Q: One of my agency's key employees has
announced his resignation and plans to go to work for a large
agency moving into our town.
If he starts recruiting some of my other employees before he
leaves, can I successfully sue him for hurting my
business?
He claims that he is entitled to "freedom of speech" at
work.
Is this true?
A: Yes, you may be able to sue him successfully
for an injunction and damages, depending on the law of your state.
Even if you don't actually sue, your threat of a suit may well
achieve the result you seek.
In the absence of a written employment contract prohibiting
solicitation of your other employees, you have to rely on the
employment statutes and court precedents of your state.
As you already know from reading my columns, employment law is
different in each state, so it's hard to generalize.
Nevertheless, a recent court case in the state where I practice
(Virginia) shows how you could prevail in court and is based on
principles that may well apply in your state.
In the Virginia case, the court began by noting that a resigning
employee is entitled to make "reasonable arrangements to resign,
including plans to compete with the employer."
However, the court said that the employee steps over the line
and breaches his fiduciary duty when the employee uses trade
secrets, misuses confidential information and solicits other
employees prior to termination.
Furthermore, the court held that the employee as well as the new
employer could be liable for conspiracy if they hatch and implement
a plan to solicit clients and employees before the resignation
takes effect, and if they intended to bring about a result that
would injure the employer's business.
Since a full-blown trial and possible appeal of this kind of
case could cost over $100,000 in legal fees, you naturally want to
avoid litigation if possible.
Written employment contracts that prohibit such behavior will
often deter it.
Once it happens, a strongly worded letter from your attorney
will often stop these activities quickly.
Finally, there is no such thing as "freedom of speech" in a
private company.
The concept only applies to government action.
Mark Pestronk is a Fairfax, Va.-based attorney specializing
in travel law. He answers your questions in the Crossroads Legal Issues forum. To contact Mark directly,
e-mail him at [email protected].