By Ari Lichterman, Esq.
When Preparation Isn’t Enough
You took the right first step: working with counsel to ensure your employees signed carefully drafted restrictive covenant agreements. That step protects your business—on paper.
But when an employee leaves and you suspect a violation of a non-compete, non-solicitation, or confidentiality provision, preparation alone is not enough.
In Maryland, enforcement often requires swift and strategic action, sometimes in the form of an injunction to stop misconduct before damage is done.
Effective enforcement generally involves three phases:
- Steps taken before departure
- Careful evaluation of suspected conduct
- Pursuing legal remedies, including injunctive relief
Understanding these stages allows your business to respond quickly and effectively when a covenant is at risk.
Before an Employee Departs
Enforcement begins before the employee even leaves.
During the departure process, employers should:
- Remind the employee of all continuing obligations, including non-compete, non-solicitation, and confidentiality provisions
- Reaffirm these obligations in any severance agreement
- Consider conditioning severance benefits on continued compliance
- Assess risk by understanding the employee’s future plans
- Proactively communicate with clients to protect relationships and control messaging
Taking these steps reduces exposure and strengthens your position if enforcement becomes necessary.
Evaluating Suspected Conduct
When an employer learns that a former employee may be violating a restrictive covenant, speed matters.
A focused evaluation should answer key questions:
- What specific conduct is occurring, and how does it breach the agreement?
- What evidence supports the suspected violation?
- What actual or imminent harm has resulted?
Early involvement of experienced counsel is critical.
Courts consider how quickly a company acts after discovering misconduct. Delays can weaken both credibility and urgency—two key factors when seeking injunctive relief.
Taking Legal Action
Once the facts are established, the employer must decide how to proceed.
Cease-and-Desist Letters
Often, the first step is a cease-and-desist letter, which:
- Reminds the former employee of ongoing obligations
- May notify a new employer of those obligations
- Demands that any unlawful conduct stop
These letters can:
- Encourage resolution without litigation
- Clarify facts and defenses
- Demonstrate prompt enforcement
- Preserve business relationships
When Litigation Becomes Necessary
In some cases, litigation is unavoidable.
The decision to file suit should be strategic and consider:
- Jurisdiction and venue
- Applicable law
- Cost of litigation
- Business impact
- Severity and immediacy of harm
When litigation is pursued, employers often seek both damages and injunctive relief.
Understanding Injunctive Relief
The primary goal of an injunction is simple: stop the violation immediately.
There are three types:
- Temporary Restraining Order (TRO)
- Preliminary Injunction
- Permanent Injunction
While they differ in timing and evidentiary requirements, they all serve the same purpose—halting harmful conduct.
To obtain injunctive relief, an employer must demonstrate:
- A likelihood of success on the merits
- Irreparable harm without the injunction
- That the balance of equities favors the employer
- That the injunction serves the public interest
The Importance of Evidence
Courts consider injunctions to be extraordinary remedies, meaning they are not granted lightly.
Employers must present strong evidence, including:
- Affidavits
- Testimony
- Supporting documentation
Courts will look for harm that is:
- Actual and imminent (not speculative)
- Irreparable, meaning it cannot be fixed through monetary damages
Loss of goodwill, client relationships, or trade secrets often meets this standard because it is difficult to quantify.
Final Thoughts
Restrictive covenants require more than careful drafting to be effective.
Whether through negotiation or litigation, Maryland employers must be prepared to act when violations arise. Swift evaluation and decisive action can mean the difference between contained risk and lasting damage.
Preparation creates protection—but enforcement makes it real.
How Luchansky Law Can Help
The attorneys at Luchansky Law have extensive experience enforcing restrictive covenants, including non-compete, non-solicitation, and confidentiality agreements.
To discuss how to protect your business:
- 📞 410.522.1020
- 📧 ari@luchanskylaw.com
