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Employers are handing out fewer gold watches these days because fewer people remain with the same company for the long haul. In the not too recent past, an individual would often seek advancement by climbing the corporate ladder within a single company. Today, many find that it is far easier to advance by switching ladders. In fact, one economist recently stated that the average college graduate should expect to hold no less than 10 to 12 jobs in three to five different fields in the future. So what can a company do to protect itself when an employee, who is in possession of critical company information, decides to leave the company in favor of working for a competitor? The options will almost always depend on the circumstances at hand. The options are significantly better, however, if the company anticipated this situation and already adopted certain forms of protection. Obtaining these forms of protection simply takes a bit of planning and careful implementation. EMPLOYMENT AGREEMENTS An employment agreement, signed in connection with the hiring of an employee, can be the most critical piece of protection available to an employer. Typical employment agreements incorporate: an agreement to assign all rights, title and interest in subject matter that is protectable under patent, copyright, or trade secret law; a non-disclosure agreement; and a non-compete clause. State law, and not federal law, places limits on the scope of each aspect of the employment agreement. Employers should consult counsel on applicable state law before issuing any employment agreements. ASSIGNMENT OF IP RIGHTS The need for an agreement between an employee and an employer stating that all right, title and interest in works created during employment will be assigned to the employer stems in part from federal law. Under federal law, rights in a patent initially vest with the inventor, not the employer. One could easily imagine a scenario where an employee who has not signed an assignment agreement could contest the ownership of a patent. An employment agreement that addresses ownership of work product created during employment, or related to such employment, can help avoid such a scenario. NON-DISCLOSURE AGREEMENTS Non-disclosure agreements are another vital piece of protection for an employer because they typically obligate an employee to not disclose or use confidential information. For example, a former employee in possession of a valuable client list could easily begin using the list for business purposes without disclosing to a single person how he came into possession of these names. Therefore, it is important that the non-disclosure agreement obligate against disclosure and use of confidential business information. NON-COMPETE AGREEMENTS Non-compete clauses must be carefully tailored with respect to time, place and manner in order to be enforceable. For example, most non-compete clauses must state the “place” as a geographical region in which the employee will be prohibited from competitive activities. The reasonable region is typically determined by the nature of the employer’s business and the specific facts surrounding the case. In addition, the employer must specifically set forth the type of business in which the employee will be forbidden from engaging. Again, the type of business must be narrowly tailored and reasonably related to the activities the employee conducted during his employment. The duration of such an agreement is almost always closely scrutinized. Under certain circumstances, however, limitations of up to one year have been found to be enforceable It is worth noting that some experts have criticized employers for utilizing non-compete clauses. These experts claim that talent will be scarce in regions of the country where non-compete clauses are prevalent. However, while such arguments are credible, non-compete clauses are often a necessity for employers where they are an industry standard. TRADE SECRET PROTECTION Important information can also be protected through trade secret law. Trade secrets often consist of formulas, patterns, physical devices, ideas, or processes. For example, perhaps the most famous trade secret is the recipe for Coca-Cola�, a secret known to only a few. However, trade secrets can be any compilation of information that provides the owner of the information with a competitive advantage in the marketplace and is treated in a way that can reasonably be expected to prevent the public from learning about it. Trade secret protection, which attaches once any protectable information is kept secret, provides recourse against those who misappropriate trade secret information, and endures as long as the information is kept confidential. Therefore, taking steps to properly protect the information from entering the public is vital to acquiring and keeping protection. Physical protection is one of the most critical aspects of maintaining trade secrets. Recommended methods for protecting information include: disclosing trade secrets only to employees who need to know the information; storing electronic and paper documents containing trade secret information securely; appropriately marking documents containing trade secret information; and, shredding documents containing vital information before discarding them. In sum, today’s trend toward a more transient workforce is not likely to change in the foreseeable future. The ability of a company to respond to that trend can be enhanced significantly with the adoption of certain forms of protection. All it takes is a little bit of planning and careful implementation. Richard Getz and Timothy Johnson are attorneys with McCormick, Paulding & Huber LLP( www.IP-lawyers.com). 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