Texas Non Compete Law After Sheshunoff: Promise to Convey Confidential Information to Former Employee Unnecessary
Another quick hit on the ramifications of Sheshenoff. In recent years, employers have not infrequently added to their non-compete agreements a promise to convey confidential information to the employee, even if the employee no longer worked for the employer when the information was conveyed. The purpose of this was to address the employee’s argument that, "Because I’m an at-will employee, the employer’s promise to provide me with confidential information is illusory because I could be fired before I get it." Employers dealt with this by contending, "We promised to give him the information regardless of whether he was still employed–thus, our promise was not illusory."
One of the good things about Sheshunoff is that it makes game-playing like this no longer necessary. Employers need not promise to give confidential information to departed employees. Employers only need to promise to give the information and then do it (the sooner, the better).