When outsourcing is on the rise, employees are more mobile and organizations are devoting more resources to the management of their information and IT assets. Understanding the nature of the IT professional’s tool kit becomes more important. That kit includes information, skills and knowledge that can generally be taken from job to job by the IT professional.
Trade secrets such as a secret formula or customer lists are owned by the employer or client and may only be used with their consent. However, in most cases, general knowledge of computer programming, easily available in the public domain, may be used by all. As a result, it may become more difficult to identify what is or is not part of the tool kit when considering specific information, skills and knowledge learned as a result of the specific tasks undertaken.
Generally, in common law, employees owe a general duty of loyalty to their employers during the term of their employment. This general duty of loyalty includes an obligation to use the information obtained from the employer or during the period of employment, whether confidential or not, only in the best interests of the employer.
Upon conclusion of employment, the employee’s duty of loyalty to the employer narrows. Where the employee is not in a special relationship of trust or power within the organization, the employee’s obligation with respect to information is to keep confidential the information of the employer which by its nature and circumstances ought to be treated as confidential. Where the employee is in a special relationship of power or trust, they may have obligations beyond the requirement to keep certain information confidential, and may be precluded from using information, which may not be confidential, obtained during their employment, such as that relating to a corporate opportunity, other than in the best interests of their employer. Generally, these additional duties fade with the passage of time.
Where the IT professional is providing consulting services, the common law will impose similar duties. For example, a consultant, like an employee, will be expected to respect and keep confidential the information of the employer, which by its nature and circumstances ought to be treated as confidential.
As a result, determining what is in or is not in the IT professional’s tool kit will depend in part on the nature of the existing relationship between the IT professional and their client or employer at the relevant time.
Codes of ethics
Members of the Canadian Information Processing Society (CIPS) agree to a code of ethics that specifically addresses the IT professional’s obligations in respect to the information of its clients or employer. The CIPS Code of Ethics and Professional Conduct contains an obligation to “hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship” and further requires that CIPS members “should not divulge information unless the disclosure is expressly or implied to be authorized by the client or otherwise required by law.”
Such codes often establish the standard, and thus provide clarity, as to where the line between what is in and is not in the tool kit is drawn.
As intellectual property rights and information increasingly become an important aspect of competitive advantage, many organizations use contracts with their IT professionals to ensure that they clearly establish what rights exist in different kinds of information.
These contracts may define what is or is not part of the tool kit.
Accordingly, a careful review of those provisions addressing information and intellectual property rights in the applicable agreements is always important.
Rule of thumb
A rule of thumb may also be useful. Information that would be known by any other IT professional of similar experience, education and background who has not had access to the particular information of the employer or client will be within the IT professional’s tool kit and available for use with any other future client or employer. But information which would only be available as a result of the employment relationship or retainer with the client should be considered to be outside of the tool kit and not available for use with other employers or clients unless a careful review has been completed to determine otherwise.
Practically speaking, as one approaches each new employment or consulting relationship, whether due to an outsourcing transaction or a career move, it is important to focus on what will and will not form part of the tool kit both during and after the relationship. In case of doubt, conflict may be avoided by careful review of and a balanced approach to defining what will and will not form part of the tool kit; including, where practical, discussions between the organization and the IT professional.