Employers often ask me how they can do a better job protecting their confidential information and trade secrets? One way is to assess the level of risk of theft of that information when an employee is leaving your company.

Here are six factors to consider when assessing the risk of trade secret theft:

First:

Consider the nature of the information that the employee had access to. Did the employee have access to confidential information or trade secrets? This is critical to determine. If so, what information did he or she have access to?

If it is the type of information that could be used to compete unfairly, then trade secret theft may be more likely to occur.

Number Two:

Consider the employee's role with the company. Someone departing from the research and development team is much more likely to be a threat than someone from the finance team. Likewise, a sales person is much more likely to take information than a clerical employee.

Number Three:

Consider whether the departure is voluntary or involuntary. An employee whose employment has been terminated is probably unhappy. A disgruntled employee likely poses a much higher risk of trade secret theft than someone leaving on good terms.

Number Four:

Consider where the employee is going. Is the employee departing to join a competitor? Joining the competition poses a much greater risk of trade secret theft than if someone is leaving to go into a different industry or line of work.

Number Five:

Consider whether the employee is trustworthy. Is the employee someone who has demonstrated honesty and integrity during his or her employment? Or, is he or she someone who has proven to be less than candid? If the latter, the risk of theft of information is likely higher.

Number Six:

Is there evidence that the information has already been taken from the company? Look for evidence -- even if it appears to have occurred in the "ordinary course of business." A simple review of a departing employee's email may show if sensitive information has been emailed to a personal email address. Further investigation, including a forensic investigation of the departing employee's computer, may provide evidence of downloading information to external storage devices or uploading to cloud storage services. If any of this evidence is present, the risk of the individual retaining confidential or trade secret information is high.

If an individual represents a high risk of trade secret theft, then you should take steps to protect the company's interests. Many of these steps have been discussed in previous blog entries of mine at bfvlaw.com.

Finally, employers should review the departing employee's restrictive covenants, including non-compete, customer non-solicit, employee recruitment/solicitation and confidentiality agreements, as part of any employee departure. This allows the company to act quickly if the departing employee engages in unfair competition.

For more information, see my blog at www.bfvlaw.com

And as always, please let me know if I can help.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.