In a world where non-compete agreements are being curtailed or outright banned, companies need to enhance their use of other ways to protect their intellectual property and confidential information when their employees leave to go work for competitors.
First and foremost, companies should not rely upon a general duty of confidentiality and should instead require employees to sign acknowledgements, policies, and/or contracts requiring confidentiality both during and after employment. Then, when an employee leaves for a competitor, the company can send an “ongoing obligations” letter reminding the employee that it must continue to protect the company’s intellectual property and confidential information, and the company can include the relevant signed documentation with the letter.
Second, if allowed in the state(s) where their employees are working, companies should put strict non-solicitation provisions in place to protect the non-solicitation of employees, customers, clients, vendors, and the like by departing employees. Non-solicitation provisions protect a company’s legitimate business interests such as its intellectual property, inventions, trade secrets, brand and business strategies, other confidential and proprietary information, employee development and expertise, customer/client relationships, vendor relationships, and other goodwill.
Third, and again only in accordance with state law, companies can require employees to sign agreements requiring the present assignment of all ideas, inventions, etc. developed during the term of employment. This protects companies with intellectual property and ensures that all inventions become theirs immediately.
Lastly, other things that can be considered are non-interference, non-disruption, non-disparagement, and/or non-defamatory provisions that prohibit a departing employee from criticizing a company or interfering with its operations in a way that could be detrimental to its business.