When the world economy took a gigantic dump in 2008, among the many people whose jobs were flushed down the toilet were in-house recruiters and human resources employees of mid-size and large companies. Some of them began writing op-ed pieces on the internet advising employers how they should weed out the many résumés they received during those difficult times. By far, the most controversial advice was: Don’t hire the unemployed.

In the last few years, there were numerous news reports of employers refusing to hire the unemployed on the belief that it was the employee’s fault that he was fired. After all, if the employee worked harder by producing the extra widget or billing the extra hour, then his employer would magically generate extra business and would not have to cut staff, file bankruptcy or close up shop. And the housing market would not have collapsed. This irrational, unfair and possibly racist practice got so prevalent that some states and the federal government have enacted or proposed laws prohibiting this practice.

Now that the economy is supposedly recovering, has this practice declined? As far as law firm hiring is concerned, employers just became more covert about it….

When law firms advertise job postings, I’m sure that they receive many résumés from solo practitioners. Some (like me) have small but steady practices seeking to join forces with another firm. But for others, a solo practice is a euphemism for being unemployed. It costs nothing and it is not lying when someone with no work says he is a solo practitioner. So it is a default choice. Especially since being unemployed has become synonymous with being lazy or having no sense of personal responsibility.

Unfortunately, I have read some articles that implied that the most “viable candidates” for employment are those who are currently working, particularly for peer firms. Otherwise, candidates will have to find other ways to prove their worth – preferably ways that will cost the hiring firm nothing.

Now employers and recruiters are not completely to blame for this situation. I can understand that hiring the right attorney is many times harder than hiring the right ditch-digger. Also, the supply/demand imbalance as well as the demanding job duties of entry-level associates ensure that employers will get résumés from a fair number of currently employed attorneys seeking to lateral. And they will probably get priority over the unemployed who are seeking to enter the race.

But does this mean that someone who is currently employed a better candidate for a job than someone who is unemployed? I see some problems with this practice.

First, is the applicant really employed? A few will be stupid enough to blatantly lie about their employment status. But the more likely scenario is that some firms that laid off (and sometimes even fired) employees will allow them to say that they are still working for the firm for a period of time or until they find new positions. Employers sometimes do this to prevent or minimize an increase in unemployment tax. You see, when an employee is laid off (and sometimes when fired), he will receive unemployment benefits that in most states will result in the employer paying higher unemployment taxes in the future. So the sooner he gets a new job, the lower the risk of an unemployment tax increase. But some employers are cognizant of the difficult job market and are compassionate enough not to frustrate their former employees’ transition elsewhere.

Second, is an applicant that is “currently employed” really that valuable? In this economy, it would be idiotic to leave a firm that paid and treated you well unless the new firm offers a substantially better compensation and lifestyle package. It is possible that the applicants are applying to other firms because they have issues with their current jobs and are looking for a way out. Or the employer could have been unhappy with the employee’s performance and given him a warning that he should look for another job asap.

Finally, but especially in the law firm setting, I wonder whether an employer would be able to trust someone they poached from another firm. You see, when an unemployed person is hired, she has a strong incentive to fit in to the firm’s culture, do what she is told and tolerate all kinds of abuse, or it’s back to the soup kitchen she goes. But a poached employee’s loyalty will have to be scrutinized for a long time. Especially if other firms — including her former firm — are continuing to hit on her and ask for her v-card. Let’s face it: if she knows she’s hot, she’ll damn well take advantage of it and settle only with the firm that will put up with her diva attitude and entitlement complexes. Because she is only one offer away from moving somewhere else.

Before I call my friend and ask if I can pose as an associate for her firm, I hope businesses will stop thinking that the unemployed are unemployable. Look, I believe employers should be allowed to hire whomever they think will make them the most money. But hiring decisions should be made based on common sense, thorough background checks, and good judgment. Not the hyperbolic hysteria of HR hacks. But if this practice continues, it is only a matter of time before the government really steps in and creates unintended consequences along the way.

But for solos seeking to re-enter the job market, you’ll have to prove to potential employers that you weren’t just sitting on your butt waiting for clients. You’ll have to show that you were your toughest boss. You have to show tenacity, leadership, and superior work product without a reference. How is that possible? I’m working on it….


Shannon Achimalbe was a former solo practitioner for five years before deciding to sell out and get back on the corporate ladder. Shannon can be reached at sachimalbe@excite.com.


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