Mark Pestronk
Mark Pestronk

Q: Once every few years, a large corporate account tries to hire one of our travel advisors who has been handling the account. This conduct used to be more prevalent when we had a lot of on-site branches at client offices, but on occasion, clients still try to lure our staff even when the advisors work at our headquarters. When we try to add a no-hiring clause to our corporate-account contracts, the account usually tries to delete it. Are such no-hiring clauses legal? If so, should we go back and insist on such a clause? Also, can we prohibit our advisors from going to work for the account?

A: Attempts by corporate accounts to hire an agency's travel advisors are a recurring problem for agencies specializing in corporate travel. Great advisors are hard to find, and when a corporation's travel manager finds one, the manager may be tempted to bring the travel operation in house by poaching your staff.

If the corporation is large and well established, such recruitment attempts can be very enticing because in-house agents are often paid more than agency advisors, and their benefits are usually better, too.

In my experience, a corporation's main objection to these anti-poaching clauses is usually that they would prohibit hiring anyone who merely responded to an online job posting. In the account's view, such a prohibition would be unfair because the corporation would not have taken any initiative to recruit your employee.

A secondary objection to such a prohibition is that the agency is trying to prohibit the hiring of all agency advisors, not just those who have been working on the account. So, you could compromise by prohibiting only solicitation of employees who worked on the account.

The problem with such a formula is that it is hard to prove solicitation after it occurs. Both the account and your ex-employee will deny that there was any solicitation, so you are much better off prohibiting the corporation from simply hiring any advisor who worked on the account.

Useful language for the agreement would read, "During the term of this agreement and for one year thereafter, client shall refrain from hiring any person who handled travel arrangements for client as an employee of agency at any time during the term of this agreement."

Anti-poaching clauses are generally illegal under antitrust laws when the parties are competitors, according to the U.S. Justice Department's guidance and court precedents. However, when it comes to similar agreements between service providers and clients, the law is much less clear.

There is a California precedent striking down such a prohibition, but it may be an isolated case in that state, and it does not apply to other states, which generally allow such prohibitions to protect the legitimate interests of the employer.

Under an employment agreement with your employee, you can usually prohibit working for a client if the prohibition is reasonable in time and scope. The exception is California, where all such restraints are illegal.

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