Employee Poaching

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Employee "poaching" conjures up images of peasants hunting prized pheasants on a feudal lord's game preserves as a form of outright "theft". However, attempting to entice another organization's employees is neither so clearly legal or illegal, smart or dumb, moral or immoral. It all depends on a number of subtle considerations, e.g., whether there is intent to damage a competitor, on what the local laws allow or forbid, or whether one's suppliers or distributors are being raided and therefore feel betrayed.

Protection from poaching is likewise a muddied matter, with "non-poaching" agreements between competitors being possible, but not in all circumstances, and "non-compete" agreements with employees being quite problematic.

In seeking protection from or opportunities for poaching, both sides should first acquaint themselves with the law, if not their consciences with respect to the interests of all parties, including the targeted employee.

When it is difficult to find a qualified applicant, there is often temptation to raid similar companies, or any organization that has the talent sought, looking for individuals who may be looking to make a switch in a practice known as employee poaching. While the technique is not automatically illegal, it is viewed unfavorably in most industries and can be legally problematic, depending on the circumstances.

When looking to recruit an employee from a competitor or even one currently employed in a non-competing organization, it is important to ensure that your offer makes the often-stressful concept of switching jobs worth it to the candidate.

At the same time, and depending on your ethics, you may undertake an informal "harm analysis", to determine whether the benefit to your organization is greater than the harm you will inflict on the company that is raided or whether the harm is, in all probability, going to be temporary.

If, as is likely to be the case, you are not in a position to know or even guesstimate, you may discuss this with the candidate-a move that may win you the respect of the candidate, while leaving yours and the candidate's self-respect intact.

Of course should be offering a salary and/or benefits package that can well compete with what the targeted candidate is currently receiving, unless the job is attractive enough in other respects to seal the deal. It can be very useful to offer perks and incentives for switching, when the compensation package is most critical. In particular, mention and offer anything that makes your company stand out from the rest.

From a legal standpoint, and to prevent poaching of critically important staff, an organization can consider creating binding what are called "non-poaching agreements" with competitors or any organization with an incentive to headhunt those employees. However, the law governing this can be hideously complex-in terms of the fine distinctions, boundaries and fair practice laws governing various poaching-prevention scenarios. Depending on the terms of the agreement and other complex relationships between the competing companies, there is the risk of being charged with "naked restraint of trade" and penalized for that if found guilty.

Agreements with employees, called "non-compete agreements" are also likely to be legally or tactically problematic, e.g, the problem of illegality in various jurisdictions and resistance to accepting a job offer that requires accepting one.

While employee poaching can be fruitful if you are on the recruiting end, this practice can also make it difficult to keep employees in your business. When a worker is offered a position elsewhere you may need to compete by matching or exceeding what (s)he is being offered, modify the current job description or conditions, or risk losing out to the poacher.

Coping with poaching can cause an increase in payroll if the organization is willing to compete or a decrease in productivity if forced to hire new employees who may be untrained or less qualified than the person being replaced. In the event that employees are being lost due to employee poaching, it may be time for a review what the organization has to offer in comparison to competing bidders.
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