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Can we make this hire? Confidentiality agreement doesn’t include a noncompete

by on
in Hiring,Human Resources

Q. We want to hire an applicant, but received a letter from his employer stating that working for us would violate a confidentiality agreement he signed with that employer. Since he doesn’t have a noncompete agreement, can we hire him?

A. Since the confidentiality agreement doesn’t contain a noncompetition provision, it may not bar you from hiring the applicant—if he can do the new job without using or disclosing the former employer’s confidential trade-secret information.

To determine whether this is the case, you should obtain a copy of the confidentiality agreement and review it carefully with legal counsel to assess whether the new position can be performed without the applicant violating any obligations to his former employer.

If you decide to make the hire, you should consider taking steps to prevent any possible violation of the confidentiality agreement, such as “walling” off the individual from projects that might pose a greater risk of a confidentiality breach.

You might also document these instructions to the applicant:

  • Ask him to return all the former employer’s property and information before joining your company.
  • Instruct him not to use or disclose any of the other company’s confidential or trade-secret data in his new employment.

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