“Lift-outs” are otherwise known as corporate raids and are hazardous to your legal health, especially for retained practitioners.

The search business isn’t passive anymore. The people you want are employed. Maybe not “happy” (whatever that means) but at least satisfied enough to heat their seat.

There’s only one practical way to find them: Calling them on the job; then interesting them in looking for another one. It’s usually legal, too. Unless you’re paid in advance to a: Call into a specific employer, and b: Raid an entire department or discipline.

That’s what the civil law calls a conspiracy. Even then, the employer needs to connect the calls with some other civil wrong like invasion of privacy, unfair competition, inducing breach of contract, interference with contractual relations, interference with prospective economic advantage, or fraud.

If it can connect them, you could be liable for compensatory (actual) damages by loss of the employees. Then unlimited punitive (to punish) and exemplary (to make an example) damages can be awarded at the discretion of the judge or jury.

This is one time when it pays you not to have a retainer. Even so, victim companies can make life miserable, and it’s better not to participate in direct “lift-outs.” Better to just go after the lead dog of the team and let them do the dirty work after they leave and join their new company. Getting compensated for this type of deal requires a wink and a nudge that can backfire against you later.

Q: Jeff, I think this may be at least a two-part question.

First, once you recruit a “rainmaker” or leader of a company and you know this candidate will want to bring other staff (the successful placement may even be based on whether other staff will follow), what is the proper/legal approach the recruiter should follow to minimize any legal action for himself and/or the hiring company?

When a candidate is recruited and you know at least one assistant will follow because the candidate told you so, you do not have the contact information of the assistant because the candidate is unwilling to give it up at that time but will leave my contact for the assistant with directions to call me when he walks out the door, and this information is made known to the hiring authority when introducing the candidate, should the recruiter get credit for the placement? In this case, the candidate, who was hired, definitely planned on bringing the assistant; this was known and agreed to with the hiring authority early in the process. Within two days after the candidate had resigned and started his new position, the assistant was terminated, the candidate called the hiring authority and give him the contact information rather than myself. The hiring authority and I had previously verbally agreed that whoever followed up with the assistant, it was OK; I thought that he was just saying “let’s expedite the process” rather than, if he calls the assistant, “there is no fee.” The hiring authority kept me informed of his process and asked me not to intervene. My assumption was that there was initial concern of “collusion” on the part of the candidate and his agreement with the former employer.

As it stands, I am working with this company with multiple locations on other recruiting projects for which there may be teams coming over. This is in fact the direction of the hiring authority, “to recruit individuals or teams who can bring a minimum of $500,000 revenue” or “don’t call.” When you work with candidates who control books of business from $1-3 million in revenue, it’s a given that they want their team in place to continue to handle the business. How is this best handled? (At this point, we’re talking fees on compensation packages of $200,000 to over $1M ($50,000 to $250,000 per placement or team).

Terrific questions — actually three!

Let’s cover them in order: