Some Thoughts On The Candidate Acceptance Agreement

The obvious contractual defect to the Candidate Acceptance Agreement is a failure of consideration. The recruiter is really not giving up anything in exchange (“legal detriment”) for the promise of the candidate to accept. This is because there is no liability on the part of the employer (and therefore no absolute right to the fee) in a contingency-fee agreement until the candidate is placed.

Alternatively, the candidate is likewise receiving nothing of value (“legal benefit”) from the recruiter because the job offer was unacceptable. In fact, the candidate has spent his or her time and effort without being compensated. A subjective rejection of the offer invokes no liability on the part of the candidate because the “objective theory of contracts” (e.g., an objectively better offer) can’t apply when no contract exists.

So under both detriment to the promisor and benefit to the promisee theories of consideration, the contract is unenforceable.

Even our “payment upon acceptance” system in Chapter 6 of the Fee Collection Guide* (“Collecting Before The Candidate Starts”) or Chapter 102 of Placement Management* (“Getting Paid Before The Candidate Starts”) does not change this outcome unless there is an acceptance. If there is, the employer owes the fee.

There’s a goldmine for recruiters by using a CAA in conjunction with a “payment upon acceptance” signed fee schedule. ‘The CAA causes the candidate to accept. The Agreement may be without consideration (“nudum pactum”) , but it’s not being enforced. The Agreement with the employer is the one that counts.

Article Continues Below

In this scenario, it doesn’t matter legally whether there is any evidence of acceptance of the CAA. The reason for the acceptance is so irrelevant that you could even pay the candidate a “sign-on bonus” to accept. All that matters is that the candidate accepted and the offer was then withdrawn. (Of course, the acceptance must be real. Otherwise, expect a Counterclaim for fraud and conspiracy.

As to acceptance of the fee schedule by the employer, e-mail works.

As with any fee agreement, the acceptance must be unequivocal and reference the identical dated agreement received. Any employer lawyer will allege that only a signature on the actual document binds his or her client. So a signature on the actual document is as good as it gets. That means a full fee, attorney’s fees (if provided in the agreement) and costs.

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.

Topics

2 Comments on “Some Thoughts On The Candidate Acceptance Agreement

  1. I recently received a physician assistant candidate who applied to my job posting. He was interviewed by my client, with whom I had a signed contingency agreement, and offered the job. On the day he was to sign with them, the client’s HR manager called me and said that another firm was claiming credit for the placement.

    Apparently, the other recruiting firm had submitted this same candidate for a different job at the clinic. The candidate did not take the job. And 11 months later, forgetting about his relationship with the previous recruiting agency, pursued the new job with my help.

    According to the HR manager, she did not recall the recruiting firm’s involvement, and only has email communications showing her rejection of their fees. She signed no agreement. However, she did interview the candidate and offered him the job, which he did not take.

    She claims that she owes them nothing. They say that her acceptance of the candidate is proof that she approved of the agreement, even though she sent them an email rejecting it. And that any hiring of their candidate within a year puts them on the hook for a placement fee.

    I had no knowledge of my candidate’s previous relationship with the other recruiter. I have the only signed contract. My candidate has gone to bat for me with the client. He is upset with the other recruiter, as is the client. And it was my work that led the candidate to this current job.

    Shouldn’t I receive the commission?

  2. Yes, you should be paid. The candidate and employer are the real problems here. (Your candidate did not “forget” about the other recruiter, no matter what he/she says, and the HR person should have simply backed off from hiring the candidate.) The good thing is your candidate is now backing you, as is the HR person. This is not your problem…it’s the hiring company’s problem. Invoice the HR person who backs you, get paid, cash the check…and when you are subpoenaed as a witness to the suit filed by the other recruiting firm, your attorney should be capable of getting you out of any obligation to testify, or he may be able to persuade the court to accept your affidavit and not have to travel to the venue. The company may end up paying two fees.

Leave a Comment

Your email address will not be published. Required fields are marked *