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New Jersey Court Offers A Reminder That The Duty Of Loyalty Is Thicker Than Ink

Do employees in New Jersey owe a duty of loyalty to employers, even without a written employment agreement? Eliminating any possible doubt, the New Jersey Appellate Division answered, emphatically, yes.

In Technology Dynamics, Inc. d/b/a Nova Battery Systems v. Emerging Power, Inc. et al., Docket No. A-0952-17T3 (N.J. Sup. Ct. – App. Div. Feb. 26, 2019), the Appellate Division reinstated breach of duty of loyalty claims against two former key employees of Nova Battery Systems (“NBS”), Master and Beringer, who resigned from NBS to work at competitor Emerging Power, Inc. (“EPI”). In an eleven-count complaint, NBS asserted a number of claims, including counts for breach of duty of loyalty and tortious interference with prospective business, and sought injunctive relief – which was denied.

Notably, Master and Beringer did not have any employment contract or non‑compete agreement with NBS. Consequently, at the conclusion of the discovery period, EPI moved for summary judgment, based partly on the contention that NBS’s claims could not survive the absence of a written contractual agreement. The trial court agreed and dismissed the complaint.

On appeal, NBS argued that a written agreement is not required in order to establish claims of breach of the duty of loyalty and tortious interference. The Appellate Division agreed and issued a twenty-five page opinion tracing the history of the duty of loyalty claim.

The Court noted the 2001 New Jersey Supreme Court decision in Lamorte Burns & Co., Inc. v. Walters, 167 N.J. 285, 302 (2001), for the fundamental proposition that, contract or no contract, “[a]n employee must not while employed act contrary to the employer’s interest.” After acknowledging that an employee has the right to make preparations to start a competing business, the Court reminded us, by citing to the New Jersey Supreme Court decision in Cameco, Inc. v. Gedicke, 157 N. J. 504, 517 (1999), that “the employee may not breach the undivided duty of loyalty he or she owes to his or her employer while still employed by soliciting the employer’s customers or engaging in other acts of secret competition.”

The Cameco decision identified the following four-factor analysis relevant to determine whether an employee breached a duty of loyalty:

(1) The existence of contractual provisions relevant to the employee’s actions;

(2) the employer’s knowledge or, or agreement to, the employee’s actions;

(3) the status of the employee and his or her relationship to the employer, e.g. corporate officer or director versus production line worker; and

(4) the nature of the employee’s [conduct] and its effect on the employer.

Kaye v. Rosefielde, 223 N.J. 218, 230 (2015) (alteration in original) (citing Cameco, 157 N.J. at 521-22).

The Court noted that while the existence of a contract is a relevant factor to be considered in a breach of the duty of loyalty claim, it is not determinative. In reviewing the evidentiary record, the Court noted emails showing Master and Beringer intended to solicit their NBS customers while they were still employed by NBS. The emails further indicated that Master and Beringer planned to sell those customers an excess amount of NBS products before resigning their employment, so that the customers could manage any delays in servicing during the transition from NBS to EPI.

Therefore, relying on Lamorte – for the proposition that an employee may not breach the undivided duty of loyalty he or she owns to his or her employer while still employed by soliciting the employer’s customer or engaging in other acts of secret competition – the Appellate Division reversed the trial court decision and restored the breach of duty of loyalty and tortious interference counts of the Amended Complaint. This decision reminds us that breach of duty of loyalty claims are alive and well in New Jersey, and do not sink or swim on the existence of a written contract.  Nevertheless, there are many reasons why an employer concerned about competition by former employees ought to use some form of restrictive covenant agreement.

Jackson Lewis P.C. © 2019


About this Author

Ronald V. Sgambati Litigation lawyer Jackson Lewis

Ronald V. Sgambati is a Principal in the Morristown, New Jersey office of Jackson Lewis P.C. He handles all types of employment litigation and counsels employers on litigation avoidance.

Mr. Sgambati acts as lead counsel on all aspects of employment litigation, including defending claims of sexual harassment, all types of discrimination, retaliation, Fair Labor Standards Act, breach of employment contract, employment-related torts, and business litigation, including claims related to breach of contract, fraud, restrictive covenants, shareholder disputes, and...

Colin Thakkar Non-Competes Unfair Competition attorney Jacksonville, FL  Jackson Lewis law firm
KM Attorney

Colin Thakkar is an Associate in the Jacksonville, Florida, office of Jackson Lewis P.C. Mr. Thakkar represents and counsels small and large businesses on all aspects of employment-related issues.

He has represented employers in federal and state disputes and litigation involving allegations of discrimination, wage and hour claims, ERISA claims, non-compete, non-solicitation, non-disclosure agreements and various employment-related common law claims. Mr. Thakkar also has significant experience representing and advising employers regarding traditional labor law issues, including labor arbitrations, unfair labor practice charges, and the interpretation of collective bargaining agreements.

Mr. Thakkar’s previous practice similarly focused on a broad spectrum of labor and employment matters.

Colin Thakkar is the Knowledge Management (“KM”) Attorney for Jackson Lewis P.C.’s Non-Competes and Protection Against Unfair Competition Practice Group, and is based in the Jacksonville, Florida, office. In his role, Mr. Thakkar serves as a subject-matter expert on restrictive covenant agreements and unfair competition litigation; creates and manages legal and electronic resources and materials to provide innovative client services; serves as a resource for other practice group members; monitors and analyzes regulatory and case law developments; and contributes to the firm’s blogs and legal updates.