USA Trends and Developments Contributed by: Christina Hynes Mesco, Chad Ayers, Kristen Prinz and Amit Bindra, The Prinz Law Firm
• create an effective exit process for departing employees, so they understand their subsequent obligations; and • mark documents that are confidential with a “con - fidential” watermark – especially if they constitute a trade secret – and restrict access to only those people who have a legitimate business need to see them. Considerations for investigators Depending on the type of investigation, HR or legal personnel may need to develop a workable or even comprehensive understanding of the key business interests in play and how they relate to the law. Pro - prietary information varies by industry and organisa - tion, and an investigator will want to have a solid grasp of what constitutes confidential information – and a trade secret in particular – for its own organisation and industry and be aware of the relative significance of each piece of information and how it could be used in improper ways. Further, some investigations may need to concen - trate on restrictive covenant obligations. Sometimes the focus will be more on non-solicitation obligations, while other investigations will need to analyse non- competition obligations of current or past employees. To complicate matters, restrictive covenant law and regulations are highly variable from one jurisdiction to the other, requiring investigators to become familiar with applicable rules and how they apply to the situ - ation under review. Investigators should consider the following actions when examining restrictive covenant obligations: • review all controlling restrictive covenants for the individuals in question; • ensure enforceability or lack thereof for all relevant covenants; • if an investigation reveals obligation violations, consider sending a departing or former employee a notice that the organisation is investigating, and that the individual should refrain from using or deleting any relevant information or documenta - tion;
• if supplying recommendations to management, address weighing the costs of enforcement against the possible benefits; and • if supplying recommendations to management, recognise that remedies for these issues also differ, which may impact how a client is advised. Inspecting digital data during an investigation Investigators, especially internal HR investigators, may be reticent to explore the devices and digital accounts of an organisation’s employees. While cau - tion should always be exercised, investigators are provided significant latitude in how they investigate organisation-issued devices, email accounts and oth - er data storage systems. In general, HR investigations may do the following: • inspect workplace email accounts, including incoming, outgoing and draft emails; • examine workplace data storage systems, such as a Google Drive or Microsoft OneDrive; • review download history on work devices; • examine texts and calls made on company tel - ephones; and • conduct a comprehensive forensic audit on com - pany devices. A digital forensics audit can help determine whether an employee inserted a USB device into a computer or laptop, when certain documents were uploaded or downloaded, and additional information that may be crucial to an investigation. If necessary, employers should be prepared to file a lawsuit and engage in litigation. Because restrictive covenant and trade secret matters involve the alleged theft of sensitive and confidential materials, employ - ers should be prepared to act quickly. By waiting too long, it may become too difficult to mitigate the harm created. Artificial Intelligence (AI) As with other business and legal processes, AI contin - ues to play an increasingly important role in workplace investigations, creating efficiencies in both internal and external investigations. However, those efficien - cies come with significant risks that must be acknowl - edged and managed.
443 CHAMBERS.COM
Powered by FlippingBook