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Ethical Dilemma

By amcol ·
The following situation describes an actual occurrence.

You are an IT manager of a shop that is mostly resourced with employees but also has a small percentage of consultants. One of your consultants approaches you and indicates he wants to be considered for permanent employment with your company.

Some pertinent facts:

1. You have no current official openings. You would have to work with HR to create a headcount.

2. You have had no prior conversations with this consultant, or any other consultant, about the possibility of a permanent posting. There is no precedent for this at your company.

3. The consultant is very competent, very highly regarded, and would in fact be a valuable addition to your staff.

4. The consulting company that currently employs the consultant has a formal contract with your company. That contract has a standard bidirectional one year non-solicit clause.

5. You have been doing business with this company for several years, are satisfied with their services, and intend to keep on using them in the future. They are a large national firm.

Question: how do you handle this situation?

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It's possible

by amcol In reply to Clarification

If the company you're talking about is based in California and has a name beginning with the letter "O" then yes, it's the same firm.

Two interesting points from your post. One, your characterization of what the engineer did as a "mutiny" you can tell from reading some of my posts I'm all for zero tolerance of unethical behavior, but even I think that's being a little harsh. Two, the way you had the engineer absorb some of the cost of his own conversion...also a little harsh.

Other than that I think you handled the situation appropriately.

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Ethical is about what is good not what is legal.

by royhayward In reply to Clarification

Ethical behavior is by definition behavior that is for the good of all. Baring that, it is for the greater good, of society, mankind, the parties involved, etc.

Here are the forces involved in your equation:

1. Employee/contractor wishes to join your company for whatever reason of his own.
2. Consulting firm wishes to gain from the consultant by charging for their services.
3. Company wishes to have well performing and happy resources to make its own money.
4. Manager wishes to behave ethically so he can sleep well at night.

In one hypothetical; If this employee were told, "No, you may not come work for us, we stand by the legal contract." What good is served? The employee may become more dissatisfied with his company, your company and you as a person/manager. This may affect his work, and may cause him to seek other opportunities where, you and your company will cease to see the benefits of his work, and his company will cease to benefit from the revenue he generates for them. And it is not clear that the manager will sleep well with this outcome.

On the next hypothetical; if you say, "Great, lets go and get you an application, if the company you work for now doesn't like it they can go pound sand." The employee and your company may benefit, but the consulting firm does not, and the manager now takes sleeping pills to deal with his guilt.

On the third hypothetical; if you say, "Well, lets see if we can't work this out with your company." And you proceed to compensate the consulting firm for acquiring their employee, they still benefit from the transaction, your company benefits, the employee benefits, and everyone gets a good night sleep.

Keeping in mind that what we are after is the greatest good, the third option is the best. If this really is an academic exercise on ethics in the workplace, what scenario with these factors can we reach?

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Order of operations

by JamesRL In reply to OK, I'll byte: Here's how ...

What I do think is ethical is not to raise anyone's hopes untless and until it can be determined that a resolution is possible.

The ethical dilemma is between the employer and the contracting agency. A one year non-compete clause is pretty challenging.

If I truly wanted this employee to become a full time employee I would;
If HR approves the approach, I would go to the comsulting firm and without naming names talk to them about a what if scenario. If we wanted to hire (do not intimate that the employee came to you) one of your contract staff, for the sake of the long term relationship would you agree to make an exception, and would you want to be somehow compensated for that.

If there is a willingness of the consulting firm to agree and negotiate, then I would discuss with the individual and see if they are committed to seeing the process through. Then I would go back to the consulting firm and discuss the individual case.

I have seen these cases in action at a previous employer. Most consulting firms have had to deal with this kind of thing and will deal if they need to.


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Here's the answer

by amcol In reply to Order of operations

James is actually quite close.

This is what was actually done, and this approach was vetted by a leading ethicist and two corporate attorneys specializing in labor law.

The consultant was told that no conversation about joining the organization as a permanent employee could take place for the following reasons:

1. It would be highly unethical to have such a conversation out of context, i.e. without the full knowledge and consent of the consulting firm first.

2. It would put the company in a potential breach of contract situation if the consultant were hired without the full knowledge and consent of the consulting firm.

As such, it was incumbent on the consultant to obtain the full knowledge and consent of the consulting firm before proceeding. That was the necessary first step.

The consultant realized that this could possibly be a one way street. In other words, he could have gone to his firm seeking permission to post for a job with the client company, only to be branded disloyal and fired...which is perfectly legal and unfortunately happens all the time. He ultimately decided he had a good enough relationship with his boss and a great long term track record with the company that it was worth taking the chance. As it happens the boss and the company were amenable to the idea and provided written permission holding the client company harmless for any legal remediations spelled out in the contract. The consultant was eventually hired.

Had the consultant gotten any other type of response from the consulting firm, that would have been the end of the whole idea. He could not have quit or been fired, then turned around and applied for a job with the client company due to the non-solicit. Without the hold harmless document the client company would not have chanced the legal ramifications, nor the ethical consequences.

What do you all think?

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by highlander718 In reply to Here's the answer
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Close enough

by stress junkie In reply to Here's the answer

I think the posts outlined steps that were close enough to be okay. Action items listed in previous posts made consent of the consultant's employer a critical issue. Whether the consulant asked his employer for permission or whether the customer asked the consultant's employer for permission may be an important legal issue in theory but it seems like it would be a moot point in practice. Ethically it all works out to the same outcome so I don't see a problem in that area.

If the client where the consultant was working actually did the research I think that this would show good faith in complying with the contract so I don't think that it would cause problems. An attorney may disagree with my position but I still think that any potential problems are just theoretical.

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Presumption of Ethical Behavior

by Too Old For IT In reply to Here's the answer

... by all concerned.

As you well know, my path through IT contracting (except for the current firm I contract through) as been frought with back-stabbing, cork-screwing and dirty dealing, coupled with a air number of "consulting" firms who could not stand up for thier consultants given a spine, and a back brace.

Glad you are able to find and cultivate the good firms, and lets all hope the current economy sweeps the bad ones away into the dustbin of history.

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What seems to be lost here...

by IT Makes Sense In reply to Here's the answer

is the specifics of the language. In most situations that I've run across (and they are many), the language prevents direct solicitation by either organization of the other's employees and subcontractors - not direct solicitation by the employee. Further, these clauses often have an exclusion for positions which are publicly advertised or posted.

Here's how I'd deal with the scenario, as laid out:

1. I'd express appreciation for the consultant's interest in our organization.

2. I'd explain the non-solicitation restriction in our current agreement with the consultant's employer, precluding our direct hiring of the consultant.

3. Assuming the agreement with the consultant's employer had the aforementioned exclusion on open competitions, I'd indicate to the consultant he/she should feel free to apply for any positions which became open.

4. If the agreement with the consultant's employer did not have the aforementioned exclusion on open competitions, I'd indicate to the consultant he/she should feel free to apply for any positions which became open, while indicating we would need his employer's permission before considering him/her for the position.

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I wasn't anywhere close...

by dnvrtechgrrl In reply to Here's the answer

The best I had to offer was that no such conversation should even take place -regardless of the legal implications.

But, that's also why I tinker in IT, and not labor laws.


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It's probably a common occurrance

by DMambo In reply to Order of operations

Consulting companies lose people to clients all the time. If you approach(ed) them in the manner that James described, I'd be willing to bet that they were fairly open. Especially if you assured them that your company's future business with them would not suffer. As others have mentioned, it's really only germaine if there is an actual opening involved and this person is a legitimate candidate. From you point of view, I would refer it to the HR dept and ensure that the HR manager is fully abreast of all the circumstances.

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