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Use contract to compel return of documents

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in Employment Law,Human Resources

Here’s something you may not know: Minnesota law doesn’t give employers a clear right to demand the return of copied documents when an employee leaves. Employers may have to show the documents are privileged or confidential in order to get them back—unless they have provided for the return in a written contract.

It’s one reason that you may want an employment contract, noncompete agreement and confidentiality guarantee all wrapped up into one for employees who work with sensitive information.

Recent case: When Alexander Shukh went to work for Seagate Tech­­nology, he signed an employment agreement that spelled out his at-will employment status and made clear that any documents and other things like drawings, blueprints, sketches, customer lists and so on belonged to the company.

The contract also specified that at termination (no matter the reason), Shukh would return everything, would not retain copies and would sign a termination certificate certifying he had complied.

When Shukh was terminated, he copied nearly 50,000 documents having to do with patents he had worked on. Seagate demanded their return. When Shukh sued over his termination, Seagate countersued for the documents. The court said they had to be turned over because Shukh was legally bound by contract to do so.

The court also pointed out that, absent a contract, Minne­­sota em­­ployers don’t have a clear, automatic right to the return of copied documents. (Shukh v. Seagate Technology, No. 10-404, DC MN, 2011)

Final note: If confidentiality and trade secrets are a concern, talk with your attorney to see what you can do to protect your intellectual property. Some em­­ployers fear employment contracts because they believe they could compromise at-will status. That’s not true. An employment contract can preserve at-will status and still hold the employee to contract terms.

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