Anti-Poaching Provisions in Texas Employment Contracts
Last week, Google said it was no longer going to enforce its anti-poaching provision that includes in its employment contracts. I don’t see them going anywhere as it relates to Texas employers/employees.
Under Texas law, an anti-poaching provision has to satisfy the Texas non-compete statute meaning it has to be ancillary to an otherwise enforceable agreement and reasonable in time and scope. The provision will attempt to limit a departing employer from hiring a current or former (maybe within a couple of months of termination) of the employer to work in a competing business. The thought behind such a provision is it prevents a mass exodus and a former employee from taking her team somewhere else. The anti-raid is frequently seen in a sales based organization. The provision usually lasts 1-2 years.
There aren’t many Texas cases on the anti-raid. In most circumstances if an employer has taken the time to prepare an anti-raid there is likely to be a non-compete, non-solicit (customers related), and/or non-disclosure/confidentiality provision. There’s a good chance that a departing employee violating accused of violating an anti-raid provision is also accused of violating a non-compete. The focus in those situations is on the non-compete but poaching employees is another example of bad acts by an a departing employee that may lead to a judge entering injunctive relief that enforces both provisions.
Employers will look for evidence of an orchestrated raid. This usually takes the form of emails and texts leading up to the departure. The employee will argue they did not reach out to the employee, the employee called them, sort of like a non-solicit defense. The court has to balance the right of an employee to work where they prefer versus the enforceability of the contract provision. Often times the employer will sue the departed employee for tortious interference as well.
Employers will continue to use the anti-raid as another arrow in the quiver of post-employment covenants. Employees will have to work within the confines of such an agreement to permit a move. These provisions aren’t going anywhere.
