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Madison Civil Litigation Blog

Looking at state, federal trade secret protection law, P.2

Last time, we looked very briefly at some aspects of Wisconsin’s trade secret law. As we noted, trade secret protection is available not only at the state level, but also through the federal courts. Last year, Congress passed the Defend Trade Secrets Act, which created a federal cause of action for the protection of trade secrets. Prior to that, the only way to pursue trade secret protection in federal court was to qualify under special jurisdictional rules.

Under the Federal Trade Secrets Act, there are many similarities to state trade secret protection laws, but there are some differences and new features as well. One of these is that the federal law does not make use of the inevitable disclosure doctrine, under which an employer is able to prevent a former employee from working in a job in which he or she could make use of trade secrets without any evidence of threatened misappropriation. This means it may be harder under federal law for employers to forestall the spread of stolen trade secrets. 

Looking at state, federal trade secret protection law

For businesses, protecting valuable business information is important in order to ensure competitors are not allowed to unjustly benefit from the business’ innovation and hard work. There are a variety of tools businesses can use to protect valuable information from competitors. Some of these protections are more formal, such as restrictive covenants and intellectual property protections like patents. Some of the available protections are less formal, like trade secrets.

A trade secret is any valuable information a business attempts to keep hidden from public view in order to benefit from that information. Trade secrets are informal in that there is no formal process required to create them; they are created by virtue of being valuable to the business and by the business’ efforts to keep them private. 

When can I file a private discrimination lawsuit against an employer?

Workplace discrimination is usually a distressing occurrence for those exposed to it, particularly if the discrimination is followed up by retaliation against those who speak out or take action to stop it. One of the big questions these employees have is: how can I hold my employer accountable for allowing discrimination to occur?

Strong protections against illegal discrimination exist under both federal and state law, but many people aren’t exactly aware of what rights they have in terms of taking action against an employer when discrimination occurs. One important point to understand is that an employee’s ability to sue an employer for discrimination is limited, at least initially. 

Negotiating severance agreements: work with experienced legal advocate

In our previous post, we looked briefly at the importance of carefully approaching the negotiation of executive compensation. For employees, this is important to ensure fair compensation and appropriate job security, while for business, there is both the need to attract and retain high quality employees, and the need to balance financial limitations and manage risks.

The flip side of negotiating executive compensation is negotiating severance agreements. As with compensation agreements, employers and employees have their own set of concerns, and it is important for both to work with an experienced attorney to ensure their interests are represented in the final agreement. 

Work with experienced advocate when negotiating executive compensation

Fair compensation is a high priority for anybody, in any profession. It is especially important for those employed in executive positions that require a high-level of expertise, time commitment, and personal responsibility. Those who are in a spot that allows them to consider employment offers for such positions understand the importance of negotiation, but may not know how to best approach to negotiating their own compensation agreements.

When it comes to compensation, salary is certainly an important piece of the picture, but it is only one piece. Those considering executive level positions should know, first of all, their current compensation situation, not only with respect to their base salary, but also with respect to bonuses, stock options, and any other benefits they are receiving. Understanding and clearly presenting these benefits is important to be able to compare and negotiate compensation for the desired position. 

Did your employee violate a work contract on social media?

Social media has revolutionized how people communicate. In some cases, it can help those who live far apart to remain in close contact. In other cases, it can allow one person to sully the reputation and brand of a business or organization with just a few poorly considered comments.

Social media can be beneficial to employers. You can sometimes discover if a workers' compensation claim is false or if an employee is violating your ethics policy. However, it can also cause issues, as employees can slander your company, or worse, say terrible things online while listing you as an employer.

Consult an experienced attorney to develop effective internal complaint process

Last time, we began looking at recent court decision by the 9th Circuit Court of Appeals dealing with an issue that is currently the subject of a split among federal courts: whether employees who report suspected violations of the Dodd-Frank Act are covered by that law’s whistleblower protections. As we noted, the court broadened the law’s whistleblower protections to include internal whistle-blowing.

The Dodd-Frank Act defines the term whistleblower as an employee who reports securities violations to the government, and notes three categories of protected activities. One of the protected activities is disclosing violations of the Sarbanes-Oxley Act, which provides whistleblower protections to both external and internal disclosures. The 9th Circuit Court of Appeals, therefore, ruled that the Dodd-Frank protects not just external whistleblowers, those who report directly to the government, but also internal whistleblowers, those who report a violation through their employer’s internal complaint process. 

Division among courts deepens over whistleblower protection for internal complaints under Dodd-Frank

We’ve been looking in recent posts at the topic of whistleblower protections, and the issue of protected activity. As we’ve noted, exactly what activity is protected depends on the specific law under which the violations are reported, and the jurisdiction in which whistleblower protection is sought.

A good example of this is the current split between the courts on the issue of whether internal whistle-blowing is protected under the Dodd-Frank Act. As some readers may know, the Dodd-Frank Act was passed in the wake of the 2008 financial crisis with the aims of protecting consumers from abusive lending practices and ensuring increased transparency and accountability of lending institutions. 

Experienced legal counsel essential to address violations of law, as employer or whistleblower, P.2

In our last post, we began discussing the topic of whistleblower protections. As we noted, these protections vary by statute and the scope of activity protected can vary somewhat depending on the jurisdiction.

When an employer retaliates against an employee for engaging in protected activity, one important issue that can arise is whether the activity in which the employee engaged was actually protected under the statute, and if so, under what conditions. This requires a clarification not only of the proper interpretation of the law, but also clear presentation of the facts of the case.  

Experienced legal counsel essential to address violations of law, as employer or whistleblower, P.1

Whistleblower protections are one of the ways government helps ensure businesses comply with state and federal laws and regulations. The protections available depend on the statute, but a general feature is that employees have protection from employer retaliation for reporting violations.

A recent example of retaliation here in Wisconsin is the case of a structural engineer who recently filed a lawsuit accusing a Wausau window manufacturer of retaliating against him for reporting violations of federal law. In his lawsuit, the engineer says he raised a concern with management that the company, and other related businesses, were failing to meet established requirements regarding window frames and bolts.