Communication in the 21st Century depends extensively on the use of emails delivered through digital devices like smart phones, tablets and laptops. Similarly, social media such as Twitter, Facebook and LinkedIn provide a company’s employees with numerous ways to reach current and potential business contacts. Along with these recent methods for communicating and conducting business comes a concern about how to keep proprietary information confidential in this digital age.
A trade secret is any formula, pattern, device or compilation of information that is used by a business and that presents an opportunity to obtain an advantage over competitors who do not know or use that information or device. Items as common as customer lists and pricing information may be proprietary trade secrets. A business can keep information confidential by restricting access at work to those who have a legitimate need to know the information and by having employees agree in writing not to disclose information specifically identified as the company’s trade secret. However, such information, even when considered confidential or proprietary, is often unwittingly left vulnerable to misappropriation whenever there is a separation of employment.
For example, a sales person may keep important information about his customer contacts on his LinkedIn account. If that employee leaves to work for a competitor, he can easily access longtime customers and divert new business to the competition. Even seemingly innocent emails to former customers, in which the departing employee provides his new contact information, can undermine the former company’s business, especially if coupled with an offer to continue providing the same service as before, only now for the new employer. Likewise, allowing employees to conduct business on their own digital devices through “Bring-Your-Own-Device” (BYOD) policies can compromise confidential information that is allowed onto the employee’s personal digital device.
Employers must establish guidelines on whether the employer or the employee owns a particular social media account, and they also must determine what type of information can be utilized through social media accounts and transmitted through an employee-owned device. Employers also must have a mobile device management system in place that allows them to remote-wipe devices when an employee leaves the company.
When creating these policies, employers must be mindful of guidelines from the National Labor Relations Board, which prohibits employers from unduly restricting employees’ right to free speech, which includes the right to complain about their current employer. Policies that are too broad could land an employer in trouble for infringing on its employees’ constitutional rights.
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