In the Know

Confidentiality, Non-Disclosure and Non-Disparagement Provisions in Employment Agreements
Drafting Enforceable Provisions to Protect Proprietary Information and Corporate Reputation
Speaking Engagements
August 22, 2013
Internet
Employers often require workers to sign employment agreements that contain confidentiality, non-disclosure and non-disparagement provisions to protect private information and business reputation. The pervasive use of social media by employees raises questions about the information that can be disclosed or barred.

Recently, the NLRB and EEOC challenged the legality of non-disparagement clauses. The NLRB's Quicken Loans Inc. decision held that the provisions interfere with employees' Section 7 rights under the NLRA. The EEOC alleged that the clauses prevent workers from cooperating in government investigations.

Employment counsel drafting agreements containing confidentiality, non-disclosure and non-disparagement provisions, including severance contracts, must avoid overbroad language. The agreements should not prohibit discussions of wages or benefits or discourage concerted activity or cooperation in investigations.

Listen as our panel of employment attorneys discusses best practices for drafting clear and enforceable confidentiality, non-disclosure and non-disparagement agreements that protect proprietary information and company reputation and are likely to withstand employee challenges.

Outline
  • Recent regulatory trends
     - NLRB rulings
     - EEOC enforcement
  • Best practices for drafting confidentiality, non-disclosure and non-disparagement provisions
    - Avoid broad language; be specific
    - Do not prohibit discussion of wages, benefits or terms and conditions of employment absent a solid business justification
     - Avoid discouraging concerted activity
    - Avoid prohibiting cooperation in government investigations
    - Social media considerations

 Benefits

The panel will review these and other key questions:

  • How are the NLRB's Quicken Loans Inc. decision and the EEOC's recent challenge to non-disparagement agreements impacting the drafting of non-disparagement and confidentiality provisions?
  • What can an employee or former employee post on his/her LinkedIn page, Facebook status, or Twitter feed about his or her reasons for leaving a company without violating a confidentiality, non-disclosure or non-disparagement agreement?
  • What are some best practices for employment attorneys drafting confidentiality, non-disclosure or non-disparagement agreements to increase the likelihood that the agreements will withstand heightened NLRB and EEOC scrutiny? 

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