There you are at your shiny new job. You just scored a new, better paying position with a competitor of your former employer. Life couldn’t be better. What’s this? Registered mail for you? Wait, it contains something called a Statement of Claim. Your former employer is suing you and worse, your new employer. Furthermore, your old company is seeking something called an interlocutory injunction, which would prevent you from working at your new job. It is also demanding that you hand in your computer and cell phone to be examined. This does not sound good!

Unfortunately, this happens with great frequency. One of the most common legal actions is where a company sues a former employee who has moved over to a competitor.

Sometimes these claims have merit, a lot of the time they don’t. They are made for tactical reasons to disrupt the former employee from being effective at their new job and maybe to get them fired because the new employer can’t be bothered with getting involved in a lawsuit.

The question is, how do you avoid being a target for such a lawsuit or at least set yourself up for success in the event that you are the unfortunate subject of such an action.

Most of these actions are based on two factors, either that the former employee has breached a non-competition agreement or that the former employee has taken “confidential information” to the new employer.

Non-competition agreements are nearly always unenforceable. These authors have a combined legal experience of 75 years. In that time, we have reviewed literally thousands of non-competition agreements. Out of the thousands of non-competition agreements, we have examined only a handful which have actually have been enforceable (we will discuss why in a later article). As a result, today we will concentrate on how to protect yourself from a claim that you have taken “confidential information” to your new employer. This is a claim which we can expect more of in Ontario once its new legislation prohibiting most non-competition covenants is passed.

First tip, do not use work computers for personal use.

Many times, we see that employees are using company issued laptops for personal use. They intermingle personal emails with professional emails. They store files with family pictures and videos. They store their tax returns and other financial information. Stop doing this immediately.

There should be no overlap between business dealings and personal dealings. This includes cell phones as well. Business is business and personal is personal and never the twain should meet.

There is a very good reason for this. When you intermingle your personal business with your job, you will almost certainly want to download your “personal” files before you hand in your company laptop. Big mistake! Before you know it, an affidavit will appear from a “expert” indicating that you have downloaded dozens, if not hundreds of files from the company laptop for who knows what nefarious purpose.

Second tip, do not take anything from your former employer or download anything from your company computer, without its express written permission.

You may think that report you wrote or that spreadsheet you created would be a great precedent or perhaps an example of your expertise to show to your new employer or even a subsequent employer. Guess what— it doesn’t belong to you. It belongs to your former employer because you created it on its time.

If you do want to take any business-related information, (remember all your personal info is on your personal computer), then ask your employer and obtain written permission.

Just following the above two tips alone would defeat most claims for breach of confidence.

If, despite taking the above precautions, you are still the subject of such a claim, or perhaps because you haven’t followed the above two tips, don’t despair. The following must be proved on the balance of probabilities to establish what is legally known as a breach of confidence.

Confidential information must be imparted under an obligation of confidence. There must be a breach of the obligation and actual damages must result.

The important part of this is that the information must be “confidential” in the first place. Let’s face it, very few things in life are truly “confidential.” Current client lists or current price lists might be confidential or then again, maybe not. We recently defeated an injunction by demonstrating that an ostensibly “confidential” price list was in fact emailed to anyone who requested it. It was hard for the former employer to argue to a judge that a price list was confidential when we showed up in court waving the exact same price list that had been emailed to us.

If you want to have the best chance of not being a defendant in a lawsuit, or at least being successful, if you are, keep your business and personal affairs separate and don’t take any information from your former employer without its express written consent. If all of the above fails and you get sued nevertheless, you had better quickly call a lawyer.