The Basics | Employer’s Rights | Employee | Elements to Prove | Recoveries | Defenses | Trade Secrets | Procedures and Injunctions | Employment Issues | Settlement Options

Employee Rights.
Absent a non-compete agreement or breach of a  confidential relationship, a worker may compete  with his employer while still in its employ, and  an employee is free to leave his employment and  enter into competition with his former employer.  Metal Lubricants Co. v. Engineered Lubricants  Co., 411 F.2d 426, 429-30 (8th Cir. 1969).

Employee Defenses.
Non-compete agreements are enforceable and  must be taken seriously, though defenses exist.  The party seeking to enforce the non compete carries the burden to prove the enforceability of  the agreement, which is subject to numerous  challenges, such as failure of consideration.

Claim Against the Employer.
The employer must be careful to avoid acting  recklessly when attempting to enforce a  covenant not to compete. First, there must be a  reasonable suspicion that the employee is, in  fact, competing improperly. Otherwise, the  employer can be liable for commencing a  frivolous law suit as a wrongful use of civil  proceedings codified at 42 Pa. Cons. Stat. §  8351, i.e, Pennsylvania’s “Dragonetti Act.”

Employer Tort Liability.
The employer should think twice before sending a letter — or law suit — to the employee’s new employer. This could explose the employer to a suit based on intentional interference with the  employee’s new employment.

Invasion of Privacy.
Before filing suit, the employer should hire a  private investigator or have some other credible  evidence of improper competition. Plus, the  employer should be careful to avoid having its  investigator discover information by improper  means that could be a violation of privacy at  common law or by statute, such as HIPAA.

Free Consultation.
We offer a free consultation regarding all issues  surrounding a non-compete.

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