The Recruiters Win Again

Posted on September 23, 2011 by Rob Radcliff

 

                    

The Case

The Fifth Circuit affirmed the opinion of a magistrate judge in the Southern District of Texas that found a law firm owed a search firm for the introduction of a group of lawyers the firm hired. Essentially, the search firm made the initial introduction, but a deal was not reached until some time later.     

 

The search firm argued that it was entitled to a fee because it made the initial introduction. The Court agreed. The opinion is interesting because it discusses whether or not the search firm was a “procuring cause” of the hiring. The Court's definition of procuring cause:

 

cause that in the natural and continuing sequence, unbroken by any independent intervening cause, produces the [hiring], without which the [hiring] would not have occurred

 

The Court noted that though there was testimony that the hiring was independent of the search firm’s work, there was also sufficient evidence to show that the search firm was a procuring cause and was entitled to a fee.

 

Lessons Learned 

The takeaway for search firms and recruiters on this opinion is to continue to monitor and follow their clients after negotiations.  A deal may be looming in the near future.  

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Recruiters Beware

Posted on August 8, 2011 by Rob Radcliff
 

A recent case filed in Dallas provides some guidance for recruiters, especially when they recruit lawyers. Lawyer Chris Gilbert sued recruiter Diane Caldwell, the recruiter who convinced him to move from Nashville to Dallas and work for Patton Boggs as a partner. The petition asserts claims for breach of fiduciary duty, fraud, negligence, and breach of contract.

The case is  profiled in  The Texas Lawyer and the crux of the dispute are representations allegedly made by the recruiter where she stated she was independent and working directly for Gilbert, not the law firm.  The lawsuit alleges the recruiter was actually retained by the firm and was neither independent nor representing the interests of Gilbert.

In response, the recruiter filed her answer and asserts there is no fiduciary duty.  We've previously discussed the legal significance of fiduciary duties because it places the burden on the fiduciary or defendant as opposed to other traditional causes of action.

This case illustrates the importance that recruiters be explicit when interacting with job candidates.  Recruiters should avoid representing they are "independent" if they have been retained by the employer and should disclose the existence of this relationship to the prospective employee.  Of course, the recruiter should also always be cognizant of any representations that they make about a potential new employer.  There is a fine line between selling and outright fraud.  We'll continue to monitor this case as it develops.

 

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Social Media Screening (Potential Hires): Part 1

Posted on August 23, 2010 by Rob Radcliff

                    

Social media sites can give an employer/recruiter information about potential hires that you can't ask in an interview.  Take Facebook for instance, you can learn the following about me from my profile and posts:

  • Race/Ethnicity - just take a look at my picture;
  • Age - set forth in my profile;
  • Marital Status - set forth in my profile;
  • Children - take a look at my pictures; and
  • All the other information you can glean from pictures, status updates, etc.

The point is, there is an endless amount of information out there - much of which you cannot consider when making the decision to hire someone.  However, there is information that is not protected. 

What if there was a Facebook status update where the candidate stated they were fired from their last job for filing false reimbursement reports or the fact they have a non-compete agreement with their former employer?  These could be legitimate reasons not to hire someone.

So why shouldn't you incorporate social media searches as part of your company's hiring process?  A few reasons:

  1. A lawsuit over discriminatory hiring practices will almost certainly delve into whether social media screening is used as part of the hiring process;
  2. A Plaintiff could always allege, whether true or not, that information obtained from social media was used in the decision not to hire them;
  3. How do you document you didn't use something - hard to prove a negative;
  4. It's not possible to unlearn information obtained from social media - like the pregnancy status of a potential employee; and
  5. Is it really even worth it considering the potential liability that could arise?

It's always easy to say no.  Next week I'll examine the other side of the coin.  The short of it is, there is no right or wrong answer and each company's conclusion will depend on what information they are looking for and how they implement such a process.  There is no one size fits all answer.

 

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DFW Texas Recruiters Network

Posted on April 7, 2010 by Rob Radcliff

                                          

Today I have the privilege of speaking to the DFW Texas Recruiters Network.  Below are some resources and previous writings placement professionals might find of use:

 

 

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