Article
Pandemic Workplace Response Adds Fuel to Filing Trend
Article
Pandemic Workplace Response Adds Fuel to Filing Trend
March 4, 2021
This article was originally published in Texas Lawyer. Any opinions in this article are not those of Winston & Strawn or its clients. The opinions in this article are the authors’ opinions only.
The global pandemic caused seismic shifts in the way that people work, with more employees than ever working from home. The pandemic also caused employees to hunker down at their current jobs and not hunt for opportunities at other employers. With the rollout of vaccines and the coming end to the pandemic, there will certainly be increased movement of employees, perhaps unprecedented movement. While the loss of a key employee to a competitor poses serious risks to businesses that rely upon proprietary information to give them a competitive edge, that risk is exponentially amplified when businesses have relaxed their security protocols to allow employees to more easily work from home. Now, employers must double down on the enforcement of security protocols if they hope to protect their trade secrets when—not if—the lateral market improves and employees begin to pursue other options.
U.S. business accomplished the switch to work from home quickly and impressively. However, many companies have relaxed their security protocols to allow employees to access trade secret information more easily from home. For example, many companies that previously did not allow the use of thumb drives or third-party file sharing platforms, now do.
Of course, when an employer stops using security measures designed to protect and monitor the use of confidential information, it loses the ability to know if employees are improperly taking and using such information. Instead, employees can distribute, or even duplicate, such documents without supervision or fear of discovery. Thus, when an employee departs to work for a competitor, an employer that has given up on such protocols will be unable to determine if any of its information was taken.
As the pandemic eases and hiring heats up, employers should do the following at a minimum:
- Audit employment agreements to ensure that each employee has signed enforceable confidentiality, non-solicitation, and noncompetition agreements;
- prohibit thumb-drive downloads;
- prohibit file-sharing platforms that are not managed and monitored;
- insist that employees conduct work on employer-issued devices; and
- quickly obtain and preserve devices after an employee’s departure.
Without doing these things, employers will be in a tough spot when attempting to pursue workers who have taken trade secrets and confidential information on their way out the door.