Can an employer enforce a confidentiality/gag agreement that is not specific and includes no recourse for employees?

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Can an employer enforce a confidentiality/gag agreement that is not specific and includes no recourse for employees?

Employer has given a “Confidentiality Agreement” to employees stating that for continued employment, we will have zero contact with the previous manager or his “agents.” The “agents” are not specified, and yet our employment is riding on it. Shouldn’t there be an arbitration clause or something so that if we have contact with someone that is later determined to be an “agent” – then we may be protected? Also, if we are personal friends with someone determined to be a “agent” outside of work, is the employer able to stipulate that “zero contact” can be had with them?

Asked on February 8, 2012 under Employment Labor Law, California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

Yes, an employer could enforce a contract like the one you describe. That does not mean that there might not be some ambiguity which, if push comes to shove, you and the company find yourself at loggerheads about interpretation, and litigation ensues, would be resolved by a court interpreting an agreement. However, some possible or apparent ambiguity does not make an agreement void or unenforceable; it simply means that the courts may have to get involved at some point, in the event of a dispute, in determining, for example, exactly who is an "agent."

Also, there is no obligation to provide for arbitation; the agreement can simply go right to a lawsuit in the event of a dispute.

As to the issue of personal friends--there is nothing inherently illegal about asking people to not speak to personal friends. If you agree to this, it is enforceable. It would be wise to attempt to deal with the issue up front, before you sign, by seeing if you can't identify specific persons who you will be allowed to continue contacting and getting their names into theh contract with that exception.


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