Companies negotiating with workers often rely on restrictive covenants. They negotiate terms when initially hiring a worker to prevent them from damaging the business while working there or after leaving their position. Restrictive covenants are also common inclusions in contracts signed during termination proceedings, especially if the employee receives a severance package.
Non-disclosure agreements (NDAs), sometimes called non-disparagement clauses or confidentiality agreements, help protect private company information. Generally speaking, employees have an obligation to uphold the terms of NDAs after leaving positions. However, there are three distinct scenarios in which employees can disclose information protected by an NDA without putting themselves at risk of litigation.
1. Sexual harassment and other employment rights violations
Frequently, companies try to limit publicity related to their bad behavior. If a worker decides to leave the business because they have experienced sexual harassment or other violations of their rights, the company may ask them to sign an NDA as they exit the organization. While a worker may have no choice but to sign if they hope to secure severance pay or a reference for their next position, they do not have to uphold that agreement later. They have the right to discuss workplace misconduct, including sexual harassment.
2. Whistleblowing scenarios
Whistleblowers often make use of their legal protections by retaining their jobs. They shouldn’t have to worry about demotions or terminations because they report company misconduct to regulatory agencies. Workers taking action after leaving their positions also have protection from adverse actions by their employers. They should not face litigation attempting to enforce an NDA when their disclosures relate to whistleblowing activities.
3. Overreaches
Like any other restrictive covenant, an NDA must include very specific language. It should not unnecessarily infringe on the economic activities of the employee or impose an unfair burden on them. For example, an NDA should not include clauses that prevent a worker from taking a job with a competitor out of fear that they might disclose non-public information once they accept that employment opportunity.
Employees feeling concerned about the possibility of violating the terms of an NDA may need help evaluating their contract and their situation, and that’s okay. Understanding that NDAs are not always as ironclad as companies may claim could help workers assert their rights and fight back against unfair enforcement.