Podcast: Attracting New Talent Without Unwanted Legal Risks

Attracting new talent is an exciting process. But unless your organization is bringing in a high-level performer from the unemployment line, that individual is likely leaving another job - and perhaps a key competitor - to join your company. Hiring away a rival's employee can bring a host of risks for unwary employers.

On this XpertHR podcast, Texas employment attorney Mary Goodrich Nix details the litany of risks that can arise, especially if the new hire signed a restrictive covenant with his former employer. These restrictions can include:

• Noncompetition agreements;
• Nonsolicitation agreements;
• Confidentiality agreements; and
• Consulting agreements.

Nix practices in Dallas with Munsch, Hardt, Kopf & Harr, and has litigated and arbitrated numerous cases involving restrictive covenants, unfair competition and trade secrets. She says she has seen many cases in which an employer hired away a rival's employee only to find itself enmeshed in litigation.

Fortunately, Nix offers practical solutions to help HR steer clear of trouble. For instance, she favors a proactive approach rather than relying on an employee's written representations, which she says are often faulty. Instead, Nix says employers should specifically ask for copies of restrictive covenants of any kind signed by the key employee they want to hire. She advises that it is important to ask for these agreements by name to "ensure no stone goes unturned."

Another area Nix addresses involves noncompete agreements that go beyond an employer's protectable interests. Employers can sometimes overreach in drafting these clauses, which can render them unenforceable. Nix says, "In my experience, the great majority of noncompetes are overly broad in the scope of activities restrained."