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, legal marketing, and development.

Still, here at Miletti Law®, we feel obligated to enlighten, educate, and create awareness, free of charge, 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, & distinctive content. 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 that, the ball is in your court and you have 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 feel the positive impact of the knowledge bombs that we drop here!

As the authoritative force in Employment Law, it only seemed right to introduce one of the many upcoming series in which we introduce a variety of topics that looks to educate and deliver in a manner that only Miletti Law® can. To that end, this blog is Part VIII of our series on “Best Practices for Reducing Litigation Risks when Hiring from Competitors.” In Part VII, we hammered on how an employer may “Create Institutional Protections” in an attempt to minimize and mitigate the risk of litigation for hiring from a competitor. Regarding this practice, we mentioned that hiring employers should consider guarding against potential inadvertent or intentional breaches by creating institutional protections, which may help to reduce the risk of restrictive covenant litigation. We added that, at times described as “ethical walls,” these institutional protections are integral to ensuring employee compliance and conduct in the workplace.

As a continuation of this series, we now move our discussion forward by hammering on the importance of “Ensuring the Employee Left former Employer without Incident,” which is another thing the hiring employer may have to consider in an attempt to avoid, minimize, and/or mitigate the risk of litigation for hiring from a competitor.

Hiring from Competitors – Ensuring Employee Left without Incident

An employee may sometimes accept an employment offer from a hiring employee while still engaged with the soon-to-be former employer. During such a hiring process, the hiring employer should address two critical issues and instruct the soon-to-be employee to do the following:

1. Ensure all Property belonging to the Soon-to-be Former Employer has been Returned – Usually, departing employees are expressly required, through provisions contained in restrictive covenants, to ensure they have returned any proprietary and confidential information or any other property belonging to the employer they may possess, either within a reasonable/finite duration following their departure or before leaving their job. Accordingly, the hiring employer should ensure and instruct the hire, preferably in writing, that before starting working with the hiring employer and as a way of making sure that they do not carry with them any property belonging to the former employer, they should comply with all provisions on returning property. In fact, even in the absence of an express return of property provision, the hiring employer should make sure it has taken this precautionary move.

2. Ensure that Proper Conduct has been observed and Notice has been provided during the Notice Period – Additionally, the hiring employer should demand honest and ethical behavior from the soon-to-be employee during a notice period if the potential new hire is (1) contractually obligated to observe a garden leave or notice period before they can start new employment or (2) will continue, after giving notice, working at the soon-to-be former employer. Accordingly, the potential new hire should be advised to:

  • Understand that the hiring employer’s offer of employment would be withdrawn if they violate any provisions on returning property or fail to show honest and ethical behavior
  • Not to solicit the former employer’s potential or existing clients with the intent of diverting business to the hiring employer
  • Not delay any transactions or sales with the intent of diverting the opportunity to the hiring employer
  • To cease and desist from engaging in any activities or practices that could be regarded as a conflict of interest with the former employer
  • Not to carry anything that might be viewed as the former employer’s property or even forward the same to themselves or the hiring employer
  • No to engage in any business activity with the hiring employer during the notice period-and-
  • Continue to act solely and within the interests of the former employer during the notice period.

In Part IX of this series and our blog titled “Hiring from Competitors-Obtain Written Protections from New Hires,” we will hammer on the importance of obtaining written protections from potential employees, which comprise another crucial thing a hiring employer should do to avoid, minimize, and/or mitigate the risk of litigation for hiring from a competitor.

In the meantime, stay tuned for more legal guidance, training, and education in other series in progress. In the interim, if there are any questions or comments, please let us know at the Contact Us page!

Always rising above the bar,

Isaac T.,

Legal Writer & Author.