When the employee is leaving to join a competitor, if possible, do not let the employee continue working after submitting a Notice of Resignation. Odds are the employee has orchestrated his or her departure for some time.
The security of your trade secrets, business strategies, and/or client relationships may have already been compromised, so it is critical to take action post-haste. Allowing the employee to continue working under these circumstances is bad for morale, and is quite simply, asking for trouble.
- Disconnect Remote Access — As offices are not restrained to the walls surrounding an employee’s workstation, personnel often access their computers and voicemail messages remotely. As such, it is essential to immediately halt a departing employee’s electronic access. Doing so can strengthen the employer’s ability to seek trade secret protection for its information, and it can restrict the ability of a former employee to electronically misappropriate key information.
- Remove Employee’s Computer — When an employee resigns, it is not always possible to know immediately whether the employee presents an unfair competitive risk. It may be a few weeks before an employer learns that the former employee engaged in misconduct. Computers previously used by the former employee can be a valuable tool when conducting an after-the-fact investigation, but key evidence can be lost (e.g., overwritten or deleted) with continued use of the former employee’s computer. For this reason, a former employee’s computer should be removed from active use if there is any suspicion that this employee poses a competitive threat. If this is not possible, making a forensic image of the computer presents another wise option.
- IT Department System Check — Employees often plan departures months in advance. Key files and information may be emailed to private e-mail addresses or downloaded to a flash drive within moments. Unusual emails or bulk transfers can provide an employer with an indication that departing employees may not have the best of intentions. (Minimize the risk of misappropriation by securing computers and hard drives, maintaining a trail of downloading activity by the employee, and do not delete employee’s emails).
- Transition Clients — Clients should be assigned new company contacts as soon as possible. This will enhance the employer’s chance of solidifying and maintaining the client relationship and may uncover evidence of the former employee’s misconduct, which includes a breach of a non-solicitation agreement.
- Ensure Return of Records and Property — Departing employees, particularly the long-term have likely acquired company records in hard or electronic form over the years. Employers are well advised to seek written confirmation from departing employees that all such records and information obtained as a result of employment with the company has been returned, including company information that may live on electronic devices owned by the employee; PDAs, cell phones, etc. The return of all office keys, building access cards, and tangible property should also be secured.