Does Your Online Profile Breach Your Prior Employer’s Confidentiality Agreement?

Could your online profile or blog include information that breaches your prior employer’s confidentiality agreement or NDA?

A lot of the advice we read about online branding and resume writing advises job seekers to include very specific, measurable accomplishments as part of their profiles or work summaries. In addition, when Job Seekers blog or write articles about their experiences and expertise, it is common to include specific examples from their work history.

However, there is one legal consideration job seekers can’t ignore. Many of them signed confidentiality agreements with prior employers and may still be bound by those agreements.

There may also be different considerations if you worked for a public company, who routinely shared company information and statistics in press releases or earnings calls versus a private company, who kept everything close to the vest and shared nothing publicly.

How does a job seeker know what information should be kept confidential?

I had a chance to speak with Boston, MA Attorney, Richard Kent Berger, who specializes in Employment Law, about this very important issue.

Richard from your perspective, what percentage of companies require that employees  sign confidentiality agreements and what is the main purpose of those agreements?

The percentage is very high in small emerging companies especially in the high tech industries and virtually 100% in Fortune 1,000 companies.

The main purpose of these agreements is to make certain that the ideas, innovations and plans developed at the employers’ expense (i.e. salaries and other resources) are clearly understood to be the exclusive property of the employer and confidential.  In other words, “what goes on within these four walls stays within these four walls.” At its essence, ideas, innovations and plans are assets, which the employer protects through (among other things) confidentiality agreements.

How long are most confidentiality agreements in effect?

That “standard” depends upon the industry.  I have seen confidentiality agreements with a term of as little as one year and as long as “forever.”  In addition, most confidentiality agreements have exceptions under which confidential information is deemed no longer or not confidential.

I recommend that you retain copies of any documents that you sign while employed, and refer back to those documents to understand the specific requirements.

Can you provide a clear definition of “confidential information”?

The simplest definition is: information which if is meant to be confidential, is kept confidential and which provides some sort of actual or prospective competitive advantage to the party having and holding on to the information.”

In other words, as said routinely through WWII “Loose lips sink ships.”  For example, the fact that a particular software or nanotechnology PROBLEM is SOLVABLE can provide a competitive advantage to the company that solved the problem and they may wish to make certain that no one else knows what they can do until and if they decide to tell someone or the world!

Looking at this in more detail (the devil resides in the details as we all know) please note that the terms “confidential information” and “trade secrets” are fairly synonymous in the law.  That said, Massachusetts law (M.G.L. ch. 266, Section 30(4)) provides a fairly clear definition which is:  that a “trade secret” has been defined by statute as “anything tangible or intangible, or electronically kept or stored, which constitutes, represents, evidences, or records a secret scientific, technical, merchandising, production or management information, design, process, procedure, formula, inventory, or improvement.”

In litigation or business disputes involving this area of the law there are dozens of rules and requirements (and defenses and counters) as to whether a thing is confidential, protect-able or NOT.  Discussing all of those niceties are beyond the scope of this blog.  Suffice it to say, it will always be better for a job seeker to err on the side of caution.  If the job seeker thinks something he or she knows may be confidential, it probably is.

From a job seeker’s perspective, can you give a few examples of what types of statements may be ok and what statements may violate a confidentiality agreement?

It really depends on the circumstances in any particular case and I don’t want to lead a reader right into trouble.  That said, certainly any public description about the job seeker that was published by the former employer while the job seeker was employed there is fine.  Any accolades or achievements published by the former employer while the job seeker was employed there is also fine.  Press releases, interviews with trade publications, write-ups in public annual reports, etc. are good fodder for that material.

Here’s an example of a statement that (if I was a betting man) should get a job seeker in trouble with his former employer:  ”While employed at BIG PHARMA I lead a team which developed an experimental drug with the potential ability to aid in the repair of spinal injuries along with the use of micro-invasive surgical techniques.  We combined our efforts in a joint venture with a leading medical device manufacturer to develop our drug along with their surgical tools.  This project (which I began and worked on for five years) is expected to yield results in the next three years.”

If the employer did not publish any part of the above statement to the public, the former employee would be wrong (potentially) to disclose it.  What to do in an instance like this?  Answer:  Seek clearance from your former employer before proceeding.

One more offending example, this time in a private company that does not release its financial statements publicly:  ”As COO I had complete P&L responsibility” and increased our Net Profits from 7 to 11% with Gross Revenues rising from $32 to 44MM in sales over a three-year period.”

If an employer reads an online profile or blog and feels that an employee violated their confidentiality agreement, what might happen? What are the possible consequences?

The typical response is a “cease and desist” letter or a lawsuit.  One major issue (aside from the potential civil and criminal claims discussed above) is that the violation of a confidentiality obligation may constitute a breach of the employee’s severance agreement such that all payments will stop and the prior payments (arguably) would have to be returned to the employer.

It is, again, better to be safe than sorry in deciding what you will or will not say.

More Info- Richard Kent Berger:

Richard Kent Berger, Esq. is the President and founder of Berkent Legal Services, P.C. specializing in negotiating severance agreements, offer letters, handling employment disputes, and acting as General Counsel representing entrepreneurs as they begin and grow their businesses.  The above interview provide general answers only and does not constitute legal advice.  Please do not rely on any of the above as legal advice; it is not.  The reader should always seek the advice and counsel of his or her own attorneys and advisors before doing or refraining from doing any particular action because every case is different and the slightest factual difference could change the direction that one should take to be safe.  Mr. Berger can be reached at rkberger@berkent.com and via phone at (508) 341-8505 to help with your questions.

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