6. Do you have access to confidential company information such as trade secrets, costing information, price and customer information, which the company has not published or which is not publicly available? If so, you need to ensure you do not download or email it to yourself. You cannot use such confidential information in your new business. But if you acquired skill and experience in the course of your employment (as opposed to confidential information), you can take that with you whether to another company or your own business.
If you want to leave, make a plan. If you have valid restrictive covenants, you can plan your next move and be ready to leap into action as soon as they expire. Your plan should include protection against unwarranted allegations of impropriety, of the sort discussed above, by your former employer.
Employers should also protect themselves from employees leaving and taking their intellectual assets and goodwill:
1. Have employment agreements with enforceable restrictive covenants. They should be reviewed regularly to ensure they remain enforceable as the law has changed regularly.
2. Supply key employees with company-owned cell phones, laptops and desktops so you own all the information on them (even the personal information of the employee). Require that all business be conducted on those devices.
3. Monitor employee use of company-owned devices. If you detect any unusual activity, e.g. downloading company information onto an external non-company owned device or an employee emailing large quantities of sensitive information to their personal email addresses, determine what information has been transmitted and conduct a prompt investigation. Interview the employee immediately if there is a whiff of impropriety.
4. When an employee leaves, do not redeploy their devices until you make forensic copies of the hard drives. They will show you what the employees did up to the date of departure. And, if anything was deleted, take steps to have that information recovered.
5. Ensure you own all business related social media sites and addresses so, when an employee leaves, you can continue to post information and access the feeds. Do not let employees open such sites in their own names.
6. Make sure confidential information is properly identified and protected. If electronically stored, ensure it is password protected. If in paper form, place it under lock and key. And restrict who has access. It should be on a ‘need to know’ basis.
7. When a key employee leaves, make sure you send a letter to them and their new employer confirming their legal obligations and, if they have engaged in any improper activities, send a cease and desist letter and be ready to seek an urgent injunction to stop the improper activity immediately. In this area, sitting on your legal rights terminates those legal rights.