Jeff on Call: Soliciting Employees and the Law

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Q: Can you let me know what the legal ramifications are of a company’s request to stop soliciting their employees? Do they have legal recourse if I continue to solicit them? Does it matter if the solicitation is in the form of an email or phone call? And does it matter if an email solicitation is in the form of a request for referral versus asking them if they would be interested in the position?

A: Great questions that I’m asked dozens of times a month!

There are no ramifications with regard to the source employer’s request itself. However, you shouldn’t ignore it.

If the request is from some human resourcer or other non-lawyer, reply in the same manner as you were notified (mailed letter, faxed letter, email, or phone call). If there’s a letter from a lawyer, have your lawyer reply with a letter. Using the same mode of transmission is appropriate without appearing defensive or aggressive.

If the solicitation is in the form of an email or any other writing at a candidate’s workplace, you’re just providing evidence to a potential adversary. So phone solicitation is best. Immediately ask for an after-hours number, cell number, and personal email address.

Asking for referrals is better than a direct solicitation for obvious reasons.

Now on to the law:

The source must be able to prove you’re guilty of inducing breach of contract and interference with contractual relations. If you are found liable for one or both of these intentional torts (civil wrongs), punitive and exemplary damages (to punish and make an example of you) can be awarded in an unlimited amount.

There are only two issues:

1. Was there an enforceable contract with the candidate?

Always. Even an at-will employment of one day is a contract. The expectancy of continued employment by the parties is sufficient.

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2. Was the conduct malicious?

If it helps, the courts have defined “malice” as “hatred” or “ill will.” Others call it “over the top.” What does that mean? It’s very subjective, but no reported case has ever defined it as “cold-calling to determine interest in a job change.”

Inducing breach of contract and interference with contractual relations claims are often coupled with allegations of unfair competition and conspiracy (with the client). These also invoke unlimited punitive and exemplary damages.

So that’s the story — recruit away. Then if you’re sued, we’ll counterclaim for an outplacement fee. Since you can’t “steal” someone who doesn’t want to be stolen, you’re helping the source remove its morale problems! Nothing like getting two fees for one placement.

Thanks for asking!

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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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2 Comments on “Jeff on Call: Soliciting Employees and the Law

  1. If you receive this type of a communication, then probably one or more of the candidate that you were trying to recruit ratted you out (for whatever bonehead reason). It would be good to know who that person is so that you can avoid interacting with them in the future. It should be easy to figure out by reviewing the responses or non-responses of the people who tried to contact.

    In my experience, almost every time a company sues a recruiting firm over this or a candidate for breach of contract or a non-compete; the company isn’t really expecting to win the case. It’s all about intimidation. They’re not only threatening you with the potential outcome of the case but also threatening that you will be incurring large legal fees. Their actual legal cases are generally weak (but obviously different in every case and in every state).

    So what do you do, knowing that this is mainly about intimidation. One approach is to lay low for a while. You can always come back and recruit from them on future searches after about six months. I usually do this and there have never been any repercussions when I return to recruiting from a company – except maybe a similar threatening letter. The chance of this happening can be minimized if you have identified and avoided the squealers. This isn’t exactly a Buddhist sentiment but: “It’s all about whose is bigger over the long haul not proving that yours is bigger today.”

    If I really need candidates from the company and really need them today I take a more aggressive approach. First, identify and avoid suspected squealers. They have shown that they’re not real candidates any way. Part of a company’s complaint is often that you are using their resources to recruit their people (i.e. their phone system, their computer and email systems, their employees paid time). The remedy is to continue recruiting “off the reservation”. Call them at home or on non company paid cell phones. Approach them by non-company email. If you don’t have this information get it from mutual friends in your network. LinkedIn mail also comes in very handy for this. Or have a mutual friend tip them off and ask them to reach out to you.

    I am curious though, Jeff. You mentioned responding to the company in the same manner that they contacted you. My question is why respond at all? Why not just let it all die down? Since even if you are polite and professional, you are not likely to be telling them what they want to hear, aren’t you just stoking the fire by responding? I’m not questioning you here, just asking a question. Please educate me. I always like free legal advice.

    Tom Keoughan
    http://www.toyjobs.com

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