I am not Leno or Letterman; I am much younger and shorter than either of these guys. But I like top ten lists and want to help Virginia employees with avoiding expensive litigation – so here is the TOP TEN MISTAKES VIRGINIA EMPLOYEES MAKE THAT LEAD TO LITIGATION:
EMAIL BLUNDERS.
Remember that email you sent last fall to a colleague about how you “hated working for Virginian Incorporated LLC and couldn’t wait to quit and put them out of business?” Or how about that email you sent to your Secretary about how your “boss was a fat loser who couldn’t get a job anywhere else if she hadn’t flirted with the owner of Virginian Incorporated LLC?”
I am confident you don’t remember these emails. Most likely they were sent with little thought.
The bad news for you is that if you leave your current job, and your exit is not on the best terms – your email, computer, hard-drive, blackberry etc., will be wiped down by a computer expert after your departure. Emails, files, past internet searches will be searched using key words, including names of other employees, company names, etc.
Do you think if they find a stash of these emails Virginia Incorporated LLC, your boss included, will simply walk away? Think again. Many Virginia companies consider it a calculated risk to go after a former employee. Their options, given this kind of communication, are numerous.
If you did plan your new business while still employed as Email 1 implies, you could be held liable for breach of fiduciary duty. If the email regarding fat boss harmed her business reputation, that could become defamation claim. If you shared these thoughts and impressions with a client, and they client leaves Virginia Incorporated LLC, that could be the basis for a tortuous interference of contract claim.
ADVICE: Don’t email anything on your work account that you couldn’t explain to a judge and jury later. Also, don’t send personal emails at work – even from a gmail or yahoo account. After you leave, these accounts can and may be accessed, searched and used against you. Under Virginia law, you have NO expectation of privacy on a work computer or cell phone. Further, this is just the kind of thing that motivates an employer to hire an attorney and file suit.
SOCIAL NETWORKING NO-NOS:
Don’t be an idiot. Everything you post on Twitter, FaceBook, Squidoo, LinkedIn etc. is in the public domain and will be used against you in litigation.
A friend told me about a secretary at his old firm, who posted on FaceBook as her profile update: “Idiot boss just came in and asked me to do something. Blah Blah Blah Blah. I work for a moron.” Moron, maybe… but a self promoting associate saw the post moments later and shared it with idiot boss, who promptly asked said secretary to pack her things and leave.
This becomes an issue even after you have left, if you are soliciting clients in breach of a non-compete agreement, or starting your own business which is also in breach.
Don’t post “Just had great dinner with guys from HAYMARKET FIRM and pretty sure I will land the account. Good connections are important.” Yes, yes connections are important and that is why your old employer made you sign a contract that you would not poach their clients including said Haymarket Firm.
ADVICE: Use your brain. Don’t post ANYTHING you wouldn’t want your old, current or future boss to read. As an aside, if applying for work, people are evaluating and judging you online before they even read your resume.
Thumb drive downloads:
I love this one.
Sept. 5, 2009 – give two week notice you are quitting in email at 12:07 pm.
Sept. 5, 2009 – take thumb drive and download entire contents of work computer to take with you, 12:09pm.
Sept. 6, 2009 – Employer takes computer to IT; IT realizes you have copied client files, names, spreadsheets, policies etc. day before.
Sept. 6, 2009 - Escorted out of building at 9:00am, receive letter written by attorney that you must return all information or face lawsuit for (1) conversion; (2) breach of fiduciary duty; (3) breach of confidentiality clause in contract; (4) trade secret act; (5) Va. computer crimes act.
ADVICE: IF you think you are entitled to something from your work computer – don’t email it to your self, or download it. ASK FIRST. The above happens ALL THE TIME and I am amazed by it really. If you have personal files, tell someone and let them know you are removing them. Don’t take everything.
Cocktail conversations:
"Hey, bro… working with you is aaaaweessome. I am gonna tell you a secret, ok, don’t tell anyone… I am serious. No one can know. I am quitting the Company on Friday and have been planning my own company for, umm, like months… I totally think you should come work for me. What do you think man, aaaaaweeesome, right?”
Ok – now, a few beers into it, you will have no recollection of said cocktail conversation. It will however, come up in litigation when Employer needs to prove you (1) breached the solicitation clause of your non-compete agreement; and (2) you have been planning new business while an employee in violation of your duty of loyalty.
ADVICE: Resist. There are no secrets at work – you should know this.
Loose Lips:
“Hey Fred, buddy. How are ya? How are things at Virginia Incorporation LLC? Yea would love to do lunch. No, new job is great just wish I could remember how much you guys bid on that Fairfax job so I could bid it lower.”
No worries, right. If Fred wants to take information from old employer and give to you, his neck is on the line, not yours? WRONG. This is how (1) conspiracy; (2) statutory conspiracy; and (3) tortuous interference of contract claims are started. Don’t ask for information – if you do, you are putting yourself and other people at risk. If they offer, DECLINE. Loose lips lead to litigation.
Lying leads to litigation:
Email resignation states: “Effective next Friday, I am leaving the work force to be a full time mother and wife. I have enjoyed working with you and appreciate the opportunities you have given me. I believe focusing on my family is my next step.”
Ahh.. Isn’t that nice? But what if you are simply starting your own business from home? What if Va. Inc., LLC finds out you are starting own business from home? Well, that makes you look like a liar and now they will be suspicious and wipe your computer and email.
And it may lead to litigation – (1) breach of non-compete agreement; (2) breach of fiduciary duty, etc.
ADVICE: Don’t lie – people sue liars.
Putting the cart before the horse:
Are you sure your employer will release you from your non-compete so you go get a new job and refuse to tell company #2? Yes, great strategy when company #1 sends #2 a letter saying they too will be sued for breach of contract if you are allowed to maintain your employment.
Then company #2 fires you – and you are really SOL.
Or, you create a company, get a Federal employment number, start a website, and quit your job. Organized, yes, but that kind of preparation can lead to breach of fiduciary duty claim.
ADVICE: Don’t ever assume you can be released from your Non-compete until YOU HAVE AN ACTUAL RELEASE. Absent that, all other planning is really putting the cart before the horse.
Not understanding your employment agreement:
“My non-compete is not binding, right?” I hear that all the time from clients. And I wonder, sometimes out loud “what makes you think that?” Well, I think Virginia is a right to work state so no one can prevent me from making a living, right?”
Wow. There are so many things wrong with that statement/question.
Yes, in Virginia you can be prevented, because of a binding contract, from working. You do not have a “right to work” – that means you have a right to join a union. So, before you sign an agreement, or breach it, find out what it actually means. This will require actual legal help, not just a search on google or asking a friend who once dated a paralegal.
ADVICE: Get a legal opinion on your agreement.
Assuming a 3rd party will stand up for you:
Another one of my favorites and wildly popular with my friends in Northern Virginia that serve as contractors to the US Government: the assumption that your 3rd party contract will prevent you from being sued.
This almost NEVER happens. In fact, I don’t know of a single case where the government wanted to stick their neck into legal action. Friends, you are on your own. No one will prevent your employer from suing you if you jump ship – even if they have lost the contract and you are needed to continue.
ADVICE: Don’t overestimate your worth. Our government doesn’t have the time, or the money to get involved in private litigation.
Not speaking to an attorney:
Maybe you are the kind of person who installs car radios without instruction books and files your own taxes despite very complicated earning issues. But let me tell you, an employment contract is a very complicated document. It probably took an attorney weeks to write, and each word has a unique legal meaning.
So why would you (1) sign it without reading it; (2) sign it without understanding it; (3) quit without understanding your limitations; (4) look for a new job without knowing your legal rights?
ADVICE: understand your agreement at every stage - when you sign it, when you plan to leave and when you leave.
I would rather you pay me $500 to review your contract, that you pay me $30,000 to defend your employment litigation case. No really, I mean that.
Contact the Frith Law Firm to discuss your options - we can help you understand your situation and obtain the best possible result.