Hiring an employee who is subject to a non-competition agreement can be a risky venture. In many instances, the new employer can find itself on the receiving end of an expedited lawsuit along with the new hire. But there are a few simple measures new employers can take to reduce the chances of being named as a co-defendant in a lawsuit.
First, make certain your new hire has “clean hands” before commencing employment. This means that all documents, computers, PDAs, flash drives, and any other property arguably belonging to the former employer has been returned intact. The employee needs to be aware that erasing hard drives and databases before returning equipment (even if inadvertent) can often result in a negative ruling from the court or even a spoliation finding. Once completed, the employee should confirm in writing that all property in his possession has been returned to his former employer.
Next, make sure the potential new hire does not engage in competition while still at his old job. In Delaware, it is generally permissible to make preparations to compete while still employed, which would include discussions with other companies about possible employment opportunities. But employees often cross the line when these discussions develop into actual competition, and if there’s evidence the new employer encouraged these acts, it may open the door for a civil conspiracy claim.