Poaching skilled workers: what is allowed?

Content

• Poaching skilled workers: part of free competition
• Poaching skilled workers: what to look out for
• Post-contractual non-competition clause
• Longer notice periods
• Flexible remuneration models
• Consequences of improper solicitation
• Signs that a specialist has switched to the competition

Basically, you can two types differentiate how skilled workers can get from a company to the competition: Either that occurs competing companies approach the employee and make him an offer, or the Specialist himself toying with the idea of ​​changing employers, however, would like to stay within the same industry and maybe even switch to the direct opponent. But is that easily possible?? When is it allowed to poach skilled workers and what employees and employers have to pay attention to ...

Poaching skilled workers: part of free competition

Basically is there is nothing wrong with it for nowif one company wants to poach a specialist from another company. It is irrelevant whether the company approaches the employee itself or the referral takes place via a headhunter. The Federal Court of Justice has already dealt with this issue and has laid down some regulations. So that is Poaching an employee is not permitted if the following limits are exceeded.

• The Competitor's performance should be weakened by the poaching.
• Trade secrets should be brought into the company by the employee.
• Together with the specialist Poached customers become.

Accordingly, poaching is permissible if it has the purpose of strengthening one's own company. But it also depends on the approach taken by the recruiting company. Because anyone who uses the wrong methods here quickly slips from permissible poaching into unfair competition. Are forbidden in this case:

• False or misleading statements about the new employerto influence the decision.
• Negative statements about the old employerto damage its reputation and convince the employee.
• Inciting breach of contract.

Poaching skilled workers: what to look out for

Even if the recruiting companies adhere to the regulations and basically stay in the legal area, this does not mean that other companies cannot do anything against the recruiting of their skilled workers. First of all: The best way to bind an employee to your own company is definitely a good relationship in the team and a high level of satisfaction in the workforce. But this is not always the case and so employers try to defend against enticing competitors. This is achieved through contractual arrangements. In order to find out whether a move to the competition is an option for you, it is advisable to read your employment contract carefully. We provide you the most common means of how employers want to protect their skilled workers from enticing competitors.

1. Post-contractual non-competition clause

   In order not to lose specialist knowledge or internal information to competitors, for example, a so-called post-contractual non-competition clause is stipulated in some employment contracts. This prohibits an employee from to start with a competitor after termination of the contract. Here, too, there are strict regulations.
   So the employer must for the duration of the non-compete obligation a Parental leave allowance Pay to the employee that amounts to at least half of the last contractual services. Since such a ban can also limit the professional career, it is permissible for a maximum of two years.
   Will the post-contractual non-competition clause invalid by violating a regulation, the employee is free to waive the compensation and instead start with a competing company.

2. Longer notice periods

   A poaching is usually intended relatively short term respectively. In order to protect the company from the consequences, it can be interesting for employers to agree longer notice periods.
   This is supposed to Competitors have taken the incentive become. This can be an effective defense against poaching, especially in the case of important positions within the company, for example in the management level or also in the case of technical managers with a great deal of know-how.

   
   

3. Flexible remuneration models

   Of course, the payment can also be a motivation to stay with the current company. In order to keep this incentive as high as possible, in the employment contract, for example variable components of the remuneration be held.
   In a specific case, this can mean that a possible Christmas bonus will only be paid out if the employment relationship still exists at a later point in time.

Consequences of improper solicitation

A common cause for attempting to poach employees from a competitor is the one that is often described Skilled workers shortage. If a capable employee is then discovered with a direct competitor, the temptation is of course great to bring him into your own ranks. That this not always by lawful means happened, has already been described. But as with any other law, there are some who do not adhere to it. There are those Consequences of improper solicitation not to be underestimated for the company concerned.

• Injunction. An injunction can prevent current and future attempts at enticement. This requires a well-founded suspicion that an employee was inadmissibly poached or is to be poached.
• Employment ban. A company can demand that an inadmissibly poached employee is not employed by the new employer until there is no longer any competitive advantage. The legal notice period can serve as a guideline for the duration of the ban.
• Claims for damages. If a company has suffered damage as a result of the poaching, it can claim this from the competing company. It must be possible to prove the damage that has occurred.

Signs that a specialist has switched to the competition

Occasionally, attempts are made to cover up the poaching of a skilled worker, for example by being hired by a subsidiary, even though the work is actually carried out by a direct competitor. It should be clear to everyone that this is illegal. In addition, there are some signs that can be an indication that a specialist has defected to a competing company.

1. Secrecy. If a long-standing employee quits without giving any apparent reasons, this can be the first sign. If the employee gets his hands wet with sweat and begins to stammer an incomprehensible answer when you ask about the future employer, the suspicion increases even further.
2. Development. An IT expert with huge know-how leaves the company and a short time later a competitor is making rapid developments in this area? This can of course be a coincidence, but there is also the possibility that the ex-employee contributed his knowledge there.
3. Loss of customers. If you notice after an employee leaves that many customers suddenly switch to a direct competitor, this is a sign that the former colleague is also working there. Through his contacts, he immediately took the customers with him.