Employee poaching worries a business because it can leave essential departments understaffed, weaken commercial relationships, and raise concerns about the loss of confidential information. But the movement of personnel to a competitor, even if close in time and numerous, is not automatically unlawful. The worker's freedom to change employment remains the rule. Protection becomes concrete when recruitment is part of conduct capable of disorganizing the competing business or unduly transferring its information assets.
In this guide, I want to clarify what distinguishes lawful hiring from improper poaching, what facts truly matter, and what remedies can be considered. We will also see why the worker's contract, the role performed, the methods of contact, and the measures adopted to protect know-how can lead to very different responses.
When employee poaching may constitute unfair competition
Hiring personnel from a competitor is lawful in principle. Competition also includes the search for already trained professional skills, and the worker does not belong to the enterprise where they previously worked. The problem is therefore not merely the origin of the new hires, nor the fact that they know a sector, a clientele, or a working method developed during their experience.
Poaching can instead become relevant as unfair competition when the competitor uses means contrary to professional propriety and capable of damaging the other enterprise. Article 2598, no. 3, of the civil code is the reference rule for these conducts; Articles 2599 and 2600 then govern injunctions, the elimination of effects, and damages. You can consult the text of the civil code, in the section on unfair competition.
The decisive point is the disruptive purpose of the conduct. It is not enough to prove that multiple employees submitted their resignation or that the competitor hired them shortly after. Elements must emerge that reveal a strategy aimed at depriving the enterprise of resources necessary for its operation: for example, the concentrated acquisition of an entire team with functions that are difficult to replace, the subtraction of figures guarding non-public procedures, or the planning of coordinated exits at a particularly delicate operational moment.
The Court of Cassation has recalled that the recruitment of an already resigned worker does not in itself imply disruptive conduct toward the previous enterprise. To configure prohibited poaching, it must be demonstrated that the behavior is unequivocally directed at breaking down the organization and functionality of the competing unit, affecting its economic vitality. This is a useful criterion because it prevents mistaking a normal labor market dynamic for an unlawful act. The principle is reported in the review of the Court of Cassation relating to order no. 14944 of May 28, 2024.
The facts that make recruitment more or less serious
The number of workers matters, but does not decide alone. The exit of two persons can be very impactful in a small structure that entrusts them with design, technical assistance, and relations with a few central clients. Conversely, the hiring of multiple employees with fungible duties may not compromise the operativity of the previous enterprise. One must look at the concrete function of the persons, the time required to replace them, and the organization's ability to continue working.
The way the group was formed also counts. A worker who spontaneously seeks new employment presents a situation different from contacts organized while the relationship is still ongoing, coordinated proposals directed at an essential core, or initiatives accompanied by pressure not to comply with obligations already undertaken. The coincidence between resignations, the start of the new activity, and the subtraction of corporate information can also be significant, but must be read together with precise and verifiable facts.
Damage must be linked to the contested conduct. A contraction in revenues, by itself, does not prove that it depended on the new hires. The loss of an order, a change in demand, the autonomous choice of clients, or internal organizational problems may have an impact. This is why it is important to distinguish the physiological effect of competition from the impoverishment caused by an organized subtraction of personnel or information. The reconstruction must show which operational capacity, commercial relationship, or competitive advantage was effectively compromised.
Duty of loyalty, non-compete agreement, and freedom after resignation
During the employment relationship, the duty of loyalty applies. Article 2105 of the civil code prohibits the employee from dealing in business competing with the employer and from disclosing or using news on the organization and production methods in a way that could cause prejudice. This obligation concerns the period while the relationship is ongoing: a worker cannot prepare operational competition to the detriment of the employer, use corporate data on behalf of third parties, or start a competing activity exploiting their internal role.
The framework remains compatible with the possibility of carrying out, outside agreed working hours, another work activity when reasons limiting it do not apply. Legislative Decree no. 104 of 2022 expressly preserves the duty of loyalty under Article 2105 and allows limits, among other things, when the different activity determines a conflict of interest. The current text of Article 8 of Legislative Decree no. 104 of 2022 directly recalls this distinction.
After the termination of the relationship, competition is not automatically prohibited. The worker can use their professional skills, experience, and general knowledge acquired in the sector. Subsequent limitation requires a valid non-compete agreement pursuant to Article 2125 of the civil code: it must be in writing, provide for consideration, and remain delimited by object, place, and duration. A generic, gratuitous clause, or one so broad as to practically prevent the worker from exercising their profession, does not produce the protection the enterprise expects.
The new employer does not automatically step into the contractual obligations of the worker. If the employee does not respect the notice period or breaches a non-compete agreement, the primary issue concerns the previous employment relationship. To support a claim also against the competitor, additional elements are required, such as conscious participation in the breach, the use of improper methods, or a strategy to disrupt the organization of others.
Know-how and trade secrets: what can be protected
Not every corporate information is a trade secret. Customer names easily obtainable from the market, the employee's personal skills, and notions known to operators in the sector do not become confidential merely because they were learned while working in the company. The most intense protection concerns information that is not generally known or easily accessible, possessing economic value precisely because it is secret and guarded with reasonably adequate measures.
Article 98 of the Industrial Property Code defines these requirements for corporate information and technical-industrial or commercial experiences. Article 99 allows the lawful holder to prohibit their abusive acquisition, disclosure, or use; for actions based on conducts governed by said article, a five-year limitation period is provided. The Industrial Property Code, Articles 98 and 99, therefore clarifies that secrecy must depend both on the characteristics of the information and on the precautions concretely adopted by the enterprise.
Protection measures are part of the problem, not a formal detail. Profiled access to systems, confidential folders, personal credentials, confidentiality agreements consistent with duties, document classification, and rules on data transfer help demonstrate that information was truly treated as confidential. If instead price lists, procedures, or databases circulate without limits among subjects outside the company, it becomes harder to argue that they constitute a trade secret.
The protection of know-how must not turn into an improper prohibition on using personal experience. A technician can put their preparation to fruit; they cannot for that reason take drawings, credentials, formulas, inaccessible databases, or reserved procedures with them. The distinction is between the person's competence and information controlled by the enterprise. It is here that one often understands whether the problem concerns only the relationship with the former employee or also the conduct of the competitor who receives or uses the data.
Injunction, elimination of effects, and damages
Protection can aim first and foremost at stopping the conduct. Article 2599 of the civil code allows the judge to enjoin the continuation of acts of unfair competition and to adopt measures suitable for eliminating their effects. When there is a current risk of using confidential data or further disruption of the organization, the enterprise's interest does not necessarily coincide with the mere payment of a sum: obtaining a measure that prevents the continuation of the contested behavior may be essential.
Damages require a loss linked to the unlawful act. Costs incurred to quickly replace indispensable personnel, loss of margins due to compromised orders, diversion of clientele caused by the use of non-public information, or advantages gained through trade secrets may be relevant. The amount does not derive from the simple number of resignations. It must reflect a prejudice demonstrated or reconstructible in a reasonable manner based on the consequences of the ascertained conduct.
Article 2600 of the civil code links damages to acts committed with intent or negligence and provides for a presumption of fault once the act of unfair competition is ascertained. This rule does not eliminate the need to prove conduct and damage, but affects the issue of liability. Ascertaining the unlawful act and quantifying damages are distinct steps. Therefore, an effective request must indicate with precision which conducts are contested, what effects they produced, and what remedy is needed to remove them.
How to set up a reaction without creating further risks
The first requirement is to preserve facts, not jump to conclusions. Corporate communications, resignation dates, worker roles, access authorizations, IT logs acquired in compliance with applicable rules, returned documents, and changes in relationships with clients or suppliers can clarify the affair. It is useful to keep separate what is documented, what is merely suspected, and what requires technical deepening.
Publicly accusing former employees or competitors without a solid basis can expose one to further contestations. Even withholding sums due to the worker or indiscriminately blocking personal documents is not an automatic response. The chosen measure must be proportioned to the ascertainable fact. A request for the return of company materials is different from a claim not to work for a competitor; the second requires a specific legal basis.
If the problem emerges in Milan, the geographical location does not replace the analysis of jurisdiction and the applicable remedy. It matters whether the contestation concerns an employment relationship, a competitive unlawful act, trade secrets, or multiple connected profiles. I can help you focus the distinction, preventing the need to intervene quickly from leading to confuse lawful competition with truly prohibited conduct.
Frequently Asked Questions
Can I take action if a competitor hires my employee?
Not for the hiring alone. You must be able to indicate additional elements: a strategy directed at disorganizing the enterprise, methods contrary to professional propriety, the use of confidential information, or conscious participation in the breach of obligations still effective. The hiring of a resigned worker remains, in itself, a normal market choice.
Does the lack of notice make the new employer responsible as well?
As a rule no, not automatically. The lack of notice concerns first and foremost the relationship between worker and previous employer. To extend a contestation to the new employer, facts showing their own unlawful autonomous conduct are needed, such as the use of improper methods or a plan aimed at disrupting the competing organization.
Can I prevent the former employee from working for a competitor?
Only if a specific legal basis exists. After the termination of the relationship, the worker is free to change employment, barring a valid and delimited non-compete agreement or autonomous conduct such as the use of trade secrets. The duty of loyalty under Article 2105 operates during the relationship and does not equate to a general permanent prohibition.
Can a client list be a trade secret?
Yes, but not always. It must contain information not generally known or easily accessible, have economic value thanks to confidentiality, and be protected with reasonable measures. A database with reserved conditions, contact persons, negotiations, and preferences can be different from a simple list of known companies in the sector.
Can I immediately request an order to stop the use of data?
Injunctive relief is provided for acts of unfair competition. Its concrete practicability depends on the conduct to be stopped, the current risk, and the elements available to prove it. If trade secrets are involved, it is important to identify with precision which information is assumed to be reserved and which measures demonstrate its protection.
Regulatory and jurisprudential references
The main references are Articles 2105, 2125, and 2598-2600 of the civil code, Articles 98 and 99 of the Industrial Property Code, and Court of Cassation order no. 14944 of May 28, 2024. These sources help separate the lawful mobility of workers from conducts aimed at disorganizing a competitor or using protected corporate information.
If you need to decide how to react to concentrated resignations, the suspicious use of data, or the application of a non-compete agreement, you can contact me.