Bad news. You can be sued by your old employer even if you do not have an employment agreement.
Most Virginians are unaware that they have certain legal obligations to their employer regardless of whether they have an employment contract. These duties are defined and created either by Virginia Code, or the common law. This means they are written into law, or over time, the courts have recognized these duties as part of Virginia’s legal system.
I understand that employees are rarely given lists or explanations of these duties. In fact, many Virginia employees are not aware that they may be held accountable for certain actions taken while an employee or shortly thereafter. They are surprised to learn they do not have the right to start their own business, compete, etc.
Sadly, ignorance is no defense under the law.
For the next week, I will write about those common law duties and those defined by Virginia Code. These are not optional and a breach of any of these duties, or even the appearance of breach could lead you to the courtroom.
Virginia Trade Secret Act
Tortious Interference of Contract
Tortious Interference of Business Expectancy
Fiduciary Duty of Loyalty
1. VIRGINIA TRADE SECRET ACT
Virginia Code defines a trade secret as “information that derives independent economic value from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” Va. Code Ann. § 59.1-336.
Virginia Code defines “misappropriated” as either “acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or disclosure or use of a trade secret of another, without express or implied consent…” Va. Code Ann. § 59.1-336.
If you use secret information from company A, for your own benefit, or take it to company B, you could be in violation of the trade secret act. This could include the following information:
· Customer lists
· Price lists
· Information protected by patent, trademark, copyright
If the information you want to re-use is available to the public (website, bid sheets etc.) then it can be used. If however, it is not available to the public, then it is always better not to count on that information.
Of course, this could include your work product at the old firm. If you are developing a new technology, and agreed in writing it was the property of company A, you do not have a legal right to take it to company B and could be in violation of the trade secret act.
Stay tuned for more common law or statutory duties!