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steps to do so while still employed without violating her duty of loyalty. However, there are

certain limitations on the conduct of an employee who plans to compete with her employer.

While still employed, an employee may not: (1) solicit her employer’s customers, (2) engage

in any activity for her future interests at the expense of her employer by using the employer’s

resources or employees for personal gain, or (3) engage in conduct designed to hurt the

employer.

In Massachusetts, if an employee uses her employer’s trade secrets for her own

personal gain, the employer may also have a claim of misappropriation of trade secrets under

the state statute, Mass. Gen. L. c. 93, §§42 and 42A, which prohibits an employee from

disclosing or using without permission trade secrets of the employer. The employer must

show that the employee both misappropriated and wrongfully used the employer’s trade

secret.

  • B.

    Wrongful Termination

    • 1.

      Wrongful Termination: Breach of Covenant of Good Faith & Fair Dealing

Under Massachusetts law, all contracts contain an implied covenant of good faith and

fair dealing. In the employment context, this covenant is violated when an employer

terminates an at-will employee in order to avoid payment to the employee of compensation

earned or almost earned. These cases typically arise when an employee is terminated just

before receipt of earned payments, such as for commissions or bonuses.

2.

Wrongful Termination in Violation of Public Policy

Under the “public policy” doctrine, at-will employees can file claims when

terminated contrary to a well-defined public policy. Public policy employment claims

usually arise in one of three situations: (i) the employee is fired for asserting a legally

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