Re: [tlug] Ghosted?

["Stephen J. Turnbull" <steve@example.com>]

James Tobin writes:

 > Based on this,

No.  That's just standard language about termination.  Your assertion,
as you said before, is based on a theory of reliance for these two:

 > I’m asserting that obligations such as providing feedback,
 > progressing candidates,

(at least until you provide contractual language for them).

 > and honoring introductions made prior to termination

This seems like it goes without saying in recruiting, and probably is
specified in the contract language.

 > still apply. These are not casual expectations—they’re part of the
 > ongoing responsibilities embedded in the agreement.

"Embedded" is not a concept in US law, and I doubt it is in Japanese
law.  Either there's supporting language, or there's a specific legal
theory such as reliance.

 > What’s troubling is that their legal team is now attempting to
 > weaponize specific contract terms,

"Weaponize"?  I'm sorry, but you can't "weaponize" contract terms.
They're there in black and white, and you engage in non-contractual
activity at your own risk.  That doesn't mean that a court won't
decide the terms are invalid or that there's some consideration that
makes what you did moot.  But complaining about the rules that you
agreed to is a bad look.

 > such as the clause stating that recruitment must be initiated by
 > HR. Yet historically, they’ve engaged my services—including hiring
 > candidates—without formal HR requests.  This pattern of conduct
 > suggests a broader, more flexible working relationship than the
 > strict letter of the contract implies.

Sure, and that's not a problem unless the counterparty changes their
mind.  But them changing their mind in this way doesn't automatically
create reliance.  For example, you can announce to Microsoft you're
going to pirate Windows all day long for a decade, and do it, but if
they come after you after 10 years, you're going to lose.  Again,
reliance is one of the standard theories for the validity of a public
license in the absence of consideration.  But the intent of such a
license is clear, which is a crucial part of the reliance argument.

 > In 20 years, I’ve never encountered a situation like this.

Congratulations on your taste in clients, then!  

 > It feels deeply off. During a recent call, HR shouted at me and
 > made inappropriate references to my gender, skin color, and the
 > size of my company—calling it a “one-man band.”

It's a shame you don't have a recording of that.  (I don't know what
the rules on that are in Japan, find out before you do it!)

 > their use in this context raises serious questions about
 > professionalism and bias.

True.

 > It seems symptomatic of a wider trend: employers ghosting
 > recruiters, avoiding feedback, and opting to post roles on
 > platforms like LinkedIn to bypass external support.

I don't think so.  The HR person is just an asshole.  Assholes have
always existed, have always managed to get into managerial roles, and
they always will.  The trends in the industry derive from a myriad
trends in technology and culture, independently of the prevalence of
assholery.

 > This isn’t just about one contract—it’s about the erosion of
 > professional standards in recruitment.

Don't kid yourself, this is about one contract, for you.

 > I believe this situation gives rise to an equitable estoppel claim.
 > The company’s consistent pattern of engaging my services without
 > formal HR requests created a reasonable expectation that such
 > conduct would continue.

And it did continue, until formal termination of the contract, no?  I
don't see a (legal) problem with that, unless they're trying to avoid
paying for services that otherwise would be covered by the contract.

 > I relied on that expectation in good faith, investing time and
 > resources accordingly.

I don't see a legal reliance problem though.  You agreed to a contract
that allowed termination at any time.  If you now regret your time and
resources, they're going to argue that that's your bad planning, not
reliance in the legal sense.  I suspect a court will agree.

I think you're on somewhat firmer ground with respect to the
expectation of feedback, but it's still pretty shaky.  They can argue
it was just generosity on the part of the manager you had been working
with, not an implicit obligation of the company.  As for advancing the
hiring process, as far as I can see that's always entirely up to the
company.  An individual candidate might have some sort of
discrimination claim, but your claim for damages due to foregone work
as the process advanced seems speculative at best.

 > It would be inequitable for them to now deny that conduct and
 > enforce restrictive terms that were never previously applied.

In the common sense of inequitable, it sure is.  Legally, I'm dubious.

Far more important than this one case, in my opinion you need to
disconnect your feelings about this one contract from the trends in
the industry.  It's your career, so you know a lot that I can't, and
you'll have to judge for yourself, but let me say my piece.

My daughter has been working in one of the well-known re-employment
firms for a while, so I've taken a bit of interest in the industry.
My wife is getting tired of me whispering a reply "Stalker!" to the
"Recruit agent" commercials, but I'm also watching how the content of
the commercials and ads on trains etc are changing, as well as the
changing ranks of the top companies.  Big data and A-fscking-I are
driving a lot of the changes on both sides of the market as both
candidate filters and application automation progress rapidly.
LinkedIn, I don't know if that's such a big deal any more as it gets
populated with bots and fakes, but many industries have specialist
sites, and several of the professions I follow on BlueSky have active
recruiting and job search networks there.  I expect that HR managers
in companies large enough to contract with recruiting firms are
probably under a lot of uncomfortable pressure right now, because on
the one side salaries for new graduates are rising, retention rates
are dropping more rapidly than that, and there's rising discontent in
the middle ranks (especially non-elite-course 40-50 year-olds who got
screwed big time by the "lost ''/2/3/? decade(s)").  (Of course that's
still no excuse for being an asshole, but firing recruiting firms is
one obvious way to cut costs, hoping to recoup via modern IT tools.)

You're welcome to describe your value-add or otherwise rebut.  I don't
intend to deny it, especially since you are evidently a boutique
matchmaker (often referred to as "headhunter") rather than a mass
"classify and route" hiring mill.  (Maybe someday I can afford your
services. :-)  My point is that I don't think managers have changed in
terms of professionalism, bias, or even outright assholery.  Rather, I
think technology and the economy have changed.  Your knowledge and
skills in working with candidates and managers are still valid, I'm
sure -- people don't change much even after a half-century like Japan
just experienced.  But the conditions in the market have, and those
changes have surely been accelerated with changes in IT and
demographics.  Push back against the changes, and you'll get bounced.
Adapt and win, at least that's how I think about it.

-- 
GNU Mailman consultant (installation, migration, customization)
Sirius Open Source    https://www.siriusopensource.com/
Software systems consulting in Europe, North America, and Japan