Many companies rely heavily on secret or exclusive information that they have accumulated. From trade secrets to customer lists, these business organizations would fail if a departing employee were allowed to take critical company information to a competitor or use that information to open a competing business.
So when a key employee with access to sensitive information leaves a job, the company might understandably worry about whether that individual is taking sensitive information. Lariza Hebert from Fisher Phillips recently wrote an informative piece describing the “5 Things Employers Must Do When a Key Employee Leaves” to protect employers’ interests.
But what about your interests as an employee? Here are the five things about confidential business information that you, as an employee, should consider before leaving your job.
1. Assume That Your Employer Can Monitor Everything
To be on the safe side, assume that your employer has the ability to access and monitor everything you do or have ever done on a work computer or a work account. That means your employer can see any email you sent from your work account, any website you visited on the office computer, and all telephone calls you received or dialed from your office telephone.
Most of the time, employers don’t record employees’ telephone conversations and probably don’t have copies of every single text sent or received from employer-issued smartphones. But remember that your employer can usually learn about almost anything else that you did on your work computer, work phone, or other communications devices. At the very least, most employers will be able to read every e-mail you ever sent or received from a work account. Employers will be able to figure out when certain information was accessed on the computer system and by whom. Assume that this information is available and that nothing you have done is a secret.
2. Remember That Your Employer Wants to Figure Out What You Know
Before you leave work, you may be subject to an exit interview. Often the exit interview is portrayed as a way for your employer to “understand” what mistakes it made that prompted you to leave the organization. Don’t be lulled into a false sense of security during your exit interview. The real reason your employer interviews you on the way out is to get a peek into the critical information you have and what you plan to do with it. In other words, your employer wants to determine whether you are a threat and, if you are, gauge how big of a threat you might be.
3. Expect Your Employer to Look for Evidence of Wrongdoing
You may have heard the saying “To a man with a hammer, everything looks like a nail.” Remember that your employer’s success depends on the company’s ability to protect its own confidential business information. That leads many businesses to perceive threats even where there are none. This is particularly true if your employer suspects you did something illegal, violated company policies, or breached your employment contract. If your employer has these suspicions, it will try to gather information (often from the exit interview) to use as evidence against you. Innocent employees must be careful not to give their employers the wrong impression or to leave any question regarding whether they did something wrong.
4. Review Your Right to Use the Information You Have
If you have company information that is important enough to warrant an exit interview, there’s a good chance you already signed a noncompete, nonsolicitation, or nondisclosure agreement. Your employer will, almost certainly, gently (or not so gently) remind you of your contractual obligations with respect to company information during the exit interview. If applicable, your employer will also explain any covenants that restrict your ability to solicit customers or start your own competing business.
For basic information about noncompete and nondisclosure agreements, check out Nolo.com’s articles “Understanding Noncompete Agreements” and “Using Nondisclosure Agreements to Protect Business Trade Secrets.”
5. Don’t Be Surprised If Your Employer Suspends You From All Work Activities
Exceptionally vigilant employers might block all access to company information once you give notice of your intention to leave the organization. This may be done as a preventative measure even if you haven’t or wouldn’t misappropriate employer information; some employers are simply not willing to take any chances. Before submitting your official letter of resignation or otherwise giving your notice, consider what you will do if you are no longer allowed to work.
Summing It Up
If you’re thinking about leaving your current employer and you have access to sensitive business information, consider these five things before you officially resign:
- Your employer will likely be able to access and examine anything you have done using work equipment, accounts, or property.
- Your employer will want to gauge your potential for joining or starting a competing company and assess how much important company information you might use to do so.
- If your employer believes you may have broken a law or rule, it will try to gather evidence of your wrongdoing.
- If you are subject to a noncompete, nonsolicitation, or nondisclosure agreement, your employer is likely to remind you of your contractual obligations.
- Upon learning of your intention to leave the organization, your employer might immediately terminate your work duties in an attempt to prevent continued access to sensitive information.
Are you planning to leave your job to join a competitor or launch your own competing business? Do you have questions about what you should do to protect yourself and avoid problems with your former employer? Before you give notice, please contact our office to ensure that you understand your rights, responsibilities, and obligations regarding sensitive business information.