Reviews, Counseling & Litigation
Whether your employer has presented you with a non-disclosure agreement, or you are considering leaving your current position for a new employer, you may require legal assistance in interpreting your rights and obligations under the agreement.
Understanding a non-disclosure agreement before signing is crucial. A non-disclosure agreement is also known as an NDA or confidentiality agreement.
Accepting and executing an NDA may burden you with considerable obligations, including broad and long-lasting restrictions on the information that you can disclose to others about your experience with your employer.
Employers write NDAs to protect themselves. You may not realize at the time of signing the NDA that its obligations could restrict the scope of your future ability to work in your field, and your use of the professional knowledge that you have acquired may become contractually limited.
Our attorneys are experienced in counseling employees about non-disclosure agreements. We can assist you in answering questions about a proposed agreement, or in providing representation and negotiation should you have previously signed an NDA. We also provide defense representation to employees who have breached an NDA or have concerns about a potential breach.
What is an NDA?
NDAs, or confidentiality agreements, are contracts between parties that define the scope of the confidential information and identify terms prohibiting the disclosure of such confidential information.
Obligations in confidentiality agreements and terms can exist between an employee and employer, with customers, joint venture parties or other parties who may need access to confidential information for business purposes.
Requesting an NDA Review
The attorneys at Potomac Legal Group are available to schedule non-disclosure agreement reviews and consultations. Contact us to schedule a review at any time. Should you face a fast-approaching NDA deadline, you may contact Potomac Legal Group immediately to schedule your review and consultation. We suggest contacting us immediately upon receiving your NDA.
Who Should Contact the Firm?
Our employment attorneys assist clients facing NDAs from every profession and industry. Our attorneys have extensive experience in reviewing and negotiating NDAs for executives, skilled professionals, managers, administrative staff, technical experts, scientists, start-up employees and salespeople.
The Firm has experience in reviewing NDAs from employers and businesses in every size, from small businesses to Fortune 500 companies, public, private and non-profit entities, as well as professional firms, government contractors, startups, trade associations, embassies and government.
Any employee who receives an NDA should contact the Firm to schedule a legal review to understand their rights and obligations under the NDA.
NDA Negotiation, Alleged Breach & Litigation Defense
NDAs are agreements between two parties. You have the option to sign the agreement or ask for changes. Our attorneys will provide you guidance in requesting changes that benefit you and reduce the risk of a breach. NDAs are often overly broad and incorporate information outside the scope of an employer’s confidential information. In this situation, narrowing the scope to specific information or time periods that you would acquire the information would greatly reduce the risk of breach.
In addition to providing guidance, our attorneys are available to represent employees in negotiating changes on their behalf.
Should you be concerned about an NDA you previously signed, please contact Potomac Legal Group as soon as possible. Many employees with existing NDAs have contacted our attorneys for an NDA consultation before resigning their position and accepting a new job.
If you believe you have breached your NDA, or have received a threatening letter from a law firm alleging a breach, then you should have an attorney review the matter immediately. Our attorneys are skilled in employee-defense representation, and we have helped clients resolve breach allegations and end the threat of burdensome litigation before it begins.
Jurisdiction & Remote Work
NDAs are subject to different requirements in different jurisdictions. Potomac Legal Group offers legal representation in Washington, DC, Virginia and Maryland. We can provide counsel to any employee who lives or works in one of these jurisdictions.
We also provide counsel to employees who work for an employer with a headquarters or presence in Washington, DC, Maryland or Virginia, or who have agreements that identify the governing law as one of these jurisdictions.
Remote work and the complexity of international business has made it confusing for many employees to determine who to call for advice. When you contact Potomac Legal Group, we will offer a legal consultation if the Firm can represent you. If not, we may provide a reference or resource for locating an attorney in your area.
The NDA Review
Our employment lawyers conduct a complete review of the NDA, and we address your concerns about the agreement. While reviewing your NDA, an attorney will examine and provide counseling related to the following:
- Unilateral or Bilateral: Does the NDA cover confidential information concerning your company, or does it also cover the company’s non-public information regarding you?
- Term: As an employee, you likely do not want to be tethered to an NDA with a long term. Time limitations of NDAs may limit your prospective employment prospects, especially with competitors or with companies occupying the same industry space.
- Breadth: What kinds of workplace-related information does the NDA cover? Is it limited solely to confidential or proprietary information, including trade secrets? The definition of confidential information should be accurately and narrowly defined based upon the type of information the employer will or may disclose.
- Clarity: Does the NDA specify clearly what kind of information it covers? Has the employer agreed to mark or otherwise identify documents covered by the NDA before giving them to you? If such a requirement exists, have you been aware of the identification and marking requirements?
- Reasonableness: Is there language stating that all information that should reasonably be known to be of a confidential nature will be treated as confidential information regardless of markings or identification?
- Sexual Harassment: Does the non-disclosure have the purpose or effect of concealing your knowledge of details of sexual harassment or sexual assault? By federal statute, NDAs are unenforceable with respect to disputes involving sexual abuse or harassment.
- Burden: Would the language of the NDA in effect prohibit you from working in a certain industry or field after leaving your company?
- Consideration: Did you receive some benefit, including but not limited to continued employment, for signing the NDA? Benefits may include the employer agreeing to serve as a favorable reference.
- Public Policy: Would enforcing the NDA impose some external cost on the public or violate some form of recognized public policy?
- Remedies: What does the NDA say about the kind of relief an employer may get from enforcing an NDA? Injunctive relief? Attorney’s fees and costs?
Jurisdictions Served: Washington, DC, Maryland & Virginia
Every jurisdiction has laws that may govern NDAs differently. It’s important to consult with an attorney who is licensed and practices in the jurisdiction that is relevant to you and your NDA.
Non-Disclosure Agreements: The District of Columbia
In Washington, DC, courts balance the interests of employers, employees and the public in determining whether an NDA is enforceable. The interest of employers in protecting their proprietary and confidential information from competitors is sufficient to restrict what employees may disclose, but each restriction in the agreement is checked both for its reasonableness and its tailoring to the interests of the employer. For example, the courts will determine whether the geographic limitations and time duration included in the NDA are reasonable to protect the interests of the employer.
Even where a restriction on what an employee may disclose is reasonable and closely tailored to the employer’s concern about the divulging of protected information, the court may nonetheless prevent the NDA from taking effect if it prevents the employee from fully using the knowledge and experience that she accumulated in the industry, or if it harms the public.
Non-Disclosure Agreements: Maryland
In Maryland, courts determine the validity of NDAs under the same general principles used for other restrictive covenants, such as non-compete agreements and non-solicitation agreements. When Maryland courts look at the validity of non-compete agreements, they look to see whether the agreements are reasonable in the light of both the employer’s interest in protecting sensitive information from competitors and employee’s interest in securing employment in her field.
Knowledge that is either generally known in the industry or within the general knowledge of the employee cannot be restricted by an NDA, but the employer’s proprietary information and trade secrets can. Furthermore, NDAs in Maryland must be restricted to a reasonable time, which depends on the facts of the case but can be at least 18 months.
Non-Disclosure Agreements: Virginia
In Virginia, a primary concern around NDAs is the amount and type of information that employees are unable to tell third parties after leaving their employers. If an NDA prohibits an employee to tell future employers about proprietary information, trade secrets, or other specified confidential information (client information, for instance), then it would likely be considered enforceable under Virginia law.
However, if the NDA instead prohibits an employee from telling third parties any information about the employer’s business, then it may be too broad. Employees are allowed to relate their work experience and expertise generally in future positions, and NDAs that restrict this ability to make a living may be held unenforceable. Virginia prohibits employers from including sexual assault as part of an NDA.
Schedule Your Non-Disclosure Agreement Review Today
Contact Potomac Legal Group to schedule a non-disclosure agreement review today. Our experienced employment attorneys are available to schedule your NDA or confidentiality agreement, or to answer any questions you have about your employment matter.