Common Clauses

What does a Confidential Information clause cover?

Apr 17, 2024

Every employment agreement you sign will include confidentiality clauses that require your protection of the company’s confidential and proprietary information. This week, we dive into what is and isn’t covered under such clauses. While your company has the right to protect trade secrets, you also have the right to speak out about illegal activities. Let’s get into it!

What is the Confidential Information clause?

When you are offered employment, the company provides you access to non-public information necessary for your job. As a result, you’ll be asked to use that information only for the job. When you quit, you must return and/or destroy such information. This clause typically contains three parts:

  1. Your responsibility to protect confidential information.

  2. A non-exhaustive list of what classifies as confidential information.

  3. Cases that are exceptions to the confidentiality clause.

It’s worth noting that (1) isn’t just a passive act to keep information to yourself, but actively safekeeping company electronics and documents from getting lost.

What classifies as Confidential Information?

Companies consider absolutely everything about your work that isn’t blatantly public to be confidential information. That’s why there is likely a long list of examples in your contract with language such as “including but not limited to” and vague terms like “technology” and “ideas”. Let’s look at some examples:

  1. Your company bathroom has a flyer announcing a new company benefit.

  2. You overhear in the coffee room about potential clients that would be great for the company.

  3. You get an email about a change to the reporting structure in your team.

You might consider (1) to be harmless, (2) to be speculative, and (3) to matter little to the outside world, but all three are considered confidential information until it’s made public. Furthermore, if you work with third parties as part of your job, any information about them is also confidential.

What are exceptions to Confidential Information?

There are three common exceptions to the clause when it comes to speaking openly about confidential information:

  1. Information that becomes public without your doing becomes automatically exempt. Of course, if there is an active investigation to the source of the leak, it may be wise to hold off further publicity.

  2. Speaking to government agencies about unlawful activities such as sexual harassment, unsafe work conditions, or discrimination can't be suppressed. We’ve written about this topic in detail in a separate post.

  3. Speaking to a judge or lawyer as part of a subpoena or court order is permitted in specific cases. Companies may require you to inform them of such orders in advance and consult with them for the minimum disclosures you can make while still abiding by the court order.

In other words, you can disclose confidential information when it ceases to become confidential or it’s a matter of following the law.

The information we’ve provided above applies not only to Confidential Information clauses but also to Confidentiality and Non-Disclosure Agreements. When one party shares private information, it makes sense for the other party to keep it safe. However, you should always be aware that anything pertaining to breaking the law can be disclosed regardless of what you’ve signed.

For advocacy and beyond,
The Ask Ginkgo Team

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