Would you make an appointment with a worker

From when the poaching of employees is considered illegal

Table of Contents

Image: “Abduction” by William Klos. License: CC BY 2.0

The current situation

As an entrepreneur, you have invested a lot of time and money in recruiting, training and equipping your employees. It is not uncommon for staff to be poached directly at the workplace. A circumstance that is particularly annoying.

Especially in industries where there is almost full employment, the number of recruitment attempts by headhunters increases and former colleagues.

Unfortunately, you cannot prevent this in a free market economy. Most employers are not allowed to solicit solicitation, but these are not enforceable in court due to §75 HGB. Accordingly, nothing speaks against the active sourcing of the competition.

The lawyer Doris-Maria Schuster advises, however, to deal with the limits of case law in order to point out possible transgressions. Only then can you effectively against the change of company Of your employees.

Allowed methods

When headhunters contact your employees by email or phone, there is little you can do.

However, contact should only take a few minutes. The present offer may be submitted and an appointment outside of working hours and the current company may be agreed.

Crossing boundaries

Competitors could poach employees until April 30, 2014 without fear of sanctions. But in the meantime, such a procedure could become legally enforceable under very specific conditions.

Although have Entrepreneurs are not entitled to their employees and can hardly protect themselves from being poached by the competition.

However, if, for example, defamatory statements are used against the current employer or even “head bonuses” are paid for hired-off staff, this is a violation of the law.

You should also refrain from intruding into operating rooms in order to contact the desired employee.

External companies are also prohibited from encouraging staff to breach contract with the current employer, such as pleading against observing the notice period.

If a solicitation takes place in your private life, your hands are unfortunately tied. Then only your employees can defend themselves against intrusive headhunters.


In special cases, you as the injured party have the option of a To sue for non-solicitation.

If the contractual partner gets confidential information and can later indirectly take over the company by poaching the key employee, this situation arises, for example.

This can relate to findings from joint ventures, but also information from a due diligence review.

A The ban can only be enforced in exceptional cases and is limited to a two-year period.

In the event of a rule violation, however, both employees and those who were enticed away must expect sanctions such as warnings, dismissals or even a ban on employment.

Also can Claims for damages because the competitor has gained a competitive advantage by being poached.

Find the conversation

Before you let your coworker go to the competition, you should seek a conversation. Ask about the shortcomings and problems in your company and what attracts those concerned about the competition.

A study (2013) by the Stepstone job portal asked 13,000 users from 8 European countries, 2000 of them German, the reasons for stable employee loyalty.

Graphic: “Reasons to Stay” by Stepstone.

Show your employee the negative sides of a change and find out what changes you as an employer can offer.

Most employees feel flattered and are lured by headhunters with new challenges and a higher salary. Point out that these promises should be checked against the company profile.

Go on the first call not on salary negotiations a! Give yourself and the person concerned time to think about it and promise to keep quiet until the next appointment.

If the employee does not deviate from excessive demands during a further interview, you should risk dismissal. Otherwise there is a risk that word of this will get around in the workforce and you will be exposed to blackmail.

The notice period should also not necessarily have to be adhered to. With the prospect of a new job, your employee will hardly be motivated to top performance in the last few weeks.

Good working conditions prevent changes

Alexander Bredereck, lawyer and specialist lawyer for labor law, advises above all appropriate working conditions to make workers happy to stay. Usually they are less willing to change than expected.

But above all, security is an important factor in employee loyalty to the company. This is also shown by the Gallup Engagement Index 2013, in which 1,368 employees were surveyed.

Some companies also use authoritarian methods as a deterrent. You bind Contractual penalties, post-contractual non-compete obligations or the like in the employment contract.

However, the formal requirements should be observed, as otherwise you could restrict the basic rights of the employee. For example, if it is a post-contractual non-competition clause that can only take effect against payment of compensation.


With good working conditions, you bind your staff to your company and thus prevent them from switching to the competition. But when headhunters lure with excessive salary expectations and great projects, even the best employee can find it difficult to resist. That doesn't necessarily mean that your qualities as an employer have failed. However, you should Conversation with the relevant employee looking to avert a change. If it does happen, you should know the legal situation in order to take action against rule violations.



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