How can you keep confidential information guarded?
Keep all information locked and stored, with limited access. Information should be available on a need-to-know basis. Access to storage rooms and information should only be able to be obtained through electronic keys, and confidential information should be clearly marked. Also, restrictions should be placed on visitors’ access to sensitive locations where information is stored.
Create an employee policy regarding the use of confidential information. Require routine verification and reminders of confidentiality procedures and policies. Follow-up with departing employees who have access to confidential information. Finally, prohibit the removal of confidential information from the company premises, restrict the copying of confidential information and conduct exit interviews with all departing employees.
What are the key aspects of a successful exit interview?
All information should be reported in an exit interview acknowledgment form, which is signed by the departing employee. This should obtain and confirm the departing employee’s new employer and nature of the new employment. It should contain an acknowledgment by the employee of his or her exposure to and use of trade secrets and/or confidential information, and his or her continuing obligations relative to that information.
The employee should be reminded that any use or disclosure of this information is strictly prohibited. Even if no proprietary information agreement was signed, employees should be reminded that they owe fiduciary obligations to not use or disclose confidential or trade secret information.
Employees should also be reminded of what information you consider to be secret or confidential. Specific items should be identified, so employees clearly understand that the list is not exclusive or limiting.
Also, the departing employee needs to be reminded and provided a copy of any restrictive covenant that he or she executed. The departing employee should acknowledge that all copies of confidential documents and information have been returned.
What are the benefits of exit interviews?
It shows that you are willing to take the steps necessary to protect your information, reaffirming your commitment to the protection of information. The departing employee is also put on notice about your concerns, if any, with his or her new employment.
The exit interview can be an effective barometer to gauge whether an individual employee may be a problem in the future. A departing employee who refuses to sign an acknowledgment form, or is less than candid in an exit interview, is indicative of potential issues post-employment. Further, evidence of a refusal will assist you in convincing a court that a clear threat of misappropriation exists. Failure to conduct an exit interview can create practical problems and make it more difficult to establish entitlement to post termination relief from a court.
James J. Boutrous II is a member at McDonald Hopkins LLC, and co-chair of the Trade Secret, Non-Compete and Unfair Competition Practice Group. Reach him at (248) 220-1355 or [email protected].