Measures to Reduce Risk upon Separation

March 9, 2021

By: Colin A. Walker

It is important for employers to take precautions to ensure that departing C-Level executives do not engage in misconduct which could harm the business. Companies should immediately shut off access to computers, databases, email, and other systems. Some companies assign HR, security, or other personnel to watch the departing executive pack up personal affects, without misappropriating company property, and then escorting the executive out of the office. This may be embarrassing to the executive or the company, but, in an acrimonious separation, it may be prudent, particularly if there is reason to believe that the employee has engaged in misconduct.  

Where stakes are high or misconduct is suspected, the company should consider retaining a forensic computer consultant to make sure that the executive’s access to company systems has been terminated and to investigate the executive’s activities in the days leading up to the separation. Skilled professionals may find evidence of misconduct, such as emailing trade secrets to a personal email account, excessive use of flash drives or similar media, unusual printing activity, or other events in close proximity to the separation that may suggest misappropriation. This could allow the company to take evasive measures to avoid or reduce harm from misconduct or gather evidence for litigation against the departing executive.

Forensic computer professionals can also be helpful in amicable separations. In cases where the executive may have legitimately accumulated company information at home or on personal devices, perhaps while on vacation or sick leave, a computer professional can ensure that the information is permanently deleted from the executive’s devices. Typically, the professional will, with the consent of the executive and the company, review the device, locate the information, and either return it to the company or permanently delete it using special software called “wiping” software.  

When the relationship between a C-Level executive and an employer ends, the issues are often more complicated that most separations. Both parties should carefully consider the issues surrounding the separation and take appropriate measures to avoid disputes or prepare for litigation if disputes cannot be avoided. The next post will address a separation from the perspective of a C-Level executive.