“Can I be sued for poaching an employee from my former employer?”

Question: Three months ago I took a new position in my industry. I have now been given the formal approval to assemble a team of my own. I know of a colleague who works for my former employer, who would be a most favourable addition to my team.

Might I be sued for poaching an employee from my former employer?

Greater London, UK

Answer: Dear Brijesh: I am not entirely familiar with English law on this subject, but arranged to have a colleague in London review my thoughts, which I am told are applicable in the UK, just as they are in the U.S. Here they are:

1. As a general rule, you are 100% free to solicit, “poach,” and hire former colleagues from your former employer. English employment law and U.S. employment law are in agreement on this point: While you are an employee, you owe a strict duty of loyalty to your present employer, but the moment you are no longer an employee, you no longer owe any duty of loyalty to your former employer.

Some duties do remain in effect, such as the duty to keep in confidence any confidential information you learned about your former employer, but there is no continuing duty not to solicit, not to “poach,” or not to hire.

2. However, if you agreed in a signed, written agreement not to solicit or hire former colleagues, then you could get sued for doing that. So, if you signed what we commonly call a “non-solicitation of employees” agreement, what some people call a “no-poach” agreement, then you could be sued if you violate its terms. Simply put, you can’t do what you have agreed not to do.

A bit of a “warning” is due here: Sometimes people forget what they signed, especially if you signed such an agreement many years ago, or if it was “buried and disguised” inside another agreement or other document you signed, such as (a) an agreement or award for stock or stock options, (b) a bonus agreement, or perhaps even (c) an agreement to abide by the provisions of an employee handbook.

I would suggest you think long and hard about whether you might have signed any such agreement. If you then cannot recall doing so, I would suggest that you proceed with your intentions to hire.

It may also be quite wise – for several reasons – to ask your former employer’s Human Resources department if you have signed any agreements imposing restrictions on your post-employment activities. By doing this, it would (a) show you have acted in good faith, (b) perhaps prevent your getting sued, and (c) also prevent your former colleague from resigning, and then being unable to take the job you are offering him or her.

If you are a former employee, not sure of what you signed, consider our Model Letter entitled Model Letter Asking – Carefully – “Have I Signed Any Post-Employment Restrictive Agreements?” It shows you “What to Say, and How to Say It.™ To obtain your copy, just [click here.] Delivered by Email to Your Printer.

3. You could also get sued for soliciting, “poaching,” or hiring a former colleague if you knew that your former colleague had a contractual obligation not to work for you for a period of time. Said a little differently, you could be sued for tempting, luring, or assisting another person to breach a contractual obligation he or she had agreed to honor.

As examples, (a) if you knew your former colleague had signed a contract to work for his employer for five years, you could be sued for trying to get him or her to leave before that, (b) if you knew that your former colleague had agreed to give at least six months’ notice of resignation, your could be sued for trying to get him or her to violate that contractual obligation by leaving earlier, and (c) you could be sued if you knew that your former colleague had signed an agreement not to work for a competitor, and your company is a competitor.

4. When soliciting someone to work for you, you could be sued if you asked that person to do improper things. So, you could get sued if, in soliciting your former colleague to work for you, you also asked him or her to (a) bring along information or documents, (b) try, while he is still employed by your former employer, to lure customers to leave your former employer, or (c) while he or she is still employed by your former employer, ask other colleagues to leave along with him and join your team. These would be attempts to get your former colleague to violate his duty of loyalty to his or her current employer, for which you could be sued.

Workplace-Related Document Confusing? Get Your Workplace Document Explained to You, with 30 Minutes to Ask Questions. [click here.]

5. Lastly, you could also be sued for using “confidential information” to lure a former colleague to leave his or her job and come to work for you. Here is the clearest example I can think of: “Hey, Carla, I know you make a yearly salary of $100,000, and that you received a bonus last year of $10,000, and that you have to pay one half of your health insurance costs. I can offer you better on salary, bonus and health insurance . . . what do you think?”

Of course, you cannot be expected to forget what is in your memory, but you can’t openly and brazenly use that confidential information in your solicitation, discussion, or negotiation of this person’s new job offer.

In free enterprise, you are free to be enterprising. But there are legal limits to freedom, and no one is free to (1) violate his or her own legal obligations or restrictions, (2) try to get others violate theirs, or (3) use illegal methods, such as using confidential information.

The same applies here: solicit, poach, or hire any person in the world, but if you do so, keep yourself on the “right side of what is right.” Actually pretty simple, no?

Brijesh, thanks for writing in. I hope this proves to be something of a helpful guide to building your new team!

My Best,
Al Sklover 

P.S.: If you would like to speak with me directly about this or other subjects, Mr. Sklover is available for 30-minute, 60-minute, or 120-minute telephone consultations, just [ click here. ] Evenings and weekends can be accommodated.

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