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How to Alienate the Best Talent

restraint of trade, non complete clauses, employment contracts, candidates, top talent

restraint of trade, non complete clauses, employment contracts, candidates, top talentI’ve read literally hundreds of employment contracts over the years. I’ve written a fair few of them myself too.

It’s pretty common for most employers to include some kind of non-compete clause within their employment agreements in an attempt to protect their best interests.

These clauses are often referred to as a ‘Restraint of Trade’ and usually prevent an employee from working for a similar type of business for a specific period of time in they event they leave the organisation.

Restraint of Trade clauses are usually brought up when an employee resigns as a bit of a scare tactic – a ‘gentle’ reminder to not approach clients or to perhaps even dissuade them from joining a competitor.

I can fully appreciate not wanting to lose your top performers (and their intellectual property) – hence including a Restraint of Trade clause.

But what about potentially losing your best candidates during the recruitment process before you’ve even had a chance to interview them, by invoking what this week I termed the Prestraint of Trade clause?

In case you’re wondering, “Prestraint” is not real word.

Charlotte’s story

I first heard about this graduate’s experience from a friend of mine a few weeks ago. I was so intrigued by the story that I arranged a time to speak with Charlotte personally.

Charlotte has just completed her undergraduate degree in media and has been actively looking for a graduate opportunity in the advertising industry for 2014.

She had applied to several of the top ad agency groups and had in fact been invited to attend interviews by three of them all within the same week.

Prey on desperate candidates

One of the agency groups contacted Charlotte and told her they would be running a panel assessment day, since within their network they had 20 graduate roles available on offer and they’d be inviting 30 graduates to attend.

Apparently the way the assessment day would work was that graduates would be rated and ranked and offers would be made to the graduates on the following day. They wouldn’t even know which specific agency had made them the offer, what team they would be working in, nor on what specific accounts.

Personally I have never heard of anything like this and I spent the good part of a decade running a recruitment business that predominantly serviced the advertising space.

Apply unnecessary pressure on your candidates

But here’s where the story turns a bit bizarre.

When the head of the assessment day contacted Charlotte inviting her to attend, she happened to mention that she’d also been invited in for interviews by two other agencies.

At this point Charlotte was blatantly told that she would have to give up any other interviews if she wanted to attend the assessment day.

She was told that she would in fact have to sign a declaration stating that she would withdraw from the other interviews, and that if she was selected by the panel, she would have to sign the employment offer immediately – not knowing anything about the agency, salary or any other conditions of employment.

Decide now, Charlotte”, she was told. “If you’ve got feet in two camps, you’d better make up your mind”.

The head of the program made it very clear that she could not attend without signing to confirm that she was not interviewing elsewhere. He also reinforced that if she attended and was offered a graduate role she would have to accept on the spot.

The pressure to potentially have to make a choice without knowing anything else was too much so Charlotte withdrew her application.

Make your candidates feel completely inadequate

Charlotte’s withdrawal caused quite a stir. The panel representative called her begging her to reconsider.

They put even more pressure on her to sign.

Charlotte asked what would happen in the event that she did sign the declaration, attend the assessment day, receive an offer, but then decline the offer to take on another position.

The response she received made Charlotte feel as if she was now being threatened and bullied.

It’s happened in the past, and those people are black-listed within the industry”.

* * *

What I find particularly hard to understand is that it tends to be the better candidates who are invited in by more than one organisation to attend an interview.

Would this particular agency group in fact prefer to lose the best candidates by pressuring them to sign a “Prestraint of trade” document preventing them from even meeting with other organisations?

As a recruiter I have typically advised candidates (graduates in particular) against jumping at the first job offer without at least comparing it to something else.

I suppose the agency group would then in fact prefer a B-Grade candidate willing to accept a job offer site unseen, as opposed to an A-Grade candidate who may ultimately accept their offer once they have weighed it up against others.

Surely it’s better to avoid alienating the best candidates before they’ve even had a chance to see what’s on the table.

NB – for those curious to know where Charlotte ended up? She was offered a position with an iconic agency as part of a fantastic graduate program! No Prestaint clauses, no threats and she was thrilled to sign the offer!

Paul Slezak

Cofounder at RecruitLoop. I've been a hands on recruiter, manager, trainer, coach, mentor, and regular speaker for the recruitment industry for 20 years. Follow me @paul_slezak.

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