我的同事Brent Haden最近发表了一篇见解深刻的文章 关于竞业禁止契约的文章. 正如他所指出的那样，这种公约如果起草得当，是可以强制执行的. 然而, many courts subject non-competes to intense scrutiny because of their effect on competition and limitation on the ability of workers to obtain employment. 一些州, 比如加州和华盛顿, 是否已经走到拒绝执行任何竞业禁止协议的地步. 结果是, many employers are turning to confidentiality or non-disclosure agreements (“NDA”) as a way to protect their proprietary information. These protections have become particularly important as data has become more easily transferable.
比如竞业禁止协议, NDAs are restrictive covenants and the restraint they place on the employee must be no greater than necessary to protect the employer’s legitimate business interest. 换句话说, 为使保密协议具有可执行性，保密协议只应涵盖应保密的资料, 比如商业秘密. 不像竞业禁止协议, the Virginia Supreme Court has not taken up the specific issues governing enforceability of non-disclosure agreements, which forces attorneys and employers to glean information from sometimes seemingly inconsistent lower court opinions.
在过去十年中, Virginia courts tightened the requirements for NDAs by refusing to enforce clauses that did not include some time limitation on enforcement or that did not limit the information covered to certain categories. 然而, the Fairfax Circuit Court recently issued an opinion that seemingly reverses course on the trend. 在这种观点下, the court ruled that an NDA was enforceable that covered “any and all confidential and/or proprietary information of [the company],，尽管它对执行没有任何时间限制. 虽然这对雇主来说是一个积极的信号, 直到弗吉尼亚州最高法院就此事发表意见, the safest bet for enforcement is to keep the scope of the agreement as narrow as possible and include a reasonable time limitation.
起草得当的保密协议只是有效数据保护计划的一部分. Many employers fall into the trap of relying on an NDA by itself to serve as the sole protection for its confidential information. An NDA is only useful if the employer takes action to maintain and protect such information from disclosure. 事实上，公司有责任确保任何商业秘密的保密. The following are additional steps or policies that should be followed to ensure that an NDA will be enforced in court.
- 限制访问. Courts will only allow companies to protect confidential information that is actually confidential. If such information is treated as ordinary business information it may lose its protection under the NDA. 公司不必求助于视网膜扫描或面部识别程序, but they should take steps to ensure that confidential information can only accessed by employees who need it to perform their jobs and who have signed an NDA. 纸质文件应锁好并保存在场所内. 工作站、数字文件和个人电子设备应设置密码保护. 公司还应定期监控访问其机密文件的人员.
- 给信息贴上标签. It is impossible to detail every confidential document that an employee will come in contact with while working, 因此，律师们经常起草保密协议，以涵盖范围广泛的文件, 比如“财务信息”或“商业计划”.“虽然这可能是实际需要, 法院对这些宽泛的分类持怀疑态度, especially when an employer cannot show that an employee knew that a specific document was intended to be confidential. 简单的解决方案是确保文件被标记为“机密”.如果你在电子邮件中发送机密信息, 然后你应该确保这个词在标题中. 如果披露是口头的, then it should be prefaced by a brief instruction that what is being discussed is confidential and should not be repeated.
- 维护手册政策和培训. Employers should not assume that their employees understand their responsibilities with regard to maintaining confidential information. Employers should have detailed handbook policies that clearly explain their confidentiality policies and conform to the employee’s duties under the NDA. 政策除非被理解，否则毫无用处, 因此，雇主应该定期对员工进行政策培训.
- 进行离职面谈. 面试即将离职的员工有很多好处. Among them is the opportunity to provide the employee with a copy of the NDA and to review the employee’s duties under the agreement together. It is also a good time to go through a checklist of company property and confidential information in the employee’s possession to confirm that it has all been returned to the company. 如果可能的话, 雇主应该让即将离职的员工签署一份表格，承认任何持续的义务.
- 检查离职员工的电脑. One of the downsides of digital information is that an employee can download reams of documents onto a hard drive the size of a pen cap and walk right out the door. 最近, a popcorn producer sued its former director of research and development for allegedly swiping over 5,000份机密文件, 包括食谱和市场调查, 当她得知自己要被解雇时. 该公司在分析了离职员工的电脑后，确定了涉嫌盗窃的行为. If an employer has reason to believe that a departing employee may have taken information with them, it should consider hiring a firm who specializes in electronic forensic analysis to review the employee’s computer usage.
- 联系新雇主. 如果你认识前雇员的新雇主, you should consider providing that employer with a letter detailing the employee’s continuing obligations not to disclose your trade secrets and other confidential information. This will place the company on notice and prevent it from from claiming that any future violation of the obligations was made unknowingly. 在采取这一步之前, an employer should confer with counsel because if the new employer terminates the employment relationship, 前雇员可以起诉故意干涉合同关系.
通过起草并一贯遵守保密信息政策, employers can provide maximum protection of their confidential information and ensure quick and effective enforcement of its NDAs by the courts.
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