Pub. 6 2011-2012 Issue 2

July/August 2011 15 Extraordinary Service for Extraordinary Members. agreement to protect your company’s proprietary rights. For all employees, it can address basic duties of loyalty such as not competing with you during employment and protecting confidential information (including but not limited to statutory trade secrets). For some employees (such as executives, managers, and sales people), thismay include a post-employment nonsolicitation agreement which meets the require- ments of Nebraska law. You will want to address with legal counsel the issue of consideration (what is the employee getting in return for the agreement, to sup- port its validity) and how to tailor the agreement for different groups of employees. » Train your management teamon their fiduciary duties to the organization—this may head off some innocent wrongful conduct if and when one of them is tempted by an offer from a competitor. • Employee Separation » Develop standard letters to remind departing employ- ees not to use or disclose confidential information, and to honor any agreement the employee signed. » Be proactive inmanaging an employee’s access to your computer systems and other resources once you know the employee is leaving. » Resist the temptation to withhold final pay or benefits froma departing employee; the law generally punishes this behavior and this is rarely a winning tactic. How- ever, if for any reason there are discretionary benefits or severance pay under consideration, be sure to dis- cuss those with legal counsel before making payment. The best way for any employer to win the war for talent, maximize employee loyalty, andminimize losses arising from employee movement is to create a workplace culture that attracts and retains the best and brightest, and that models and rewards ethical and legal business conduct. But even the best employees in the best workplaces will benefit from clearly defined expectations and good training. 2 Z (ENDNOTES) 1 In essence, this is information that derives independent economic value, actual or potential, from not being known to, and not being ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. 2 Please note that this article is intended to address general employment issues and banks should be aware that other issues relating to or arising from employment with a bank or the bank’s confidential information may be covered by state and federal banking law and regulations by such bank’s primary regulator. In particular, federal banking statutes may affect the general enforceability of employee agreements under certain conditions. Banks are cautioned to consult with their legal advisors prior to terminating any employee with a non-compete agreement in place. For more information, contact Jon Breuning at Husch Blackwell LLP at (402) 964-5050 or jon.breuning@ huschblackwell.com. Breuning has more than 30 years of experience representing public and private businesses.