Employers use a number of workplace documents containing provisions requiring employees to maintain the confidentiality of specified company information. These documents may take the form of employment or separation agreements, handbooks, codes of conduct, or policies governing internal investigations or settlement of disputes. In recent years, several governmental agencies have scrutinized such confidentiality provisions in a variety of contexts, finding that even standard confidentiality requirements may trespass on employees’ rights to disclose information to the government or to other employees.
For instance, the National Labor Relations Board (NLRB) has invalidated a number of confidentiality provisions for infringing on employees’ rights to discuss wages with co-workers under Section 7 of the National Labor Relations Act (NLRA), 29 U.S.C. 151 et seq., even where such confidentiality provisions make no specific mention of wages. In addition, with the enactment of the Defend Trade Secrets Act (DTSA), Pub. L. No. 114-153, 130 Stat. 376, in May of this year, employers now must provide notice of the statute’s immunity and anti-retaliation provisions in contracts governing the use of trade secrets or other confidential information.
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