Employee Survival Guide® - Fired or Laidoff What Company Information Can You Take With You and How to Do It?

Episode Date: March 20, 2023

In this episode of the Employee Survival Guide Mark discusses what things you can take and not take with you after being laid off or terminated for cause.   There is a common misperception among employees about what exactly an employer owns. Mark explains that work for hire means anything you do for the employer belongs to the employer. Many employers make employees sign Nondisclosure and Confidential Agreements to protect company information.  Listen and find out the quick and easy answers to this very real and large problem many employees experience.  The most important item companies cannot control is each employee's individual intellectual property, i.e. their work experience and know how. This episode was prompted by a Wall Street Journal article Mark read dated March 16, 2023 captioned: Worried About Layoffs? What Files You Can Take With You—and How to Do ItThe content of this website is provided for information purposes only and does not constitute legal advice nor create an attorney-client relationship.  Carey & Associates, P.C. makes no warranty, express or implied, regarding the accuracy of the information contained on this website or to any website to which it is linked to. If you enjoyed this episode of the Employee Survival Guide please like us on Facebook, Twitter and LinkedIn. We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts. Leaving a review will inform other listeners you found the content on this podcast is important in the area of employment law in the United States. For more information, please contact our employment attorneys at Carey & Associates, P.C. at 203-255-4150, www.capclaw.com.

Hey, it's Mark here and welcome to the next edition of the Employee Survival Guide where I tell you, as always, what your employer does definitely not want you to know about and a lot more. Hey, it's Mark here and welcome back to the Employee Survival Guide. Today I'm going to do something different and every day this week I'm going to try to muscle something out of having to do a daily podcast for you on a different topic. I read voraciously every day, trying to keep current, to basically keep you current. I came across an article in the Wall Street Journal today, but it came out on the 16th of March.

And the title of the article was, Worried About Layoffs, What Files Can You Take With You and How to Do It? And so a pretty familiar topic to me, and I wanted to share some helpful and insightful information to allow you to figure out what your manager is not telling you and your HR department is not telling you so that you're protected and also how you can deal with that property issues or personal property issues on your computers because everything is on computers these days, of course. But what happens if you make mistakes and you take information you shouldn't? And so I'll try to exhaust this topic very quickly for you.

So what can you take with you as you are among the so-called 100,000 employees in the tech sector who've been laid off in 2023 according to layoffs.fyi, where the article did mention that. But there's probably close to 200,000 plus layoffs occurring. And obviously, there's also people getting rehired. But nonetheless, you've been working at your company for whatever length of time. You have information that you worked on projects. You worked on pertinent information you want to use to bring your next employer. Let's say you want to use it to, I don't know, anything from the directly compete with your employer because the Federal Trade Commission is going to ban non-competes to whatever, to just simply, hey, I like that spreadsheet I was using or that project or

that deck, whatever that was. I want to use that, but not necessarily take that information, but I want to use it for idea making and my next job because that's what I do. So can you take, let's say, the slide deck? Can you take the spreadsheet? Can you take that information that was on that computer or you're about to leave your job? Can you save it and download it onto your personal computer? The answer is depends. Well, that's not helping you, right? So I'm not trying to be difficult, but the strong answer is no. Whatever your company has you do as a work for hire,

overall, you're basically giving them every access to everything you create for them. That's what's called work for hire is. You'll see that. And sometimes in offer letters, you'll see that in n-disclosure agreements. And what work for hire means is simply, it sounds like it is. You work for them, you produce whatever it is you produce for them while you're working at will, then the company owns your IP that you created for them. That's a simple rule. So what does it mean? It means your spreadsheet, your deck, your email that you wrote to your colleague moments before you were fired, that email, the singular electronic document, the paper file, it belongs to your employer by law, state and federal. So you can't take it with you.

But people do it all the time. And especially when clients come to me when they have to layoff, they have chosen information. They're already in their possession, which they have with them, either because they copied it on a printer, whatever it is, or they moved it over to a private email address, whatever they did to protect themselves in the case the employer was going to fire them or discriminate or breach a contract, whatever they wanted to do. So as you can see, a lot of information really is owned by the employer. Well, what's not owned by the employer? Let's think about like personal photographs. I mean some employers would be a ridiculous argument to make that they would actually own your photograph

because you stuck it on your work computer. It's your photograph. They can't acquire your likeness of your face. So that's an easy one. So I think I want to come to the – not to segue too far into this topic area because you can go different directions. But the – you should not be saving information on your corporate computer. That's personal in nature. If you have the next invention that's going to make you a lot of money, don't save it on your work computer, OK?

Keep everything offline. Let's get into the idea that 80 percent of the companies now have what's called employee monitoring software at some magnitude, at some level. And they're monitoring what you do. And they actually have controls. And you actually have experienced this personally where you can't go certain areas in the internet and you can't do certain activities and you're barred from whatever. You've already seen these blockade walls inside of your own devices. They also have – that's a more physical thing that you can actually see and interact with. But employers oftentimes don't show you they're watching you because that's intentional. So when you want to screenshot something or download an email, they can see you do that.

And it's all – there's all timestamp records of everything happening. So let's not be naive that employers don't have or can't see what you're doing. They can see everything you're doing. So what can you take with you? Not much. And anything. And there are certain topics you can. But I'll get to that in a second.

I've covered employee monitoring. So you know what that means. Not much, anything. And there are certain topics you can, but I'll get to that in a second. I've covered employee monitoring, so you know what that means. NDAs, non-disclosure agreements and trade secrets. What we're really talking about is the employer protecting lawfully what's theirs. They do that under confidentiality, proprietary agreements that, in effect, bar you from taking any of their information. And they'll go to, at length degrees, to explain in those documents all the various nuances of the type of property belonging to the company. You should pay attention because no court is going to say that they're incorrect. They have a right to protect themselves.

That agreement – and I don't disagree. I think those agreements should protect the companies. Where I disagree is that the companies have non-compete agreements and they use those to extract out even more things to basically screw with you and prevent you from getting a job when these proprietary NDAs and confidentiality agreements do their job and do it successfully to protect the employer's information. Non-competes are going to go the way of the, you know, whatever example you want to come up with, but the Federal Trade Commission is going to ban them for a period of time until they get some court challenge. So NDAs, trade secrets, here's another federal statute to be aware of. It's a weird one, and I don't create this stuff. So here it is. It's called the Defend Trade Secrets Act. It was created because lobbyists for employers wanted to stop people from putting stuff in

federal court proceedings of a confidential proprietary nature. The Defend Trade Secrets Act, you'll probably see it in some of your NDAs and proprietary information agreements, say, in essence, that if you want to put something that is proprietary to the company in a public filing in a court, you have to file it under seal. They're not saying you can't include the information. You just have to file it under seal. They're not saying you can't include the information. You just have to file it under seal. If you don't, then you actually can face criminal and also monetary penalty. Early statute, I don't think I have not seen a case that actually somebody got prosecuted or sued over the issue yet. But now you know the statute exists. And it applies to this.

It applies to this because you're going to use all that raw data of like emails, decks, spreadsheets, and stuff to help you build your case. Or let's say you wanted to use it in some other manner and you got sued over it. I mean, I'll just pause and say that the statute exists and I try to hold myself back from different topic areas here. But contact lists, this is a good one, customer lists. Customer lists are generally open source information. I wouldn't necessarily try to just cut and paste an entire list, be creative in terms of whatever it is. But the company will say it's trade secret.

It's really not because you can actually go out and buy the list if you wanted to. Like if you were dealing with people in the financial industry, you can easily find those names of those companies. So contact lists generally are not protected as trade secrets. I've covered work emails, definitely yes. Templates, spreadsheets, all definitely yes. What about – I covered work for hire already and personal photos I've already discussed. Let me talk about a topic that you haven't seen coming yet in this conversation.

And that is your personal intellectual property. You actually have personal intellectual property that you own? Think about this a second. You do. Let's say you've been working in the financial industry and you've been there for about 15, 20 years and you are, I don't know, you've created this protocol of whatever it is, a method, and you want to go to the next employer because you just got fired and laid off and you want to use it to your next employer's benefit. Or let's say you want to become a consultant like a McKenzie type or Deloitte and Touche and you want to use that to sell the idea. idea. And the personal intellectual property is your years of experience of doing something, perfecting it, the ways and means of how to do it. So think about the open source nature of industry practice or whatever that is. But you have this different personal way of how you do it,

or you have something that is just novel enough that makes it something of your own invention, but not necessarily an invention or something you could file with a patent and trademark office, but it's just a different way. And you have basically the intellectual knowledge and experience that makes it your personal IP. So that's what you really describe when your work experience is really your personal IP. So that's what you really describe when your work experience is really your personal IP. This is actually serious. I do put this in executive contracts. I do try to carve out this personal intellectual property IP as much as I possibly can when employers are trying to overstate their control of what is proprietary information with an executive.

Because the companies don't own your prior experience. That makes sense. And so that's what personal intellectual property is. Companies want to trample on it. I mean, we're talking over-the-top trample on it. You'll see it come in the form of language like this, where in the inventions agreement, you want to call it generically the proprietary confidentiality agreements, you'll see a paragraph that says that you give your consent and waiver to assigning the company an attorney in fact to do these things had you known they would happen, they don't need your consent. And what it really is trying to say

to all that legal crap that they're trying to throw at you is that we're going to basically fake you out, make you sign this agreement that you probably didn't read. You've got to read your agreements, folks, because that's why I'm here to explain it. But read the agreements because the employer can fake you out and no court of law can kind of retool once you give it away. Can you stop them from doing this? Well, yeah. You can negotiate those agreements. You can put in an addendum to the agreement saying, you know, in essence, you don't own my personal IP. That's mine. It's my work experience. You can't adopt it. And companies try to do that. You can't adopt it and companies try to do that. So this really is the encapsulation of the topic of when you leave a job, what can you take from away with you?

And you've now discovered that, well, email, spreadsheets, decks, things of that nature really belong to the company. Are there ways to get it out? Yeah, you can use screenshots on your phone. You can try to forward information to your personal email addresses and people do that all the time. I'm just going to tell you that that information on your personal computer that you forwarded actually still belongs to the company. But there's no way companies, and this is real time information, there's no way, I've never seen companies go through a process in some court of saying after the person signed their severance agreement and then tried to get back their information. They say in the agreement when you sign a severance agreement, if you enter in one, that you gave all your information back. Well, what if you kept some?

Well, then you're at risk of breach of the severance agreement. Well, what if you didn't have a severance agreement and you just were fired? And that happens a lot. And the company, there's really no mechanism, and I don't see companies going after employees to recover the one email that was sent to so-and-so on a project. The company knows this. They're not going to bend over backwards to do it because it's a waste of money. For what value? One email that they already have it saved and backed up. They already know what it is. And it's kind of a gigantic deterrent effect. You know, if you create an impression that the employer is this giant ogre and going to come out and just haunt the corners of your life and mess with you in the future, as some companies try to do.

Well, in fact, they do. of your life and mess with you in the future as some companies try to do. Well, in fact, they do. And they do this because they don't – they lack the means financially to go after every single employee to collect all their data and then police it after. There's no system out there, folks. It doesn't exist. It's a mere psychological threat. And so long as some companies or if a lot of companies behave in this manner

and you believe it, you've created a fiction that they have some way to catch you. But there's really no way to catch you. So I just want to share that insight with you. I don't experience those cases. All I'm doing is employment law. I don't have people contacting me because they've been sued by their former employer because they have taken spreadsheets and decks. I mean, these cases happen occasionally, rarely. I mean, you know, thousands of people I've dealt with. I mean, we're talking like 1%. That's how minuscule this is and how large the transformation of data from corporate to personal occurs every day. This problem gets even murkier when you have people who now work, whether you're working in the office or remote work, using their own personal devices. And let's say in my office, in my office, I bought a laptop and maintained a

laptop for all employees because I'm not trying to control the security and cybersecurity. And so that's what normal employers do. Some employers don't do that and they force employees to use their own devices because employers are cheap, OK? They're cheap folks. And you should actually ask your employer to give you a device because they're getting basically free use of your device and all its maintenance. But it's lousy corporate cybersecurity if you want to ask me, but that's the risk. But here's the problem. You're using your own personal computer and you're going on their platform and you're storing information on your computer. Whose is it? It's on your computer. They took the risk to let it

out there on your personal computer. And then you get in the murky area. What happens when the person's let go? And do they kind of send you a certified receipt and saying, give it back to me? Well, they try to, but it's still out there. So a lot of devices are being used personally and professionally that have a lot of information belonging to corporations, and there's really no way for the corporations to police it. And they are using software to monitor it. Maybe they keep tabs, but they're not doing anything to affect that outcome and get it back from you. A lot of threats and a lot of just older behavior by employers, the same old, same old you're used to, OK?

You're used to being beaten down and beaten the shit out of and by employers and no one standing up for you and telling you what to do until me. That's what I do because I don't really give a shit anymore for a long time. So that concludes today's topic that I wanted to bring to you. This is not rehearsed, folks. I just lay it out. I obviously got a lot of content to share with you. I'm reading every day. So I'll do the same thing tomorrow and the day after that.

And just continue to bring this to you to be informative because I don't care. So I'm just trying to help you out. Hope you enjoy it. I'll talk to you soon. Thanks. If you like the Employee Survival Guide, I'd really encourage you to leave a review. We try really hard to produce information to you that's informative, that's timely, that you can actually use and solve problems on your own and at your employment. So if you'd like to leave a review anywhere you listen to our podcast, please do so. And leave five stars because anything less than five is really not as good, right? I'll keep it up. I'll keep the standards up. I'll keep the information flowing at you.

If you'd like to send me an email and ask me a question, I'll actually review it and post it on there. You can send it to mcaryu at capclaw.com. That's capclaw.com.