The biopharmaceutical industry features growth and job mobility. Competition for talented employees creates opportunities for
them but headaches for management.
The key employees are a company's greatest assets. Besides losing the talent when they quit, the second biggest loss could
be confidential, proprietary, or trade secret information. Your strongest defense is requiring employees to sign non-competition
and non-disclosure agreements.
These agreements are legal documents and must be written broad enough to protect the company and narrow enough to be enforceable.
We have prepared a series of three columns to describe the basic components of such agreements. If you are an employer or
employee in the US, you want to know what you are signing.
THE PURPOSE OF NON-COMPETITION AND NON-DISCLOSURE AGREEMENTS
Generally speaking, the purpose of non-competition and non-disclosure agreements is to protect the confidential, proprietary,
and trade secret information of employers. The aim of these agreements is to ensure that competition in a given marketplace
is conducted on an equal footing and that no company can inappropriately use another's secret information to gain an unfair
competitive advantage. However, the courts view non-competition and non-disclosure agreements as, in part, restraints on trade
and restraints on an individual's ability to earn a living. Therefore, courts scrutinize non-competition and non-disclosure
agreements to ensure that they serve the limited purpose of protecting confidential, proprietary, or trade secret information.
The definition of confidential, proprietary, or trade secret information varies from state to state. Generally speaking, product
formulations, manufacturing processes, client lists, customer lists, database information, and marketing and strategic plans
fall within this definition. These are the appropriate topics for non-competition and non-disclosure agreements. Conversely,
information that is generally regarded as public record and standard knowledge in a given industry is not properly subject
to protection by non-competition and non-disclosure agreements. This is the first level of narrowing.
THE ASSESSMENT PROCESS
The employer's first step in considering whether to use non-competition and non-disclosure agreements is to assess, analyze,
and understand the benefits of such agreements. The first step in the assessment process is identifying the types of information
categorized as confidential, proprietary, or trade secret. Then identify particular employees or groups of employees who possess
or will learn about that information. The best and most-enforceable non-competition and non-disclosure agreements are ones
that are narrowly tailored to ensure that those employees do not disseminate the information following cessation of their
employment with the company.
The simplest and most cost-effective way to address non-competition and non-disclosure issues is to do so at the drafting
stage. Properly thought-out and drafted agreements will provide employers with sufficient protection and will likely preclude
dissemination of its confidential, proprietary, and trade secret information. In contrast, "boilerplate" agreements, with
no thought or legal guidance behind them, put employers and their most important information at risk.
Companies should perform the above-referenced assessment as a matter of course when drafting non-competition and non-disclosure
agreements. Courts are notorious for subjecting agreements to intense scrutiny. Advising the court of such an assessment at
the litigation stage of any non-compete case will certainly benefit the company. It demonstrates to the court that the employer
is, in good faith, simply trying to protect its most important information and not unduly attempting to restrain trade or
an individual's right to earn a living as a trained specialist.
THE MAW CASE
Maw v. Advance Clinical Communications, Inc. 359 N.J. Super. 420 (App. Div. 2003) went to two levels of state court. The case underscores the importance of the assessment process and provides employers with
a clear view of how strictly courts may assess non-competition and nondisclosure agreements. The New Jersey Appellate Court
sided with an employee, a graphic designer, who refused to sign a non-competition and non-disclosure agreement and was terminated
for her refusal to do so. The court's decision was that the employee could properly assert a cause of action for retaliation
and wrongful discharge. Essentially, the court concluded that the employee's position with the company did not provide her
with access to any confidential or proprietary business information. Thus, the court concluded that the employer had no legitimate,
good-faith basis to compel her to execute a non-competition and non-disclosure agreement, as there was no need to restrain
her future employment.