We spend a good deal of time advising clients on how to stay out of court. Some clients, however, find this approach too conservative, stodgy or dull and would prefer to be involved in otherwise avoidable litigation. They often complain that, “Things are just going too well for me,” or , “I need some drama in my life.” Since we do not want to alienate any client or potential client with practical, financially sound legal solutions, we are offering some tips on how to end up in court, lose money and dismantle that which you worked hard to build. Of course, if you are like most of our clients, we strongly suggest that you disregard everything that follows.
You have been with your current employer for some time and you are good at what you do. It’s time to leave the nest to start your own company. You like to challenge yourself, so rather than focusing solely on your new endeavor, you want to leave your current employer in such a way that you can be sure they will initiate distracting, time-consuming and expensive litigation against you. Here are a few suggestions to assure this result:
Steal things. Nothing makes your former employer happier than when you steal things before you leave. Staplers and mouse pads are a nuisance but customer lists, proposals to clients, pricing information, form documents or product specifications should get you into court quickly. Since most of these items are stored electronically, downloading them to a thumb drive or emailing them to your personal Gmail account should leave an easy trail for your employer’s IT department to track.
If you are clever enough to steal these items, you should expect your employer to seek a preliminary injunction – an order from a court to do or not do something – prohibiting you from working. Because of the emergency situation you have created for your employer, you should expect to incur significant legal fees quickly to prepare for significant court events early in the litigation.
Breach your non-compete. Restrictive covenants that limit a person’s ability to make a living are enforceable under Pennsylvania law but are disfavored and courts look closely at them to determine whether they are really necessary to achieve an employer’s legitimate business interests. In light of the opaque legal standard and the desire the avoid litigation, a negotiation between the former employer, employee and new employer regarding the scope of the employee’s employment is often a reasonable solution. The strength of the restrictive covenant, the employee’s role in the company and the job responsibilities at the new company would all inform this negotiation. But what’s the fun in that?
The adventurer leaves his employment by providing no notice to the former employer. He immediately begins work with the direct competitor located just down the street doing the same job he did with the former employer.
“Soften” your transition by diverting opportunities. Even absent any employment agreement, Pennsylvania law imposes a duty on employees to be loyal to their employers. This means that diverting customers, projects or opportunities that come to you because of your job may be a problem if you want to stay out of court. Although an employee may make plans and take steps to start a new venture while still employed, they may not do it on the employer’s time or using the employer’s resources.
The buccaneer business person will tell their customer contacts and subordinates that they are leaving months before they alert their employer. Since the departing employee wants to make sure she has the best employees for her new venture, she makes employment offers to all her subordinates. She will quietly promote her new venture at trade shows and other events that she is attending on behalf of the
employer.
Takeaway
If you are considering leaving your employment, engaging in this type of behavior carries a significant risk of litigation. The law is generally reluctant to restrain the free movement of labor but there are limits.