COVID-19 has changed the nature of the workplace as many employers now operate with a significant remote workforce—and may continue to do so for the foreseeable future. Coupled with the exponential increase in the number of videoconferences and remote log-ins, the danger of the loss of confidential information and trade secrets is more acute than ever. Further, in regulated industries such as securities or health care, the loss of data is more likely to result in government investigations as well as class action lawsuits.
Under the federal Defend Trade Secrets Act (DTSA) as well as the trade secret laws of most states, employers must make reasonable efforts under the circumstances to maintain the secrecy of their trade secret information—otherwise, the information may lose trade secret status. While courts engage in a fact-specific analysis to determine if an employer has taken such reasonable measures, below is a list of non-exhaustive steps that businesses should consider taking to protect their trade secret or confidential information.
In light of the unique challenges that a remote workforce presents, employers should assess their existing protections and consider what, if any, additional steps they should take to help protect their confidential and trade secret information. Such steps will continue to serve businesses well even after the worst of COVID-19 has passed. Experienced counsel, who are part of Nixon Peabody’s Noncompete and Trade Secrets team, are available to assist you in this analysis.
The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.
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