More and more employees are being given access to either desktop or laptop computers for business use. As that trend continues, the improper use of computers and the improper taking of company information presents a growing problem. The problems range from netsurfing as a waste of time, viewing of pornographic materials creating the potential of sex harassment claims and introduction of viruses or the deletion of files by disgruntled employees, to the taking of confidential company information by employees preparing to defect to a competitor. In all of these situations, the employer’s computer is being used by the employee to further his or her own interests against the interests of his or her employer, or even to perpetrate a fraud.

A business owner does have legal remedies available to deal with misconduct of this nature, above and beyond merely the discharge of the employee. The employee or ex-employee can be sued in federal or local court for a protective injunction and for damages caused by the activity, and might even be charged with a criminal offense. In some cases, a competitor who benefits from the misconduct can also be forced to pay damages.

It is essential, however, that the evidence of the misconduct be preserved. The very nature of personal computers puts the continuing existence of the necessary evidence at risk. Using a computer to transfer information from a network to a floppy disk or an email message creates a history within the computer’s electronics. Sending commands or messages from a computer also creates an internal history. This history, however, is transient and may, over a relatively brief time, become obliterated and unreadable. It is for this reason that in all such situations, it is utterly critical that the employee’s computer (whether desktop or laptop) temporarily be taken out of service as soon as the very first suspicion arises, in order to facilitate a forensic examination of that computer by an expert.

Acting quickly to preserve and examine the computer evidence is the key to protecting your business interests. If a former employee’s computer is used for a week or two before the decision is made to have the computer examined, invaluable information may be irretrievably lost. Any subsequent use at all may create evidentiary problems.

Computer experts with whom Taft attorneys have worked can quickly make a permanent copy of the computer’s activity history for a relatively modest cost. This can even be done overnight, if the situation is such that doing it without the employee’s knowledge appears to be the best strategy. Delaying a decision while the computer remains in use by the employee or by the employee’s successor may erase critical information.

Statutes such as the federal Computer Fraud And Abuse Act or the pertinent state Trade Secrets Act will provide an aggrieved employer access to a court of law to seek redress; but access may be of little use unless the necessary evidence has been preserved. You should consider calling your labor and employment attorney for a discussion of this important topic.