In today's business world, non-compete agreements have become increasingly common. Employers frequently threaten former employees with litigation over breaching such agreements. This guide provides some tips for navigating the stressful process of leaving your company under a non-compete.
Leave the Files Behind
When you leave one company and are headed to work for a competitor, you should not attempt to get a head start by taking files with you. Leave the files behind. That means you leave behind proposals, marketing plans, notebooks, customer lists. Even if you personally developed these materials, you did so while working for your employer and - as a result - they are the property of your former employer. Many people think that it is harmless to download a few files, print a few documents, email themselves some materials or save some things to a flash drive. This is false. Rather than being harmless, this can actually be very harmful. If you do wind up in court, evidence that you took materials with you could damage your case. And yes, there will be evidence. Whether you printed the documents or saved them to a flash drive, there will be a trail. Bottom line: strengthen your hand by being able to go into court with clean hands. Leave the files behind.
Leave on Good Terms
Non-compete cases are ugly, expensive and time-consuming. Everyone is usually better off avoiding non-compete litigation. Perhaps surprisingly, many non-compete cases are as much personal as they are professional. Your old company (or your former boss) feels betrayed. Try to leave on good terms and avoid bad feelings. To the extent possible, provide your former company with assurances. If you have no intention of soliciting their current customers, say so. Try to let your old company know that you valued your time there, that you respect them and that you want to remain on good terms.
Think Carefully Before Signing Any Separation Agreement
If you are entitled to a severance package, and you want that severance money, then you may have no choice but to sign a severance or separation agreement. But if you are not receiving a severance payment contingent on your signing a separation agreement, think carefully before you sign. In some instances, companies will use separation agreements that contain various non-compete or non-solicitation provisions. Sometimes, companies do this because the employee never signed a non-compete in the first place; because the actual agreement may have been lost or because the first agreement was somehow defective. Unless you are receiving a severance package, there is probably no good reason for you to sign a separation agreement.
Do No Solicit Your Former Employer's Clients
As a rule, solicitation of a former employer's clients is one of the most common grounds for non-compete litigation. This is the type of conduct that is likely to serve as the catalyst for the former employer to file to file a lawsuit. Even if it is only one or two clients, the ex-employer will usually perceive this as the tip of the iceberg with more clients yet to come. Not only is this the type of activity that will spark litigation, this is also the type of behavior that will be found to violate your non-compete agreement. Soliciting a former employer's customers is one of the clearest violations of the Florida non-compete statute. It is also bad optics for your case. Bottom line: Do not solicit your former employer's clients. Wait for them to come to you. Because if they come to you, without being solicited, that is a completely different ballgame.
Consider Hiring an Attorney
If you follow these steps, you leave the files behind, you leave on good terms and you do not solicit your former employer's clients, you will greatly decrease the risk that your former employer pursues litigation. If, however, after taking all of these steps, you receive a cease and desist letter in the mail, then you should consider hiring an attorney. A strong response to a cease and desist letter may be enough to get your former employer to back down. And in some instances, it may even be necessary for you to file a lawsuit and seek a declaratory judgment holding the non-compete agreement unenforceable.