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 “Preventing Employee Raiding to Protect Trade Secrets,” is Part XVII of our multi-part series on the “Enforcement of the Protection of Employers’ Confidential Information & Trade Secrets.” In Part XVI, we hammered on the “Breach of Restrictive Covenant Claims under the DTSA & UTSA” and mentioned that the breach of restrictive covenant claim is one of the most common law contract claims brought by employers against employees who have engaged in the misappropriation of trade secrets and/or confidential information. We added that employers should, therefore, assert a breach of contract claim in a complaint against a departing employee who, while still subject to one or more restrictive covenants, such as non-compete or non-solicit agreements, concerning using the former employer’s privileged information, engaged in unlawful theft, misappropriation, and/or use of such trade secrets and confidential information.

At this point, we now shift our focus to the concept of “employee raiding” and how it can be prevented to protect trade secrets in our blog titled “Preventing Employee Raiding to Protect Trade Secrets” and Part XVII of our series.

Preventing Employee Raiding to Protect Trade Secrets

In business, while the primary intention is to acquire the confidential information known by employees, employee raiding refers to the practice where employees are unlawfully induced to leave one employer and accept employment with another employer (most likely a competitor to the other). In today’s competitive world, while it serves as a notable challenge to employers who wish to protect their confidential information and/or trade secrets, it is impossible to prevent employee raiding entirely. This means that to protect trade secrets and/or confidential information and retain employees, employers should take and implement measures and policies that would help curb employee raiding. Such measures and policies include, but are not limited to:

  • Implementing an electronic communication policy stating that the employer reserves 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. In the case that the employer takes legal action following an incident of employee raiding, then such access could provide valuable evidence for presenting in court.
  • Creating policies that employee bonuses should be paid at the end of the year (instead of on a monthly basis) or that bonuses would be paid but only if the employee remains employed at the time of payment. Such policies would serve as incentives to keep the employee(s) until the payment time of the bonus.
  • Including, in the employee handbook, a policy indicating that employees are expected to inform and disclose employment offers or any form of solicitation by the employer’s competitor(s).
  • Implementing measures extending the duration of standard notice for all employees working under contract or still subject to non-at-will employment covenants. Such measures would make employees less attractive to a recruiter or competitor.
  • Entering into non-solicit, non-disclosure, non-compete covenants, and other restrictive agreements with employees at the point of employment. This would discourage employees exposed to or holding trade secrets and/or confidential information from breaching restrictive covenants or such agreements for a reasonable duration following the expiration of a contract or before such a contract expires.

In Part XVIII of this series, we will move the discussion forward by hammering on the concept of “no-hire agreements” and how it could be used to prohibit employee raiding and, thus, prevent the theft and misappropriation of trade secrets and confidential information in our blog titled “Preventing Employee Raiding Through “No-Hire Agreements.””

Until then, stay tuned for 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,

Isaac T.,

Legal Writer & Author.