Does your organization use non-compete or non-solicitation agreements to stop departing employees from taking insider knowledge, customers or personnel out the door with them?

If so, there’s an enforcement weapon you can use instead of, or before, suing an offender.

We’re talking about a cease and desist letter. Depending on your organization, HR may be solely or partly responsible – with corporate counsel – for drafting and updating the standard letter(s) you need.

Why have it
The cease-and-desist letter is important for at least three reasons:

1) It may scare the former employee into compliance without your having to go to court.
2) It lays the groundwork for any subsequent lawsuit, by providing evidence that you honestly believe you’re being damaged.
3) If you send a copy to the former employee’s new employer, that organization may consider it advisable to lean on the person to stop the undesirable conduct.

What it should contain
To write a cease-and-desist letter, remember these principles:

  • Be businesslike. A shrill or accusatory tone may make you look vindictive or unreasonable to a judge if the matter later goes to court.
  • State the conduct you believe violated the non-compete or non-solicitation agreement.
  • State what you want the ex-employee to do – e.g., stop the conduct, return customer records, etc.
  • Give a time frame within which you expect the conduct to stop.
  • Don’t threaten to sue; there’s no edge in tipping your hand. (But of course be prepared to do so if the person ignores the letter.)

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