Recent Developments Again Call For Timely Review Of Restrictive Covenants

We have suggested before that employers should view non-competition and other restrictive agreements as "live" documents, warranting regular examination to ensure they are deployed with appropriate precision and account for frequent legal developments. Four such recent developments once again suggest that a review, and most likely revision, of your confidentiality, trade secret, and non-competition agreements would be a timely and appropriate exercise to undertake.

First, the Defend Trade Secrets Act of 2016 (DTSA) requires that certain whistleblower protection language, allowing the disclosure of trade secrets in certain circumstances and under certain conditions, be included in agreements. If such language is not part of new agreements, an employer may not recover exemplary damages or attorney fees for a trade secret violation under the DTSA.