How to "encourage" someone to delete work data?
April 4, 2011 12:38 PM   Subscribe

If we have an employee who has access and/or copies of potentially sensitive data on their computer *outside* of the office (e.g. they've used their home computer to download email containing work info, spreadsheets, customer records, etc) and we terminate that person, is there any sort of form or confirmation that we could have them to sign to "ensure" that they will delete any such data? e.g. something along the lines of "I certify that I will delete all company/work-related data on any of my personal equipment" I realize there's no way to *guarantee* that they'll do it. I'm just wondering if there's any sort of potential benefit to create such a form for them to sign off on (e.g. if we find out later that they sent a copy of x info to a competitor *after* they were terminated, will having such a signoff help us at all in court, for example)
posted by anonymous to Law & Government (10 answers total)
 
Why would this person want to sign that form? Are you going to offer them better severance if they do? If they do have "sensitive" information on their home computer, it does give them a tiny amount of leverage. Let's say they're in sales, and they have a client list. That will help them get a job at one of your competitors. Are you going to make it worth their while not to use that list?
posted by Oktober at 12:42 PM on April 4, 2011 [1 favorite]


Did the employee not sign an NDA before being fired? Isn't that essentially what you're asking about? I can't see being able to force them to sign one after the fact, unless signing one has a benefit to them.
posted by cgg at 12:45 PM on April 4, 2011 [3 favorites]


I was just posting what cgg said, NDAs usually cover this. Sometimes severance packages are tied to NDAs in order to provide a carrot when people leave.
posted by bitdamaged at 12:46 PM on April 4, 2011


(oh and I've always signed NDA's when hired which would cover these cases)
posted by bitdamaged at 12:47 PM on April 4, 2011


First off you are may be in violation of privacy laws. Depending on where you live all personal information, or at least records that contain a name and SSN, must be encrypted. Since there is no way to guarantee it you could ask the user to bring in the home computer and have an IT person sit with him/her and remove as much as possible. This however will not guarantee that the user hasn't already copied it onto a CD or thumb drive, and as mentioned above there is no benefit for him to do so. Your best bet going forward is to establish firm policies against any corporate data on personal computers, and encrypt all computers with such data.
posted by Gungho at 12:47 PM on April 4, 2011


Sure, there's potential benefit, particularly if you can get them to agree to liquidated damages, i.e. "Instead of figuring out after the fact how much this is going to cost you, let's just agree on a price." Courts are pretty good about enforcing that sort of thing...

...except that there a problem with consideration. Not only does an employee you terminate have absolutely no incentive to sign any such document, it's going to be difficult to come up with a mutual exchange of promises of the sort which would make a court want to enforce the document at all. As others have indicated, these sorts of things are generally included in NDA/non-compete agreements signed as a condition of employment, not at their termination. Besides, terminating someone is generally interpreted by the courts as meaning that you don't want that person anymore, so turning around and saying that they're so important to you that you don't want them to work for anyone else isn't going to fly.

But you may not need this at all. If they really do share confidential information with a competitor, you've got a classic misappropriation of trade secrets claim in the making. Relief in such cases can include not only money damages, but injunctions preventing your competitors from acting on said secrets. All of which is kind of a pain in the ass, but there's a remedy there if you need it.

IANYL, and you should definitely talk to yours.

Not entirely sure I'd worry as much about the privacy law angle, though it's worth looking into depending on what kind of data we're talking about.
posted by valkyryn at 12:48 PM on April 4, 2011 [2 favorites]


I think it's probably safer to say "You are not allowed to have work information on your personal computer". You probably already do say something like this. If you deal at all with sensitive information this is pretty much a requirement (or a law suit waiting to happen).

Many people may ignore this, but if they sign a document beforehand which indicates they know the company policy - then you may have legal recourse in the future.

Concerning signing a document when they leave - if there is any kind of severance involved, people will often sign documents which say they will not sue the corporation as one requirement for receiving the severance...
posted by NoDef at 12:49 PM on April 4, 2011 [1 favorite]


[not your lawyer and all that]

As many people have said already, an NDA/noncompete would cover the employee's use of such information. So if you have one of those in place, good for you.

But to your more direct question, I think that there is most definitely value in having an employee sign off that he/she has returned or destroyed all company property. For example, our company's severance agreement has language that certifies that the employee has returned all property belonging to the company, including [a long list of stuff like cell phones, computers, vehicles, tools, equipment, etc.] and that the employee has not retained any information - whether in hard copy or digital form - related to the company's [operations, finances, customer relationships, etc.]. The agreement makes a breach of the severance agreement a forfeiture of severance benefits, and it makes explicit a presumptive right to injunctive relief. And it makes a nice exhibit if later on you find super-sensitive Excel sheets on their home computer or in their basement - i.e. "let me show you this severance agreement that you signed; can you please read paragraph six for the record?"
posted by AgentRocket at 1:06 PM on April 4, 2011 [1 favorite]


Isn't this what a standard NDA is for?
posted by Kololo at 1:54 PM on April 4, 2011


It might help if your company has a liability insurance policy. IF your employee does not destroy personal data as he/she agreed to do and IF that personal data causes someone harm and IF that harm is covered by your insurance THEN your insurance company could go after your employee with that evidence. It's called subrogation.

It may have limitations that differ by jurisdiction. Continue on with your life as though you had never read this answer. Erase your browser history. DIVE! DIVE!
posted by infinitewindow at 2:12 PM on April 4, 2011


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