Gabriel Care LLC vs. Borden Care LLC

By Andrew P. Botti

Gabriel Care vs. Borden Care

Commonwealth of Massachusetts Appeals Court – Gabriel Care vs. Borden Care

Gabriel Care, LLC vs. Borden Care, LLC, & another
For the first time a case involving competing visiting nurse associations has been reported out of the Massachusetts Appeals Court. Although by statute nurses are not subject to non-competes, there are still common law restrictions on what a present employee may do in preparation to compete.

“A duty of loyalty is imposed on an employee who occupies a position of trust and confidence.”  Gabriel Care, LLC v. Borden Care, LLC, et. al., 2016 Mass.App.Ct,  at page 10. With respect to a registered nurse who was planning to quit her current position with a foster care agency and start her own competing business, the Appeals Court held:

The record suggests that Pereira occupied a position of trust and confidence at Gabriel Care by virtue of her role as an AFC registered nurse, her access to confidential client information, and the trust she was accorded in interfacing with Gabriel Care clients and caregivers.

Id. In reversing a lower court ruling in favor of the defendant nurse, the Appeals Court found that issues of fact demonstrated that the departing nurse “attempted to solicit a potential Gabriel Care client and staff member for her own business during her working hours at Gabriel Care, and that she procured a client for Borden Care [her competing business] whom she had solicited prior to her termination from Gabriel Care.” Id. at 11.

The nurse defendant’s use of company time and resources while still employed at her original job was likely a violation of her duty of loyalty.

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