“With a ‘no-poach’ agreement, can I hire a fired employee?”

Question: Hi, Al: A year ago, I was let go from my job, after six years working for my employer. As part of my severance agreement, I had to agree not to “poach” employees from my former employer for two years. I am now in my own business, but I am not a competitor of my former employer.

One of their present employees, who is a friend of mine, is getting ready to leave them, and has told me he would like to work for me. He wants to give them 30 days notice of leaving, just to do the “right thing.”

If he resigns and gives my former employer 30 days of notice, but my former employer decides, no, he should leave immediately, am I free to hire him?

         Bellmore, New York

Answer: Dear Sam: 

“It’s all in the details,” in two important respects: (1) the wording of your “no poach” agreement, and (2) who contacted who, between you and your friend.

a. Some “no poach” agreements use “active” verbs, such as “solicit,” “lure” or “entice” as part of their wording. If your “no poach” says that you cannot “solicit,” “lure,” “entice,” or “interfere” with the employer’s employee relations, then your “actively” seeking out or contacting your friend would violate that. On the other hand, if you were “passive,” and the employee reached out and contacted you, the absence of “actions” on your part would make you not in violation of  your “no poach.” Such words as “solicit,” “lure,” “entice,” or “interfere,” all require that you take “action” to approach their employees. They do not prohibit your being approached by their employees, current or former, and then your acting “passively” to hire them.

As you might imagine, who approached who might be difficult to determine, and even more difficult to prove, if a dispute arose. That said, “active” verbs would be rather good for you, as it is your former employer who chose the words, and it would be your former employer who must prove its case if it seeks to sue you.
b. Some “no poach” agreements instead use the more all-inclusive word, “hire.” If this is the wording of your “no poach,” then it does not matter who approached who, and whether your actions were “active” or “passive.” In either case, you cannot hire your friend for the length of your “no poach” period.

c. Figuring out exactly who can, or cannot, be “poached” is also quite important. Different “no poach” agreements can say very different things as to who can, or cannot, be poached. Here are some examples: (1) company employees at the time you left the company; (2) company employees who were employed by the company during the time you were employed by the company; (3) company employees who were employed by the company for a period of 90 days before you employed them; (4) company employees who left the company voluntarily within six months of your departure. These are just a few examples of the many possible descriptions of those you cannot poach. Each “subset” of people is very different from the other. You must review the words of your “no poach group” very carefully.  

d. As a general rule, when a person resigns, that person is deemed to have ended the employment relation. It is common that people ask, as you did, “If someone resigns, and then is told to leave immediately, who ended the relation?” The answer is: the resigning employee. If an employer said, “Thanks for the offer of notice, but you should leave now,” the law generally views the employee as the one who ended the relation, and the employer as the party who merely decided the timing of that end.

Sam, these are the “words, facts and factors” an attorney would consider in counseling you regarding how to proceed. Hopefully, with these in mind, and careful consideration, you can make an informed judgment for yourself, which is the fundamental purpose of our blog.

Hope this helps. If yes, please let your friends and Facebook friends know of our site.

           My best to you,
           Al Sklover 

P.S.: Don’t forget: we offer Model Letters, Memos, Checklists and Form Agreements for almost every workplace issue, concern and problem that requires your smart navigating and negotiating. They show you “What to Say, How to Say It.™” Just [click here.] Delivered by Email – Instantly!  


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