Preparing to compete . . . while still employed. Is it legal?

January 8, 2013

So long as certain guidelines are followed, at-will employees who are not under any contractual restrictions during employment may generally prepare to compete with their employer by, for example, registering a new business entity with the Secretary of State, opening bank accounts for their new business, obtaining a business license, obtaining a phone number, obtaining tax identification numbers and looking at office space.  Employees do owe their current employer a “duty of loyalty” which the courts often limit to only those employees who can bind their employer for certain obligations, or otherwise occupy a fiduciary role, but some courts apply this across the board to all employees, so it’s best to keep in mind the following guidelines:

1) Work a full day’s work for your employer and keep your preparing to compete activities limited to nights, weekends, holidays or other non-work time.

2) Never use your employer’s property or equipment to prepare to compete.  This includes your work email account, your employer’s software, office supplies and proprietary information.  All of this is property of the employer, for use in furtherance of its business, not your new business.

3) Do not remove, forward or copy any property of your employer.  Even employees who are under no contractual restrictions are subject to Georgia’s Trade Secrets Act, and the simple act of forwarding to your Gmail or other personal account files you use at work can get you in hot water later if a company decides to assert a claim under this Act.  And, while the courts do require companies to prove that a trade secret existed, the company took reasonable efforts to maintain its secrecy and the secret was wrongfully taken by a former employee, lawsuits under this Act are expensive to litigate and can hamstring your post-employment activities should your former employer succeed in obtaining a TRO while the case is underway.

4) Do not solicit your employer’s customers or prospects for your new company, or for anyone other than your employer.  Once you leave, if you are not a corporate officer and are under no post-employment restrictions (such as a non-compete, customer non-solicitation, employee non-solicitation or non-disclosure of confidential information provision), you can solicit your former employer’s customers and prospects.

5) Do not do anything else that directly competes with your employer while you are employed, including while you work out your notice period or are still being paid by your employer.

6)  Don’t do anything that would constitute “computer theft” or “computer trespass” under Georgia’s Computer Systems Protection Act.  This includes wiping hard drives or otherwise manipulating data and files without your employer’s authorization.  Some creative lawyers even use this Act to go after employees who download work files to a USB drive or forward them to a personal email account, arguing that these acts exceed the company’s authorization.

7) Keep excellent documentation of your pre-departure activities, in case you need to rely on it later in court or to prepare a response to a cease and desist letter.

Can I be terminated for venting about my employer on Facebook?

February 16, 2012

It depends.  Employees have rights under the National Labor Relations Act (“NLRA”), even in “non-union” places of employment.  That is, employees have a right to discuss their salaries, wages, or form of compensation and other terms and conditions of their jobs with their co-workers and with people who do not work with them.   They also have a right to use their employer’s logo or name in connection with communications with the public about a labor dispute.  Think of the folks carrying signs outside businesses who are in a wage or other labor dispute with their employers.  Sometimes, employers try to infringe on this right by imposing social media policies on their employees that forbid, say, the sharing of compensation information with anyone other than management, or the making of disparaging remarks about the company.  In many instances, an employer’s social media policy will technically violate the NLRA.

However, just because your employer has an overly broad social media policy that steps on your rights under the NLRA does not mean that you can get your job back if you were fired for violating that policy.  There is another layer of analysis that takes place.  For the termination to be unlawful under the NLRA, an employee’s venting about her employer has to be more than just individual griping; rather, the employee must act with other employees, or on their authority with the aim of initiating, inducing or preparing for “group action”.  Bear in mind, too, that if the employee who griped on Facebook or other social media actually interfered with the employee’s own work, her co-worker’s work, or the company’s operations and was disciplined for this interference, the discipline will be lawful.

Recent cases suggest that where the venting employee is joined by other employees who voice similar concerns to those expressed, the conduct will likely be protected.  Notably, however, at least one case came down in part to whether the co-workers did more than simply “like” the comments posted by the disgruntled employee.

11th Circuit Court of Appeals finds for state employee on gender conformity issues

January 29, 2012

In a decision issued on December 6, 2011, the 11th Circuit Court of Appeals (which hears appeals from the federal trial courts in Georgia, Alabama and Florida) agreed with the district court in concluding that a former employee of the Georgia General Assembly’s Office of Legislative Counsel (“OLC”) was terminated in violation of the Equal Protection clause because she was terminated for her gender non-conformity.   The case is Glenn v. Brumby, Nos. 10-14833, 10-15015, 2011 WL 6029978 (11th Cir. Dec. 6, 2011).   The employee, Glenn, was born a male and later diagnosed with gender identity disorder, a diagnosis which is contained in the 4th edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, or “DSM-IV”.  She began working for the OLC as a man and later told her supervisor that she was going to undergo a gender transition and would start coming to work as a woman.  The head of the OLC, Brumby, fired Glenn because “her intended gender transition was inappropriate… would be disruptive, … some people would view it as a moral issue, and … it would make some of [her] coworkers uncomfortable.”  As the opinion explains, the Equal Protection clause requires state employers such as the OLC to treat similarly situated persons alike and avoid “arbitrary or irrational” classifications.  Because Glenn worked for a state employer, she had to show more than the direct discriminatory motive of Brumby; she also had to show that Brumby did not identify a “sufficiently important governmental interest” for his discriminatory behavior.  She succeeded in doing so.

Take-away quotes:

“All persons, whether transgender or not, are protected from discrimination on the basis of gender stereotype . . . . An individual cannot be punished because of her or her perceived gender-nonconformity.  Because these protections are afforded to everyone, they cannot be denied to a transgender individual.”

To read the entire opinion, click Glenn v Brumby.