Practical considerations in this area of the law include the following:
For the Former Employer :
1. In addition to (or in lieu of) a non-compete provision, an employment agreement may contain non-solicitation or employee raiding provisions. A non-solicitation provision typically prohibits a departing employee from soliciting his former employer’s customers. The "old" employer should be cognizant of the fact that solicitation
can be very difficult to prove. The departing employee is likely to contend that his new customers contacted him (rather than him soliciting them). Many times, the customers will side with the departing employee. Before filing suit for breach of a non-solicitation agreement, an employer should be confident that it will be able to provide that solicitation occurred.
2. Counterclaims are likely. A former employee who is sued for violating a non-compete agreement may file a counterclaim for discrimination, harassment, unpaid wages, or for some other alleged wrong. Before suing a former employee, an employer should try to anticipate possible counterclaims.
3. One-size-fits-all agreements are not advisable. Every state has its own laws governing non-compete agreements. It is virtually impossible to draft a non-compete agreement that will be enforceable in all 50 states. Non-compete agreements are particularly difficult to enforce in Texas. It is important that all employers – and, in particular, non-Texas companies that have employees in
Texas – ensure that their agreements comply with Texas laws.
For the Employee:
1. Give everything back. A departing employee should return all of his former employer’s property. Taking the former employer’s documents or information (including copies thereof) can get the employee sued for conversion, theft of trade secrets, etc. Even in cases where the employee has not signed an agreement requiring her to return company property, she should do so.
2. Beware e-mails. Employees sometimes mistakenly think that e-mails they send from work are "private." Not so. By searching computer hard drives and networks, employers can locate e-mails received and sent by former employees, including e-mails that the employee had previously deleted. E-mails sent and received by employees can enable the employer to prove wrongful solicitation of the employer’s clients, breach of fiduciary duty, theft, etc.
3. Beware phone calls. As with e-mails, employees sometimes erroneously believe that telephone calls they make are undetectable. But telephone records subpoenaed by an employer can yield evidence of wrongful conduct (e.g., solicitation of the employer’s customers). Employees
must be mindful of the fact that telephone calls, like e-mails, are not completely undetectable.
For the "New" Employer:
1. Ensure the new employee is "clean." To the extent possible, the new employer should ensure that its new employee does not possess, use, or disclose to the new employee’s other employees any of the former employee’s confidential, proprietary or trade secret information.
2. The new employer should also get assurance from its new employee that the latter is not a party to a non-compete agreement that prevents the employee from working for the new employee. The new employee obviously needs to protect itself from being sued for tortious interference
with contract, misappropriation of trade secrets, or other wrongful acts.