About a month ago I wrote about the an employee’s duty of loyalty to his or her employer. Here’s some of what I said:
Just because an employee is not subject to a noncompetition agreement does not mean that he or she cannot be liable for mistakes made on the way out the door. In fact, each and every employee owes his or employer a duty of loyalty up to the moment he or she ceases employment.
Two recent stories illustrate how this duty of loyalty works in the real world:
This morning, The Word on Employment Law with John Phillips commented on a New York Times report that MSNBC indefinitely suspended one of its most prominent anchor David Shuster. His transgression – testing a new show for CNN.
Molly DiBianca at the Delaware Employment Law Blog and Rob Radcliff’s Smooth Transitions both provide their takes on a recently filed non-competition lawsuit in which the chief evidence of the breach comes from the defendants’ LinkedIn accounts.
Even without non-competition agreement, an employee cannot serve two masters at the same time. While in your employ, an employee has an absolute duty to act in your best interest, and not to act in the interest of anyone else that is contrary to yours. For example, an employee cannot solicit customers or employees for a competing venture while still working for you. If you find out that a current employee might be competing, your best course of action:
- Call your attorney.
- At a minimum, suspend the employee pending an investigation, which should also include suspension of all computer and network access.
- Upon confirmation of the competition, convert the suspension to a termination.
- Consider legal action depending upon the scope of the competition and the harm caused.