Departing Employees, Competitor Moves & Coworker Recruiting
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Request the attorney demand engagement, starting at $2,500After a conflict check, I draft the demand on my letterhead, prepare the supporting chronology and damages figure, send it by certified mail and email, and review the first substantive response. Sergei Tokmakov, California Bar #279869.
| Scenario | Red Flags | Response |
|---|---|---|
| Competitor Move Employee leaves for direct competitor |
Accessing unusual files before departure; downloading customer lists; copying technical documents | Exit interview; forensic review; demand letter to employee and potentially new employer |
| Startup Launch Employee(s) leave to start competing business |
Multiple departures at once; incorporating while still employed; soliciting clients before leaving | Investigate timeline; demand letters; consider injunction if imminent launch using your secrets |
| Coworker Recruiting Departed employee solicits current employees |
Employees suddenly resigning; communications between departed and current employees | Remind current employees of obligations; send cease-solicitation demand if using confidential employee information |
| Customer Raid Former employee solicits your customers |
Customers mention contact from former employee; business lost to competitor | Demand if using confidential customer lists; may not be actionable if using general knowledge of industry contacts |
| Technical Theft Engineer takes source code or designs |
Large downloads; USB/cloud uploads; code appearing in competitor products | Forensic analysis; demand with technical specificity; likely need injunction |
| Evidence Source | What to Look For |
|---|---|
| File Access Logs | Files accessed, dates, frequency; unusual patterns before departure |
| Download/Copy Logs | Downloads to local storage; copies to USB; cloud uploads (Dropbox, Google Drive, personal email) |
| Forwarding to personal accounts; attachments sent outside; communications with competitors | |
| Print Logs | Unusual printing volume; sensitive documents printed |
| VPN/Remote Access | After-hours access; access from unusual locations |
| Device Forensics | Files on returned devices; deleted files (recoverable); browser history; USB connection history |
| Cloud Storage | Company data in personal cloud accounts accessed from work network |
| Prohibited | Why It's Prohibited |
|---|---|
| Non-compete agreements | Void under § 16600 (with very narrow exceptions) |
| Prevent employee from working for competitor | Violates § 16600 employee mobility rights |
| Prevent employee from using general skills/knowledge | General knowledge belongs to employee, not trade secret |
| "Inevitable disclosure" injunctions | California courts hostile to this doctrine—seen as backdoor non-compete |
| Broad non-solicitation of customers | May be unenforceable if too broad—depends on specifics |
| Require employee to disclose new job before starting | Generally unenforceable |
| Permitted | Requirements |
|---|---|
| NDAs / Confidentiality agreements | Enforceable if reasonable in scope; can't be disguised non-compete |
| Prevent use of actual trade secrets | Must be specific confidential information, not general knowledge |
| Demand return of company materials | Physical and electronic copies of confidential documents |
| Injunction for specific trade secret use | Must show actual or threatened misappropriation of identified trade secrets |
| Non-solicitation of employees | Generally enforceable if reasonable, but can't prevent former employee from hiring people who independently seek them out |
| Invention assignment agreements | Enforceable within limits of Labor Code § 2870 |
Employees can use general skills, knowledge, and experience gained during employment—even if learned on your dime. This includes:
This does NOT include:
Comprehensive damages estimator for employee trade secret misappropriation under California CUTSA and federal DTSA. Calculates lost business value, unjust enrichment, exemplary damages, and provides settlement range guidance.
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