Plenty of newspapers have covered The Great Resignation ad nauseum but it is worth examining (selfishly) through a different lens. In early November 2021 (little more than a month prior to this writing), The Guardian wrote a piece referencing ‘The Great Resignation’ here in the U.K. At the surface this was / is associated with high levels of vacancies, combined with burnout caused by pandemic style working (read: you’re never off when you’re at home). With so many workers considering a different kind of on-the-clock arrangement as regards expectations, compensation, etc., this period may well have put employees in a position of leverage. This is definitely a topic best discussed with your internal or external Employment Counsel and not a forensic technologist!

Information Governance, IP, Violations of Restrictions and Theft

The impending resignation dynamic may not present any unique elements from an electronic investigation or eDiscovery perspective, however; the sheer volume of departures and issues derived thereof could be overwhelming regarding data forensics.

Theft of Intellectual Property or Trade Secret Data

I cannot speak to how pervasive this is market-wide, but as a forensic examiner and consultant, I can say that it happens quite a lot. This is certainly a conversation for your internal HR and Legal teams as well as outside counsel but sticking to the basics here: employees are often courted to work for a competing business in the same market space, and in doing so, may bring across sensitive commercial information from their previous employer for a variety of reasons. Whilst it is pure speculation, employees in this new work-life resignation dynamic may feel a sense of ultimate ownership or even entitlement to such information, contrary to what their employment agreements and obligations dictate.

Potential Violations of Restrictions

Information such as sales figures, client and relationship lists with important and sensitive commercial data, RFP packs, engineering schematics, source code, etc., can all fly out the door electronically – and quite easily. With the nebulous state of cloud connectivity and ease-of-use platforms like DropBox, GoogleDrive, OneDrive, Box and others, these data can even inadvertently sync to employees’ personal devices as a result of normal day-to-day work. These data may also be a potential risk to the organisation, which may be knowingly or unknowingly receiving this as a result of the inbound employee’s actions.

Equally, employees may be engaged in bringing along other team members from their prior organisation to their new employer. Communications related to these moves can be identified in the usual channels:  WhatsApp, Viber, SMS, email and even semi-structured data environments like SLACK, MS Teams, or even novel platforms.

How to Stem the Bleeding

It is important not to have the dreaded ‘tunnel vision’ when suspected wrongdoing shows its face. If there is one solid takeaway and word of advice, it is to preserve the potential data/evidence as early as possible. A theft may have already occurred, or staff or clients may have been poached and solicited in contravention of restrictions, but data required to analyse these allegations are often extremely volatile and should be encased by an Information Security team or Data Forensic Consultants. This stage is often cost-friendly and relatively quick, all the meanwhile ensuring the integrity of potential evidence should you need to later rely on it in litigation.

A Look Ahead to 2022

The Great Resignation will not be the only cage rattler of 2022. The end of the Job Support Scheme (AKA JSS, AKA Furlough) has meant some firms are still in the position to make difficult decisions as regards employee retention commencing Q1. Redundancies are likely to cause angst and some of the same considerations around theft and poaching may well be present in these emotionally charged settings as well.

A Note on Furlough Fraud

Whilst less about individual employees and their relationship with employers, the issue of furlough fraud is worth noting in looking ahead to 2022. The HMRC have already increased their investigations teams by hiring nearly 1,000 people. If it isn’t already obvious, the intent is to reclaim monies dispensed during the support scheme period, most notably April 2020 – Autumn of 2021. One manner in which Her Majesty’s Revenue may consider is to interrogate the data and information of employers that availed themselves of the Job Support Scheme but did knowingly ask or require employees to work during that period. This is a complex issue, and whilst no legal advice is given here, this scenario is potential fraud that the authorities will want to investigate further.

Employee Risk Assessment Checklist

This is a free PDF resource and helps counsel and employers when employment-related data issues arise.  Tunnel vision can often narrow one’s perspective. Please use this in your planning and evidence considerations, and trust that the Consultants at iDS are here to assist, should you require.

iDiscovery Solutions is a strategic consulting, technology, and expert services firm – providing customized eDiscovery solutions from digital forensics to expert testimony for law firms and corporations across the United States and Europe.