What are my Obligations to an Employer after leaving?

When you leave a job, it might be surprising to hear that much of your Employment Agreement probably remains in effect. There are the common restrictive clauses like Non-Competes and Non-Solicits, but we’ve also come across contracts wanting to know your whereabouts for the next two years or requiring you to update your social media immediately. This week, we’re going to cover the concept of Survival and the range of clauses that you might still be responsible for after quitting.

Survival and Survivability

‘Survivability’ is a type of of Miscellaneous Clause that flags the portion of your contract to remain in effect even after the contract is effectively terminated. Whether you leave on your own accord, are laid off, fired, or have transferred employers after an acquisition of your existing employer, these are all possible events that can terminate your contract. A clause that isn’t explicitly written to ‘Survive’ can have a a harder time when it comes to enforcement.

Common post-departure obligations

It’s worth emphasizing that you don’t really owe your employer anything after you leave. Whatever you’re legally obligated to is what has been agreed to as a surviving clause in a contract, some of which can be further limited by laws (e.g. non-competes). We’ve come across many examples of post-departure obligations, such as:

1. Restrictive Clauses: Non-Competition, Non-Solicitation, Non-Disclosure, Non-Disparagement, Non-Circumvention, and more ‘Non-’ type clauses that restrict your ability to do something potentially negative to your previous employer’s business. As these restrictions tend to negatively affect an individual’s rights to make a living or speak out about their experiences, they tend to have the most laws regulating their use. They must be limited in scope and still protect the right to speak out about any illegal conduct.
   
   

2. Disclosure Clauses: Employers may ask you to keep them informed of your activities, like where you’ll be working and what you’ll be doing there. This information can help them enforce restrictive clauses and also identify trends of employee turnover. Along this vein, you may be required to present subsequent employers with a copy of your contract so they are aware of your obligations. As mentioned earlier, we’ve seen disclosure clauses go as far as requiring you to keep your social media status up to date.
   
   

3. Service Clauses: Your work experience with each employer may be critical to that employer long after your departure. Particularly in the case of inventions, where patents can take years to acquire, you’ll likely be asked to provide your time and expertise to procuring an employer’s rights to your work even after you leave. For any court cases that involve your work, you may also be obligated to provide assistance.
   
   

What happens if I ‘breach’ a contract after quitting?

If the contract was written clearly to indicate a surviving clause, and the surviving clause is legal under the law, then your employer has all the right to seek penalties for a breach of contract. As such, it’s important to confirm the legality of the clause itself and its survivability. In the 8th Circuit Court case of Cara Miller v. Honkamp Krueger Financial Services, Inc. (2021), the non-compete was struck down because it was not included in the Survivability section. The courts have generally not been kind on clauses that are vague in its survivability.

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When it comes to surviving clauses, it’s important for individuals to evaluate each clause carefully because they technically don’t need to have any obligations to an employer after they leave. There is no law that forces ex-employees to disclose where they’re going, or to update their LinkedIn the same day. It’s prudent to keep in mind that almost everything in a contract is negotiable, and post-departure clauses are a great place to start.

For advocacy and beyond,
The Ask Ginkgo Team