On November 19, 2008, I was interviewed on Blog Talk Radio’s show the Recruiting Animal.

The Recruiting Animal interviewed me on a number of labor & employment law related topics germane to recruiters.  One topic seems to have created a MINOR controversy in the blogosphere.

The issue of ruse calling or “rusing” came up.  In the context of recruiting, this is when an HR person or recruiter (usually an external or 3rd party person) reaches a company “gatekeeper” (i.e., someone who protects or guards what information is distributed) & pretends to be someone else in order to get past the gatekeeper.  By doing this, the recruiter hopes to get to the person in charge of hiring, or who has the most information about the position, so that they can bypass bureaucracy & get an advantage over other recruiters.  The gatekeeper is usually an administrative assistant or someone else designated to screen phone calls.  Specifically, I was asked whether rusing is legal.

Generally, under federal law it’s not civilly or criminally illegal.  I’ve seen blog posts from professionals, & even another management side labor & employment attorney, saying that rusing violates federal law such as Federal Trade Commission rules.  Others argue that it violates the Uniform Trade Secret Act, but this isn’t federal law.  It’s a doctrine which can be adopted by the states; i.e., unless codified as law, it’s persuasive but not mandatory as an authority.

As best as I can tell rusing only violates FTC law when the recruiter is lying for the purpose of obtaining something of concrete value such as money, trade secrets or inside information in order to gain a direct pecuniary advantage.  There’s potential criminal and civil liability with these types of thefts.  Still, most trade secret & intellectual property law & doctrine doesn’t address the type of conduct I’m talking about here.

My contention is that rusing for the purpose of getting past a gatekeeper to get the real person in charge, & then disclosing that the purpose of your call is for information regarding an open position isn’t the same as what’s prohibited by the FTC or other laws.  Again, it’s worth repeating that there are no other U.S. laws in existence, or even proposed, which addresses rusing in the aforementioned recruiting context.

Now if you change the context to obtaining information regarding the separation of a C-level executive or director that has a substantial impact on that business’ operations, then this MIGHT be illegal under civil law, maybe criminal law too (though that’s a weaker argument and probably only a misdemeanor at best).  Intent to damage the company or someone else’s reputation, & the nature of what’s communicated, could factor into whether or not someone is criminally charged, & any actual resulting damage could factor into civil liability.

Also to be considered is whether the information sought is considered very valuable by the company it’s sought from.  More specifically, if a company has gone to great lengths to protect the information solicited, either through technology, policy, practice or binding agreements, then that might make a stronger case for recognizing it as being legally protected property.

If you change the context to an in-house recruiter for a company trying to steal employees from a competitor, this MIGHT be illegal under state civil law dealing with trade secrets (unlikely illegal per criminal law) or some sort of tortious interference with business, which is more likely a common law argument (i.e., violates case law not statute).  The nature of our legal system dictates that actual damage & intent factor into whether it’s illegal per civil law.  It probably won’t be illegal per criminal law, and if it is, it will probably be a misdemeanor at best.

Ultimately, all the public can do is debate this issue.  It will take at least one court case to start defining in a more definite manner whether or not ruse calling or rusing is illegal in either criminal or civil courts.

If I’m wrong, please correct me.  But so far, all of the research I’ve done, and all of the comments from those who contend that it violates federal law have been unable to point out the specific law that’s violated.  Additionally, relative to state law, I can’t find anything on that either.