Q: This question relates to your October 26 post on Cold Calls & Defining Harassment. Are the rights of companies the same as the individual candidate you mention in this post? I ask in the context of an outside search firm marketing into, or attempting to recruit from, a corporation. Can the company claim they are damaged by receiving a recruiter’s phone calls (i.e., disruption/interference of normal business suffered as a result of calls into the company)?

A: Yes, the rights are basically the same. However, the intensity and the danger is much higher.

These days, it’s tempting for failing businesses to blame anyone they can. Regardless of the real reason (mismanagement, the economy, competition, etc.), losing key employees tends to trip lawsuits against those involved.

Moreover, the massive damages alleged by an employer can be expected to include reduced market share, loss of investor confidence, inability to attract talent, loss of present and future profits, etc. There’s virtually no limit on the amount of a judgment (judge-decided) or verdict (jury-decided) award, since we’re talking about compensatory (to compensate), punitive (to punish), and exemplary (to set an example) damages.

Aside from the invasion of privacy issues (which are personal to a candidate), the inducing breach of contract, interference with contractual relations, and interference with prospective economic advantage intentional tort theories are the same.

This is because the third-party (recruiter) interference allegedly disrupted the bilateral contract between the employer (source) and the employee (candidate). So each party has rights against the interference.

Of course, employers usually have more money, more lawyers, and more politics. So the likelihood of major litigation is higher and so are the stakes.

Many of these lawsuits are filed to simply give nervous management types job security. With litigation pending, they have “cover,” since their claims have credibility. And who’d terminate a key witness? I was fascinated by this move when I was in HR, since we’d have totally useless, highly paid employees doing absolutely nothing for years. They just kept the discovery pot boiling in protracted lawsuits against totally innocent recruiters and competitors. Always talking about terrible misdeeds and huge awards that they never could prove. The lawsuits took on a life of their own and reached old age.

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Q: Given the ease at which recruiters can now find passive candidate information online, when does a cold-call to a candidate at their place of work constitute either harassment or an invasion of privacy (or something else)? Must the candidate declare the solicitation unwanted (as in sexual harassment) for the recruiter to become liable for something? What if the candidate has posted their employment details in the public domain as in Linkedin or Facebook, for example? Do they somehow legally waive the right to be contacted at their place of employment if they upload this information themselves (without a phone number)?

A: “Harassment” is a word used frequently by people who are hassled about anything, at any place, and at any time. But it’s difficult to imagine how a professional contact — or even a series of them by phone, email, express mail, or regular mail — could be deemed so annoying as to rise to that level.

There are no reported cases in the history of American Jurisprudence where a recruiter was even accused of harassment. Who’d bother? If there’s anything a contingency-fee recruiter doesn’t do, it’s waste time with contrary candidates. So if someone stalks an LPC (least placeable candidate), he deserves what he gets.

Now, on to the tort (non-contractual civil wrong) of invasion of privacy.