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Want to Protect Your Trade Secrets? Update Your Employment Agreements!

October 11, 2019

Authors

Anthony George

Want to Protect Your Trade Secrets? Update Your Employment Agreements!

October 11, 2019

by: Anthony George

Since 2016, the Defend Trade Secrets Act (DTSA) has provided employers with a federal cause of action against employees, former employees and other bad actors who misappropriate trade secrets.  In addition to injunctive relief, DTSA remedies include civil seizure, compensatory damages, punitive damages and attorney fees.  However, in order to preserve the right to seek punitive damages and attorney fees from an employee or former employee, the employer must have provided notice of the whistleblower-protection provisions of the Act.  Those provisions protect employees and former employees from criminal or civil liability for disclosure of trade secrets made (a) in confidence to a government official or an attorney for the purpose of reporting or investigating a suspected violation of law, or (b) under seal in a judicial proceeding.

Notice of the whistle-blower protection provisions must be included “in any contract or agreement with an employee that governs the use of a trade secret or other confidential information.”  This would commonly include, for example, employment agreements, confidentiality or nondisclosure agreements, noncompetition agreements, and separation agreements.  The notice requirement applies to all such contracts entered into or revised after May 11, 2016.

The notice may be provided by including the whistleblower-protection provision in the agreement or by cross-referencing a policy that contains the required disclosure.  It is unclear whether paraphrasing the statutory language will be sufficient.  Therefore, the safer course is to quote the pertinent text, such as:

Notwithstanding the foregoing, 18 U.S.C. §1833(b) provides, in part: “(1) An individual shall not be

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UK HR Two Minute Monthly: whistleblowing; religion or belief discrimination; employment status

October 9, 2019

Authors

Leah Aschettino

UK HR Two Minute Monthly: whistleblowing; religion or belief discrimination; employment status

October 9, 2019

by: Leah Aschettino

Our October update considers recent developments in employment law, including cases on the whistleblowing public interest test, whether vegetarianism is a protected belief under discrimination law, and employment status. We also outline other points of note, including guidance published by the Banking Standards Board on regulatory references, the latest employment tribunal statistics and revised immigration arrangements in the event of a no-deal Brexit.

Raising data protection concerns was sufficient to satisfy the whistleblowing public interest test

The Employment Appeal Tribunal (EAT) has confirmed that an employee was entitled to whistleblowing protection when she had a reasonable belief that alleged data protection breaches by her employer were in the public interest.

The employee worked for a small charity which among other things supports victims of domestic violence. Due to performance concerns, the employee’s probationary period was extended. The employee subsequently raised concerns that, given the nature of the sensitive and confidential personal information she dealt with, the charity was in breach of data protection legislation by failing to provide her with her own mobile phone and also with secure storage facilities to hold client records. The employer subsequently terminated her employment on performance grounds. The employee brought a claim that she had been automatically unfairly dismissed for blowing the whistle.

The employment tribunal found that the complaints raised by the employee were not in the public interest as they concerned her own contractual position, which prevented her from succeeding in her whistleblowing claim. However, on appeal, the EAT disagreed. The employment

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