The answer is generally yes unless the employee is subject to an enforceable covenant not to compete.  A former employee may compete with his or her former employer by accepting employment with a competitor or may start up his or her own competing business.  This includes soliciting the customers of the former employer.  Such conduct is prohibited, however, under limited circumstances which requires a close legal review by a qualified and experienced NJ covenant not to compete attorney.

Trade Secrets: Are They Protectable in NJ Under a Covenant

Not to Compete

A trade secret is "a formula, process, device or compilation which one uses in his/her business and which gives him or her an opportunity to obtain an advantage over competitors who do not know or use it.”  A trade secret may take many forms, from a program for a sophisticated software application to a customer list.  Trade secret protection in NJ will not be afforded to matters of common knowledge to the public or generally known within the competitive industry. Further, the subject matter sought to be protected as a trade secret must actually be confidential or secret.

Can Confidential Information Be Protected in NJ Under

a Properly Written Covenant Not to Compete

Confidential information isn’t just information that is "highly classified”.  It can be broader than just trade secrets and includes information acquired through the course of employment as a result of the employee’s relationship with his/her employer. Whether information is "confidential” is based on whether legal protection should be recognized and protected by the courts on behalf of the employer against disclosure of important business methods, records and customer lists. Although customer lists are not always protected in every business or industry sector, in certain industries, client lists are deemed protectable in New Jersey.

In addition, when an employee is intimately involved with the creation and/or development of products and systems, etc., and his/her knowledge is sufficiently detailed that he/she could duplicate those products or services from memory, a NJ court may afford injunctive relief in order to protect the employer’s interest. 

Is Raiding a Competitor’s Employee(s) Actionable in NJ

Can you recruit that co-worker or a key employee of a competitor in New Jersey?  The answer is tricky and very fact and business specific.  Employers need be cautious and take a good look at how they have treated their employee because a court may refuse to grant the employer relief where the employer has treated the employee unfairly.

Generally, a former employee can solicit their former co-workers, and any competitor can recruit your employees, as long as he or she does not cause the co-workers to breach an employment contract or cause excessive harm when multiple employees resign en masse.  In a reported NJ case, a competitor was found to have tortiously interfered with a target company’s economic advantage where the competitor hired all of the target company’s sales force who were employed as door-to-door salespeople. The competitor had secretly targeted the company’s district manager who in turn solicited his salespeople while the district manager was still employed by the target company.  The court found that this deception combined with the "planned campaign of mass recruiting” constituted malicious interference which entitled the target company to relief.

This area of the law is complex.  You should meet with the employment law attorneys with Fredrick P. Niemann when the issue of employee recruitment from a competitor is being considered.  Fredrick P. Niemann can be reached at (855) 376-5291 or by emailing him at fniemann@hnlawfirm.com.  Let our employment law experience work for you.

WHAT ABOUT THE OFFICERS, DIRECTORS AND ARE HIGH LEVEL EMPLOYEES OF A NJ CORPORATION OR NJ BUSINESS; WHAT

THEIR RESPONSIBILITIES?

Officers, directors and high-level employees in a NJ business also have a duty not to compete with their employer. In fact, a "key employee” is often looked at differently by the courts.  Breaches of confidentiality by a key or senior employee with access to private information, marketing plans and business strategies will be looked at uniquely and differently from other employees.  Let officers, directors and high level employees also have rights to change employers and careers without legal liability to their former employer.

Fredrick P. Niemann, Esq. and the attorneys at his office are experienced covenant not to compete attorneys. Each has the experience to advise you. You can reach Fredrick P. Niemann at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  He welcomes your inquiries.