Welcome to The Fordyce Letter:

The Fordyce Letter

Straight Talk for the Recruiting Profession


Jeff Allen

More than thirty-five years ago, Jeffrey G. Allen, J.D., C.P.C. turned a decade of recruiting and human resources management into the legal specialty of placement law. Since 1975, Jeff has collected more placement fees, litigated more trade secrets cases, and assisted more placement practitioners than anyone else. From individuals to multinational corporations in every phase of staffing, his name is synonymous with competent legal representation. Jeff holds four certifications in placement and is the author of 24 popular books in the career field, including bestsellers How to Turn an Interview into a Job, The Complete Q&A Job Interview Book and the revolutionary Instant Interviews. As the world?s leading placement lawyer, Jeff?s experience includes: Thirty-five years of law practice specializing in representation of staffing businesses and practitioners; Author of ?The Allen Law?--the only placement information trade secrets law in the United States; Expert witness on employment and placement matters; Recruiter and staffing service office manager; Human resources manager for major employers; Certified Personnel Consultant, Certified Placement Counselor, Certified Employment Specialist and Certified Search Specialist designations; Cofounder of the national Certified Search Specialist program; Special Advisor to the American Employment Association; General Counsel to the California Association of Personnel Consultants (honorary lifetime membership conferred); Founder and Director of the National Placement Law Center; Recipient of the Staffing Industry Lifetime Achievement Award; Advisor to national, regional and state trade associations on legal, ethics and legislative matters; Author of The Placement Strategy Handbook, Placement Management, The National Placement Law Center Fee Collection Guide and The Best of Jeff Allen, published by Search Research Institute exclusively for the staffing industry; and Producer of the EMPLAW Audio Series on employment law matters. Email him at jeff@placementlaw.com.

Articles by Jeff Allen

Jeff's On Call!

What Happens to My Fee When My Client Buys the Candidate’s Employer?



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Hi Jeff,

You have helped me collect fees twice in the past, and the Jeff’s On Call! column has greatly contributed to our success. This is just indispensable.

I have a question that really needs answering, and would appreciate your help.

A client of mine who has hired about 6 to 8 sales reps from me in the last few years gave me a search for a sales person when I ran into him at a trade show in Las Vegas. I placed the sales manager who gave me the search.

I scheduled 8 interviews and he liked one candidate best. They are scheduled to meet for a second interview with the VP of sales again soon. The candidate currently works for a competitor and the word on the street is my client may be purchasing them as soon about the same time as the interview. It has been a rumor for months.

The sales manager told me he did not know if they would pay my fee if they buy the company because the sales rep would be an employee of their company. I told him I didn’t know the legal ramifications, but as far as I am concerned I set up the interviews and will be due a fee.

Fees, Jeff's On Call!

Why You Should Never Say “But For” In A Fee-Fight



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Hi Jeff,

Thanks for all the help you give through your column in The Fordyce Letter and elsewhere. I enjoy reading your advice in the Jeff’s On Call! column and would appreciate any help you could offer about a current situation.

I’ve been in personnel consulting business since 1983 and have some long-standing relationships with other colleagues and friends in our specialty area.

Currently, a situation has come up between me and one of these colleagues, Dean, and we are having difficulty resolving it so it is a “win-win” agreement.

Here’s the scenario:

Dean submitted a candidate back in August/September 2013 on a job order he took for a position at a company that we both do work for from time to time. The client did not hire the candidate at that time for that position. Dean’s submittal policy gives him credit for the referral for 12 months from the time of the initial referral.

Jeff's On Call!

Recruiters, Recliners, Roboters and Realities



Placements and the law logo

Editor’s note: Jeff uses the German word for robot – roboter — to mean the human operator of the robot. Roboters, though, may have a short job life. The sophistication of recruiting robots is growing fast. An Australian university, working with NEC, has developed a mechanical robot named Sophie, that conducts interviews, assesses candidates on both what they say and how they say it, and makes comparisons. More details are here.

Things have really changed. More in the past year than in the 50 before. A new generation of Internet search engines is here. They go far beyond matching resumes to jobs.

They appear to be “recruiting robots” because they actively crawl. They seek, find, and stalk candidates. This is done by globally trolling all online sources (including social networks) for personal and professional information. Anything written by or about someone over the Internet at any time makes that someone a potential candidate. It is a sophisticated matching from keywords the roboter inputs.

Fees, Jeff's On Call!

Forget That Fee If You Sent Contact Info



Jeff Allen COllection Tip

Editor’s note: Jeff Allen has heard every employer excuse that you can imagine for not paying up — and dozens more that defy imagination. A few years ago he began documenting them in a weekly collections column. Because of the importance of collections, Fordyce will periodically reprise the most common situations he addressed. The complete collection is here.

What Client Says:

There was prior contact with the candidate.

How Client Pays:

“Exclusive” contingency-fee job orders don’t exist. But even assuming you think you’ve got one, it doesn’t exclude direct contact with the candidate. So you’re truly trusting when you:

Jeff's On Call!

Are You Your Client’s Contractor Or An Agent?



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In columns through the years, we’ve discussed the different ways any employee can bind his or her employer to pay a placement fee. For this reason, the “unauthorized hiring authority” defense is particularly weak, since an employee is an agent, and therefore acts on behalf of the employer.

Now, we are representing recruiters in a growing number of cases where it’s alleged they were also acting as agents of clients. The significance of this in imputing (attaching) liability to the client for your alleged misrepresentations to candidates and interference with the businesses of source employers, is just beginning to emerge.

Invariably, you’ll end up in crossfire between the candidate or source, and your former client. Friendliness with the client is unlikely when imputation means it will be liable. The relationship is more like one where you have a known case of leprosy. Since almost every recruiting call you make involves representations to someone else’s employees, the opportunity to increase litigation is simply wonderful.

Fees, Jeff's On Call!

Send Only ‘Blind’ Resumes Or You May See Your Fee Runaway



ask-jeff4

Mr. Allen,

Hello, it is good to be ‘speaking’ with you. I was told of your website when I first began in the executive search business many years ago, and I have benefited from visiting your site again, recently, by being able to read the scenarios that occur in our business.

In particular I appreciate your Q & A about referring resumes and doing so in a manner that protects us from losing a fee in the referral process. A recent experience has taught me I need to more closely follow your suggestions about masking a candidate’s identity, and so I shall.

I’ve been in recruiting for a few different industries since 1980: healthcare, insurance, manufacturing. and have done not only contingency but also retained searches.

Recently, after being away from the search business for a few years I’ve discovered something new to me. On many occasions I will contact an executive in a company, make a candidate presentation, and that executive will agree to receive and review the candidate’s resume. I also have on many occasions arranged for that executive’s ‘gatekeeper’ to receive a candidate’s resume (with the understanding I am in the search business and that a fee would apply upon hire of the referred candidate), and subsequently print it and put on that executive’s desk for review. (This has worked and gotten me a hire although I’m thinking you probably don’t approve.)

Fees, Jeff's On Call!

“He said,” “She said” Don’t Count In Fee Fights



Jeff Allen COllection Tip

Editor’s note: Jeff Allen has heard every employer excuse that you can imagine for not paying up — and dozens more that defy imagination. Over the last 18 months, he’s documented one a week. Because of the importance of collections, Fordyce will periodically reprise the most common situations he addressed. The complete collection is here.

What Client Says:

You said you wouldn’t bill us if we hired the candidate.

How Client Pays:

The usual ruses are that you said this was a favor to the candidate; it was a level you didn’t work, or a discipline outside your field.

Jeff's On Call!, Staffing

Can I Protect Myself From Being Temp-Napped?



ask-jeff4

Hi Jeff,

Thanks for providing such a great site.

I have a question regarding the validity of buyout clauses in temporary employment contracts. I own a small contingency staffing business in CA. I’m wondering whether a staffing firm can legally defend a buyout clause in their W2 offer letters or 1099 independent contractor contracts to prevent a candidate simply approaching a different supplier for the same client and engaging with them for their services in the same role?

We’ve had issues where the candidates once placed, negotiated a better deal with a competing agency, and simply switched to their employ instead. This is done with the blessing of clients who don’t seem to care that we were the ones who recruited the consultant in the first place. In general, client contracts are biased to favor the client, in that there is no restriction about receiving the same candidate from a different vendor.

If so, is there a specific form the buyout clause needs to take, i.e. specific wording that it should include, preclude?

Fees, Jeff's On Call!

Haunt Your Candidate When the Employer Claims Employee Referral



Jeff Allen COllection Tip

Editor’s note: Jeff Allen has heard every employer excuse that you can imagine for not paying up — and dozens more that defy imagination. A few years ago he began documenting them in a weekly collections column. Because of the importance of collections, Fordyce will periodically reprise the most common situations he addressed. The complete collection is here.

What Client Says:

The hire was through an employee referral.

How Client Pays:

Employee referrals are among the easiest and most common fee-avoidance moves. Here’s how they do it:

Jeff's On Call!

Making You The Star Witness In Fee Collection Cases



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Ever since we developed the Fee Collection Star Witness Questionnaire, we’ve helped tons of recruiters collect their well-earned fees.

There’s a remarkable similarity in the cases. While various legal theories may be used, the judge or jury is the “trier of facts.”

Facts. That’s where the game is won or lost. The bottom line is you must show you earned the fee. This is quite different from merely showing you made the placement, since there is a perception in the mind of the general public (including judges and juries) that a few phone calls and a little luck make them happen. These folks are invariably salaried, so they relate to effort rather than results.