“But That is Ours!” Protecting Trade Secrets: Important Tools for Employers

So, you’re an employer in Florida and you’ve got a trade secret you want to protect – what are you doing about it? For any employer operating in Florida,  , it is important to think about workplace policies designed to protect trade secrets while employees are working for you, as well as policies designed to protect trade secrets after employees leave the business and move onto other opportunities. Many times, employers do not realize that their business has trade secrets that need to be protected. We have some helpful tools for employers to learn more about protecting trade secrets.

What is a Trade Secret and Why Does It Need to Be Protected?

Trade secrets are defined under Florida law in Florida Statute 688.002 as follows:

Why do trade secrets need to be protected? In short, employees can take or misappropriate trade secrets while they are working for you and they can also take trade secrets with them when they leave to work for a new employer. Since your business’s trade secrets provide you with an economic benefit and allow your business to thrive, it is essential that you protect the information that helps you to succeed, but only employers who take steps necessary to protect their trade secrets will receive those protections. Similarly for employees, while some employers may allege that broad items are trade secrets, an employers failure to abide by laws regarding adequate protections may mean those trade secrets are not really trade secrets under the law.

Tips and Tools for Trade Secret Protection

So, if you’re an employer who identified something within your company as being a trade secret, it is important to take action to protect that secret. Importantly – and we cannot overstate this enough – just labeling something as a trade secret is insufficient to provide protections under the law. Below, we provide some helpful tips and tools for employers to consider in order to protect trade secrets, but caution any employer serious about protecting trade secrets in their company to seek the guidance from an experienced trade secret and non-compete lawyer to ensure maximum protections for confidential business information. Our non-exhaustive list of recommendations is below:

• Confidentiality agreements for employees: whenever you hire a new employee or for current employees, employers may consider having those employees sign confidentiality or non-disclosure agreements. In these agreements, you should make clear what type of information specifically is “confidential” at work (or falls into the category of a “trade secret”), and thus cannot be used by the employer if she or he decides to leave or is terminated. But, remember, just calling something confidential or trade secret is not enough, on its own, to provide protection.

• Workplace policies for employee conduct concerning confidential information: employers should have a written workplace policy that clarifies when employees can access confidential information and how they are permitted to use that information.

• Practices to control employee access to confidential information: in addition to workplace policies that should be distributed to and clarified for all employees concerning access to and use of confidential information, employers should also take steps to limit an employee’s access to trade secrets. Employers should control access to physical trade secrets (such as hard copies of customer information) as well as electronic confidential materials (such as information stored on computers or on external hard drives). This may include password protected files, giving only certain employees access to information, etc.

• Conduct exit interviews: when an employee does decide to resign or is terminated, employers may consider asking the employee to participate in an exit interviews. These interviews may give the employer a chance to ascertain what type of confidential material or trade secrets the employee had access to during his or her employment, work with the employee for return of that information, and provide the employer an opportunity to further explain to the employee the importance of the employee’s obligation to keep that information confidential.

If you have concerns about protecting trade secrets, you should discuss your questions with a Florida restrictive covenant, trade secret, and non-compete lawyer.