Are you an employer in need of a lawyer to draft a non-disclosure agreement, confidentiality agreement, or negotiate the terms of an employment contract pending a new hire? Our employment law attorneys have experience both drafting and negotiating confidentiality agreements and NDAs for employees and employers. Were you handed a confidentiality agreement that you think is too restrictive, or need help deciphering the cryptic wording so you can protect your best interests as an employee? Look no further. With extensive experience both drafting non-disclosure agreements and representing workers to negotiate a better deal, we are among the best confidentiality agreement lawyers you can choose on both sides. We can spot contract vulnerability from a mile away, and use it to get what you need.

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Call Baron & Budd today to have an NDA or confidentiality agreement drafted, reviewed, or negotiated. Our employment contract division has extensive experience handling complex nondisclosure agreement litigation for employers and employees alike, and we’re ready to help you with restrictive covenants.

Why are non-disclosure agreements needed?

In today’s fast-paced business environment, with technological advancements building each other year over year, companies that don’t maintain a competitive technological edge may find themselves struggling just to maintain their former market share. Because of this immense pressure to innovate, invent, and pioneer, the inadvertent or deliberate disclosure of trade secrets can be devastating to a tech company. Leaks to competition and foreign manufacturers including design innovations, business practices, or even management tactics by a former employee could cost your company a great deal of money.

This has led many employers to put into place confidentiality agreements, non-disclosure agreements, or even non-compete agreements that an employee must sign before being hired. On the other hand, an employee may also have good reasons to sign a confidentiality or non-disclosure agreement as well.

I was offered a position but I have to sign a confidentiality agreement. Do I need a lawyer?

If you are asked to sign a non-disclosure agreement or confidentiality contract as the terms of your employment and you don’t understand even one sentence or clause, you should contact a lawyer for non-disclosure agreement review and negotiations. Sometimes the terms of a confidentiality agreement are too broad, or may make it impossible for you to obtain employment with another company in your field when you leave the company. A confidentiality agreement attorney at our firm can review your employment contract and NDA, explain all of the details to you, and after discussing your goals advise a plan of action to negotiate and change the terms.

There are tremendous differences between different types of trade secret-related agreements each requires specific provisions in the draft process to ensure an agreement will hold up in court.

What are the differences between non-compete agreements, non-disclosure agreements, and confidentiality agreements?

Employee confidentiality agreements can generally fall into one of three categories: non-compete agreements (NCAs), non-disclosure agreements (NDAs), and confidentiality agreements.

NCAs are designed to prevent an employee from accepting employment or contract work from a direct competitor of the present employer for a certain period of time after the employee has left. NCAs can also keep employees from “poaching” their own clients if they leave a consulting firm to break out on their own. The penalties for NCA violations are usually written into the agreement itself, but are generally limited to monetary damages.

NDAs generally deal with trade secrets or other information that the employee will learn during the term of his or her employment. For example, a specific manufacturing process used to save time or minimize waste could be knowledge protected by an NDA. An NDA will be written to cover any proprietary information and will place a penalty on the employee if he or she discloses this information to a new employer, the media, or even friends and family members.

Confidentiality agreements are less specialized than NDAs and may cover confidential information (other than trade secrets) learned during the course of employment. For example, a paralegal hired by a large law firm may need to sign a confidentiality agreement affirming that he or she will refrain from disclosing any information learned from or about clients.

What must a confidentiality agreement or NDA include to be enforceable?

Because confidentiality, non-compete, and trade secret laws can vary by state, the answer to this largely depends on the laws of the state in which the claim will be litigated.  Generally the trade secret laws of the state where one or both parties live or where the company is located will govern the enforceability.

For example, California law has all but rendered non-compete agreements unenforceable; an NCA executed in California will likely be struck down by the courts, while the exact same NCA in Texas or Louisiana could potentially be upheld.

Specificity is Crucial. However, in order for these agreements to be deemed enforceable in any state, they must contain a couple of key elements: specificity in the terms themselves and consideration on both sides of the transaction. Dates and terms of employment must be clear. Salary and all matters of compensation must be clearly stated and stipulations created forecasting unforeseen circumstances and variables. An agreement that is too-vaguely written can be difficult to enforce, as it won’t be clear that the employee was put on notice of the specific activities from which he or she is barred.

NDAs that are Too Broad. On the contrary, an overly broad agreement that seeks to restrict the employee’s behavior far beyond what should be covered by an NDA or NCA (for example, the difference between preventing an employee from using “trade secrets” versus “anything you learned at this employer”) will also be struck down. Any agreements that require the employee to take an illegal action or to refrain from reporting misconduct or illegal activity will also be facially unenforceable.

Consideration. Consideration in the transaction means that both parties are giving up something and getting something of value in return so that the agreement can go forth. The employer is usually deemed to be giving up his or her ability to perform actions that would be otherwise legal (e.g. disclosing trade secrets) in exchange for gainful employment. The employer is giving up the salary and benefits paid to the employee in exchange for the employee’s promise to keep the employer’s secrets safe.

Severability. A clause for severability means that even if one portion of the contract is deemed unenforceable, the others can still be enforced.

When should you seek legal advice before offering a NCA, NDA, or confidentiality agreement?

Although many employers utilize boilerplate confidentiality or non-compete agreements, having legal counsel review these agreements before presenting them for employee signature is never a bad idea. Learning that an agreement is unenforceable after an employee has already caused your company thousands in damages can be an enormous blow.

You’ll also want to ensure your agreement has a solid severability clause; this can uphold the remainder of the agreement even if one or more provisions is deemed in violation of state or federal employment laws.

When do you need an attorney to review a non-disclosure agreement for a new job before signing it?

Most companies require employees to sign some form of confidentiality or non compete agreement. It’s perfectly legal to request that new hires sign one, but the terms of the agreement should always be reviewed and/or negotiated. From the employee’s perspective, it can often be valuable to run an NCA, NDA, or confidentiality agreement by an attorney before signing. This will ensure that the agreement is fair on both sides of the transactions and that you’re fully aware of all your rights (and restrictions) under the agreement so that you won’t inadvertently violate it.

If a company wants to hire you, they see you as an asset to their team. With an experienced NDA agreement attorney on your side, you can negotiate the terms of the NDA to protect your best interests and prevent limiting future opportunities for growth.  Let us negotiate an employment agreement with a confidentiality case on your behalf; you deserve an agreement that’s fair for both your new employer AND you.

Sources

http://www.twc.state.tx.us/news/efte/conflicts_secrets_non_comp_agreements.html http://www.americanbar.org/content/dam/aba/administrative/labor_law/meetings/2008/ac2008/043.authcheckdam.pdf

Contact a Lawyer for Confidentiality Agreements Today

Contact Our Attorneys – 866-262-1553

Request Your Free Case Review

Call to schedule a consultation with an attorney at Baron & Budd that can review, negotiate, and draft confidentiality agreements for trade secret protection.  Unfair NDAs can limit future employment prospects, let our employment law team help review and negotiate your contract so you can lock down the career you want without unreasonable limitations.

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