Even without an express agreement, an employee owes certain duties to his employer during the employment. For example, an employee who is still employed may not compete against his employer. Moreover, if the employee plans to leave in the future, he must not let his efforts to prepare for some future business interfere with his current employment. On the other hand, the public policy in favor of competition and mobility of labor favors permitting an employee to make at least some preparations for new employment or business before he terminates his current employment. See, e.g., Ameristar Jet Charter, Inc. v. Cobbs, 184 S.W.3d 369 (Tex. App.-Dallas 2006) (employee did not breach duty of loyalty by forming a new corporation during his employment, even though he used the new corporation to compete against the employer after he left his employment).
In an unpublished case, Central Texas Orthopedic Products, Inc. v. Espinoza, 2009 WL 4670446 (Tex. App.–San Antonio 2009), the court recognized an important employer remedy—the
“unfaithful servant doctrine”—which can result in the forfeiture of an employee’s right to compensation. See Restatement (Third) of Agency § 8.01. The unfaithful servant doctrine is based on the duty of loyalty. Among other things, the duty of loyalty bars an employee’s competitive solicitation of customers prior to the termination of employment. The employee in this case did engage in competitive solicitation, but when the employer sued the employee, the employee filed a counterclaim for unpaid compensation. Invoking the unfaithful servant doctrine, the court of appeals held that there was an issue of fact whether the employee had forfeited his right to commissions that he earned during the period he was also violating his duty of loyalty. Thus, the trial court erred in granting summary judgment for the employee on his claim for compensation under contract law and under the Texas Payday Act.