Ignorance is bliss – until your euphoric state is shattered by a lawsuit accusing you of poaching a competitor's employer or using its confidential information to unlawfully compete. With the increase in noncompete litigation, employers must take steps to protect themselves from exposure to costly lawsuits. One of the easiest ways is to ask a few questions that will allow you to assess any potential legal risks that may arise if you hire your competitor's employee.
1. Have you signed a noncompete, nonsolicitation, confidentiality, or other agreement with any previous employer that could impact your ability to work for us? It's best to know what types of employment contracts may be at play so you can make an informed business decision and risk assessment. Arguing that you cannot tortiously interfere with an agreement you don't know about will likely lead to large attorney's fees and its success at the courthouse is, at best, debatable.
2. What kind of information were you privy to – trade secrets, marketing plans, research and development, confidential information? Be careful not to ask about the specific information – questions about general categories of knowledge will ensure that you don't get exactly what you were trying to avoid - your competitor's confidential information or trade secrets.
While some questions, like "how old are you?" or "are you pregnant?" are no-no's, inquiring about any restrictive covenants may protect you from unpleasant surprises after hiring your competitor's employee. They will also allow you to decide whether hiring this employee is worth it. Remember, legal battles over these types of agreements are fact intensive and dependent upon different variables – in the end you may just wish you remained ignorant but if that's the case it may not be worth hiring the guy in the first place.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.