With job markets opening up again before the next Greek-letter coronavirus variant wreaks havoc, employee movement after 18 months of stagnation has made poaching a hot topic, especially in this era of remote work.

Forbes has asked companies how poach-proof their employees were, while Industry Week has suggested employers should want their employees to be lured away.

Tom Williams, a senior consultant at Smart HR in Rockville, Md., said that even one of the CEOs he works with recently raised concerns about poaching.

“A few months ago, he saw an article which said something like 40 to 45 percent of people were thinking about resigning as a result of the last fifteen months,” he said. “I thought that number was a little high two or three months ago. Now, I’m feeling that it’s accurate.”

Still, Williams doesn’t think much of this movement is as result of poaching: After more than a year of employees working remotely and stuck in jobs, they are eager to explore any and all new opportunities.

So what exactly is poaching, is it that big a problem, and what can employers do about it?

In the wild, poaching is the illegal hunting of wildlife on property that forbids it. In the business world, it’s the unethical recruiting of employees from a competitor. Is it illegal? Experts say it’s hard to prove. While stealing corporate secrets, accounts, trademarks and the like are illegal and thus ripe for litigation, even aggressive recruiting has a lot of gray areas.

“I’m not aware of a legal definition for poaching an employee,” Williams said, adding he would be concerned if a firm that one of his clients partnered with on a project then made a hard press for his client’s people. “That would be sort of the absolute no-no to try to use that relationship to bring people over.”

Don’t count on non-competes

Still, in circumstances that are not as clear-cut, “that’s business,” he emphasized.

For Jordana Coppola, a partner and chief people officer at OTJ Architects with offices across the U.S., “poaching to me is an active process.”

“The way that I recruit people is, I post an ad, and if somebody responds, that’s them reaching out to me,” she said. “Poaching would be me reaching out to somebody within a company and trying to steal them away from that company.”

Coppola, who is based in the Washington, DC, area,  added that calling someone at work or using their work email would push the bounds of ethical recruiting – and possibly get a potential job target in trouble with an employer.

“I also think it gets dirty when you start talking poorly about the company that the target is working for or the people that they’re working with,” she added.

What if an employee has a non-compete agreement? Does that protect the employer?

Not that much, experts say.

Non-competes are difficult to enforce, and Williams at Smart HR says they “are probably in quite a bit of jeopardy now under the Biden administration.”

Non-competes may be enforceable with high-level positions, he added, but otherwise they are likely to be seen as a negative for the employer.

“I haven’t worked with many employers that have made a concerted effort to have non-competes,” Williams said.

The type of passive recruiting done on sites like LinkedIn would not qualify as poaching, according to Coppola.

“If I see somebody has a skill set and I say, ‘Hey listen, we have a position and you seem like a fit. If you’re interested or you know somebody that is interested, please reach out.’ That’s still up to them to make the decision,” she said.

Coppola says that in an interview process, she’ll explain her company’s differentials and what they have to offer.

“We don’t ask prospective employees what their differentials are,” she said. “We don’t ask them what their salary is. We just say, ‘What are you looking for, to make a move?’”

“I had a situation with a competitor and what they did, I would call poaching,” Coppola added. In the case in question, she recruited someone about to graduate college. Another firm told the applicant to accept the job with Coppola’s firm because they didn’t have any openings but would contact him in a couple months (after he’d started work), when a position opened up.

”That’s unethical,” she said.

Outgunning potential poachers

The smart way to avoid anything even approaching poaching, she said, is to focus “on retention and finding ways to keep your people.”

Allowing people to work from home during the Covid-19 pandemic has made that more difficult because of the perks of remote work, but this has also presented employers with new perk opportunities.

Coppola said that in a recent survey, 39 percent of workers said that if they were required to come into the office, they were going to go someplace else.

“So smart employers are not making more obtuse work rules,” she said. “They’re making less strict vesting schedules with their 401Ks. Smart companies are finding ways to keep the employees they wish to keep.”

Open communication with employees is the best way to do that, Coppola said. Some workers want time off, while for others it’s salaries or being able to work from home or health-care benefits or even career development.

“Right now, the number one thing is flexibility,” she added. “Salary, of course, is always important. It’s always up there with professional development, especially with millennials.”

Williams agrees.

“Companies need to look at why people leave. They most likely didn’t leave for just a few extra dollars,” he said.

Williams believes employees are willing to consider entreaties from elsewhere because of structural issues within their current employer – problems being swept under the rug, not following through on promises, not rising to the occasion on issues like diversity. If management merely pays lip service to the concerns of its employees, employees are not going to stick around unless a tight labor market makes it impossible to move.

Williams would advise the following to a client:

“Don’t worry about poaching, worry about your Glassdoor rating,” he said.

He also urges employers to get a sense for what their employees are feeling about the company’s culture.

“Figure out what’s happening and do something about it. If you’re spending your time worrying about poaching, you’re missing the boat,” he said.

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