The pace of change to mobile technology will continue to increase in 2014 – but has your protection of intellectual property evolved with it?
Employers need to take a close look at the restrictive covenants that protect their customer relationships and intellectual property – noncompetition, nondisclosure, and nonsolicitation agreements – to ensure that the agreements protect against the threats of a bring-your-own-device, cloud-computing workplace in which information is more than mobile: it is everywhere.
The enforceability of restrictive covenants is a matter of state law. Some states like California and Colorado reject true noncompetition agreements entirely. Most other states evaluate the enforceability of restrictive covenants based on whether the agreements are reasonable in geographic scope and duration. But the standard language used in most employee agreements – provides no protection at all with today’s evolving technology. An agreement that a former employee will “return all property” to her former employer may have made sense when most information had a tangible form, but what does it mean to “return” an electronic file that may have been downloaded and viewed on an iPhone?
Better-drafted agreements will permit an employer to require an employee to affirmatively identify all electronic devices on which an employee views or stores the employer’s information, will give a former employer the right to inspect those devices, and will allow an employer to get relief from a court when a former employee refuses to cooperate.