Employers are often surprised to learn that, by default, there is nothing stopping their employees doing just that. We can help you to prevent or remedy these situations by putting reasonable limits in place.
Confidentiality and Fiduciary Duties
Most employees have confidentiality, and higher level employees may have fiduciary duties which will further limit their ability to compete. The duty of confidentiality will prevent any employee from using confidential information for the benefit of themselves or other third parties. For example, they cannot use their knowledge of their former employer’s pricing strategy to deliberately undercut them, or their knowledge of when contracts will expire to strategically target their former customers.
However, if employers want to impose additional post-employment restrictions upon their employees, they will need to do so through contract. The two most common forms of restrictions are non-competition covenants and non-solicitation covenants.
Any restrictive covenant will be subject to scrutiny, as courts are reluctant to unnecessarily interfere with an individual’s ability to earn a living. It will have to be outwardly and subjectively reasonable and justifiable.
Non-Competition Covenants
By default, non-competition covenants, which preclude an individual from taking any job in the same industry, will often be seen as unreasonably restrictive and therefore, unenforceable. The employer seeking to enforce such a clause will have to show that it is reasonable in the circumstances. Even if a court agrees that circumstances warrant a non-competition covenant, the specific terms will be assessed in order to determine whether they are reasonable. These include:
- the length of time,
- the geographic scope, and
- the scope of companies that would fall within the limitation
Non-Solicitation Covenants
Conversely, courts are more willing to enforce non-solicitation covenants. These covenants allow an individual to work for any organization, but preclude them from pursuing their former employer’s customers for a specified period of time. As a result, it does not shift the individual out of their chosen industry. Again, however, the employer seeking to rely upon such a clause will have to show that the terms are reasonable. In this context, the terms in question will typically be the length of time and the scope of customers or potential customers included.
If you over-reach, you may lose all protection
If you implement too few or too many restrictions, you risk going to file a claim and finding that they are unenforceable, in which case you will have no protection.
Courts will not “fix” clauses that they deem to be unreasonable. In other words, if a court finds that a non-solicitation covenant of six months would be appropriate, but the employer is seeking to enforce one that is for twelve, they will not reduce it to six. Rather, the clause will be struck out in its entirety. As the Rolling Stones say, “you can’t always get what you want, but you get what you need”. This is the approach that the courts will take in determining whether a cause is reasonable.
How We Can Help
We will work with you in order to determine your needs and then put appropriate restrictions in place. This should be done on a case-by-case basis, so that the restrictions you want to impose can be justified if necessary. And if your former employee is breaching his obligations and competing unfairly, we can represent you, file a claim and, if warranted, seek an injunction to force them to stop.
We want to be your Trusted Advisor, your Chief HR Law Officer, your business partner. Let us be part of your team, so that we can look after your employment law issues, and you can focus on your business.
