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Jeff on Call: Soliciting Employees and the Law

Oct 15, 2009

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Q: Can you let me know what the legal ramifications are of a company’s request to stop soliciting their employees? Do they have legal recourse if I continue to solicit them? Does it matter if the solicitation is in the form of an email or phone call? And does it matter if an email solicitation is in the form of a request for referral versus asking them if they would be interested in the position?

A: Great questions that I’m asked dozens of times a month!

There are no ramifications with regard to the source employer’s request itself. However, you shouldn’t ignore it.

If the request is from some human resourcer or other non-lawyer, reply in the same manner as you were notified (mailed letter, faxed letter, email, or phone call). If there’s a letter from a lawyer, have your lawyer reply with a letter. Using the same mode of transmission is appropriate without appearing defensive or aggressive.

If the solicitation is in the form of an email or any other writing at a candidate’s workplace, you’re just providing evidence to a potential adversary. So phone solicitation is best. Immediately ask for an after-hours number, cell number, and personal email address.

Asking for referrals is better than a direct solicitation for obvious reasons.

Now on to the law:

The source must be able to prove you’re guilty of inducing breach of contract and interference with contractual relations. If you are found liable for one or both of these intentional torts (civil wrongs), punitive and exemplary damages (to punish and make an example of you) can be awarded in an unlimited amount.

There are only two issues:

1. Was there an enforceable contract with the candidate?

Always. Even an at-will employment of one day is a contract. The expectancy of continued employment by the parties is sufficient.

2. Was the conduct malicious?

If it helps, the courts have defined “malice” as “hatred” or “ill will.” Others call it “over the top.” What does that mean? It’s very subjective, but no reported case has ever defined it as “cold-calling to determine interest in a job change.”

Inducing breach of contract and interference with contractual relations claims are often coupled with allegations of unfair competition and conspiracy (with the client). These also invoke unlimited punitive and exemplary damages.

So that’s the story — recruit away. Then if you’re sued, we’ll counterclaim for an outplacement fee. Since you can’t “steal” someone who doesn’t want to be stolen, you’re helping the source remove its morale problems! Nothing like getting two fees for one placement.

Thanks for asking!

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To participate in future Q&As, email jeff@placementlaw.com. Keep in mind you should always consult with your own attorney. Nothing contained herein should be construed as legal advice. It is for your information only.

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