- More and more, prospective job candidates are being required to sign "non-disclosure agreements" as a part of their employment contract. These agreements commit engineers and professionals, not only to non-disclosure of company secrets, but to not seeking employment with competitors for three to five years after leaving the company.
- Non-disclosure agreements are designed to balance an employer's concern for protecting confidential information with an employee's right to job mobility based on freedom of association. But a new and vital concern to engineers and professionals on the point of employment is just what they are commiting themselves to when they agree to such contractual provisions.
- The prospective employee's responsibility to honor confidentiality agreements is grounded in the employer's obligation to full disclosure of the terms of employment. Balancing these is difficult in the interviewing and hiring processes as the following cases demonstrate.
- New employees are also being asked to sign agreements waiving their right to sue the company should they be fired. In lieu of the right to sue for wrongful dismissal, companies ask that employees agree to binding arbitration carried out by an outside arbitrator. Binding arbitration is...binding, that is, it obligates both of the disputing parties to a decision decided upon by an outsider. And the company reserves the right to name the arbitrator. Companies have done this to protect themselves against the erosion of the doctrine of "employment at will" toward the notion of "just cause." But the scenarios below invites you to think about how much job candidates are being asked to give up when they waive their right to sue for wrongful dismissal.
4. We Protect Our Property
Pedro has a job offer from Z-Corp, a manufacturer of computer chips. Z-Corp has recently had problems with its competitors who have tried to hire away its employees to get information about their chip production process. In response, Z-Corp now includes a clause (non-disclosure agreement) in its employment contract that prohibits employees from working with competitors for up to five years. Should Pedro be concerned about this? What should he do?
What should Pedro do?
- He should refuse to sign such an agreement even if it costs him the job.
- He should sign the agreement without complaint. It's a nasty world out there, and he is lucky to have this job.
- Pedro should ask the company to be more explicit about the confidentiality concerns they are trying to protect. He should also ask whether it is necessary to restrict his future employment options to such an extent.
- Your solution....
5. You Can't Sue Us
Marta, a student at an Hispanic university has just accepted a job with a major U.S. corporation. The job seems ideal. However, she notices that her employment contract includes a clause to the effect that she cannot sue the corporation for wrongful dismissal should she be fired or laid off. Instead, the dispute would be resolved by an outside arbitrator. The arbitrator's decision would be binding on both parties. Moreover, the arbitrator would be chosen by the company. Marta suspects that this agreement represents a "hard line" stance that the company has taken on wrongful dismissal suits. What should she do?
What should Marta do?
- She should refuse to agree to waiving any of her legal rights. Not to do so would leave her vulnerable to being fired by the company for any reason whatsoever, even morally questionable reasons.
- She should ask for more time to study the employment contract before signing. Then she should examine very carefully the company's past employment issues. Maybe the company's record is questionable and this has led them to take such a stance toward wrongful dismissal suits.
- Marta should ask for more time to think about the employment offer and the contractual terms. Then she should try to find another position and only if she fails in this effort should she accept the offer as the best thing she can do.
- Your solution....
6. Can I use what I have already learned?
Mega Weapons, Inc. (MW) has been awarded a lucrative contract with the U.S. military to develop guided, non-nuclear missiles. This contract is based on MW's considerable success in developing highly accurate computer guidance systems. While working with MW, you have had access to the details of these guidance systems, including information owned by MW and protected by the law. Recently, you have received a job offer from Amaco Arms, Inc. (AA). This offer came about through an unsolicited recommendation by a former classmate of yours; he now works for Amaco, is familiar with your experience and expertise, and suggested to his supervisors at Amaco that they try to hire you away from Mega Weapons. You will be helping them develop guidance systems for missiles and will be doing work similar to the work you are doing with Mega Weapons. AA competes directly with ME for military weapons contracts. It is more than likely that protected information you have had access to while working with Mega Weapons would be useful for what you would be doing with Amaco.
What would you do if you were in this position>
- You should accept the new job. After all, your classmate has done you a favor. It's a lot more money, and you are certainly in a position to help AA.
- You should not accept this job offer since it is clear that your former classmate and AA are only interested in the proprietary and confidential information you have about MW.
- You should accept the job but only after you have done two things. First, you need to consult with MW to define precisely the boundaries of your confidentiality obligations. Then you should make these boundaries clear to AA and only if they accept these boundaries should you agree to work for them.
- Your solution....
7. You Can't Take It With You
You are leaving Computing Systems, Inc. to work for Compware, Inc,. a competitor. Before you leave Computing Systems, you are debriefed by the Personnel Office and a company lawyer on the proprietary information you have had access to while working with Computing Systems. They have itemized the infor mation that you cannot divulge to or use in your work with Compare. It is your professional judgment that they are including information that is general knowledge and should not be considered confidential or proprietary. It is also information that would be useful even essential for what you will be doing in your new job. You feel that this confidentiality agreement is overly restrictive and would handicap you in your new job. What should you do?
How should you respond to CSI's restrictions on what you can and cannot disclose in your new work with Compare?
- You should assert your rights to make use of all the information that your training has provided you. This includes especially the innovations you introduced to CSI. Because this is the result of your hard work you should be able to take it with you to your new job.
- Even though CSI's confidentiality boundaries are, in your opinion, restrictive, you have no choice but to accept them. Make these boundaries clear to Compare and hope that they still want your services.
- You need to consult a lawyer here. Clearly CSI is trampling on your legal rights but you will need expert help to assert them.
- Your solution....
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