Fired employee helping to poach other employees

Is this legal?

Yes. If there was an enforceable anti-poaching agreement in place, your legal department would have told you so.

Is there anything I can do?

Sure. Create a working environment were people want to stay. You are only vulnerable to poaching if there are plenty of better opportunities out there. If people actually WANT to work for you and feel valued and fairly compensated, you wouldn't have this problem.

The poacher is the symptom, not the root cause. You need to understand WHY people are quitting and address that reason. No one leaves just because a poacher tells them so. They leave because they feel they can do better elsewhere. The poacher just facilitates the process.

Look in the mirror. Your company is the problem.

You want employees that are worth poaching. You've got to treat them well so they won't be poached.

This is a lesson that I learned the hard way, really hard.

There is nothing you can do or is worth doing to the person facilitating your people leaving. Focus on what you can do to keep your people enaged and happy. We can't give legal advice, but it is safe to say that it is very likely legal.

Another lesson that I learned the hard way, money is important but it isn't going to keep someone from leaving. Ensuring that they feel respected, heard, and are challenged so that they have career growth matters most.

Leaving the emotion out of it is hard. Learn to do it because you won't be able to have a clear view of why people are leaving if you are tainted by being irked at this other person.

Is this legal?

Yes, of course it's legal. And apparently your legal team already told you so.

And you shouldn't be surprised at all.

Is there anything I can do?

There's nothing to be done now, other than trying to give your current employees more reasons to stay. It's probably too late for that.

At this point, my team is down to about 25% capacity because of "A"'s poaching.

If it makes you feel better, these employees were going to leave eventually, apparently due to being significantly underpaid. "A" just gave them a reason to leave now.

Start hiring replacements. Revise pay ranges.

Spoiler: This will be harsh, although very little is original content that can't be found in other answers or comments.

The answer to your question ("Is A's behaviour legal") has been given multiple times: it is. So, let's analyze your behaviour instead.

• You fired A for poor performance. I doubt A didn't raise that she was "grossly underpaid" and you look to have always been aware of it. So, the natural question for you arises: Did you consider this in assessing her performance? It's a critical element and if you pay peanuts, you should expect peanuts back. How can be her performance be "poor" given that? A good manager would have raised the concern, stating to upper management: "Look, people are not motivated and we need to fix this aspect or they either will underperform or leave". You choose the easy way, firing the employee, rather than handling the root cause.

• You directly contacted A. This is serious stuff. You asked why she was doing that, but that was totally none of your business as A does not owe you anything. Then, you insisted asking her "politely" to stop. How can be "polite" to ask someone to restrict their freedom? It's especially hideous in this circumstance, since A was doing the right thing: She was helping saving people from a shitty workplace. Be very grateful to A that she blocked you. This prevented you from saying something stupid like: "If you don't stop, I will sue and do this and that", and this could have been illegal (beside being very wrong of course).

• Not happy, you went to your legal department. They also sent her a "cease and desist". You need to realize that this was a clear intimidation: You really think that someone is committing a crime if they say to former coworkers that their new workplace is better?

• Then you asked for more. They said: even for us, it's too much. You still think that is illegal and this is worrisome for you. You asked the question on this site and predictably everyone highlighted how the root cause was not A's behaviour, but your company.

The sad part is that you look to have embraced your company culture. You see as unreasonable and illegal that someone talks about better opportunities to others, while it's reasonable for you to ask A to stop doing so and even sue her for that. You see also as reasonable to underpay people. Please, reconsider everything. It's likely that the toxic culture in your company induced you to think this way, but this is not right in any possible way.

Next steps

Deeply apologize to A and ask her if there are new opportunities for you. Leave this company before they corrupt you irreversibly.

Is this legal? Is there anything I can do?

Ask your legal team. They're the experts on what you can legally do.

so I disagree that there's nothing we can do legally speaking

Do you or they have a law degree? As opposed to management, where employees often enough have actually good ideas how to improve it, law is one of those many fields where outsiders simply do not have a chance. It's fine that you disagree but it's closer to a flat-earther vs geologist debate than eye-level corporate interaction. You don't tell your CEO how to run the company. You don't make suggestions on the warehouse logistics. You ask them what their expertise on a topic tells them and then you maybe ask someone else with expertise in the relevant field and then you accept that.

but I don't have the power to tell the legal team to do anything.

Apparently you do because they already fulfilled any reasonable requests by you. Your company gave you a certain amount of control over the legal team (sendind cease & desist letters, analysing potential suits etc.) and you have exhausted that amount. Ask your boss why this limit is at exactly this place. [Hint: It's to avoid wasting money with frivolous lawsuits]

At this point, my team is down to about 25% capacity because of "A"'s poaching.

No you lost 25% because your department is noticeably uncompetitive in either salary, perks office vibe (including management), workload or work content.

Btw.: it's not really poaching if A isn't working for the new employers and/or they aren't all going to the same few. Poaching is when an external company approaches your employees because they want them. Your story sounds like A is helping your (former) employees look for other places to work. That is not poaching. That is the labor market at work. Your company (or team) is offering a bad deal so it's rejected. Poached employees don't need help updating their resume because they do not need one. They are approached with a (competitive) job offer, skipping all that job-search stuff. This is not what A is doing in any way.

Furthermore: Tortious interference requires contracts being violated. This means that even if A was doing it to intentionally hurt your buisness and/or was getting paid for the poaching, as long as everyone quitting fulfilled their legal obligations (which going by the USA tag may be close to nothing in at-will states, 2 week notices are more often than not a courtesy and not a requirement) it is not and will not ever be tortious interference. Ending a contracts effect as prescribed in that contract is not a breach or violation of that contract. If tortious interference were applicable in any way, your legal team would've already sued. Likely before sending the cease and desist letter. That the letter was simply ignored is just another hint at you not having any case whatsoever.

Even if it were poaching, it would almost certainly still be legal.

Tl:dr: You cannot do anything but work on your workplace.

Which incidentally is the best course of action anyway. Even if you had grounds for a suit, fixing your bad workplace should be the top priority.

Bonus:

[A] was being grossly underpaid for the amount that she did. She slowly stopped producing that much output when it became clear that I couldn't do much to promote her

So when she performed the work she was getting paid for you fired her for alleged underperformance. And you are now surprised that people are quitting en masse? You told all your employees that you do not plan on a fair compensation in any way whatsoever. You explicitly set the standard of performance above the one warranted by the pay. Of course people leave. And those that don't won't ever try to excel or go above average because you told them it's not worth it and has the only effect of getting them fired when they go back to normal.

It is general knowledge, just search on the Internet:

People join companies and leave managers.

Your people, as well as your company, as well as yourself, make choices by comparing:

• here vs. there
• now vs later
• these people vs. the other people
• etc.

Now you already noticed a significant trend: your people find better offers in many other companies, leaving your company for being not worth it.

Since you are a manager, it is your job to find out:

• how is your company worse than other companies (and in how many ways)
• how you can improve your company so your people will not be motivated to leave.

Bottom line: you should be happy with the current situation - the employees do not sue you and your company for being such a lousy employer. They also did not yet launch a negative advertisement campaign against you company, in media and social networks. Etc. You get the point.

Usually when you lose employees you look for more. If you're losing too many then there's an issue with your company not giving enough incentives to retain employees.

Analyse your incentivisation strategies, but don't worry unduly. Top talent rarely leaves as a group unless there is something seriously wrong with the workplace. I've worked many times in places where 3/4's of the staff were a waste of space for various reasons and new, keen workers would be a breath of fresh air.

If these things are not under your control or responsibility, then pass the problem upwards, before it escalates on it's own.

I assume that your legal department knows what tortious interference is too, and they did more than read a Wikipedia article on it or whatever.

Also, I think that the following statement is very significant:

I've actually heard that some employees who she didn't work with are trying to get in touch with her.

Since people are actively reaching out to her, apparently many people want to be poached. Based on that, I suspect that she didn't have to work too hard to convince the people she did reach out to to be poached.

Others have indicated this in their answers, but the best thing to do here is to try to find out why people want to leave so badly and correct that.

Ask yourself why this is happening and consider that your company's actions may be the reason why it is happening.

This may require a great deal of humility. It may be a very humbling experience. It will lead you to come to realise that the employees are human beings and not just assets to be used. It may require you (the company) to admit that your actions were wrong and devise a plan to correct the issue.

This is of course if a high employee turnover bothers your business in the slightest. There are plenty of companies in the world that consider employees as disposable as yesterday's chutney. They seem to think there is always some no-name chump willing to be exploited. Until there is not and then the business suffers greatly.

If you're in a right to work state non-compete agreements are pretty useless and indefensible. As others have said, make your work environment and compensation commensurate with (or, get this, better than) the market. While "A" may have been sub-standard, clearly the rest of your staff are not and have been able to find better employment elsewhere and it doesn't matter if it was "A" helping them or not. "Poaching" is in no way illegal in any US state and to think otherwise is wasting your time and energy. Go look in the mirror for your problems and stop wasting your legal department's time.

I read your concern and I have to agree with the comments that have already been posted before mine. As far as substantiating that "A" is guilty of Tortious Interference, at this time I don't see that she is 100% guilty of interefering with the business, even though you have lost 9 employees.

Here's what I see: Tortious Interference is about the intent of the person. In your post you said she indicated when asked why she was doing this, she responded "people deserve better, I'm helping them find it." It appears on the surface that her intent is not to interfere with the business, but to help others.

Keep this in mind, employees don't quit to leave companies, they quit to leave bosses! If you haven't yet, research to find reviews about your company as an employer, you can look at indeed, other job boards, facebook, and Yelp.

What you can manage right now is:

• ensuring that no one is job hunting while on the clock
• approach any that do as an opportunity to gain insight on why
• conduct Exit Interviews if you can
• make any changes that are within your managerial duty