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 Brian Whitfield on February 7, 2011 at 1:15pm

The question was 'with whom does the candidate ownership belong?' , not 'will the agency collect a fee?'.

The answer to 'ownership' is whoever really caused the hire - in this case it was the 3rd party recruiter.

However, if the question was 'will the agency collect a fee?', the answer is most likely "No. Forget it. The company will leverage 'the relationship' to get out of paying a fee, even though they never would have hired the candidate if the recruiter hadn't submitted them."

The end result is that the next time this happens (and it will happen again), the agency will not submit a candidate because they remember what happenned the first time. The hire won't be made and the company will miss out on some potentially great hires because of 'candidate ownership' issues vs. all concerned working in the best interest of the company.

In niche skillsets, it becomes possible to 'own' just about every candidate in a given market if just talking to someone constitues 'ownership'. Yep, candidates can be 'owned' but not many hires really result. Companies and recruiters have to be very careful that they work with the big picture in mind (hiring great talent) vs the "He's mine! I talked to him first!" mentality.

If an agency causes someone to be hired, they should be paid. If a candidate IS currently being pursued directly by a company, then an agency shouldn't try to get in the middle. If they are NOT being pursued, then shouldn't they be 'fair game' in the best interest of getting the best talent?

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Permalink Reply by Jerry Albright on February 7, 2011 at 1:18pm

I'm quite surprised by some of the assumptions being made here. Some are saying there is no way the client will pay the fee. Others feel the "but for my efforts" rule is pretty solid in this case.

I can tell you I have not heard (until now) and I reject (starting now) this "first touch" phrase. Sorry - but either the candidate is being considered or he is not. Sounds to me like he didn't even get that far.

Who knows how the call or email went down with the internal recruiter. Could have been something like this:

"Dear Candidate - we have a great employment brand and I wanted to reach out to you and suggest you become a fan of our Facebook page. You'll love our brand!"

or maybe

"We are hiring for a superstar like you and the salary is 60,000/yr. Please send your resume."

I mean - really - who knows what happened? I don't.

But "first touch"? Sorry. It's not in my handbook.

Overcoming the objections? Generating the interest? Scheduling the interview? That's what we do. That is what I get paid for. Not just "checking to see if you've heard of........"

Once again I'll suggest - give them a call.

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Permalink Reply by Scott Sachs on February 7, 2011 at 2:00pm

Martin is correct, you must have a written agreement in place, one that forges a mutually beneficial relationship and spells out the business arrangement between parties. Also, Jeff presents a great point about discussing the scenario in advance with the client before moving forward which can eliminate headaches before you start; it shows professionalism, too. The essence is always this: What defines your client relationship? Are you truly a strategic business partner with them; or are you just another resume pusher chasing the same ambulances with all the rest?

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Permalink Reply by Jerry Albright on February 7, 2011 at 2:03pm

Respecfully - I would like to suggest that not every recruiting mission needs to be defined under the "truly a strategic business partner" umbrella. I mean, really - what percentage of our clients have us in this capacity? I'd venture to say not many.

Scott Sachs said:

Martin is correct, you must have a written agreement in place, one that forges a mutually beneficial relationship and spells out the business arrangement between parties. Also, Jeff presents a great point about discussing the scenario in advance with the client before moving forward which can eliminate headaches before you start; it shows professionalism, too. The essence is always this: What defines your client relationship? Are you truly a strategic business partner with them; or are you just another resume pusher chasing the same ambulances with all the rest?

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Permalink Reply by Martin H.Snyder on February 7, 2011 at 2:14pm

Since I deal day to day with contracts (my hammer) every problem looks like a nail (lack of a good contract).

I think a strong agreement in advance of any presentation helps establish the terms of the relationship- each case will vary as to how much juice an outside recruiter really has, but if you can get the hiring entity to sign on the line which is dotted, this kind of issue will be far less vexing.

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Permalink Reply by Scott Sachs on February 7, 2011 at 2:16pm

Respectfully, I would reply that there are instances where you don't need many clients to be successful. Some [not all] of the top billers that I know personally usually maintain that level of relationship with their clients--and usually only have 1-5 clients total that they work with--and they are among the highest billers in our industry. There is no imperical right or wrong here; I'm just saying that the odds of success are better if you're a partner, not just another vendor.

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Permalink Reply by pam claughton on February 7, 2011 at 2:19pm

Honestly, this one is a no-brainer to me. I don't see how it matters that the client 'touched' this potential candidate first, that touch did not result in the person on linked in becoming a candidate. No resume was submitted.

The agency recruiter was the procuring cause of the interview happening. This is what we are paid for. We get things done. We turn "profiles" into candidates. What did we do differently? More than likely we picked up the phone and talked to this person, and told them all about our history with this client and on how great they are and the uniqueness of this job. We gave them information above and beyond a simple email that was sent by the client.

We converted a passive potential candidate into an active and interested one who is now going on an interview. That is why we are paid what we are paid.

And when this has happened to me, my client has happily said, 'it's yours'. Why? Because she knows I made it happen and am effective at recruiting and selling people on her company and job. It's a win, win for both. That is my idea of a strategic partnership.

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Permalink Reply by Tracey Cress on February 7, 2011 at 3:19pm

Pam, the way I read Jason's original posting, an interview wasn't scheduled as a result of the agency recruiter contacting the candidate. The agency recruiter only pursuaded the candidate to apply through the agency instead of the employer.

pam claughton said:

Honestly, this one is a no-brainer to me. I don't see how it matters that the client 'touched' this potential candidate first, that touch did not result in the person on linked in becoming a candidate. No resume was submitted.

The agency recruiter was the procuring cause of the interview happening. This is what we are paid for. We get things done. We turn "profiles" into candidates. What did we do differently? More than likely we picked up the phone and talked to this person, and told them all about our history with this client and on how great they are and the uniqueness of this job. We gave them information above and beyond a simple email that was sent by the client.

We converted a passive potential candidate into an active and interested one who is now going on an interview. That is why we are paid what we are paid.

And when this has happened to me, my client has happily said, 'it's yours'. Why? Because she knows I made it happen and am effective at recruiting and selling people on her company and job. It's a win, win for both. That is my idea of a strategic partnership.

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Permalink Reply by pam claughton on February 7, 2011 at 3:49pm

The way I read it, the agency submitted the candidate to the client with the intention of securing an interview and is wondering if they will get credit. That is what I based my response on. I think that they should get credit if an interview occurs.

Tracey Logan said:

Pam, the way I read Jason's original posting, an interview wasn't scheduled as a result of the agency recruiter contacting the candidate. The agency recruiter only pursuaded the candidate to apply through the agency instead of the employer.

pam claughton said:
Honestly, this one is a no-brainer to me. I don't see how it matters that the client 'touched' this potential candidate first, that touch did not result in the person on linked in becoming a candidate. No resume was submitted.

The agency recruiter was the procuring cause of the interview happening. This is what we are paid for. We get things done. We turn "profiles" into candidates. What did we do differently? More than likely we picked up the phone and talked to this person, and told them all about our history with this client and on how great they are and the uniqueness of this job. We gave them information above and beyond a simple email that was sent by the client.

We converted a passive potential candidate into an active and interested one who is now going on an interview. That is why we are paid what we are paid.

And when this has happened to me, my client has happily said, 'it's yours'. Why? Because she knows I made it happen and am effective at recruiting and selling people on her company and job. It's a win, win for both. That is my idea of a strategic partnership.

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Permalink Reply by Sandra McCartt on February 7, 2011 at 5:59pm

I say that the 3rd party recruiter was being a bit sneaky since the post says the resume was not entered in the ATS but was submitted through the hiring manager. Now he is a little paranoid that having done an end run around internal ,who might take issue ,is trying to justify being sneaky. Is the process to submit through the ATS? If so the TPR didn't follow the protocol. If not required did the TPR tell the hiring manager that internal had talked with the candidate and struck out but the TPR hit a home run. If so, great way to throw internal under the bus with the hiring manager.

Why not clarify before submitting if there is nothing in writing pertaining to this situation. Call internal and make them aware that a candidate who has submitted his resume to the TPR has mentioned he talked with them in the past but didn't think he wanted the job so didn't apply but is now asking the TPR to submit the resume.

TPR wants to make sure that there is no problem with moving forward to the hiring manager. Most internal recruiters know if they don't have a resume or application they don't have a candidate. If there is pushback because the internal has spoken with them the TPR should drop it and leave it alone unless one placement is worth losing all future business. Hell hath no fury like an internal recruiter who has been thrown under the bus with their hiring manager by a TPR.

As Tom says, if the TPR submits the resume through the ATS and it is accepted The position of it being a TPR referral is much stronger , which can be mentioned during the conversation with the interal recruiter.

When a candidate tells me they have talked with an internal recruiter i get all the details of did they send a resume or not. If not i make an attempt to refer the candidate but if there is going to be a fight i am not interested in winning one battle and losing the war. There are more candidates in the sea than there are clients with open jobs . I prefer to be part of the solution instead of part of the problem.

For the record it is my policy that i never, ever put a candidate in the middle of any discussion about who gets the referral. Ultimately it is up to the guy who signs the front of the check whose name they put in the payee line. It is never up to the candidate unless the company reaches out to the candidate to ask them directly about what happened.

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Permalink Reply by Barbara Goldman on February 8, 2011 at 11:05am

This is a dilemma that happens every day, and it so vividly demonstrates WHAT IS WRONG with clients internal recruiting efforts.

In our office, the same thing happens. One of our recruiters talks to a candidate, and nothing happens, another recruiter talks to the same candidate two weeks later, and VIOLA! a placement! Who gets it?

Well, this is easy if we could all follow the BUT FOR rule. BUT FOR this action, would have the placement been made?

Since internal recruiters are all about resumes, and taleo, and collecting people, internal recruiters think that just because someone is in their database, it is THEIRS......... wrong.......wrong.....wrong.

A candidate in the database does nothing for anyone. A candidate in the database belongs to nobody. Guess what is important? THE PLACEMENT.

As headhunters, it is time to stop the nonsense with HR. Recruiting is not about resumes, or data collection. Recruiting is about convincing an outstanding candidate, who will bring value to the company to join the company. Doesn't matter if the resume is already in the database. WHO IS RESPONSIBLE for the hire? Who nailed the candidate, sold the candidate, and did the recruiting job by convincing the candidate to take the job?

The last time a 'recruiter' from HR told me that the candidate was already in the database, I told the recruiter to explain to his boss why he didn't call the candidate, because I was going for the fee. I explained the BUT FOR rule, which has been in place for decades. I stuck to my guns and won. This stuff needs to be litigated, and we will win.

But, we don't win because we have so many young recruiters out there who don't know BUT FOR, they know database law. Who created database law? Someone who doesn't know anything about recruiting.

If I had a candidate in our database, and had to pay a fee to someone who properly did the recruiting job to land the candidate, I would be LIVID at the internal recruiter.

I have seen the industry change, but this one change is horrid. Do not lay down for this. We as recruiters need to band together to stop HR nonsense. This nonsense is detrimental to our industry, and will eventually cause precedent. We already have precedent about fees in courts all over the country. And, the BUT FOR rule will be lost if we don't save it ourselves. Shame on us for rolling over to clueless hr people who want to define our service.

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Permalink Reply by Jerry Albright on February 8, 2011 at 11:11am

Unfortunately this particular discussion involves a "hypothetical" situation. So the questions we've all got - "What does the agreement say?" - "What was the discussion with the internal recruiter?" - "Did he send his resume after they spoke?".......will remain unanswered since they would involve further hypothetical information.

Not that there's anything wrong with the initial topic - but there isn't anything we can solve here........bummer since there are so many people ready to solve this thing!

Anyone have a real life situation we can fix?