SUGGESTED NEW YEAR’S RESOLUTIONS ON NON-COMPETES, CONFIDENTIALITY AGREEMENTS, AND SOCIAL MEDIA

It is the beginning of the year.  The time for New Year’s Resolutions.  My little son reminded me on New Year’s Eve for us to make our New Year’s “Revolutions.”  His revolution was to do 40 minutes of guitar practice per day (up from 20 minutes).  He had carefully written it down and happily wadded it into a ball to throw into the fireplace.  As the flame consumed his promise to himself, I complimented him on his lofty ambition. Resolutions are indeed personal intentions of revolutions directed at ourselves.  My son’s malapropism has some relevant meaning.

It got me to thinking about appropriate resolutions for executives.  There are many I could conjure up, but three seemed like an easy number to digest and remember.

Resolution # 1: Look Before You Leap

At this time of new possibilities and opportunities, an executive who is considering moving to another company should carefully scrutinize his non-compete, non-solicitation, and confidentiality agreements he has with his current employer to ascertain whether he would be in violation.  The executive should not try to do this without the assistance of legal counsel.  Employers have gotten more aggressive in seeking enforcement of these agreements as evidenced by the many court cases around the country.

Resolution #2: It’s Not Secret If Everyone Knows Or Employees Don’t Know It’s A Secret

Confidentiality Agreements are meant to protect the proprietary information and trade secrets of a business.  If the executive leadership has not instituted safeguards, controls, and notices of confidentiality for its important business information, then do not expect a court readily to treat it as confidential information.

An employee confidentiality agreement is a good start.  Physical and technological protections of business information along with legal protection of intellectual property through copyrights and patents are a good finish.   Think locked filing cabinets, password protected computer files, documents marked “confidential,” and so forth.  The New Year is a good time to establish protocols for safeguarding trade secrets, etc.

Resolution #3: Know How To Use Social Media But Don’t Lose The Personal Touch

If you are an executive or professional, no matter what your age, you are committing business development and networking malpractice by not understanding and utilizing social media whether it is LinkedIn, Facebook, Twitter, blogs, etc.  Whether you realize it or not, you, your business, or your profession are affected by social media and will continue to be at an accelerated rate.

You don’t have to be a “techy” to join LinkedIn or pen a blog – I am living proof of that.  You must do something or you will be increasingly on the margins of access to information sharing.  After some skepticism, I recently signed up for Twitter and I will let you know how it goes.  Older executives must adapt and be continuous learners.

Despite the rise of social media, it is still not a substitute for meeting with people in the flesh, having conversations on the telephone, and sending thank you notes and condolence cards.  Being there and showing up still counts for a lot.  Younger executives should cultivate old fashion pressing the flesh.

Senior executives and the twenty-something young Turks can learn from each other.  To borrow a phrase from my son, that would be a nice “revolution.”

CONFIDENTIALITY PROVISIONS IN EMPLOYMENT CONTRACTS

BY G. A. FINCH

Confidentiality provisions in employment contracts have become pretty standard. Because of the boom in technology in the last three decades, there are a lot more intellectual property and proprietary information to be protected.

Neither the employer nor the employee should underestimate the utility of confidentiality and non-disclosure provisions. Proprietary business information is a critical, but underappreciated, asset of many companies. For example, in Illinois, the Trade Secrets Act protects a company’s information that is treated as secret and has economic value because it is not generally known to other persons. This information includes technical or nontechnical data, a formula, a pattern, compilation, program, device, method, technique, drawing, process, financial data, or list of actual or potential customers or suppliers. A confidentiality agreement protects the employer’s trade secrets and informs the employee what information is permissible for him to utilize post-employment.

The employee should understand at the time of signing an agreement that much of the intellectual capital and information he or she creates for the company may not go along with him or her when he or she leaves the company. Where the employee has been developing an idea or invention prior to being offered a position with a new employer, he or she should specifically carve out that idea or invention from the confidentiality agreement.

Disclaimer: This post does not constitute legal advice and does not establish an attorney-client relationship.