Confidentiality Archives

Confidentiality and Non-Disclosure Duties – The Four “Situational Exceptions”

Published on February 9th, 2016 by Alan L. Sklover

“Due to the highly confidential nature of my position
even I don’t know what I do all day.”

– Unknown

ACTUAL “CASE HISTORY”: Bart was a highly respected Business Development Officer for a major antiquities dealer headquartered in London. His interests, education and experience all overlapped one another. In fact, he had been fascinated with the antiquities trade – the sale, purchase and barter of ancient artifacts and treasures – as long as he could remember, and remained so to this day.

As part of an expansion of his firm, Bart had been designated to open a new Chicago office because Chicago has a large, vibrant and growing antiquities market. Chicago’s client base, comprised of art institutes, museums and wealthy individuals, was judged to be quite under-served, and so this assignment was posed a significant opportunity for Bart.

Just before relocating with his family to Chicago, Bart was asked to meet with the firm’s Head of Human Resources. Upon arrival, Bart was led to a conference room and asked by the firm’s lawyers about emails he had exchanged six months earlier with an antiquities collector in Rome, who was interested in a particular item of antique jewelry soon to be sold at auction. In his email, the Rome collector asked Bart what he thought would be the minimum acceptable auction bid. Bart’s email response to the Rome collector was that he thought it would be no more than one hundred thousand dollars.

Bart’s estimate of the minimum price was on target, with good reason: it had been decided upon by the firm’s auction department just days earlier, although it had not yet been made public. It now seemed as if Bart was being accused of disclosing confidential information – a very serious policy offense in the antiquities business, which highly prizes secrecy and integrity. Sure enough, Bart was immediately suspended without pay, pending completion of a full investigation by the attorneys. And, too, his relocation to Chicago was placed on hold.

Fortunately for Bart, he had been prudent in preserving emails of others who oversee his work. His review of emails to and from the Rome collector revealed to him that the request was originally sent from the Rome collector to the firm’s Executive Director, who had, in turn, directed it to him, with a note directing Bart to provide that requested estimate. When the Executive Director was asked, and then shown his email to Bart, he then recalled what took place, and for this reason Bart was cleared of the allegation of gross misconduct.

LESSON TO LEARN: Issues of confidentiality of business secrets, confidential information, and proprietary knowledge, are critical career issues. “Loose lips” not only “sink ships,” but they can also “torpedo careers,” as well.

These disputes are definitely on the rise, likely due to three factors: (i) increasingly competitive business conditions, (ii) a growing sensitivity to issues of confidentiality, and (ii) the greater ease and ability of employers’ closing monitoring and surveilling their employees’ communications.

As you may know, there are many companies that sell software that constantly look out for certain words, phrases and numbers in employee emails, texts and other digital communications.

The lessons to learn?

(1) take the time to understand what constitutes “confidential information” at your job;

(2) always keep in the back of your mind the four “situational exceptions” to confidentiality and non-disclosure obligations, explained below; and

(3) take certain simple steps to protect yourself from allegations of improper disclosure.

These three categories of “suggested confidentiality precautions” and – most importantly, the four “situational exceptions” to confidentiality and non-disclosure obligations – are what this newsletter issue is all about.

WHAT YOU CAN DO: To avoid confidentiality issues and pitfalls, keep these questions and answers in mind:
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“Employer Ask You to Sign an Agreement? Ask Your Employer to Pay Your Legal Cost”

Published on September 9th, 2015 by Alan L. Sklover

“I busted a mirror and got seven years bad luck, but my lawyer thinks he can get me five.”

– Steven Wright

ACTUAL “CASE HISTORY: Charlene, a furniture designer, had been with her employer for seven years. She was happy in her job, was well-liked, and quite productive. Her job was a short commute from home, and her manager was family-friendly. All was good.

One morning she received an email from the Human Resources Director, addressed to all of the company’s 150 employees, advising them that the company was updating all of its employment practices, and for this reason all employees were required to sign an updated “Confidentiality and Inventions Agreement” to safeguard the company’s trade secrets and proprietary information. (Rumor had it that a private equity firm might be interested in buying Charlene’s employer, and it was for this reason that a new, revised Confidentiality and Inventions Agreement was being required.)

The agreement was six pages long and contained a lot of complicated legal language. Charlene thought she understood it, but there was a lot “legalese” in it. She considered having our firm review it with her, but knew it would cost her a consultation fee of hundreds of dollars. When she called, she mentioned the unfairness of her employer requiring her to pay to review a document that they needed, not her.

We suggested she simply ask for the cost to be reimbursed. Sure enough, she did. After a few emails back and forth, her employer agreed to treat it just like any other business-related expense. Charlene was pleased. We were pleased, and now we suggest all employees in this situation do so. You never know. Sure is worth a shot.

LESSON TO LEARN: If you don’t ask, you won’t get. So long as any workplace request has the “Three R’s,” that is, it is (i) Respectfully presented, (ii) Reasonable in what is sought, and (iii) is based on a sound and logical Rationale, there really is no downside to making it.

The logic is simple: When someone wants something from you, and even moreso when they need it, there is nothing wrong with asking for something in return, especially the amount of money it will cost you to provide it for them.

Who knows? You might just get what you want. In this context, your chances are pretty good. Why not give it a try?

WHAT YOU CAN DO: In most – but not all – workplace instances of your employer asking you to sign an agreement, consider asking, in return, before you sign the agreement, that your employer agree to reimburse you the cost of an attorney’s review and consultation. Here are some tips in doing so:
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Public Domain – Key Words & Phrases

Published on July 15th, 2015 by Alan L. Sklover

Key Words

What is the meaning of:

PUBLIC DOMAIN?

“Public Domain” generally means “owned by the public,” or contrariwise, “not owned or own-able by any person.” It has specific meaning in the fields of real estate and copyrights. In the employment context, “public domain” relates primarily to the what is, and what is not, employer-owned and legally protectable “confidential” information.

The importance of understanding what is in the “public domain” arises when employees are asked by their prospective employers, their new employers, or their former employers, to sign Confidentiality Agreements, or confidentiality provisions inside Employment Agreements, Severance Agreements, and the like. Such agreements are always very broadly written so as to give the employer maximum protection, and to convey the impression that “everything under the sun” is and must remain “confidential.”

Information is “public domain” information, and thus not “confidential” information, if it is known by, or available to, the general public. So, how much each partner in a company was paid last year might be confidential, but it loses its confidentiality and becomes “public domain” if that information is published in newspapers, or in Court files as part of a lawsuit.

Since the advent of the internet in our lives, the issue of what is, and what is not, “public domain” has been become a delicate problem. So, if documents are “stolen” and then posted on the internet, have they lost their confidentiality? Are they now “public domain,” and thus capable of being shared with others without risk to the person doing the sharing? These questions abound, and are not all easily answerable.

In the employment context, confidentiality is the “default,” meaning that it is to be presumed unless there exists a good reason not to hold that view. For most purposes, it will suffice for you to presume that all information at work, including personal information, business information, and client information, is “confidential,” and, thus, cannot legally be used or disclosed.

For more information, insight and inspiration regarding issues of workplace confidentiality, proprietary information, trade secrets and the like at work, just [ click here. ]

© 2015 Alan L. Sklover. All Rights Reserved. Commercial Use Strictly Prohibited

“What is NOT Confidential Information –
10 Guidelines for Resumes, Interviewing and Online Chatter”

Published on February 10th, 2015 by Alan L. Sklover

“Due to strict confidentiality rules, all I can tell you is
that I have no idea what I am doing.”

– Saying on a Coffee Mug

ACTUAL “CASE HISTORIES: On your resume, in your interviews, and during online chatter, you will no doubt want to portray yourself in the best light possible, including great education, great experience, and thus great value. Might what you write and say violate your duty of confidentiality to your employer?

Almost every employment agreement, almost every bonus agreement, almost every stock option agreement and almost every severance agreement, has a seemingly all-encompassing confidentiality clause. This is an example of a common version:

“I promise to maintain strict confidentiality as to all of the Company’s “Confidential information,” which includes, without limitation, any information that I may receive or have access to, in any form, including electronic media, that relates to the Company (including without limitation its officers, directors, shareholders, employees and contractors), or its customers (including without limitation, customer identities and information), advertisers, content providers, subscribers, licensors, licensees, vendors, partners), trade secrets, confidential knowledge, know-how, non-public intellectual property, including without limitation inventions, patent applications, and related patent rights, business plans, financial information, marketing plans and strategies, business opportunities, past, present and future products, pricing and pricing strategies, software, research, development, or other technical data, administrative, employee training and evaluation, management, financial, marketing, member information or manufacturing activities.”

Wow! Is there anything related to your work that is NOT confidential? It seems that anything you say, and anything you write, might be a breach of confidentiality.

LESSON TO LEARN: Navigating today’s employment landscape seems to require that you obey a million rules, regulations and restrictions, and perhaps most importantly those related to confidentiality. The repercussions of being reprimanded or fired for “breach of confidentiality” can be terribly damaging and very long lasting. If you are going to err in this regard, you would be wise to err on the side of caution. But knowing the most important rules, regulations and restrictions can only help you stay out of trouble.

WHAT YOU CAN SAY AND WRITE: Here are 10 general guidelines to what is NOT confidential information at work:
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“After severance, what you CAN and CANNOT say”

Published on January 13th, 2015 by Alan L. Sklover

Question: I was laid off a few months ago in what they called a “position elimination.” While I disagreed that is why I was chosen, I did, with your blog help, get a better package. Thank you!!

Actually, it came at a good time in my life, as my husband was ill and it gave me an opportunity to take care of him. I signed a severance agreement in order to get my severance monies. Now that my husband is better, I am free to go back to work. I am now looking for a new job.

What can I say, and what can’t I say, about why I left?

Name Withheld
Cheyenne, Wyoming

Answer: Dear Blog Visitor: The first item you should carefully review to determine what you can say, and what you cannot say, is your severance agreement. That said, almost all severance agreement express – or imply – what you can and what you cannot say, about your experience on the job, and why you left. Here are ten things you CAN say, and CANNOT say, about leaving your last job:
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Alan L. Sklover

Alan L. Sklover

Employment Attorney
and Career Strategist
for over 35 years

Job Security and Career Success now depend on knowing how to navigate and negotiate to gain the most for your skills, time and efforts. Learn the trade secrets and 'uncommon common sense' of Attorney Alan L. Sklover, the leading authority on "Negotiating for Yourself at Work™".

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