As almost any business owner can attest, the challenging economic climate has brought increased activity around the obligations of former employees. Whether an employee loses a job because of financial cutbacks or moves to another company for a better opportunity, he or she may be looking more closely than ever before for the proverbial leg up to secure, and succeed in, future employment. Unfortunately for companies, this may result in a greater tendency by departing employees to download sensitive company information and otherwise run afoul of their post-employment restrictions against solicitation and competition. According to a 2009 study by Larry Ponemon, “Data Loss Risks During Downsizing: As Employees Exit, So Does the Corporate Data,” nearly 60 percent of employees who quit or were discharged acknowledged taking proprietary data from their employers.
Conversely, companies facing similar economic pressures are more likely to use every weapon in their arsenals to protect their competitive positions. However, the increasing irrelevance of geography as a meaningful limitation on a former employee’s activity, the speed and methods by which confidential information can be transmitted and the many variables that already exist in the context of attempted enforcement of post-employment restrictions make it even more challenging for employers to know how best to proceed. Instead of becoming overwhelmed and possibly paralyzed with uncertainty, companies would be well-served by returning to the basics of protecting their legitimate interests, with due recognition of the changing landscape. This article provides five practical suggestions about how to do just that.
