EMPLOYEES REVENGE? CHECK THAT LAPTOP

From The National Law Journal

reprinted as fair use

Laying Someone Off? Better Check That Laptop

by Tresa Baldas

The company-issued laptop has ignited yet more workplace litigation as a growing number of exiting employees are being sued for swiping or wiping data from their portable computers.

Employment attorneys say that, as layoffs continue to hit the work force, employee laptops are being turned back in with evidence of foul play. According to a recent study by the Ponemon Institute, a Tucson, Ariz.-based research group, nearly 60 percent of employees being laid off or fired, or who quit, admit to stealing company data.

And it's not just rank-and-file employees who are doing it, lawyers note, but executives as well.

In Liska v. Motorola Inc., an Illinois state court case, Motorola Inc. is accusing its former chief financial officer, Paul Liska, of erasing evidence from a work laptop computer after he was let go from his job. Liska is suing the company for alleged retaliation over his firing earlier this year. Motorola is asking a judge to order Liska to reveal what computer evidence he has, with whom he shared it and what he allegedly destroyed.

In Microsoft Corp. v. Mullor, a Washing­ton state court case, Microsoft Corp. is suing a former employee for allegedly stealing trade secrets from a company laptop to help him pursue a patent infringement case against the company. Microsoft alleges the employee downloaded files but used a file-wiping program to cover his tracks.

In Lasco Foods Inc. v. Hall, a federal case in the Eastern District of Missouri, Lasco Foods is suing two regional sales managers, alleging that they refused to return their laptops after leaving their jobs to start their own company and deleted proprietary information from them before turning them in months later.

Anthony Oncidi, a partner in the Los Angeles office of New York-based Proskauer Rose, said he is seeing laptop abuse "with astounding frequency."

"Employees are engaging in self-help by taking documents and data with them on the way out the door," said Oncidi, who believes that the economy is producing more spiteful employees. "The spite-case situation is more common now. They've got something on the employer and take it on their way out to bolster their planned lawsuit."

Oncidi, who handles roughly 10 laptop abuse cases a year on behalf of employers, said employers have the upper hand in these cases. Although an employee may try to use confidential data to prove a wrongful discrimination suit, he said, the employers' subsequent computer fraud and abuse claims are likely to be superior. "You can request documents and you can request data, but you can't, on your way out, just go pilfering documents from your employer," Oncidi said.

But in the heat of the moment, many employees don't realize they're doing something wrong when they take computer data, said Evan Moses, a partner in the Los Angeles office of Chicago's Winston & Strawn. "Particularly in this economy, the temptation is always significant to walk away with electronic information because it's valuable and easy to take. It's a crime of impulse, usually, where employees don't even realize what they're doing," Moses said. "Now that the economy is bad, the temptation is just that much greater."

Moses, who is currently handling a lawsuit alleging laptop abuse by an employee, said it's the tinier gadgets, such as flash drives and iPhones, that have employers especially worried about data leaving with departing employees. "It's that much easier to plug a half-inch device into a laptop and download everything you need," said Moses, who recommends that his employer clients conduct periodic audits of laptops.

David Walton, a partner at Philadelphia's Cozen O'Connor, said laptops are especially vulnerable when employees leave for a competitor. "Most employees cheat when they go from one competitor to another. Anytime you have greater mobility, in good times or bad times, there's greater theft of information on laptops," Walton said. "The vast majority of cases I've been involved in where an employee had a laptop, there was evidence of some wrongful conduct."

Employee-rights attorney Robin Bond, meanwhile, is urging employees to resist using the work laptop for personal use. "Fight that urge to commingle personal information on work PCs -- don't put anything on work equipment or e-mail that you don't want your boss to read," said Bond, a former Philadelphia prosecutor who now has her own employment law firm,

But employers must also take steps to protect laptops from misuse and warn employees up-front about what is and isn't acceptable, Bond said. "When an employee boots up and signs on, a warning screen should pop up that tells the employee that whatever they type on the PC belongs to the employer and that there is no right to privacy," Bond said. "The warning should also advise employees that, yes, Big Brother is watching."