Employment—Transitioning from One Employer to a Competing Employer

A variety of potential ethical issues often surface when professional engineers consider departing from their employer. These potential issues include the ongoing obligations and responsibilities to the current employer, staff, and clients as well as new obligations and responsibilities to the new employer, staff, and potential future clients. Since its inception in 1958, the NSPE Board of Ethical Review has had many opportunities to consider and explore these issues.

In BER Case 06-9, Engineer A, employed by ENJ Engineering, recently accepted a position as an engineer with RFP Engineers, a competitor of ENJ Engineering. Engineer A had files in his office including the following:

1. Client files, which included correspondence between Engineer A and various clients while he was employed by ENJ Engineering as well as project-specific technical information;
2. Technical information files, such as articles, publications, and external reports, that Engineer A had personally received and saved during the course of his employment with ENJ Engineering to assist him in providing technical and professional services for clients;
3. Personal files, which included personal correspondence received from past and present clients acknowledging and expressing appreciation for Engineer A’s work on various engineering projects and technical information obtained outside of his employment by ENJ Engineering.

In BER Case 06-9, the NSPE Board of Ethical Review considered the following three questions:

1. Would it be ethical for Engineer A to take the client files with him when he terminates his employment with ENJ Engineering?
2. Would it be ethical for Engineer A to take the technical information files with him when he terminates his employment with ENJ Engineering?
3. Would it be ethical for Engineer A to take the personal files with him when he terminates his employment with ENJ Engineering?

Following extensive discussion and analysis, the BER determined the following:

1. It would not be ethical for Engineer A to take the client or project-specific files with him when he terminates his employment with ENJ Engineering.
2. It would not be ethical for Engineer A to take the corporate or technical information files that pertain to the employer’s business without the employer’s permission.
3. It would be ethical for Engineer A to take personal files, which include personal correspondence received from past and present clients acknowledging and expressing appreciation for Engineer A’s and ENJ Engineering’s work on various engineering projects, and technical information obtained outside of his employment by ENJ Engineering.

The BER’s consideration and analysis of the facts and the NSPE Code of Ethics in BER Case 06-9 indicated that the Code must be interpreted in a balanced and measured way. The Board noted that an engineer’s designs, data, records, and notes referring exclusively to an employer’s work are the employer’s property and not the property of the engineer. This point is important in the context of the current case in that there is no indication under the facts that there is any effort on the part of Engineer A to remove any of ABC Engineering’s designs, data, records, and notes that refer exclusively to ABC Engineering’s work. Likewise, there is no indication under the facts in the present case that Engineer A is attempting to take corporate or technical information files that pertain to the employer’s business without the employer’s permission.

In sum, it would appear that the only ethical constraint Engineer A would have would be not to use any proprietary information, intellectual property, or other firm- or client-owned work or property from ABC Engineering in Engineer A’s work for XYZ Engineering (or any other future employer) and not to improperly take credit or improperly imply responsibility for any work performed for ABC Engineering.

Engineer A’s effort to provide more than sufficient notice of resignation may not be received well by ABC Engineering because of business concerns, security, and productivity issues; thus ABC Engineering may choose to release the employee sooner than the proposed termination date. The earlier release may backfire on Engineer A’s desire to address potential ethical issues that could surface with ABC Engineering and XYZ Engineering, even though the offer demonstrates that Engineer A is being thoughtful and attentive to ethical and professional practice concerns.