Are ‘cut and paste’ legal documents worth the risk?

I can mention ‘cut and paste’ legal documents to a room full of recruiters and guarantee a room full of sly grins and nervous laughter.

It goes something like this - set up your agency, ‘borrow’ someone else’s TOBs and other legal documents, perhaps even throw 3-4 sets of TOBs together, and whack your brand on top!

Clients don’t notice, and anyway, it’s not really that important.

However, when it comes down to it, TOBs are really important because:

• What you deliver is what you get paid for (introducing a great candidate that the client engages following that introduction).

• What’s not included in your scope of service needs to be excluded to minimise your exposure (final employment decisions, perhaps medical assessments and checks you don’t do, outcomes of work of on-hired workers).

• They set out your expectations of your client (candidate checks and assessments, the final employment decision, temp to perm fees, safety, supervision and control of on-hired workers, how/what to pay you or what happens if they’re not paying you).

If you’re using cut and paste or old TOBs, here are five questions you need to ask yourself right away:

1. Can you enforce them?

Contract law can be a real downer.

• The law requires certain boxes to be ticked to create a binding contract. And if you miss the mark on these, your legal documents might not be worth the paper they’re printed on.

• The risk with the cut and paste approach - what started as legally OK, gets cut to shreds because someone thinks that certain words or clauses aren’t essential.

• And when you focus on length (a dollar for every time I’ve been asked for a ‘1 pager’), not on what’s necessary and required, you’re creating compliance and legal risk.

2. Are you tinkering with your documents?

Tinkering with legal documents is also pretty common, as is having different versions being used. Unfortunately, editing terms will often introduce additional problems.

Without a keen eye for these things, you may end up with documents that are unclear and even contradictory. For example, key terms may not be defined, or there may be inconsistent language when clauses have been dropped in from different documents.

This type of document often causes headaches in disputes. There is a lack of certainty, and your lawyer is usually going to struggle to give you a definite answer on your rights.

3. Do they say what you hope they say?

Someone else’s TOBs reflect someone else’s business and someone else’s services! It’s hard enough trying to decipher legal language at the best of times. If you haven’t invested in reviewing, writing (alongside someone experienced to help you) and understanding your TOBs, then the clock’s ticking on when you find out they aren’t fit for purpose.

Recruitment is not generic. There are unique ways of working that are specific to all recruiters. If you’re relying on someone else’s documents, you might be missing a significant opportunity to maximise your earnings by removing mistakes and gaps.

4. Are you different from the day you started?

I expect you can look back and see the growth your business has achieved. What I usually see is that exponential growth (and increased complexity) is experienced when recruitment businesses start investing in staffing services to complement their permanent business.

However, I see terms that are stuck in ‘permanent land’ and for better or worse, have served a permanent business since day one.

All of a sudden, there’s a staffing business and either zero appreciation for this in the TOBs, or some haphazard attempt to cover off staffing services.

However, staffing services are very different to permanent services. You’re on-hiring employees to your clients, not sourcing candidates and managing a recruitment process.

Cut and paste TOBs won’t do the job here, again, because things will be missed, but also because of the lack of investment in actually understanding your TOBs and key risks.

On-hiring is a distinct business model with unique risks associated with the employment relationship with your workers, daily interactions with clients, the work performed by your workers, safety considerations, and the crossover with ‘temp-to-perm’ conversions.

4. Are they slowing sales?

As professionals who work hard to deliver exceptional service, agencies are doing themselves a disservice by using ordinary looking, complicated and confusing TOBs.

I’m often bemused by businesses that choose to ignore how complex their legal documents are to read and use, and how non-customer friendly they are. I find it equally disheartening to see businesses accept that legal terms have to be complicated and full of jargon.

The mishmash of phrases and language, antiquated words, sentences that go on for 10 lines and the confused layout of clauses means TOBs don’t flow logically. These issues, along with burying key commercials, i.e. fees, aren’t helping you close sales fast or adding to your customer experience.

And if you’re then dismissing your TOBs because you also don’t like to work with them, then you probably need to consider how you can make them work for you. This will improve everyone’s experience with your sales process. It will also fix costly gaps and minimise ad hoc approaches to using TOBs.

5. How do your TOBs stack up?

You can do a quick health check of your TOBs by asking the following questions:

• What clauses do clients usually have a problem with? And do I understand why?

• Who wrote the TOBs?

• When were they last reviewed?

• Are all my services covered?

• Do I have a fallback if clients don’t sign my TOBs?

• Are we upfront or do we hide them from clients until the last minute?

If you want to take a deeper dive, here is a quick self-assessment to assist you.

Article by Martin Richardson, Director - Legal helping businesses navigate compliance with confidence.