Talk to a lawyer It's critical to identify your legal obligations to your current employer, especially if you're a top dog. Although it may not be written in your contract, senior-level employees are often deemed to owe fiduciary duties to their employer, typically for three to nine months after they depart. That means an obligation not to compete unfairly or poach clients or employees from your former boss. And if you did sign an employment contract, check the fine print. Some contain specific clauses, or restrictive covenants, that impose limits on your ability to compete. Even if you're a junior employee whose contract is unlikely to contain any non-competition or non-solicitation provisions, it's a good idea to seek legal advice. “You may perceive yourself to be an innocent player,” says Toronto litigator Gordon Capern, “but you may not be aware of the fact that by joining [a rival firm] you may also get caught up in duties the [departing senior partners] owe.”
Don't get caught in the act Plotting to launch a rival business while you're still on the company payroll is unlawful. Period. And as the boys at Genuity discovered the hard way (after messages sent back and forth between them on their BlackBerry devices were recovered in a forensic audit), it's difficult to cover up the evidence trail when the majority of your conversations were conducted electronically. Regulatory pressures and the increased threat of litigation have forced many large corporations to invest in sophisticated software that allows them to track all electronic conversations–including e-mails and instant and encrypted BlackBerry messages–at the touch of a button. “People have a misapprehension about whether it's appropriate to have those kinds of conversations,” says Capern. “They may inevitably occur, but they are likely to be found unlawful.” Home and cellphone records, he adds, are fair game, too. “The chances of you not getting caught on this are slim.”
Give your employer a heads-up If you're thinking about bailing, don't assume that the customary two weeks' notice is enough. Depending on your position and the length of time you've been with the company, the law states you need to give your employer a “reasonable” amount of notice–usually the same period it would be required to give if it wanted to fire you. Vancouver career coach Ian Christie, founder of Bold Career, warns that taking off with very little notice could come back to haunt you. “Whether it's competitive or not, how you exit a firm can always have repercussions on your reputation,” he says. “If you're going to resign, resign with class.”
Don't take confidential information According to several legal experts, removing or copying confidential information from an employer before you've flown the coop is one of the major no-noes people make when they jump to a rival firm. Sticky fingers, and stealing information from a former boss, can result in criminal sanctions and, yes, even jail. So hands off.
Think before you leap Although the promise of more money at an exciting new firm is definitely tempting, it's wise to weigh the pros and cons of making a move. Are you willing to face the hassle of a court injunction or the distraction of an ongoing lawsuit at a crucial time for the new business? Are you financially prepared to pay damages if the court rules against you? Could this become a public-relations nightmare?
You'll also need to think about the potential impact of an injunction preventing you from soliciting clients. “Your currency in the market starts to fade as you stop dealing directly with your clients,” says Capern. On the flip side, he says many people decide to go ahead regardless, “prepared to put the helmet on and to start up the business, recognizing that there may be some temporary disruption.”
