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West Palm Beach, FL 33401

Phone: (561) 659-3300
Fax: (561) 659-1911
 
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November 26, 2012
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We were all taught that emails were not private and we should write them as if they were postcards which anyone could read. If the Director of the CIA cannot keep his emails private or be sure that no one has taken national security secrets from him, how can any employer be certain that employees are not using social media and the internet to reveal confidential proprietary information or misappropriate trade secrets? What is an employer to do?
 
CIA Director, General David Petraeus, resigned recently during an FBI investigation which revealed he was having an extra-marital affair with Paula Broadwell, the author of his biography. It all started when Broadwell sent what she thought was an anonymous email intended to harass Jill Kelley (a socialite and friend of the Petraeus family). Kelley got a friend of hers in the Tampa office of the FBI to trace the email back to Broadwell, opening up Pandora's box (there were serious concerns that Broadwell may have become privy to national security secrets). The scandal has led some to question the extent to which employers may monitor the activities of their employees without impermissibly invading their privacy or other rights. Recent studies show that up to 75% of departing employees take confidential information with them. A company's intellectual property is its most important and least protected asset. So, what steps should employers consider taking to ensure that their confidential proprietary trade secrets are not being stolen?

Safeguard your trade secrets and confidential business information.
What are your company proprietary trade secrets and how are you safeguarding them? The Florida Uniform Trade Secrets Act protects companies from the misappropriation of trade secrets. However, the definition of trade secrets is strictly defined. A company's other confidential proprietary information is often just as valuable and needs to be safeguarded. Access to your confidential proprietary information (e.g., client and customer lists, financial information, strategic plans, databases, pricing information, etc.) should be limited and monitored. Key employees should be required to sign Restrictive Covenant agreements covering non-disclosure, non-competition, non-solicitation and Work for Hire. Litigation in this area is exploding. Our Firm can provide your company with the agreements you need.

Internet and Social Media Policies.
If our government isn't certain whether national security secrets were leaked, how can employers be certain that employees are not using the internet and social media to reveal confidential proprietary information or misappropriate trade secrets? As the internet and social media become a larger part of both our personal and business lives, the law is struggling to keep up with the fast-paced advances of technology. New types of legal claims are surfacing and employers are becoming more uncertain of how to handle their employees' misuse and abuse of the internet and social media. Our Firm can draft and suggest the policies you can follow to help protect your intellectual property and related employee issues.

Remind Your Employees of Their Lack of Privacy in Company Internet and Email Usage.
Employees send a gazillion personal emails, text messages and posts from their work accounts during the work day and afterwards. They also send many messages dealing with business issues that are inappropriate and which may expose the employer to liability, e.g., communications that are perhaps, discriminatory, unfair trade practices, defamation, tortious interference, etc. Employees may be shocked to learn the company is monitoring their use of the company's information system and may want to sue the company once it is discovered. Because the company owns its own information and email systems, an employer is generally permitted to monitor emails sent from employees' work or personal accounts if the employee is using company devices and systems but it is important to notify the employees beforehand. Our Firm can suggest and draft the policies you may need to protect your company.

Train Your Employees to Be Very Careful About the Information They Are Putting on The Internet and In Emails.
In other words, think before you "Draft" (it is said that General Petraeus and Broadwell were using one account and saving their communications in draft form to make the communications more difficult to trace) and or "Send." The former Director resigned after email exchanges uncovered an extra-marital affair. What information are your employees writing and revealing that can potentially devastate your company if the information was shared or posted? Employees should draft and write emails as if they are going to be posted on a world-wide billboard. Our firm can help you train your employees in this regard.
 
Be Wary of Romantic Relationships in the Workplace.
Depending on what your company has provided in its updated Employee Handbook or Code of Conduct, your company may be able to take certain steps to deal with the existence of intra-company romantic relationships. These kinds of behaviors can cause damage to your company (e.g., sexual harassment and discrimination claims, moral problems, inefficiency, etc.). Our Firm can suggest and draft the policies you may need to help deal with this issue.

The Schwarzberg & Associates Employment Law Compliance and Defense Group is here to help you deal with your employment-related issues and challenges. We have extensive experience in developing effective policies, procedures, and proactive responsive measures to deal with a myriad of workplace issues. Please do not hesitate to contact one of our members: Steve Schwarzberg, Kristin Ahr, Grace Murillo or Lisa Kohring at (561) 659-3300 to obtain more information about our firm and its various employment law compliance and defense services.
 
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