The 10 Ways Recruiters Prevent Their Own Placements

As long as you’re in your own way,everything seems to be in your way.

We should have a recording with those words of wisdom whenever recruiters try to convince us to accept an impossible fee collection case. Reality doesn’t yield to rhetoric. You don’t stand a chance when you’re your own worst enemy.Platitudes don’t lead to placements either, though. So let’s look at the 10 specific ways recruiters trip over their own phone cords:1. “CLEARING,” NOT “CONFIRMING” THE FEELiterally tens of thousands of recruiters have told us they “cleared” the fee with some “client.” It means nothing legally. Please understand if you hear us counting to ten before we answer.The only “clearing” that matters at collection time is documentation that proves the employer agreed. Not that it should have agreed, acted like it agreed, or said it agreed. Without something you can introduce into evidence, you’re just headed for heartbreak.”Confirmation” isn’t really that difficult to obtain, but becomes progressively harder with every step in the placement process. With faxes and Emails becoming as common as phones, there’s just no excuse for not obtaining an instant signature and faxed return of your fee schedule or a confirming return Email. The reasons you don’t require them have more to do with feephobia than faxphobia or Emailphobia. Even if you can prove you just sent the faxed or Emailed schedule, you’re better off. Not much, though. Go that extra step and require, demand, insist on the returned fee schedule signed or Email acknowledged.The average placement takes 98 days. If the average fax fee confirmation takes 9.8 minutes, I’d be surprised.More and more feefighting employers argue that since you faxed or Emailed everything else, why didn’t you send the schedule first with the request for a signature? They credibly say “If we had agreed, we would have signed it. But we didn’t, and told the recruiter it was unacceptable.”This would all be fine if you weren’t the plaintiff. But you are you have the burden of proof. That burden is not met by verbally “clearing” and not met by writing anything yourself.”Clear” that fee at your peril. Confirm it, and get out of your own way.2. OVERLOOKING PRIOR CONTACTThere are two ways this subtle oversight occurs:

  1. The candidate is not asked about employers he’s contacted, and
  2. The employer is not asked about candidates it’s contacted.

If this sounds like Lesson 1 in Placement Law 101, I’m glad. Statistically, only 27% of all placers even ask candidates! And how many ask employers? Our survey shows somewhere around 8%. The percentage of those who ask both parties is too embarrassing for us to print.I’m sure the reason is that nobody knows how long a prior contact is valid. Now you will: One year unless otherwise stipulated.I just made that up. But it sounds reasonable. In fact, I like it so well that if you get into a fee fight over a referral more than one year old, I’ll write an opinion letter that you or your lawyer can drop on the employer.Then you can write a letter to my publisher, and we’ll both be working for a while.If it’s not already on your forms, have a rubber stamp made that says:

  1. On job order form.What are the names of candidates you have considered for this job during the past year?_________________________________________________________________________________________________________
  2. On candidate background form.What employers have you applied for a job with during the past year?_________________________________________________________________________________________________________

You’re not responsible for some human resourcer who says “None of your business.” You just need to be able to show you asked and wrote down the answer.Then your testimony shifts the burden of proof to the employer. Employers who didn’t make a full disclosure at the beginning turn into witnesses you can impeach at the end. That means the court will disregard their testimony.3. “PITCHING,” NOT “PRESENTING” THE CANDIDATENo wider gap exists between a recruiter and a hirer than when the candidate is oversold.There’s no “perfect” human, so it follows there’s no “perfect” employee. When you “pitch” to someone, you’re expecting him to “catch” that air-filled ball. But hiring authorities don’t “catch” they screen. Insulting their intelligence makes them doubt yours.Who’s going to discover the candidate’s weaknesses if you don’t mention them? Who else? Why not use them as part of a balanced presentation? There’s nothing wrong with minimizing them, either. Just be sure you mention them.Let’s assume you’re searching for a Controller. The candidate is a financial type who’s missing a Master’s in Finance. The hiring authority insisted on it when you took the job order, but your candidate has the equivalent experience working as a Controller for a competitor.You could slip past the credential by saying “He’s got a Master’s in Finance, but he just hasn’t applied for the degree.” Misrepresenting someone’s background can result in a sendout every time. You could also say “He’s got the equivalent of a Master’s in Finance, but he hasn’t completed all of the courses of study in transferable units.” This is true, and certainly is more likely to get you paid than not mentioning him at all.But you can go beyond that. How about: “If you absolutely won’t consider anyone without a Master’s, I won’t refer this candidate. However, I’ve conducted a complete search for someone with the qualifications you want, and overall this is the best-qualified candidate. You’ll have to be flexible somewhere. People with Master’s degrees in Finance are everywhere, but I’ve been unable to locate any that look like they can do the job as well as this one.”That’s not a “pitch” it’s a presentation. What serious hirer could resist?4. INDIRECTLY ARRANGING THE INTERVIEWA recruiter has four reasons for allowing a representative of the employer to arrange an interview with the candidate:

  1. He’s worried about his phone bill.
  2. He’s afraid he won’t be able to do it directly.
  3. He’s aware that the employer doesn’t realize there’s a fee.
  4. He’s lazy.

The usual excuses given for allowing it are:

  1. “It was more convenient.”
  2. “The ‘client’ wanted to do it.”
  3. “The candidate wanted to do it.”
  4. “I didn’t think it would make any difference.”

The fact remains there is no excuse for allowing it. Your leverage with the employer is greatest just after the presentation and before disclosure of the candidate’s identity. Arrangement of the interview occurs just after that.When you lose the opportunity to arrange the interview, you risk the defense that you weren’t the source of the hire. That is what lawyers call a “complete defense.” It’s the only major one in the placement process. Almost any other objection can be overcome, but if you can’t prove you referred the candidate, you won’t get paid.So ask yourself whether one of those four reasons are ever yours. Then ask yourself whether you use those four excuses. If so, ask yourself why you’re preventing your own placements. It makes no sense.In How to Have Confidence and Power in Dealing with People, Lester Giblin observed:

You never sell anything to anyone else until you yourself are sold on it.When you are sold, and the other fellow knows you are sold, he’ll want it. Go one step further and sell yourself on the idea that he is going to buy, and he is almost forced into buying what you are selling.

Wedge yourself right in the middle of the sendout any way you can. In fact, if you discover that an “end-run” has occurred, don’t “lie in wait” hoping to pounce on the placement. You’re legally risking a court will decide you waived (relinquished) your right to be paid. Pounce immediately jump up and down if you must.Be able to prove immediate delivery and receipt of a letter that states (professionally) “If you hire, then you owe.” Express mail, fax attack, send a messenger, Email or show up yourself. Fast, with no doubt about your intentions.What have you done legally? You’ve caused the employer to assume the risk that you’ll nail it with your fee schedule. Let them meet. Sooner or later, they’ll have to make their peace with you.If your lawyer won’t take that one on a contingency fee, he’s been playing in the wrong court too long.5. “SCHEDULING,” NOT “CONFIRMING” THE INTERVIEWThe difference between “scheduling” an interview and “confirming” it is the difference between doing your job and doing your homework. Or as every lawyer knows, the difference between truth and proof.There’s no way to prove that you were the catalyst in the “face-to-face” unless you create the evidence at the time. If you don’t use express mail or your fax, at least use First Class Certified Mail Return Receipt Requested. Looking “unprofessional” (if you think you are) is better than being unpaid. We covered this in Chapter 49 of The Placement Strategy Handbook entitled “Fee Or Free, Which Will It Be?”Why is this only done 17% of the time? It’s so easy! Just write a letter that reads:

(date)(name of employer)(address of employer)ATTN: (full name and title of hiring authority)Re: Interview with (full name of candidate) on (date)Dear: (first name of hiring authority):This will confirm the interview of (full name of candidate) on (date) at (time) in your office.We were pleased to arrange it, and look forward to hearing the results as soon as you have met with (first name of candidate).Should you need anything else, please let us know.Very truly yours,(your full name and title)(name of your organization)

It took me about two minutes to compose that letter. It should take you about as long to copy it. Use it every time, and you’ll reduce your fee collection problems. You won’t even know it’s happening.Employers just won’t play fee-avoiding games with you.6. “HAND-HOLDING” WITHOUT “HANDLING” THE CANDIDATEThe superstar recruiters of this world have professional detachment from their candidates. Since they’re sensitive “care-givers” by nature, this didn’t happen naturally. They disciplined themselves to establish a “course of dealings” with the people they recruit.”Hand-holding” just hastens a heartbreak. Candidates use, abuse and betray recruiters more often than not. It isn’t their fault. Blaming them or feeling sorry for yourself just shows you don’t understand human nature.William Lareau does, though. He wrote in Conduct Expected: The Unwritten Rules for a Successful Business Career:

People work for many reasons, usually the least of which is a careful and well-thought-out concern for their career development. You would be lucky beyond reason if your [candidates] were . . . carefully attending to your sensitivities, not bothering you about their petty emotional states and problems, and looking out for their careers (which would help yours).You’ll get no such luck. Instead, most of them will merely consider the workplace as another locale in which to act out the ongoing soap opera of their personal lives. Most of the time, they’ll be governed by urges that are directly contrary to their own best career interests, but will serve their short-term emotional needs.

7. RUNNING HEAD-FIRST INTO A HIRING COMMITTEEHiring is a committee job, and you can become hopelessly mired into a no-win infinite waste of time. In fact, the more you talk and listen to every functionary in the placement process, the more difficult it is to extricate yourself from the process itself. This is a major placement preventer. You’ve got to deal with all the personalities, politics and ploys. You lose focus, control and credibility.If you plan to make placements, you’d better deputize no more than two people at that company, and stop trying to improve the image of our industry single-handedly. You’ll be no good to yourself or the rest of us if you’re not placing regularly.Zig Ziglar wrote in Steps to the Top:

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Eloquence is simplicity in motion.I challenge you, in your life and in your communications, to let your thoughts run deep but to keep your expressions simple and direct. Whatever can be misunderstood will be misunderstood, and unnecessarily confusing ways of speaking will not help the matter.Simple . . . direct communications will move more people into action.

Zipping the lip is hardest for people in “people sales.” That’s a little lesson in human nature placers need to learn. It seems inconsistent because logically the harder you sell, the more likely someone will buy. But committees frequently act in ways that defy logic.8. COMPROMISING THE FEEThe National Placement Law Center estimates that fully half of the contingency fees referred for collection are previously compromised amounts.Not only does this reduce the fee itself, but it reduces the probability of collecting anything.Let’s look at the reasons:

  1. PsychologicalYou appear like a “pushover.” You also show that even you don’t believe you’re worth what you charge.For every 90 lb. weakling, there’s a bully just waiting to beat him up. In this case, a compromised fee is a sign that reads “Kick Me.” And they kick hard. The best you can hope for is that reduced, reduced again (by the commission) and reduced again (by the legal fee) amount.You’ve really got to fight to get it, too.
  2. LegalThe legal problem with reduced fees is showing there was the “meeting of the minds” necessary to the formation of any contract.In the abstract, you might think a fee reduction helps, because it shows the employer negotiated the amount. But in the real world of the recruiter, documentation (proof) of the agreement is a rare find.Here’s what usually occurs:
    1. The employer asserts that since reduced fee is consistent with its “policy,” the recruiter also agreed to the terms of its Placement Service Agreement (extended guarantee period, refund, etc.).Even if the PSA is unsigned, this is a persuasive argument. Why? Because the willingness to compromise the most “material” term (the fee) shows a willingness to agree to anything.Cases are never “perfect.” Judges and juries constantly leap from certain facts to probable conclusions. The law calls these leaps presumptions.Objectively, you can see how that leap can occur. Expect no mercy or even “justice.” You have the burden of proof by a preponderance of the evidence.You can’t rebut that presumption.
    2. The reduced fee shows there was confusion about the amount. Once again, no meeting of the minds, no contract.If the employer signed off on a reduced fee schedule, fine. We don’t see those cases, though.Feefighters don’t sign reduced fee schedules. Fee-reducers don’t ask them to, either. Fee-reducers have an “in-fee-riority complex.” They wind up with an “un-fee.”
    3. The reduced fee also reduces the credibility of the recruiter. It often is coupled with a later “standard” fee invoice because the employer didn’t pay.Sometimes the rationale is a term in the fee schedule about when the invoice is due, sometimes it’s not.We send the higher invoice back to the recruiter, and hope the employer doesn’t subpoena or mention it. It’s a little late to start insisting on a full fee after the contract has been performed.There are words you can use on your original invoice to give you a shot at a full fee. But frightened feephobics don’t use them. They’re afraid that the number might offend the big, bad “client.”For much more on this subject, you might review Chapter 105 in Placement Management entitled “Fee Negotiation.”

9. BUYING INTO A “SPLIT-FEE DISPUTE””Let’s you and him fight.”We hear those oft-repeated employer words constantly. The so-called “client” holds the candidate (and your fee) hostage until you “straighten the matter out” with the other recruiter. “We don’t care who we pay, but we’ll only pay one fee” usually follows.What do you do? You fight. You robotically call up that arrogant person (whom you’ve never met), and start explaining how willing you are to “compromise.” It’s a riot to a lawyer.That “client” just sits back and watches you shoot it out with another headhunter. Lost in the spirited splatter of blowdarts is the real target the “client.” Did you have a contract with “Recruiter B?” Of course not. You do now, though. It’s called a “split-fee agreement.”So the “client” (Love that word!) hires, and gets to pay its one fee anyway.And all because you forgot who was the promisor in your contract.10. EXTENDING THE GUARANTEEThis is the same legally as compromising the fee (Item 8). But it prevents the placement for a different reason.Extending the guarantee (even if it’s just to replace the candidate) sets up a chain reaction. It works like this:

  1. The hiring authority asks for a longer term.
  2. You agree.
  3. The hiring authority begins to doubt whether you’re confident about your candidates (see Item 4).
  4. The hiring committee starts openly discussing whether you’re the right recruiter.
  5. Nobody is willing to risk using you.

Committees invariably follow a path of least resistance. Employees act in accordance with David Viscott’s analysis in Risking:

They take jobs because they seem stable. They become rigidly attached to institutions and organizations because they fear letting go. They . . . want to belong. They do not want to be the stranger, or risk being excluded.Often a businessman cannot risk because he fears losing control or making bad decisions that prove him unfit.

When you’re “clearing” the fee, extending that far-off (usually unnecessary) guarantee seems so easy. You volunteer it. You’re a “closer.” But you’re not “closing” then, you’re just opening. You haven’t even made a sendout. And if you extend the guarantee after the employer is ready to hire, you’re holding your blowgun backwards.These are the 10 ways recruiters prevent their own placements. It’s really not necessary. Life in Headhunter’s Jungle is tough enough.

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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