Wouldn't Leave If You Paid Me

Need a new production manager and have your eye on the guy who’s running production for a nearby home improvement company? Thinking about sounding out that fantastic crew leader from your competitor?

You’re not alone in temptation. “In this tough hiring market, poaching employees from the competition often seems inevitable,” says Elaine Pofeldt at Inc. She goes on to offer tips for luring the competition’s crackerjack employees.

Among them: look for staff shake-ups or the departure of someone in management—others will follow—and find out whether or not the object of your desire (that production manager) is subject to legal covenants, such as a noncompete. The whole point of snatching away someone else’s employee, after all, is to find someone who can join your organization now.

What Constitutes Poaching

Many home improvement companies are chronically in hiring mode, and who knows the job you need filled better than someone doing it somewhere else? But, as Danny Kellman at HR Exchange Network notes, there is a thin line between aggressive hiring and poaching. “Poaching is when you are adamant about hiring an employee at a competitor who has not expressly shown an interest in joining your organization," Kellman writes. "Encouraging employees to leave their current job and defect to your company may help you get good talent, but it may also prove to be disadvantageous in the long term.”

A few years ago poaching had become so much the norm that the four big tech companies—Apple, Google, Intel, and Adobe—compiled a no-poaching agreement, complete with “no-poach” lists of employees. (The companies later settled a class action lawsuit filed by former employees, arguing that the "no-poach" agreements limited their ability to rise in the industry.)

Not everyone disparages poaching. Some even argue that it’s an unfair term, since it implies that human beings are animals, owned by employers and hunted or herded, rather than individuals who can make their own choices. A blogger on recruiterbox.com calls it “a loaded term that can lead to emotionally charged thoughts and feelings … What you’re actually doing is prospecting passive candidates from logical hiring sources, and there is really no reason for anyone to get upset by this common hiring practice.”

Beyond that rationale, there’s the reality of the job market. According to a 2015 U.S. Talent Shortage Survey, 32 percent of all employers are having difficulty filling jobs due to a lack of available applicants. That’s why one blogger argues that since we're in the middle of a talent shortage, “smart recruiters know that they have to go out and proactively source the candidates they want to hire. Oftentimes this means poaching candidates that are already employed … If you aren’t poaching employees from your competitors, someone else is.”

Ethics of Poaching

Of course, it’s the recruiters—paid to find new hires—who make these arguments. The arguments are buttressed by at least one academic: Vanderbilt professor Tim Gardner, who published a paper in which he argues that poaching is “a good thing for the employee, the consumer, and even the company the employee is leaving behind.” In an interview with CBS News, Gardner argues that when looking at the ethical aspect of poaching, people focus on the actions of the hiring firm. 

“Is it acceptable for an outside firm to identify, solicit, and hire someone who’s not looking for a job?" Gardner says. "In the paper, we argue that this is nearly always ethical as long as there’s no deception, hiring only to obtain trade secrets, or violation of standing employee contracts. There’s nothing inappropriate about contacting employed people and sharing better opportunities.”

Here’s the other side of it: If you’re a roofing, siding, and window company owner who’s invested time and money in training someone to install windows or siding, or to manage a half dozen crews, or to juggle the multiple software products in your office, you’re not going to be thrilled when your competitor starts chasing the talent you’ve assembled.

The truth is that while “aggressive recruiting” is perfectly legal (provided you comply with existing covenants), many consider it unethical. If it feels unscrupulous, on some level it is. You may find yourself not so welcome at National Association of the Remodeling Industry meetings or cold-shouldered at home shows. You might also set off a hiring war with competitors, who’ll now consider it open season on your talent, or even face lawsuits for violating that noncompete agreement your new star employee forgot he signed.

Make Your Business Poach-Proof

So how do you keep it from happening at your company? The neat, legal solution is to have key employees—or all of them—sign noncompete, nondisclosure, and/or nonsolicitation agreements. These are legal documents in which they commit to not leave for a direct competitor, disclose your company’s secrets to outsiders, or solicit others in your organization to leave (either while they’re there or after they've left).

Though these types of agreements may seem a logical and necessary method of fending off poachers, there are many who see them as the wrong route to take. There’s an element of intimidation that won’t do much for morale.

Additionally, you can get sued if employees want to challenge the fairness of those documents. “All noncompetes do is prevent people from jumping jobs in a way that keeps wages down,” California attorney Beth Robinson argues. “In fact, I think this is all that limitations like noncompetes or ‘agreements’ regarding poaching are really good for. People are afraid to move because they don’t want to get sued.”

Culture: Key To Retention

Others argue that the way to “poach-proof” your business is to create a group of people who like their jobs, their employer, their coworkers—and who therefore don’t want to leave. Writing for Fast Company, Vidyard video marketing platform co-founder Michael Litt describes how he fended off rampant poaching of his employees by recruiters who were essentially using his business to find and vet recruits for them.

First off, Litt suggests recruiting internally (that is, by referral). “On one level," he writes, “this is almost like a form of insurance. If your best friend is working with you, you may think twice about leaving for a competitor and leaving your buddy in the lurch. Deeper still, having a culture of camaraderie—consisting of people who genuinely like their coworkers as people—translates to them also liking their jobs that much more.”

Litt also recommends sitting down periodically with employees to discuss career goals. Julie Bawden Davis mentions discussing career goals as well in her list of seven steps a manager can take to keep employees from being poached. Others include giving workers responsibility, offering flexible hours, focusing on work-life balance, and (where appropriate) enabling remote work via technology. 

Avoiding poaching is ideal, but it may still happen. "If you do lose that production manager to a poaching competitor, treat the event as a learning experience,” Bawden Davis writes. “Determine what the other company offered in money, benefits, and perks, and ask the departing employee why those things are preferable to what you offer. They may enable you to take proactive measures to reduce the likelihood of a reoccurrence.”