Smooth Transitions : Rob Radcliff : Texas Non-Compete Lawyer & Attorney : Langley Weinstein LLP Law Firm : Dallas Employment & Employee Departures : Smooth Transitions Law Blog

As discusssed here before, a former employee with an non-compete agreement usually has two choices in terms of challenging a non-compete.  The first is to "compete" and then see what the former employer does.  This could mean a lawsuit with an application for a temporary restraining order that puts the former employee out of work.  The wait-and-see approach essentially removes the employee from any control until the former employer decides to act.  This is the most common and cheapest approach.

The second approach is to sue the employer and challenge the validity of the non-compete.  The reality is most former employees simply don't have the money to fund such an endeavor.  In a recent lawsuit in the Houston area, a group of doctors filed suit against the Sadler Clinic.  Those doctors are challenging the enforceability of a non-compete agreement that prohibits them from practicing medicine within a 22-mile radius of Sadler's Conroe, Texas location.  Interestingly, the employment agreements contain a buyout provision that would relieve the doctors of their non-compete allegations.

This is not the first suit involving a Sadler non-compete.  Sadler filed a lawsuit against a departing physician in August 2009.  Apparently, the doctors are seeking to intervene or join in this lawsuit since the same non-compete is at issue.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Social media sites can give an employer/recruiter information about potential hires that you can't ask in an interview.  Take Facebook for instance, you can learn the following about me from my profile and posts:

• Race/Ethnicity - just take a look at my picture;
• Age - set forth in my profile;
• Marital Status - set forth in my profile;
• Children - take a look at my pictures; and
• All the other information you can glean from pictures, status updates, etc.

The point is, there is an endless amount of information out there - much of which you cannot consider when making the decision to hire someone.  However, there is information that is not protected. 

What if there was a Facebook status update where the candidate stated they were fired from their last job for filing false reimbursement reports or the fact they have a non-compete agreement with their former employer?  These could be legitimate reasons not to hire someone.

So why shouldn't you incorporate social media searches as part of your company's hiring process?  A few reasons:

1. A lawsuit over discriminatory hiring practices will almost certainly delve into whether social media screening is used as part of the hiring process;
2. A Plaintiff could always allege, whether true or not, that information obtained from social media was used in the decision not to hire them;
3. How do you document you didn't use something - hard to prove a negative;
4. It's not possible to unlearn information obtained from social media - like the pregnancy status of a potential employee; and
5. Is it really even worth it considering the potential liability that could arise?

It's always easy to say no.  Next week I'll examine the other side of the coin.  The short of it is, there is no right or wrong answer and each company's conclusion will depend on what information they are looking for and how they implement such a process.  There is no one size fits all answer.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

This Friday I will be speaking at TalentNet Live regarding the implications of social media in the hiring process.  I hope you can join me.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

With the rise of social networks that permit us to update the world on the details of our lives and smart-phones that allow access to email, social networks, and the internet 24/7, there is always something to do. Take a look around. On my drive into work there is always someone on a phone texting, emailing, or talking. Same thing when I am in line at a store or even at my daughter’s soccer game. The worst is when I’m in meetings and the “constant emailer” can’t put down their blackberry for 5 minutes. (Sometimes I'm the constant emailer.)  There is no downtime.

I’ll leave the social commentary to those more qualified. But, from a legal perspective we are now creating a never-ending stream of written material that in many cases is archived a/k/a evidence. Email, social network posts, and other records can be used to recreate the details of a particular event or day. For example, if an employer has a general idea of when an employee began actively planning to establish a competing venture in violation of a non-compete, the discovery is endless. The employer now plaintiff can seek emails, Linked-in communications, Facebook posts and even phone records to trace the evolution of the competing business.

It seems as though we’re well past putting the brakes on 24/7 evidence creation through email and social media. But, everyone must be cognizant of what this means for business and employment disputes. Privacy, in many instances, is being abandoned by choice as we disclose our life's details on the web.

• Email This
• Print
• Comments
• Trackbacks
• Share Link