Restrictive Covenants
RESTRICTIVE COVENANTS
by Stephen P. Horner, Esq.
Question:
One of our former employees has downloaded our entire computer file and taken it with him just after we terminated him.
He also is calling our potential clients and is “bad-mouthing” us to them.
Lastly, he is starting to work for our biggest competitor although he agreed not to work for a competitor for two years after he stopped working for us.
What can we do about this??
Peter P, Madison, CT
Response:
Presumably, your company did not offer your former employee a “separation agreement” which provided him/her with some severance pay in exchange for a full release of liability, non-disparagement, confidentiality provision, etc. For future discharges, I suggest that your company consider doing that so that the parting is more amicable. It appears that your former employee is trying to do as much harm as possible due to his having been terminated.
If the former employee did sign a separation agreement and he has violated its provisions by taking the above-described actions, you could file suit against him for having breached the agreement. A less aggressive step would be to have your attorney contact him with regard to his being sued if he doesn’t promptly cease and desist such actions.
With regard to his actions, it certainly appears that he has improperly stolen your computer information. If such information contained proprietary, confidential company information, such theft from a computer is a criminal violation in Connecticut.
In addition, such actions are most likely a violation of the Trade Secret Act.
If his “badmouthing” of the company to its clients is defamatory, that would likewise be a tort in Connecticut. In order to fully answer this question, what exactly was said to the company’s clients must be reviewed.
It would appear from your background information about the former employee that he either signed a non-compete agreement earlier in his employment or there was a non-compete provision in a severance agreement. In either event, if it prohibited him from competing with your company, then he has violated that agreement as well. It should be noted, however, that the courts in Connecticut (as well as in New York) are most reluctant to enforce non-compete agreements unless they are eminently reasonable and do not significantly impact on “freedom of enterprise”.
Contact Steve Horner at shorner@horner-law.com
