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Non-competition, non-solicitation and confidentiality agreements

What you should know about confidentiality agreements and exceptions to their enforceability

Employers often ask employees to sign Confidentiality and Non-disclosure Agreements. If you signed such an agreement, you need to be careful that you don’t disclose confidential information when you leave that job.  Don’t share confidential information with a new employer for example.  These agreements include clauses that allow the former employer to seek injunctive relief and attorney’s fees from an employee who violates the agreement.

The Confidentiality and Non-disclosure Agreement restricts the employee from disclosing the company’s confidential or proprietary information either during or after their employment. The Agreement will typically define the term “confidential information.” Such information can include knowledge about the employer’s marketing, sales or pricing techniques, specifications or manufacturing techniques, source and operating codes, information about new product development, and information about the employer’s customers, clients, suppliers and vendors.

There are recognized exceptions to the definition of confidential information. They include: (1) information that is or becomes publicly available, (2) information that is already in the public domain prior to the time of disclosure, e.g., information on the company’s website or in other publications (2) information already in the possession of the employee, without confidentiality restrictions, (3) information obtained by the employee from a third party without a breach of confidentiality, (4) information that is widely available to the industry, and (5) information independently developed by the employee.

Pamela A. Smith
Law Office of Pamela A. Smith
233 Needham Street, Suite 540
Newton, MA 02464


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