Sometime after the plaintiff was hired by White Plains Linen, the defendant, the vice president of the successor of Sales Crest Linen, was allegedly told by a customer that the plaintiff had notified this customer that “she was working for White Plains.” Based on this information from the customer, at the direction of defendant, legal counsel wrote to the plaintiff stating that she had violated her employment agreement. Following her employment at Sales Crest Linen, the plaintiff went to work at White Plains Linen. During her employment, the plaintiff allegedly signed two employment agreements which contained promises to abide by post-employment non-solicitation provisions.
Olan, the plaintiff had worked as a salesperson at Sales Crest Linen for approximately six years. As this case out of the Southern District of New York demonstrates, it is critical to do your homework before sending (or having outside counsel send) such a letter, to the new employer. A recent case, however, stands as a reminder that there may still be liability for writing an “overly zealous” – – and potentially inaccurate – – cease and desist letter. As my colleague Kara Maciel recently noted in her blog posting, Cease and Desist Letters Enjoy An Absolute Privilege From Libel Claims, these letters, if properly written, may be protected from libel claims by the judicial proceedings privilege. Such letters generally set forth the applicable confidentiality or non-compete restrictions as well as the former employee’s offending conduct. After gathering the facts, the next step is usually to send a cease and desist letter to the former employee, and oftentimes to the former employee’s new employer. As in-house counsel or the human resources director, you have probably received a frantic phone call from the business folks telling you that a former employee disclosed trade secrets or violated a restrictive covenant and demanding that immediate action be taken.
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