STEP 1: Interview employee’s supervisor:
- What specific trade secrets did the employee have access to?
- Are there any documents, notes, equipment, etc., that the employee has not returned?
- Is the employee working on a project that requires his or her continued employment or consultation?
- Will the employee’s resignation cause any harm to the company?
- What projects did the employee work on?
- Did any previous projects involve working with a competitor?
- Before departure:
o What was the attitude of the employee?
o Was the employee taking home more work than usual?
o Did the employee request to take any documents home?
o Did the employee use copy machines more than usual?
o Did the employee work evenings, weekends, or other times when other employees weren’t present?
o Did the employee begin to associate more with certain employees than others? (This may point to other potential defections.)
STEP 2: Ascertain why employee is leaving (Skip if Firing Employee)
- If the employee has received another offer:
o From whom did he or she receive the offer?
o How did the employee receive the offer?
o Is the employee aware of offers made to other employees?
o What will the employee’s new job description entail?
o Is the employee being hired for a specific project?
o Will the employee’s new job put him or her in a position in which trade secrets may be disclosed?
o Has the new employer discussed potential trade secret disclosure? What is the new employer doing to ensure nondisclosure?
- If the employee is going to form a “start-up” company:
o What is the nature of the “start-up”?
o Has the employee discussed the “start-up” with other employees?
o Is the employee’s “start-up” an appropriate venture for your company as an investment, joint venture, etc.?
- If the employee is leaving because of dissatisfaction with his or her current position:
o Why is he or she dissatisfied?
o What changes would the employee suggest?
o Are other employees dissatisfied?
o What are the other employees’ suggestions for change?
o Will the employee be available as a consultant to finish up projects?
STEP 3: Review original Confidentiality Agreement and termination documents with employee:
- Impress on the employee the continuing obligation to maintain the confidentiality of the company’s trade secrets.
- Remind the employee that the company’s trade secrets are not only written documents but may also be the employee’s mental impressions.
- Stress the company’s need to enforce the confidentiality of trade secrets and the potential for injunctive relief and damage awards, which can be doubled if misappropriation is willful and malicious.
- Have the employee sign a Termination Certificate and review it with him or her.
- Attach a copy of the Termination Certificate to the Confidentiality Agreement.
- Have the employee sign the Notification to Employee Pursuant to Labor Code §2870.
STEP 4: Return of company property:
- Explain to the employee that “company property” includes sketchbooks, engineering notebooks, keys, badges, business plans, customer lists, laptops, computer disks, flash drives, etc.
- If any company property has not yet been returned, obtain the property then or make specific arrangements for its return.
- Have another employee present during the departing employee’s packing of his or her former office.
- Inventory the items taken by the departing employee from the office.
- Identify, delete, and change all user names and passwords
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