When Does Post-Separation Monitoring Make Sense?

Allen Smith, J.D. By Allen Smith, J.D. June 11, 2021
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​When an employee leaves a company, it doesn't necessarily mean ending all contact with the former worker. Some employers monitor certain workers after termination or have check-ins.

"Lawful post-separation monitoring of a former employee is merited, and in fact prudent, in three instances," said Bradford Newman, an attorney with Baker McKenzie in Palo Alto, Calif.

First and most commonly, post-separation monitoring may be in order when a senior executive or key engineer with core knowledge of valuable trade secrets abruptly departs for a competitor, he said. When such a former employee departs alone, or as part of a coordinated team exodus, the first inquiry should be whether the employee has knowledge of technical trade secrets and business strategy.

Such trade secrets and strategy might include product roadmaps, as-of-yet unreleased products, source codes, algorithms and related confidential software product development, and engineering processes. Monitoring these employees should be part of a company's high-risk departure program, he said.

Second, post-separation monitoring may be needed when a company fires a disgruntled employee and the company is in the process of protecting its brand in the marketplace, Newman noted. Monitoring not only protects from threats of intellectual-property theft but allows for real-time responses to attacks on the brand, executives and shareholders.

"Sometimes, we see a combination of both these scenarios," Newman said. A disgruntled former employee leaves in possession of highly confidential documents and starts leaking them to certain press outlets or posting them online. "Effective monitoring is critical in this scenario."

Finally, post-separation monitoring may be needed if a former employee has made threats of violence against a company, executives or former co-workers.

When Trade Secrets Are at Risk

As for intellectual-property protection, Newman said that lawful post-separation monitoring includes:

  • Reviewing public social media postings.
  • Reviewing industry forums and chat groups.
  • Keeping the former employee's company e-mail live and having an appropriate designee monitor incoming e-mails.
  • Reviewing press coverage and setting Google alerts for any mention of the former employee's name.
  • Keeping tabs on industry seminars and meetings to determine if the former employee has published any papers or will be doing any public speaking.

"It is also important to monitor key customer and supplier relationships to determine if the former employee has made contact on behalf of [his or] her new company, and if so, the substance of those communications and risks presented by them," he said.

Newman also recommended that former employers monitor new corporate formation filings and professional license applications and transfer requests to determine if the former employee is starting a competitive company.

Safety Threat

If an employer discovers during post-separation monitoring that a former employee has made threats of violence toward the company and its employees, Newman said the two immediate responses are to:

  • Notify law enforcement.
  • Seek a civil restraining order.

Another option in some states is for an employer to seek a peace order when the threat is against an employee, rather than the employer, said Christine Walters, J.D., SHRM-SCP, an independent consultant with FiveL Company in Westminster, Md. A peace order is a court order that requires another person to stay away and refrain from contacting an individual.

"Include in your workplace violence prevention policy an instruction for any employee who has obtained a peace or restraining order against an individual to provide the company's security officer or other appropriate person with a copy of the order and a photo of the individual against whom the order was obtained," she said. "This will enable the employer to readily identify the person and contact local law enforcement if the person tries to enter company property."

"In an extreme case, the company should work with counsel to retain experienced third parties who specialize in assisting companies [to] protect themselves against threat actors," Newman said.

If using a third party, HR may want any report delivered first to legal counsel so the report remains protected under attorney-client privilege, Walters said.

Check-Ins

An employer should monitor someone who was noticeably angry at separation, according to Sean Ahrens, owner of Ahrens Security LLC, a premise liability and expert witness advisory firm in McHenry, Ill.

Sometimes that might mean monitoring social media and search alerts for the employee and the company. For significant concerns, a private investigator could be used to monitor the individual over a period, according to an overview of involuntary employment separation and termination strategies that Ahrens wrote.

"I don't always call it monitoring," said Melissa Muir, HR director with the Seattle Municipal Court. "For HR, we have natural check-in points with former employees—I call them alumni—in the transition. Ensuring they get their last paycheck or vacation pay, [answering] questions about benefits and continuation of coverage—these are all opportunities" to gauge how the former employee is doing.  

Sometimes HR is hesitant to act on social media and communication that is outside of work. Muir hopes that is changing. "A threat management team—or workplace safety or wellness team, whatever an organization calls it—is a critical resource to bring together different disciplines and share information," she said. "One comment may seem innocuous—a pattern of them or a change in the tone may be something very different."

The FBI's Making Prevention a Reality: Identifying, Assessing and Managing the Threat of Targeted Attacks appendices A and B provide helpful examples of concerning communications and of disturbing behaviors, Muir noted.

"As employers who have a lot of insight to an employee, we have an opportunity to say goodbye with respect, to offer support after they leave and reduce the risk of that person harming themselves or others," she said. "It's a good practice and increases safety."

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