I'd say no. I'm pretty serious about employee rights, but this is not a consideration that I feel employees are entitled to, at least not as originally framed. Who sets the market rate? Anyway, legally you have no standing to charge for that when the going protocol is that interviews are free.
I'm not sure that I want to step away from that protocol, either. Employers have as much ground to charge sloppy candidates for wasting their time.
Employers should pay all costs (e.g. travel) and they should volunteer so it isn't socially awkward-- no one should have to ask to be reimbursed for train tickets-- but they shouldn't be expected pay for the employee's time. Search costs are shared; that's just social protocol. Besides, the absolute last thing I want as a job candidate is to compete with spam candidates taking an outside shot at getting in and collecting a day's pay. Yes, that would seriously happen if companies started paying unsuccessful interview candidates.
However, companies should be upfront about how long the process will take. Unexpected follow-ons are irritating and I usually wouldn't start running a clock, but I feel that I should have that right. What you can't do (legally, you have no standing) is retroactively decide that the clock was running because the company didn't have its house in order and missed deadlines. Also, if you try to "collect" and threaten reputation damage, there's a thin line between that and extortion. You probably won't go to jail in that particular case, but your leverage is gone.
What I do support charging for (in event of not getting the job, which hasn't happened yet) are reference checks. I haven't had to give references in a while, but here's the best way that I can come up with to do that. Send an email with the contact information of your references in it. Then, generate a PDF with the first page having phone numbers and emails of your references (the exact same information, so it looks redundant; you'd prefer that the PDF not be read). Have the second page be either blank or garbage. On the third page, put that you consider any contact regarding you between employer and any reference to be extension of a job offer and that, if they contact a reference (provided or "back channel") and pass on you, they are liable in amount of 3 months' salary, Then make sure one of your references is someone who'll tell you if they get a call from that company.
If they pass on you and you can't prove that they contacted references, you don't collect. However, if they call your references (and you can prove it) and still decline you, you usually will have legal standing to collect; since you allowed them to take a risk with your professional reputation, you have a right to appropriate consideration.
How is a one-sided contract legally enforcable? If you put in your email signature "By reading this email you have agreed to mail me $5", the nature of that one-sidedness is much clearer.
Besides, 'risking professional reputation' by calling referees and then not offering a job? Risking it to whom? Only the referees will know, and if they were the deciding factor, then they already have a particular opinion of your abilities.
It's not one-sided. You've furnished them with information (in this case, about your past). If they choose to use the information, then they're in a contract and on the hook to pay you a consulting fee if they don't offer you a job. If they don't use it (i.e. they don't call your references but decline for some other reason) they don't owe you anything.
If you put in your email signature "By reading this email you have agreed to mail me $5", the nature of that one-sidedness is much clearer.
Not the same thing. I can't legally say, "for reading this comment on HN, you owe me $10" because that's ridiculous. There is no contract when you read my post on a message board. I've given the information freely; the intent is clear.
I could, however, offer you information (that I would have reason to charge for) upfront (without asking for payment) and say if you use any of this information, you owe me a finder's fee. That's legal: to give information and charge a fee for the use of it. (Of course, most people who are in that sort of business-- selling data-- charge for the information upfront, because it's difficult to charge per-use.)
What you are saying is that any checking of references constitutes a job offer (and promissory estoppel applies). If they don't check, and decline you for some other reason, they didn't make you an offer and don't owe you anything.
For junior-level roles, this may not be worth doing, because reference checks aren't competitive (i.e. you just need not to have horrible references, but turning up 7.5-ish references won't sink you because some other guy has 8.0's) and failing one is really rare (you have to seriously fuck up). However, for executive roles where reference checks are competitive and colon-searching ("back-channel" references not provided by candidate) is common, it's probably a good idea to have something buried in the fine print that entitles you to a consulting fee if they check any references and pass on you. Make sure there's a clause that also makes it apply to back-channel references (on the argument that they were discovered using private information you furnished) as well.
That's the real reason why I don't have my resume on LinkedIn. I can treat previous jobs as "private information" and if I'm ever dinged on a back-channel reference, have all sorts of legal recourse I wouldn't have if I put that information on the web. It's not something that I need to worry about now, because reference-checks aren't competitive until you're in the running for CxO-level roles, but 10 years from now when I'm looking at high-level roles that involve double-digit reference counts and penetrative back-channeling; if I'm ever dinged on a back-channel reference, I want to be able to say, "You, sir, owe me for misuse of private information". (They can attempt to prove they didn't misuse private information-- remember that neither they nor I want to go to court-- but that would at least give me the identity of the show-stopper.) If I put my employment history on the web, then it wouldn't be "private".
That's also why I regret attacking Google (although I didn't specifically mention that I worked there; I was "outed"/doxed) in March 2012. The company does have severe managerial problems (despite excellent engineering and great people overall) but I wish I hadn't been the first one to haul that out into the open. It now means that my having worked for Google is public information and I wouldn't have the same legal ground if someone back-channeled Google; they could argue that they already knew it based on my web presence.
If that's the case, why do you plan on using shady obfuscatory methods to achieve that goal? Stinging someone with and intentionally surprising contract is nothing but unethical. It sounds more like you want a vindictive revenge-stab at the people that don't give you a job rather than a professional payment for supplied services. You're not even proposing something on the level of a sleeper clause or the tiniest of fine print, you're engaging in wilful misdirection.
It's certainly non-conventional to charge for reference checks, and the balance of power isn't employee-favorable enough to do so in the general case. For junior roles, just give the "Classic 3" (three references you choose) and be done with it. Don't try to set it up as a consulting contract. You probably won't be dinged on references so there's no point.
It's more of an issue for upper-tier roles where reference checks are actually competitive-- i.e. turning up 6's and 7's means you don't get the job because they expect 9+, some of your references have to be supervisors/executives, and more than 3 plus back-channel are involved. That's when you should seriously consider charging. Hiding it in a PDF that no one reads is preferable.
Honestly, I'm inclined to give the "Classic 3" for free: 3 references that I pick to validate that I'm a capable person. I'm not going to play Internet Badass and claim that I charge for that; that's free. I know, at this stage in my career, that I'll usually get the job given that (if they really need 9.5+ level references and I can only give 9.0; then they weren't that into me to begin with). However, if they start to play "We need to speak to a supervisor" with me, then I start to charge because they're making me do above-board consulting work and I'm only willing to do that for free if I get the job.
I'm not sure that I want to step away from that protocol, either. Employers have as much ground to charge sloppy candidates for wasting their time.
Employers should pay all costs (e.g. travel) and they should volunteer so it isn't socially awkward-- no one should have to ask to be reimbursed for train tickets-- but they shouldn't be expected pay for the employee's time. Search costs are shared; that's just social protocol. Besides, the absolute last thing I want as a job candidate is to compete with spam candidates taking an outside shot at getting in and collecting a day's pay. Yes, that would seriously happen if companies started paying unsuccessful interview candidates.
However, companies should be upfront about how long the process will take. Unexpected follow-ons are irritating and I usually wouldn't start running a clock, but I feel that I should have that right. What you can't do (legally, you have no standing) is retroactively decide that the clock was running because the company didn't have its house in order and missed deadlines. Also, if you try to "collect" and threaten reputation damage, there's a thin line between that and extortion. You probably won't go to jail in that particular case, but your leverage is gone.
What I do support charging for (in event of not getting the job, which hasn't happened yet) are reference checks. I haven't had to give references in a while, but here's the best way that I can come up with to do that. Send an email with the contact information of your references in it. Then, generate a PDF with the first page having phone numbers and emails of your references (the exact same information, so it looks redundant; you'd prefer that the PDF not be read). Have the second page be either blank or garbage. On the third page, put that you consider any contact regarding you between employer and any reference to be extension of a job offer and that, if they contact a reference (provided or "back channel") and pass on you, they are liable in amount of 3 months' salary, Then make sure one of your references is someone who'll tell you if they get a call from that company.
If they pass on you and you can't prove that they contacted references, you don't collect. However, if they call your references (and you can prove it) and still decline you, you usually will have legal standing to collect; since you allowed them to take a risk with your professional reputation, you have a right to appropriate consideration.