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Can a former employer hold me responsible for a non-compete / non-solicit agreement that does not exist?

Dallas, TX |

I am interested in hiring a couple of former employees. My former employer has sent me a letter threatening to sue me for not living up to my end of the agreement. The so-called agreement was written into a clause in the employment agreement, but for whatever reason, when I was hired, this document was never part of my new-hire paperwork, meaning there never was an agreement between myself and my former employer.

Attorney Answers 4

  1. Best answer

    Under Texas law, if you did not sign a non-solicitation agreement, you are perfectly free to solicit your former employer's current employees. This assumes, of course, that the current employees at at-will employees and do not have non-compete obligations. Otherwise, they are fair game under Texas law.

    You need to be aware of confidentiality and trade secrets issues, of course, but that does not stop you from hiring the employees if they are not subject to non-competes and you are not subject to a non-solicitation covenant.

  2. Even without an agreement defining your duties post employment, you still owe the former employer duties to not take their confidential information. You also owe a duty to not interfere with the former employer's contractual expectations with its employees.

    You should not target your former employees. You can advertise for open positions and should seek to attract all interested people. You should make all offers of employment in writing and confirm that they are bringing nothing with them from the prior employer. You also want the prospective employees to represent that they are not restricted by any written agreements.

    You should review the recruiting plan with corporate counsel to prepare to defend the entity from civil liability later.

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  3. He may not realize that he does not have an actual agreement. Therefore, the first step I would take is to ask him for a copy of the agreement to which he refers. If he is unable to produce it, then you are free to hire anyone you want. I think it would send a much stronger message for that letter to come from a lawyer, and giving him a specific number of days to respond. My firm can help you draft such a responsive letter. There are other issues, and steps you will want to take to better insulate you and your company from liability. Give me a call if you would like representation in this matter. My number is 972-702-6061. We handle all small business issues, including employment and noncompetes (whether they exist or not).

  4. I agree with Mr. Walker's admonitions to you. The first step is to confirm what you signed and what, if any, agreements those employees signed. Non-solicitation agreements are enforceable in Texas. Additionally, you and those employees are bound by Texas law not to use a former employer's confidential information. You may be sued for tortious interference with your former employer's employment contracts and for misappropriation of their trade secrets. This type of litigation is costly. You should consider that cost versus what these hires will bring to your business. If the rewards are that great, then you need to consult a lawyer to paper your trail and reduce the risk of such litigation being successful against you. I am more than happy to discuss with you your situation to determine the best way for you to proceed. 713-752-8656

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