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A Trusted Employee Leaves
What To Do?

Often companies have a trusted employee leave and worry about the employee taking confidential material or other information that could benefit a competitor and/or harm the company.

A number of things need to be considered before taking legal action.

Is there actually reason to believe the worst?
If the company has advance notice that an employee plans to leave fast action maybe required.

This is especially true if the there is any suspicion that the employee may be planning to do something that could be harmful to the company.

Reviewing the employee’s file and recent work, may answer a lot of your questions.

Did the departing employee sign any restrictive contracts such as a confidentiality agreement that might cover trade secrets? 

If the employee did sign restrictive contracts, were the contracts or other agreements prepared by an attorney so your best interests are properly covered?

Restrictive language is sometimes part of a traditional employment contract or they can be stand-alone agreements. In some cases they might be in unexpected places such as stock options.

The employer may have data an employee would be interested in taking to a competitor or to start his own business.

If a company believes that a departing employee may be preparing to take confidential or other information that could be useful to others, a review of the employee’s email history should be initiated.

Things of particular interest to your investigation would be file transfers to external storage such as a cloud service or personal storage devices.  To do this however, everyone in the company should be aware that they have no expectation of privacy.

The internal technical employees may have the capabilities to conduct this type analysis.  There are outside vendors that conduct electronic discovery and may have more experience in forensic discovery that can be helpful if legal action is needed.

Some companies have an exit process in place that should include something that confirms that the employee is not in possession of any propriety information and are in compliance with their obligations to the employer.

If legal action is to be taken, keep in mind that courts generally do not issue temporary restraining orders (TRO’s) or other action based on someone’s hunch or assumption that something is not right.

Courts take action based on evidence and it is best to present objective evidence whenever possible.

What is your goal?
Legal action should always be considered seriously before you move forward.

Is your goal to protect your customer base, maintain propriety information or is it to get even with an employee who did not leave under the best circumstances?

Consider among other things, how the publicity of your case might make your company look.  The action you take may send a powerful message to other employees but what if your legal actions are not successful? 

If the judgment is not favorable, would the decision affect other contracts you have with existing employees?

Other things to consider

  • Will you have a claim against the new employer or some other third party?
  • If you have a good relationship with the new employer, would a court case strain that relationship?
  • Court cases tend to take a long time to resolve – is the wait worth the effort?
  • Is it possible to resolve this issue without going to court?
  • Is your company willing to accept the court cost and other legal fees?

Having a reputable attorney that will give you solid legal advice should be your first course of action.  There may be ways to resolve your concerns without going to court but definitely get legal advice.

False Savings
Of Not Training

Does the pointy-head manager in the “Dilbert” comic strip by Scott Adams remind you of anyone?

A manager is the most important element in an employee’s performance, retention and engagement.  

There is no inborn ability on how to handle the wide range of employee problems that managers may face, possibly on a daily basis.

There is no general skill set for becoming a manager and even the best potential leader may start out as only a so manager. With proper training however, most managers can improve.

Training a manager is important and a benefit to employees, the manager and the company.  Working with another manager may be good for actual technical job functions but often not the best idea for management training.

For example, if the experienced manager is not himself knowledgeable or a good trainer, it can quickly turn into a situation of a new manager learning bad habits and practices.

In some companies, it is not uncommon for only the top levels of management to receive special training in handling employee and legal related issues.

A common misconception is that management of a company does not need employee related training other than maybe safe work practices.

Often the reason for not providing additional training is rationalized that there is no need because:

  • Our management already knows what they can and cannot do
  • Training is too costly and time-consuming
  • There is no return on investing the time and money
  • We have excellent legal counsel to get us out of any type trouble

The average cost of defending one lawsuit each year to the summary judgment stage is considerably more than the cost of live training.

It is not unusual for the legal fees a company must pay to defend and resolve employee disputes to easily run into 5 and 6 figures.

This does not include management and other employee’s time and sleepless nights or the actual settlement or judgment.

In situations where an employer has policies, but has not instituted any type of training for employees and management, courts have provided the plaintiff with huge punitive damage awards.

Everyone needs to understand not only the process, but also the reason things are done in a certain way.

This applies to the technical part of the job and employee relations.

Keep in mind that the average cost of defending one lawsuit each year to summary judgment the stage is considerably more than the cost of live training.

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