Home » Commentary » I Took Confidential Documents From My Prior Employer. That’s OK, Right?

Amanda DeMatteis: Hi, Josh.

Josh Goodbaum: Hi, Amanda. What are we talking about today?

DeMatteis: Well, I have a hypothetical for you. A potential client comes in, they just left their job, and they took with them some work that they had put together at that job that made them really successful – think client lists, contact information. They say to you, “That’s okay, right?” What do you tell that person?

Goodbaum: I say you’ve probably created a problem for yourself, and if you haven’t already, you might be getting a cease and desist letter sometime soon. And that’s because all the work you did at your prior employer almost certainly belongs to your prior employer and not to you. Taking confidential documents from your job is a common thing that salespeople do because it’s their relationships that are really the core of their business. But the relationships you developed while you were working for your prior employer don’t belong to you.

Here’s a good rule: When you leave an employer – regardless of whether you resign or are terminated – take nothing with you unless you have express permission from your employer to take it. If it’s something that you think they wouldn’t give you permission to take, there’s probably a reason for that. So, don’t do it. You’re just going to get yourself in hot water.

Now, there are probably some files on your work computer that are perfectly acceptable for you to take with you when you separate. Let’s imagine you’ve got pictures of your family. You’ve got goodbye notes from coworkers. Maybe you used your work computer for some personal stuff, like doing your tax returns. Those are things your employer is probably going to let you take. So, call your manager, call HR, call IT, and say, “Hey, here’s what I want to take. Is it okay?” That way, when you take it, you’re not going to raise any red flags, you’re not going to raise any alarm bells, and you’re probably not going to get a letter from a lawyer.

DeMatteis: Let’s change the hypothetical just a bit. Say this potential client comes in and says, “Hey, I was just let go from my job, but I’ve been collecting evidence of discrimination or retaliation at work, and I’ve taken all of it with me on my way out. Is that okay?” What do you tell that person?

Goodbaum: That’s a trickier question because there is some law that suggests that gathering information that is evidence of discrimination, retaliation, harassment, or other illegal conduct can be itself protected conduct. It’s going to depend on what specific rules your employer has, what specifically you’ve taken, what you’re using it for, and who you’ve shared it with. So, what’s done is done. Let’s have a conversation about it. But that is a trickier question.

To get back to the core of the question: If you’re just taking information from your prior employer in order to compete – if you’re taking formulas, if you’re taking recipes, if you’re taking Excel spreadsheets, if you’re taking contact information or client lists – and you’re not doing it to try to prove that something illegal has happened to you, that’s really not a gray area. That is pretty black and white, and you’re in some hot water.

DeMatteis: Let’s be careful whenever we’re removing anything from our employer – that may be through putting it on a jump drive or flash drive, printing it, or emailing it to a personal email account. Those are things that you want to be really careful doing.

Here’s a best practice: If you have a work laptop and you think there are documents or files that support a claim for discrimination, retaliation, or something else illegal happening, just create a folder on your desktop and put all those documents in it. So, you’re not removing those documents from the employer at all. You’re just putting them in a place where – if you needed to come to an employment lawyer like us, and you say, “Hey, I have all this evidence of what was going on at work, and here’s exactly where it can be found on my work laptop” – we can get that information over to the lawyers for your employer and hopefully they’d be able to find it fairly quickly. And that saves you from violating any policies that the employer may have or any laws that might prohibit this type of conduct.

Goodbaum: Great advice. I love that idea. Thank you all for watching, and we’ll see you next time.

DeMatteis: Take care.

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