If you are one of Merrill Lynch’s best financial consultants and you have been flirting with other brokerages or financial-planning firms, watch out: You could get hit with a Merrill loyalty statement.
Merrill Lynch acknowledged that it has asked some of its best producers -- ones it suspects are actively pursuing new jobs -- to answer a series of questions about whether they are in talks—or have had talks—with other companies about leaving. Further, the questionnaire asks if the FCs have already given a commitment to join a rival financial-services firm. The firm says it has produced the two-page document entitled, Present Employee Interview Questionnaire, in rare cases and only when the firm had proof of an advisor’s contact with rivals.
“The document has only been used in a handful of cases where a manager has concrete information that a financial advisor plans to move to a competitor and may have used Merrill Lynch proprietary information or contacted clients in advance of that move,” says Jennifer Grigas, a Merrill spokeswoman. In a quick (but highly unscientific) survey of Merrill employees past and present, none had heard or seen such a document.
According to published reports, the questionnaire asks: “Have you told any firm that you intend to join the firm?” And, “The firm would like you to remain in our employ. Will you make a commitment to stay?” The questionnaire also asks brokers to sign it and submit it, which would presumably be kept on file for Merrill’s records.
The existence of such a document underscores the fierce nature of the recruiting war being waged over top producers among retail brokerage firms in recent months. Recruiters say that top advisors industrywide—$1 million producers who are largely fee-based—are being romanced by rivals: Signing bonuses of 150 percent to 200 percent of trailing 12-months production (including cash and stock) are being inked. And Merrill even sought a temporary restraining order against Morgan Stanley’s retail brokerage head James Gorman (who ran the retail brokerage business at Merrill) to prevent him from recruiting current and recent Merrill employees. A few high-profile employees did decamp Merrill for Morgan this year, after Gorman’s arrival.
“It goes to show how crazy recruiting is,” says a former wirehouse executive who now works in asset management. He wonders if Merrill is using the same tactics it’s trying to combat. “I think it’s sort of duplicitous when the same firm that is asking its brokers to pledge their allegiance is going out and recruiting Piper Jaffray brokers in Minneapolis away from UBS,” he says.
Either way, an FC probably shouldn’t fill out and sign the questionnaire. In fact, one labor lawyer says that Merrill cannot force its brokers to sign the document—and recommends not signing it under any circumstances. “Under federal labor law, an employee cannot be required to refrain from discussion with other employers about working conditions and pay,” says Mark Thierman, a labor attorney who has successfully sued Merrill Lynch, Morgan Stanley and UBS for a combined $165 million over forfeited overtime pay. In California, employers are prohibited from imposing a nonsolicitation rule, he adds.
Howard Diamond, an attorney and recruiter with Diamond Consultants, also recommends against signing the document, because, he reasons, it could come back to haunt. “It sets them up for a fall” down the road if circumstances change and another offer pops up.