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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Permalink Reply by bob on February 8, 2011 at 11:16am

here is what you always miss barb,

if a person takes the time to recruit candidate, builds trust and rapport and IS working with them why does anyone else in yours or anyones else company that[ DEMANDS that you place the candidate in the company DBASE] have the 'right' to PILFER the candidate from the originating RECRUITER As I once said to someone 'what yours is your whats mine is yours'

Barbara Goldman said:

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 11:28am

Yes Morgan - this is quite an important topic. I was just adding that, since this particular situation is hypothetical, that we can't actually dig any deeper into this particular case. Was there an agreement? Did the guy get introduced through the agency in the end? What did the client say when they heard about him through the agency?

These are all questions that would lead us to learn more in this case - but we'll never know. That's all I was saying.

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Permalink Reply by Martin H.Snyder on February 8, 2011 at 11:48am

That was well stated Morgan.

Jerry, the clear takeaway from this thread, for any TPR or Internal reading it, regardless of the particulars of the situation at hand:

1) have a written agreement in place prior to presentation of any candidate.

2) make sure the agreement speaks to procuring cause/proximate cause/BUT FOR (however it's stated) as the event that triggers the fee obligation. Recruiters should be paid for for causing a hire, which provides a workable test to analyze any dispute; one which every court knows how to deal with due to extensive causation issues involved with many tort cases.

3) the client relationship is king, and a good contract is one important basis of a good relationship.

Morgan Hoogvelt said:

@ Jerry – although this may be a hypothetical scenario, this happens every day in real life. That is the importance of an upfront agreement. I had this exact same scenario happen to me 2 years ago – lucky for me when the client company challenged me and refused to pay, I pulled out my signed agreement and emailed their VP of HR a copy. Needless to say, a week later I received a check in the mail for $14k.

I think is a topic of utmost importance. Obviously we are each free to run our desks the way we see fit – but as in everything else, there are good apples and there are bad apples. We don’t want to get caught unprepared by a bad apple. As recruiters, we have to be prepared for every scenario that may arise along the way of the placement process.

Jerry Albright said:
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?

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Permalink Reply by Jody Schwartz on February 8, 2011 at 11:51am

Morgan Hoogvelt said:

@ Jerry – although this may be a hypothetical scenario, this happens every day in real life. That is the importance of an upfront agreement. I had this exact same scenario happen to me 2 years ago – lucky for me when the client company challenged me and refused to pay, I pulled out my signed agreement and emailed their VP of HR a copy. Needless to say, a week later I received a check in the mail for $14k.

I think is a topic of utmost importance. Obviously we are each free to run our desks the way we see fit – but as in everything else, there are good apples and there are bad apples. We don’t want to get caught unprepared by a bad apple. As recruiters, we have to be prepared for every scenario that may arise along the way of the placement process.

Jerry Albright said:
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?

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Permalink Reply by Sandra McCartt on February 8, 2011 at 5:42pm

I love watching recruiters get all twisted up about hypothetical situations. If there is no written agreement in place that addresses the referral ownership issues the time to go into overdrive is when an offer is made and accepted. Until then it isn't a problem, it is just a candidate floating around in the systems or the process. Save your powder until it's time to fight. Have your ducks in a row and present a bill. If there is pushback prove you did it and or ask for mediation. The guy who effects the placement and closes the deal will normally get paid.

In a situation like this it is probably better not to jack with it in the first place. Go see if you can find a better one that doesn't have hand prints all over it. Appears that this was a wishy washy candidate to begin with who is high risk to turn down the job after all the inteviews anyway. I realize that some recruiters like to think that they are the end all to be all of selling people on a job. Wonderful, a candidate who would not be interested when they were directly contacted by a company representative but would get all high behind when a smooth talking recruiter got them pumped up is a pretty questionalbe horse to bet one's reputation on my thinks. Some times timing is everything but sharp candidates who really are interested normally listen and respond to direct contact by a company.

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Permalink Reply by Harold Ensley on February 8, 2011 at 5:50pm

This is very hypothetical indeed, and without any agreement to go on, I would say the internal recruiter wins, by default. Most clients will never pay for someone they touched, and any agency wanting a long lasting relationship will not attempt to shop a wishy-washy candidate that turned down the internal recruiter. For all they know, the internal recruiter declined the candidate, and the candidate is a flake.

Sandra McCartt said:

I love watching recruiters get all twisted up about hypothetical situations. If there is no written agreement in place that addresses the referral ownership issues the time to go into overdrive is when an offer is made and accepted. Until then it isn't a problem, it is just a candidate floating around in the systems or the process. Save your powder until it's time to fight. Have your ducks in a row and present a bill. If there is pushback prove you did it and or ask for mediation. The guy who effects the placement and closes the deal will normally get paid.

In a situation like this it is probably better not to jack with it in the first place. Go see if you can find a better one that doesn't have hand prints all over it. Appears that this was a wishy washy candidate to begin with who is high risk to turn down the job after all the inteviews anyway. I realize that some recruiters like to think that they are the end all to be all of selling people on a job. Wonderful, a candidate who would not be interested when they were directly contacted by a company representative but would get all high behind when a smooth talking recruiter got them pumped up is a pretty questionalbe horse to bet one's reputation on my thinks. Some times timing is everything but sharp candidates who really are interested normally listen and respond to direct contact by a company.

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Permalink Reply by pam claughton on February 9, 2011 at 7:43am

Is a profile on linkedin really a candidate though? I don't think so. Linkedin is not a job board. It's a networking site. People need to be recruited off of linkedin and turned into candidates. The internal recruiter reached out to a profile, a name, if you will and that person opted at that time not to convert into a candidate.

The agency recruiter tried and successfully converted the passive profile into an active candidate. I don't think there should be any claim to ownership until that individual becomes an active candidate and then it should go to whoever made it happen.

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Permalink Reply by Jody Schwartz on February 9, 2011 at 2:26pm

Sandra:

Have you ever been an outside recruiter? We are all NOT smooth talking. Sometimes we just take more time to talk to the candidates and answer all the questions and explain what the job is all about. You like to see recruiters get all "twisted"????? We don't get salaries like HR Directors in companies....our livihoods depend on the placements we make. So, it's not very nice of you to say we are just "smooth" talking salespeople. I think maybe you've dealt with some rather unqualified, unprofessional recruiters.....

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Permalink Reply by Sandra McCartt on February 9, 2011 at 2:49pm

Jody,

I am a third party recruiter. I own a recruiting firm and have since tennis balls were square 1979. I am in fact a pretty smooth talker myself. I was making an attempt at humor(obviously missed that mark with you)

My point about getting all twisted up was all the flurry about ownership when who owns the candidate or referral is of no consequence until they get hired .

I have in fact had some bad experiences with some of our esteemed colleagues and am weekly amazed at the number of obtuse individuals who loiter in ranks of recruiting.

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Permalink Reply by Jody Schwartz on February 9, 2011 at 3:07pm

oh sorry about that...I did miss it. I think I'm overly sensitive since that darn client is being so nonnegotiable! I am frustrated and it shows. I need to go to a warm client LOL! Sorry Sandra, didn't quite get it......I'm really not a smooth talker I am an honest recruiter with integrity who is trying to make a living.

Sandra McCartt said:

Jody,

I am a third party recruiter. I own a recruiting firm and have since tennis balls were square 1979. I am in fact a pretty smooth talker myself. I was making an attempt at humor(obviously missed that mark with you)

My point about getting all twisted up was all the flurry about ownership when who owns the candidate or referral is of no consequence until they get hired .

I have in fact had some bad experiences with some of our esteemed colleagues and am weekly amazed at the number of obtuse individuals who loiter in ranks of recruiting.

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Permalink Reply by Sandra McCartt on February 9, 2011 at 3:29pm

Yeppers you are overly sensitive and it's hanging out all over the place. Put on your asbestos underwear,quit whining about your client and go fill that job. The fee is probably close to half of what an internal recruiter makes in a year.
You have been in this business long enough to know that anybody can handle the mountains, it's the valleys that are a bitch. Don't ever indicate to a client that you are worried about the competition. Sounds like to me you are disappointed that the candidate you called had already been contacted. Well rats. Go find a better one. :)

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Permalink Reply by Jody Schwartz on February 9, 2011 at 3:43pm

thanks and here I go to find a better qualified candidate than the one I think might get hired. Got the asbestos underwear on!!!!!!!!!!!!!!!!!!!!! Thanks for the encouragement, Sandra...will let you know what happens either way.

Sandra McCartt said:

Yeppers you are overly sensitive and it's hanging out all over the place. Put on your asbestos underwear,quit whining about your client and go fill that job. The fee is probably close to half of what an internal recruiter makes in a year.
You have been in this business long enough to know that anybody can handle the mountains, it's the valleys that are a bitch. Don't ever indicate to a client that you are worried about the competition. Sounds like to me you are disappointed that the candidate you called had already been contacted. Well rats. Go find a better one. :)