BNA has published a good article by David A. McManus, Prashanth Jayachandran, and Jason Burns on how an employer can protect its confidential information from being taken by a departing employee to a competitor. The key is to have a plan. Some of their more interesting points include:
- In addition to having certain employees sign non-disclosure agreements, an employer should have employees who use their own electronic devices to access company information sign a separate agreement permitting the employer to inspect the devices and delete company information upon termination of employment.
- An employer should include a clause in noncompete and non-disclosure agreements stating that any violation of the agreements entitles the employer to injunctive relief from a court, i.e., an order that the employee must cease to work at a competitor or return all confidential information.
- An employer should document the chain of custody of any employee's devices that it analyzes after the employee leaves to preserve evidence.
- If the situation results in litigation, an employer should consider bringing claims against the employee under the Computer Fraud and Abuse Act (CFAA), a statute which I have written about extensively.
In addition to providing for the recovery of additional damages not permitted under state law (such as the costs of engaging a computer forensics firm to investigate the employee's activities), the CFAA also puts the case in federal court. Thus, the CFAA should be a consideration in any situation where an employer suspects that an employee has improperly taken confidential information.
To view Foley Hoag's Massachusetts Noncompete Law Blog please click here
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
