We’ve now been in the midst of this global pandemic since March (give or take a few weeks) and we have a little more runway to look at the state of employee movement. It seems that most folks fall in three categories in terms of the Coivd impact on their job: (1) looking for a job; (2) in a precarious spot and not looking to make a move; or (3) looking to make a move. Of course these are three categories you usually see. After the initial impact of Covid, it appears employers/employees are adjusting to our new normal.
From my admittedly limited view representing employees and employers I don’t think things are back to normal but employee movement continues. There is generally less movement towards the end of the year because employees have compensation tied to year end bonuses and metrics.
Some general thoughts on post-employment covenants:
- Texas employers continue to us overly broad non-competes and non-solicits – make them narrow if you want them to stick;
- Texas employers are using severance packages that are tied to non-competition/non-solicitation covenants to lock down former employee. For example, I agree to pay you $XXXX a month as long as you don’t compete. These are simple and basically they employer gets whatever they want and the employee gets paid as long as they comply.
- This is a gross generalization but most employees don’t enforce their non-competes/non-solicits.
- Good luck enforcing a non-compete against a former employee that a company terminated in the the time of Covid. Yes, in theory you can do it but I can’t imagine judges are going to be happy to see those types of cases in this environment.
- If a company includes a non-compete in a an employment agreement it generally should also include a non-solicit (customers), anti-raid (employees), and confidentiality provision. Also, think about a notice provision for termination of employment.
- Employees work very hard to figure out how they can finesse the requirements of a non-compete and non-solicit so they can still make a move.