Leaving Your Employment With A Non-Competition Agreement

Restrictive Covenants, including confidentiality agreement, non-competition and customer non-solicitations agreements are the rage.  Many employers are now requiring their middle and upper level employees who have contact with outside customers or have access to the employer’s trade secrets or confidential information to agree to restrictive covenants.

If you are planning to leave your employer, whether voluntarily or involuntarily, and you have entered into a restrictive covenant, there are time-tested ways to minimize practical and legal problems down the road.

Suggestions are as follows:

1. Confidentiality Agreement

Most employers require their employees to enter into Confidentiality Agreements. These agreements require employees to keep confidential for years or an unlimited period of time, confidential information they became aware of about the employer while employed.  These agreements are almost always valid and enforceable.

2. Your Prospective Employer

Give a copy of any Confidentiality, Non-compete or Non-solicitation Agreement to your prospective employer.  That employer needs it so they can understand whether you have work or solicitation limitations, and if so, how to design your position so that you are not in violation of these prohibitions.

3. Customer Non-Solicitation

Customer non-solicitations are generally enforceable in Georgia as long as they prevent you from soliciting customers with whom you had material contact while you were employed at your employer.  A customer non-solicitation does not prohibit you from maintaining a social friendship with that customer, nor does it prohibit you from accepting business from a customer who prefers to work with you rather than your former employer.

4. If You Do Not Have A Non-Compete or Non-Solicitation Agreement

Even without either of these agreements, you cannot breach your duty of loyalty to your current employer by soliciting customers or employees while you are still employed.  You can be sued for this conduct by your employer and required to pay for the damages suffered by that employer.

5. Return of Property

Return all property to the employer unaltered, undiluted and its original condition as much as possible.  Nothing will create distrust with an employer and the court as when you erase data off a computer or scrub a computer’s hard drive before returning the computer.

6. If You Receive a Demand Letter

If you receive a letter from your employer, employer’s attorney or a lawsuit of accusing you of violations of the restrictive covenants, obtain competent advice and make sure that you quickly a game plan on how you plan to respond to your employer and how that fits in your plan for working down the road.

Bottom Line

The best approach is dealing with restrictive covenants is to follow them to the letter until you obtain competent legal advice which indicates that the agreements are unenforceable or overbroad.

Moreover, inform your prospective employer of all such agreements.  This obviously is the right thing to do both legally and as a matter of fairness.

Further Questions/Inquiries

If you have further questions, please contact Gary R. Kessler via e-mail or at (404) 909-8100.