Discussing a New Job is Not Soliciting Employment

Originally published by Thomas J. Crane.

Every employee owes his employer a duty of loyalty. An employee generally may not carry on a business that competes with his employer’s business. To do so is grounds for termination. But, what about an employee who is contemplating leaving his employer? Can he discuss his possible departure with co-workers? The court in In Re Athans, 478 S.W.3d 128, 2015 WL 5770854 (Tex.App. Hou. 2015) answers yes. In Athans, three surgical assistants worked for American Surgical Professionals. One of them considered leaving ASA to work for a competitor. The three worked closely together. Another surgical assistant planned to leave to start a competing firm, Prestige Surgical Assistants. Martinez planned to leave and asked Athans if he was interested in leaving. Martinez testified he simply shared his project with Athans. He shared the project with other surgical assistants. Martinez and an investor started Prestige Surgical Assistants after Martinez ;eft ASA. ASA sued Martinez and Athans  for “soliciting” Athans and others to leave. ASA accused Martinez of interfering with the employment agreement between Athans and ASA. Four surgical assistants turned in letters of resignation at the same time. One surgical assistant changed his mind and stayed with ASA. The others joined Prestige.

The jury found in favor of Prestige. ASA sought a new trial, which was granted. Prestige sought a writ of mandamus to stop the new trial, which the court of appeals granted. The Court of Appeals agreed with Prestige. Assuming, said the court, that “solicit” means to ask seriously, Athans did not ask any of the surgical assistants “seriously.” He simply told them about his project. Athans was not certain he would work for Prestige when he resigned from ASA. He did not know what he would do when he left ASA. The other surgical assistants also indicated that Athans simply told them about a possible opportunity. The jury was entitled to use the ordinary meaning of “solicit.” See decision here.

The decision illustrates the difficulty in suing based on intent. ASA apparently lacked evidence regarding when Athans made up his mind to work for Prestige. If Athans had decided before he turned in his resignation and if ASA had some evidence of the timing of that decision, the outcome might have been different.

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