Commencement of employment/on-boarding

The disrupted workplace and intellectual property

Australia Publication November 2020

Start how you intend to continue. That is the mantra for the on-boarding of new employees. Set up the relationship appropriately at the outset and demonstrate the culture of what is expected from the employee going forward. Therefore the first step is to consider the employment contracts and any related policies.

When a new employee is brought on-board, the business will establish as part of that relationship important legal obligations for the protection of the material/information in which intellectual property (IP) subsists – generally by way of written contractual obligations as to confidentiality, acknowledgements as to ownership of IP rights and assignments of rights. These obligations are most commonly set out in an employment contract and often a template is used without much thought as to the particular employee, workplace climate or current environment.

This is a mature field of legal technique and well drafted templates are plentiful, but problems still arise. Something to bear in mind is this: “fewer words, more meaning”.

Efforts should be made to describe with particularity, and with specificity relevant to the business, the types of documents/material that come within the confidentiality covenants. Remember that in the event of a breach you will want the Court to make an order (injunction). A Court is not going to express that order in terms of “confidential information about the [employer’s] business, affairs, financial dealings, clients, customers and agents” (to adopt one of the common formulae seen in contracts). It is simply too imprecise. You want to be able to draft the orders sought from the language of the obligations you are seeking to enforce. So what does your organisation need by way of covenants from this particular employee? What information will the employee have access to, what IP will they create and how do you ensure that the organisation’s valuable asset is protected for the duration of the employment and after it terminates?

Employees should be absolutely clear at the time that they sign the employment agreement what the expectation is of them in respect of an organisation’s confidential information and intellectual property. Vague or broad language only deflates that understanding. Clear, unambiguous, plain english and specificity of language will not only assist in a future legal dispute, but leave employees with no doubt as to the ground rules of the employment relationship.

It is also important to be aware that not every form of employment or cognate relationship automatically involves the employer automatically having rights to the IP in work produced by the individual. So having an assignment is good policy. But the assignment should be geared to the relationship, rather than being one of those vast provisions better suited to business-to-business dealings. Whilst the challenges of protecting confidential information and IP are not new, they are magnified in this unprecedented time of widespread working-from-home and geographically diverse workforces. Consider whether your policies account for the fact that employees are not only creating and accessing IP and confidential information in the workplace but outside of the workplace and on both company-owned and personal devices. We will discuss this further when we look at good IP practices on a day to day basis, but having the appropriate policies in place gives new employees the platform on which they start the employment relationship.

Commencement is also the point at which the employee is first “placed” within the culture of the business. First exposure to the lineaments of the culture comes from the content of company or HR policies. These tend to be a series of two-dimensional rules commanding obedience at the normative level. Emotional commitment or engagement comes later, but why wait? The process of induction or on-boarding provides the opportunity to get a head start. Use the time to hold sessions, perhaps featuring established employees from different levels, to talk about the expectations underlying the policy prescriptions and illustrate the importance of them by reference to the activities of the business. Equip employees with the insights that will hasten emotional commitment to the “way things are done here”. And above all, consider what you need to do differently when you are on-boarding remotely or with a dispersed workforce.

You need to ensure that your employees not only sign the contracts, but understand the organisation’s values and culture towards its confidential information and IP, that they commence employment knowing what behaviour is expected of them and how the organisation values and respects both its people and its IP.

In our next case study we will look at the elements of a good IP culture as it operates day to day.

Recent publications

Subscribe and stay up to date with the latest legal news, information and events...