Here at the Law Office of Vincent Miletti, Esq. and the home of the #UnusuallyMotivated movement, we take pride as a resilient and dependable legal services firm, providing such services in both a traditional and online, web-based environment. With mastered specialization in areas such as Employment and Labor Law, Intellectual Property (IP) (trademark, copyright, patent), Entertainment Law, and e-Commerce (Supply Chain, Distribution, Fulfillment, Standard Legal & Regulatory), we provide a range of legal services including, but not limited to traditional legal representation (litigation, mediation, arbitration, opinion letters and advisory), non-litigated business legal representation and legal counsel, and unique, online legal services such as smart forms, mobile training, and legal marketing & development.
Still, here at Miletti Law®, we feel obligated to enlighten, educate, and create awareness about how these issues and many others affect our unusually motivated® readers and/or their businesses. Accordingly, to achieve this goal, we have committed ourselves to creating authoritative, trustworthy, and distinctive content that looks to educate and deliver in a manner that only Miletti Law® can. Usually, this content is featured as videos posted on our YouTube Channel https://www.youtube.com/channel/UCtvUryqkkMAJLwrLu2BBt6w and blogs that are published on our website WWW.MILETTILAW.COM. With the ball in your court, yours is an effortless obligation to subscribe to the channel and sign up for the Newsletter on the website, which encompasses the best way to ensure that you stay in the loop and benefit from the knowledge bombs we drop here!
As the authoritative force in Employment Law, we are committed to providing you with authoritative, up-to-date, and trustworthy content through which you can draw enlightening information to stay ahead of the game in your business. In this regard, this blog, titled “Dealing with Employee Raiding Once It Happens,” is Part XIX of our multi-part series on the “Enforcement of the Protection of Employers’ Confidential Information & Trade Secrets.” In Part XVIII and our blog titled “Preventing Employee Raiding Through “No-Hire Agreements,” we mentioned that in attempts to protect their confidential information and/or trade secrets, competitors agree that they will not poach each other’s employees by signing and entering into “no-poaching” or “no-poach” covenants known as “no-hire agreements.” However, we added that pursuant to 15 USC § 1, employers (competitors) should be aware that such “no-poaching” or “no-poach” agreements may or may not be enforceable as restraints under the Sherman Act.
As a conclusion of this discussion and series altogether, this blog is titled “Dealing with Employee Raiding Once It Happens” and concerns how employers should approach and combat incidents of employee raiding once they occur.
Dealing with Employee Raiding Once It Happens
Employers should always be on the lookout because employee raiding can occur at any time despite having implemented the policies and measures discussed in Part XVII of the series and our blog accessible at https://milettilaw.com/blog/f/preventing-employee-raiding-to-protect-trade-secrets. Every employer is responsible for seeking an expedited forensic investigation of employees’ electronic devices upon learning that a competitor has raided, could be raiding, or is attempting to raid its business for employees. Through the policy that they reserve the right of accessing, inspecting, copying, and confiscating any type of communications (including text messages and voicemails) on devices supported by or connected to the employer’s IT infrastructure, the employer may obtain valuable data concerning how the plan for employee raiding was implemented and who was involved in coordinating the business raid.
After reviewing the devices, the employer should, through its legal counsel, send desist and cease notifications to the departing employees, reminding them that they are still subject to common and contractual law obligations not to disclose, compete, or solicit, and competitors informing them of their moral and ethical obligation not to raid businesses seeking confidential information from employees.
Unfortunately, while an employer may have an actionable claim, a cause of action for employee raiding is not recognized in most states. Instead, most states recognize claims against competitors for employee raiding in the form of tortious interference, misappropriation/theft of confidential information and trade secrets, and/or unfair competition causes of action. This implies that employee-raiding claims should be brought whenever there is reasonable evidence that a competitor gained access to their trade secrets and/or confidential information by intentionally raiding a rival employer and inducing key employees to resign from their jobs.
With that, we have concluded our nineteen-part series on Enforcement of the Protection of Employers’ Confidential Information & Trade Secrets. We are confident that, based on the content we have provided since Part I, you, as an employer, employee, or reader, is more enlightened, educated, and trained on matters regarding how to enforce the protection of trade secrets and other confidential information.
We still have a bunch of other ongoing series and others to come. As usual, stay tuned for these and benefit from more education, training, and legal guidance. In the interim, reach out to us with questions and/or comments on our website at the Contact Us page!
Always rising above the bar,
Legal Writer & Author.