How to poaching an employee, what are the rules to respect?

Comment débaucher un salarié, quelles sont les règles à respecter ?

Your company is growing and you need to recruit? The only downside is that you are having trouble finding the right person. So you look at employees of competing companies. Rest assured, poaching an employee from a competitor is perfectly legal in France. It is even a common practice, regardless of the size of the company, to recruit the best candidates, especially in highly competitive markets with few experts. However, it is essential to respect precise rules and to avoid unfair competition, which can be very costly. 

Discover our tips for hiring an employee the right way!

Our tips for poaching an employee

Make contact before making a concrete proposal

You can either poach an employee yourself or hire a recruitment firm (or even a headhunter). If you opt for the first solution, we advise you to study the type of profile you wish to hire and those you find interesting. This will allow you to have good arguments and an angle of approach during the first contact.

Once the people are selected, you can start the conversation and demonstrate your interest in their expertise, but without making a concrete proposal. Take the time to get to know your interviewer. After all, there is more to an employee than their degrees, skills and experience.

💡 Our advice: don’t hesitate to go through social networks like LinkedIn to poach an employee. You’ll find some nuggets there!

Follow a recruitment process

Even if your idea is to poach an employee, it is strongly advised to follow a real recruitment process. This means that you should publish a job advertisement and interview several candidates, even if you already have one person in mind. This way, in case of a complaint from the former employer, the courts will not see this as unfair competition.

The rules for poaching an employee

 Beware of specific clauses

Before hiring an employee from a competitor, it is advisable to check that he or she is not bound by a non-competition clause. The latter can prevent a person from working in a certain sector of activity or geographical area for a determined period of time after having resigned from his current company. This type of clause is common in the computer industry and in very competitive markets, for example.

The future employee must also have completed his or her notice period before starting to work for you. This information can be found in the employment contract. Don’t hesitate to ask the employee you wish to hire in writing to make sure that he or she is not subject to a clause or to know the length of the notice period.

You would like to poach a consultant who is doing or has done an assignment for your company? Be careful, in this case, we speak about obligation of loyalty. This means that a client company cannot recruit an employee who has been made available to it to carry out an assignment. Unless, of course, your client gives you his agreement.

Do not engage in unfair competition

To prevent any legal problems following this type of recruitment, you must also avoid any practices considered as unfair competition such as :

  • Offering an exceptionally high salary;
  • Hiring several employees of the same competitor at the same time;
  • Diverting the clientele of a company by hiring one of its employees;
  • Implicating the morality and practices of the company or its managers;
  • Divulging manufacturing secrets and know-how for the benefit of the new company.

The risks involved in poaching an employee

Before you start poaching an employee, it is important to know the risks. If a company realizes that you have recruited one of its talents, it can initiate proceedings in the commercial court and seek compensation for damages. If they can prove that you did not respect the non-competition clause or that there was unfair competition, you could be forced to break the contract with your new employee or pay damages.

Poaching can also be seen as a corruption offence. In this case, the penal sanctions are much more serious and can go up to 5 years of imprisonment and 75 000 € of fine, according to the article L.445-1 of the Penal Code.

As an employer, you must be extremely cautious in the case of a salary poaching.

As you can see, ideally, you should recruit someone who is free of any commitment. Don’t forget that the best way to tempt an employee from another company is to offer them challenges and career opportunities. He or she should see the hire as a fulfilling adventure. This is the best way to convince an individual to leave their position.

Are you in doubt? Don’t hesitate to consult a lawyer specializing in employment law before taking any steps to avoid these problems.