California Employment Lawyer

Richard C. Darwin posted a useful summary and reminder of the steps an employer should take once an employee has decided to pursue an opportunity with a direct competitor.  Darwin recommends the following nine common-sense precautionary measures to be taken right away to reduce the risk of lost or deleted evidence:

1. Secure the defecting employee’s computer and make sure no one uses it.
2. If the IT department recycles backup tapes, immediately suspend that practice.
3. Check the former employee’s office or workspace for missing documents and files.
4. Get copies of the tapes or electronic files if the building has security cameras.
5. Collect all employment agreements, nondisclosure agreements and employment policies signed by the departing employee.
6. Interview co-workers. Darwin notes: “Quite often, someone has an ax to grind, e.g., an employee who wanted to leave with the departing employee(s) but was left behind, or who was asked to join the defecting employee(s) but chose not to do so.”
7. Request an exit interview from a departing employee and ask him or her to prepare a memo summarizing the status of his or her pending projects.
8. Document any expenses and damages related to the departure, such as headhunter fees, lost employees, lost business.
9. Hire an outside lawyer involved.

Darwin also recommends looking for the following during the course of your investigation:

• Missing documents and files and evidence that the employee has physically removed company property or information
• Evidence that data has been copied from a computer hard drive or server onto CDs, DVDs or portable storage devices, or has been sent to an online storage site
• Evidence that the employee began competing before he or she resigned, e.g., recruited co-workers or solicited clients
• Evidence of data destruction, e.g., indications that the employee engaged in the mass deletion of computer files or “scrubbed” a hard drive

Read more in his article: Your Employee Has Joined a Competitor: Now What?

By CHARLES JUNG