Is a non-poaching clause enforceable if the employee resigns first?
<p>I worked for a company called Widgets Inc. There, I hired Bob, who turned out to be a great employee. Since I have left, Bob has become unhappy at Widgets Inc and is going to resign, he asked me if I would offer him a job at my new company and, of course, I would love to!</p>
<p>There is a clause in my contract with Widgets Inc saying I must not employ or engage with any employee of Widgets Inc for 12 months following my employment there, and it has been less than 12 months since I left.</p>
<p>My new company and Widgets Inc do not compete in the products/services they offer.</p>
<p>Would I be breaking my contract by offering Bob a job after he has resigned, and if so, would this be realistically enforceable? Would this change if I offered him the job before he resigned?</p>

<p>This will depend on several things. The first is the exact wording of your contract. Does it say</p>
<blockquote>
<p>Joe must not employ or engage with any employee of Widgets Inc for 12 months following the end of Joe's employment at Widgets Inc.</p>
</blockquote>
<p>or something like that? If so, does it define &quot;engage with&quot;? Assuming that those two questions are answered &quot;yes&quot; and &quot;no&quot; respectively, the contract purports to prevent you &quot;engaging with&quot; any employee of WI until the 12 months are up. What will constitute &quot;engaging&quot;. Simply passing the time of day probably will not making an offer of employment provably will.</p>
<p>A possible reply might be something like</p>
<blockquote>
<p>I cannot discuss your future employment with you in any way until after {date}.</p>
</blockquote>
<p>I suspect that such a message would ot constitute &quot;engaging&quot;.</p>
<p>A second issue is whether this contract term, whatever it purports to do, is enforceable.  Different US states (and different countries outside the US) have different laws on such terms. It my be that in the state whee you are, this term is prohibited or limited by law. Or it may be that it is not. The law of the state where Widgets Inc is located may also be relevant.</p>
<p>But you might be wise to discuss this matter with a lawyer with experience in employment law. Such a lawyer could look at the exact wording of your contract, and review the relevant statures and case law.</p>

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