When contemplating hiring a new employee who works for a competitor, a concern is whether that potential employee has signed an employment agreement containing a covenant not to compete, a non-disclosure of trade secrets provision, or a non-solicitation provision. The concern is that after the new employee is hired the former employer will file a civil lawsuit against the employee for breach of the employment agreement and possibly add a claim against the new employer for tortious interference with contract or conspiracy to breach a fiduciary duty. Now, it turns out that having a civil lawsuit filed may be the least of the new employee’s and new employer’s worries.
Increasingly, former employers are coupling filing a civil lawsuit with bringing criminal charges against the new employee for theft of trade secrets under Texas Penal Code, section 31.05. If convicted, the crime is punishable as a third degree felony. The typical scenario in these criminal cases is that the new employee takes documents, downloads files, or sends e-mails containing information, such as customer lists, pricing, etc., that is the property of the former employer. The nightmare for the new employer is that if the new employee takes such action at the direction or request of the new employer, then the new employer can be charged as an accessory to the theft.
In light of this development, companies hiring a new employee should seriously consider obtaining written confirmation from the new hire that he or she has not and will not be taking or accessing any information or documents from the soon-to-be former employer. If it turns out that documents or information are taken, the company at least has the ability to show that the taking was done without the knowledge or consent of the company, which hopefully will result in the company not being criminally charged.