In principle, you are free to solicit your competitor’s employees to join your company. However, this practice can be considered as poaching if it is carried out unfairly, i.e. if you use unfair means to convince your competitor’s employees to leave their company.
You can therefore call on your competitor’s employees, but it’s important to respect the rules of fair competition.
When am I guilty of poaching?
Poaching is an unfair competition practice that consists of :
- try to recruit employees from a competing company,
- with the effect of disorganizing the company.
– The existence of an active approach initiated by the new employer
With regard to the first condition, case law insists on several criteria. Firstly, the company claiming to be the victim of poaching must provide evidence of positive acts of canvassing of its employees by the new employer.
Secondly, there is no such thing as “poaching” an employee whose contract has been terminated by the original employer.
Nor can we speak of poaching if the almost concomitant departure of several employees is the result of the deteriorated social climate prevailing at the original employer.
Finally, the theory of poaching is also rejected if the hirings were the result either of classified advertisements in the local press, or of the initiative of employees who had spontaneously approached the new employer.
– The existence of a disorganizing effect for the latter.
Disorganization occurs when a company is disrupted to such an extent that it is no longer able to operate normally in the market and meet its obligations to customers.
Disorganization also implies that the original employer cannot easily compensate for the departures that affect him, and that he has difficulty recruiting replacements.
Can I call on my former colleagues?
If your competitor is your former employer, the rules on poaching apply, but there are a few extra precautions to take.
You can hire your former colleagues at your new company, provided this does not constitute a breach of your previous employment contract. Two clauses are particularly relevant.
If you have signed a non-competition clause with your previous employer, you must respect the terms of this clause, which may prohibit you from working for a competing company for a specified period. In this case, you must wait until the end of this period before joining a competing company, unless you obtain your former employer’s agreement.
In addition, your contract may contain a non-solicitation clause. A non-solicitation clause prohibits an employee from soliciting his or her former employer’s customers or suppliers for a specified period after leaving the company. This clause is designed to protect the company’s interests by preventing an employee from appropriating the company’s clientele or suppliers.
The non-solicitation clause can also apply to employees who leave the company to set up their own business, to prevent them from soliciting their former company’s customers or suppliers for the benefit of their new company.
How can you be sure you’re not taking a risk?
If you’re planning to hire and are concerned about approaching the legal limits of fair competition, don’t hesitate to contact us. We can advise you on your recruitment process and help you secure the development of your team.
