Jeff On Call: Can I Re-recruit a Placed Candidate?

Sep 3, 2009


Q: Can I re-recruit a placed candidate?

Yes. There is absolutely no statute or case anywhere prohibiting this.

However, there are three intentional torts lurking in the background:

An intentional tort is a non-contractual civil wrong. If you are found liable for committing it, the law allows unlimited punitive and exemplary damages to be awarded in the discretion of the judge or jury. That’s where the huge jury verdicts come from.

Hundreds of federal and state courts have written opinions on this issue. The foundation is a feisty U.S. Supreme Court decision rendered in 1915 (Truax v. Raich, 239 US 33, 60 L Ed 131) that stated:

The fact that employment is at the will of the parties respectively does not make it at the will of others . . . and by the weight of authority, the unjustified interference . . . is actionable, although the employment is at will.

Almost a century of court review, and the law is still the same.

The three intentional torts that expose recruiters are:

Inducing Breach of Contract:

This means causing someone (like an employee) to break his contract with another (like an employer). Of course, almost every business tries to get business from someone else, so the law only recognizes cases where there is some wrongful conduct (like using confidential information). That’s why recruiting a placed candidate could legally cross the line.

Even at-will employment is considered a contract that might not otherwise be breached.

Interference with Contractual Relations:

This relates to the disruption caused by calling into companies. It ranges from a passive annoyance to an active insurrection, depending on your aggressiveness and the loyalty of the employees.

Interference with Prospective Economic Advantage:

This is an actuarial projection. The loss of future services of the candidate, morale, and anticipated business can be massive.


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