Tuesday, February 17, 2009

What Did You Agree To? Confidentiality

This series is starting to gain popularity, so thank you to the readers who are subscribing. In this segment we are going to look at Confidentiality. This is of particular importance because this type of clause can be leveraged against someone, with serious consequences.

As you know when you agree to keep something confidential, you want talk to anyone about it. There are whole separate agreements called Non-Disclosure Agreements, or NDA's that revolve purely around confidentiality. NDA's are entered into by business, or individuals (like authors, artists, entrepreneurs ) who want to establish a confidential base before negotiating a contract.

It is very possible you have never signed an NDA. That's fine, but what you have signed is agreements about confidentiality. Can you think of one?

....... Your Work.

That's right, its your job. Virtually every single employment agreement, or contract has a confidentiality provision in it. Lets look at a part of one of those provisions in a contract.

The Employee acknowledges that, in the course of performing and fulfilling his duties hereunder, he may have access to and be entrusted with confidential information concerning the present and contemplated financial status and activities of the Employer, the disclosure of any of which confidential information to competitors of the Employer would be highly detrimental to the interests of the Employer.

That is just a part of one of the standard provisions, but now you get the idea. You are saying by signing the agreement that

  1. You will come into contact with confidential information
  2. That information is valuable to the company
  3. If you close it, you agree that the company can come after you
  4. You agree that the value is not always tangible, so they may get an injunction against you
  5. You will not disclose such matters at any time to any person or entity, living or dead.
Companies need to protect themselves. They invest a lot into building market share, putting together customer lists, establishing products, etc. So they want to make sure that someone does not come in, nab all their secrets and disappears.

In addition they don't want to have to sit and wait for court to hear the issue, and it be too late because the damage is done. So the most important aspect is the ability to get an injunction.

An injunction is an order from the court to prevent you from doing something. They may apply to the court, at very short notice, and ask the judge issue an order forbidding the disclosure of the information until there is a court hearing.

That prevents damage from being done, and allows the business time to put their case against you together.

You need to be careful with confidentiality, because it is often used as an "excuse to fire". Some of the same items I discussed in my Article FIRED: Personal Email at Work, apply. That being said an ounce of prevention is a pound of cure. Do not give your employer a reason to terminate you, or a pick a fight. Understand what the confidentiality provision is, and how it relates. You would be surprised how often you talk about the "Jackson Account" to your significant other, and technically you are breaching your agreement.

If you do have a legal question, and need to speak to a lawyer, click HERE. Lawyers are online, and can answer your question within minutes for as little as $15.

Copyright © 2009 Peter MacSweeney.
All rights reserved. Reproduction in whole or in part without the express written consent of the author is forbidden. Contact the author through the comment form for all inquiries, including media.

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