HR Reporter – No-poaching clauses under microscope

A massive antitrust lawsuit in the United States has thrust no-poaching clauses into the spotlight, with one of Canada’s largest fast-food companies committing to a review of the practice in its franchisee contracts. Employment lawyer Lior Samfiru, partner at Samfiru Tumarkin LLP, shard his insight on no-poaching clauses with HR Reporter.

No-poaching or non-solicitation clauses are most common in sales, technology or specialized roles, said Samfiru.

A restaurant server is not a specialized position, however, and, as such, these types of clauses — including non-hire — should be non-starters, he said.

“If you have a very specialized position — a position where the skills of the employee doing that position are very rare and very difficult to replace — in those situations, the company may want additional protections, and it would be reasonable to say that,” said Samfiru.

“For people in very senior or very specialized positions, where if you go to work for a competitor, it’s going to hurt me so much… it’s reasonable for me to expect from you not to do that, at least for a period of time.”

“There has to be a good reason, based on how specialized the position is, and also the potential damage that would be caused to the company losing the employee — if that employee left them. But from a public policy standpoint, it’s very difficult to tell an employee ‘You can’t go somewhere. You’re not allowed to work for certain companies.’”