My Candidate Said ‘Yes’ Then ‘No.’ Is My Fee Gone?

Hi Jeff,

I’ve been reading The Fordyce Letter for over a decade and thoroughly appreciate your unique insight, recommendations to readers, and knowledge of recruitment law.

Thank you for the many years of selfless value you have offered and your searing wisdom in the midst of despair!

I have a quick situation to share hoping you might offer your advice on the matter:

I recently went through a 90+ day process with a candidate late last year for a very critical senior leadership role for our client. When I say 90 days, that’s from the time of initial presentation to the time of an offer letter in writing. The candidate also accepted in writing after squeezing (with our help) an additional $130K out of our client.  His total package (with family relocation and additional perks) was over $500K, so this was an important placement for the client and our firm.

Just as the candidate was preparing to board a plane in Florida to our client’s corporate office in Arizona for the orientation, our client received a call from him indicating that he was pulling out due to family reasons. That was his only excuse.

The bottom line is, this gentleman wasted everyone’s time, misled, misrepresented, and defaulted on a signed agreement.

Did he also cost us a $40,000+ fee?

Thoughts?

Thank you Jeff for any input you may offer, and for all you do!

Donna Creighton
President
Advent Recruiting Inc.

 What Jeff Says

Hi Donna,

It’s great to hear from you, but not about a fee-funk like this. Thanks for sharing and being a loyal Fordycer!

We’ll get to your question – and our very powerful candidate control device – in a minute.

But first, let’s get placement planet residents everywhere on the subject of candidate control. Okay everyone:

  1. Go to www.placementlaw.com,
  2. Click the Placement Manager’s Law Quiz button in the middle of the bottom row.
  3. Take the PMLQ.
  4. Click the Placement Law Language Quiz button next on the bottom row.
  5. Take the PLLQ.
  6. Click the Answers to Placement Law Quizzes button at the end of the bottom row.
  7. Grade yourself on the PMLQ and PLLQ.

In answer to your question, this and infinite other candidate control problems can be mitigated (minimized) or obviated (eliminated). We do this contractually in advance of a problem arising.

Usually the candidate is not bound to do anything in a search. There is no contractual relationship, you are not in privity of contract (parties to an enforceable agreement), and there is no consideration. (Really none in this case!)

Consistently high billers don’t worry much, and they don’t have candidate control problems. That’s because they have one single attribute that sets them apart – they manage their candidates. They’re in charge of their inventory.

. . . and they show their power by getting our Candidate Acceptance Agreement and Release signed before they spend their precious five-figure-fee-or-famine time.

Now you can do it too.

  • Go to www.placementlaw.com.
  • Click the red JEFF’S ON CALL! button.
  • Type Candidate Acceptance Agreement and Release in the Subject field.
  • Click Send

I’ll reply with the CAAR.

As you can see, the CAAR is a “wish list” of candidate “dos.” It’s a guide for your lawyer to use in drafting one for you, since he wouldn’t be able to find a sample anywhere else. State laws vary widely, and there’s federal law to consider, so consulting with your attorney is important.

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The “dos” are not “shalls,” but are “shoulds,” since the CAAR is not really designed to be enforced in court. It’s designed to establish the course of dealings between the parties, and let the candidate know that yours is a professional value-for-value relationship.

Problems of enforceability exist for several reasons, including:

1. You wrote the CAAR. Therefore, any latent (hidden) and patent (obvious) ambiguities (unclear words or phrases) will be construed against you. Why? Because you wrote it!

2. You require the CAAR. Unlike most voluntary agreements, the candidate must execute (sign) the CAAR as a condition precedent (something that must happen first) to you working with him. (Yes – you can get it “signed” by email. Just be sure it’s an unequivocal acceptance by the reply.)

3. You are not paying the candidate for executing the CAAR. This is a legalistic adequacy versus sufficiency of consideration issue that can arise. However, a court will likely find that sufficient consideration exists by the trading of rights and liabilities. First-year law students learn this as bargain and exchange. There is also the recital of consideration that can usually support (justify) an enforceable agreement.

4. The CAAR is an employment agreement. Of course, it’s not. At best it’s a pre-employment thing. But don’t try to budge a judge with that one. The court will consider it a disfavored contract just like any employment agreement, since it deals with a candidate’s gig.

5. You are requiring certain conduct in the CAAR. This is called specific performance, and is something a court simply won’t order. The impossibility of monitoring and enforcing someone accepting an unknown job should be obvious. So the only remedy would be compensatory damages (money to pay you for the loss of a placement fee). Theoretically.

6. The release is contained in the CAAR. The release portion in Paragraphs 6 (and 7 if California is involved) covers your concerns, Donna. Paragraph 9 (the severability or survival clause) gives the release CPR, so it stands a better chance of “surviving” if the agreement portion is stricken.

Just be aware that no release (and no insurance) will insulate you from liability for intentional misrepresentation. You won’t lie, but you’ll be accused of doing so. Fraud is the word, probably conspiracy (with the client) as well, and other allegations of intentional wrongdoing. Deterrent (with the costs, attorney’s fees and local jurisdiction in Paragraph 8), yes. Insulation? Not so much.

This is when you learn why it’s called errors and omissions insurance.

But for establishing a professional relationship, do what the superstars do.

Use the CAAR well!

Jeff

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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