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Should employees refrain from accepting alternative offers of employment in cases where acceptance of such offers would constitute a breach of their current employment contract?

From my point of view – yes.

This is the second post in a three part mini series discussing the ethical considerations involved whereby:

• A prospective employer wishes to make an offer of employment to a prospective employee; but
• The act of accepting such an offer would cause the prospective employee to breach his or her contractual obligations under their current employment contract.

The most common type of situation where this could occur is where the prospective employee is currently employed on a fixed term contract basis, with no provisions for early termination. But this can also occur in other situations, for example where non-compete clauses prevent employees from accepting employment with rival firms for a specified time period.

A good example of the latter situation was outlined in last Tuesday’s post, where Microsoft in 2005 attempted to prevent long time senior staffer Dr. Kai Fu Lee from defecting to rival Google. In that case, Dr. Lee was subject to a one year non-complete clause, which Microsoft claimed prevented him from accepting Google’s offer.

Last Tuesday’s post discussed the ethical considerations involved in the situation described above from the prospective employer’s viewpoint.

Today, I would like to focus upon the viewpoint of the prospective employee. In particular, I would like to address the question relating to whether or not the he or she should be obligated to decline alternative offers of employment in the circumstances described above.

 
The employee’s perspective – my initial view
My initial view was that restrictive clauses such as those described above should not be interpreted in an overly strict fashion, and should not be used as a means of unduly restricting the employee concerned from pursuing promising opportunities to advance his or her career.

Under this view, whilst employees are bound to refrain from breaching their contractual obligations in the majority of circumstances, there are exceptions. These exceptions include cases where:

• the time period remaining until the expiration date of the contract or restrictive clause is very short;
• breach of contractual obligations is not anticipated to cause significant disruption or harm to the business operations of the current employer; and
• the employee concerned has served his or her current employer in a loyal and dutiful fashion over a considerable time period (i.e. several years).

 
But a contract is a contract
However, I no longer agree with this view.

A contract is a contract – full stop. As a matter of common integrity, employees must refrain from breaching the terms and conditions of their employment contract under any circumstances. If these means declining alternative offers of employment, then so be it.

There is one exception and one exception only – where the current employer provides their consent for the contractual violation.

In my view, there is no reason why employees who are bound to their current employer by virtue of a fixed term contract or other restrictive cause should not seek leave from their current employer to accept alternative employment offers if they so wish. One possible option is for the employee concerned to agree to some form of financial penalty in order to compensate his or her current employer for losses incurred as a result.

In some circumstances, the current employer may agree to such requests, perhaps as a goodwill gesture or otherwise out of concern for their reputation as an employer.

But they have every right to refuse. If that happens, the employee concerned is bound by an ethical obligation to refrain from breaching his or her contractual obligations.  

In cases where acceptance of such an offer would constitute a violation of contractual conditions under his or her current employment contract, a prospective employee is, in my view, obligated to decline an alternative offer of employment.