CaseMark Employee Non-Disclosure Agreement
Draft an enforceable employee confidentiality agreement that protects proprietary information without functioning as a noncompete.
Quick Start
Collect before drafting:
- Employer name, entity type, state of formation, address.
- Employee name, address, position, start date, access level.
- Governing law, venue or arbitration preference.
- Confidential information inventory and industry context.
- Third-party confidentiality obligations binding the employer.
- Duration targets (trade secrets vs. non-trade-secret info).
- 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.
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.