By: Daniel H. Aiken
Employers frequently want to hire talented employees who are bound by post-employment restrictive covenants (e.g., non-competes, or customer/employee non-solicitation covenants). Often, a plain reading of the prospective hire’s agreement raises questions about whether joining your company would violate the agreement. This requires strategic, and sometimes creative, planning. Depending on your jurisdiction, deciding to hire an employee despite their post-employment restrictive covenants may involve taking a calculated risk that some parts of the post-employment restrictions are not enforceable, while deciding that there are some aspects your company can live with and that you expect the new employee to follow. The following provides some basic guidance.
1. Assess the business impact of the restrictions by determining the precise scope and duties of the prospective job. Even though the individual may be subject to post-employment restrictive covenants, the job for which you intend to hire him/her may not fall within the restrictions. Or, inasmuch as most restrictive covenants will expire — sometimes in a matter of months — you may decide that the company can tailor the scope of the intended position so that the new employee can still add value, but not perform work that would violate the individual’s obligations to his/her former employer. Can the person be employed in a capacity that does not violate the restrictions until they lapse? Can the person be employed outside the geographically restricted area or assigned to existing customers different from those of the former employer?
2. Review and analyze the legal risk. Analyze the true legal risk of proceeding. By “true” legal risk, I mean the likelihood that the former employer will succeed if it takes legal action, as well as the likelihood the former employer will actually take legal action. This should include an analysis of the scope of the restrictions and their enforceability given the applicable state law, whether the action will be brought in federal or state court, as well as an assessment of the likelihood that a court will enforce the restrictions. This will vary according to the applicable state law and circumstances. You should also consider more practical issues such as the former employer’s litigation history, the importance of the potential hire to the former employer, and the extent to which employment with your company differs from the prior employment. Other practical considerations should include a review of the industry and whether post-employment restrictions are commonplace, whether the two companies compete for the same customers, and a frank review of your company’s flexibility in defining the scope of the intended position.
3. Hire away, or don’t, but proceed with caution. Having analyzed the legal risk and business impact of the restrictive covenants on your proposed hire, determine whether you are comfortable proceeding with the hire in the intended position, or if there is a different, or modified position, that would still suit the company’s needs while lessening the legal risk. Analyze and take available appropriate steps to minimize the risk of being sued, or, if sued, the risk of a lengthy or costly suit. Communicate, in writing, what you expect of the new employee. For instance, you and counsel may reach the conclusion that the prospect’s non-competition restrictions are overly broad and will not be enforced under the circumstances, but that a court is likely to enforce a customer non-solicitation covenant. Accordingly, you may decide to move ahead with the hire, and plan to keep the new employee away from former customers.
Typically, the company’s offer letter is a good place to memorialize such expectations. In our scenario, the offer letter should state, as a condition of employment, that the new employee does not possess and/or will not use his former employer’s confidential information and that the employee will not solicit former clients (as well as any other restrictions that your company expects to be followed). The employee, especially if sophisticated or if represented by an attorney, may seek indemnification for any legal action taken by his former employer. Determine whether you are willing to entertain such a request. Consider also what type of an “out” you have, both of the employment relationship and/or indemnification, i.e., what recourse does the company have if ensuing litigation is going badly or you find the new employee was not truthful about not taking any confidential information from the former employer?
4. Protect your company from the beginning. Companies often get into trouble when recruiting a prospective employee long before the actual hire. Employees may pitch their importance by showing you their customer list or sales volume, but these items are likely to be considered confidential by their employer, if not trade secrets. Further, the employee may offer to bring with them a junior colleague and provide you with confidential information about the employee or may start contacting customers about his or her intentions. Those actions may have already violated the person’s restrictive covenants. Ground rules for such activity should be established during the interview process, in writing, if possible. Also obtain written confirmation that the potential hire is not under any undisclosed restrictions and communicate, in writing, that the prospective employee is not to disclose or use confidential information or trade secrets and is not to take or bring any property or information belonging to the employer. Follow through and make sure the person complies fully with those requirements.
Although there is no way to prevent a suspicious former employer from challenging your company’s hire of one of its employees, following this guidance will place your company in a better position in the event of such a challenge.