As talent professionals, you've been charged with the strategic responsibility of finding and hiring the best talent possible, whatever it takes.

And that last bit about whatever it takes can sometimes make all the difference.

So where should the line should be drawn, ethically, when it comes to finding top talent? What boundaries should you have in place when it comes to poaching, for example?

Do you have a professional responsibility to peers at other companies not to try to hire away their top talent? If so, when, and under what circumstances?

Any external corporate recruiter worth her salt will want to know the competitors of the client company retaining her services. "Who are your competitors?" she'll always ask. It's then logical to source from those companies first to find the experience level her client has requested.

This is a natural for external recruiters, VJESI included, and most of us have had a track record of success when reaching out to this pool of "passive" talent candidates-working people who may not be actively looking for a job.

But do the same rules apply to internal corporate recruiters? Is it a neutral infraction when an employer tries to poach away talent from one of its competitors-even when the competitor is located in the same city or town, where talent professionals may meet or know each other from area SHRM meetings or other networking events?

This can get tricky, right?

We're aware of companies who pressure internal recruiters to tap this pool of passive talent candidates, feeling these working folks would be more receptive to hearing from another employer rather than external recruiter when it comes to interest in their profile.

In our experience, it makes little difference to the job-seeker, who tends to be interested in the merits of the offer and hiring company more than anything else. But I'd love to hear what your experience has been like in this area.

Legal Issues In Poaching Employees
Maybe you've wondered about the legal implications of poaching or this preference for passive talent candidates over those approaching your company on their own?

"Poaching has a huge negative connotation, but the reality is that there are only so many places you can find great employees. Either you are preventing great employees from leaving or you will find them working for a competitor. Poaching, for the most part, comes with the territory of healthy competition, but some employers can push the ethical or legal line in the effort to find talent," says Nasir Pasha, Esq.

Restrictions to poaching generally focus on agreements-valid agreements-between the former employer and employee and the new employer's involvement in the subject matter of that agreement, Pasha explains, and two defensive tools used by employers to try to prevent poaching include enforceable non-competes and restrictions on the divulging of trade secrets.

"Most employers are familiar with non-competition agreements and the restrictions they may impose on employees; however, less familiar is the prospect of being sued for hiring an individual who is bound by a non-compete," says Pasha. (1)

Employer Versus Job-Seeker Obligations
Beyond the legal implications, recruiters need to balance obligations to their employer with an obligation to job-seekers, according to Human Workplace CEO Liz Ryan:

"You're in business. You can reach out to anyone you want. When you find a LinkedIn profile that interests you because it seems that the owner of the profile might be someone who could help your business, you can contact them. Presumably, you're not going to call them at work, through the switchboard. You're going to use one of your InMail credits on LinkedIn to reach the person or reach them through a mutual contact."

"The fact that the "passive" job candidate is employed is no reason not to talk to them if you want to. It's not unethical to start a conversation with anyone you like. After all, the person you contact might be unhappy at work and you might be doing them a favor. They might have decided to leave their employer soon, whether you reach out to them or not! You don't have any greater obligation to their employer than you have to the job-seeker him- or herself," Ryan wrote recently in Forbes. (2)

Downsides of Poaching
Strategic HR professional Danny Kellman points to the downsides of poaching, where you're adamant about hiring an employee from a competitor who hasn't expressly shown an interest in joining your organization. There's a thin line between aggressive hiring and poaching, she says, and in the end, it may not be worth the effort:

"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. The poached employee may gain a poor reputation as someone who may quit his or her current position easily and is vulnerable to poaching. And if you're the one who did the poaching, you risk losing the respect of your competitors."

This doesn't mean you shouldn't look for good candidates at other organizations; you just need to be ethical: "Your organization should set some boundaries, and use the same set of standard practices across the board. There are organizations who feel its wrong to 'steal' an employee from another organization, but have no qualms hiring a recruiting agency to do so. What's acceptable and what's not needs to be decided by the organization beforehand as part of a comprehensive recruitment policy," says Kellman.

How To Poach Politely
While others advocate a mannerly approach to poaching: "You can always ask permission from your colleague or peer," says John Boitnott, writing in Entrepreneur magazine.

"One of the most respectful things you can do is to simply ask your colleague before discussing the opportunity with the employee. This is especially true if the colleague has become a personal friend or business partner."

"Mention how the opportunity will be better for the employee's career and make it clear that if the colleague doesn't approve, you won't pursue the employee. Before asking for permission, though, test the waters to see if the colleague is closely tied to that employee. Through that discussion, you may even find the employee isn't the hard worker you thought," Boitnott adds.

Cultural Issues In Poaching Employees
Finally, there are important ethical and cultural considerations for employees working at the hiring organization, Ryan points out:

"Do you want your current employees job-hunting while they're working for you, or responding to inquiries from other companies? If you are comfortable with that, then, by all means, reach out to any working person you like."

"Many HR Directors would prefer to build the kind of workplace in which people aren't job-hunting, because they like their jobs. How can you justify pursuing people who are employed at other companies unless you also encourage your own employees to look outside your office walls for employment, and to talk to the other employers in town on a regular basis?"

Ryan concludes: "It's unethical to frown on your employees' job-hunting efforts while you're trying to pull people out of their current jobs. If you're going to dive into "Passive Candidate Recruiting," make sure that the managers on your team understand that no current employee will be let go or disciplined in any way for job-hunting while they're on your payroll. Fair is fair!" (5)

Over To You
Do you agree? Would love to get your thoughts on this!

What has your experience been like in this area? When, if ever, is it unethical to poach people from other companies? Should your recruiting efforts be focused only on candidates who approach your company? What does poaching say about your culture and the treatment of employees at your organization who may be job-hunting?

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Victoria James
Victoria James Executive Search, Inc.
Email: [email protected]
Call: 203-750-8838

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