casemark/employee-confidentiality-agreement

Employee Confidentiality and Security Agreement

Drafts an enforceable confidentiality and security agreement protecting company trade secrets and digital assets while satisfying employment, trade secret, and data protection law.

Prerequisites

Gather before drafting:

1. Governing jurisdiction — state law drives enforceability, cure periods, blue-pencil doctrine
2. Employee role and access level — determines CI scope and post-employment restrictions
3. Existing policies — handbooks, IT security policies, prior agreements to incorporate or supersede
4. Regulated industry flags — HIPAA, GLBA, ITAR, or other sector-specific overlays
5. Consideration context — new hire (employment = consideration) vs. existing employee (additional consideration required in some states)

Agreement Structure

1. Definitions

Confidential Information (CI) — all non-public information in any medium, whether marked or not:

| Category | Examples | |---|---| | Technical/IP | Trade secrets, source code, algorithms, R&D, manufacturing processes | | Business strategy | Business plans, pricing, margins, financial projections, M&A targets | | Customer/relationship | Customer lists, contract terms, supplier relationships | | Financial/operational | Budgets, revenue, compensation structures, performance metrics | | Derivative works | Analyses, compilations, summaries employee prepares using CI |

Exceptions (employee bears burden of proof by clear and convincing evidence):

• Public domain through no employee breach
• In employee's possession pre-disclosure (written evidence required)
• Received from unrestricted third party
• Independently developed without reference to CI (contemporaneous documentation required)

Exceptions apply to specific qualifying information only — not combinations incorporating CI.

2. Confidentiality Obligations

• Non-disclosure: No disclosure without written authorization; applies during and post-employment
• Survival: Trade secrets → indefinite (UTSA/DTSA); other CI → [3–5 years] post-termination
• Limited use: CI solely for assigned duties; no personal or third-party benefit
• Standard of care: At least reasonable care; never less than employee's own confidential information
• Need-to-know: Access limited to those bound by equivalent obligations
• Secure storage: Encryption for electronic CI; locked storage for physical; secure disposal
• Prompt notification: Report unauthorized disclosure or suspected compromise immediately

Compelled disclosure: Notify Legal immediately upon subpoena/court order; cooperate with protective order efforts; disclose only what counsel advises is legally required.

DTSA Whistleblower Notice (18 U.S.C. § 1833(b) — required):

No criminal or civil liability under Federal or State trade secret law for disclosure made in confidence to a government official or attorney solely to report/investigate a suspected legal violation, or in a sealed court filing.

NLRA Carveout: Agreement does not prohibit discussing wages, hours, or working conditions or engaging in other NLRA-protected concerted activity.

3. Security Responsibilities

Access controls: Unique strong passwords (12+ chars, mixed), MFA where available, no sharing/reuse, lock unattended workstations, change on suspected compromise.

Acceptable use: Business purposes; limited personal use permitted if non-interfering. Prohibited: unauthorized software, circumventing security, unauthorized devices, malicious code, pirated content.

BYOD/Remote: Company-approved MDM required; remote wipe consent for company data; approved VPN only.

Monitoring: Employee has no expectation of privacy on company systems; company may monitor without notice.

Incident reporting: Report breaches, unauthorized access, malware, phishing, lost devices, or unusual behavior to IT Security within [2–4] hours. Preserve evidence; cooperate fully. Non-retaliation for good-faith reporting.

4. Termination Obligations

Return of property: All company equipment, physical/electronic CI, copies on personal devices/cloud. Written certification of return/deletion before final compensation release.

Company rights: Remote wipe of MDM-enrolled devices; inspect company-issued devices; failure to return = conversion.

Post-employment restrictions:

• Ongoing CI obligations per §2
• Employee non-solicitation: [12–24 months] — no recruiting company employees
• Customer non-solicitation: [12–24 months] — no soliciting customers with material contact during final [12–24 months]
• Limited to active solicitation; does not prohibit competitor employment or responding to unsolicited inquiries

New employer notice: Employee must inform prospective employer of confidentiality obligations and notify company of new employment.

5. Legal Framework

| Provision | Standard | |---|---| | Governing law | Laws of [State]; exclusive jurisdiction in [County, State] | | Equitable relief | Irreparable harm presumed; injunction without bond | | Attorneys' fees | Prevailing party recovers fees, costs, investigation expenses | | Severability | Blue-pencil authorized; invalid provisions reformed to minimum extent | | Integration | Supersedes prior agreements; amendments require written officer signature | | Assignment | Company may assign to successor; employee may not | | E-signatures | Electronic signatures have same force as originals |

6. Employee Acknowledgments

Employee expressly acknowledges:

• Read and understood agreement; opportunity to consult counsel
• Voluntary execution; no duress
• Will access CI that company could not share without these protections
• Restrictions reasonable in scope, duration, geography
• Violations may result in termination, civil liability, injunctive relief, criminal prosecution
• DTSA whistleblower rights and NLRA protections not waived
• Adequate consideration received (specify if post-hire)
• Received executed copy

7. Signature Block

EMPLOYEE                          COMPANY
Signature: ___________________    By: ___________________
Print Name: __________________    Name: _________________
Date: ________________________    Title: ________________
                                  Date: _________________

Pitfalls and Checks

• Jurisdiction-first: Verify state enforceability of non-solicitation; CA, ND, MN broadly restrict; others apply reasonableness tests
• Consideration: Existing employees may require additional consideration beyond continued employment
• Duration tiers: Indefinite for statutory trade secrets; fixed term for other CI — draft explicitly
• DTSA notice: Required for exemplary damages and attorney fees under 18 U.S.C. § 1836
• NLRA compliance: Overly broad CI definitions can violate NLRA; carve out wage/working condition discussions
• Sector overlays: HIPAA, GLBA, ITAR — add exhibits if employee accesses regulated data
• FTC Non-Compete Rule: Monitor enforceability developments for related restrictive covenants