Trade secret protection under both federal and state law depends on a company’s ability to demonstrate that the information it seeks to protect has independent economic value derived from being secret, and that the company has taken reasonable measures to keep the information secret. In other words, unlike other forms of intellectual property, the inherent value of trade secrets comes from not being generally known or ascertainable. With so many employees working from home in response to the COVID-19 pandemic, now more than ever, companies need to analyze their internal policies to assess whether their pre-COVID-19 measures to protect trade secrets are adequate and appropriate in this new work paradigm.
As a consequence of the COVID-19 pandemic, and in some cases in response to specific government shutdown orders, companies have implemented work-from-home policies to protect their employees from contracting or spreading the virus. A few tech companies, including Twitter, Square and Slack, have extended their work-from-home policies indefinitely. While work-from-home policies have inherent benefits, such as reduced potential for employee exposure to the COVID-19 virus, reduced commute times, reduced operational costs, and greater flexibility for employees, if not implemented, monitored, and managed correctly, these policies could jeopardize a company’s trade secrets. In this article, we highlight some important processes and policies companies should consider to ensure their trade secrets remain protected as employees work remotely.
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