When to Use an Anti-raiding Provision

As an employer, you make countless investments in your employees. Whether your employees realize it or not, you commit major financial resources, time and training to make your staff a company asset. How do you protect your asset from being looted by a former employee? Consider adding an “anti-raiding” clause to your employment agreements.

An anti-raiding provision intends to provide protection to an employer by prohibiting a former employee from soliciting his or her former co-workers to join a new enterprise. It is possible to add language that restricts such recruiting while your employee is employed by your company. The last thing you want is a current employee staging a mass exodus while on your payroll.

Thus, an anti-raiding provision is a recruitment covenant that protects your contractual relationships with your employees. Your former employee is still free (barring other restrictive covenants such as a non-compete) to practice his or her trade.

Before you start adding anti-raiding clauses to your employment agreements, remember that the legality of this provision, like all restrictive covenants, varies from state to state. Thus, anti-raiding provisions should typically be judged by the same reasonableness standards applying to non-compete covenants.

Employees are understandably hesitant to sign any type of restrictive covenant. But I have found that employees are more likely to sign one when the restrictive covenant is presented as protecting both the company and the employee. Your employee should be able to comprehend that his or her job will be affected if another employee starts a new company with 3 other company employees. Thus, explain to your employee that the restrictive covenants found in his or her co-worker’s employment agreements work to protect his or her own job.

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