As mentioned in last week's Employment Law Update (http://tinyurl.com/33bbx45), often the best candidate to hire is an individual who has successfully worked in a similar role in your industry. To further decrease the chances of a lawsuit, consider these additional proactive steps to minimize the risks:
- Make employment expressly contingent on the individual's respect for the confidentiality of the former employer's information. For example, the offer letter could say:
[New company] desires to employ you because of your general industry knowledge and experience, your skills, and your strong personal traits. We do not want to improperly access your prior employer's confidential business information. Therefore, you understand and agree that as a mandatory condition of your employment with [new company], you shall not disclose or use any conditional business information of any prior employer that you have a duty to retain as confidential. Any violation of this requirement will result in corrective action, up to and potentially including termination of employment.
- Tell the new hire to comply with the current/former employer's policies, including offering a notice period (two weeks, typically), submitting to an exit interview, and even offering to discuss with his/her last supervisor the status of projects and location of information in paper and electronic files. While the candidate need not offer information about his/her new employer or the scope of the new job's responsibilities, the candidate should be truthful if asked. (A string of lies will contribute to a claim that the individual is up to no good.)
- At the outset of the new employment, have the individual identify those specific projects, communications, or responsibilities that would likely require him/her to disclose or use some confidential information of the former employer. Figure out and implement some type of screening mechanism on that particular topic.
If the former employer threatens to sue, you might choose to disclose to them the extent to which you implemented these proactive steps. Even if they do not believe that these fully and effectively protect their confidential information from competitive misuses, they will likely recognize that these drastically reduce their ability to convince a judge that the employee and your company, as the new employer, are up to no good and must be stopped. Many lawsuits can be avoided if the hiring employer smartly follows a process and creates an evidentiary trail that demonstrates the opposite.