Placements & the Law

A CLARIFICATIONCould Jeffrey further clarify something he wrote in November 2002 on the cover article?He ended with, “Don’t confuse submitted with received.”Could he specify some real life clarity from a legal perspective on this one in a future issue? Thanks again.Recruiters say they “submitted” a fee schedule or resume. Too often what they mean is they sent one.When you send a fee schedule or resume, you transmit it by personal delivery, regular mail, overnight mail, email or fax.How do you prove it was received? Not by any return receipt or airbill, since there is no way to prove the contents of the package. Not by you own computer or fax machine “verifying” receipt.You can only prove receipt by either the signature of the employer (in the case of a fee schedule) or some return correspondence indicating a fee schedule or resume was received.”Submitted” means sent and received. If you can’t prove both of these things, you won’t meet your burden of proof.Hope this clarified the issue. If not, keep in mind what I’ve been saying for 37 years:There are more unsigned fee schedules in the dead letter office than there are letters to Santa Claus.A CONUNDRUMYou contacted a company about a candidate and, lo and behold, they like what they see. Unfortunately, the opening has already been given to a retained search firm with a provision that all candidates from whatever source be referred to them for assessment against the opening. “Here’s their name and phone number. Why don’t you call them about your candidate and see if they’ll split the fee with you?” says the employer.Yeh, right! Most times, the retained firm will say, “We’ve already got that candidate on our list of possibles” or they’ll find ten reasons why the candidate won’t work for the opening. They usually get paid their full retainer no matter what, so they have no incentive to send you a check for surfacing that ‘perfect’ candidate. So what do you do? We asked Attorney Jeff Allen and he said: “The employer’s contractual obligations to the retained searcher are its problem.The biggest mistake that’s made is getting involved in discussions and even negotiations on the subject. These should be two separate transactions factually, just as they are legally. The less the contingency firm knows, talks or writes about it, the better. Even insisting on the fee is dangerous since it shows you already sniff what you’re stepping in, but are continuing to wade in the muck. Legally, this is known as a waiver, the voluntary relinquishment of a known right to a fee.Yield to the temptation and everyone else (including the candidate) will say there was consent to a split fee deal, so Zip the Lip.”