Published on April 24th, 2012 by Alan L Sklover
Question: Left a job recently due to poor behavior of the company directors. They were sending to me our competitor’s confidential information that they surely had no right to have or use because they were trade secrets.
How can I protect myself in case there is ever an investigation? I do not want to be blamed or included as a wrongdoer. Perhaps I am just paranoid?
Answer: Dear Bob: No, I do not think you are paranoid, and I do think you are fully justified in being concerned.
1. Paranoid? What you describe is punishable in Wisconsin by imprisonment for up to 3 years and 6 months, plus a fine of $10,000. Paranoid? This is what Wisconsin State Laws Chapter 943.205 says:
“Whoever with intent to deprive or withhold from the owner thereof the control of a trade secret, or with intent to appropriate a trade secret to his or her own use or the use of another not the owner, and without authority of the owner . . . is guilty of a Class 1 Felony.” Wisconsin State Laws Chapter 939.50 provides that conviction of a Class 1 Felony may entail imprisonment of up to 3 years and 6 months plus a fine of up to $10,000.
Paranoid? Heck no. Or if you are, then I am, too.
2. Making matters even riskier, it is my experience that, if wrongdoing is discovered in the workplace, those who have left the company are often the ones who are scapegoated. “Something is wrong? Oh, it was the idea of the guy who left last month” is, unfortunately, a common response to the discovery of misconduct. And this is twice as common when the person who has left is not an “insider” in the company, but one who would not “go along” with questionable practices. I think it is wise to consider what you can do to prevent being blamed for something you didn’t do, or at least something that was not your idea.
3. First consideration: How might the company’s misconduct – if discovered – affect you? Bob, your first thoughts should be focused on how you might be affected if the company’s misconduct came to light. Did you use the trade secrets to your benefit? Do you have a license – such as a law license, a stockbroker’s license, an insurance agent’s license or other license – the rules and regulations of which might have required you to report this misconduct to the relevant licensing authorities? Have you already replaced your job, or are you still looking? Any chance you could be required to repay bonuses or commissions? The answers to these questions, and others like them, need to be factored into your decision about whether (1) you should do anything at all, (2) what you should do, (3) when you should do it, and (4) how you should do it.
While I feel strongly that wrongdoing should not be tolerated, I must be frank with you that I believe your obligations and commitments to your family and loved ones might be more important in determining what should be your best course of action. Obviously, I do not know you or your circumstances, so I cannot suggest which course of action is best. But I can tell you that you should stop and think, and perhaps even take counsel with people who know you, so that you do not act without sufficient forethought.
4. Bear in mind: there are risks in going forward, and there are risks in not going forward, too. Bob, something inside you prompted you to write to me. That “something” is probably a nagging concern that maybe a problem will arise, and if it does arise, it will be serious. Clearly there is mistrust there. In situations like these, there is surely a kind of “fork in the road” ahead of us, that is, a decision that needs to be made, one way or the other: stay quiet, or take a step forward to protect yourself. It is often a hard decision to make, and requires that you take into account many different considerations. No one can make that decision for you. Let me share with you what I often say to my own clients: “Give it time. The decision will come to you.” And, it almost always does.
5. Regardless of your decision (or indecision), it is probably wise to assemble, or at least list, what (a) documents, (b) emails, (c) potential witnesses, and (d) circumstances, might be available to you to support your “defense” if accused. As the saying goes, “Hope for the best, but prepare for the worst.” Just as it is wise to buckle your seat belt before driving, it is always wise to assemble or at least list, what resources are available to you if you need them. Over time, you will probably forget the names, times and incidents that might exonerate you if you were accused of being involved in any wrongdoing. If you are at the least concerned, I would suggest you act now to preserve for the future your evidence of non-complicity. You might include a written statement of your own thoughts, which will fade over time. At a minimum, having these available to you should calm your fears.
6. Your essential step – if you decide to take it – is to bring your concerns (and the evidence that supports your non-involvement) – to the company’s Board of Directors, in writing. My experience of over 30 years doing this kind of work on behalf of employees leads me to suggest to people in your circumstances that you address the situation before it “addresses you.” That is, get ahead of the issue before it comes to you. It is an active approach, and not a passive one. Of course, your letter or report to the Board Members should be in writing, and sent by email, so that there is a permanent and clear record of what you reported, when you did so, and the precise language of your report. (If you do decide to take this path, it might be a good idea to have a consultation with an experienced employment attorney before doing so.)
If you would like to obtain a list of five or more experienced employee-side employment attorneys in your city, just [click here.]
Bob, I hope this is helpful, and that whatever you should decide, you do it carefully, in good faith, and guided by the simple notion of “what is right.”
My Very Best,
Repairing the World –
One Empowered and Productive Employee at a Time ™
© 2012 Alan L. Sklover, All Rights Reserved.