The Sedona Conference’s working group on trade secrets has created a draft Commentary on Protecting Trade Secrets throughout the Employment Life Cycle. The draft Commentary explains:

Employees are at the center of most aspects of trade secrets: Trade secrets cannot exist without the work of employees, cannot be protected without the efforts of employees, and would rarely be compromised or lost without the conduct of employees. This Commentary on Protecting Trade Secrets throughout the Employment Life Cycle focuses on the inherent potential tensions this creates in the employer-employee relationship.

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.

This Commentary addresses these issues through a chronological view of the employment relationship, from the recruiting and on-boarding, to the period of employment, to the off-boarding, and back to the on-boarding.

If you are interested in this important issue, you can download the Commentary here. Comments can be submitted through September 30, 2021, to comments@sedonaconference.org.

Robert Milligan serves as a member of the Sedona Conference Working Group 12 Trade Secrets Advisory Working Committee, co-leads the Employee Life Cycle subgroup, and is a Senior Editor for the Commentary on Protecting Trade Secrets throughout the Employment Life Cycle.