Sign at offer or Day 1, before access begins.
Sign before sharing any data or materials.
Renew before the existing agreement expires.
| Trigger | Due Date / Window | Notes |
|---|---|---|
| New employee or contractor start | At offer or Day 1, before access begins | Bundle with onboarding documents. For contractors, use a standalone agreement rather than the employee handbook version. |
| Vendor or partner access to confidential information | Before sharing any data or materials | Use a mutual NDA if both parties will share confidential information. A one-way NDA is appropriate when only you are disclosing. |
| Interview involving sensitive business topics | Before the discussion | A short candidate NDA covering the specific discussion topic is sufficient; don't use the full employee NDA for candidates. |
| NDA renewal or expiration | Before the existing agreement expires | Track expiration dates. Trade secret protection tied to "as long as the information remains a trade secret" does not expire on a calendar date. |
- Scope and definitions: Define "Confidential Information" specifically. Include the standard exclusions: information that is or becomes publicly known through no fault of the receiving party; information already known to the recipient; information independently developed by the recipient; and information rightfully received from a third party.
- Use and disclosure limits: The recipient may use confidential information only for the stated purpose and may share it internally only on a need-to-know basis.
- Duration: Two to five years is typical for general confidential information. Trade secrets can be protected for as long as the information remains a trade secret, a time-unlimited standard that is self-limiting.
- Return or destruction: On request or at the end of the relationship, the recipient must return or certify destruction of confidential materials.
- Required carve-outs (do not omit): (1) DTSA whistleblower immunity: employees and contractors may disclose trade secrets to government officials or attorneys in confidence when reporting a suspected violation of law, or in a court filing under seal; (2) Employee rights: the NDA does not restrict employees from discussing wages, hours, or working conditions with coworkers or unions; (3) Legally compelled disclosure: recipient may disclose as required by law or court order, provided they give prompt notice to the disclosing party where permitted.
- Standard boilerplate: No license granted; injunctive relief is an appropriate remedy; governing law and venue; entire agreement; counterparts and e-signature acceptable.
- Electronic delivery and e-signature are fully acceptable: DocuSign, HelloSign, and similar platforms create enforceable agreements. Ensure the platform captures the signer's identity and retains a signed PDF with a timestamp and audit trail.
- Timing is critical: The NDA must be signed before confidential information is disclosed. An NDA signed after disclosure provides limited protection for the information that was already shared.
- Confidential marking practices: Either require recipients to treat all non-public information as confidential, or require the disclosing party to mark materials "Confidential" (or summarize oral disclosures in writing within a specified number of days). Choose one approach and apply it consistently.
- Centralized storage: Store all executed NDAs in a single location, HRIS for employees, a contract management system or shared folder for vendors and partners, indexed by counterparty so you can retrieve them quickly if a dispute arises.
- Signed NDAWith execution date, identified parties, stated purpose, and all required provisions (especially the DTSA whistleblower immunity notice).
- AmendmentsAny amendments, extensions, or modifications to the original agreement.
- Access logA list showing who has been granted access to which confidential repositories or materials under the agreement.
- Return certificationEnd-of-engagement certification of return or destruction, if your agreement requires it; obtain this in writing at offboarding or project close.
Common traps
FAQs
Does an NDA prevent employees from talking about their pay?
No. Employees have an NLRA-protected right to discuss wages, hours, and working conditions with coworkers and union representatives. An NDA cannot override those rights. Your NDA should include an explicit carve-out confirming this, and your confidentiality policy in the employee handbook should say the same thing.
Does an NDA prevent an employee from reporting misconduct to a government agency?
No. Federal law and most state laws protect an employee's right to report potential violations to agencies like the EEOC, NLRB, SEC, or OSHA regardless of what an NDA says. An NDA that purports to prevent such reports is unenforceable on that point. Include an explicit carve-out in the agreement to make this clear and to avoid misleading employees about their rights.
Why should employees sign an NDA rather than just following a handbook confidentiality policy?
A signed contract creates a specific, bilateral legal obligation and is enforceable in court as a breach-of-contract claim. A handbook policy is not a contract. For roles involving access to significant trade secrets, customer data, or proprietary technology, an NDA provides meaningfully stronger protection than a handbook policy alone.
- 18 U.S.C. § 1833(b): Defend Trade Secrets Act, Whistleblower Immunity Notice (required text for employee and contractor NDAs)
- SPEAK OUT Act (S.4524, signed December 7, 2022): makes pre-dispute NDAs unenforceable in sexual harassment and sexual assault disputes
- NLRB: Stericycle Decision (2023): current standard for evaluating whether confidentiality and other workplace rules chill NLRA-protected activity
- EEOC: Harassment Guidance: employees cannot be prevented by an NDA from filing charges or cooperating with EEOC investigations
- SPEAK OUT Act (federal, 2022): Pre-dispute NDAs are unenforceable for claims involving workplace sexual harassment or sexual assault in any federal, state, or tribal court proceeding. This applies only to agreements signed before a dispute arises; post-dispute settlement agreements are still enforceable.
- California, "Silenced No More" Act (SB 331, effective 2022): Among the broadest state restrictions. NDAs in settlement agreements cannot prevent employees from discussing facts related to claims of harassment, discrimination, or retaliation on any protected basis. Employers also cannot require a general release of unknown claims as a condition of settlement involving these claims.
- Washington (HB 1795, effective 2022): NDAs that prevent employees or independent contractors from discussing sexual harassment or assault are void as against public policy, both pre-dispute and settlement agreements.
- New York, New Jersey, Illinois, Maryland, Nevada, Oregon, and Vermont: Each has enacted restrictions on NDAs in harassment and discrimination settlement agreements. These vary in scope and covered claims; check each state's specific law for employer obligations in those jurisdictions.
- Non-competes and non-solicitation (separate issue): Several states, California, Minnesota, Oklahoma, North Dakota, and others, void or significantly restrict non-compete agreements. Keep non-compete and non-solicitation provisions in a separate document from your NDA to avoid those restrictions contaminating your confidentiality protections.
- M&A and data rooms: Use a mutual NDA with a defined need-to-know access list, specific carve-outs for required regulatory disclosures, and a destruction certification obligation at close. These agreements typically also specify that neither party may use the other's confidential information to solicit employees or customers.
This template is provided for informational purposes only and does not constitute legal advice. Review with qualified counsel before use.
This Confidentiality and Non-Disclosure Agreement ("Agreement") is entered into as of _____________, 20___, between [Company Name], a [state] [entity type] ("Company"), and [Employee Full Name] ("Employee").
1. Purpose. In connection with Employee's employment, Company may disclose to Employee certain confidential and proprietary information. This Agreement sets forth the obligations of Employee with respect to such information.
2. Confidential Information. "Confidential Information" means any non-public information disclosed by Company to Employee, or to which Employee obtains access in the course of employment, that relates to Company's business, operations, customers, finances, technology, or strategy, and that a reasonable person would consider confidential under the circumstances. Confidential Information does not include information that: (a) is or becomes publicly known through no act or omission of Employee; (b) Employee can demonstrate was already known to Employee prior to disclosure; (c) is independently developed by Employee without use of or reference to Confidential Information; or (d) is disclosed by Company to third parties without restriction.
3. Employee Obligations. Employee agrees to: (a) hold all Confidential Information in strict confidence; (b) not disclose Confidential Information to any third party without prior written consent of Company; (c) use Confidential Information solely in the performance of Employee's job duties; and (d) promptly notify Company of any unauthorized disclosure or use of Confidential Information of which Employee becomes aware.
4. Compelled Disclosure. If Employee is required by law, regulation, or valid court or government order to disclose Confidential Information, Employee will, to the extent permitted by law, provide Company with prompt written notice so that Company may seek a protective order or other appropriate relief. Employee will disclose only that portion of Confidential Information that is legally required to be disclosed.
5. NLRA Carve-Out. Nothing in this Agreement prohibits Employee from discussing wages, hours, or other terms and conditions of employment with co-workers or others, or from engaging in any other activity protected by the National Labor Relations Act. Nothing in this Agreement shall be construed to prevent Employee from filing a charge or complaint with, or participating in any investigation or proceeding conducted by, any government agency.
6. Whistleblower Immunity Notice (18 U.S.C. § 1833(b)). Pursuant to the Defend Trade Secrets Act of 2016, Employee will not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made: (a) 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 (b) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. If Employee files a lawsuit for retaliation for reporting a suspected violation of law, Employee may disclose related trade secrets to Employee's attorney and use that information in the court proceeding, provided any document containing the trade secret is filed under seal and Employee does not disclose the trade secret except pursuant to court order.
7. Sexual Harassment / Assault Disputes. Pursuant to the SPEAK OUT Act (Pub. L. 117-224), this Agreement does not apply to, and cannot be used to restrict Employee's disclosure of facts relating to, any sexual harassment dispute or sexual assault dispute as those terms are defined under applicable law.
8. Return of Materials. Upon termination of employment or upon Company's written request, Employee will promptly return or destroy all materials containing Confidential Information in Employee's possession or control, and will certify such return or destruction in writing upon request.
9. Duration. Employee's obligations with respect to Confidential Information will survive termination of employment and remain in effect for a period of [two (2) / three (3)] years following termination, except that obligations with respect to trade secrets will continue for so long as such information qualifies as a trade secret under applicable law.
10. No License. Nothing in this Agreement grants Employee any right, title, or interest in or to any Confidential Information or any intellectual property of Company.
11. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of [State], without regard to its conflict of laws principles.
12. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior agreements, representations, and understandings. This Agreement may not be amended except by a written instrument signed by both parties.
COMPANY:
Signature: ___________________________________ Date: ____________
Name: ___________________________________
Title: ___________________________________
EMPLOYEE:
Signature: ___________________________________ Date: ____________
Name: ___________________________________
Title/Position: ___________________________________
Before You Use This Template
- Agreement signed before the employee's start date or first day of access to confidential information.
- DTSA § 1833(b) whistleblower immunity notice included verbatim.
- NLRA carve-out included (permits wage/hour discussions and protected concerted activity).
- Government agency reporting carve-out included (SEC, NLRB, EEOC, OSHA, DOJ, etc.).
- SPEAK OUT Act exclusion included for sexual harassment/assault disputes.
- Confidential Information definition is narrowly tailored, not sweeping in publicly known information.
- Duration is reasonable for your industry (typically 1 to 3 years; trade secrets may be indefinite).
- Signed original retained in employee personnel file.
- Copy provided to employee.
- Reviewed by employment counsel for your state(s) of operation.