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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
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
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
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
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.
Porn Habit Results In Suspension
Fraud and Abuse Act: Government to the Rescue of Employers?
the Computer Fraud and Abuse Act to Work for Employers
the CFAA to Use, TV Style
Read more Labor and Employment Law insights
from Margaret (Molly) DiBianca in the Delaware
Employment Law Blog.
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