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Topic: Poaching
| Author | Message |
| Mr. Biggles | Posted – 5/15/2008 12:53:03 PM | show profile The query below was posted to another message board I read: "As a condition of employment, my company requires that you sign an agreement stating you won't take any co-workers with you if you leave and take another job. "I just accepted another job and my colleague, whom I work very closely with, wants me to find out if there are any openings. It would be great to work together in an environment that isn't toxic, like the current one. "If anyone reading this has an HR or employment law background, could you please let me know if that agreement we both signed can be upheld? If so, how? Thanks." In the ensuing discussion, nobody can agree on whether the contract is enforceable--some say yes, some say no, some say it depends on the state, and some say yes but that the company likely wouldn't bother to pursue it. Just thought this was an interesting topic and curious to see what folks over here think. Have any of you ever been in a similar situation? |
| sophiesMOM | Posted – 5/15/2008 2:29:24 PM | show profile my husband was in a similar position when he switched publishing companies. his way around it was to not be connected with the new hire. i.e. someone else reached out to the prospective employee, interviewed, made the offer, etc. it worked for him, but if, in your case, the prospective employee would be working for you, i'm not sure there's any way around that. |
| Louisewasnothalfbad | Posted – 5/15/2008 3:21:21 PM | show profile Lincoln freed the slaves. This is more of an intimidation tactic than an enforceable provision. Just like non-compete clauses, which in California are almost never upheld. US law takes a dim view of employment contracts that shackle the worker, while UK law is more favorable to the employer. |
| ConfidentDesigner | Posted – 5/15/2008 3:46:13 PM | show profile I don't have an HR background but come on, you can't take anyone with you? How the hell would they even prove that! If you left and went to another company and somebody else left and went to the same company, how would they prove you got them the job? That's ridiculous and would never hold up in court, I'm positive! |
| AWC | Posted – 5/15/2008 4:33:53 PM | show profile Unless your colleague becomes your direct report, and there's a clear paper trail showing that you lured him there, it's almost impossible for your current employer to prove or enforce the agreement you signed. |
| writesonwater | Posted – 5/15/2008 9:18:55 PM | show profile "You can't take it with you" doesn't apply to co-workers. A non-compete may be enforceable at least in some states (so I hear) but they can't prevent people from leaving who feel like leaving. It's intimidation, pure and simple. |
| foodlit | Posted – 5/16/2008 10:07:26 AM | show profile What this usually refers to is what is also sometimes called a 'lift out' where a whole team will leave and go to a direct competitor...very common in the financial industry. If you and this person left at the same time, then there could be an issue. But, if she leaves on her own and joins your company it's most likely fine. I would just take precautions not to show any involvement, don't refer her in for example, or email her a job description. As long as she is a co-worker and not someone who will report to you, you should have no issue. If she were someone who would report in to you, that could be sticky, because you signed the non-compete which is legally binding and could be enforced...and even if you 'won' in court, you would still incur serious legal expenses. But, as long as she's not a direct report, and you stay out of the process you shouldn't have an issue. Good luck, Pam |
| writesonwater | Posted – 5/17/2008 9:55:02 AM | show profile Count on foodlit for good HR advice! |
