Monday, March 14, 2016

How Can I Contact My Old Clients and Customers Without Violating My Confidentiality, Non-Compete and Non-Solicitation Agreement?

Pennsylvania Courts Limit the Enforcement Confidentiality Covenants in Non-Competition Employment Contracts to Trade Secrets and Cases Where Employee Took and Used Company's Confidential Client or Customer Information at New Job

In Pennsylvania, many companies require employees to sign Employment Agreements containing Confidentiality clauses restricting an employee's use of the company's "confidential and proprietary information" during the employment relationship or after it ends.  Usually, there is no time limit associated with such a prohibition.

I Signed an Employment Contract Stating That All of the Company's Information Was "Confidential and Proprietary Trade Secrets" -- Am I Stuck?

Usually, such Confidentiality covenants require the employee to agree that anything he/she learns about the company, its operations, processes and customers, is "confidential and proprietary" and constitutes "trade secrets."

Not Always Worth the
Paper Written Upon
As we have discussed in the past, just because you sign a document prepared by your employer agreeing to some legal principle or the other, does not mean that you are bound by that document.

Heck, if Corporate America was given free reign to establish via contracts with employees what legal rights employees do and do not have, then Corporate America would usurp the right of Congress to establish such rights/laws, the power of federal agencies (and their state level counterparts) such as IRS, EEOC and the Department of Labor to enforce such laws and the power of the judiciary to provide a remedy for violations of such laws.

So, no, the mere fact that your employment Agreement says that you agree that everything you learn while employed with the company is a "confidential and proprietary trade secret" does not make it so.

Is All Information a Pennsylvania Employee Learns While Employed "Confidential and Proprietary Trade Secrets?" 

Pennsylvania courts basically hold that information maintained by a company does not rise to the level of being "confidential and proprietary" unless it rises to the level of being a "trade secret."

What is  Trade Secret in Pennsylvania? Pennsylvania's "Uniform Trade Secret Act"

Many courts, when asked to determine whether an employee is guilty of violating a Confidentiality provision in an Employment Contract, evaluate whether the information allegedly misappropriated by the employee is covered by the Pennsylvania Uniform Trade Secret Act, found at 12 Pa.C.S. §§5301 et seq. The Acts defines "trade secrets" as follows:
Trade Secrets = Closely Guarded Information

"Trade secret." Information, including a formula, drawing, pattern, compilation including a customer list, program, device, method, technique or process that:

(1)  Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use.


(2)  Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

So, chances are, unless the information at issue is akin to a patent (or at least a patent application) or  a highly secret formula (kept in a locked in a safe to which only few within the company have access - THINK: Coca Cola formula) or is a closely guarded IT-related information (THINK: Apple Encryption dispute), it is very unlikely that you have been provided access to a trade secret.

Am I Free to Take My Prior Employer's Customer Contact Information, Pricing Data and Contract Documents and Use it in my New Job?

All that being said, Pennsylvania Courts will not permit an employee to use information maintained by the employee's former employer to compete with the former employer at the employee's new job. This is especially true where the employee is bound by restrictive covenants found in an Employment Agreement protecting confidentiality, limiting competition and prohibiting solicitation of clients/customers!

What Can I Do if I am Bound by an Employment Agreement I Signed in Pennsylvania Limiting My Use of Confidential Information, My Right to Work for a Competitor of My Former Employer and My Ability to Solicit My Customers and Clients?

There are ways to safely reach former customer without running afoul of Confidentiality, Non-Competition and Non-Solicitation provisions found within a valid Employment Contract governed by Pennsylvania law.  The methods require patience, common sense, an acute understanding of Pennsylvania case law and the use of social media.

Clients' Want to Follow Their Milkman
You Just Have to Give it Time
If you find yourself in a quandary because you feel your ability to earn a living is being hamstrung by an Employment Agreement you signed with a company for whom you are no longer employed, it is best to seek legal counsel so that you may develop a strategy that will maximize your ability to thrive, while minimizing the likelihood that you will be sued by your former employer.



Philadelphia Area Employment Attorney Representing Employees

John A. Gallagher is an employment lawyer who represents employees in Pennsylvania. 

John typically represents workers who need an employment lawyer in Philadelphia County, Chester County, Delaware County, Bucks County, Berks County, Lancaster County and Montgomery County.

Pennsylvania Employment Attorney Provides Free Telephone Consultations

If you are looking for an employment lawyer, and live or work in Malvern, Wayne, King of Prussia, Downingtown, Glenside, Doylestown, Radnor, Newtown Square, Exton, Philadelphia, West Chester, Skippack, Langhorne, Haverford, Nether Providence, Broomall, Drexel Hill, Reading or any of their surrounding towns, feel free to send me an e-mail or give me a call.  I am always glad to spend some time with people via a free telephone consultation.

Need an Pennsylvania Employment Labor Lawyer in Chester , Montgomery, Delaware or Bucks County?

Click Here if you have questions about any aspect of employment law, including:

·       wrongful termination
·       wage and overtime claims
·       non-compete or severance agreements
·       discrimination, wrongful discharge and retaliation laws
·       Family and Medical Leave

Click Here if you have questions about any aspect of Pennsylvania Unemployment Law, from non-compete disputes, to willful misconduct, to severance issues

Click Here to e-mail John directly.


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