Hi Danny,

We have a former client, last placement was well over a year ago, and they played games and beat us down to a reduced fee on that one. My people are doing their jobs, and working on a search, and call into one of their employees.

I get an indignant call from HR, I explain the scenario, and we hang up. Here’s the twist. She calls back an hour later explaining that their people are bound by non-compete and non-solicitation contracts, and now that I have been informed, we can be sued for contractual interference. Seems like a baseless bully tactic, but wanted to see if you have ever encountered this one before.

I realize you are not an attorney and I’m not asking for legal advice, just if you have had similar experiences. I have the matter out to our attorney for his opinion as well. Thanks!

My Response:

Seriously?! Okay, this HR “professional” was having a really bad day. So let me get this straight. Their people have non-solicitation covenants in their employment contracts. (Kind of weird to begin with, I’ve never seen a non-solicitation covenant that doesn’t become actionable WHEN they leave the company. The point of these covenants is to stop someone from leaving and taking their colleagues with them. I doubt very much they have language that says they are breaking their employment agreement to discuss employment options WHILE still there.) So by this HR person’s logic, the following are violations and actionable:

EVER having logged on to an employment site

Being on LinkedIn and joining LI groups

Discussing how they feel about their job at a party, ball game, the waiting room of a doctor when someone says politely, “What do you do?”

You’re right, I’m not a lawyer. But I have paid a lot of legal fees, and I once paid said fees because of my imprecise reading and later erroneous interpretation of the boundaries of my marriage vows. In that instance though, while I well recall the ensuing divorce action, I don’t recall being sued by the other woman’s husband for “contractual interference”. (Although at that point I would have said, “Yeah, sure, why not? What else could go wrong?”)

I suppose in a world where we sue first and then look for legal basis later my job is to say, “listen to your lawyer,” but really? You may have violated (Once, and by accident, and you took responsibility for it, and all this assumes your agreement with them was still in play over a year later!) a non-solicitation covenant in YOUR agreement, but as I understand “consideration” in contract law, I don’t see how you could be responsible for the violation (probably imagined) of another party.
This was a scare tactic. Plain and simple. This HR person has too much time on their hands.