Investigating Non-Compete Violations
When growing a business, executives and owners have to go the extra mile when it comes to protecting trade secrets. In the pursuit of their company’s business, a common practice for corporations of all sizes is implementing non-compete clauses in their employees’ contracts. This ensures, should an employee leave the company for any reason, they cannot utilize trade secrets for the purpose of building a similar business of their own. It’s in a business owner’s best interest to be preemptive in protecting themselves from client poaching, theft of company secrets, and possibly even slander when it comes to current and former employees who violate their non-compete agreements.
Though they go by several names and the laws concerning them vary state to state, non-compete agreements are generally a legally-binding contract between an employer and an employee, whereupon acceptance of a job offer by a company, an individual agrees during their employment and following their termination they will not enter into any competing business for a predetermined period of time. Whether it’s working for a company’s top competitor, or striking out in their own business, non-compete agreements protect trade secrets, sensitive company information, and prevent competing businesses from poaching successful employees with promises of a handsome pay-raise in exchange for the expertise they might have gleaned from their time at their previous position. This kind of information can range from client bases to business operations to future products and services. The duration of the non-compete agreement following an employee’s termination have to be well within reason, as no employer can permanently preclude a former employee from any line of work.
Not every company experiences difficulties by virtue of a former employee violating their non-compete agreement, and some companies do not see the need for non-compete agreements at all, but the consequences of trade secrets being used to steal a company’s business can have devastating effects, ending in the worst possible circumstances with a business closing and an owner in debt. Even if a company is able to quash a non-compete violation in court, the cost to the company in legal fees can be astronomical, especially for smaller businesses. That’s why it’s important for owners and executives to be preemptive and proactive when it comes to potential violators. Luckily, a private investigator can help at all stages of a non-compete violation investigation.
Human resource employees are the salt of the earth, and can have a great influence on how a company develops based on the individuals they select for their workforce. However, human resource employees are not lie detectors, and do not always have access to legitimate, comprehensive background screening tools. Background screenings and checks are among the most common service associated with private investigators. If there is something suspect in a candidate’s past, licensed private investigators have the tools and experience to find it out. Private investigators can pull a candidate’s criminal history, financial history, and interview persons in their lives who can speak to character and work ethic. They can also spot patterns in a person’s work history or lifestyle that could be high-risk factors in a hypothetical non-compete violation—things like transience, long periods between positions, or financial destitution.
Some malingering employees can’t wait to be terminated before violating their non-compete agreements. It’s not uncommon for these individuals to exploit trade secrets for their businesses own gain while on company time and dime. While on a business trip, an individual might use company per diem to buy drinks for a person who could be a potential investor in their new business. Employees might use company supplies to supplement their project, such as printers, fax machines, computers, and other equipment. Private investigators can conduct diligent investigations within a company’s workforce to root out the source of the theft. Private investigators can interview witnesses, including upper management and other staff, review vital documents like bank records, and conduct surveillance of the company’s operations as needed to expose the perpetrator. Their objectivity makes them an ideal candidate to conduct such an investigation because they do not have a stake in the outcome.
There are many circumstances under which a business owner might come to suspect a former employee has violated their non-compete agreement. Word might have traveled through business circles that a similar business is starting up. Employees might start disappearing in clusters. Clients may suddenly decide to sever business ties in favor of a new contender in the competition. Whatever transpires, one thing is certain—documenting and exposing this exploitation is imperative, because the consequences can be costly. Retaining a qualified private investigator who specializes in corporate crises is crucial to resolving non-compete violations quickly, before the exponential costs begin to erode profits. Private investigators can perform surveillance on suspected former employees to document their movements, record with whom they met, and collect evidence such as pictures of a brick and mortar establishment, marketing materials, vital documents, and filings with the Secretary of State. Private investigators can send undercover operatives to infiltrate a workforce to get information the business privy only to employees. They can also enlist the aid of a confidential informant—an individual already within the company to provide information. This requires quality interviewing skills and developing a natural rapport with potential witnesses, both important qualities in a qualified investigator.
When non-compete violations are at their ugliest, not only do violators seek to siphon off their former employer’s business by exploiting trade secrets and knowledge of their operations, but they can also play dirty by exposing this information publicly. Another method involves deliberately spreading lies about the competition in order to drive business towards the former employee’s company. That’s known as slander and it’s legally actionable. Documenting the perpetuation of these lies and proving they are in fact false are crucial in these cases. Diligent fact-finding is the cornerstone of any private investigator’s expertise. Private investigators can conduct cyber investigations to track down the users behind profiles that post false negative reviews, follow rumors back to their roots, and forensically track how information left the competition and made its way into the former employee’s business nucleus. They can implement many of the strategies aforementioned: surveillance, interviewing witnesses, documenting evidence. Slander cases tend to have a divisive they-said, they-said narrative, which is where a private investigator’s objectivity becomes invaluable once more. Private investigators have no stake in the solution of an investigation. Their independence coupled with their expertise and resume make them spectacular witnesses in any subsequent litigation.
When a company has a non-compete agreement in place, it’s important that executives and owners are proactive when performing a risk assessment on a potential employee. It’s important that a healthy company culture fosters good comradery, honesty, and a policy of “if you see something, say something.” Building a case against a former employee who violated their agreement can be time consuming at the expense of company resources. Dealing with the fallout from litigation can bring a reliable business to its knees. Private investigators can assist in all phases of any non-compete agreement violation, and retaining their services will go a long way towards a body of objective evidence and testimony that can resolve a company’s crisis.
If you have suspicions that a current or former employee has violated their non-compete agreement, contact Lauth Investigations International today for a free consultation on how we can help you! Call 317-955-1100 or find us online at www.lauthinvestigations.com.
Carie McMichael is the Media and Communication Specialist for Lauth Investigations International. She regularly writes on investigations, missing person, and other topics in the criminal justice system.