Dilemma: Sourcing efforts by 3rd party, AFTER candidate was contacted by employer's recruiter

I recently proposed this very real hypothetical to a few recruiters within my network. The results were somewhat varied. The hypothetic would go something like this:

Employer's internal recruiter contacts candidate directly via Linkedin whereby a job description. is shared.

Upon review candidate elects to stay put and pass on the opportunity. Via email the correspondence ends with a "best of luck in your search" and passive call to action from the company recruiter, "...should circumstances change, please let me know."

Fast forward 2 weeks. An agency reaches out to the same candidate. Candidate informs agency recruiter that he has already been contacted by the employer. However through the power of pursuasion the recruiter convinces the same candidate to apply through the agency.

*Candidate was never entered into the ATS and was submitted via the hiring manager.

What say you?

With whom does candidate ownership belong?
Are there ethical concerns raised after agency recruiter was told by the candidate of previous correspondence with employer?

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Replies to This Discussion

Permalink Reply by bob on February 7, 2011 at 11:30am

my dilemma is time is not on my side

i was told that the company KNEW of the candidate from 2 years AGO and would NOT accept my involvement . I told this to the candidate to be an honest person. The candidate told the Hospital Client to forget his involvement with them because he felt that if they were not trustworthy now trying working for them

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Permalink Reply by Brian Whitfield on February 7, 2011 at 11:33am

So if the 3rd party recruiter never contacted the candidate the 2nd time, he never would have been submitted and actually interviewed/hired?

I'm sure there will be plenty of disagreement, but the fact remains 'but for' the 3rd party recruiters actions, the candidate would not be placed. Therefore, they are due their fee. Plain and simple.

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Permalink Reply by Matt Helke on February 7, 2011 at 11:47am

Regardless, it is not the agencies recruit. It doesn't matter if the company didn't get them on the first try. They had first contact. Look at your contract with the company. There is probably a clause in it that states that any candidate presented to the client is the agencies referral for 6 months, a year...whatever. Guess what, even though it isn't specifically stated, it is also implied that the client has the same right. In other words, if the client has had first contact with said candidate, whether they logged them in an ATS or not, they still had first contact and it is theirs.

Even if you don't have that clause in your contract, you still don't have a leg to stand on. They have first contact. End of story. Go find a better candidate and knock them out. You'll end up irritating the client fighting this. Since you cannot win, don't. You will lose them as a future client and who knows, they could be worth a lot of future placements. One "potential" placement isn't worth the fight to lose several "potential" placements in the future.

Secondly, never get the candidate involved with this type of issue. When asked, they will side with the client. They figure if they side with the client they will get the job - they ARE the employer. If they side with the agency...well you're NOT the employer...hmmmm, if you want a job who would you side with?

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Permalink Reply by Tony Perry on February 7, 2011 at 11:53am

There is a huge difference between knowing who is a good candidate and having a good candidate in play. The agency recruiter has the "but for my efforts" argument and the high ground, but in the end will likely has to acquiesce for good will.

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Permalink Reply by Martin H.Snyder on February 7, 2011 at 11:57am

Get a fee agreement completed with the hiring company before making the presentation, and make sure your agreement defines "proximate cause of hire" as the event that triggers the fee obligation.

Then no worries about this case: the candidate declined and told the company, and the company acknowledged the decline. At a later time, the candidate changes their mind due to to the actions of the recruiter (e.g. proximate cause is established), and the fee becomes payable.

If you can't get a strong fee agreement signed prior to a presentation, market your candidate elsewhere.

Enforcing the agreement may be somewhat difficult, but the overall validity of recruitment firm fee agreements is relatively established legally.

As always, I'm not a lawyer and you should consult with your legal authority before making legal decisions.

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Permalink Reply by Harold Ensley on February 7, 2011 at 12:03pm

If both touch the candidate, the internal recruiter wins. Nothing good can come of insisting on a fee in these situations.

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Permalink Reply by Jeff Flannery on February 7, 2011 at 12:42pm

This issue comes up regularly with my firm. Not exactly this example, but the whole "candidate already in the resume database" nonsense. To me, this is really easy. Whoever was the "catalyst" for the activity deserves the credit, whether it be me, another recruiting company, or HR.

Here is the way I would handle this specific situation. I would tell the company I have the perfect candidate for the job but the company has already tried to recruit them and they turned them down. If they agree to pay me, I will present the candidate. If they don't, then I won't. Every client that I have in this situation with over the last several years had said yes to this proposal with the exception of one..

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Permalink Reply by Jason Lau on February 7, 2011 at 12:46pm

What a great discussion. The "only by my devices of persuasion" did the candidate apply argument carries some water. However in isolation the harm to the relationship is real and paramount (IMO).

Internal recruiters, just like agency recruiters, are in the business of developing relationships. After first contact it is reasonable to assume that internal recruiter will stay in contact with the given candidate. Frequently revisiting the relationship as circumstances change etc.

Undercutting those efforts by ignoring the very instance of first contact is concerning (and perhaps a significant point of strain in that relationship).

As a one-time agency recruiter I would always defer to the client. There are hundreds of candidates, and if the efforts an internal recruiter proceeded that of mine - I would gladly tally that up to their efficiency. I would also

feel comforted to know I was on the right track with my search and gladly let the company recruiter know that we are on the same page with our efforts.

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Permalink Reply by Jerry Albright on February 7, 2011 at 12:46pm

We're now talking "first touch"?

Folks - we don't know a few key things here:

How long have these companies worked together?

What written agreement is in place?

How did this particular job order get started?

To me it seems there is too much "cat and mouse" going on. And I'm talking in the larger sense - not necessarily this case in particular. Too much second guessing about things.

Why is that? Wouldn't it be far simpler to just ring the client and let them know you've bumped into a strong candidate, uncovered a few more details, presented some interesting perspectives and now have someone their approach missed on?

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Permalink Reply by bob on February 7, 2011 at 12:55pm

outstanding answer

does anyone have a time limit on a company taking ownership of a candidate.

Jeff Flannery said:

This issue comes up regularly with my firm. Not exactly this example, but the whole "candidate already in the resume database" nonsense. To me, this is really easy. Whoever was the "catalyst" for the activity deserves the credit, whether it be me, another recruiting company, or HR.

Here is the way I would handle this specific situation. I would tell the company I have the perfect candidate for the job but the company has already tried to recruit them and they turned them down. If they agree to pay me, I will present the candidate. If they don't, then I won't. Every client that I have in this situation with over the last several years had said yes to this proposal with the exception of one..

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Permalink Reply by FREYJA P. on February 7, 2011 at 1:03pm

Unclear how it may work in your area, but in mine it isn't even a question. First touch wins - end of discussion. Even if the client has not spoken to the candidate, if they are in their database - it's a no go.

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Permalink Reply by Jody Schwartz on February 7, 2011 at 1:04pm

I am a Personnel Recruiter and have been for 18 years I can see both sides of this argument but to be honest since the candidate was already contacted by the company this is a "no win" situation on the part of the recruiter. The company simply will not pay a fee IF the candidate confides to the recruiter that she/he has already been contacted by the company (employer)......forget it! IF THE COMPANY DOES pay your fee because they just plain don't want to argue they probably will NEVER use you again and they will not trust you.....FORGET ABOUT IT AND GO ON TO THE NEXT CANDIDATE!