Yesterday Rob Radcliff over at the Smooth Transitions Law Blog wrote a post about a lawsuit filed by an attorney against the recruiter that placed him at his new law firm. In essence, the attorney alleged that the recruiter made representations that she was independent (and not tied to any particular law firm) and fraudulently convinced the attorney to join a Washington D.C.-based firm with whom the recruiter had a retainer relationship. Radcliff warned recruiters about being explicit in representations made to potential candidates and disclosing who has retained the recruiter to avoid claims of misrepresentation and breach of fiduciary duty.
There is another area where recruiters need to be careful when conducting their search activities. Recruiters need to be careful about where they place a candidate when they know the candidate has a noncompetition agreement that restricts the candidate’s post-employment activities. Recruiters can be sued for tortious interference with contract and/or conspiracy when the recruiter knowingly assists a candidate in violating his or her noncompetition agreement by putting the candidate in touch with a client company or for a position that would violate the terms of the candidate’s post-employment obligations.
On a few occasions, I’m aware of recruiters (and their search firms) who have been sued along with the former employee and the new employer over violations of a noncompetition agreement. In those cases, the recruiters expressed shock and surprise that he/she could be held liable for assisting the candidate in violating the noncompetition agreement. In one particular case, when the recruiter was asked whether she was concerned about putting a candidate with a noncompete in touch with a direct competitor (that was prohibited by the noncompete), she proclaimed, under oath, "That is just not something that I worry about!"
As recruiters increasingly become entangled in disputes among competitors over enforcement of noncompetition agreements, the existence of a candidate’s noncompetition agreement is probably something that recruiters should be concerned about.
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