Non-Pirating Employee Agreements to Protect You and Your Business.

When a towing company hires a new employee, there are usually feelings of optimism and excitement on both sides of the employer- employee relationship. However, in today’s economy, rare is the day when an employee will work his or her whole career and retire with one employer, and often the employment relationship ends in a less-than-friendly manner. While the employment “divorce” usually involves only hurt feelings, many times it can also result in a departing employee causing real harm to the employer and its business. A departing employee may secretly copy or delete customer information and contracts, confidential business information, or solicit customers and other employees to leave your company to come to work with them either at their new tow company that they are starting up or your competitors tow company where they are now employed. Because of these threats we have outlined a few important agreements and tips that you can implement at the start of your employer/employee relationship so you are not dealing with the malice that a disgruntled past employee can cause to your business.

Non-Solicitation Agreement

Good employees are difficult to find, and you may have spent thousands of dollars and many years training a valuable employee only to have your past employee solicit that valuable employee to leave and join them at their new company. In the same way, an employer may also want to prevent a former employee from soliciting their customers to leave and do business with them. A Non-Solicitation Agreement restricts a former employee from soliciting either your employees or your customers after leaving your company.

A Non-Solicitation Agreement can provide an employer with a much needed layer of protection against a disgruntled past employee to join a competitor or embark on their own and solicit your valuable employees or the customer base that you have worked hard to establish.

Many companies only require managers or key employees to sign Non- Solicitation Agreements to prevent this type of situation from happening however employers can require that all employees sign the agreement.

Non-Compete Agreement

You may want to also protect against your employee going to work for your competition or starting up their own competing tow company directly competing for your customers by having them sign a Non-Compete Agreement indicating that during the term of employment and for some period of time thereafter, the employee will not compete with the employer, or solicit customers or employees of the employer.

A Non-Compete Agreement is an agreement whereby the employee agrees not to compete with the employer or work for a competitor for a period of time after termination of your employer/employee relationship. There is absolutely no “one size fits all” type of Non-Compete Agreement that will work in every state or in every circumstance. Simply because your company has had a “form” you have used for years does not necessarily mean that the Non-Compete Agreement is valid. The law as to what is, and what is not, enforceable is constantly changing. For this reason, Non- Compete Agreements should be drafted with the assistance of your attorney.

Confidentiality and Non-Disclosure Agreement

Unlike 10 or 15 years ago, most employers today utilize computer software to dispatch calls, bill customers, accounting functions, customer pricing, contact information, bid proposals, and much more and entrust most employees to have access to some if not all of your confidential information. Anyone can go to a store and for under $100.00 buy an external hard drive with a USB connection that can plug into your computer system and quickly copy all of your confidential business information is a very short period of time. Likewise, if you have allowed your employees the ability to have a private email account they can easily upload important company data and documents and send it to their private email address to access it later — either from their home computer or the computer of a competitor.

A Confidentiality and Non-Disclosure Agreement between you and your employee allows you the ability to disclose your business information that you deem confidential to them and they agree not to share that information with anyone. However, keep in mind that just as you want to protect your confidential information requiring employees to sign a Confidentiality and Non-Disclosure Agreement that you hire; their last employer may have also had them sign a Confidentiality and Non-Disclosure Agreement and if they share documents or information from their former employer you could be liable. That is why many employers have new employees sign a document at the start of their employment acknowledging that the new employer has not asked them to bring any information or documents from a former employer and that the new employee has not done so.

Non-Disclosure Agreements are governed by state law and may differ from state to state but most state laws require that Non-Disclosure Agreements be reasonable in terms of time, geographical area, and scope.

Protect Your Company

In addition to the agreements that we have recommended for you to implement for all of your employees within your company, there are a number of things you can do as an employer to maintain the secrecy of your confidential business information:

• Label documents that contain sensitive information as “confidential” and treat them confidentially.

• Restrict such information to employees on a need-to-know basis only.

• Require all employees to sign agreements. Keep a record of signed agreements in each employee personnel file.

• Use passwords on computers and software programs. Require each user to have their own login/password to access computers and software programs.

• Keep owner and/or key personnel passwords in a secure place. Do not allow employees access to software systems using these passwords.

• Draft, update, and enforce personnel policies to inform employees about information the company considers to be confidential.

• Implement a policy concerning the use of technology-related devices such as external drives, web based file storage, etc.

• Do not allow employees to receive email intended for company use at their personal email address.

• Do not “auto-store” your login/password information for websites that you utilize on your computer such as banking, payroll, etc. Clear your browsing history frequently.

• Do not allow employees to access their personal email on company computers.

• Provide employees with a written Information Security Policy stating that the company reserves the right to monitor and access any employee communications, and that communications using company property or over company provided computer systems are not private. This includes any email communication.

• Specifically identify information your company wants to protect as confidential so that employees and outside entities are on notice of the confidential and proprietary nature of the information.

• Monitor computers for unauthorized access of any confidential company documents, information, or software programs.

• Conduct exit interviews with departing employees to remind them of the agreements that they signed during employment.

• Include a confidentiality provision in contracts with vendors, consultants, independent contractors, temporary employees and, where applicable, customers. Otherwise, if a company discloses its “confidential” information to third parties, this can be viewed as evidence that the information was not actually treated or viewed as a trade secret or proprietary company property.

Conclusion

The prospect of having to sue a former employee is not one that you should take lightly. However, by recognizing the harm that can be done by a departing employee by implementing the agreements discussed and providing clear company policies you may be able to prevent or reduce the damage that they may cause your company.


........................................................................................................................................................