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Recently, my company received an unsolicited email from a recruiter with information about a potential candidate.

We don't normally work with recruiters and our job ads all say 'No recruiters'.

This recruiter provided the potential candidate's first name and current employer and that was more than enough information to find them on LinkedIn.

Is it possible to approach the candidate directly?

On the one hand, the recruiter approached us against our request and with no reasonable expectation that we would do business with him. He provided us with the information of his own volition and we used that to access public information.

On the other hand... it kinda feels icky. What is the best way to approach this candidate with out involving the recruiter? Or are we obliged to include the recruiter if we wish to go forward with this candidate?

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SE is a Question and Answer board rather than a discussion forum. From our FAQ You should only ask practical, answerable questions based on actual problems that you face. Chatty, open-ended questions diminish the usefulness of our site - These are good questions for discussion with your firm but questions that are designed to solicit opinions and discussion are frowned upon with SE. If you have a practical problem we can help you solve with this (like "What is the best way to approach this candidate?") we can help. –  ReallyTiredOfThisGame Jan 31 '13 at 16:19
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@Chad How is this not a problem that he faces? He just stated his personal dilemma here. –  maple_shaft Jan 31 '13 at 16:22
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I have updated your question to make it constructive. If the new question is not what you are looking for please let us know –  ReallyTiredOfThisGame Jan 31 '13 at 16:22
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@maple_shaft - It was not a practical problem though. A personal dilemma is not necessarily a practical problem. Judgements about ethics, right v wrong, and good or bad, are not constructive questions. I have edited the question but wanted to help the OP understand how the site works. –  ReallyTiredOfThisGame Jan 31 '13 at 16:22
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I think the most interesting question is "was the information the recruiter provided useful?" If the recruiter has talent and referred you some (1) you want and (2) who has at least a vague interest in working for you - then you should want to do more business with this recruiter and it is reasonable to pay the recruiter. I believe you believe #1 and #2 are at least plausible because you took the time to read the recruiter's email and do a linkedin lookup. –  emory Feb 1 '13 at 14:32
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8 Answers 8

up vote 26 down vote accepted
  1. Ignore the fact that the recruiter sent you the unsolicited lead. Proceed as you would if you discovered the candidate yourself. You have no business relationship with them and therefore you don't owe anything to anyone.
  2. Double check the above with your company's HR/Lawyer to be on the safe side.

But let me expand on why it's OK to proceed ignoring the recruiter:

Imagine it wasn't. Imagine that any time any recruiter said anything about a candidate (whether you asked them to or not) they were off-limits unless you paid the recruiter money.

What sort of a world would we be living in?

Well, I'll tell you. If I woke up in that world tomorrow, the first thing I'd do is write a python script that scrapes people's accounts on LinkedIn. Then I'd flood every company in every area with their leads. Then I'd proceed to write another python script that periodically scrapes LinkedIn accounts and checks whether my 'submitted' candidates got any jobs. If they did, I'd promptly ask the companies for money and have a lawyer on my speed dial.

Clearly this is madness, and it's no way to run a civilized society.

EDIT

In response to some comments: contract law requires both parties to agree to a contract for it to be valid. There is such a thing as an implicit agreement, and that is the grey area which makes this question interesting. That being said, in this case the information is being divulged in the 'contract' and is unsolicited. It's similar to me walking up to you and saying "Walmart has engline oil on sale for $X, how about I go buy it and change your oil for $X + $Y?" and you responding "Not interested, but Walmart has engine oil on sale? I'm going to go and buy it!". So do I have a legal basis to say "No way man, now you owe me money because you used part of my service that I was trying to sell you... you would have never known that you can get cheap engine oil at Wallmart if I hadn't told you!". The answer is no, I don't have a legal basis for that, because if that was the case then I'd be able to forge all sorts of ridiculous contracts implicitly.

More broadly, as my answer tries to demonstrate, a system of contract laws that made them binding by providing information in the offer if the information was acted on would be dysfunctional.

As always, I am not a lawyer, seek legal advice to cover your behind as per the second sentance at the top of this answer. If the OP follows BOTH #1 and #2 at the top, then nothing bad will happen to them.

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While I agree with the idea of if you break my rules you pay my price attitude, there may be consequences you are are not thinking of. This is more of a this is what I think the answer should be not a here is what your answer is. –  ReallyTiredOfThisGame Jan 31 '13 at 19:43
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@Chad The question asks whether a certain action is ethical, and therefore it's of philosophical nature. ("So, my question is this: is it unethical to approach the candidate directly?") Given that, what is the differnce between "what I think the answer should be" and "what the answer is?". In other words, given the domain of the question, I don't see the distinction between those two things. Perhaps you dislike proof by contradiction? –  MrFox Jan 31 '13 at 19:57
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What kind of world would be living in? A world of cellular carriers and their contracts. –  Kaz Feb 1 '13 at 1:29
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I hope this feel-good "answer" doesn't cause the person asking this question to do something very stupid. –  enderland Feb 1 '13 at 15:21
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both parties to agree to a contract for it to be valid. And some judges and juries have determined that use of offered services (even just a portion of them) is acceptance of there terms. –  ReallyTiredOfThisGame Feb 1 '13 at 17:02
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I suggest replying to the recruiters email, cc'ing the candidate, saying that you do not accept referals from recruiters, and that if the candidate is interested in the position, he will have to apply for it himself.

This gets everything out in the open -- making it clear that the your company does not pay a finders fee, and that the recruiter contacted YOU about this candidate. It gives the candidate the facts about your interaction with the recruiter (who may be just sending out random spam in the hopes that some of it sticks), and lets him know there is an open position. And if the candidate applies, you may get a new employee, without having to sneak around.

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Not a lawyer, but this is quite elegant. –  Matt Feb 1 '13 at 16:16
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My first resort here would be to send the email to my HR recruitment department. But then that's how my particular companies have always worked. They do staff interview intake, and are most familiar with the company policies here. They also work hand-in-hand with the lawyers, so that mitigates the obvious "go ask a lawyer" answer. And it ensures that your company acts more or less consistently. If each hiring manager makes up his own policy, believe me, recruiters and candidates will find the weakest link and work to exploit it.

Yeah, but will we get in trouble if we contact the guy without the recruiter?

Answer is - this is really, really a lawyer question. There's definitely a traceable record - the recruiter's email to you is copied to umpteen places in your corporate infrastructure, as (if there are moderate security practices) is your behavior of going to LinkedIn and checking up on the guy. In fact, I can see who browsed me on linked in - so if you were logged into LinkedIn, there's a record in the guy's profile that you looked him up.

The timeline is pretty easy to trace, and the recruiter doesn't have be in the right to start a lawsuit. How much legal risk your company wants to take is really up to your law department. And when you are a manager following up with a candidate, you are absolutely a representative of your company.

Another question worth asking: Is this a giant waste of time?

My experience has been that unsolicited recruitment contacts are among the least successful parts of the recruiting process. Which is one reason why the companies I've worked with are pretty careful with recruiters and making sure they don't waste the time of expensive technical managers.

You are in the dark on two key things:

  • whether the recruiter understands anything about what your company really wants or needs
  • whether this candidate has any interest in working on this job for this company

In my opinion this contact is about as useful as if you had searched LinkedIn yourself - which is something you might consider doing if you find this candidate useful... you may actually find a whole pool of potential candidates and why waste time on someone who is also legally problematic?

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+1 about the point that since the candidate was unsolicited, he/she is more likely than not a poor fit for the company. –  Kevin Jan 31 '13 at 23:29
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+1 this is the real solution –  RWY Feb 1 '13 at 14:53
    
I just feel bad for the (perhaps great?) candidate who gets rejected without consideration due to the actions of the recruiter that s/he probably did not and could not control. –  MrFox Feb 1 '13 at 18:20
    
You don't really even know if they ARE a candidate. Don't make assumptions about the contact between the recruiter and the candidate. –  bethlakshmi Feb 4 '13 at 23:15
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Honestly, I'd recommend dropping the recruiter's e-mail in the bit-bucket, and the recruiter's e-mail address in the spam filter.

If the recruiter is willing to ignore the 'no recruiters' in the ad, then there's a good chance he's unethical in other ways, and may well have exaggerated the candidate's qualifications. Which would mean that contacting the candidate is just a waste of time for you.

Heck, for all you know, the candidate isn't actually working with the recruiter, and the recruiter is just trying to entice the candidate with an interview!

So I'd just drop the whole mess in the trash and forget them both.

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Great comment, though it does not answer the question of how to go forward. –  ReallyTiredOfThisGame Jan 31 '13 at 19:40
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@Chad - Sure I answered it - The way to go forward is to forget it every happened. Don't approach the candidate at all, just drop it. The OP has a shady recruiter replying to ads that say 'no recruiter'. Finding qualified candidates is NOT generally the big problem in today's economy, so why fool with this? Just drop it. –  Michael Kohne Jan 31 '13 at 20:09
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+1 for the spam filter. Do your part to put unethical recruiters out of business. As a current job seeker, I get a lot of keyword search recruiter junk email. I mark it all as spam and I sincerely hope they end up in Google's blacklists and out of a job. Nobody should have to put up with these unethical, incompetent idiots wasting their time. –  Joe Baker Jan 31 '13 at 21:58
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@RhysW - The candidate probably isn't shady. But you've no idea what the relationship between them, or whether the candidate has any interest in looking, or whether the candidate is in any way up to the challenge (the most common form of shady recruiter 'enhances' candidate resumes by adding things that shouldn't be there). That's why I say forget them both - if the candidate shows up through other channels, they will be evaluated on their merits. But don't try to make contact, just let it go. –  Michael Kohne Feb 1 '13 at 15:55
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Yup, that right there is why you pretend it never happened. You can't safely assume that the resume presented to you is an accurate depiction of the person or that they even consented to having it submitted to you in the first place. They're a total unknown until they actually apply with their known-real resume themselves. –  Joe Baker Feb 1 '13 at 19:18
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Does the recruiter somehow "own" this candidate? Is the candidate, or even the reference, the intellectual property of the recruiter? No.

There is a decision to be made here. This person contacted you with a recommendation of a client. You specifically said "no recruiters", and they contacted you anyway. You have three choices:

  • Assume that, despite the person identifying themselves as a recruiter, their communication despite your prohibition on recruiter e-mails means that this person is not contacting you in the context of being a recruiter. Otherwise, they would not have contacted you, because it's extremely poor professional etiquette to disregard your wishes in a business transaction (which this is).

    If they are not a recruiter, then they are simply a professional acquaintance of the candidate, which they are referring to you. You don't have to pay out for employee referrals, or even customer referrals (either for business or employment candidates), much less for referrals from complete strangers. You may do so, as a courtesy, but it's your prerogative. So, consider the candidate as a referral.

    You're on pretty firm legal ground here, but not for the stated reason. It would, in a court, be very clear that this person was a recruiter and was representing themselves as such to you. However, it was unsolicited. You have no legal contract with this recruiter, and the consideration of his candidate does not create one, either express or implied. One caveat; a recruiter with whom you communicated regarding this position has an argument that this communication is an implicit invitation to "show their wares" as it were, and that does create an implied contract should you consider their candidate. If you've never heard of this guy or his agency, there is no such risk.

  • Treat the recruiter as exactly that. You said "no referrals". They violated this imperative. They should not benefit from violating your trust, and unfortunately that extends to their candidate, for whom they are acting as agent.

    So, send a letter of rejection to the recruiter, and to their candidate directly, explaining clearly that you did not, and will not, consider the candidate's qualifications in this decision; the decision to reject the candidate was made solely on the basis of a gross breach of professional etiquette by their agent the recruiter. That should be a huge red flag to the candidate that they are working with the wrong headhunter, and that realization by both recruiter and candidate should make the recruiter shape up.

  • Bend your rules. While you said "no referrals", it could have been an honest mistake. If the candidate looks good on paper, bring him in, and if he's hired, somebody's gotta pay the recruiter.

Whatever you do, don't just circular-file it (electronically or otherwise). If you won't consider it, tell them that (and tell both of them that). Things won't change, in your inbox or anyone else's, if you ignore it; recruiters, and frankly candidates, are used to being ignored. They simply try again, and again, in hopes that they eventually catch you in a situation where you'd be more welcoming. By telling them that you received the e-mail, read, and understood it, and are rejecting it out of hand because its arrival in your inbox demonstrates extremely poor professional etiquette with which you will have no part, then the recruiter, and the candidate, receive behavioral feedback. The recruiter has just gotten his candidate black-balled from your organization (at least this hiring round), and importantly, now they both know that.

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"and if he's hired, somebody's gotta pay the recruiter" -- why? –  Keith Thompson Feb 1 '13 at 16:47
    
... Because somebody will have agreed to it. Usually, a recruiter is hired on commission by an employer to go find qualified employees. In this case, the recruiter is bringing the candidate to the employer; unusual, but there may be an arrangement between the candidate and recruiter. The recruiter, in any case, is expecting to be paid for this work; they're not social workers. –  KeithS Feb 1 '13 at 17:05
    
The question clearly states that the e-mail was unsolicited. Certainly if there were a contract, formal or informal, between the employer and the recruiter then the employer is obligated to satisfy the terms of that agreement. In the absence of any such agreement, the recruiter was not obligated to provide the service, and I fail to see how the employer is obligated either to pay for it or to refrain from making use of it. (If you think there is such an obligation, how much should the employer pay?) –  Keith Thompson Feb 1 '13 at 18:15
    
I never said that the employer would be required to pay. There is no such requirement, unless it can be shown that some prior communication established a business relationship and thus an implied contract (which I covered; if the OP's never heard of this guy or his recruiting agency then no such relationship exists). I simply said that the recruiter is probably expecting someone to pay him if the employee's hired, because recruiters don't do this for free. Therein lies the flaw in the recruiter's methods here; the OP doesn't have to pay, and the candidate probably couldn't pay much. –  KeithS Feb 1 '13 at 19:15
    
I took the phrase "somebody's gotta pay the recruiter" to imply an obligation. "because recruiters don't do this for free" -- the recruiter in question apparently did exactly that, though perhaps without meaning to. –  Keith Thompson Feb 1 '13 at 20:33
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In the interest of offering a balancing opinion, "don't attribute to malice what can be explained with simple stupidity".

Sure, this could be a very shady recruiter trying to pollute your recruitment pool. But it could just as well be the equivalent of a sales-person at a consultancy company cold-calling potential clients, or Suzy Workseeker sending her resume to every company she can think of to see if anyone takes the bite.

The recruiter may not even understand the issues his actions are raising. Far from being unethical, he/she may just be ignorant and/or inexperienced (a state of being we all exist in at least once in our lives).

But, if you really are set on hiring this person, then you may be in trouble but that is all depending on the jurisdiction you are in and what contracts and agreements are set up. The main sticking point here is what type of agreement exist between the recruiter and the candidate. The standard agreement I've seen prevents the candidate from directly accepting work from a company that the recruiter has been in contact with on his or her behalf (i.e. your recruitment is "polluted" since you have no choice but to go through the recruiter to get this person).

So, the question then becomes: "have the recruiter been in contact with you on the candidates behalf?" Well, that's the kind of question that keeps the world full of lawyers. A number of factors can play in here and the legal determination differs on where you are. Between the candidate and the recruiter exists a good-faith assumption that the recruiter will make his best effort to satisfy his side of the bargain. Unsolicited inquiries may be far away enough to void their contract. It could also be in this case that the candidate can accept a direct approach and defer any claim from the recruiter onto you. And since the initial contact was not only unsolicited, it was expressively unwanted, the claim falls.

Bottom line: I'm just a random guy on the internet without any legal training or knowledge of laws and regulations where you are. If you're really set on hiring this person, unfortunately it sounds like you need to talk to a lawyer. It's a sad state, but there you are.

If you're not intending to hire this person, you could contact the recruiter directly, explain what his email caused and if it ever happens again, you will refrain from ever using their services, advice all your contacts to do the same and report them to whatever equivalence of "better business bureau" exists in your area. You could also contact the candidate and explain what has happened and why you are now unable to hire him/her regardless if you wanted to or not.

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First, putting no recruiters in the ad for the position will carry little to no weight in court, should it get there. If you or your company have ever accepted a submission from a recruiter through an ad that said no recruiters then you loose any weight it did carry.

If you or your company have ever entered into a relationship, even if it was only to accept resume's for consideration for a position with your company, then you will be bound by what ever agreement you agreed to at that time, unless you can show that you have documented that the company was aware that your business relationship was terminated and that any future submissions would not be bound by the earlier agreement.

Assuming you have have no relationship now or in the past with this recruiter or his firm, you and your company likely have no obligation to the recruiter or to their firm. However, assuming the candidate agreed to work with the recruiters firm, the candidate may have an obligation to restrict their communication with you and not cut the recruiter out. What you intend as a good faith gesture to the prospect, may end up costing them a significant sum.

If you reach out to the candidate and suggest that they submit the resume through your normal submission process, because you got the name from the recruiter, these restrictions on them will apply. At some point that recruiter is liable to reach out to the candidate and find out they had an interview, were hired, or even that you requested their resume. Advising the candidate not to share this information with the recruiter could end up with you facing civil and potentially criminal charges. So, if you still want to go forward, before you do, consult your attorney.

Should that candidate decide to submit to your company independently, then you should be OK to proceed. Though I would still get the attorney involved just to make sure everything is documented properly to show that this was not an intentional interference in the consulting companies relationship with your candidate.

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The candidate might not even know the recruiter or know they have been submitted. Just sayin'. –  Amy Blankenship Feb 1 '13 at 4:43
    
@AmyBlankenship - Perhaps but the recruiter is the one that pointed you in the direction of the prospect. If that lead is the reason you first investigated the prospect, then some courts are likely to find that you entered into a de facto partnership. And even if you win in court the costs of fighting it will be higher than just using the recruiter in the first place. –  ReallyTiredOfThisGame Feb 1 '13 at 14:24
    
a recruiter has to be contracted for a specific job, else he has no contract (or he needs to have a standing contract, be contracted to provide his services permanently). This flows from laws against unsolicited work, put into place to prevent window cleaners (for example) wiping down your windows and then shoving a $1000 bill down your mailbox (which here used to happen regularly) and threatening to sue you or send a collection agency if you refuse to pay. –  jwenting Feb 1 '13 at 18:44
    
@jwenting - This is more like using their equipment to clean the windows yourself then telling them you do not really need them anymore. And while you do not have a contract(I did not claim you did) that does not mean you do not have a defacto partnership. Read the link. –  ReallyTiredOfThisGame Feb 1 '13 at 18:48
    
@Chad it's more like a windowcleaner cleaning your windows, then leaving his bucket on your doorstep. –  jwenting Feb 1 '13 at 20:24
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ignore the recruiter, blacklist him, and cautiously approach the candidate. Quite likely he never asked the candidate whether he was interested, just ripped a batch of resumes off Monsterboard, removed the contact info, and submitted them to a few dozen companies each.
You owe the recruiter nothing, seeing as you never contracted him, he approached you unasked for.

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@RhysW: The recruiter provided you with a service out of the blue, with no prior agreement or contact. How does that create an obligation on your part? –  Keith Thompson Feb 1 '13 at 16:49
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@RhysW: It was the recruiter's decision to offer this service without any prior agreement. If I freely give you some valuable unsolicited information, I don't see how you're under any obligation either to compensate me for that, or to disregard the information. –  Keith Thompson Feb 1 '13 at 18:12
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it's well established in laws and court decisions that services rendered without contract create no contractual obligations. So the recruiter sending resumes out of the blue is his risk and his alone, does not restrict the recipient in any way to contact the candidate by other means. If it did, recruiters could just bombard any and all company without thousands of resumes, thereby making it impossible for them to hire anyone except through that recruiter. –  jwenting Feb 1 '13 at 18:41
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@jwenting: That makes sense, and I'd like to think that it's true. But chad's comment on another answer says, "And some judges and juries have determined that use of offered services (even just a portion of them) is acceptance of there terms.". Common sense is not always the best guide on legal questions. Talking to a lawyer, or at least to HR, before taking any of the advice given here is probably an excellent idea. –  Keith Thompson Feb 1 '13 at 18:44
    
Just a note: the information that the recruiter provided was all in the public domain (on LinkedIn). All the recruiter did was signpost us towards the information. –  Awkward Question Feb 8 '13 at 23:49
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