Taking employees from former employer [closed]

manpreet Best Answer 2 years ago

Edit:
This is not a question seeking "legal" advice. I don't have a single mention of courts, law, suing or lawyers in my question, besides this edit, which is in response to the question being closed down. This question is about corporate contract clauses and if companies go far to enforce those clauses. I have read and re-read the linked post about "what's a legal question" and my question falls right within the "OK" category.

Here is a situation a friend of mine, let's say Todd (who is remaining anonymous for obvious reasons) is in.

Todd was working at Company A. Todd signed a standard contract with all the "non-compete" and "no soliciting of clients, personnel, etc" clauses (never fully reading them).

Todd is now working at Company B. When a new position opened up, he invited a friend, let's say Joe (thanks user16230) from Company A (fully employed by Company A at the time) to come join Company B. That friend now accepted a position at Company B, and upon leaving Company A told his manager that it was Todd who contacted and invited him to leave for Company B (yes... someone needs a smack on the back of his head). The concern now is that Company A can go after Todd for poaching personnel.

Is there any real reason, in Canada, for concern here? We've been trying to do some online research, but all of it covers "non-solicitation" in regards to poaching clients, not personnel. We can't even find the correct terms to use for researching this.

We've read that "non-compete" clauses are void in virtually all cases. But what about "non-solicit of personnel"?

Edit: Some more clarifications following questions in comments:

• Both companies are small businesses.
• Todd is not a hiring manager in any capacity
• Todd sent job description to Joe, and Joe forwarded resume to Todd, but that was done through web email providers, not company email addresses.

manpreet 2 years ago

I cant speak much to Canada but I will speak to the US and I would think its safe to say the rules are somewhat similar as is the wording in the contracts.

Many companies here in the US have similar contracts (I myself am under one). The real problem is that these matter are always very very grey and tend to have little ground with which to base a case on. Lets say todd was out to dinner with joe (the guy that moved companies) and simply said in conversation "We have some positions opening up very similar to what you do". Lets say, joe on his own accord then goes to Company B's website, finds the job listing, applies, gets the job, and quits Company A the next day. Did Todd poach him, no, Todd made him aware of a situation and he took advantage of it.

The other issue here is the burden of proof, at least here in the US you would have to prove that Todd poached him. For that you may need emails, texts or some kind of written prof that Todd made an effort to pull Joe from A to B. This can be tough especially if a good deal of the recruiting happened through word of mouth.

The biggest thing here is that, at least here in the US, this happens all the time and its often hard for small companies to sue giants for doing it. Lets say you left a small software startup to go work for Apple, you then called one of your buddies that was still at the startup and brought him to Apple. The fact of the matter is the startup is not going to sink valuable money into suing Apple, contract breach or not, unless they know its a sure win. On the same note that also says a lot about Company A as they clearly were not offering the opportunity that Todd and Joe were looking for. I would think your friend has little to worry about.