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A year ago, I wrote a post for employers looking to protect themselves (and their secrets and customer relationships) with noncompetes. (See "Eight ways to lose a noncompete case.") It only seems fair that I should offer something for the departing employees to consider before they leave. (Wait a minute .... Is this helping the other side? No: it's not about sides. See "Rethinking noncompetes.")
If you want to make sure to find yourself on the business end of a noncompete lawsuit, do the following:
- Take documents. When you take documents with you from your old employer, you cede the moral high ground. Oftentimes, your lawyer needs to argue how unfair it is for the big bad company to prevent poor little you from making an honest living. When you take documents, that whole "honest living" bit starts to sound off-key. To be sure, there's a big difference between taking the secret formula of Coca-Cola (or the secrets to the nooks and crannies in English muffins) and taking a generic business template. Your lawyer might be able to argue that the documents you took weren't really secret, and thus not worthy of as much protection. By why even go there? Don't take any documents, secret or not.
- Email stuff to yourself. It always amazes me how often seemingly smart people appear to lose the use of their brains when it comes to email. A typical routine for a departing employee is to send email to a personal account from his or her corporate email account. Why on earth do you people think no one's going to catch you doing this? Because no one was next to you when you hit "Send"? Email uses computer networks, monkey boy. Computer networks keep track of stuff — we call it data. When this data shows you sending emails to yourself, people assume the worst — that you're stealing stuff. Don't do it. You will always get caught. And then you will get sued.
- Use thumbdrives. This is a newer technique for taking documents. Instead of creating an email trail, departing workers use a tiny thumbdrive to make copies of documents and walk out the door with them. Over the years, thumbdrives — which can be as small as a stick of gum folded in half, with a USB plug sticking out of one end — have gotten cheaper, faster, and (in terms of amount of storage) bigger. But what these geniuses fail to realize is that these miniature hard drives have serial numbers, and the computer it gets plugged into often logs that serial number. With some system setups, the employer can see exactly what files were moved between the computer and the thumbdrive. Don't take the chance. Assume that the other side will find out whatever you don't want them to know. Leave your thumbdrive at home.
- Divert business. Most courts around the country have ruled that it's OK for an employee to prepare to compete before leaving. They have recognized the reality that people don't leave their old jobs until they have something definite lined up for afterwards. Generally, preparing to compete is not itself a violation of a noncompete agreement. But actually competing before you leave is. And it's also a breach of the duty of loyalty that every employee owes to an employer. Diverting business to your new company while still collecting a paycheck from your old one is wrong and unlawful. Even if you know that you're going to miss a golden opportunity, too bad. Don't divert business.
- Solicit customers before you leave. Related to the last point, it's also a bad idea to talk to clients before you leave. Yes, it would be nice to know that they're prepared to follow you to your new endeavor, but life is about taking risks. If the customer really likes you, they will follow you no matter what. So have faith in them, and in yourself. Don't talk to clients about your leaving before you actually go.
- Talk coworkers into leaving with you. This also makes employers very angry. They start to worry about a mass exodus, and they start using loaded words like raiding and poaching and piracy. Plus the courts tend to be less sympathetic about Pied Piper departing employees. A court may invalidate a noncompete because the employee's right to ply their trade outweighs the employer's right to have its noncompete enforced. But an employee has no particular right to poach other employees. Leave your friends behind. They can always join you later down the road.
- Leave disrespectfully. I know, I know. This sounds a little touchy-feely. It's not. This is the product of litigating noncompete and other employment cases for the past 16 years. It's cosmic law: people sue people they don't like. People don't sue people they do like. Burning your bridges on the way out directly increases the chances that you'll get sued. Sure, you might leave in a respectful and grown-up manner, and still get sued; you can't control other people's decisions. But you can reduce the risk of a lawsuit by leaving the right way. Saying things like "I've enjoyed my time here," "I have an opportunity and I owe it to myself and my family to try to pursue it," and "I have no intention of harming you" are all things you can do to lower the chances of a lawsuit. Slamming the door on the way out after cussing out your old boss is a good way to increase the chances of being sued.
- Act "cute." I see this all the time. People like to play lawyer and come up with "clever" (I'm making finger quotes here), technical ways of getting around their noncompetes. Like having a coworker quit or a customer fire the old employer, waiting a week or two, and then having them join your new company. ("What? They're no longer a customer/employee." I call this acting cute. All it does is make you look guilty. Your former employer will see right through it. The judge will see right through it. I've seen many cases that were lost because the employees acted cute. Don't.
Avoiding these eight mistakes will not guarantee your freedom from a noncompete lawsuit. But it will decrease your chances of getting one, and it will increase your chances of winning it.
Discussion question: What are some other things you've seen people do to buy themselves noncompete litigation? Leave your answers in the comments below.
