Keep your employment agreements handy.

                    

Whenever I talk with an employee or employer about a noncompete or nonsolicitation agreement the number 1 question is "Can you provide me with the agreement you (or the employee) signed?"  Usually, the employer has a nice neat employment file that contains all agreements.  Employees on the other hand are usually a different story. 

In the last week I've talked to two highly paid employees who were contemplating making a move to a new company.  One thought they had a noncompete, the other couldn't remember.  Neither had the actual agreement but was going to request one from their employer. 

An employee requesting their employment agreements at the end of the year sends out a red flag - "I am looking for a new job."  There is a lot of employment transition at the end of the year as the employee has presumably received their bonus and there is less financial incentive to stay.  Yes, your employer will provide you with your agreements, but if they're smart you will be under the microscope.

Point is, keep anything you sign with your employer.  Ask for a copy at the time you execute any agreement, including any amendments or supplements you sign through the years.  It just makes good sense for a variety of reasons.  Remember, the agreement your coworker signed isn't necessarily the same agreement you signed. 

(H/T Virgina Non-Compete Law Blog)

Did Google/Microsoft agree not to poach employees?

Did they agree not to poach?

 

High-tech companies have been vigorous in their attempts to keep employees from departing to competitors as evidenced by the Mark Papermaster lawsuit filed by IBM and Steven Johnson case.  According to some reports, Google and Microsoft entered into an unofficial agreement not to poach each others' employees.  Essentially, neither company would actively pursue or recruit the company's talent. 

Here is a redacted email that was included in the TechCrunch report between Google and a prospective Apple candidate:

From: XXXXX XXXXX <XXXXX@google.com>
Date: XXXXXXX XX, 2008 X:XX:XX AM PDT
Subject: Re: Google Opportunities- Follow up email…

Thanks for getting back to me.  I don’t believe that we have been in
contact previously - apologies if I am wrong about this.

From your reference to the [APPLE DIVISION], I take it that you are
currently working there.  If this is the case, we will not be able to
proceed with your application.  Google has an agreement with Apple
that we will not cold call their staff.  If you are not currently
working at Apple and are interested in learning more about [A GOOGLE DIVISION]
please let me know and I would be happy to chat with you.

Thank you again for returning my email.

Both companies are headquartered in California making the enforcement of a non-compete almost impossible.  Of course, this type of agreement could violate antitrust laws and according to the Washington Post, the Justice Department has launched a probe into the alleged practice.

 

Texas Supreme Court Rules Non-Compete Enforceable

                                          

In Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, the Texas Supreme Court reversed the Houston Court of Appeals holding that an accountant's non-compete agreement was enforceable. The Court stated in part:

We hold that if the nature of the employment for which the employee is hired will reasonably require the employer to provide confidential information to the employee for the employee to accomplish the contemplated job duties, then the employer impliedly promises to provide confidential information and the covenant is enforceable so long as the other requirements of the Covenant Not to Compete Act are satisfied.

In other words, the employer does not have to state in the non-compete agreement that it is going to provide confidential information, that can be implied based on the context and circumstances surrounding the job.

Justice Hecht concurred in the opinion.