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How NDAs Actually Help Employers Protect Data

June 5, 2022

On May 2, 2022, the Supreme Court’s draft opinion to overturn the 1973  Roe v Wade decision and return the power to determine abortion laws to US states made its way to the public domain in a leak that sparked a widespread uproar. While most outcry surrounding the opinion draft related to its impact on women’s rights, the leak brought another significant issue into the limelight: non-disclosure agreements (NDA) and related policies. Before the leak, the US public had never had access to a draft decision on a pending case in the modern history of the SCOTUS. The released draft poses a question to corporate organizations across the US: how can they protect confidential information to prevent unauthorized disclosure? The protection of such intellectual property, data and trade secrets becomes even more crucial in the digital age, where companies store sensitive data in an online company database that is subject to cyber-attacks. 

This article will discuss non-disclosure agreements (NDA) and other measures employers can take to protect information at work. 

What Are Non-disclosure Agreements?

Among businesses across the globe, confidentiality is non-negotiable. Employers share trade and professional information with employees with the assurance that these details will not go beyond the office . Non-disclosure agreements are one of the ways employers guarantee that assurance. A non-disclosure agreement is a binding legal contract that seeks to maintain the confidentiality of information. As a legal contract, an NDA ensures that one or both parties named in the agreement do not share specific information with a third party at all or without prior express written approval. 

Companies typically use NDAs to restrict employees from divulging trade secrets or intellectual property to competitors. However, contracting parties can also use an NDA to protect general privately-held company-related information. Typically, alongside the confidential information, NDAs also contain sanctions for breaching the contract, such as financial compensation and injunctions. 

What Are the Different Types of NDAs? 

There are three types of non-disclosure agreements. Here’s a quick breakdown of each of them: 

1. Unilateral NDAs

These types of NDAs involve one party disclosing confidential information to another and requesting its secrecy. Typically, businesses use unilateral NDAs to protect trade secrets and competitive data. In the employment context, all NDAs are unilateral.

2. Bilateral NDAs 

These NDAs involve two parties revealing sensitive information and signing an NDA to ensure neither individual divulges the sensitive details to a third party. Bilateral NDAs are a common theme in mergers and acquisitions. 

3. Multilateral NDAs 

These contracting confidentiality agreements involve three or more parties, with at least one of the individuals disclosing private information to the others. 

What Does an NDA Contain?

There are some vital provisions that contracting parties must include in an NDA. Some of them are:

  • Identities of the parties involved in the contract 
  • Broad definitions of the confidential information
  • The scope of the contract
  • The timeline of the agreement
  • Exclusions to the contract 
  • Sanctions for breaching the NDA
  • Related clauses, such as a non-compete, non-solicitation of employees, and non-circumvention clauses 
  • Termination of the contract

Typically, only the contract’s provider(s) can terminate an NDA. However, the contracting parties can also terminate the NDA by mutual consent or if the contract has exceeded its timeline. Also, while outlining the scope of an NDA, businesses should narrow the contract agreement to protect genuinely confidential information, as NDAs could be unenforceable if they are too broad. Furthermore, there are federal and state employment laws that determine the clauses that employers cannot include in an NDA. Corporate institutions should hire attorneys to help draft NDAs to ensure they meet state and federal regulations. 

Other Measures That Can Help Businesses Protect Workplace Confidentiality

Aside from NDAs, there are several other ways employees can ensure the protection of proprietary secrets. Here are two of the most common: 

  • Confidentiality Training and Policies 

Confidentiality training should become a part of the integration processes for new employees across businesses. HR departments should train newly-recruited employees on handling and disposing of sensitive information, company policies on sharing confidential data, and the consequences of violating these regulations. 

With social media becoming a crucial part of communication for us today, the use of the internet and other communication media in sharing private corporate information should also be a part of the details covered in the confidentiality training. Furthermore, the employee handbook should contain broad definitions of company privacy policies. 

  • Create Contingency Plans in the Event of Privacy Policy Violations 

First, your company should have a contingency plan for when an employee violates company confidentiality policies, or sensitive corporate information makes it to the public through any other means. The plan should be broad enough to cover all possible scenarios. Have strategies for removing the leaked information from the public domain, locating and disposing of other copies, and executing any legal action stated in your company policy against the guilty staff. 

Second, aside from privacy violation contingency strategies, your company may also need an exit plan for employees. This plan involves the processes employees have to go through to submit any company data or property in their possession whenever they want to leave the company. Your exit strategy should also include steps to disable and restrict access to all employee emails, company social media accounts, and online databases. 

Need NDA for Your Company? Reach Out to Our Employment Law Attorneys Today! 

Finally, confidentiality violations, such as the Supreme Court draft decision leak, can ruin corporate organizations. If your company doesn’t have an NDA in its privacy policy and you’re considering drafting one or updating the terms in the current confidentiality agreement, you’ll need an attorney to help you through the process. NDAs are sensitive contracts that can become unenforceable if you don’t draft them properly. State laws can also affect confidentiality agreements. If the scope of your NDA goes beyond state regulations, it might affect its enforceability. 

At the Law Office of Sheri Oluyemi, we can bring our expertise in US employment Law to tailor your NDA to meet your company’s privacy needs while staying within your state’s regulations. Our employment attorneys can also help you handle the legal sides of company privacy violations. 

Request a free teleconference consultation today, and let’s begin the process of protecting your company’s confidential data. 

Vax Compliance: A Guide to OSHA ETS for Private Sector Employers

November 8, 2021

The Occupational Safety and Health Administration (OSHA) has released its COVID-19 mandatory vaccine mandate by the federal government for the private sector under the Emergency Temporary Standard (ETS). This article will take a quick look at the OSHA ETS and what it means for your company. 

What Does the Policy Say? 

According to the ETS, employers with a workforce of 100 or more employees are to put in place a mandatory vaccine or weekly testing and mask policy. 

Generally, these COVID-19 company policies should comply with the ETS, OSHA’s prohibition against retaliation for reporting workplace illnesses or injuries, the Centers for Disease Control and Prevention’s “Key Things to Know About COVID-19 Vaccines, and the criminal penalties associated with knowingly supplying false statements or documentation.

Which Companies Aren’t Covered? 

While employers with 100 or more employees must meet the ETS requirements, some businesses do not fall under the mandatory policy. They include: 

  • Employers/employees under the Safer Workforce Task Force COVID-19 Workplace Safety

  • Healthcare workers already under the existing healthcare ETS

  • Employees working from home or exclusively outdoor 

What Are the Effective Dates of the ETS?

The ETS mandates that employees must complete all the policy requirements aside from the testing for employees who have not completed their primary vaccination doses within 30 days of its publication. 

Also, company management must begin testing of staff members who have not completed the primary doses of their vaccination 60 days after the policy’s publication. 

Are There Any Vaccination Exemptions? 

While every private-sector employer must enforce mandatory vaccinations for all employees under the ETS policy, some members of a workforce may qualify for exemptions. Examples of such individuals include:

  • Workers who have a medical condition that makes it necessary to delay a vaccination

  • Employees who qualify for a reasonable accommodation under US civil rights laws because of religious beliefs, disabilities, etc

  • Staff members who have illnesses with a diagnosis that suggest that they should not receive the vaccine 

What About Paid Time Off for Vaccinations 

The ETS also requires employers to provide paid time off for members of their workforce to get vaccinated and recover from any effects the vaccine may cause.

The stated timeline is four (4) hours at the standard pay rate to get each dose of the vaccine. For the side effects of the vaccination, the OSHA ETS mandates every employer in the private sector to provide a reasonable timeframe and paid sick leave to enable a full recovery. 

Masking and Testing Requirements 

Employees who have not completed their vaccine doses must undergo weekly testing according to the ETS. The policy also does not require employers to pay for the tests. 

Also, a staff member must immediately notify their employer after a positive COVID-19 test and cannot resume work until they meet the return requirements. 

The ETS also requests employees who are not fully vaccinated to wear face masks indoors or whenever they’re in a vehicle with a colleague unless it interferes with work operations. 

Vaccination Records 

According to the ETS, employees must have the following documents on file: 

  • Records of vaccination for each employee regardless of whether they’re fully or partially vaccinated

  • Records of test results provided by each employee

However, businesses who have acquired this information before the ETS policy are not required to do so all over again. Note that these are medical records and should be treated as confidential under the ADA.

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