Strange as it may sound, there are some limited circumstances when New York’s courts will allow an employee to compete with his employer – even before he leaves his job.

At this point you’re probably wondering, “How can that possibly be?” “Doesn’t that offend the very basic nature of the employee’s obligation to the employer?”

On some level, those questions are absolutely right; an employee, as a general rule, is a fiduciary of his boss, and owes his employer a duty of loyalty, to use his best efforts to promote his employer’s business, and certainly not to do anything to harm, or undermine, the business.

Therefore, as applied to this context, an employee cannot actively solicit or divert his employer’s clients – or proprietary information – while he remains employed.

But, and this is a big BUT …

New York’s courts have clearly stated that an employee MAY form a competing business - even before leaving his job – provided that he does so on his own time, not at the employer’s office, and at his own expense.

Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer