When you leave an organization—whether voluntary or not—your former employer can may not be done watching out for you. Some employers monitor or check-in with former employees. It’s common with key executives, engineers, and sales managers—individuals who hold proprietary knowledge or valuable data.
As SHRM points out, you’re more likely to be subjected to monitoring if you’ve been privy to product roadmaps, as-of-yet unreleased products, source codes, algorithms and related confidential software product development and engineering processes. Customer lists and marketing research are also commonly protected assets.
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AMY: How can you tell you might be subjected to post-employment monitoring (I’m guessing confidentiality or non-compete agreements are clues?)
If you’re an employee who fits that bill, your employer may already be monitoring your actions. Extreme examples include tracking computer keystrokes or attempts to access restricted databases as well as anti-deletion programs.
Post-separation monitoring can transpire in two different ways: directly and passively. Direct routes include strategic exit interviews, confidentiality reviews, equipment and data return certifications, immediate termination of computer and account access with a review of emails, downloads and other activity, and periodic post-separation check-ins. Passive monitoring can include ongoing reviews of public social media postings, industry forums and chat groups, incoming emails to the former account, press coverage and web mentions, and industry seminars and meetings (looking for published papers or speaking engagements covering the sensitive information). It’s also common to find out from key customers and suppliers if the former employee has made contact and to watch for new corporate formation filings and professional license applications and transfer requests.
But is this monitoring legal? In most states, yes. That includes Texas. It comes down to what is considered “reasonable expectations” of privacy. And when it comes to employers monitoring emails, internet usage, downloads and other electronic activity, the laws tend to lag well behind the technology. Disclosure, particularly on what the employer considers trade secrets, should be included in employment and/or separation agreements, though. Start there when it comes to uncovering clues.
At this point, you may be wondering why Texas—a state so dedicated to individual freedoms—may allow post-separation monitoring.
“That’s because Texas is decidedly a business-friendly state. In states like California, non-compete agreements and monitoring for trade secret infringements are harder to accomplish because it’s an employee-friendly state. But Texas tends to prioritize business success and will clear a path for that to happen as much as possible.” -AMY, I FEEL LIKE YOU TOLD ME SOMETHING LIKE THIS BEFORE. FEEL FREE TO EDIT!
The law that most applies here—the Texas Uniform Trade Secrets Act (TUTSA) was amended in 2017 to expand the definition of trade secrets. In Texas, that means that all forms and types of information can be considered trade secrets, including basic lists of actual or potential customers or suppliers. Also in 2017, the San Antonio Court of Appeals ruled that simply having a position to use trade secrets is sufficient to grant temporary injunctions under the Texas Uniform Trade Secrets Act. It’s called misappropriation of trade secrets, and no evidence of actual injury is needed; just the mere possession and opportunity to use information a company considers trade secrets may be enough to scrutinize a former employee.
If you’re worried about monitoring by a current or former employee, it’s important to discuss your concerns and review your current and former employment documents with an employment attorney. That includes any confidentiality, non-disclosure, or separation agreements you’ve received. Watch your step on social media and in discussions with industry colleagues, clients, competitors, and others. Remember that your “universe” of employment can be surprisingly tiny in your community and your industry. You never know who is watching. Missteps can affect your ability to find a job in the future.