Confidentiality in Employment Litigation: What You Can and Cannot Say

Confidentiality is important in any type of legal action. Employment litigation may concern discrimination, sexual harassment, wrongful termination, or a wide range of other workplace-related legal issues.

Employer-employee confidentiality agreements limit what you can say or disclose about an employer or business. This includes confidentiality clauses within an employee contract or a separate non-disclosure agreement (NDA).

Speak with a lawyer today if you have questions about what’s confidential in litigation matters.

Types of Business Information

Jobs requiring an NDA usually involve access to confidential or proprietary business information. Company information subject to an NDA can include:

• Financial information
• Customer lists
• Intellectual property
• Trade secrets
• Unique manufacturing processes
• Marketing strategies

Improper handling of this information can result to unwanted consequesces like litigation.

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Legal Obligations and Confidentiality Agreements

Most courts will enforce valid confidentiality agreements. The penalties for breaching the agreement depend on the situation, but generally involve financial penalties and damages.

Employees who bring a lawsuit against their employer need to talk to their lawyer about their work conditions. Employees can openly discuss this information with their attorney, even if the information is subject to a non-compete or NDA. Attorney-client confidentiality prohibits a lawyer from disclosing private information without their client’s consent.

Exceptions to Confidentiality in Legal Proceedings

Confidentiality agreements are unenforceable if they are illegal or against public policy. For example, if an employee learns that their employer is engaged in criminal activity and reports it to the authorities, this disclosure is generally protected, even if there are confidentiality rules prohibiting the disclosure of business information. Confidentiality agreements that prohibit the disclosure of sensitive information to government regulators are generally against whistleblower laws.

Workers discussing the terms and conditions of employment is a protected concerted activity under the National Labor Relations Act (NLRA). The National Labor Relations Board (NLRB) has found that employers cannot prohibit employees from talking about information related to worker salary and discipline. Overly restrictive confidentiality agreements need a legitimate and compelling business justification.

Consequences of Breaching Confidentiality

Breaching a valid confidentiality agreement may result in penalties including:

• Punitive damages
• Liquidated damages
• Loss of business damages
• Legal costs and attorney fees

However, before relying on your employer’s version of what you owe, talk to an attorney. An attorney can review the confidentiality agreement and explain your employee rights under state and federal law.

Best Practices for Maintaining Confidentiality

Navigating confidentiality in employment litigation is tricky. Even if you have something to report, be sure to go through authorized internal or external channels. Don’t disclose sensitive information on social media posts or online forums.

Your employment lawyer will have a better idea of what you can and cannot say. Get legal advice from your attorney before you share confidential information. You can be open and honest with your attorney because they have a duty of attorney-client confidentiality. Find an experienced employment litigation attorney with the Super Lawyers directory.