I've read at the Cal Chamber of Commerce site that "The other employer could win a lawsuit against you for interfering with a valid contractual relationship if you knew of the contract and engaged in intentional acts designed to induce a breach or disruption of the contractual relationship. If those acts caused an actual breach or disruption of the contractual relationship, you can face liability for any resulting damage." But I also know that when I was working as a consultant, I got recruiters contacting me at my work email (not even via LinkedIn) all the time. Roughly speaking, where is the line in what you can/ can't do to try and recruit someone already working elsewhere? Does this differ for exempt vs. nonexempt employees?
The reason you have this question is because the law is contradictory. California has a bias against non-compete arrangements but it also protects trade secrets of companies. So the question is, how can you get to an employee to recruit them without violating the company's secrets. For instance posting on LinkedIn is clearly public information to the fact that an employee works for the company. It's not being kept secret so no problem contacting them. What you can't do is to use other secret information to induce them to come to work for you. So, even if you know how much they make, you can't recruit them by comparing what you will pay them with what they are presently earning. You need to make the whole interaction devoid of content about their present job. Particularly damning would be talk about projects they are working on, have worked on or anticipate working on with their present employer. The employee can also be liable for revealing the company's secrets. To be extra safe, I would suggest that any call to them at work be very short. Make arrangements to talk to them at a time when they are not "on the clock" with their present employer, lunch or after work.
This advice is general information about the law and does not provide legal advice for any particular situation. It does not form an attorney/client relationship or provide confidentiality.
Competitor's may solicit each others employees if they do not use unlawful means or engage in acts of unfair competition. There's nothing illegal or unfair about an employer merely honestly soliciting talent, and offering the talent money or more money to switch employers, even if that means breaching a contract. Now the liability exposure for the switching employee is another matter and you would look at that employee's employment contract terms. Exempt vs. nonexempt is irrelevant to the analysis.
You should not rely on this response as legal advice. This response does not create an attorney-client relationship nor any professional responsibility for the outcome of your case. Please hire a lawyer as soon as possible to advise you on your circumstances.
It is legal to try to recruit someone who works for another employer. No, there is no difference between exempt and nonexempt employees.
The recruiter crosses the line and can be liable for intentional interference with contractual relations if it engages in conduct that is independently wrongful in an attempt to recruit the employee. For instance, if the recruiter committed libel, slander, fraud, or misrepresentation, those acts could also lead to an intentional interference claim.
Years licensed, work experience, educationLegal community recognition
Peer endorsements, associations, awardsLegal thought leadership
Publications, speaking engagementsDiscipline