“Due to strict confidentiality rules, all I can tell you is
that I have no idea what I am doing.”
- Saying on a Coffee Mug
ACTUAL “CASE HISTORIES”: On your resume, in your interviews, and during online chatter, you will no doubt want to portray yourself in the best light possible, including great education, great experience, and thus great value. Might what you write and say violate your duty of confidentiality to your employer?
Almost every employment agreement, almost every bonus agreement, almost every stock option agreement and almost every severance agreement, has a seemingly all-encompassing confidentiality clause. This is an example of a common version:
“I promise to maintain strict confidentiality as to all of the Company’s “Confidential information,” which includes, without limitation, any information that I may receive or have access to, in any form, including electronic media, that relates to the Company (including without limitation its officers, directors, shareholders, employees and contractors), or its customers (including without limitation, customer identities and information), advertisers, content providers, subscribers, licensors, licensees, vendors, partners), trade secrets, confidential knowledge, know-how, non-public intellectual property, including without limitation inventions, patent applications, and related patent rights, business plans, financial information, marketing plans and strategies, business opportunities, past, present and future products, pricing and pricing strategies, software, research, development, or other technical data, administrative, employee training and evaluation, management, financial, marketing, member information or manufacturing activities.”
Wow! Is there anything related to your work that is NOT confidential? It seems that anything you say, and anything you write, might be a breach of confidentiality.
LESSON TO LEARN: Navigating today’s employment landscape seems to require that you obey a million rules, regulations and restrictions, and perhaps most importantly those related to confidentiality. The repercussions of being reprimanded or fired for “breach of confidentiality” can be terribly damaging and very long lasting. If you are going to err in this regard, you would be wise to err on the side of caution. But knowing the most important rules, regulations and restrictions can only help you stay out of trouble.
WHAT YOU CAN SAY AND WRITE: Here are 10 general guidelines to what is NOT confidential information at work:
1. Your own personal information, unrelated to work, is NOT confidential. – Information related to your own personal life, not related to your work, including your residence, family, hobbies, education, certifications, and civic and charitable participation, are clearly not subject to your duty of confidentiality to your employer. And, if you participated in such events as “Run for a Breast Cancer Cure” sponsored by your employer, that would not be confidential.
2. Your employment dates, title, and compensation are NOT confidential. – When you started (and stopped) working for each of your employers, both past and present, is your business, and not confidential. Nor are the trade organizations you have been a member or officer of that are related to your career or industry, even if you acted as a representative of your employer.
3. Your workplace activities, duties and responsibilities are NOT confidential, unless they involve truly secret, highly sensitive, and unknown projects. – Your duties on each of each of your jobs, and how much you were paid, are not confidential. If you worked on projects that have been completed or closed, and are now publicly known, your participation in them is not confidential information. “I oversee the activities of the Data Analysis Department at my job” is not a breach of confidentiality. Nor is “I worked on the merger of Exxon and Mobil, which resulted in the formation of ExxonMobil,” a breach of confidentiality.
However, “My job includes the secret and unknown cooperation of our company on political spying for the Central Intelligence Agency” is probably a very serious breach of confidentiality.
4. Whatever you knew, wrote or developed before you started your job is NOT confidential. – If, before your present job began, you wrote an article analyzing future trends of the precious metals market, and then you worked on such matters for your employer, you are entirely free to share that article with others, including potential employers. The same goes for research models, critiques, and compilations you developed before your employment. Even if you used them in your present employment; they are not confidential information of your employer.
For this reason, it may be wise to take make a record regarding your knowledge, writing and inventions that preceded your job. An easy way to do that is to email to yourself a detailed description of your writing, writing and inventions, because email is dated.
5. Whatever is available in the “Public Domain” is NOT confidential. – You are free to quote, share, divulge or use information about your employer that is available to all. Here are a few examples: “I read in the Wall Street Journal today, on the front page, that the High Prince of Kuwait is considering investing in our company.” And, “As it has been reported by our Investor Relations Office, our Board of Directors has authorized a share-buyback program of up to $2 billion.” Also, “It says in Wikipedia that our founder, George Smithereens, was a rum-runner during the Great Depression.”
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6. General knowledge of your industry’s history, practices and conditions is NOT confidential. – General information about your industry is not confidential. There is nothing wrong with discussing the movement in your industry to (a) cloud computing, (b) software-as-a-service, or (c) mobile advertisements. Nor is there any concern about raising and discussing the fact that your employer does or does not use an interactive website for a good percentage of its sales – like or unlike others in your industry.
It would be of concern if you discussed unknown fact regarding your employer, as examples, (i) the non-public plans of your employer to purchase a smaller competitor to give it a platform in software-as-a-service, or (ii) the non-public fact that your employer may begin a series of layoffs.
7. Information that is innocuous, useless, of no value, and/or giving no competitive edge, is NOT confidential. – Feel entirely free to discuss innocuous things like these: “Most of our file cabinets are metal, but a few are the old kind, that is, made of wood.” “Plans are underway to expand our facility’s employee parking lot from 250 spaces to 300 spaces.” Or even “Many people are hoping that we will begin using solar heating in our parking garages.” None of these is a breach of confidentiality.
8. Your own personal opinions are NOT confidential, provided they are not about company matters or company management. – Thus, if you believe that parents should have a complete right to decide whether or not to vaccinate their children, that is not a breach of confidentiality. However, if you worked for a pharmaceutical company that sold vaccines, and were in attendance at a cocktail party where your CEO, who was inebriated, said “So what if a few kids get autism,” your sharing that fact might be deemed a breach of confidentiality.
There is a world of difference between, on the one hand, your opinion of the best basketball team in the NBA, and, on the other hand, your opinion of (a) the likelihood your employer will be profitable this year, (b) the likelihood that the CEO of your employer will be fired this year, and (c) the likelihood that your CFO is cooking the company books.
Been Accused of Breaching Confidentiality? Prepare your best defenses in writing to your employer BEFORE your employer reaches its own conclusions. We offer a Model Memo entitled ”Defending Yourself from Allegation of Use or Sharing of Confidential Information.” It shows you “What to Say, and How to Say It.™ To obtain your copy, just [click here.] Delivered by Email – Instantly!
9. Disclosure of company information that is compelled by law is NOT a breach of confidentiality when it is disclosed under compulsion. - Although it is not a common concern, employees should be aware that if they (a) are subpoenaed, (b) are deposed under oath in a lawsuit, or (c) are questioned by regulatory or law enforcement authorities, they must divulge what would otherwise be considered “confidential employer information.”
These instances of legal compulsion to divulge otherwise confidential information do not extend to “privileged” information, which is information given to, received from, or communicated with, (i) legal counsel, (ii) members of the clergy, or (iii) spouses, because communications with such persons is deemed, by the law, “privileged” and therefore not required to be disclosed.
10. Information your employer has authorized or consented to be shared, divulged or used is NOT confidential. – It is not that rare that an employee requests clarification from his or her employer as to whether something he or she wants to disseminate by spoken or written communications would violate confidentiality.
For example, if an employee wrote a research report, he or she might ask “May I present this research report to magazines and newspapers who cover our industry to see if they would like to mention, quote or publish it? If the answer is “Yes,” then it is not confidential and you can disseminate it to magazines and newspapers, and even send it out with your resume. (A word to the wise: In such circumstances, try to get or make a written record of your authority to disseminate the item, by email, if at all possible.)
***An Important Note: These are guidelines, only, and not legal advice or legal counsel. – If you have any questions about specific information, in specific context, that you have communicated or may communicate in the future, it is strongly recommended that you speak with an experienced employment attorney licensed to practice law in your locale. If you do not have an attorney, these guidelines can guide you in a general manner, but must also be understood with the use of common sense, in the context, and with good faith.
P.S.: For individual a bit of attention and assistance, Mr. Sklover is available for 30-minute telephone consultations. If you would like to set up a consultation, just [click here.]
SkloverWorkingWisdom™ emphasizes smart negotiating – and navigating – for yourself at work. Negotiation and navigation of work and career issues requires that you think “out of the box,” and build value and avoid risks at every point in your career. We strive to help you understand what is commonly before you – traps and pitfalls, included – and to avoid the bumps in the road. Knowing “What to Say and How to Say It”™ in response to an offer of a Retention Bonus is a crucial part of that “navigating,” and an important part of that knowledge and understanding you need.
Always be proactive. Always be creative. Always be persistent. Always be vigilant. And always do what you can to achieve for yourself, your family, and your career. Take all available steps to increase and secure employment “rewards” and eliminate or reduce employment “risks.” That’s what SkloverWorkingWisdom™ is all about.
*A note about our Actual Case Histories: In order to preserve client confidences, and protect client identities, we alter certain facts, including the name, age, gender, position, date, geographical location, and industry of our clients. The essential facts, the point illustrated and the lesson to be learned, remain actual.
Please Note: This Email Newsletter is not legal advice, but only an effort to provide generalized information about important topics related to employment and the law. Legal advice can only be rendered after formal retention of counsel, and must take into account the facts and circumstances of a particular case. Those in need of legal advice, counsel or representation should retain competent legal counsel licensed to practice law in their locale.
Sklover Working Wisdom™ is a trademarked newsletter publication of Alan L. Sklover, of Sklover & Company, LLC, a law firm dedicated to the counsel and representation of employees in matters of their employment, compensation and severance. Nothing expressed in this material constitutes legal advice. Please note that Mr. Sklover is admitted to practice in the state of New York, only. When assisting clients in other jurisdictions, he retains the assistance of local counsel and/or obtains permission of local Courts to appear. Copying, use and/or reproduction of this material in any form or media without prior written permission is strictly prohibited. All rights reserved. For further information, contact Sklover & Company, LLC, One Rockefeller Plaza, New York, New York 10020 (212) 757-5000.
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