Hi Jeff,
Over the years I have benefited greatly from Jeff’s On Call column. It’s the first place I look to when it comes to seeking a legal opinion. Our service contract to client companies include a lot of phrases and words taken from your column and they have in court proven successful on several occasions. Thank you.
Shrewd HR and procurement departments are everywhere. I write from outside of the U.S. from where our company is a leading market player.
We presented, unsolicited, a candidate to a multinational company we never worked with before. We emailed two documents — the résumé and a placement agreement — on both stating that a fee of 30% is charged should they hire our candidate within 12 months. They didn’t sign the placement agreement but wanted to interview our candidate. Which they did but without hiring.
Three months later, we hear that the candidate is now hired. The company claims another recruiter presented the candidate and has already been paid a fee. Which may or may not have happened. The company refuses to acknowledge that we presented the candidate, they refuse to pay our placement fee that we have invoiced based on an estimate of what we think the candidate’s salary is.
I imagine this will end up in court. How do you see this play out? Will it matter if the company can present evidence of a contract with another recruiter?
Regards,
Tom
Hi Tom,
It’s always a pleasure to hear from one of our Asia aces! Thanks for the nice words and for reminding us of our instant global reach.
Your question is particularly instructive because it allows us to discuss contract formation. Unless a contract can be established that binds the client to pay, a referral period – and even causing the placement — can still result in “No Sale.”
Of all the contract formation issues we see, yours is the most common. It is the recruiter’s inability to prove that a resume was emailed to the client.
This has enabled fee-avoiding employers to simply deny they acted on a resume. Before the hire, they say there was some other reason for acting on it. After the hire, they allege the resume was from another recruiter. We call the game “recruiter resume roulette,” and we stop that roulette wheel at the placement pocket that reads “FULL FEE.”
But if we can establish mutual assent (offer and acceptance) to the terms, we easily complete the legal loop. I know you have a referral period (our recommended one year), so this one’s got a full fee in play. (If you didn’t and started your fee collection with, “But for our referral . . . ” you would end with, “. . . farewell five figure fee.”)
Before we begin, I’d like you and ours to:
Now, let’s move on to establishing mutual assent by nursing an agreement out of the client to the terms of your emailed fee schedule-resume combo.
The best way to do this is to include the following on every emailed fee schedule and resume:
To ensure that you have received a complete e-mail transmission, please click “Reply” and press “Enter” on your keyboard. Thank you.
You will then have absolute confirmation from the client that the email has been received. (If not, call the client, confirm receipt, and note the date, time and recipient in your client file.)
The e-mail reply is the equivalent of a certified mail return receipt. In fact, it’s better because the court will take judicial notice of the email receipt.
The Texas Supreme Court defined judicial notice notably in Harper v. Killian (345 SW2d 309):
The doctrine of judicial notice is one of common sense. The theory is that where a fact well-known by all reasonably intelligent people in the community, or its existence, is so easily determinable with certainty from unimpeachable sources, it would not be necessary to require formal proof.
Of course, you’ll also have your email string printout as a business record of the transmittal and receipt. This is tangible proof you can personally authenticate under oath.
Professor Charles McCormick summarized why the courts take judicial notice of this in his trusted treatise McCormick On Evidence:
A convenient practice recognizes that if a letter has been written to X, and the letter now offered into evidence purports to be written by X and purports to be a reply to the first letter (that is refers to it or is responsive to its terms) and has been received without unusual delay, these facts authenticate it . . . When the reply letter purports to be signed [emailed] by an agent or other representative of X, the addressee of the first letter, the authority of the signing representative is presumed.
This is the reason that I advise you to do almost anything to invite – even incite – a response from the client.. Let someone email back, “We don’t agree with your terms.” Or, “We’re going to interview your candidate, then decide whether we agree to the fee.” No problem.
Nobody says they have to hire the candidate. But if they do, and the terms have a protective referral period, they’ll have to be more than shrewd – they have to be slow!
With regard to that phantom recruiter, just know never to take the bait. The other recruiter is legally irrelevant, as are the things that other recruiter did.
Either the employer has a contract with you or it doesn’t. It may well have an “exclusive assignment” with another. Maybe an “all candidates through you” deal. Even if that recruiter was paid in full. Or you didn’t know about the hire. Or a retainer was paid to the other recruiter. Whatever.
Is the employer liable for more than one fee? Why not? Can it be compelled to pay more than one fee for hiring one candidate? Probably much more easily than it can be compelled to manage its business efficiently.
The information I just gave you is Move 4 from my article here last month, “Checkmating the “We Never Got the Resume” Defense.” Click that link or,
I’ll reply with the “Checkmate!” article.
Now Tom, it’s time to win your fee-fight.
Best wishes always!
Jeff
