Noncompete, nonsolicitation, and nondisclosure are all agreements employers implement as their company’s line of defense. They are most prominent in employment for positions where the employee is directly selling to or servicing the company’s clientele, such as sales, business development, or executive-level consulting. No matter what someone’s role is within the company and whether or not formal agreements are in place, employees who recognize boundaries and exercise discretion with others will most likely preserve the relationship even after separating.
When interviewing with a prospective new employer, it is commonplace for discussions to take place regarding your current clientele, processes, people you work for/with, and so on. They may also request samples of your work or telephone numbers to call for references or have you demonstrate for them the quality of your work. After all, the best companies know that “talk is cheap” and to always “verify instead of justify.”
Understanding why a prospective new employer is requesting information is key to honoring your current or past employer and obtaining the next career opportunity. Well-respected professionals live within boundaries that preserve relationships, whether seeing the employer regularly after their departure or possibly never again, which include:
Until Your Last Day:
Top employees—whether it’s their first day on the job or their last—are attentive, professional, and contribute to the workplace. They recognize that although their employment may be ramping up or winding down, they are being paid to do a job. The right prospective employer will work with you during the interview process and onboarding to ensure you can leave your past employer with a mutual understanding of your departure.
When You Are Preparing To Leave:
In today’s technological world, it is easy to transfer information to your personal devices or to another person; it is also commonplace for employers to track to whom and where that information went. If that information was not intended for anything other than use within the boundaries of the company itself, then it is most likely proprietary or off limits to take and share without written permission from an officer of the company. This is especially true for client lists, proprietary forms, templates, and processes that your current employer invested time and money to develop. If you were involved in that process, then you know how to do it again if an employer hires you for that expertise. Although documents and research when developing the proprietary information may not be confidential, the end result that was developed within the borders of the company while you were being paid by them is.
What Is Allowed To Be shared:
A good rule of thumb would be to compare when a construction company donates plans, estimates, and documentation on the lifecycle of a project for others to learn from in a classroom environment—they pick something that shows a process that is no longer proprietary to the business’s future. The students can use this as an example to get them started, although their performance will be graded upon them doing the work themselves. If a prospective employer asks you for a sample of your work, it is okay to provide something that is in piecework or closed-out, and/or you scrape for anything that might breach confidentiality. If you know it is being used strictly to examine your level of experience and the quality of work required at your previous employment, you should have nothing to be concerned about.
Whether a formal agreement is in place or not, taking any type of list prepared at the company—vendors, clients, soliciting co-workers, or clientele you did business with—is off-limits. Any estimates, designs, and so forth from projects that have not been closed out and any operational manuals or written processes developed specifically for the company all fall under proprietary information and common respect.
If you want to learn more about the differences and enforceability of noncompete, nonsolicitation, and nondisclosure agreements, the best way is to contact a labor law and/or corporate attorney for your state of employment. In Florida, noncompete agreements may be enforced by the employer so long as they are reasonable with regard to time and geographical area and protect a legitimate business interest of the employer as defined by Florida statute. Each state has different statutes and case laws. It is okay to share your work if it does not violate confidentiality and can verify your capabilities for a prospective job opportunity. For any other reasons, if in doubt, ask permission first, especially if a formal agreement is in place.
Your relationships and learned knowledge accompany you wherever you go. Your ability to do your new job should not be contingent on what documents you need to refer to beyond a standard template. After all, they are hiring you for your expertise!
To protecting that which is proprietary,
Suzanne Breistol
