employer). Of course, almost every business tries to get business from someone else, so the law only recognizes cases where there is some wrongful conduct (like using confidential information). That’s why recruiting a placed candidate could legally cross the line.

Even at-will employment is considered a contract that might not otherwise be breached.

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Interference with Contractual Relations:

This relates to the disruption caused by calling into companies. It ranges from a passive annoyance to an active insurrection, depending on your aggressiveness and the loyalty of the employees.

Interference with Prospective Economic Advantage:

This is an actuarial projection. The loss of future services of the candidate, morale, and anticipated business can be massive.

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To participate in future Q&As, email jeff@placementlaw.com. Keep in mind you should always consult with your own attorney. Nothing contained herein should be construed as legal advice. It is for your information only.

More than thirty-five years ago, Jeffrey G. Allen, J.D., C.P.C. turned a decade of recruiting and human resources management into the legal specialty of placement law. Since 1975, Jeff has collected more placement fees, litigated more trade secrets cases, and assisted more placement practitioners than anyone else. From individuals to multinational corporations in every phase of staffing, his name is synonymous with competent legal representation. Jeff holds four certifications in placement and is the author of 24 popular books in the career field, including bestsellers How to Turn an Interview into a Job, The Complete Q&A Job Interview Book and the revolutionary Instant Interviews. As the world?s leading placement lawyer, Jeff?s experience includes: Thirty-five years of law practice specializing in representation of staffing businesses and practitioners; Author of ?The Allen Law?--the only placement information trade secrets law in the United States; Expert witness on employment and placement matters; Recruiter and staffing service office manager; Human resources manager for major employers; Certified Personnel Consultant, Certified Placement Counselor, Certified Employment Specialist and Certified Search Specialist designations; Cofounder of the national Certified Search Specialist program; Special Advisor to the American Employment Association; General Counsel to the California Association of Personnel Consultants (honorary lifetime membership conferred); Founder and Director of the National Placement Law Center; Recipient of the Staffing Industry Lifetime Achievement Award; Advisor to national, regional and state trade associations on legal, ethics and legislative matters; Author of The Placement Strategy Handbook, Placement Management, The National Placement Law Center Fee Collection Guide and The Best of Jeff Allen, published by Search Research Institute exclusively for the staffing industry; and Producer of the EMPLAW Audio Series on employment law matters. Email him at jeff@placementlaw.com.

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3 Comments on “Jeff On Call: Can I Re-recruit a Placed Candidate?

  1. No issue with the response at all but a comment on the overall concept is….DON’T DO IT!…EVER!…For every reason someone could advocate to do this there are several good reasons not to. And I am ,again, not saying Jeff did.

    I really hope the next front page article takes another direction…since the prior one was about a guy in our profession taking a fee for nothing and this one is about something that should be equally ugly in the eyes of our clientele.

    How about a story where we got paid a fee and how that fee was immediately ‘repaid’ 10 or 100 times over by the results the candidate provided his client?

    Leaving on a positive note, I want to thank Jeff for posting good reasons not to do this and for having them right here where clientele can see those ideas in case they need them.

    I am now even ambivalent about making the comment but what got me started I guess was the idea that reasons not to re-recruit placed candidates ought not to even potentially be seen to be the sanctions for doing so.

  2. I will also have to add, that while the legal arguments are impressive, there are the ethical issues to consider. Anyone who is certified in our industry (say, CPC, etc), have learned that it is considered an ethical NO NO to every recruit anyone that we specifically placed!! The ethic “rules” also dictate when someone can recruit a person out of an existing client (ie if in different departments, etc). Clearly, if you earned your fee placing someone then you should leave it be!

    I used to coach people that the final decision can be up to the specific client. Ask them what happens if you run into one of their candidates on monster or should they re-connect with you. Many won’t have an issue with it. However, you still tread on murky waters.

    Don’t ever forget the rule of thumb for ethics. I learned this very early in my career directly from a guy named Bob Half (yep, that guy).. He said, and I’ll never forget it… “If you THINK that it’s unethical, then it is!”.. Great rule of thumb for all.

  3. Great point,Neil! Just because someone might say “Kill me” it does not make murder or manslauhghter legal, ethical or advisable.

    Leaving it up to the client is also kind of like saying my ethics are determined by whatever you think.

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