Agency Flanking

[Andrew Plato <intrepid_es -at- yahoo -dot- com>]

A recent post regarding a job made me think about this issue.

DISCLAIMER ONE: I own an agency that staffs tech writers so I have a particular
bias in my response to this issue.

DISCLAIMER TWO: Please do not tie my message back to any previous post - I am
not trying to surreptitiously indict anybody. I am merely discussing this issue
and offering insights. 

I do want to point out a serious NO-NO in the realm of recruiters and agencies,
"flanking the agency". I am sure many of you are aware of this, some call it
"going behind the back" or "doing and end-run".  Whatever it is called, it is
very unprofessional and I would say bordering on immoral. 

However, in my experience as a recruiter - job candidates are often NOT the
ones who attempt to flank agencies.  Most often it is the client company. 

Some company's or managers at companies feel it is perfectly acceptable to use
agencies and recruiters as a free source of resumes.  With no intention of
paying recruiting fees or contract margins, they will purposely lead you around
the agency to save a buck.  Some companies will scare job seekers telling you
that the agency is going to charge you money or that your salary will be
reduced to pay for the agency if you speak to them.  Others will grill you on
whether you signed a release statement (we call them RRs, ?Right to Represent?
forms).  

Just imagine that you spent months writing a set of documents and then your
company said "good job but we're not going to pay you for this because we own
the paper it is printed on, Sayonara."  You would be pissed-off. In a sense
this is exactly the same as flanking an agency. 

You have to wonder about a company that would do such an unprofessional thing.
I mean, I would want to work for a company that plays fair and helps the
community.  Companies that flank agencies are in a sense saying that it is okay
to be unfair. Many agencies, like my own, are small companies that live on
those fees. 

I admit, many agencies don't know which end is up.  I'll even admit that my
company has botched some deals. But, all things being equal, recruiters work
very hard as to help people find good jobs.  Sure, some recruiters and agencies
are better than others. But it isn't fair when a recruiter works very hard to
set up a connection between yourself and a company and then one side tries to
cut the agency out of the deal. 

Furthermore, if you attempt to flank an agency by dealing directly with a
company you may open yourself up to a painful litigation process.  Although
this has never happened at my company, a colleague just recently won a $175,000
lawsuit against a Java developer who flanked the agency and contracted directly
with the client.  The Java developer had signed an agreement with the agency
and therefore was bound to it. 

Also, read whatever representation agreements agencies make you sign very
carefully.  A standard agreement will restrict you from pursuing independent
work for 1 year with clients where you have interviewed.  If you did not
interview with the client then you are generally free to do whatever you want.
Scummy agencies will restrict you for 5 years or forbid you from working with 
any place where they submit you.  Really scummy agencies will restrict you from
ALL their clients.  

Agency agreements can comeback to haunt you.  Let's say an agency sets you up
with an interview at DingDong.com Inc. You interview with the Tech Pubs manager
and all goes well.  But the company hires somebody else. Then six months later,
that Tech Pubs manager calls you and offers you a slightly different job.  You
accept the job and life is great.

Not so.  If you signed an agreement with the agency, for DingDong.com Inc then
the agency needs to be informed that you accepted the job (within the
restriction period).  As long as you inform the agency your ass is covered. 
You do not need to do anything else than just call up the agency and say "hey,
Dingdong.com offered me a job and I am going to take it, just wanted to let you
know so you can collect your fee." 

If you do that, the agency can then pursue their fee with the employer.  If you
do not contact the agency, and the agency finds out you took a job, you could
be named in the lawsuit. 

What is probably happening is that the Tech Pubs manager at DingDong.com is, as
we call "resume fishing".  It works like this:

1. Manager calls Agency asks for resumes. Signs deal, etc.   
2. Agency sends over candidates that are signed etc.
3. Manager interviews candidates, hires none.
4. 3 to 6 months later, Manager calls up the candidate(s) he/she liked and
offers them a job.
5. Candidate(s) are happy to get an offer and never even think about the
agency.
6. Company has just flanked the agency. 

Most agencies are so busy they don't have time to keep track of each deal But,
good agencies keep their eyes open and they know people.

If you are a manager, keep in mind that agencies are here to help, but there is
a fee for that help. If you do not want to pay for a recruiter, please do not
use one.  Recruit on your own. It is not fair to use recruiters for resumes and
then not pay for those services.

If you are a job seeker, be fair with agencies. It is in their best interest to
get you a job.  Good agencies practice "reverse recruiting" in that they take
the time to find out your needs and then try to sell you to their clients  If
you sense that an employer is trying to cut the agency out of the deal, let the
agency know what is going on.

Do not ever let an employer (or an agency for that matter) trick you into any
of these situations:

"We would pay you (nn)/hour but because you're working with an agency we can
only pay you (nn - yy)/hour."  This is nonsense.  It is not your responsibility
to pay the agency. NEVER work for an agency that charges you for a job. 

"You will have to work for free for nn time because we have to see if you're
ready for this position."  Nonsense.  Never work for free.

"You can't work with ABC Recruiters, you have to go through our in-house
approved agency LAMEO Recruiters Inc."  This is a classic case of kickbacks and
bait and switch.  Slimier agencies sign these kickback deals with companies and
then managers must refer all candidates to that agency, yet they still fish for
resumes from other agencies.  This is really, really scummy. 

"We would love to hire you, but you'll need to sign this agreement that says
you are not represented by anybody else and we are free to hire you."  This is
a real backhanded trick.  Basically, the company is making YOU responsible for
their scummy-ness. By signing the agreement, they can fire you and sue you if
the agency tries to collect a fee. Thus, they get YOU to shoulder the legal
responsibility if the agency decides to sue.  Very crafty, very, very slimy. 

If you want to completely avoid the agency pitfalls - don't use one. Submit
your resumes directly to companies and sell yourself. It isn't fair to enlist
the support of a 3rd party if you are unwilling to play by the rules. This
holds for companies looking for candidates as well.  Companies that do not want
to pay recruiting fees should not work with agencies. 

Lastly, if a deal ever sounds fishy to you, investigate.  Never be afraid to
ask questions or enlist the support of an attorney, friend, or even good old
TECHWR-L. At a minimum, keep your agency informed to the process.  Good
agencies can not only help you get a job, but shield you from slimier companies
that are trying to screw you or the agency over. 


Andrew Plato
President and Principal Consultant
Anitian Consulting / TechAgent (TM)
www.anitian.com

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