The Sedona Conference’s Working Group on Trade Secrets has just published its draft Commentary “Protecting Trade Secrets throughout the Employment Life Cycle.” The Commentary, which I helped draft with fellow Senior Editors Russell Beck and Robert Milligan, Managing Editor Jim Ko, and Editors-in-Chief Vicki Cundiff and Jim Pooley (as well as with the help and support of many other team members too numerous to list), addresses the paradox of trade secret protection — namely, that the individuals that employers depend on most to protect their trade secrets may prove to be their future competitors.
The forward of draft Commentary better sets the stage for this tension, which primarily arises from the employer’s need to protect what it perceives to be its trade secrets and the potential mobility of the employee, who may find himself/herself working at a competitor some day:
While in most circumstances, employers and employees will be aligned in protecting trade secrets for their mutual benefit at the beginning and during the employment relationship, at the end of the relationship, there is an inherent tension between an employer’s interest in protecting its trade secrets and an employee’s interest in engaging in future employment. This tension is further complicated by the fact that, although the departing employee is at the end of one employment life cycle, they are typically simultaneously at the beginning of the next, where the former employer’s risk of loss of its trade secrets corresponds directly to the new employer’s risk of infiltration of those same trade secrets.
The Commentary addresses those tensions chronologically, starting at the recruiting and on-boarding period, then the period of employment, and finally, the during the off-boarding period. For those interested in reading more about this Commentary, you can download the Commentary from here. Comments can be submitted through September 30, 2021, to firstname.lastname@example.org.