Confidentiality and invention assignment agreement
Federal base for an employee confidentiality agreement, with the carve-outs that keep it from reaching protected activity
Most confidentiality agreements in employee files are too broad in the same three ways: they sweep in pay and working conditions, they read as a bar on talking to a government agency, and they omit the immunity notice that federal trade-secret law requires before an employer can recover certain remedies. This base defines confidential information narrowly, carries the notice, and states the carve-outs plainly. Bracketed items are your choices.
Before you use this
- Do not add a non-compete here. Enforceability varies sharply by state, several states ban them below a salary threshold, and a non-compete buried in a confidentiality agreement is the version most likely to be struck.
- The immunity notice is not optional if you want the remedy. Federal law conditions the recovery of exemplary damages and attorney fees in a trade-secret action on having given the notice in section 8.
- Narrow the definition to what you actually protect. A definition covering all information the employee learns is the one a reviewer reads as covering wages and working conditions.
- State law adds to this. Some states require specific notice periods before an invention assignment is enforceable, and most exclude inventions developed entirely on the employee's own time without company resources.
Confidentiality and Invention Assignment Agreement
This Agreement is between [Employee name] ("Employee") and [Company legal name] ("the Company"), effective [date]. Employee is entering into it in consideration of [employment / continued employment] with the Company [and [describe any additional consideration, which some states require for a current employee]].
1. Confidential information
"Confidential Information" means non-public information the Company treats as confidential and that has value because it is not generally known, including [list the categories that actually apply: customer and prospect lists, pricing and margin data, product designs and source code, unpublished financial results, business plans, and information a third party has given the Company under an obligation of confidence].
Confidential Information does not include:
- Information about wages, hours, benefits, or other terms and conditions of employment, including Employee's own pay.
- Information that is or becomes public without a breach of this Agreement.
- Information Employee lawfully knew before employment, or lawfully receives from someone with no duty of confidence.
- Information Employee develops independently without using Confidential Information.
2. Employee obligations
During employment and afterwards, Employee will use Confidential Information only for the Company's business, will not disclose it to anyone outside the Company without authorization, and will protect it with at least the care a reasonable person would use. Employee will follow the Company's security policies and will not store Confidential Information on personal accounts or devices except as those policies allow.
3. Rights this Agreement does not affect
This section controls over anything else in this Agreement.
- Nothing in this Agreement prohibits or restricts Employee from reporting possible violations of law to, communicating with, filing a charge or complaint with, or participating in any investigation or proceeding conducted by the Equal Employment Opportunity Commission, the National Labor Relations Board, the Securities and Exchange Commission, the Occupational Safety and Health Administration, or any other federal, state, or local government agency, without notice to or consent from the Company, or from receiving an award from a government-administered whistleblower program.
- Nothing in this Agreement prohibits Employee from disclosing or discussing conduct, or the existence of a dispute, relating to sexual harassment or sexual assault, or from disclosing any other conduct that Employee reasonably believes to be unlawful.
- Nothing in this Agreement prohibits Employee from discussing wages, hours, or working conditions with coworkers, a labor organization, or anyone else, or from disclosing information in response to a lawful subpoena or court order.
- Nothing in this Agreement is intended to, or will be applied to, interfere with, restrain, or coerce employees in the exercise of rights under Section 7 of the National Labor Relations Act, including the right to discuss wages, hours, and other terms and conditions of employment with coworkers or others, and the right to engage in concerted activity for mutual aid or protection.
4. Invention assignment
Employee hereby assigns, and agrees to assign, to the Company all right, title, and interest in and to all Inventions and Work Product created within the scope of employment or using Company time, materials, or Confidential Information, including all intellectual property rights in them, and agrees to execute further documents the Company reasonably requests to confirm or perfect that assignment.
This assignment does not apply to an invention that Employee developed entirely on Employee's own time without using the Company's equipment, supplies, facilities, or Confidential Information, except for an invention that relates to the Company's business or actual or anticipated research and development, or that results from work Employee performed for the Company. [Several states require this exclusion and require that it be given to the employee in writing; check the wording your state prescribes.]
Employee has listed in Exhibit A any invention Employee made before employment that Employee wishes to exclude. If Exhibit A is blank, Employee represents there are none.
5. Third-party information
Employee will not bring to the Company, or use in the course of employment, any confidential information belonging to a former employer or anyone else, and confirms that entering into this Agreement does not breach any agreement with another party.
6. Return of materials
When employment ends, or sooner on request, Employee will return or delete all Confidential Information and all Company property, and will confirm in writing that Employee has done so. Employee may keep a copy of documents relating to Employee's own compensation and terms of employment.
7. Term and remedies
The obligations in this Agreement continue after employment ends for as long as the information remains confidential [, and in the case of information that is a trade secret, for as long as it remains a trade secret]. Employee agrees that a breach may cause harm that money alone cannot remedy, and that the Company may seek injunctive relief in addition to any other remedy. Nothing in this section limits the rights preserved in section 3.
8. Notice of immunity under the Defend Trade Secrets Act
Notice of immunity under the Defend Trade Secrets Act. Under 18 U.S.C. § 1833(b), an individual is immune from criminal or civil liability under federal or state trade secret law for disclosing a trade secret (a) in confidence to a government official, directly or indirectly, or to an attorney, solely for the purpose of reporting or investigating a suspected violation of law, or (b) in a complaint or other document filed in a lawsuit or other proceeding, if the filing is made under seal. An individual who sues an employer for retaliation for reporting a suspected violation of law may disclose the trade secret to that individual's attorney and use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal and does not disclose the trade secret except pursuant to court order.
9. General
This Agreement is governed by the law of [state]. If a provision is held unenforceable, it will be limited to the extent needed to make it enforceable and the rest remains in effect. This Agreement does not change the at-will nature of employment. It may be signed in counterparts.
Employee signature: ______________________________
Printed name: ______________________________
Date: ______________________________
Company representative: ______________________________
Title: ______________________________
Date: ______________________________
Exhibit A — prior inventions excluded
[List any invention made before employment that is excluded from section 4, or write "None".]
Template provided by DefensibleHR LLC. It is a drafting starting point, not a finished document, and it is not legal advice. It covers federal provisions only; state law governs invention-assignment notice, consideration for a current employee, and what may be kept confidential. Have a qualified employment attorney adapt it for your state before you use it.