It’s a situation that happens more often than you might think: An employer finds out that one of its employees is preparing to leave and set up her own shop.
The discovery can happen in any number of ways—a telltale incoming piece of mail addressed to the employee, perhaps. Maybe the clues are in an email flagged during a routine review of computer servers. A customer might casually ask whatthinks of the employee’s upcoming departure. Quite often, office gossip is the giveaway.
But is the employer handcuffed, unable to do anything about the upstart competitor because this employee didn’t sign a noncompetition agreement?
Can’t serve two masters
There are right ways and wrong ways for an employee to leave your company. Just because an employee isn’t subject to a noncompetition agreement doesn’t mean she can’t be liable for mistakes made on the way out the door.
Even without a noncompetition agreement, an employee cannot serve two masters at the same time.
While in your employ, an employee has an absolute duty to act in your best interests, and not to act in the interests of anyone else in a way that is contrary to yours.
This duty is known as the duty of loyalty, which every employee owes to her employer, up to the moment she ceases employment.
Done but not yet gone
Your employee may prepare to compete against you while still in your employ without violating this duty of loyalty.
There are many reasons why an employee may choose to prepare to compete while still employed.
Some need the income provided by ongoing employment. Some want a degree of certainty that their new competitive venture will be ready to operate.
Others may be looking for an eventual competitive advantage from continuing to work for their present employer (such as knowledge of pricing or business plans, or ongoing associations with key employees, customers and vendors).
There are certain steps that an employee can legally take to prepare to compete without violating this duty of loyalty, even while still employed and even if done stealthily:
- Incorporating the new firm
- Arranging for space and equipment
- Securing financing
- Making future business plans.
What employees can’t do
But, those preparations are subject to certain legal limits. The duty of loyalty prohibits employees from doing any of the following while still your employee:
- Using your property (computers and copiers, for instance) to prepare to compete
- Using confidential information or your trade secrets to prepare to compete
- Actually starting the competing operation
- Soliciting employees or customers for the new enterprise
- Holding back business opportunities or diverting them to the new enterprise.
5 ways to protect yourself
What can you do to prevent employees from engaging in these illegal activities? Consider these five ideas.
- Require key employees to sign noncompetition agreements.
- Consider requiring a wider subset of employees sign nonsolicitation agreements.
- Have all employees sign policies protecting confidential information and trade secrets. At a minimum, incorporate these policies into your employee handbook.
- Incorporate statements about employee loyalty into the handbook.
- Do not accept notice periods upon resignation for any employee you think is a risk to compete.
These five tips won’t magically transform a disloyal employee into your lap dog.
They will, however, place you in a position to hold the disloyal employee accountable for her actions.
And, if you find out that a current employee might be competing, here’s your best course of action:
- Call your attorney.
- At a minimum, suspend the employee pending an investigation. Also suspend all computer and network access.
- Consider conducting a forensic examination of computers and email accounts to uncover any evidence of illegal competition. While these reviews can be expensive, it’s almost certain that if an employee is illegally competing, there will be at least a trace of it somewhere on your network. That evidence is invaluable.
- Upon confirmation of the competition, convert the suspension to a termination.
- Consider legal action, depending upon the scope of the competition and the harm caused.
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