Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.

Friday, June 14, 2013

Why Should Employers Have All the Injunction Fun? How To Stop Your Ex-Employer From Harassing You

By: Associate Attorney who now chooses to be anonymous, Donna M. Ballman, P.A., Employee Advocacy Attorneys

When you leave a job and start working somewhere else, you may be greeted with a letter from your former employer threatening legal action against you unless you quit your new job. The ex-employer may claim you are bound by a non-compete agreement, non-solicitation agreement, or a confidentiality agreement. Your ex-employer may allege that you were privy to trade secrets or other confidential information and claim you are forbidden from working for the new employer, because it is a competitor of your ex-employer. (Ms. Ballman has tackled the ins and outs of these agreements in length in prior posts, so I will not waste your time explaining these dreadful contracts).

Most employees who get letters like this are forced to quit the new job, usually because they cannot afford to defend against a lawsuit if the employer makes good on his wicked promise. However, you may be able to get an injunction against the employer’s anti-competitive and restrictive actions.

An injunction is a court order that would require your former employer to perform an act or restrain the employer from acting in a particular way. In order get a court to issue an injunction, the you’ll have to prove (1) the likelihood of irreparable harm, (2) the unavailability of an adequate remedy at law, (3) a substantial likelihood of success on the merits, and (4) that a temporary injunction will serve the public interest.

Almost every state has an antitrust statute, or similar law, prohibiting anti-competitive behavior in the market place. Federal law also provides injunctive relief in limited circumstances. Sometimes these antitrust statutes specifically permit injunctive relief against the types of behavior discussed above. For instance, when a person violates Florida’s Anti-Trust Law, the aggrieved party is entitled to injunctive relief against threatened loss or damage and even authorizes attorney's fees and costs to a plaintiff who substantially prevails on such a claim.

Make sure you check your local state statute to see if similar relief is available. Some states do not have antitrust laws, others only have criminal penalties for antitrust violations, and some only permit a civil action to be brought by the state attorney general.

It is common for employers to move for injunctions against ex-employees it believes are violating non-compete agreements and the like. This is usually because antitrust laws, such as Florida’s, have specific provisions providing that the violation of an enforceable restrictive covenant creates a presumption of irreparable injury to the person seeking enforcement of that covenant. This makes it much easier for the employer to obtain an injunction. However, non-compete laws are an exception to anti-trust laws. They are only enforceable if they are supported by a legitimate business interest, not expired, not over-broad, and that satisfy other requirements that vary from state to state.

Normally, proving “irreparable injury” is an uphill battle. In most cases, the irreparable injury must be immediate. This is probably why many employees have not been successful in getting courts to issue injunctions against former employers. However, it is a positive sign for employees that state law makers have drafted these statutes providing injunctive relief. It demonstrates that legislators recognize the importance of preventing monopolies. This means you may be able to persuade a court to enjoin your employer if it tries to restrict you from freely working and competing in the marketplace.

If you believe your ex-employer’s actions may be considered an illegal restraint on trade or commerce, you should contact an employee-side employment attorney in your state. Proving the elements for injunctive relief and antitrust violations can be difficult and you should have an attorney assist you.

If you are successful in getting the injunction, the Court will attempt to maintain the status quo. This means, for the time being, no more pesky letters from your ex-employer. You may now freely enjoy your new job without your ex trying to ruin it all for you.

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I appreciate your comments and general questions but this isn't the place to ask confidential legal questions. If you need an employee-side employment lawyer, try http://exchange.nela.org/findalawyer to locate one in your state.