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The Jewish Ethicist: Poaching Employees

The Jewish Ethicist: Poaching Employees

Can I hire a domestic worker away from her current employer?

by

Q.I have been disappointed with many aspects of the cleaning service I’ve been using, but I’m actually very satisfied with the young woman who has been coming to clean. Can I just cut out the middleman and hire her directly? VL

A. The issue of poaching workers is an ancient one, which is extensively discussed in Jewish law and tradition. The Jewish approach to this question is based on concern for all three parties involved: the "poaching" employer, the worker, and the current employer.

At one extreme, we may imagine a case where you could easily find some other worker, and the other employer would have difficulty replacing her employee, who is not significantly better off in your employ. In this case poaching would cause significant harm to the other employer with only minimal benefit to yourself and the worker. This raises significant ethical questions.

At the other extreme is the case where this worker is vital for your needs. In this case, your benefit is at least as great as that of the current employer, and there is no reason not to offer the worker a choice. For this reason Jewish law holds that it is not unethical to hire away a worker from a competitor if that individual has unique qualities that you require -- even if your competitor also appreciates these qualities. One important exception is if your actual intention is to damage your competitor, but that is not at all your own situation.

Your own case is even stronger. While you would have difficulty finding another cleaning worker whose work you like, the current employer who is well known probably has little difficulty finding employees. And the worker will also benefit since private employers pay much more than cleaning services. So you may offer this young lady to work for you privately.

We must add an important caveat. Sometimes there are contractual or customary limitations on such "temp to perm" arrangements. For example, often the temporary employer (you) has to pay a placement fee, or to provide some advance notice to the agency, before taking on a temp on a permanent basis. Make sure your hiring arrangement doesn't fall afoul of your agreement with the agency, and that of the worker.

SOURCES: Shulchan Aruch, Choshen Mishpat 237:2; Pitchei Choshen Sekhirut, 7:(50); Responsa Avnei Nezer Choshen Mishpat 17.

Send your queries about ethics in the workplace to jewishethicist@aish.com

The Jewish Ethicist presents some general principles of Jewish law. For specific questions and direct application, please consult a qualified Rabbi.

The Jewish Ethicist is a joint project of Aish.com and the Center for Business Ethics, Jerusalem College of Technology. To find out more about business ethics and Jewish values for the workplace, visit the JCT Center for Business Ethics website at www.besr.org.

JCT Center For Business Ethics

Copyright © JCT Center for Business Ethics.

Published: February 16, 2002


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Visitor Comments: 2

(2) Larry Schoen, February 19, 2002 12:00 AM

Communicate before poaching

I agree with Imrxs - there's more to this. My comments are as a businessman, not a halachic expert. First of all, has the customer made a promise to the current employer not to hire away? How do we know that "the current employer who is well known probably has little difficulty finding employees"? Maybe it's hard for them to find good workers they put a lot of effort into training her and would suffer financial loss from having to train a new person. Furthermore, I think frank communication among all the parties is missing here. Has the customer talked to the cleaning service and given them the opportunity to remedy? If they do so, then everyone gains. If they fail to do so, and then the "poaching" takes place, then it seems to me the poacher is on better moral ground and there is all around benefit. The customer should also communicate with the cleaning employee about any agreements and in some way about the customer's concerns. Sometimes companies do a "good cop, bad cop" routine where one person tells the customer the bad news, even though the "good guy" supports the bad news as well. Sometimes customers are unrealistic in their expectations. The worst thing would be for the employee to become an independent contractor and have the relationship go sour because the employer is no longer buffering the customer's expectations. Then everyone loses.

(1) Lew Schwarz, February 17, 2002 12:00 AM

Hiring away is not so simple

Although the statement concerning hiring away an employee of a cleaning contractor states clearly that the employee will be paid more in private practice, that may not be true. A corporate employer may offer benefits & pay social security as required by law, but private persons frequently do not do those things. It is proper that the prospective employer confer with the present employer to assure that all parties are treated fairly and above board.

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