Sharatpareek
Marketing
Cite Contribution
Community Manager
Tajsateesh
Recruitment/talent Acquisition, Career Counselling
Bhardwaj Ramesh
Sr.manager-hr&admn

Here's live case, the names and the company details are not shared, to maintain the privacy.

In a Knowledge Firm, a talent during its tenure with the firm remained a star performer. In time, there was a dissonance in terms of finances. The talent was paid a promised amount to deliver a product , which wasn't built and the talent left in a huffy.

Years later, the firm continued to showcase the documents created by the talent. The talent moved to newer firms and continued to use the documents as Knowledge Capsules created for that ex-employer.

Its easy to derive that the ex-employer can claim and even ask the talent to either stop using those documents or even issue a penalty if it was used for a monetary gain.

If the ex-employer wants to avoid the legal hassle or even pick up a fight, what should be their best resort?

Acknowledge the talent for the documents created, and make it public, to claim that they are still owned by the ex-employer?

Speak to the talent and ask for a foot-note reference, mentioning that the documents were created for the ex-employer?

What else could be done, in the view that ex-employees are an ambassador to the talent pool, and should remain so?

Please share your views , I look forward to the solution from you.
16th April 2013 From India, Mumbai
1. an agreement should me made with employees that employee will not use company;s confidential information after leaving the job for some specific period say 2 years, 3 years.. if still company finds thats the employee is not honoring this agreement , it can drag the employee in to court . Off-course the company sud have good evidence that employee is using its information which is resulting in the loss of company.... i have heard the instances where employers make agreement with employee that they will not work for same sector after leaving job for some specific period..
16th April 2013 From India
Thankyou Sharaat for contributing this solution. To me this case, remains very unique, as the employer doesn't want to get into a nasty fight and resolve it amicably .
Its a knowledge firm, where most of the members are from Tier-1 institutes with years of professional experience. The founder to the firm wants a positive approach to the situation and a corrective measure that will set an inspiring example.
Looking forward to hear from our experts and mentors.
17th April 2013 From India, Mumbai
Hi (Cite Contribution),

Hope your query will be more clear if we replace talent with employee, that will make it easier to understand.

As mentioned by Sharad, many companies enter into agreements with employees regarding innovation, and new discoveries. But no employee will keep on reinventing the wheel again and again, if I have prepared some documents on my own for my ex employer I wont hesitate to keep the documents with me even after i resign the company, I am free to use the documents by editing a little here and there. I am not able to get exactly what a knowledge firm does with those documents, like if you could mention that what exactly those documents contain, are they training documents or what it will help me to get an idea.

Leave alone of employees vs employer. Hope you have read the case of Apply vs samsung,, wherein apple sued and won against samsung.

and there were memes about good guy motorola,motorola invented worlds first flip phone but did not sue others for using the flip phone design, whereas apple sued samsung for using similar logos. Since I am not exactly getting what a knowledge firm does, i am unable to advice you.

If you are going to construct a house and an architect designs a plan for you, you cant stop that architect from selling the same plan designed for your house to others. Because when that architect worked for you he prepared a plan (documents) for your need, and when he is doing other peoples houses he is preparing documents for other peoples need.

If you could give more information about the documents it would be good.
17th April 2013 From India, Madras
Dear (Cite Contribution),
I agreed with Karavi and Sharat. Organisations infuse new blood into their systems and processes to make their organisations more productive and profitable. Employees gaining and using their knowledge in the previous organisation use in the new one and so on.
However there is always a bond/agreement or moral commitment on the part of both the parties that the employee shall not disclose the confidential information in the new organisation.This is true in critical positions .say in the case of competitors.If the work of the ex-employer is suffering because of the same technology transfer by the ex-employee to the new organisation, then this is the real problem which must be sorted out by amicable solutions.
On the part of the employee also,he/she must be true to their commitment with the ex-employer otherwise he/she will loose image in the eyes of the new employer also.
The employer may sue the ex-employee if really his business is suffering.
With Best Regards
17th April 2013 From India, New Delhi
Hello (Cite Contribution),

Ravi has mentioned very apt & relevant points--the Apple vs Samsung legal tussle is & will be a classic Reference case w.r.t. the knowledge-based usages/applications--which is quite different from the regular Patent Protection cases [in fact Apple used this argument very effectively to win the suit].

Coming to the situation you mentioned, pl confirm/clarify the terms mentioned in the NDA & Patent protection clauses of the Appointment letter--I presume they do exist.

You mentioned that the 'ex-employer wants to avoid the legal hassle'--any specific reason(s)? I am sure there must be strong reasons for such a decision--when legally any company would be within it's rights to go legal in such situations--PRESUMING they have evidence of whatever they would be claiming about the ex-employee.

Another point--has the company broached the issue with the ex-employee--either directly or indirectly [thru someone else]?

While reserving my final opinions pending your clarifications tor the points mentioned above, these are my comments.

I am not sure if your line ".....even pick up a fight" is an option at all. In such situations, picking up a fight would or could only aggravate the situation rather than resolving it. And, frankly, I don't see any need for exercising such an option at all.

Reg the option "..........make it public, to claim that they are still owned by the ex-employer?" that you mentioned, it COULD be tough to implement it practically UNLESS the company has the proper documentation framework in-place [NDA, etc] that contain clauses to this effect very unambiguous terminology.

Pl elaborate on the issues for better solutions to come across form the members.

However, there's one thing that I think we should be ABSOLUTELY CLEAR--let's NOT CONFUSE between "ex-employees being ambassador to the talent pool" & "a breach of trust/agreement", IF it was that in this case.

The risk--IF you see such situations from the brand-ambassador-prism, there's a genuine danger of other employees taking things for granted & situations going beyond control in the future.

In a single line: suggest discriminate situations where thinking thru the head & thru the heart is more appropriate.

Rgds,

TS
17th April 2013 From India, Hyderabad
Hello Everyone,
Since the Apple vs Samsung Case got discussed in this thread, thought this might interest all the members--only goes to prove that (1) even highly decorated & illustrious Judges can miss-out the finer details in their Judgements, & (2) human nature/mind can always spring surprises--in this case, the way Samsung hit-back @ Apple in the best way they could :-)
Samsung Pays Apple $1 Billion Sending 30 Trucks Full of 5 Cents Coins - Paperblog
Rgds,
TS
17th April 2013 From India, Hyderabad
Thankyou Ravi, Ramesh and Sateesh. Apple and Samsung is an apt example to this situation.

Your contributions will help the founder find the best way out. I will share this thread, including all these discussions with him.

He is a very senior fellow, who built the firm with a professional, yet a very caring approach. He paid the amount agreed for the product, right when the candidate had joined in. Thats how much he values his team. All his hires are the best of the people, from the sector.

The internal document and the ones that the talent is sharing, are almost identical, hence can run into copyright issues.

He was keen to brain storm for a positive approach. He remains sensitive to his firm's environment. I suggested taking the legal way or playing the hard ball, he wanted to set a right precedent. Glad, I met such an employer.

Here' what I suggested:

- Acknowledge the talent to be a part of the company alumnus.

- List all the ex-employees to his firm on LinkedIn and if possible his website. That way, he will automatically declare the contribution towards knowledge capital in the market, by his firm.

- Talk to that talent and acknowledge the situation. Open-up the process for knowledge sharing through the company blog and ebooks, with a declaration to the content.

- Encourage re-share of the documents with the foot-note.

- Adherence to the NDA would remain a natural result, to the culture that he is building. His positive approach will impact the environment, but only over a period of time.

- Help ex-employee build their career, with post-employment mentoring and out-placements. This will truly build the Employee Alumnus culture and weed off every such situations, that we have today.

I am really happy to find such a positive approach. Ideally, corrective measures are often fear based. What are the other way out, that he can try out? Lets see how best can this be resolved.
17th April 2013 From India, Mumbai
How can the employer be so sure that the ones which the talent is sharing is identical to the one which he has created, usually in legal terms, unless the employer has registered or patented the documents with some authority then only it will become copyright issue. Just because he is employer and talent is employee a copyright case cannot be filed. It needs to be proven in court that the employer is the real owner of the document and not the talent. If it is proved that talent is the creater / owner of the document then case will be dismissed.

So in this case even before filing a case against the talent the employer need to consult a legal counsel as to whether can a legal case of copyright really stands or not.

And since the internet lots of people share their knowledge , skills, freely on internet which in olden times you had to pay to the professional to get advice on particular issue, but today right from blueprint of a business to designing aeroplanes plans you can get anything free on internet.

Also in your suggestion you have mentioned some initiatives to be taken by the employer like recognizing the talents knowledge or asking the talent to add footnote that this document is created for ex employer. My question is how the ex employer is hurt or in loss because of sharing of files by the talent.

Regards,

Ravi
17th April 2013 From India, Madras
Thankyou Ravi,
The founder is all set to meet the talent for a dinner, this weekend . I have shared all the contributions in this thread, with him. He seems quite pleased.
Even if the outcome to the meeting isn't shared with me, I am glad I came across this case, as I learnt so much from all of you.
Thankyou !
18th April 2013 From India, Mumbai
If that former employee had been covered by an appropriately restrictive, written employment contract, you could find your remedy in there. But let's not make this too easy. Let's say you had no written employment contract with this employee. Let's also say that you terminated the employee. If this is the case, you aren't likely to find your remedy in contract or employment law. Now what?

Ohio, along with nearly every other state in the US, has enacted a substantially similar version of the Uniform Trade Secrets Act. The concept of a "trade secret" is very broad; much broader than that of a copyright or patent. Furthermore, while the government decides what qualifies as "copyrightable" or "patentable," you (largely) decide what constitutes a trade secret.

Trade secret protection can extend to essentially any "information," so long as that information meets the test for protection. Whether your information is covered depends on two things: if you treat that information as confidential (you protect it as such), and if the "secrecy" of that information is what makes it extra valuable.

Furthermore, trade secret protection extends to information whether or not you could copyright or patent that information. It even applies to information that you may not want to patent or copyright. Think about it: if you send something out for copyright or patent protection, you have to reveal it to the world. You may not want to do that, for obvious reasons. Additionally, if you are going to be changing your customer database every day, the copyright on your database from October 2010 is going to be pretty worthless. Most of the valuable information you use in your business on a day-to-day basis isn't going to be patentable or copyrightable. Even if it is, there won't be any value in obtaining that protection; therefore, most of the information you deem valuable in your organization is going to be best protected under trade secret law.

So if you take reasonable steps to keep your customer list secret (it is on stored on your server, which is password protected, for example), and it is clear that the list would be worth much less to you if all of your competitors had access to it, it is likely your customer list qualifies for trade secret protection. Returning to our example, your former employee is using your customer database to solicit new clients. While you might call this "theft," under Ohio law, this is called "misappropriation." There are quite a few different activities that constitute misappropriation, but in this example, the former employee was under a common law duty to you to maintain the secrecy of the information (or so you would argue). By taking that information with her after she left, she is now misappropriating it.

. In certain circumstances, you may also be able to force the former employee to "take affirmative acts" to protect the information (i.e. returning or destroying all copies).

Depending on how much damage has been done, you may also sue for damages. Damages may include both the actual loss caused by misappropriation and certain damages for unjust enrichment (assuming your former employee has been raking in the dough by using your list). If it would be impossible to calculate these types of amounts, you have the opportunity to persuade a court to award you a reasonable "royalty" for the former employee's use of the information. That royalty would be calculated based on your loss, and/or the former employee's gain. This is kind of like requiring the employee to pay over the money that she made by using your list. In more egregious cases ("willful and malicious"), you might be entitled to punitive damages. You would have a stronger case for this type of claim if the employee had been syphoning your information for weeks before leaving, with the intention of using it to his own advantage after leaving.

You should also be aware that this law applies not just to employees, but also independent contractors, even your vendors and strategic partners.
23rd April 2013 From India
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