It's a jungle out there: a guide to employee poaching

The term ‘human capital’ may have a vaguely New Age sheen but in our increasingly techie world, those humans with highly specialized skill sets are hugely coveted by companies seeking to boost their fortunes.

It follows that hiring the best and brightest is a strategic fast-track to success. But what happens if the best and brightest work for the competition? Enticing employees to your firm is an obvious answer, but there are legal – not to mention tactical and ethical – considerations before any employee poaching should begin.

First and foremost, prospective employers need to know if a potential candidate has an existing employment agreement with his or her current employer. “That is absolutely critical information,” says Walter Stasyshyn, barrister-at-law specializing in corporate and commercial law at his private practice in Toronto.

Stasyshyn says “If an employee has a written contract, they need to know the terms of that contract, and so does the potential new employer. If there is no written contract, there is virtually nothing that can be done to prevent that employee from leaving to take a job elsewhere.

“The only caveat is if that employee has access to very sensitive corporate information which, in the hands of a competitor, might harm the business or be considered to interfere with commercial opportunity.”

As Stasyshyn explains, there are different kinds of poaching. “There is passive, indirect poaching – posting a job online, say, and a potential employee takes the initiative to get the job. Then there is active poaching where a company, often through a head-hunter, goes out to identify candidates they want and who are generally employed with another company.”

Once any employment agreement hurdles are overcome, prospective employers must also be clear on why they want a specific employee – merely to fill a vacancy with a superstar or as a means of leveraging insider goods.

“Courts are often reluctant to enforce employment contracts blocking employees from working within a geographic area or within an industry because it becomes restraint of trade,” Stasyshyn says. “Where the courts do pay attention is where an individual may have sensitive information.

“Is the purpose of the poaching an example of one company trying to undermine another? Or is it a company just trying to build its own business? There are issues of intent there that are fundamental because it’s such a sensitive area, especially at the management level and higher. If you are going to poach, you have got to be clear on intent.”

That’s especially true when employers are looking at prospective employees working in the same industry, which isn’t always the case. “Companies look for skill sets and those can be transferable between industries, as with project managers for instance,” Stasyshyn says, adding that oftentimes, senior execs with access to sensitive information “get a certain level of compensation based on the critical importance of them and their position to the company. Therefore, if they were to leave within a certain period of time, they must not compete. Those kinds of contracts are harder to crack.”

In poaching as in dating, good first impressions count, so would-be poachers should spend some time thinking about how to portray the job and the company in the most flattering light. According to an article posted on, crafting the right message is cited as key.

They suggest highlighting soft benefits such corporate culture alongside basic salary details while offering employee testimonials and sticking with a friendly and inviting (as opposed to aggressive) approach to head-hunting your next great executive director or social media mastermind.

One thing is certain, though: as competition for jobs continues apace – and super-specialized skill sets advance in lockstep with evolving technology – recruiters will be in business for the foreseeable future.

“At the end of the day, venture capitalists look at two things: what your company has in the way of patents and technology and what it has in the way of personnel,” Stasyshyn says. “Those are two fundamental things. If you have key personnel, it’s a lot easier to move forward.”


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