The active sourcing dilemma: legal pitfalls when approaching candidates directly

An increasing number of employers are going over to approaching candidates directly: active sourcing. However, the undertaking is not quite straightforward from a legal perspective. Which is something that companies should bear in mind when approaching candidates directly.

The times of “post and pray” recruiting are in the past – it no longer works to place a job advertisement and wait. In many areas, the labour market has become so meagre that employers have to contemplate alternative methods of recruitment. Therefore, a number of companies are increasingly relying on direct approaches to candidates.

Direct approaches to candidates are increasing

The German big players are now approaching potential candidates directly for almost every fourth position. In medium-sized enterprises, candidates are actively being sought for almost half of the job vacancies. This was revealed by the “Recruiting Trends 2017” study carried out by the University of Bamberg with the jobs portal Monster. Companies approach candidates, for example, via the following channels on the Internet:

• career networks such as XING or LinkedIn
• their own talent pool
• specialist forums and blogs
• external CV databases

However, there are legal pitfalls lurking in active sourcing via online channels. For example, many recruiters are afraid of problems under data privacy law, as soon as they look for personal data on the Internet.

Finding talents via sourcing

You can now reach them quickly and easily. Smart sourcing algorithms simultaneously search a number of (CV) databases, social media sites or business networks for information with just one search request. The tools’ semantic searching technique scours the web and Google for information according to Boolean logic. The sourcing solutions take different search parameters and search ranges as a basis to those used by the search engine. This allows them to penetrate the recesses of the web which would simply fall through the net with Google and co. The best-known tools on the market include Talentwunder, TalentBin or CxSearch, which is available within the Carerix Applicant Tracking System (ATS) and is based on the technology of the Dutch HR software provider Textkernel. At the touch of a button, the tools search in the databases of large jobs portals, for example. Social media sites such as Xing and LinkedIn are not left out, and new sources are regularly added. The latest new additions are professional IT specialist forums such as GitHub or Stack Overflow, where IT experts with a high level of specialist knowledge can be found.

Search for candidates: compatible with data privacy

But is this approach legally justifiable? Yes! Sourcing is completely compatible with data privacy, as only data which is publicly available in generally accessible sources is gathered. According to the law, this data can both be collected and saved in an applicant tracking system. This is clear from Section 28 (1) Sentence 1 No. 3 of the German Federal Data Protection Act (BDSG). It is permissible for a recruiter to carry out manual data collection via a business network in which profiles can only be accessed with a membership. There is nothing against direct networking between the recruiter and the candidate. In the event of a confirmation of the contact by the candidate, it is then perfectly legal for the recruiter to have all the data. Deliberate networking is regarded as consent. The real active sourcing dilemma only starts when the actual direct approach is made and is, strictly speaking, not a question of data privacy, but of competition law. This is because approaching a candidate can legally be seen as poaching, which is governed by competition law. But let’s take one thing at a time.

The problem is not data privacy, but competition law

When the candidate is found, he/she must be contacted in some way. After all, you want to give him/her a job offer. So far, so logical. In the social media and Internet age, the concepts of a “direct message” or “e-mail” should now pop into your head. After all, a written direct message appears less obtrusive than a telephone call, for example, which may reach the candidate at an inconvenient time. The legislation sees this precisely the other way around. Thus, it is completely safe legally to call a candidate, in order to give a brief, concise and factual description of what it is all about and, if he/she is interested, arrange a follow-up meeting. On an interpersonal level, however, there is a high risk that the candidate will respond with annoyance because he/she receives umpteen calls of this kind.

The dilemma with the direct message

According to relevant studies and surveys of talents, it is perceived as less aggressive and disruptive when an electronic direct message is sent instead. However, this puts the recruiter in a grey area under competition law. The law is quite old and does not really take the digital age into account. At the moment, therefore, the express consent of a candidate is still required before they can be approached directly electronically. This is regulated in Section 7 (2) No. 3 German Act against Unfair Competition (UWG). The logical consequence of this is a little absurd: a direct message via XING is, strictly speaking, illegal without the consent of the candidate. However, by definition, this cannot have been provided if it is an initial contact. A telephone call is legal, but has the risk that the recruiter will annoy the candidate. The recruiter is caught between a rock and a hard place: scare off the candidate or break the law? Neither is a really great option. But as stated above: we are in a grey area legally when approaching candidates directly by e-mail. Recruiters should definitely take note of whether a candidate has indicated in the respective network that they are interested in job opportunities. This indication may be classified as the consent of the candidate before the court. To be on the safe side, these indications should be documented with a screenshot.

Good documentation is crucial

But to come down to earth: the risk of a legal dispute is relatively low. There are still no known cases in which a candidate has taken legal action because of a direct message. Recruiters should, however, be aware of the current legal situation and keep good records of everything for their own safety.