The Texas Legislature in its most recent session adopted the Uniform Trade Secrets Act by passing Senate Bill 953. The new law, which will go into effect September 1, 2014, will help you keep your departing employees from competing against you using your own trade secrets, which are defined as “a formula, pattern, compilation, program, device, method technique, process, financial data, or list of actual or potential customers or suppliers.” Most employers ask me to protect their customer and/or supplier lists after the employee has left the company, which is about as effective as that old saying about closing the barn door after the horse has already bolted for greener pastures.
So the recently adopted statute is good news, but you as an employer have some responsibilities too. The trade secret will only be protected if it is (1) valuable; (2) not generally known to, and not readily ascertainable by proper means from others; and (3) subject to “efforts that are reasonable under the circumstances to maintain its secrecy”. In other words, you can’t blame a former employee for using your trade secrets if you made no efforts to keep them, you know, SECRET!
To prevail under this statute, which provides for an injunction and damages, you are going to have to show that you took proactive steps to protect your confidential property, such as:
- Limiting employee access to the trade secret so that only those with a strong “need to know” gain access;
- Labeling files or stamping the trade secret documents with “Confidential” or “Secret” stamps;
- Password protecting the trade secrets if located on database;
- Installing monitoring software to record who had access to the computerized trade secret;
- Keeping the secret under lock and key;
- Requiring numbering and shredding of all copies of the trade secret documents;
- Requiring employees to sign non-disclosure and confidentiality agreements in addition to a written confidentiality policy in your employee handbook;
- Conducting periodic inspections and reviews to beef up security of trade secrets; and/or
- Having your employees sign a non-competition agreement that meets all of the quirky requirements for valid and enforceable non-competes in Texas.
If you can demonstrate that a former employee misappropriated valuable confidential information and you took some or all of these reasonable steps to protect your data before the employee left, this statute will allow your lawyers to more easily stop your employee and his new employer from profiting from your hard work and secrets.