Employers and Human Resources Directors frequently face the following thorny problems when employees, especially senior-level employees, resign:
1. Many companies have included post-termination restrictive covenants in their employment contracts. What legal principles should be included in enforceable restrictive covenants, and what is included in typical unenforceable restrictive covenants and frequently left-out covenants?
2. With reference to the relevant court litigation in the past three years, how should employers deploy their resources to ensure the restrictive covenants are enforceable in order to protect their rights?
3. Would it be possible to ensure former employees, especially senior-level employees, are restricted from participating in the business of competitors so as to prevent unfair competition under Common Law? If so, under what conditions would it be possible?
4. Would it be possible to ensure former employees will not engage in business with its own customers? If so, under what conditions would it be possible? How should employers make effective arrangements?
5. Under the situations described in point 3 and 4, what legal rights and legal considerations will the employer be entitled to? What actions shall the employer take?
6. If a senior-level employee resigns with dozens of managers/ employees at the same time, how can an employer apply for a "springboard injunction" to prohibit those resigning employees from joining another company collectively and exploiting the company's confidential information? What are the implications of employers' winning/losing in recent court cases? What actions shall the employer take?
7. Given that the company has not signed any restrictive covenants with current employees, or the relevant covenants are relatively simple and unenforceable, can employers still rely on Common Law principles to prevent unfair competition when the employees resign? How should the Human Resources Department make arrangements so as to invite current employees to re-sign binding covenants? How can the company respond if it is rejected by current employees?
8. How can the employer ensure former employees' continued compliance of the confidentiality agreement in their employment contracts? Would confidentiality agreements be automatically lifted after an employment contract is terminated? What is the time limit of enforceable confidentiality agreements which restrict the use of the company's confidential information in recent court cases?
9. What is a "Trade Secret"? What is the secret of effectively protecting the rights and interests of employers by clearly defining "Trade Secret" and "Confidential Information"?
10. Would it be possible to prohibit former employees from making slanderous or defamatory statements against their former employer? Can relevant restrictive covenants be included in employment contracts? What are the implications of recent court cases?
11. Is there any way to remind a former employee about the possible criminal liabilities he/she might bear upon breaches of contract, such as obtaining business and clients' information without prior consent of the employer? What are the implications of employees being criminally prosecuted in recent court cases?
12. What are the other common and possible conducts of resigned employees breaching contracts that the employer should pay attention to? If relevant behaviours occur, how should the Human Resources Department deal with the problem? For example, can the e-mail content of resigned employees be monitored without violating the Personal Data (Privacy) Ordinance?
The speaker will answer the above questions for the participants, and suggest enforceable human resources measures by employers when employees resign based on the relevant court cases in recent years.