How Can a Departing Employee Misappropriate Their Own Creative Outputs?

Partially due to the widespread use of employee confidentiality and invention assignment agreements, employers routinely take ownership of employee creative outputs and use trade secrets law to enforce those rights post-employment. This Article proposes that, with respect to employee creative outputs, the current status of trade secrets law is inconsistent with the modern workplace, including as significantly altered, maybe permanently, by the COVID-19 pandemic. Accordingly, the goal of this Article is to establish a mode of recognizing employee rights in their own creative outputs through a modification to the existing general skills and knowledge exclusion to explicitly recognize an employee’s own creative outputs as subject to the exclusion. The proposal, if adopted, would provide employees with increased autonomy over their own creative outputs and greater ability to chart their own careers in their chosen field without fear of trade secrets misappropriation claims from former employers.