For this reason, companies try to protect themselves against the poaching of their employees by agreeing on non-solicitation clauses.
Contractual prohibition of poaching employees is permissible
According to the case law of the Federal Supreme Court, the agreement of a contractual prohibition of poaching with a contractual partner is generally permissible if certain restrictions are observed. In doing so, the Federal Supreme Court is following the requirements for contractual non-competition clauses.
Conditions for the effectiveness of contractual no poaching clauses.
There are high legal hurdles for the effective enforcement of contractual no-poaching clauses in Germany, which are set by § 75 f HGB. In addition, the interest of the employee’s professional development, as compared to the employer’s interest in retaining the know-how of its employees in the company or preventing competitive disadvantages, is generally to be given priority. This is prevented by a contractual non-solicitation clause. Companies are recommended to agree on regulations that indicate a special need for protection or a relationship of trust between the contracting parties. This increases the enforceability of contractual no poaching clauses.
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