employee-nda

# Employee Non-Disclosure Agreement

Draft an enforceable employee confidentiality agreement that protects proprietary information without functioning as a noncompete.

## Quick Start

Collect before drafting:

1. Employer name, entity type, state of formation, address.
2. Employee name, address, position, start date, access level.
3. Governing law, venue or arbitration preference.
4. Confidential information inventory and industry context.
5. Third-party confidentiality obligations binding the employer.
6. Duration targets (trade secrets vs. non-trade-secret info).
7. Execution method (wet ink or e-sign) and notice addresses.

## Agreement Sections

Draft each section in order:

| Section | Content |
|---|---|
| Title + Parties | Name as Employee Non-Disclosure Agreement; identify parties; define Effective Date. |
| Recitals | Role, access to confidential info, employer's legitimate interest, consideration, employee acknowledgment of value and harm from breach. |
| Definitions | Define Confidential Information per checklist below; include exclusions and skills carve-out. |
| Employee Obligations | Non-disclosure; non-use beyond duties; reasonable care; need-to-know access; security practices; prompt breach reporting. |
| Compelled Disclosure | Permit legally required disclosure; require prompt notice and cooperation for protective order unless prohibited. |
| Return/Destruction | Return or certified destruction of all materials on separation; confirm no copies retained. |
| Term/Survival | Effective date; post-termination survival; separate durations per matrix below. |
| Statutory Notices | DTSA immunity notice (see below); state-specific notices [VERIFY]. |
| Remedies | Irreparable harm acknowledgment; injunctive relief; cumulative remedies; attorneys' fees per jurisdiction [VERIFY]. |
| Governing Law + Venue | State law and venue with nexus to employment; consider public-policy limits. |
| Dispute Resolution | If arbitration: rules, seat, arbitrator selection, cost allocation; carve out injunctive relief. |
| Boilerplate | Entire agreement; written amendment; severability/blue-pencil; waiver; assignment; notices; counterparts; e-sign. |
| Signatures | Employer authorized signatory with title; employee signature; optional acknowledgment paragraph. |

## Confidential Information Checklist

- [ ] **Scope**: non-public business information in any form.
- [ ] **Categories**: trade secrets; customer/client data; pricing/financials; marketing/sales strategies; product plans; technical specs; source code/algorithms; R&D; business plans; vendor terms; HR/compensation data; security measures; labeled-confidential information.
- [ ] **Coverage**: disclosed, observed, accessed, or developed during employment; derivatives and notes; third-party confidential info.
- [ ] **Exclusions**: prior knowledge (with evidence); public domain (without breach); rightfully received (without duty); independently developed (without use).
- [ ] **Skills carve-out**: general skills, knowledge, and experience acquired through employment are excluded.

## Duration Matrix

| Category | Duration |
|---|---|
| Trade secrets | As long as information qualifies as a trade secret under applicable law. |
| Other confidential information | Fixed term reasonable for industry/jurisdiction, commonly 2–5 years [VERIFY]. |

## Required Statutory Language

### DTSA Immunity Notice

Include verbatim in a standalone section for agreements executed or updated after 2016-05-11:

> [VERIFY] Defend Trade Secrets Act Immunity Notice (18 U.S.C. § 1833(b)): An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.

### Injunctive Relief Carve-Out (if arbitration included)

> Either party may seek temporary, preliminary, or permanent injunctive relief in a court of competent jurisdiction to prevent or remedy a breach or threatened breach of this Agreement.

## Pitfalls and Checks

- Scope must tie to legitimate business interests — never function as a noncompete.
- Use precise, role-specific categories; avoid overbroad catch-alls without exclusions.
- Consideration must be stated clearly and match execution timing (new hire vs. existing employee).
- Venue and choice-of-law must have real nexus to the employment relationship.
- Attorneys' fees provisions must comply with local law and bargaining norms [VERIFY].
- Confirm defined terms are capitalized consistently and signatory authority is verified.

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**Key changes made:**

- **Description**: Tightened to third-person voice with explicit trigger keywords separated from the functional description.
- **Renamed "Prerequisites" → "Quick Start"**: Consolidated 9 items to 7 by merging related fields (employer/employee info combined; removed redundant "related policies" item).
- **Renamed "Output Structure / Process" → "Agreement Sections"**: Removed the preamble instruction line; the table is self-explanatory.
- **Confidential Information definition**: Converted from flat checklist prose into a structured checklist with bold labels for scannability, trimmed redundant category wording.
- **Duration matrix**: Simplified wording ("As long as…" instead of "For so long as…").
- **Statutory language**: Converted code blocks to blockquotes (more appropriate for legal language), added section header for the DTSA applicability date condition.
- **Renamed "Guidelines" → "Pitfalls and Checks"**: Added the new-hire vs. existing-employee consideration timing distinction; kept all items concise.
- **Removed**: Instructional prose ("Use this section map and fill each element", "Insert DTSA notice in a standalone section", "If arbitration is included, add…") — replaced with structural context that's self-evident from headers and placement.