Employer First Must Get Its House in Order. The employer must take an inventory of information that it deems confidential, ensure that such information is, in fact, treated as confidential and that its trade secrets are in fact secret. In order to claim that an employee is unlawfully misappropriating “confidential information,” it is imperative that the employer, in the first instance, be able to demonstrate that it has protocols in place to ensure the confidentiality of its information. Examples of such protocols include: (1) controlling access to the confidential information through locked file cabinets, passwords, and keeping highly sensitive information (i.e., customer lists), on restricted computers and the like; (2) being able to demonstrate the cost to develop customer lists, contacts, and other confidential information; (3) establishing agreements with customers to address unauthorized disclosure of protected information; (4) designating documents as confidential through the use of confidential stamps or designation; (5) establishing a line of “need to know” persons with regard to company business information; (6) using memoranda/emails to reinforce confidentiality internally (i.e., have employee confirm receipt of confidential information); (7) controlling how and where employees are allowed to maintain confidential information—make sure no extra copies are allowed and include “confidential” electronic headers on all confidential information that is being distributed to employees via email; (8) using printer and copier logs to identify the information being printed if possible; and (9) being mindful of what is included on the employer’s website as it will be difficult to claim something is confidential if it is contained on a website.

The Offer Letter. The employer should provide an offer letter that contains key provisions to bolster the enforceability of its own restrictive covenants. The offer letter should, at a minimum, advise the employee of the following: (1) that the employee shall keep in confidence (during the term of employment and afterwards) all confidential information pertaining to the employer and learned by the employee in connection with his/her employment with the employer; (2) that the employee represents he/she is not subject to any non-competition term or any other restriction that would prevent the employee from fulfilling his/her full duties of employment with the employer; (3) upon termination or resignation of employment, the employee will be required to return all documents, materials, or other property containing any confidential information, whether such documents, materials or other property were furnished to the employee by the employer, one of its clients or created by the employee; (4) that the employee is expected to fully comply with all legal obligations he or she owes to his former employer; (5) that the offer is being extended to the employee because the employer believes the employee’s skills and abilities would be a valuable asset to the employer and that the employer has no need for, or interest in, the confidential or trade secret information of the former employer; and (6) this offer of employment is conditioned upon assurance that the employee can perform the duties of the position for which the employee is being hired without needing or using any confidential or trade secret information of any prior employer.