You know I'll rip something from the headlines anytime it makes sense. Here's an anti-employee poaching from Groupon (daily deals provider) to a firm called Top Hat Monocle. The jist of the argument here seems to be "you've recruited our Groupon salespeople, and now you're using our former Salespeople to poach more Groupon employees to your company."
Note the industry is non-competitive, so the non-compete doesn't apply, and they're not saying that. They're saying that you hired Susie, and then you engaged Susie to call 5 of her friends at Groupon to join her at Top Hat.
Easy to say, hard to prove. What's Groupon after here? They'd like Top Hat to blink and stop hiring Groupon salespeople for awhile. If you think non-competes are hard to enforce, try a non-solicitation. Hard to prove. Top Hat has a couple of choices based on the letter below:
1. They can stop recruiting Groupon employees cold. This is what Groupon wants.
2. They can tell the Groupon employees they've hired that anyone interested in a job at Top Hat needs to apply directly. Once they've applied, Top Hat is more free legally to have conversations with the former Groupon employees they've hired about the other Groupon folks who have applied, including asking them to help interview, follow up, etc. "How did you learn about this opportunity?" is the key question here...
3. They can keep doing what they're doing, which may be what Groupon suspects or it may be closer to what I described in #2.
What would you do? Enjoy the legal eagle-ing.