Five Policies to Help Avoid ‘Unforced Mistakes’ by New Hires That May Lead to a Trade Secret Misappropriation Claim | Payne and the fears


New hires at the company sometimes make “unforced errors” when they leave one company and join another, resulting in trade secret conflicts with the former employer that could have been avoided by following the rules and regulations. basic guidelines upon departure. A common example is that of a departing employee who brings files to the new company containing confidential information belonging to the former employer that needed to be returned or deleted. Even if the new employer was unaware that the new employee was bringing such information, the possession and potential use of the information by the new employee can result in exposure for both the employee and the new employer. A strong and clearly defined policy setting out the rules and expectations of the company before joining the company can help avoid mistakes in the first place, and also provide protection for the company in the event of a dispute. But the key is to get it right up front before any mistakes are made. Particularly when hiring employees from a direct competitor, it is a good idea to include certain rules and expectations in an offer letter or written policy communicated to the new employee even before they leave. his previous post.

Here are rules and expectations to consider including in the offer letter or policy communicated to the new employee, which can help them avoid making mistakes when leaving, which also protects the company in the event of dispute:

1. Notice of departure. Disputes can arise when a departing employee communicates with clients or co-workers before leaving their current job in a manner that suggests disloyalty to the current employer. One policy to consider is to explain to the new employee that before leaving their current position, the new employee should avoid discussing the fact that they are leaving with any of the clients or colleagues of their current employer. The new employee should seek direction from the current employer as to what, if anything, to notify clients and co-workers of their departure.

2. Return files and data from the previous employer. The failure of the departing employee to properly handle the return of files and electronically stored information used in their previous employment can also lead to litigation. The policy should state that the company expects the new employee to abide by their current employer’s policies regarding the return of company property and the return of any electronically stored files or information obtained during employment.

3. Do not use or disclose confidential information of the former employer. New hires who bring with them confidential information belonging to their previous employer create a risk of trade secret misappropriation claims against both the employee and the company. The policy should state that the new employee should not take or take with him any of the old information, whether on paper or in electronic form, and the employee should never transfer or download such information to computers or systems. of the company. The policy should make it clear that the company expressly prohibits the use or disclosure of confidential former employer’s information protected by law.

4. Disputes over the solicitation of former colleagues. Disputes sometimes arise when a departing employee asks his former colleagues to leave and join the employee in the new company. The company should assess whether the employee has signed restrictive covenants or confidentiality agreements with the current employer. To avoid potential conflicts, the policy should order the new employee not to solicit his former colleagues, also state that, if the new employee is contacted by a former colleague about a possible job in the company, he should order to the potential candidate to the right person within the company.

5. Use of a job change announcement. Disputes can also arise when the new employee communicates with the customers of the old employer their intention to continue doing business in the new company. If there is a risk that the former employer will claim that the identities and contractual information about its clients are ‘trade secrets‘, the policy should direct the new hire to use a new affiliation announcement to notify clients of the change. employment. This type of ad can help avoid an allegation that the employee used trade secrets to solicit customers. The policy should explain that the new employee’s first communication to clients they have dealt with at their former employer should be a simple gravestone-type announcement that indicates the employee has left the previous employer and provides the new contact information. without any solicitation to do business. The employee should avoid contacting these customers until the ad goes out and the customer responds with a willingness to do business. Policies can be changed based on specific company circumstances and issues. Setting some basic rules and expectations in a company policy for a new employee before joining your company can help avoid “unforced errors” that usually lead to avoidable trade secret disputes and can also help the business. company to show the steps it has taken to prevent such violations in the first place.


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