Mistake #1 – Email Blunders
Remember that email you sent last fall to a colleague about how you “hated working for Virginia Incorporated 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 Virginia Incorporated?”
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, and iPhone, will be wiped down by a computer expert after your departure.
Do you think if Virginia Incorporated finds a stash of these emails, they will ignore them? 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, that could be the basis for a tortious interference of contract claim.
ADVICE: Don’t send anything on your work email 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 little 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.
Mistake #2 – Social Networking No-No’s
Everything you post on Twitter, Facebook, or LinkedIn, is ripe evidence during employment litigation.
Consider an employee who posts, “Idiot boss just came in and asked me to do something. Blah Blah Blah Blah. I work for a moron.” A rival employee saw the post moments later and shared it with the Idiot Boss, who promptly fired her.
Does she have legal recourse? Maybe.
Under the National Labor Relations Act, there are protections for employees who talk about workplace conditions on social media.
But consider the consequences and post carefully.
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 Competitor Firm and pretty sure I will land the account. Good connections are important.” 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 common sense. Be careful not to post anything that you would not want your past, present, or future employer to read. As an aside, if applying for work, people are evaluating and judging you online before they even read your resume.
Mistake #3 – Thumb Drive Downloads
This happens all too often.
An employee gives two-week notice by email, and within minutes, inserts a thumb drive into their work computer and begins downloading the entire contents of their work computer.
The employer – rather than wait two weeks – instructs you to leave the next morning. No sooner after the door shuts behind you than an IT expert arrives to inspect your computer. A computer forensics team discovers you have copied client files, client names, proprietary spreadsheets, and work policies the day before.
Within several weeks, you are faced with a Virginia lawsuit for conversion, computer trespass, breach of contract, violation of the Virginia Computer Crimes Act, violation of the Stored Communications Act, violation of the Computer Fraud and Abuse Act, and breach of the confidentiality clause in your agreement.
ADVICE: If you think you are entitled to something from your work computer, get permission before you send it by email or download it onto a thumb drive from your work computer. If you have personal files, and many of us do, tell someone and let them know what you are removing. By all means, do not download everything on your work computer.
Mistake #4 – Cocktail Conversations
This happens at Happy Hours:
“Hey, bro… working with you is aaaaweessome. I am gonna tell you a secret, ok, don’t tell anyone… I am serious. 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?”
Perhaps after a few beers, you have no memory of the conversation.
Someone will remember, however, most likely a lawyer who needs to prove you breached the solicitation clause of your non-compete contract and began planning a competing business at work on company time while working as an employee in violation of your duty of loyalty.
ADVICE: Resist the urge to share personal secrets in the workplace, especially when it concerns your career. There are no secrets at work, even at after work events.
Mistake #5 – Loose Lips
You have an obligation to keep certain information confidential:
“Hey Fred, buddy. How are ya? How are things at Virginia Incorporated? Yeah, I 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 share information from an old employer and give it to you, his neck is on the line, not yours
Wrong. This is how (1) conspiracy, (2) statutory conspiracy, and (3) tortious interference of contract claims begin. Do not ask for information from a rival. If you do, you are putting yourself and other people at risk. If they offer, decline.
Loose lips sink ships – they also lead to litigation.
Mistake #6 – Lying
An email resignation states the following:
“Effective next Friday, I am leaving the work force to be a full-time mother and wife. I have enjoyed working with you and appreciate the opportunities you have given me. I believe focusing on my family is my next step.”
Seems okay, right?
Instead of being a full-time parent, you start your own business from home. Sure, your plans may have changed, but the company may become suspicious and wipe your computer and email for evidence. Lying may lead to claims of breach of the non-compete agreement or breach of fiduciary duties, among other potential claims.
ADVICE: Companies, if they think you are lying about your work, may be motivated to sue.
Mistake #7 – Leaping Before You Look
Employees will sometimes assume that their non-compete is unenforceable, and without gathering more information switch jobs, start a competing company, or contact their former clients.
The assumption is generally wrong, unfortunately, because often times there are nuances in Virginia non-compete law that require a second look.
You might be correct that the contract is non-binding – but why risk it?
ADVICE: Before you start a business or rely on your intuition, speak with a Virginia legal employment attorney about the non-compete clause in your contract. You could be on the hook for lost profits and other damages if you breach a valid agreement, and often, there’s a better solution.
Mistake #8 – Misinformation About “Right to Work”
Many employees assume their non-compete agreement is not binding against them because fo a misunderstanding about the legal term “right to work.”
They wonder, “Virginia is a right-to-work state, therefore no one can prevent me from making a living, right?”
It’s true that Virginia is a right-to-work state, but “right to work” refers to your right not to join a union – it has nothing to do with employment contracts.
Before you sign an agreement, or breach it, under the misimpression that you have a “right to work” and can ignore your contract, speak with a Virginia non-compete attorney about your rights.
ADVICE: Rather than rely on the popular meanings of certain terms in your contract, speak with Virginia employment law firm about the terms of your non-competition, non-solicitation, and confidentiality agreement. Often, the cost of a review will protect you from later expenses.
Mistake #9 – Assuming Your Company Will Pay for a Lawsuit
Employees will sometimes assume that their new employer will pay their legal costs if they are sued by a former employer for breach of a non-compete agreement.
The assumption is generally wrong, unless you have received written assurance that your new employer has agreed to indemnify (or pay for) any judgment against you under the contract.
An oral promise is generally unenforceable, so be sure to get an agreement to indemnify in writing before you rely on your new employer’s assertions.
There are many reasons why new employer’s would agree to back you up in a lawsuit – defending you might make sense from a business perspective, especially if you are a key employee with a solid book of business and a contract that is likely unenforceable.
ADVICE: Before you assume that your new employer will pay for litigation, have an open and honest discussion about your non-compete agreement during the hiring process. Get it in writing, and make it a condition of hire.
Mistake #10 – Self-Help Legal Advice
Maybe you are the kind of person who installs car radios without instruction books and files your own taxes despite very complicated earning issues. But let me tell you, an employment contract is a very complicated document. It probably took an attorney weeks to write, and each word has a unique legal meaning.
So why would you (1) sign it without reading it; (2) sign it without understanding it; (3) quit without understanding your limitations; (4) look for a new job without knowing your legal rights?
ADVICE: At every stage of your career transition – interview, hire, offer, and termination – speak with a Virginia non-compete attorney before signing any documents. Our firm can provide you with advice and counsel on your rights as an employee, and develop a plan of action.