Non-Competes: You're a Sucker If You Don't Think They Apply To HR

So you locked down your sales team and the techies who drive the value of your intellectual property (IP) with a solid, enforcable non-compete executed at the time of hire.  Sure they balk and complain, but you get most of those signed.  Congrads, smart move.

What's that?  You're glad you don't have to do the same with your HR team?  Really?  You don't have your HR Managers, Director and VPs and all your recruiters locked in to a non-compete?

You're either a sucker or rationalizing to avoid the conflict.  Of course, your top HR talent and anyone who recruits should have to sign a fair non-compete.

Think about it - we're talking a narrowly drawn non-compete.  Your top HR team members (I say manager and up) and anyone who recruits should have to sign one.  We're not preventing them from working by signing the non-complete, we're simply agreeing that they won't take all the training, contacts and candidates that they've cultivated during their time with you to your most direct competitors.

A narrowly drawn non-complete doesn't mean HR pros can't find work.  If fact, the HR game is one of the best in terms of its talent being able to cross industries and work.  That "career portability" means your HR team can sign a non-complete that's properly drawn (example - we're a software company and you can't go to work for another software company in our city/industry or that recruits developers proficent in the same programming language as our company) and find work pretty easily if they're talented in the HR game.

Why wouldn't you ask them to sign a fair non-compete?  Because you either don't think they're talented enough to get the same job with your top industry competitor, or you don't want the drama of walking them through it and requiring it.

Either scenario sounds dicey to me.  

Draft the non-compete and put it in front of them.  Explain the narrow parameters and require them to sign it.  You'll be happy you did somewhere down the line.

Comments

[Jason]

I do not see how this serves any purpose by making HR professionals agree "that they won't take all the training, contacts and candidates that they've cultivated during their time with you to your most direct competitors."

May I ask what trainings would an HR professional get that is so 'confidential'? What contacts? Third party, employees? If the main reason for an HR professional to sign a non-compete are the ones mentioned above then I don't see the point.

[KD]

Jason -

Fair question. Two words: Non-solicitation. Remember that I'm talking about a narrowly drawn non-compete, and the biggest thing you want to do is protect yourself from training your HR leader to attract talent to your company, build their contacts, then have the ability to recruit on day one for your strongest competitor.

If the HR pro in question is just an administrator of paper and process, to your point - who cares? You're right. However, if they are involved in attracting talent (and you should wonder why an HR leader isn't if they're not), everything I said holds true. Your company can get hurt by not putting that barrier up.

Thanks for checking in - KD

[Lance Haun]

A simple non-solicitation and confidentiality agreement would take care of any contacts, candidates and internal employees on the talent attraction side. As far as the "training" they are taking with them? I don't see how that is industry specific enough to matter. Beyond some brilliant sourcing tactic, talent acquisition is a process that is fairly generic. If they are a rockstar, they probably didn't need you to figure out how to close a candidate.

Perhaps if non-competes weren't completely one-sided in favor of employers and devoid of any joint responsibility of parties, more people would be jumping at the chance to sign them. There's a reason that it becomes a barrier to recruiting the best though: talent thinks non-competes suck. Hard. And they are right.

[Dawn Boyer]

One point that is NOT taken into consideration - most non-competes are NOT enforceable. Many court cases have indicated that if the competition is the ONLY other employer in town, and the job candidate who moved to the competition ONLY had that option for any work without undue hardship, the non-compete was thrown out the window - the judge would not enforce it.

Now you can can enforce no 'stealing' of proprietary property or knowledge, but how are you going to prove that the handbook the HR person built for the last company isn't the same handbook with a few words changed at the new employer? IF you can get your hands on the competitor's employee handbook or internal policies at all!

[Jason]

Kris, when I first read your post I asked why on earth would it apply to HR? Most of us barely 'get' the business so a non-compete in terms of 'trade secrets' would be too far fetched.

Non-solicitation is a very valid point. Btw HR leaders attracting talent should be fair game but the magnitude of this is debatable? We in HR are not like the 'Pied Piper of Hameln' to wipe the org. clean of talent (or rats in the case of the Pied Piper). Rather than focusing on shackling employees with such contracts, perhaps retention and engagement strategies need more importance. If you've got a great culture with pay scales and reward recognition in place etc. I think that speaks volumes in itself. Wouldn't you agree?