Soliciting Fellow Employees Before Leaving
The legal policy in favor of allowing an employee to leave and compete does NOT, however, allow that employee to violate the fiduciary duty to the employer and solicit other employees before leaving. An employee cannot, while working for one employer, solicit fellow employees to leave that company and work for a rival. (Bancroft Witney, supra.)
Thus, while the courts may strike down clauses prohibiting an employee from competing after termination, the courts have routinely upheld clauses prohibiting use of trade secrets or confidential information and prohibiting solicitation of fellow employees. Loral Corp v Moyes (1985) 174 CA3d 268.
Note, however, that once the employment was terminated, the ex employee is free to solicit former coworkers and their particular skill sets and talents have been held not to constitute a trade secret of the employer which can be protected. Metro Traffic Control, Inc. v Shadow Traffic Network (1994) 22 CA4th 853. Nevertheless, the courts have upheld clauses in employment agreements that prohibit solicitation of employees by an ex employee if the prohibition is reasonable, e.g. limited in scope and time. The courts have held, however, that such contract prohibitions cannot stop a competitor from engaging in such action nor would passively taking job applications from former coworkers who were not solicited be considered violating that contract. (Loral, supra.)