Jack B. Harrison
New technology has made it increasingly easier for employees to access and take employer data for uses that are often not in the employer’s interest. This requires increased vigilance on the part of employers to protect their businesses and assets. Here are a few of those areas that require employers’ attention:
RESTRICTIVE COVENANT AGREEMENTS—
Increasingly, employers are being faced with situations where restrictive covenant agreements they have with employees are being breached through the use of social media by employees. For example, disgruntled or departing employees with non-compete or non-solicitation agreements may make use of social media to communicate with a prohibited audience in an effort to avoid the specific restrictions contained in their non-compete or non-solicitation agreements.
In a relatively recent Indiana case, Enhanced Network Solutions Group v. Hypersonic Technologies Corp., the defendant subcontractor, who had a non-solicitation agreement with the plaintiff company, used its LinkedIn account to post a position description. An employee of the plaintiff saw the position posting and applied for the position and was hired. Enhanced network Solutions Group sued, alleging that by posting the position to its public LinkedIn profile, Hypersonic Technologies Corp. had violated the non-solicitation agreement. While the court ultimately found that Hypersonic’s actions were not, in fact, a violation of the non-solicitation agreement, the lawsuit itself evidences the risks that employers may face from the use of social media.
HIJACKING A SOCIAL MEDIA PERSONA—
Because companies increasingly make use of social media to publicize themselves, their products, their events, or their news, an employer’s social media presence is an asset that must be protected.
In PhoneDog v. Kravitz, a recent California case, Kravitz, who had served as the voice of the company’s Twitter account took the company’s Twitter password with him when he departed. He subsequently changed the account into his own name and continued to post messages. The company sued Kravitz, asserting that the Twitter account’s password and its followers were themselves trade secrets which Kravitz had misappropriated. The company argued that through his actions Kravitz had damaged the company’s economic relationship with Twitter followers and advertisers by taking over the Twitter account, in that it led to a decrease in traffic to the employer’s website and to its advertisers’ content.
While this case is currently ongoing, it does serve as a reminder to employers of the need to vigilantly protect their own social media assets.
USE OF THE CLOUD—
The advent of cloud storage has created another avenue for an enterprising employee to abscond with an employer’s proprietary and confidential information in the hopes of making use of the information in work with a future employer. Cloud storage allows an employee to upload an employer’s proprietary and confidential data to a cloud storage account and then to download it from the cloud to a new employer.
Earlier this year, in the case of Elliott Greenleaf & Siedzikowski v. Balaban, a law firm sued a former partner for, among other things, misappropriating data. Elliott Greenleaf & Siedzikowski alleged that Balaban had uploaded multiple files from the firm’s computer system to a free cloud storage space, Dropbox, before departing the firm. According to the law firm, this action allowed the former partner to continue to have access to and to transfer the firm’s data after he had in fact departed the firm.
Prior to the advent of free cloud repositories, an employee would have had to directly access an employer’s computer network to transfer data, thus increasing the risk that she would be caught. Now, because much cloud storage automatically transfers and synchronizes data across multiple devices, the movement of data by an employee preparing for her departure may be less noticeable.
In developing computer use policies, employers must address cloud-based employee misconduct and must take steps to secure their electronic systems against uninvited cloud access.