First, a disclaimer. Let me assure you that the contributors to the Employment Discrimination Report run the full gamut of the political spectrum. This is not a post about politics, it just so happens that our demonstrative example comes from the presidential race.
It is not uncommon for employers and employees to execute Non-Disclosure Agreements (NDAs) to govern the employment relationship following its conclusion. To wit, one of the major presidential candidates made all campaign employees (and volunteers but that is a whole other can of worms) sign an NDA that governs all information of a “private, proprietary or confidential nature or that (the candidate) insists remain private or confidential.” The NDA in question further prohibits former employees from making negative comments regarding the candidate or family members…in perpetuity. It’s worth noting that the other major candidate also has asked campaign employees to execute an NDA, though the substance of it remains undisclosed.
When executing NDAs with employees, be it at the end of the employment relationship or as part of a restrictive covenant at some earlier point, it’s important to do keep the scope reasonable so as not to be judicially struck later. Here are some simple rules that were not followed above:
- Identify with specificity the information that must be kept private and confidential. Simply saying “confidential information” is a recipe for failure on this front, as the ambiguity as to what information is “confidential” will be read against the employer.
- Put a time frame on the responsibility. While it is not per se impossible to have an agreement enforced in perpetuity, the path of least resistance is put a time frame on the responsibility that bears some relationship to legitimate business necessity.
- Restrict Nondisparagement to Reasonable Topics. While nondisparagement clauses, the legal cousin of NDAs, are valid, they similarly need to be narrowed in scope to include only information for which there is a legitimate business purpose.
While keeping your corporate information in-house is a compelling aim, understand that there is no fool-proof way to keep information under wraps. But adhering to simple rules of the road will help make sure that What Happens At Work, Stays at Work.