SAM Alert- Employers Must Now Provide Notice of Whistle Blower Immunity

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Stubbs Alderton & Markiles, LLP

Employers Must Now Provide Notice of Whistle Blower Immunity

New Federal Trade Secrets Law Requires Immediate Changes to Employee and Contractor Agreements

Starting May 12, 2016, all agreements with employees and individuals that are independent contractors or consultants governing the use of trade secrets or confidential information must include a notice of immunity for the disclosure of a trade secret to the government or in a court filing.  Under the Defend Trade Secrets Act (“DTSA”), the disclosure of a trade secret will be immunized from civil and criminal liability if it is made (i) in confidence to a Federal, State or local government official, or to an attorney, solely for the purpose of reporting or investigating a suspected violation of law or (ii) in a lawsuit complaint or other court documents filed under seal.  Failure to comply with this new legal requirement may preclude a company from recovering punitive damages or attorneys’ fees in a lawsuit against an employee or contractor for trade secret theft.  Also, it is possible government agencies could bring regulatory enforcement actions and employees could bring class action lawsuits against companies that fail to provide this notice.

Our recommendation for adapting to the new law:

  • Update agreements with employees, independent contractors and consultants. The required notice must be included in any contract or agreement with an employee or individual that is an independent contractor or consultant that governs the use of a trade secret or other confidential information.  This includes employee confidentiality and intellectual property assignment agreements, independent contractor agreements, consulting services agreements, professional services agreements, advisory board member agreements, intern agreements and nondisclosure agreements, and any amendments and renewals of such agreements entered into prior to the date the new law went into effect.  Instead of stating the immunity notice in each agreement, the agreement may cross-reference to a policy document (e.g., employee handbook) containing the company’s reporting policy for a suspected violation of law.

How Stubbs Alderton & Markiles, LLP can help.  We are a business law firm with expertise in intellectual property law. Our standard employee, independent contractor, nondisclosure and advisory board member agreements have been updated to comply with the DTSA’s notice of immunity requirement.  We can help update your employee and independent contractor agreements.

Kevin_DeBre
Kevin D. DeBré
leads the firm’s Intellectual Property and Technology Transactions Practice Group advising entrepreneurs and growth companies on how to use technology and intellectual property in building successful businesses.  For more information, email Kevin at kdebre@stubbsalderton.com.

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