Any employer that loses a worker to a competitor is right to be concerned about its trade secrets being leaked or losing customers who may be loyal to that employee.
When an employee leaves you to go work for a competitor, it’s likely that they’ve been planning the move for weeks, if not months. During that time, they could have been collecting important company information, like customer lists and detailed product information.
All of this is at stake if one of your crew leaves for a rival, but there are steps you can take to reduce the chances of any negative fallout from a defection of this type.
The employment law firm of Fisher & Phillips LLP in a recent blog recommended that companies in this position should consider:
• Discontinuing remote electronic access – Besides accessing the company’s e-mail system through a workstation in the office, employees also are likely accessing it remotely using their smart phones, and even laptops.
When you learn that an employee is defecting to a competitor, you should “immediately discontinue a departing employee’s electronic access. Doing so can bolster an employer’s ability to seek trade secret protection for its information, and it can limit the ability of a former employee to electronically misappropriate key information,” Fisher & Phillips writes.
• Ensuring return of records and property – Long-time employees likely have collected years of company records in both hard copy and electronic form.
It’s recommended that you seek written confirmation from departing employees that all records and information obtained as a result of their employment with the company have been returned. Don’t forget to collect their office keys, access cards and similar property.
• Freezing usage of employee’s computer – If you are concerned that the departing employee could pose a threat to your company, you should remove their work computer from use. You can find out by searching the computer if they engaged in misconduct, and it preserves evidence of their actions.
• Conducting exit interview – If possible and the employee approves, you should conduct an exit interview. Ask about their next job or plans for seeking new employment. You can also remind them of their contractual obligations (such as non-compete or confidentiality agreements), and ask that they return all company property.
• Checking computers – Check for unusual e-mails or bulk transfers of information that could point to them amassing important company data. Remember: key files and information can be e-mailed to a private e-mail address or downloaded to a flash drive with the stroke of a few buttons.
Unusual e-mails or bulk transfers can provide an employer with an indication that a departing employee may not have the best of intentions.
• Transitioning clients – As soon as you can after learning that an employee is leaving, you should assign the customers they are handling to other staff.
“This will enhance the employer’s chances of solidifying and maintaining the client relationship, and may uncover evidence of the former employee’s misconduct such as a breach of a non-solicitation agreement,” Fisher & Phillips writes.
• Notifying former employee of contractual obligations – If your employees signed non-compete and non-disclosure agreements with you, remind them of their contractual obligations to you. Provide a copy of the contracts in this communication.
