I’m about to leave my current employer to work for a competitor, and I plan to give 10 business days’ notice. My hope is to use my last days on the job tying up loose ends and making sure the next person will have all necessary info for the projects they are taking over from me. I’ve worked for my employer for close to nine years and I would like to leave on a good note, but I do not wish to disclose where I’m leaving to, because I wouldn’t want to be escorted out the door the same day I give notice. Am I legally required to disclose to my current employer where I’m leaving to, if my new position is with a competitor?
The first answer
Daniel Lublin, partner, Whitten & Lublin Employment Lawyers, Toronto
Most of the time you do not have to disclose your future plans, even if going to a competitor.
Unless you have signed a non-compete clause, there is nothing that prevents you from accepting employment with a competitor, and therefore, nothing that compels you to disclose this information to your current employer.
There are a few other exceptions. You are still an employee of your company until the last day of your 10 day resignation notice period, unless your employer demands that you leave the workplace immediately upon notifying them of your resignation.
Therefore, if you are employed in a key position, known as a fiduciary, resigning to work for a competitor may place you in a conflict of interest such that you may be obliged to disclose your future plans. Second, if you are in a position that could arguably provide your prospective new employer with access to confidential information or trade secrets, then the same principals may apply.
The second answer
Natalie C. MacDonald and Mackenzie Irwin, MacDonald & Associates, Toronto
It is common for employment contracts to include restrictive covenants. These types of clauses seek to limit your ability to compete with your employer for a certain period of time after your employment ends, including working for a competitor. While these terms may or may not be enforceable, if your contract contains one of these clauses then you will likely be required to disclose to your employer that you are leaving to work for a competitor.
Even if you do not have an employment contract or your employment contract does not contain a restrictive covenant, you may still owe a common law duty not to work for a competitor, depending on your position. If you’re in senior management, you may be required to disclose to your employer that you are leaving to work for a competitor, as you would owe a fiduciary duty to your employer, and may be prevented from working for a competitor for a “reasonable period of time.”
Additionally, do not assume that 10 business days is sufficient notice of your resignation. Your employment contract may have a resignation provision that stipulates how much notice is required. If your contract does not address resignation, the law requires that you give “reasonable notice.” Depending on your position and the difficulty in replacing your position, the law may require that you give more than 10 days’ notice.
Finally, do not assume that your employer will permit you to work through the notice period. Your employer is entitled to end your employment on the same day that you provide notice; however, they will be required to pay you for the required notice period, and possibly for a longer period of time, given that their action will be the termination of your employment, and it will no longer be considered a voluntary resignation.
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