HOW TO GET SUED BY YOUR EMPLOYER – top ten mistakes that lead to litigation

I am not Leno or Letterman; I am much younger and shorter than either of these guys. But I like top ten lists and want to help Virginia employees with avoiding expensive litigation – so here is the

TOP TEN MISTAKES VIRGINIA EMPLOYEES MAKE THAT LEAD TO LITIGATION:

Actually, it is only the top 5. 6-10 are on our website which you can access by clicking on this nice underlined link.

EMAIL BLUNDERS.

Remember that email you sent last fall to a colleague about how you “hated working for Virginian Incorporated LLC and couldn’t wait to quit and put them out of business?” Or how about that email you sent to your Secretary about how your “boss was a fat loser who couldn’t get a job anywhere else if she hadn’t flirted with the owner of Virginian Incorporated LLC?”

I am confident you don’t remember these emails. Most likely they were sent with little thought.

The bad news for you is that if you leave your current job, and your exit is not on the best terms – your email, computer, hard-drive, blackberry etc., will be wiped down by a computer expert after your departure. Emails, files, past Internet searches will be searched using key words, including names of other employees, company names, etc.

Do you think if they find a stash of these emails Virginia Incorporated LLC, your boss included, will simply walk away? Think again. Many Virginia companies consider it a calculated risk to go after a former employee. Their options, given this kind of communication, are numerous.

If you did plan your new business while still employed as Email 1 implies, you could be held liable for breach of fiduciary duty. If the email regarding fat boss harmed her business reputation, that could become defamation claim. If you shared these thoughts and impressions with a client, and they client leaves Virginia Incorporated LLC, that could be the basis for a tortuous interference of contract claim.

ADVICE: Don’t email anything on your work account that you couldn’t explain to a judge and jury later. Also, don’t send personal emails at work – even from a gmail or yahoo account. After you leave, these accounts can and may be accessed, searched and used against you. Under Virginia law, you have NO expectation of privacy on a work computer or cell phone. Further, this is just the kind of thing that motivates an employer to hire an attorney and file suit.

SOCIAL NETWORKING NO-NOS:

Don’t be an idiot. Everything you post on Twitter, FaceBook, Squidoo, LinkedIn etc. is in the public domain and will be used against you in litigation.

A friend told me about a secretary at his old firm, who posted on FaceBook as her profile update: “Idiot boss just came in and asked me to do something. Blah Blah Blah Blah. I work for a moron.” Moron, maybe… but a self promoting associate saw the post moments later and shared it with idiot boss, who promptly asked said secretary to pack her things and leave.

This becomes an issue even after you have left, if you are soliciting clients in breach of a non-compete agreement, or starting your own business which is also in breach.

Don’t post “Just had great dinner with guys from HAYMARKET FIRM and pretty sure I will land the account. Good connections are important.” Yes, yes connections are important and that is why your old employer made you sign a contract that you would not poach their clients including said Haymarket Firm.

ADVICE: Use your brain. Don’t post ANYTHING you wouldn’t want your old, current or future boss to read. As an aside, if applying for work, people are evaluating and judging you online before they even read your resume.

THUMB DRIVES ARE NOT YOUR FRIENDS:

I love this one.

Sept. 5, 2009 – give two week notice you are quitting in email at 12:07 pm.

Sept. 5, 2009 – take thumb drive and download entire contents of work computer to take with you, 12:09pm.

Sept. 6, 2009 – Employer takes computer to IT; IT realizes you have copied client files, names, spreadsheets, policies etc. day before.

Sept. 6, 2009 – Escorted out of building at 9:00am, receive letter written by attorney that you must return all information or face lawsuit for (1) conversion; (2) breach of fiduciary duty; (3) breach of confidentiality clause in contract; (4) trade secret act; (5) Va. computer crimes act.

ADVICE: IF you think you are entitled to something from your work computer – don’t email it to your self, or download it. ASK FIRST. The above happens ALL THE TIME and I am amazed by it really. If you have personal files, tell someone and let them know you are removing them. Don’t take everything.

LOOSE LIPS:

“Hey, bro… working with you is aaaaweessome. I am gonna tell you a secret, ok, don’t tell anyone…slurp slurp. I am serious. Can I get another beer here? No one can know. I am quitting the Company on Friday and have been planning my own company for, umm, like months… I totally think you should come work for me. What do you think man, aaaaaweeesome, right?”

Ok – now, a few beers into it, you will have no recollection of said cocktail conversation. It will however, come up in litigation when Employer needs to prove you (1) breached the solicitation clause of your non-compete agreement; and (2) you have been planning new business while an employee in violation of your duty of loyalty.

ADVICE: Resist. There are no secrets at work – you should know this.

LOOSE LIPS PART II:

“Hey Fred, buddy. How are ya? How are things at Virginia Incorporation LLC? Yea would love to do lunch. No, new job is great just wish I could remember how much you guys bid on that Fairfax job so I could bid it lower.”

No worries, right. If Fred wants to take information from old employer and give to you, his neck is on the line, not yours? WRONG. This is how (1) conspiracy; (2) statutory conspiracy; and (3) tortuous interference of contract claims are started. Don’t ask for information – if you do, you are putting yourself and other people at risk. If they offer, DECLINE. Loose lips lead to litigation.

There are more on our website in an article I wrote called top ten ways to get sued, or something like that. Read it. Listen to me. and when you have ignored my advice, contact me to discuss your options.

Lauren Ellerman

Lauren Ellerman

In 2011, Lauren Ellerman was named "Young Lawyer of the Year" by the Roanoke Bar Association for her work in the community. To speak with Lauren about your personal injury case, contact her at lellerman@frithlawfirm.com.