Non-solicitation clause considered immoral

I hope I am not unusual in that, whenever I join a company, I actually read the Employee Agreement. One term that is becoming increasingly popular is the (generally overbroad) non-solicitation agreement, designed to prevent employees from “solicitation” of colleagues after they depart from the company. Their purpose is to prevent “talent raids” whereby well-liked people encourage their colleagues to move along with them to their next company. By doing so, they create a culture in which to present an employee with a better opportunity is treated as comparable to stealing corporate property.

First, let me state that the fear of “talent raids” is vastly overstated. Recruiting’s hard, yo. No one is “raided” from a company. A person does not get “stolen” from a $140,000-per-year software job and forced to throw 75 hours per week into a risky startup. People move from one job to another when they perceive a better opportunity at the new job. That’s it. As long as the latter opportunity is represented honestly and properly, nothing wrong is happening.

I’m a veteran talent raider. I’ve helped startups hire brilliant people I met in middle school through national math contests. I’m also extremely ethical about it. If I don’t respect someone, I don’t want him or her in an organization that I respect. If I do respect someone, I’m going to do everything I can do to provide all information (positive and negative) about an opportunity. This isn’t a bullshit “I’m not selling” defense. I consider it a success when I sit down with a friend, tell him about an opportunity that I think is great, give him all the information he’ll need to make his decision, and he appreciates the information but rejects it. It means that I’ve done my job well. When I’m talent raiding, I’m usually trying to convince someone to make a risky move, and most people don’t like risk. So a conversion rate of 60 percent (which would be very high) would suggest that I’m doing something seriously wrong. Overpromising to a person whose talents and character I respect is the last thing I want to do. Careers last a lot longer than jobs, and companies can decay so rapidly (management changes) that sacrificing a relationship to improve a job is just a terrible idea.

Unethical solicitation I despise. It’s unethical when the company’s prospects, the role into which the person will be hired, or the type of work the person will be allocated, are overstated. This is, of course, not a behavior limited to small companies or intentional talent raids. It’s very common for companies of all kinds and sizes (as well as managers within generally ethical large companies, as I found out recently) to pull these bait-and-switch antics. There’s no legal recourse against companies that do this– and there shouldn’t be, as companies have the right to end projects and change priorities. If contract law doesn’t cover bait-and-switch, then what is the socially useful purpose of non-solicitation clauses? Absolutely none.

Of course, companies don’t have non-solicitation clauses to prevent unethical talent raids, and those clauses aren’t in place to protect employees (ha!). In fact, these companies would rather see their people lured away on false pretenses: they can hire them back. They’re much more afraid of ethical talent raids in which the employee is presented with a genuinely better opportunity. This represents an attitude in which employees are considered to be property, and it constitutes restriction of trade.

Worse yet, non-solicitation contracts discourage startup formation. If the “talent raider” moves to a large company like Google, he can reconstruct his team behind the scenes, but if he moves to a startup, he faces the risk that the non-solicit will actually be enforced. History does not know how many great startups have never formed because people were scared off by non-solicitation clauses.

These need to be ended. Now.