Trade Secret

The more things change…

The old adage goes that the more things change the more they stay the same. For Texas placement professionals there have been no landmark cases or significant changes in the law this year, but the standard issues remain and have become more magnified in the areas of post-employment covenants and the use of social media by recruiters.

Non-Competes and Non-Solicits

Recruiters continue to use non-solicitation and non-compete agreements for their employees. As we have discussed here at length, those types of agreements have gotten easier over the years to enforce in Texas, not harder. Any recruiter that has employees or any employee recruiter should seriously consider the ramifications of using or being subject to such agreements. Assuming that they are properly drafted and comply with the Texas non-compete statute there is a high likelihood that they will be enforceable.

Any departing recruiter should seriously consider trying to negotiate their way out of such an agreement if that is an option. Of course, the best way to handle one is to never sign it, but in most cases that is not an option.  The takeaway is recruiters will continue to use them and they will become standard in any contract.

Social Media

Along the same lines, there have been a number cases this year dealing with the use of social media and whether status updates on Linked In or a tweet about a new employment position somehow violated a non-solicitation provision. There is no one-size-fits-all answer for these types of questions and they will be dependent upon the facts in the case.

As I have written in other places, these types of posts usually will fall into gray areas but you usually know a solicitation when you see it. Employers must remember the power of social media and the ability of employees to leverage all of their contacts quite easily simply through Facebook posts or Linked In posts.

Anti-Planning Provisions

Employers are starting to use anti-planning provisions in employment agreements.   Put another way the employment agreement specifies what and employee cannot do prior to terminating their employment. These are on the “cutting-edge”.   Few courts have dealt with the enforceability of these provisions.  Generally, a Texas employee can prepare to compete as long as they are not doing so during company time etc. Recruiters should start to consider these types of anti-planning provisions if they make sense.

Trade Secrets Act

Finally, the Texas legislature adopted the uniform trade secrets act.  It provides some additional remedies including the right to attorney’s fees for prevailing employers who are successful in establishing the improper use of a trade secret. There have been no cases as the statute is brand new. We will monitor that as time progresses.