As a general rule non-compete agreements are enforceable in Texas if they are based on confidential information given to the employee by an employer that took steps to maintain the confidentiality of the information during the employee's employment. But it is important to remember that additional steps should be taken to keep that confidential information from going out the door with a departing employee.
Because confidential, proprietary and trade secret information is often retained in electronic form, departing employees may attempt to transfer information by e-mail to a personal e-mail account or to a storage device such as a thumb drive. Therefore, an employer should consider taking the following steps to prevent the employee from taking electronic information and violating his/her non-compete agreement.
First, immediately upon the departure of an employee, the employer should cut off the employee's access to the employer's computer system and ensure that the employee no longer has unfettered access to the building once his employment has ended.
Second, as soon as the employer learns an employee plans to leave, immediately preserve the employee's e-mail, computer hard drive and any additional electronic devices, for example, a Blackberry or mobile phone.
Third, review security footage of the building and records of any print-outs for suspicious activity such as the employee accessing the building at late hours to remove boxes of files or printing out a large volume of material.
Fourth, consider hiring a computer professional to make a forensic image (snapshot) of the employee's hard drive and other electronic devices before the employer even turns on the employee's computer and opens files to retrieve them. A forensic image can help an employer defend against any claims for spoliation of evidence and can also provide incriminating evidence showing what the departing employee accessed, transferred or deleted. Although hiring a forensic expert to review the electronic evidence can be expensive, employers should consider, at a minimum, preserving the evidence by having a forensic image created.
Finally, an employer may consider sending a departing employee a letter reminding him/her of the obligation to keep the company's information confidential and not to compete. Accordingly to the circumstances, the employer may also consider sending a letter to the former employee's new employer informing that employer of the employee's obligations not to use or disclose his former employer's confidential information.
Regardless of the circumstances of an employee's departure, parting ways can be a stressful and emotional time for all concerned, so it is all the more important to take steps to protect confidential information and avoid the future "surprise" of a former employee competing against you with your information.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
