I regularly look at employment agreements that contain non compete and non-dislcosure limitations/ Often, the circumstances are that an employee has left and the former employer needs to know what their rights are. Sometimes, I advise employees on their rights in regard to their former employer. I distilled a lot issues down into a few key points that employers consider when deciding whether to try to enforce an employment agreement non-compete or non disclosure provision:
1. Money. The financial resources available to the company.
2. Length of Employment. The length of time the employee has been with the company. The longer the relationship between the employee and company, the more likely the company is to believe the employee has valuable information that may hurt the company. There also may be more of an emotional attachment in a longer relationship which a company sometimes feels is violated by the employee’s simple act of changing jobs. Also factored into this category is whether the employer believes that the information the employee has could be damaging to the employer if disclosed.
3. Positive Results. How strongly the company feels about its’ chances of getting a positive result. There are times when violation of an employment agreement is so clear, the employer’s chances of winning a lawsuit or getting a favorable settlement are virtual “locks.” However, I have seen many murkier situations where litigation could be lengthy and expensive and this dissuades the employer from going to court.
4. Attitude. The attitudes of the Employer’s decision makers. Are the individuals who will decide whether to sue, settle or let it go, naturally aggressive or more conciliatory in nature?
5. Experiences. The previous experience (if any) the employer has had with enforcement of employment agreements. Positive experiences provide the confidence to go to court again while a negative experience usually leads to substantial trepidation.