What is Your Duty to Provide Computer Files When You Resign from a Company

My question involves labor and employment law for the state of: California.

Hi Everyone,

I resigned (mutually negotiated) from a small accounting firm. She (my supervisor/owner) want's me to go as a contractor role, primarily to document and hand over
the task to another person whom she favors (contractor). My performance has been exceptional and she (owner) has stated to me and to a family member of my
contribution to her firm, however, California is a at-will state and an employer can terminate or force one to resign at any moment.

My supervisor (CPA owner) has been calling, messaging and emailing me with work related questions, even though, my last day of my employment was 30-days ago.
I do not mind answering and helping her out, however, since I stated to her via phone and email that I do not wish to continue employment (contractor role) with her firm, she
has gotten into defensive mode.

She is asking for my thumb drive (I purchased it to save work) and to not delete anything off my laptop. I have already deleted 3/4 of materials that were on the thumb
drive and everything on the thumb drive is either on the company server or on the cloud, except for my personal files. My laptop has tax software which she asked me to
delete yesterday, but states today to save everything in case I come back to her firm, which I have no intention of doing so.

She has requested that I mail her the thumb drive and save everything that's on my laptop.

Would I be liable if I do not mail the thumb drive to her?
And, would I be liable if I delete the tax software?

Thank you,
Brian.

Assuming you own both the thumb drive and the laptop and files are stored elsewhere that she has access to......

I would state to her exactly what is (still) on the thumb drive and where to find it on the business/work server/cloud. I would tell her I already deleted the duplicate files from the thumb drive and the tax software from the laptop. And all other work-related files. The fact that 30 days have gone by, this is stuff she should have gotten before your last day if it was an issue. In the end if you want to send the thumb drive, I would send it back empty.

What she "wants" doesn't matter. I would make it clear as crystal that you will not be returning. And that you will no longer be answering messages, calls or emails. You have no obligation to do so unless you signed some agreement when you first started.

Thank you for you fast reply HFM,

Yes, I have no intention of returning. Yes, I have the thumb drive and all information that's in there (3/4 of which I deleted) are in the cloud or the server of the e-commerce client, except my personal files. My laptop contains only the tax software that she initially stated to me to delete, but today for me to keep (maybe she wants that too). She wants me to mail the thumb drive to her. I signed the confidentiality
form 3 days after I resigned. Only reason why she wants me as a contract role is for me to document (e-commerce tasks) and finish and document what I started on the tax side of her business. I'm thankful for the opportunity she has given me, but the ordeal of working with her has been very stressful.

Hi hr for me,

Although, I am reluctant to assist her, I'm afraid that she will put a negative statement on my employment file. I got her to sign a reference letter that I wrote and she signed via Adobe E-signature (as she was leaving the country), but I'm concerned that the information that I attained from one of her client (e-commerce) is really bothering her. Any files from the e-commerce client was deleted a while back and anything that remains on my thumb drive or the laptop are tax clients.

If you have any client information or files, you must return them to her. Those are confidential, belong to the client and your former employer and your right to them terminated with your employment. It doesn't matter on what medium they are stored, you can no longer have them or access to them.

It is perfectly legal for an employer to require a former employee to return the employer's property upon or after resignation. While the thumb drive itself and your laptop may be your property, they both (by your own admission) contain files that are the property of your former employer. Even if the files are duplicates of ones already in your former employer's possession, the files on your thumb drive and in your laptop are still your former employer's property. As a result, you are legally obliged to return those files.

In addition, your former employer has the legal right to place negative statements in your file, as long as said statements are true. And please note that employers almost always ignore reference letters about prospective employees (in 30+ years in HR, I never bothered reading a single reference letter), they phone previous employers and get the information that way. So whatever your former employer said in the reference letter you wrote on her behalf is moot - prospective employers will base their hiring decisions on what she said to them in a phone call.

It is bad juju to use the same device to store personal files and files belonging to an employer for this very reason.

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Quoting asa_jim

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It is bad juju to use the same device to store personal files and files belonging to an employer for this very reason.

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While I do not agree with you or erelations, this employer is demanding the OP's personal property/hardware. I would never give an employer my personal property.

The OP has the property of the employer. IE the files. The only way the employer can confirm they have been removed from the OP's devices is to actually see the devices.

Hi asa_jim,

Only thing that was personal on the thumb drive was my business related documentation, such as time sheet, employment records such as W-4, I-9, reimbursements and other employment records. No personal that was beyond my employment with the employer was ever stored on the thumb drive. I have already fragmented and permanently deleted 3/4 of what's on the thumb drive. The remaining are tax records of few of the clients whose returns and representation have not been finalized.

Hi eerelations,

Do I ask for the expense of mailing the thumb drive? And, should I permanently delete whatever it is on it? As for reference letter, I have already found a great job in Dallas. Only thing that's stored on my laptop are the tax software with around 8 tax entities. I don't mind her sending me email with work related questions, however, she has been sending me messages via messenger app and asking to call her several time. I wish her and her company the best, as she did give me a tremendous opportunity and I have learned a lot during 10 month time with her firm.

You had no business taking client records out of the building on a personal thumbdrive.

Everything you've told asa_jim about what was and is on the thumb drive and your laptop is your former employer's property. I sure hope you can restore what you've deleted because if your former employer decides to sue you for it, your former employer will win. Even if your former employer doesn't sue you, your former employer can tell prospective employers (yes yes I know you have a new job now, but what happens when that job ends? you'll be looking for another job and relying again on references from this particular former employer) all about this property destruction with impunity.

If you permanently delete everything on the thumb drive you are destroying your former employer's property. And that's illegal. Period.

I am assuming that the thumb drive is your personal property. But what's on it is your former employer's property. So if the thumb drive is in fact your personal property, all you have to worry about is how to get what's on it to your former employer, not the thumb drive itself. And I'm sure you can figure out how to do this without incurring mailing costs. (Downloading + email immediately comes to mind, and I'm not even all that computer-savvy!) But remember, you have to restore what you've deleted and send that too, otherwise you're breaking the law.

Finally, the fact that you're objecting to how (i.e., via messenger) she's asking you questions will seem petty to prospective employers looking for a reference. Yes, again, I know you've found a new job but guess what? Lots of employers reference-check after the fact, and if what they learn isn't satisfactory, they fire the new employee. This happens all the time and is perfectly legal.

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Quoting PayrolGuy

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You had no business taking client records out of the building on a personal thumbdrive.

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Like button.

UNTEX1990 should also kneel and pray that none of those client's ever have their personal information compromised because I can guarantee that the blame is going to fall squarely on UNTEX1990.

Hi PayrolGuy,

The employer whom I worked for wanted me to continue on as a contractor and did not ask for anything back when I left and resigned. I even let them know that I had work related information stored on the thumb drive and the tax software with 8 or so client files. After I resigned, I signed the confidentiality letter that was requested. She stated before she left the country on December 20th that a contractor agreement will be provided after Christmas. After not hearing from her, I deleted everything last week, except for those clients who's project or tasks was not completed, in case she had questions.

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Quoting PayrolGuy

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UNTEX1990 should also kneel and pray that none of those client's ever have their personal information compromised because I can guarantee that the blame is going to fall squarely on UNTEX1990.

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Thank for your Equifax data breach analogy. Contrary to your thinking, every sensitive file is password protected and the thumb drive is encrypted with an algorithm beyond 256K.

Hey eerelations,

I have already told her on Monday that I have already deleted 3/4 of the materials on the thumb drive during a phone call. During the call she also asked about certain tax file and I told her I will look into it. Instead of opening the tax software the next day I emailed her for permission to open the software and to review its content. She replied back yesterday that "you can erase it." So this morning I asked her that I will delete the tax software and anything within that's client material. She called few hours later to not delete the client file on my laptop and to call her, which I will after I get off in 30 minutes.

It doesn't matter how long she waited before demanding that you return her property. It was her property, and you were legally obliged to return it to her upon termination, whether or not she demanded its return.

Everything you've deleted is her property, no matter how useless you think it is to her. Again, if she sues you for it, she will win. You better hope you can restore what you've deleted, because that's the only way you might prevail in court.

Finally (again), she is legally free to tell the whole world about your destruction of her files (and your reluctance to talk to her on Messenger) - even if nobody asks her.

Reluctance to talk to her? Where have I stated such? I've been communicating with her 3 to 4 times daily since she opened up communication this week.

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Quoting UNTEX1990

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Reluctance to talk to her? Where have I stated such? I've been communicating with her 3 to 4 times daily since she opened up communication this week.

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You have stated that you are reluctant to talk to her on Messenger.

The fact that you keep changing your various little stories tells me you already know what kind of deep legal and other doo-doo you're in, and that you're just looking for someone to confirm that you're legally OK. Given the information you've provided, I can't do that, so I'm out. Good luck to you - you've got a long, difficult (and possibly expensive!) road ahead.

No, I stated "I am reluctant to assist her," when responding to profile "hr for me" post. Please read carefully, as you may have an ultra miserable syndrome.

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Quoting UNTEX1990

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No, I stated "I am reluctant to assist her," when responding to profile "hr for me" post. Please read carefully, as you may have an ultra miserable syndrome.

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I'm telling you legal facts. Just 'cause you don't like those facts does not mean I am "ultra miserable." :rolleyes:

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Quoting UNTEX1990

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Hi PayrolGuy,

Thank for your Equifax data breach analogy. Contrary to your thinking, every sensitive file is password protected and the thumb drive is encrypted with an algorithm beyond 256K.

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It wasn't meant to be an analogy. And it matters not that the files were password protected. You have access to the data and you could be blamed for it making it into the wild or using it yourself.

Hi eerelations,

Again, I never stated I don't like your interpretation of employment law based on your credentials, but you can always state your case.

Hi PayrolGuy,

I understand that and thank you. I have communicated with her yesterday via phone and email, and all she wants is what's remaining on the thumb drive with client files on the tax software. However, she still doesn't want me to delete the tax software as she wants me to help or assist her with questions. I am willing to help her, however, she's asking me to fully create a new file for a client to amend a previous year's tax return based on information that was provided to the firm after I left. And, by reviewing client's email, it may take at least 6 hours and IRS power of attorney designation (meaning representation). Which I can only dedicate during weekends.

This really is very simple.

You do not have the right under the law to retain any files or equipment that belong to the company. If you have any equipment belonging to them, you must return it. If you have any files belong to them, you must return them or, if the copies you have are duplicates of those already on site, delete them. This should be obvious to anyone with a room temperature IQ.

On the flip side, the company does not have the right under the law to any of your personal information. If they have any such information, they must return it. If any of their information is on equipment that is owned by you, then after deleting and/or ensuring that all their information has been deleted, they must return such equipment to you.

I can't believe that you needed someone to tell you that.