Moving from one competitor to another can be fraught with danger for the unwary employee. Doing things the wrong way can lead to time-consuming, stressful and expensive litigation and even loss of the new opportunity. Here are a few key considerations when making a move from one competitor to another:
- Before making the move, talk to a lawyer who has experience in this area of the law about the “do’s” and “don’ts” during and after the transition.
- Be sure to know what agreements you signed with your employer, including any restrictive covenant agreements containing non-compete, customer non-solicit, employee non-recruitment/no-hire and non-disclosure/confidentiality covenants.
- Be sure you understand what rights and obligations you have under these agreements and the applicable law.
- Do not take any information that your employer may consider to be confidential or proprietary either by downloading the information to a flash drive or other external storage device, printing the information and taking the hard copies, emailing the information to a personal or other email address, uploading the information to a cloud storage service such as a Dropbox or in any other manner.
- If you have company confidential or proprietary information on any personal electronic devices (such as home computers, personal tablets or smart phones), be sure to engage in an appropriate and defensible process to delete or destroy that information or return it to your employer.
- While still employed by your current employer, do not talk to clients or customers to request they move their business to your new employer.
- While still employed by your current employer, do not recruit or solicit employees to join you in leaving to join a competitor.
- Be sure your new employer knows what restrictive covenants you have signed and what limitations those covenants place on you in your new position.
- Be sure your new employer will be supportive of you acting lawfully both before and after your transition. For example, if you are in sales, be sure to discuss with your new employer whether customers will be notified of your transition and, if so, whether such notification comports with your legal and contractual obligations to your former employer.
- Consider whether to ask your new employer to cover any legal expenses incurred in defending yourself if you are sued even after doing things the “right” way.
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Jun 05, 2018
Benjamin I. Fink
Benjamin Fink is known for his work in noncompete, trade secret and competition-related disputes. A shareholder at Berman Fink Van Horn, Ben concentrates his practice in business and employment litigation.
