We’ve just updated all the clauses and contracts at TechContracts.com to address the Defense of Trade Secrets Act of 2016 (the “DTSA”). That includes the NDA’s and the other contracts that include confidentiality clauses at the Contracts page, as well as the confidentiality-related terms in the Clauses library. (On the Contracts page, only the NDA’s mention the DTSA in their descriptions, but the others have been updated too.)
As you may know, part of the DTSA — 18 USC Section 1833(b) — immunizes employees when they disclose trade secrets as part of a whistle-blowing effort or in an anti-retaliation suit (in each case, under certain circumstances). The section requires that employers give their employees notice of those rights and immunities. That’s what we’ve added to our form contracts and clauses: the required notice.
Weirdly, the statute says that the “employee” who gets the immunity and notice “includes any individual performing work as a contractor or consultant for an employer.” (18 USC Section 1833(b)(4).) So you can’t just put the notice in NDA’s and confidentiality clauses with employees; you need them in contracts with contractors too. Arguably, you don’t need it in contracts with company contractors: organizations bigger than one person. But I see little downside to including the notice in all NDA’s and confidentiality clauses, and that helps avoid errors. So that’s what we’ve done in our forms.
© 2016 by David W. Tollen. All rights reserved.