What defines stealing?
What defines stealing?
(OP)
In context to thread732-316391: On the way out....How Do you Do it
Is offering a separate and different proposal of work to a client "stealing" when it is the client that selects which proposal suits them the best? Or is it the access to the client in the first place that is the ethical dilemma?
Is offering a separate and different proposal of work to a client "stealing" when it is the client that selects which proposal suits them the best? Or is it the access to the client in the first place that is the ethical dilemma?
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RE: What defines stealing?
RE: What defines stealing?
"Gorgeous hair is the best revenge." Ivana Trump
RE: What defines stealing?
RE: What defines stealing?
Dik
RE: What defines stealing?
But if you don't deprive them of the data, you may walk with knowledge of who is who.
One of the main reasons companies recruit from competitors, especially in sales, is the client list they bring with them...... not contracts or enquiries or commercial information, simply the client list.
But some industries seem more ethical than others or to accept certain things as more acceptable than others do.
JMW
www.ViscoAnalyser.com
RE: What defines stealing?
New work = fair game is an over-simplification.
RE: What defines stealing?
However, if, in an honest random cold call list of the phone book, you run across the same client, the situation gets more cloudy. Here, it's not necessarily what you know, it's what the former boss could think that is the problem. In other words, it's what it appears to be to others that becomes the problem.
Personally? I would steer clear of all his old clients.
Mike McCann
MMC Engineering
http://mmcengineering.tripod.com
RE: What defines stealing?
RE: What defines stealing?
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RE: What defines stealing?
Maybe you've used the same barber/hairdresser for years. But your normal barber or stylist leaves the shop and then you get a flyer in the mail with the stylist announcing their move to a different salon. So you decide to go to the same stylist at the new shop. I don;t see this as wrong, even if the flyer came from someone who left the shop and went to a different one.
"Gorgeous hair is the best revenge." Ivana Trump
RE: What defines stealing?
People have a right to choose their suppliers and certainly here and I am pretty sure in the USA and most of the rest of the Western world this to try to restrict that is a violation of fair trading/anti trust laws.
It is stealing to take something that is certainly your bosses IP, but you are allowed to retain the experience you gained and certainly allowed to retain information that is from the public domain.
What is your bosses IP and what is fair experience can get to be a very grey area. Certainly design details and pricing is the bosses.
Names of companies who advertises for suppliers or who contact you or who are listed in phone books or even who come up on google is public domain and belong to no one. If people attend lectures, serve on committees etc and you have been to functions they attended, that makes it pretty much public domain.
The names of people in those companies is a grey area. If you know someone well it is really childish to expect to call the company and ask who is the person responsible for negotiating supply when everyone knows dam well you know who it is and you are on a first name basis with them.
It is certainly stealing to call someone you never met because you got their name of a company owned document.
Regards
Pat
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RE: What defines stealing?
Let me put to you what companies do and you decide who ethical companies are.
Manufacturer A is a niche market single product manufacturer who depends on agents and distributors round the world to include his product in their portfolio.
As the years go by the various agents and distributors built the market for the manufacturer until they have very significant sales globally.
Then they are bought by a major global single source company.
The new owners do nothing immediately because, despite having their own sales offices in most of the affected countries, there will be an "acclimatisation period".
But, because of the Arab Embargo or company policy or some such nonsense, they require that in future instead of the distributors simply ordering product they must now declare the application and the end user.
At the end of the year, or maybe 18 months, they pull the plug on all the distributors. In that one year they have obtained a very clear picture of who the major clients are and the key applications.
The distributors are left with enquiries but no product and no alternative product to offer.
Now though the agents and distributors may all cry "Foul!" no one takes any notice.
Most companies are realistic.
As I said above, most salesman are more highly valued for their contact lists than anything else.
The only two times I have ever know action to be taken was when, believe it or not, an employee at one company was also in the pay of a competitor and passing information directly to them.
What happened I don't know. Anyone stupid enough to do this obviously leads a Walter Mitty life style and needs treatment.
The second instance was when the local chamber of commerce wrote a snotty letter to a company about their marketing manager posing as a client and trying to obtain their competitor's prices.
Not sure what they were complaining about unless it was the subterfuge he resorted to. Most companies have and need to have a pretty good idea of competitor pricing and how they get it is to ring up and ask or get other people to ring up and ask.
Ethical?
Who knows. In the purist sense none of it is.
What is more to the point is that this is how all companies behave in order to survive. They all know this is what they are doing and what the others are doing to them.
That you may have a contact list is one thing. How you use it is another.
To use it to seek business in a fair and competitive way is one thing.
To use it to blacken or malign the former employers name or anything else is something else again.
To expect some one to throw away their contact list and go through a charade of looking surprised to find the company they visited twenty times a year for their original employer is unreasonable.
In this area I suggest that it is reasonableness that should rule, not some abstract EU court of Human rights approach to impose something idealistic and unworkable on the real world.
JMW
www.ViscoAnalyser.com
RE: What defines stealing?
----------------------------------
If we learn from our mistakes I'm getting a great education!
RE: What defines stealing?
After that, it just comes down to your personal values. One guy would never consider calling his contact at the last company because "it feels wrong", and the next guy will make that his first call. Neither are breaking any laws or (probably) any enforceable contract. They just have different thresholds for considering something "wrong".
If the call involves taking some project-specific knowledge (e.g., if you worked on a project bid and know what your old employer is bidding, it would probably be "stealing" to underbid him a hundred dollars on a million dollar project, and P.E. boards would likely take notice) it would probably fail the red face test for anyone.
When I was on the other side, I wouldn't take calls from an ex-employee of one of my contractors. It happened a couple of times a year and if they were friends I would say "lets talk about the family, I'm not talking about work with you". If the were just business contacts it was "call me back in a year or so". I've always felt that ethics should go both ways.
David
RE: What defines stealing?
It takes two to tango:
Ultimately companies do not "own" clients.
They ought to realise that it is very difficult to win clients, extremely easy to lose them and then extraordinarily difficult to win back lost clients.
Hence: a company that looks after its clients is likely to be far more sanguine about contact lists than one that treats its clients badly.
It's that simple.
A happy client will be unlikely to move except and unless they have a personal level professional relationship with the departed employee.
But in a good company such employees who can keep good clients happy should be looked after better.
The companies that fail to understand these simple ideas (usually the ones with a CEO inspired Clichéd jingle about customer service but no customer service department) will also be the ones most concerned about such issues.
(I agree about specific project knowledge etc.)
JMW
www.ViscoAnalyser.com
RE: What defines stealing?
The client is free to accept any offer or to reject all offers. However, because you worked on the proposal, and you wouldn't have had access to the client otherwise, and now you're going off your own after the same project it would be unethical or "stealing" because your current employer did the work in terms of the technical approach to the project.
RE: What defines stealing?
As David said regarding ethics being a two-way street, how would this be handled? There's nothing to steal, because my former employer cannot ethically advise any of their clients that they offer this one specialized service. I had no ethical connundrums about contacting clients that I had previously done work with through my former employer.
I think that there are different degrees to the answer to this question depending on the seniority/specialization of the employee who leaves.
(I have seen some employers get their knickers twisted by what should be considered knowledge, and would have preferred to do the memory-wipe. Of course, that attitude is most likely why the employee left in the first place)
RE: What defines stealing?
In order to remain ethical, you should be careful not to use information that you gained as a result of your previous job - that could be considered information that belonged to your previous employer.
RE: What defines stealing?
A client of your former company who solicits a proposal from you for work that they would have normally gone to your former company for is legal and no breach has occured.
No compete clauses may not be enforceable, but their threat is there that most people don't want to risk it.
"Wildfires are dangerous, hard to control, and economically catastrophic."
Ben Loosli
RE: What defines stealing?
We're talking engineering ethics here. Salesmen don't necessarily follow the same code, and many are independent contractors.
RE: What defines stealing?
Once you leave you are free to create similar lists from sources to which you have legal access, like your memory, google and phone books and trade association publications and meetings.
Regards
Pat
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RE: What defines stealing?
Once you admit of memory.... you are splitting hairs to talk about what type of memory.
Prospecting after projects you learned about while an employee is one thing. But contact lists? Like most things they are of transient value.
Contacts change all the time. Both the contacts at the client and the clients the company deals with.
They thus have a limited life time unless continuously refreshed.
If companies really worried about contact lists then you can be sure we wouldn't be arguing about the ethics of it here. It would be a specific condition in the contract.
OK so there is a lot that is not in the contract but let's use common sense.
The contact list by itself has little value. It is a simple tool.
What most companies are aware of is that 80% of their business comes from 20% of their clients. That is the important information not in the contact lists and which, if you know your business, you will know who the top 20% are and you don't need the contact list for that. It is just a convenience. Without it you simply recreate it from memory or whatever.
Denying you the contact list therefore does no good because a s means to protect the employer it is of little value.
What they do worry about is if you try to take and existing project.
Next they worry about you trying to take some of their top 20%.
The contact list isn't how they defend against this, it is the no compete clause.
JMW
www.ViscoAnalyser.com
RE: What defines stealing?
RE: What defines stealing?
Here's an interesting question, regarding physical contact lists: I am given business cards by every contact that I meet. Who owns those cards? Must I leave all of them when I leave my employer?
RE: What defines stealing?
"
Thanks for helping me make my point. Not only was the list created on company time, it was maintained on company time as well.
RE: What defines stealing?
I have personal experience with this. When I owned my own firm 10 years ago, I had two employees start a competing business, taking with then 12 projects under contract. I took them to court. I had good attorneys. I lost. I did not win one single aspect of the motion that was filed. One of the claims was tortious interference. I got less than nothing. I didn't even get awarded termination costs. I spent a bundle in legal fees.
Loading up a company car with the server, five desktop computers, the petty cash box, and driving to Mexico is stealing. Taking a short-shelf-life client list is not. It doesn't matter if the client list comes from your memory or your memory stick. Fear of reprisal for taking so-called company property is little more than psychological warfare against an uninformed workforce.
"Gorgeous hair is the best revenge." Ivana Trump
RE: What defines stealing?
I didn't say made on company time but your point is valid even if we allow that the list is created by people entering details from business cards they collect. It would be created on company time and with company resources.
But it has to be maintained to be of value. Mostly this includes simply adding new contacts. It may involve deleting a few bad payers or those that have gone out of business but those not in the top 20% that deliver 80% of the business are usually assumed to be still in the bottom 80% who pad out the list.
The point is most such lists are filled with useless names.
The list itself is a convenience and has little real value.
If you wanted to could buy a list from pretty well any source.
Magazines regularly sells such lists. Or you can usually recreate such a list from pretty much anywhere.
Heck, companies often start with such bought in lists.
So the chances are you could buy a list commercially which could contain the companies that are also in your employer's list and often the names of the relevant people. But the names change most rapidly of all and as often as not getting the right name is no problem. Not even for the most wet behind the ears salesman. Just call whatever name you have and then ask for it.
As I said, the list itself doesn't have any real value.
What does have value is knowing who among them is spending money and regularly spends money. The list doesn't tell you that but if the list is to be any use to you, you have to know that already i.e. in your mind.
I'd be interested to see any cases of prosecutions exclusively based on the contact list and which found in the employers favour.
Some such cases are simply malicious. The general response of companies is "who cares?"
For example my boss at one company was hauled back from the USA (due to some brown nosing politicking) and told they would find him a new job in the UK. He didn't like the new job they found but had nothing better so accepted it.
Two days later he was offered a job with a global company which was a competitor (the way an elephant competes with a mouse).
He immediately accepted the new job (much better than any with his current employer) and politely resigned his current two day old job.
The CEO was incensed.
He then wrote a very malicious slanderous character attack and sent it to his new employer.
The new employer was no dummy. If anything I reinforced the idea they got the right man. So when my old boss took his chance, flew back to the States and walked into his new employer all nervous and spoke to them about the letter they laughed and gave him an unexpected signing bonus.
The point is that one or two cases may not be evidence of anything at all except malice and expensive lawyers.
Most companies also can choose to send a circular to their clients saying "So and so has left the company and is no longer associated with us."
If they are at all good they shouldn't need to worry about losing key clients, not if they look after them well.
It isn't even as if they are deprived of the contact list which would be cause for upset.
JMW
www.ViscoAnalyser.com
RE: What defines stealing?
The laws vary from jurisdiction to jurisdiction as does enforceability.
After a reasonable time, is very hard to prove a list was not compiled after you left a company so long as all information is available by outside means or by reasonable memory.
On the other topic of Pareto principle
http://en.wikipedia.org/wiki/Pareto_principle
it of course looks to the past, not the future and rigid application of resources based solely on it leads to a declining future
Regards
Pat
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RE: What defines stealing?
RE: What defines stealing?
RE: What defines stealing?
Of course people often steal then justify it, sometimes even with good cause. Calling in sick when not sick is stealing if push comes to shove.
Stealing a sick day when the boss rejects a legitimate overtime claim may be justified on the grounds they stole from me so I am stealing back.
Putting in a bogus expenses claim to offset a legitimate claim that was knocked back, same deal, however it probably would not stand up in court.
Regards
Pat
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RE: What defines stealing?
Dan - Owner

http://www.Hi-TecDesigns.com
RE: What defines stealing?
I found this from Nolo's website which reinforces the concept that a client list, if ascertainable through independent means (phone book, trade associations, dusty business cards tucked between coupons for frozen dinners for two, etc.), is not protected intellectual property. Interestingly, if the employee contributed to compiling the list, it is less likely to be considered the private intellectual property of the company.
The only case law I have found is from South Carolina, Atwood v Black, where the ruling was in favor of the departing employee who used a list of potential renters and property owners with places for rent. Feel free to find a case where the ruling was in favor of the company over a departing employee who took a client list. I haven't found a single citation supporting that view.
"Gorgeous hair is the best revenge." Ivana Trump
RE: What defines stealing?
It is a slippery slope and where the line should be drawn involves a lot of variables.
Lots of things that give an advantage to business depend on memory.
Regards
Pat
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RE: What defines stealing?
This seems to be at odds with what Cass has researched.
It would now be a good time to reveal your references.
JMW
www.ViscoAnalyser.com
RE: What defines stealing?
I guess there are people who keep private and company lists separate but I'd guess that most every companies contact list is somewhere on the internet and certainly held by Facebook, Linked in Plaxo and a variety of others who all invite users to upload their contact lists.
Most especially those that serve industry needs.
I'd guess Linkedin probably has more company contact lists than any other site.
Now to what extent you can rebuild the contact list through such organisations is uncertain. (Well not with Plaxo. When changing computers I found this the easiest way to transfer my contact lists from one computer to another. Until they shifted this feature into the pro version and I stopped using them... (see Dilbert because this is exactly how dotcoms work.)
JMW
www.ViscoAnalyser.com
RE: What defines stealing?
If the list is useless, why take it?
"... does that mean people with eidetic memories can get away with more?"
Yes. Not fair, but those with such memories probably have other unfair advantages as well.
"Is the information in the list ascertainable by other means? A list that is readily ascertainable cannot be protected."
Which suggests a very easy solution to the question. If the list is readily ascertainable by other means, then readily ascertain it by other means. Then there will be no question.
RE: What defines stealing?
Exactly.
Regards
Pat
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RE: What defines stealing?
What is gold to one is often not to another.
What may be useless to the company could be very useful to a small start up.
And the company probably has the top 20% pretty well sewn up, if they are any good and don't fear losing them. They will even structure their business pans around what keeps these people happy.
They won't worry about losing the supposed one time buyers in the list and will know that with limited resources no one man band is going to make much inroads into the 80% from whom 20% of the business comes.
What is forgotten too is that many start up companies start because the original company has defined its business path and will follow certain strategies appropriate to it. They will focus not shotgun.
That means quite a few new avenues will be ignored.
There are lots of such companies out there that started in this way.
Clients A to H are the 20% who buy 80%.
What they buy is where the company invests its resources.
But some employees see opportunities being passed up they feel should be followed.
We all know of spin off companies located almost next door to the obvious ancestor company. Essentially in the same market but with a different angle.
They usually then diverge some what.
There are lots of very good reasons why a contact list copied is no real danger.
I still wait for the evidence of companies treating this as a serious problem.
Otherwise this is in the realms of "cultural" differences.
JMW
www.ViscoAnalyser.com
RE: What defines stealing?
We've now followed him from company A to company B and now on to company C. In his industry, switching companies is the only way he's going to get a raise.
Are you telling me that it was unethical of him to inform us that he had switched companies? Which time? The first time only? Or both times?
Some people here are holding others to a ridiculous standard in my opinion. Where there are clearly spelled-out noncompete arrangements negotiated prior to employment, with geographic and expiry terms, that's a different matter- but in general employment?
Keeping track of which business cards I got while meeting clients on the job, and which I got at conferences or tradeshows? Honestly?! Get real- that's NUTS.
RE: What defines stealing?
RE: What defines stealing?
Dan - Owner

http://www.Hi-TecDesigns.com
RE: What defines stealing?
Others justify it as normal business procedures and denigrate those who disagree as being naive. They often have extreme opposite views depending on which side of the fence they sit. Some of that seems to be in this thread even with a lack of pointy hair MBA types or computer salesmen.
Yes they do sleep fine as do I on the occasion I justify my actions in my mind that others may object to.
Regards
Pat
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RE: What defines stealing?
Companies do not worry about contact lists.
They do nothing about it.
They do worry about client lists.
They do protect these.
Contact lists are transient tools everyone creates all the time and which have no intrinsic value to the company. They don't give a damn what happens to them.
The client list is the life blood of the company.
Take this and you will be stealing. If you can access it.
Maybe that's where the difficulty lies?
Let's not pretend companies don't worry about trivia or that if they consider something stealing or detrimental to their interests they can not or will not do something about it.
The trivia pursuit departments, management's attack dogs are IT and HR.
These people thrive on nit-picking mind numbing trivia. They love lists and petty instructions.
If management said: "Contact lists. Guard them. Good doggies." then you wouldn't be able to take a contact list.
If you want to stop terrorists travelling between countries, or carrying bombs about then give the responsibility to IT and HR and take it away from Homeland security.
IT is perfectly adept at interfering with all sorts of actions from playing games, searching for jobs, watching porn etc.
If its on your PC/laptop/workstation a copy is on the server and on backup somewhere. They have a copy of everything whether they want it or not.
They can and do track activity.
HR can easily both do something and make it clear this is a no-no.
They can make visible their intentions. They may be sloppy about succession planning (people dying without permission) but they are well versed in exit/termination procedures.
The list the company worries about is its client list.
This is a list of clients who have accounts with the company and which details their order history, contains all their account information and transaction records, bank details, D&B reports etc. It is commercially sensitive.
The clients on this list have financial status. Money is invested in them as well as them being a source of money.
Access to this list is limited in any case.
It is controlled by the finance director and his minions and they are the ones who create it and maintain it and guard it with IT's help. Unless you have log on rights to the finance directory on the server you ain't gonna get near it.
Accessing this list and copying it would be stealing.
But if you are thinking about the sort of contact list we each generate in our day to day dealings with customers, that is something else.
This list is of trivial importance to the company.
(Of course, we still have to find out if the law says it is stealing. I note, Mike_the_Engineer, you have not provided, as Cass did, some references for your claim that "Taking customer lists is STEALING and has been upheld in most courts of law!! . and if you possibly refer here to the client list and not a contact list?)
Pretty well anyone in a company with dealings with clients will have their own contact lists that they make themselves.
Of course people use Outlook etc to create such lists.
Of course the company then ends up with copies. But they are not sensitive and it is debatable to what extent the company owns them and you do not. Since the company always has a copy who gives a damn?
This is not the client list.
When I left my last company, Management had an HR list of termination actions.
Lots of trivia.
We only struggled with the line about returning PPE.
PPE was what HR called it. (My manager was not about to ask HR what it meant and he simply ticked the box. I don't think anyone is in a rush to tell HR to write "safety Gear" which is what everyone calls it. PPE, in the context of all their nonsense about swipe cards fuel cards and other trivia meant nothing).
Nothing about contact lists.
All they required of me was that I copy everything company related on my lap top into a special folder on the server (Like they didn't have it already. Every day you docked at the office or remote accessed the server they backed up new material and sniffed for illegal software, unapproved downloads etc.).
IT love this stuff.
They'll suck up files like a Dyson in the dust bowl and their motto is probably adapted from JAWS "I think you need a bigger
boatserver", yes. The more they can suck in the more they can spend on new kit.Note that I said copy, not transfer and they didn't want to wipe anything on my laptop. In fact, since they wanted my newish Dell laptop back for someone else they transferred it all to an old Toshiba for me to use till it was time to surrender it. Including my contact list.
So please, let's be sure we are all talking about the same thing and let's get real here.
JMW
www.ViscoAnalyser.com
RE: What defines stealing?
Some basically said -
You will not take office supplies or equipment
You will not take customer lists.
You will be expected to work approx 8 hours a day and get 14 days and 10 holidays off.
That was the simple contract.
Others were about 5 pages long but basically covered the same things.
I have known murderers that could sleep at night - but I sure as hell couldn't!! It's your conscience!! Treat people how you would like to be treated!! The Boy Scout rule and hopefully something you learned as a kid.....
That's my bottom line and this is my caboose to this train of thought!!
RE: What defines stealing?
If a company signals that it considers that you should not take the lists then you know the situation and respond accordingly.
But I've never had such a restriction in any contract I ever worked under.
JMW
www.ViscoAnalyser.com
RE: What defines stealing?
RE: What defines stealing?
Seriously, do I question it or just sign it and not worry if I happen to inadvertently work for one of those POTENTIAL clients if I leave or get laid off.
"Gorgeous hair is the best revenge." Ivana Trump
RE: What defines stealing?
What is an "independent relationship"? I guess they mean not using their clients for some non company business. If so, they should be more explicit.
Just about anyone is a potential client. So it means no stacking shelves at Walmart.
I bet they don't even know why they have this clause in there. I am getting mighty suspicious that some of these companies don't pay lawyers to write contracts they simply grab them off the internet.
You might try and google a few choice phrases and see what comes up.
JMW
www.ViscoAnalyser.com