Employee resigns. But before her last day of work, Employee copies thousands of emails and documents from Employer’s computer. Off goes Employee into the sunset.
How often is this scenario? I bet most employers think this never happens in their workplace. I’d be willing to bet that it happens in almost every workplace. It happens with such regularity, yet most employers are absolutely stunned to discover that it’s happened to them.
If you think it doesn’t happen pretty much all of the time, check out this post at the uber-popular website, Lifehacker.com, titled, How Can I Save All My Work Emails for a Personal Backup? A reader submitted the following question:
I'm leaving my job and want to take my work emails with me. I've been burned at jobs before, and it became very useful to have an email paper trail behind me. How can I save all the emails so I can access them in the future, just in case I need them?
The author of the piece responds back, providing detailed, step-by-step instructions for how to do exactly that—take with you each and every email you sent and/or received during the course of your employment.
Putting aside how terrible of an idea this is on Lifehacker’s part (can you say, “promoting or endorsing illegal activity?), let’s focus just on the reality—which is, clearly, that your employees are taking your stuff!
What remedies are available to the employer? Well, most immediately, there’s the demand that the items be returned. Lawyers have a particular flair when it comes to a well-crafted cease-and-desist letter, so consider having your employment counsel get involved from the outset.
But if the employee refuses to return the documents or ignores your demand, then what? One option is to sue. A variety of claims may be applicable, depending on the precise nature of the documents and information and on what the employee has done with them since her departure. For example, the employer may have claims like conversion (civil theft, generally speaking), misappropriation of trade secrets, tortious interference, etc.
And, depending on where the employee worked, there also may be a claim under the state and/or federal computer-misuse statutes. In Delaware, for example, we have computer-misuse statutes that provide for recovery of an award of treble damages and attorney’s fees. And, because Delaware is in the Third Circuit, we have the Computer Fraud and Abuse Act.
This statute has limited application in other states—including those within in the Fourth and Ninth Circuits, where the Courts of Appeals have rejected the application of the CFAA in the employee-traitor context. Instead, in those states, the statute is construed as applying only to the true computer hacker.
The CFAA is a fascinating statute with complex provisions. The Florida Bar Journal has an excellent analysis of the law—and of the different interpretations of the various Courts of Appeals—for those who may be interested.
For the rest of you, though, now is the time to implement a confidentiality agreement if you don’t already have one in place and to consider just how certain you are about what employees can and cannot take at the end of employment.