Protecting trade secrets in the evolving workplace

White-collar employees are switching jobs, working remotely and holding down a number of gigs. These adjustments current new alternatives, however they will additionally put trade secrets in danger.
Trade secrets ought to be a priority for nearly each employer. Whether they notice it or not, most firms have trade secrets that add worth to their enterprise. When we consider trade secrets, well-known examples like the recipe for Coke or the system for WD-40 might come to thoughts. But trade secret regulation extends to virtually each sort of data one can think about.
Both technical and enterprise data could be legally protected. Technical data might embrace product formulation, software program code, engineering drawings and industrial processes. Business data might embrace buyer data, pricing and margin data, enterprise plans and market analysis.
Generally talking, data could also be protected as a trade secret if it features worth from not being identified to a competitor and the proprietor has taken affordable steps to maintain it secret. Bottom line: Companies of all sizes and in each trade have helpful secrets to guard.
Changes deliver new dangers
Recent surveys present report numbers of worker departures. One survey discovered that 41% of staff are contemplating altering jobs this yr. Another one discovered that worker resignations have already begun to spike, particularly in tech and healthcare.
Meanwhile, distant work has sharply elevated. In 2020, the variety of staff working from house practically doubled. A latest survey discovered that a big majority of pros want working remotely, don’t need to return to the workplace full-time, and anticipate distant work to change into customary observe. Many employers are accommodating these preferences.
Some distant employees are additionally moonlighting with out their employers’ data. The Wall Street Journal stories that professionals in tech, banking, and insurance coverage are secretly juggling tasks and Zoom calls for 2 separate employers whereas gathering two salaries.
Whatever else is perhaps stated about these traits, they pose vital threats to employers’ trade secrets. Technology, for all its benefits, makes it shockingly simple to steal data. For instance, it takes simply moments for a departing worker to seize firm information by transferring them to a USB drive or cloud storage account or forwarding them to a private electronic mail account. Once taken, these information will usually make their technique to a competitor.
Misappropriation could be even simpler in a distant work setting, the place there isn’t a in-person monitoring and the place staff — with or with out approval — could also be extra possible to make use of private units. Remote work will also be extra susceptible to cyberattack. And working two distant jobs concurrently can create huge temptations for improper sharing of knowledge.
Protecting trade secrets
These threats make it crucial for companies to revisit and strengthen their trade secret practices. Here are 5 confirmed methods that employers ought to contemplate:

Conduct a trade secret audit to establish key property and consider present protections. In gentle of latest developments, each firm ought to make doubly positive it is aware of what property it has, how they’re protected, and what gaps in its protections must be stuffed.
Develop and comply with sturdy, up-to-date cybersecurity protocols. Even firms with detailed protocols ought to revisit them to make sure they appropriately handle distant work.
Implement worker insurance policies governing entry to firm data and the use of non-public units and accounts. Policies ought to present clear tips for when, how, and why data is accessed and supply a foundation for documenting any breaches.
Require staff with entry to trade secrets to signal non-disclosure agreements and, the place acceptable, fastidiously drafted non-compete or non-solicit agreements. Written agreements can vastly improve an organization’s skill to acquire reduction for violations.
Conduct exit interviews with departing staff. Exit interviews present an event to remind an worker of his or her post-termination obligations and a chance to assemble info about potential dangers surrounding the worker’s departure.

This checklist is under no circumstances exhaustive, however it may present a helpful start line for any firm.
Be proactive
Getting one’s trade secret home in order could have instant advantages. A stable trade secret safety program will promote a workplace tradition that values data and can assist forestall a few of an organization’s most dear property from strolling out the door.
Equally necessary, in the occasion authorized motion ought to ever change into needed the courtroom would require an employer to indicate that it took affordable measures to guard its data. Otherwise, the courtroom might conclude that the data doesn’t deserve authorized safety. In different phrases, in the case of trade secrets, courts assist those that assist themselves.
Finally, when trade secret misappropriation is found or suspected, the clock is ticking. The affect could be swift and devastating, and proof might evaporate rapidly. The matter ought to be investigated promptly. If authorized motion is required, it normally ought to be taken immediately.
Maxwell Goss is a litigation lawyer with the Michigan-based IP agency Fishman Stewart. He handles trade secret and IP issues in Michigan and round the nation.

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