When key staff depart, put hard drives "on ice"
Intellectual property (IP) theft and fraud are rampant in the workplace, and can cost businesses millions of dollars in lost customers and eroded confidence, KordaMentha partner (forensic) Nigel Carson told a Kemp Strang briefing in Sydney last week.
Tips for vigilanceCarson says employers striving for vigilance in this area should:
Delay can be fatalKemp Strang partner Lisa Berton warned HR professionals at the briefing to ensure their policies were compliant with privacy legislation and that employment contracts were up-to-date.
If an employee is suspected of IP theft or a restraint-of-trade breach, the employer must act quickly - particularly if the worker has already resigned, she says.
"Re-establish your customer connections - get [a forensic expert] on the phone, but in the meantime, get in there and get in front of your clients and your customers and re-connect," she says.
"I've seen many times people haven't done that, they haven't been proactive, they've been reactive - and the damage has been done."
Employers should obtain evidence of the offending conduct as quickly as possible, and, depending on the worker's contract and post-employment activities, send a cease and desist letter reminding them of their legal obligations.
If the employer's IT policy is not compliant with privacy legislation, trawling for electronic evidence could constitute a privacy breach.
"You might end up having reams and reams of material that support an employee taking confidential information, setting up their own business... dealing with your customers and trying to poach your customers, [but] you won't be able to use it," Berton warns.
In the absence of a compliant policy, the employer could, however, seek specific permission for "covert surveillance" from the court, she says.
If a worker who is under suspicion has a contract that lacks the necessary restraint clause, and they have not yet resigned, the employer might consider confiscating their computer and putting them on "gardening leave".
"Whilst they are still an employee, the duties are greater," Berton explains. "If you can present [evidence] that says all these things happened while the person was employed... that's probably enough - certainly enough in our experience - to see employees turn to water."
If the worker has left, and there is evidence of unlawful activity and damage to the business, the employer might be able to apply for an injunction.
In "most serious cases", such as a group of senior executives leaving en masse to take up employment with a rival company, an employer that can show the court there is a real risk that incriminating evidence will be destroyed could make an "Anton Pillar" order, she adds.
If granted, personal laptops, mobile phones and other relevant devices can be seized without warning.
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