The nondisclosure agreement is a relatively straightforward exercise. It will generally provide that the employee will, during the course of her employment and for a period of time thereafter (often perpetually), guard the secrecy of the confidential information to which the employee is exposed during her tenure with the company.

Let's face it - this is basic stuff. A company should be able to hire employees without being concerned that they will lose their shirt in the process (as long as the scope of the agreement is reasonable).

The noncompete agreement generally restricts the business activities of the employee during and for a specific period after the termination of employment. As we all know by now, these agreements must be narrowly tailored (in scope (i.e., the actually business activities restricted), geographic reach, and time) to be enforceable, and the law as to what language is "enforceable" varies widely from state to state (in California, for example, such provisions are, pursuant to statute, void as against public policy).

"Nonsolicitation" provisions - those that proscribe the employee's ability to "reach back" and take with her employees to a previous employer - are subject to much less scrutiny and, it would be my guess, may also have been the subject of the case you described.

As far as the alleged provision requiring employees to "act in the best interests of the company and its employees," we might wonder what exactly that was intended to mean, and what specific conduct is prohibited pursuant to that language.

With respect to the "managing closely and holding your breath" recommendation - a company should, continually, review its policies and procedures with respect to allowing access to proprietary information. Managing closely means keeping your ear to the ground, and "checking in," as much as possible, with your employees.

As an employee, you have a lot to think about. If you have signed any of the agreements referenced above, review them carefully (and have them reviewed by competent counsel). You do not want to wind up spending the first month of your new job in court. Although it may appear to be simply a legal morass too complicated to navigate, there is a line at which the interests of the company and the employee should be able to be reconciled. My advice - do your best not to cross it.

"This article is prepared by Miller & Mitchell, P.C. We do not recommend acting on the information contained in this article without obtaining specific professional advice. These articles focus on broadly applicable legal principles. Contact Miller & Mitchell, P.C. for legal counsel."

For more information on e-policy and other workplace issues, contact Miller & Mitchell, P.C. cmiller@millermitchell.com

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