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.
Liability has developed through case law (court decisions that set precedents) rather than statutory law (legislative enactments). Since each “fact pattern” in each case is different, it’s unclear as to what “invading” someone’s “privacy” really means. So one person’s “invasion” is another’s opportunity. Or both, depending on the whim of the victim.
In attempting to decide objectively whether someone’s privacy was invaded, there are three probes to use:
- There must be an “unreasonable” interference with the “right to be left alone.”
- Only an unreasonable interference is “actionable.”
- What is “unreasonable” depends upon the circumstances (including the express or implied consent of the victim).
You’ve asked about the candidate declaring the solicitation unwanted. This has a tendency to happen only when the source employer finds out. So the appropriate legal defense is some poly-syllabic variation of “Gimme a break!”
The way to get around all of this nonsense is to simply make that cold call, and ask immediately for an after-hours phone number. Home, cell, parole officers’, whatever. If you get one (or even a personal email address), the candidate is estopped (stopped) from asserting that you violated her rights. She impliedly waived them. (A “waiver” is the voluntary relinquishment of a known right. Once waived, you’re estopped from asserting it. Pretty nifty, eh?)
While there are an endless number of ways candidates can impliedly consent to being contacted — from showing their bodies on billboards to stuffing photo-reduced resumes into fortune cookies — these things are not necessary to show consent. Of course, anyone on Linkedin or Facebook wants publicity. Gimme-a-break for sure.
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