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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