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Protecting your company from the legal dangers of poaching

There are many grey areas when it comes to employees moving from one company to another in British Columbia. While you may be concerned about another company poaching staff who are valuable to your business, it would be naive to expect a former employee to forget everything he or she learned while working for you. While you cannot prevent such a person from using the experience gained as your employee, you may be wise to ensure your employees sign bulletproof confidentiality, non-competition and non-solicitation agreements to protect information.

Employee poaching is rife in the information and technology industry, and the fact that it is such a competitive arena makes it tough to prevent the leaking of confidential information. Your most valuable employees will likely be the ones who will be in the sights of your opposition, and proving poaching unlawful might be challenging.

When is poaching unlawful?

If the poacher intends to access confidential information of your business, the courts might intervene; however, it will weigh proprietary interest protection against the reluctance to limit competition. The following actions may be unlawful:

  • Restrictive covenant agreement violation: If your employees are solicited by a former employee who left your service to join a competitor or to start a competing business, and this individual has a restrictive covenant agreement that prohibits employee poaching, it may be unlawful.
  • Fiduciary obligations: If a senior staff member of your company is poached, the court will look at that person's fiduciary obligations toward you. If you had placed the utmost confidence and trust in him or her to protect and manage finances or property, the court may find that a relationship existed by which that employee had an obligation to avoid actions such as poaching that could cause harm to your company.
  • Confidential information: Trade secrets, intellectual property, client lists and other confidential information may form the integral value of your company in the marketplace, and it would be only natural for you to want to protect that. If you can show that another party solicited an employee to gain access to confidential information, the court might intervene.

What if you face poaching accusations?

Protecting yourself from accusations of employee poaching might be wise. There are resources readily available to you who can provide the necessary support and guidance needed. The first step will most likely be to scrutinize a potential employee's contract with his or her current or previous employer. This process will often include analyzing the terms of the contract to establish whether restrictive covenants exist.

Regardless of the circumstances you face, the most appropriate step might be to utilize the services of a lawyer who has experience in all aspects of employment law. Your lawyer can review existing employment contracts, and he or she can advise and assist with the drafting of new contracts that will protect you in the event of any arising claims.

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