What the work-from-home model means for company’s trade secret

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What the work-from-home model means for company’s trade secret

During the COVID-19 pandemic, remote working has been increasingly applied by employers to facilitate a safe workplace and, on the other hand, keep the continuity of business. According to a survey, before the outbreak of Covid-19 pandemic, many organizations had been already applying remoted working. Then, when the pandemic struck, 88% of the world’s organizations implement work-from-home model. 

Although remote working becomes a hot topic due to the pandemic, it is believed that the pandemic has made working culture in many industries changed and teleworking model may be continually popular in post-pandemic. Indeed, a survey showed that 60% of those working from home would like to continue to work from home after restrictions on businesses have been lifted.

Nonetheless, remote-based work settings may pose intentional and unintentional threats to employers’ intellectual property (IP). In this context, company’s internal agreements and policies related to IP management and protection that used to be designed based on a controlled traditional workplace environment may need to be modified in order to adapt to the changing business environment. 

Given that maintaining secrecy is one of the core requirements for trade secret title, the following practices that can be seen when an employee is remotely working may raise potential risks to the trade secret status of information, including:

  • The works may be popularly conducted on personal devices via unsecured connection (public wifi), such as personal cellphones, laptops, … This may make important IP become vulnerable before cyber attacks. 
  • The works, internal meetings, or working calls may be conducted in spaces wherein other persons (family members, roommates, visitors, …) may easily access IP (data, documents, reports, ideas, …). For example in the family guest room, bedroom, …
  • Certain policies or company routines pertaining to IP may be adhered to in a more lax manner due to the weak control of companies over the IP management.

Thus, it is important for the company to take the necessary steps to protect the secrecy of information. The following actions are suggested:

  • Training employees working remotely on IP policies and repeatedly reminding employees about the importance of the IP rules. 
  • Requesting remote employees to use company-owned laptops, electronic devices, telephones, or other electronic equipment for working, if feasible. In certain situations, if employers must allow employees to use their own equipment, such equipment must be vetted for certain standards, such as having anti-virus software, only having licensed software.
  • Deploying authentication and secure cloud tool to manage information. Besides, the only software that requires a corporate email to log in or a digital signature to review attachments should be used. By saving data on the cloud, companies can easily and efficiently control the status and usage of information, while ensuring governance and compliance. In the technology era, IP must be protected by technology means, amongst other things. 
  • If employees are tech lovers and are using home assistant devices (such as Google Home and Alexa), the company should require the devices to be turned off. It is common that these devices will constantly listen to their environment;
  • Making employees understand that, although their family members or friend may not intend to steal the secret information, taking reasonable steps to protect secrecy is required by laws to maintain the trade secret status that is critical for the company to gain the protection tile of the trade secret. 
  • Importantly, the company must introduce or revise work from home policies and relevant IP guidelines to ensure provisions for the protection of IP in remote-based work models, mainly including privacy policies, intellectual property rights, cybersecurity, employee agreements and internal labor regulations.

Remote working has demonstrated its advantages and benefits. Thus, this working model is predicted to be still here even if prior to the end of the pandemic. Bearing this in mind, attention should be shifted to maintaining the protection of IP outside of the corporate firewall.

If you have any questions or require any additional information, please contact Apolat Legal – An International Law Firm in Viet Nam.

This article is for general information only and is not a substitute for legal advice.