Poaching Employees

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? 

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.