Hope for the best, plan for the worst.
– John Jay
January is a good time to review and update your trade secret protection program.
To help, we now have two separate resources: (1) a Trade Secret Protection Program Primer and Checklist and (2) our Ten Minute Trade Secret TrainingTM series of videos, both explained and linked to below.
Trade Secret Protection Program Primer and Checklist
The ability to protect trade secrets, other confidential information, customer goodwill, and other legitimate business interests is a difficult task that requires planning, diligence, and dedication.
Over a decade ago, again when Covid started, and then again last year, I posted about the need for a trade secret protection program to protect those interests.
In 2020, I created a (very long) checklist for companies to use as a guide – i.e., not prescriptively – to help think through the issues and quickly identify what they’re doing right and what they need to do differently.
Since then, advancing technologies and changing behaviors have heightened risk of loss of valuable information. An evolving legal landscape has simultaneously made dependence on the courts increasingly challenging. The result? The need for a robust trade secret protection program is even more pronounced now than it was before.
To help, I updated our trade secret protection program primer and checklist.
The goal of the primer and checklist is two-fold:
First, while different companies will take different approaches, preventing the loss is always better than seeking a remedy afterward. The primer and checklist provides a starting point to help figure out what will work for your company.
Second, when loss cannot be prevented, courts are more inclined to help those who help themselves. Whatever steps a company takes to protect its legitimate business interests will increase the odds that a court will step in and help.
Trade Secret Training Videos
An important component of trade secret protection program is ensuring that employees understand what they are protecting, why they are protecting it, and how to protect it.
The various stages of the employment lifecycle — from recruiting and hiring, to leaving a job, to starting a new job, to working at a company, to off-boarding and leaving a job — provides a helpful framework for thinking about each of those issues.
Enter our Ten Minute Trade Secret TrainingTM series of videos.
The videos are a series of short trainings designed to help employers and employees navigate the movement of employees from one company to another, and to understand how to keep trade secrets (and customer goodwill) safe during that process and during employment. Each video covers a part of the employment lifecycle, from the time an employee starts a job, to while the employee works for a company, to the time the employee is planning to leave a job.
The first in the series – for an employee starting a new job – is Avoiding Mistakes When Starting A New Job:
The training video walks through the steps an employee should take when starting a job to ensure that they comply with their post-employment contractual obligations and obligations under applicable trade secret law. This is not just the employee’s responsibility; employers can also be liable when a new employee violates obligations to their former employers.
- The video is designed to help educate workers about how to avoid even accidentally misappropriating trade secrets and unlawfully interfering with their employer’s customers and remaining workforce.
- While following the suggestions in the video will not necessarily prevent a lawsuit, it will help identify the key reasons that frequently lead employers to sue their former employees (and their new employer) and some steps employees can take to help reduce the likelihood of being sued.
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The second in the series – Protecting Trade Secrets While Working Remotely – is designed for companies and employees to learn how to identify and protect against the common risks to trade secrets in a remote (or hybrid remote) work environment:
This training provides companies and employees with quick, easy-to-understand guidelines for how to minimize the risks posed to trade secrets while employers are working in a remote location.
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The third in the series – The Exit Plan: Being a Good Leaver – is for employees before they decide to leave a job:
This training is perhaps the most critical.
It is the first chance for employees to understand how to prevent liability before the risk arises, and it supplements our short blog post, Leaving your job? Don’t take anything… anything! New employers take note.
- It walks employees through the steps to avoid even accidentally taking their employer’s trade secrets or other confidential information before they leave.
- It alerts employees to the critical knowledge they need if they have already taken company information in anticipation of leaving.
- It also provides important guidance on how to avoid even inadvertently violating obligations to not solicit customers or colleagues when preparing to leave a company.
The video is designed not just for direct access by workers, but for potential employers, as well as recruiting companies and staffing companies, to provide to candidates they are working with.
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We hope all of this helps, and gets everyone off to a good start in the new year.
Good luck!
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Firm resources:
We know how hard it is to keep up with the ever-changing laws and requirements around the country for how you can protect company’s trade secrets, customer goodwill, and the integrity of your workforce. To help, we have created the following resources (available for free):
- 50-State Noncompete Law Chart, the first of its kind and regularly updated (downloadable PDF) (to be updated for the new exemptions in Illinois and Pennsylvania);
- Chart of Noncompete “Low-Wage” Thresholds and Criteria (downloadable);
- Notice requirements summary chart, providing details for each of the 8 states (plus D.C.) that has notice requirements related to noncompetes (downloadable PDF);
- 50-State and Federal Trade Secret Law Chart, providing a comparison of the trade secrets laws nationally to the Uniform Trade Secrets Act (downloadable PDF).
- “Changing Trade Secrets | Noncompete Laws” (dedicated blog page) now provides a current detailed summary of the changing landscape of trade secret laws and noncompete laws around the country, state by state and at the federal level;
- Trade secret and other legitimate business interest protection plan strategy and checklist; and
- Ten Minute Trade Secret Training Series, currently with three training videos and one “basics” video:
We hope you find all of these resources useful. More are coming.
And please note, we are grateful for all of the input we’ve received over the years. We welcome any suggestions for improvements that you may be willing to share.
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*A huge thank you to Erika Hahn for all of her extraordinary help in tracking and monitoring all of the recent noncompete and trade secret caselaw developments.