Page 37 - MetalForming December 2009

skill or course of work for the employ- er. Courts will scrutinize the objective of an employer seeking to enforce a restric- tive covenant and reject attempts to sti- fle ordinary competition, retain or pun- ish an employee. Arthur Murray case in Ohio, 150 N.E.2d at 700-01.
An employer does not normally have a proprietary interest in its at-will employees or in their skills. Post-employ- ment action by one employee to solicit other employees is actionable only when it is done for a wrongful purpose, such as to destroy the business, to misappropriate the employer’s trade secrets or to induce breach of a covenant not to compete. Schmersahl, Treloar & Co, v. McHugh, 28 S.W.3d 345 (Mo. App. 2000).
What do you do when there is a vio- lation? File a lawsuit against the former employee. Seek a temporary restraining order against the former employee. If
successful, move on to a preliminary injunction. If successful, seek a perma- nent injunction. Immediate court action is necessary to protect your rights.
What will the courts do to help? The court has wide discretion, and could do any of the following: Temporarily or permanently enforce the covenant in part or in full; rewrite the covenant, changing certain terms; or reject the covenant. The court action will vary on the fact pattern, jurisdiction and the judge you happen to get.
What prelitigation steps are helpful for employers? Before deciding to liti- gate, an employer should carefully review the noncompetition agreement and any remedy clauses and determine whether 1) the former employee is engaging in conduct prohibited by the agreement; 2) the agreement is legally enforceable; and 3) legitimate pro-
tectable interests are actually threat- ened by the former employee (or new employer’s) alleged conduct.
Prior to the exit of an employee, the employer should attempt to gather information and communicate expec- tations to the outgoing employee. This can be accomplished with a standard exit interview.
• Conduct an exit interview to gath- er information about why the employ- ee is leaving, where he is going and what he will be doing. Identify, inven- tory and secure all confidential and proprietary information.
• Provide the outgoing employee with a copy of any executed noncom- petition and confidentiality agreement.
• Provide the new employer with a copy of any relevant contracts.
• Use IT to investigate suspected computer activity. MF
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