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Is It Legal to Poach a Competitor's Employees?

By Stephanie Rabiner, Esq. | Last updated on

There have been a lot of news lately of top executives in Silicon Valley jumping ship to work with company rivals.

The fact is that competition for talent is fierce in most high-stakes industries with limited employee pools, causing companies to go above and beyond normal recruiting methods. But the question remains:

Is employee poaching actually legal?

In the grand scheme of things, employee poaching is legal. But given a specific set of facts, it may actually cost you a large sum of money.

Last year, the Department of Justice investigated a report that Apple, Intel, Google, Pixar, Intuit and Adobe had instituted an anti-poaching agreement amongst themselves in which they agreed to refrain from cold-calling and attempting to recruit one another's employees.

The Department determined that the anti-poaching agreement restricted competition for workers within the industry, and was therefore anti-competitive and illegal under federal antitrust laws.

If poaching were per se illegal, the DOJ would have let the contract stand.

However, the fact still remains that employee poaching is only legal when done properly.

Under state unfair competition laws or specific statutes, employee poaching may actually amount to tortious interference with business (contractual) relations. This occurs when a company intentionally causes another to breach his employment contract.

State law varies, but you may be on the hook for tortious interference if your employee poaching tactics include wrongful allegations, a blatant disregard for non-compete agreements, or acting in an illegal manner.

So while there are no anti-poaching laws, do yourself a favor and be careful.

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