Part of living an intellectual property (IP) security policy is institutionalizing a corporate culture that values and respects IP rights. Indoctrination of employees into such a culture can begin during the pre-hire process, and necessarily continues during new hire orientation.
Establishing a Baseline
Before immersing a new hire into the position for which she is hired, the hiring company should take an inventory of the trade secrets the employee knows from past employment. As input to this IP inventory exercise, the hiring company should review any agreements signed by the new hire when she left her previous employment (e.g., confidentiality, non-compete, non-solicitation, and/or invention agreements). Upon completion of the IP inventory, the new hire should be put on formal notice that she is forbidden from bringing any of the inventoried work product onto company premises. The hiring company may elect to require certification in writing that all protected material listed in the inventory has been returned to the previous employer who owns that material.
Training on Policy
New hire orientation should include formal training on the company’s IP security policy, as well as presentation of a written copy of the policy to the employee. The hiring company should require signed acknowledgement by the new employee that the documented policy was received and explained, and that she understands and will comply with the policy as a condition of employment. The hiring company may elect to transmit a letter to the previous employer informing them of the hiring event and of the strict IP security policy that is in place for the employee.
Finally, the hiring company must notify the new employee of her responsibility to protect intellectual property related to her new position. The new hire should be required to execute a written non-disclosure agreement (perhaps captured as a provision in an employment contract) that lists as specifically as possible the existing and planned IP to which she will be privy. Specificity in such agreements is key to the hiring company ensuring larger and surer rights than those available under common law.