- First and foremost, it is essential that your company has a legitimate business reason to be hiring this employee, rather than just trying to deny your competitor the benefit of the employee’s services. Therefore, make sure that your company has a plan for putting the employee to work in a meaningful capacity, commensurate with what you will be paying the individual. And then, make sure that your company’s plan for putting the employee to work is documented, in case it is ever needed to defend against a predatory hiring claim.
- Second, predatory hiring claims (and monopolization claims generally) can only be brought against companies with monopoly power or a dangerous probability of attaining monopoly power. Therefore, smaller businesses and start-up firms will face relatively little risk from poaching talent away from an entrenched incumbent firm. However, an entrenched incumbent can face much more risk from poaching talent away from small rivals or new entrants.
