I have been fortunate to be a part of many great teams over the course of my career. Every time I am on one of these teams I constantly update a list of people with whom I would be willing to work again. It is a surprisingly large list. I go over that list of people whenever I take a new role and try to figure out who would benefit from joining me.
It is said that people do not leave companies, they leave managers. I believe this is very true. I also think there is some corollary expression on joining companies. People are more likely to join a company if they have the potential to work with a great manager or leader, especially if they have worked together in the past.
This is why many companies slap a non-solicitation clause in their employment contracts or exit agreements. Let’s talk about what that means and more importantly, what that doesn’t mean.
Most companies will put a non-solicitation agreement in their offers of employment. If you find one of these, there are two significant questions to ask.
The first question is “how long am I agreeing to this?” Generally a non-solicitation agreement is for a year. I do not know that I would accept a multi-year non-solicitation clause in a contract without significant consideration like an exit or a giant pile of equity. The reason you get a one year non-solicitation agreement is that it gives a departing individual a very strong disincentive to reach out and keep in touch with existing employees. There are some clear “out-of-sight and out-of-mind” benefits for a company to discourage these kinds of interactions.
The second question to ask is “are non-solicitation clauses enforceable where I live or where I work?” This is a trickier question. As a leader or a manager there are a lot of things to understand about employment law and this is one of them. I signed a non-solicitation agreement under the laws of the state of California. I will add the standard I-Am-Not-A-Lawyer clause here before stating that I do not believe they are really enforceable. Here is a shiny internet link for you (without Amazon associate codes).
I understand that people will raise an eyebrow at you if you go and poach the living jeepers out of a past employer. Some people will say “something-something-morals” and “something-something-ethics”. Almost nobody says “something-something-retention-bonus”. We have all been somehow convinced that doing the best thing for yourself and for people you work with is somehow wrong and somehow does not have material value. If you take a look at that income gap between yourself and the C-staff five levels above you in their cloud-castle-in-the-sky it honestly does not cost the company much to give someone a retention bonus if they feel like they need to keep you stapled to your chair for another year.
Let’s get back to our non-solicitation conversation. Team building is hard. During the hiring process, when you screen new candidates for joining a team you will run into false positives and false negatives. If you already have worked with a person, you generally know what you are getting. Hiring people you have already worked with is a good way to reduce the risk of growing your team. There are a number of benefits around predictability and familiarity that I won’t go into.
Let’s talk about what to do when you have an aching sensation to bring your former teammates into your new company and you are duty-bound by contract or some half-baked notion of loyalty to your previous employer not to solicit them.
You can start laying the groundwork now if you have not already left your job. The first thing you can do is to engage in regular social activities together like going out for a drink, a monthly board game night, or even taking kids to the park together. Maintain social ties that transcend work with your best people if you can.
I always try to figure out people’s hobbies and interests to see where we have an overlap. Gaming nights, drinking festivities, and youth activities are easy for me as a game-playing, scotch-drinking parent.
The next thing that is important to do is to make it clear to people that you really enjoy working with them. You can write that on their LinkedIn profile. You can tell them in a 1:1 meeting. One of the things that I always tell my best people is that I want to be a lifetime reference. This is absolutely a true statement whenever I say it. It has the added benefit of me learning that they are on the market and looking for a new opportunity when I get that reference call.
The final thing you should do is point out to your teammates that you are under a non-solicitation agreement. It is likely in their own employment contract too. They probably signed it without really caring what it means, especially if it is early in their career. They might not remember it, nor understand that their former leader is bound by it, and take your one year of silence as a lack of interest. It is important to people that they understand that you are bound by a non-solicitation agreement.
You cannot infer that people always know these things are true. If you make it clear to people that you loved working with them, would love to work with them again, and that you have a non-solicitation agreement, they are probably willing to reach out and ask how you are doing in your new role if they feel the same way.
There is one final thing to add here. You have a nuclear option. If you are under a non-solicit, or are unsure of these things, you can talk to your current employer and their legal team. In some cases they might tell you that you are free and clear to go ahead without any burden. In other cases they might tell you it is worth it to recruit your former team members and that they will take the risk of legal action.
The deep truth is that legal action is scary for everyone. If you have just left a startup, they might be needing to have a clean bill of health for fund raising or an IPO. If they have a messy sheet filled with non-solicitation legal action that has significant costs for them to bear.
If you have just left a larger company and they pursue legal action, then you can Glassdoor that shit. Who wants to go work for a company that will sue their former employees?
In the end, one or two team members will not destroy a company. Most companies should accept one or two defections as the cost of doing business. If you poach three former team members, you are clearly exhibiting a pattern of behavior and you should expect a legal warning sent to you or your employer. The sad truth is that generating that legal warning is probably as expensive to a business, if not more expensive, than sitting down with the remaining employees and giving them a retention bonus which is truly the outcome that should matter.
The one thing to be careful about when bound by a non-solicitation agreement is recruiting “key contributors”. That could destroy a company, or at least a line of business. Hiring away a mid-level engineer is one thing, but if you are hiring away the key creator of a company’s intellectual property, you might find they are more aggressive towards trying to show significant damages.
I would love to live in a world where companies throw out the bullying tactics of non-solicitation agreements. It makes sense for people to want to work together again if they have good team dynamics. As a more principled way of dealing with this problem, it would be amazing if teams were given incentives to stick around when a strong leader leaves. You could make the argument that aligning (and by aligning I mean increasing) incentives for teams and their leaders might have been one of the reasons the aforementioned leader left in the first place. That is a conversation for another week.
Thank you again for reading my ranting. This is a spicy and contentious topic and I know my view is probably controversial.
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