Editor's note: This is the first of a two-part series on employee recruitment and retention. Check back on Monday for tips and strategies on keeping your talented staffers happily engaged.

Of 10 people Ben Kirshner hired in the past year, four already had jobs. This year, the CEO of 24-person New York City search engine marketing company Elite SEM anticipates hiring four more. “They’ll probably all come from current employers,” he says.

Despite well-stocked ranks of unemployed job candidates, many business owners prefer to poach already-working people from other companies. The reason is simple: They figure that anybody who has a job is likely a better performer. “I question why they’ve been out of work,” Kirshner explains. “If 40 other companies interviewed you, why didn’t you get hired?”

If you’ve only hired people without jobs, the prospect of negotiating with somebody who isn’t in dire need of a paycheck can be unnerving. “With the unemployed, you can typically get away with a lot more,” Kirshner agrees. Even if you’re willing to try, it may be hard to figure out how to identify and contact candidates who aren’t actively looking.

However, the experience of the last recession means these days it’s easier to talk to the employed, says Shane Bernstein, managing partner at Q, a Los Angeles information technology staffing company. “Today, most people are open to listening to any opportunity that is out there, even if they just started a job yesterday,” he says.

Reaching them is easier too, thanks to the near-ubiquity of online professional social networks. “LinkedIn,” Bernstein says, “has become the tool for finding people.”

Kirshner uses several methods to identify employed candidates on social networks. Sometimes he searches profiles for keywords describing specific skills. He also sends requests to his network describing what he’s looking for. Sometimes he’ll post a request on his Facebook page. The gold standard result is a personal recommendation from someone he knows. “That’s how you get great people,” he says.

Of course, identifying a candidate is considerably less than half the hiring battle when the candidate already has a job. Kirshner’s approach to this problem is to ask what they don’t like about their current position. “Then I turn that around and say, ‘You’ll get that here,’” he says.

Usually, the pain points come down to three things: compensation, opportunity for advancement, and location, according to Bernstein. Creativity counts for a lot, especially for small businesses that may not be able to match the pay of an IT titan. Fortunately, there are a lot of ways to ease those pain points that a business not constrained by a phonebook-size human resources policy can implement.

“Telecommuting is a major part,” Bernstein says. “So are flexible hours.” Allowing someone to work from home a few days a week can prove irresistible to an employee facing a long commute, and being able to come in late or leave early is sometimes powerfully attractive to people struggling with work-life balance. “You can sway people with a variety of things depending on what they’re looking for,” he says.

Small employers have to be careful not to be blinded to the potential downsides of stealing employees, however. For one thing, they may be overlooking equally or even more desirable candidates who lack jobs. “Companies tend to hire people who are already employed,” Bernstein points out. “That being said, there are many talented candidates who are currently not working.”

Stealing employees can also come with risks. For instance, while Kirshner professes few limits when it comes to pursuing the already working, including being willing and even eager to hire his competitors’ talent, he draws the line at raiding clients’ workforces. And small employers should be aware of the potential legal risks to poaching.

Eric Welter, an employment lawyer in Herndon, Virginia, works poaching-related cases all over the country, and finds it is of particular concern in his region. “There are a lot of people moving back and forth between government contractors and tech companies, and there is a lot of litigation here over this stuff,” he says. It’s worth noting that even if litigation doesn’t ensue, it can generate plenty of controversy when a high-ranking regulator leaves for a job in private industry, as happened recently when Meredith Attwell Baker resigned as FCC commissioner to work for Comcast.

One potential problem is when an employee has a noncompete agreement with the current employer. Employees may also have nonsolicitation clauses in their contracts that restrict them from luring customers or other employees with them when they leave. Another risk is related to trade secrets and proprietary information such as client lists, product designs, and source code. These are generally considered an employer’s property and employees can’t take them to new jobs.

To minimize these risks, Welter advises asking job candidates about active noncompetes or nonsolicitation agreements. Make sure they understand the question and you get a good answer. Also include a clause in your employment agreement stating that the employee represents that he or she has not violated any existing agreements and didn’t walk off with, say, a thumb drive packed with client lists or other proprietary information.

“If they do have a nonsolicitation agreement, you can wait it out,” Welter adds. “They’re usually for a limited period, like a year.” Trade secrets aren’t an unavoidable minefield either. “The law does say that you can’t wipe somebody’s memory…. As long as they didn’t take the client list, they can independently research it themselves.”

Stealing employees may be more important in the future than it is now, Bernstein says. He feels employee ideas of loyalty have fractured irrevocably, and if no one’s job is safe, neither is anyone’s employee. “Most people aren’t 100 percent happy with their job,” he says. “They always think the grass is greener, even if they’re in the perfect job.”

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Mark Henricks is a freelance journalist based in Austin, Texas. For more from him, check out his website at www.thearticleauthority.com.