Trade Secret Litigation and Confidentiality Agreements

Social media are increasingly becoming powerful tools in shaping an organization's image.  Organizations, however, are not the only ones using social media.  Many Facebook users are also employees of businesses and other organizations.  Numerous social networking and social media sites allow employees to join, post, blog, and provide information.

Social media has become ubiquitous and the ease with which information can be created and shared provides employees with a greater ability not only to tarnish the reputation and goodwill of employers, but also to expose employers to additional risks.  This can place the reputation of the employer, as well as its confidential information at risk.

Employees often believe that their personal social network pages are private and protected from public view.  This is quite often, not true.  Therefore, employee social media risks need to be addressed by designing and implementing clear policies that specifically address employer expectations of employees when they use social media.  The policies should clearly set out any limitations or restrictions on that use.  While the implementation of a policy cannot provide absolute protection against certain risks, it will make employees aware, up-front, of the effect their activities can have on the employer and that the employer expects them to act in a responsible manner when using social media.

Safeguarding your trade secrets can be the difference between maintaining or losing your competitive advantage.  Our firm advises clients on all trade secret issues, including intellectual property and confidentiality agreements, computer usage policies, covenants-not-to-compete, employee training programs, document classification and retention policies, and trade secret misappropriation.

Hinch Newman will assist you to develop comprehensive agreements and policies for employees that include, but are not limited to, the following guidelines:

• Explains what social media is and what the policy covers. We will assist you to clarify what types of activities it applies to (speaking on behalf of employer,  disclosure of confidential/proprietary information, disclaimers, etc.);
• Reminds employees about the nature of social media, that any communication made through social media may become public, and that the identity of anonymous contributors can often be revealed;
• Includes both at-work and non-work usage of social media;
• Reminds employees to exercise good judgment and prohibits the publishing of any comments that may negatively affect the employer;
• Reminds employees that they are legally responsible for their communication using social media and, as a result, should not violate any laws, including, but not limited to, those regarding harassment, defamation, intellectual property rights, financial disclosure, and privacy rights;
• Prohibits the violation of employer policies and reiterates that all other employer policies, such as confidentiality, continue to apply to communications using social media;
• Discloses employer monitoring of social media usage and whether employees have a reasonable expectation of privacy with respect to the use of the Internet through employer systems;
• Advises of the consequences of a breach;
• Drafting, monitoring and enforcing employee non-competition and confidentiality agreements;
• Designing and documenting adequate data protection and security measures that protect both your own and your consumers’ privacy and security, including database systems analysis;
• Strategic advice and risk-analysis; and
• Protecting your intellectual property assets (trademarks, service marks, trade dress, copyrights, etc.).

Employers that may wish to pursue state and federal misappropriation claims against departing employees who misuse proprietary data are well advised to consult an experienced trade secrets litigation lawyer that can assist you with issues pertaining to the newly enacted Defend Trade Secrets Act and CFAA rulings in furtherance of revising written confidentiality and computer usage agreements, protecting against corporate espionage, and implementing a litigation strategy that works for your business.

Comprehensive workplace policies and agreements will contain numerous guidelines, some of which will depend upon the nature of your business. Caution should be exercised, and professional legal advice obtained, from an intellectual property attorney in order effective manage related risks.

Whether you are an employer or an employee, consult with an attorney at Hinch Newman for assistance drafting, negotiating and litigating employment agreements.