Are employee non-compete agreements enforceable in Missouri?
Yes, sometimes. Missouri is a reasonableness state, not a general ban state. A non-compete is enforceable only if it is reasonable — no more restrictive than necessary — and only to the extent it protects the employer's trade secrets or customer contacts, not mere competition. On a touch screen, a tap shows all 2 sources in this group.
Because covenants not to compete are restraints on trade, Missouri courts treat them as presumptively void and enforce them only to the extent they are demonstrably reasonable, with the employer carrying the burden of proof. On a touch screen, a tap shows all 2 sources in this group. Every contract in restraint of trade is unlawful as a baseline matter under Missouri's antitrust statute, which is the policy backdrop against which a covenant must be justified .
In practice, courts assess duration and geographic scope against the employer's actual operational footprint; restrictions of up to about two years are commonly within the range courts will consider, but reasonableness is always fact-specific .
Do not treat Missouri as a total-ban state, but do not assume any covenant is enforceable either. Start by identifying the trade secret or customer-contact interest the restraint actually protects; a covenant aimed at ordinary competition will not be enforced no matter how it is drafted. On a touch screen, a tap shows all 2 sources in this group.
Sources for this answer
Copeland states Missouri's core rule that a non-compete is reasonable only if no more restrictive than necessary to protect the employer's legitimate interests.
In practical terms, a non-compete agreement is reasonable if it is no more restrictive than is necessary to protect the legitimate interests of the employer.
See Healthcare Servs. of the Ozarks, Inc. v. Copeland, 198 S.W.3d 604 (Mo. banc 2006).
Copeland limits enforceable restraints to those protecting trade secrets or customer contacts, not mere competition.
In addition, such restrictions are not enforceable to protect an employer from mere competition by a former employee, but only to the extent that the restrictions protect the employer’s trade secrets or customer contacts.
See Healthcare Servs. of the Ozarks, Inc. v. Copeland, 198 S.W.3d 604 (Mo. banc 2006).
Yates states that non-competes are presumptively void restraints on trade, enforceable only to the extent demonstrably reasonable.
Generally, because covenants not to compete are considered to be restraints on trade, they are presumptively void and are enforceable only to the extent that they are demonstratively reasonable.
See Payroll Advance, Inc. v. Yates, 270 S.W.3d 428 (Mo. App. S.D. 2008).
Whelan places the burden on the employer to prove the covenant protects trade secrets or customer contacts and is reasonable in time and geography.
The employer has the burden to prove that the non-compete agreement protects its legitimate interests in trade secrets or customer contacts and that the agreement is reasonable as to time and geographic space.
See Whelan Sec. Co. v. Kennebrew, 379 S.W.3d 835 (Mo. banc 2012).
Section 416.031 declares contracts in restraint of trade unlawful, the policy backdrop for analyzing restrictive covenants.
Every contract, combination or conspiracy in restraint of trade or commerce in this state is unlawful.
See Mo. Rev. Stat. § 416.031(1).
What legitimate business interests can support a Missouri non-compete?
For an ordinary employee non-compete, only two: trade secrets and customer contacts. Missouri courts have carved out these narrow exceptions to the rule against restraints on trade, and the covenant must be tied to one of them. On a touch screen, a tap shows all 2 sources in this group.
A customer-contacts interest exists where the employee had substantial contact with customers and an opportunity to influence them; the employer need not prove the former employee actually solicited anyone. On a touch screen, a tap shows all 2 sources in this group.
The trade-secret interest is defined by the Missouri Uniform Trade Secrets Act, which protects information that derives independent economic value from secrecy and is subject to reasonable secrecy efforts .
A Missouri covenant reaches only two protectable interests — specific trade secrets and the customers the employee actually serviced — so a restraint written to block ordinary competition disconnected from either interest guards nothing the law will enforce and does not survive no matter how it is drafted. A covenant tied to identified trade secrets or serviced customers is measured against the interest it protects, and the trade-secret protections available under the Uniform Trade Secrets Act stand independently of the covenant's reach. On a touch screen, a tap shows all 2 sources in this group.
Sources for this answer
Copeland recognizes only trade secrets and customer contacts as protectable interests for a Missouri non-compete.
Missouri courts have carved out narrow exceptions for trade secrets and customer contacts.
See Healthcare Servs. of the Ozarks, Inc. v. Copeland, 198 S.W.3d 604 (Mo. banc 2006).
Paradise restates that Missouri recognizes two legitimate business interests: trade secrets and customer contacts.
Missouri recognizes two legitimate business interests: trade secrets and customer contacts.
See Paradise v. Midwest Asphalt Coatings, Inc., 316 S.W.3d 327 (Mo. App. W.D. 2010).
Osage Glass holds a covenant may be enforced where the employee had substantial customer contacts and an opportunity to influence customers.
If the covenant is lawful and the opportunity for influencing customers exists, enforcement is appropriate.
See Osage Glass, Inc. v. Donovan, 693 S.W.2d 71 (Mo. banc 1985).
Paradise holds the employer need not show actual solicitation to enforce a covenant protecting customer contacts.
An employer is not required to show actual solicitation or a willful violation of the non-compete agreement.
See Paradise v. Midwest Asphalt Coatings, Inc., 316 S.W.3d 327 (Mo. App. W.D. 2010).
Section 417.453 defines a trade secret as information deriving independent economic value from secrecy and subject to reasonable secrecy efforts.
Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; and (b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
See Mo. Rev. Stat. § 417.453(4).
How does Missouri treat employee no-hire and customer non-solicitation covenants?
They follow two different tracks. Covenants not to solicit, recruit, or hire the employer's own workforce have a statutory safe harbor under section 431.202 — conclusively presumed reasonable if their post-employment duration is no more than one year — while covenants not to solicit customers are judged under the common-law reasonableness test. On a touch screen, a tap shows all 2 sources in this group.
Section 431.202 reaches a covenant promising not to solicit, recruit, hire, or otherwise interfere with the employment of one or more of the employer's employees — an anti-raiding or no-hire covenant, not a customer restriction. Such a covenant is enforceable when it protects the employer's confidential information or its customer or supplier relationships, goodwill, or loyalty, or even without one of those interests if it runs no more than one year — except that the one-year route does not apply to employees who provide only secretarial or clerical services . Section 431.202 is not a general non-compete statute; it expressly does not create or affect the enforceability of employer-employee covenants not to compete, which remain governed by the common-law reasonableness test .
An employee no-hire or anti-raiding covenant in the agreement is measured against the section 431.202 safe harbor: a covenant resting on no separate protectable interest is conclusively presumed reasonable only where its post-employment duration runs no more than one year, so a term set past one year loses that conclusive presumption and falls back to a facts-and-circumstances reasonableness inquiry . The one-year route does not reach an employee who provided only secretarial or clerical services, so a covenant that binds clerical staff on the strength of duration alone sits outside the safe harbor and stands only on an independent protectable interest .
Customer non-solicitation is a separate, common-law inquiry. In Whelan, the Missouri Supreme Court found a customer non-solicitation clause overbroad as written because it reached customers regardless of the employee's relationship with them — including prospective customers — beyond the employer's legitimate customer-contacts interest .
Section 431.202 does not reach a customer non-solicitation covenant, so a customer restriction stands or falls on the common-law reasonableness test rather than the one-year safe harbor. A covenant that reaches customers regardless of the employee's relationship with them — including prospective customers the employee never served — is broader than the employer's legitimate customer-contacts interest and overbroad as written, the defect that left the Whelan clause enforceable only as to its serviced-customer core . A customer non-solicit confined to customers the employee actually serviced or had substantial contact with is measured against the interest it protects, and it pairs with the confidentiality and trade-secret protections that do not depend on the covenant's reach.
Sources for this answer
Section 431.202 conclusively presumes a qualifying employee no-hire/anti-raiding covenant reasonable if its post-employment duration is no more than one year.
Whether a covenant covered by this section is reasonable shall be determined based upon the facts and circumstances pertaining to such covenant, but a covenant covered exclusively by subdivision (3) or (4) of subsection 1 of this section shall be conclusively presumed to be reasonable if its postemployment duration is no more than one year.
See Mo. Rev. Stat. § 431.202.2.
Section 431.202's one-year safe harbor for covenants resting on no separate protectable interest excludes purely secretarial or clerical employees.
Between an employer and one or more employees, notwithstanding the absence of the protectable interests described in subdivision (3) of this subsection, so long as such covenant does not continue for more than one year following the employee's employment; provided, however, that this subdivision shall not apply to covenants signed by employees who provide only secretarial or clerical services.
See Mo. Rev. Stat. § 431.202.1(4).
Whelan held, under common law, that a customer non-solicitation clause was overbroad as written because it reached beyond the employer's legitimate customer-contacts interest.
As written, the customer non-solicitation clauses are more broad than necessary to protect Whelan’s legitimate interest in customer contacts.
See Whelan Sec. Co. v. Kennebrew, 379 S.W.3d 835 (Mo. banc 2012).
What consideration is required to support a Missouri non-compete?
This is unsettled. Missouri appellate cases have treated continued at-will employment plus access to the employer's customers or trade secrets as adequate consideration, but the Missouri Supreme Court's reasoning that an at-will promise is illusory — and a federal court applying it to a non-compete — has cast real doubt on relying on continued employment alone. On a touch screen, a tap shows all 3 sources in this group.
In JumboSack, the court of appeals recognized continued employment as consideration where the employee also received access to protectable assets and relationships . But in Baker v. Bristol Care, the Missouri Supreme Court held that a promise of continued at-will employment is not valid consideration because the employer promises nothing it is not already free to do . A federal court then applied that reasoning directly to a non-compete in Durrell, concluding that at-will employment is not a source of consideration under Missouri contract law .
Baker arose in the arbitration context, holding that there was no consideration to create a valid arbitration agreement , and the Missouri Supreme Court has not squarely resolved the question for non-competes. Durrell, which applied that reasoning to a non-compete, is a federal district court decision .
A consideration provision that relies only on continued at-will employment leaves a Missouri non-compete exposed to an enforceability challenge that the Missouri Supreme Court has not resolved for non-competes. On a touch screen, a tap shows all 2 sources in this group. A covenant supported by an independent benefit documented at signing, such as a signing bonus, a raise, or specialized training, does not depend on continued at-will employment, while a covenant resting only on the continued-employment-plus-access theory of JumboSack depends on that unresolved question.
Sources for this answer
JumboSack recognizes continued at-will employment plus access to the employer's customers and assets as consideration for a non-compete.
In the instant case, Employee received in consideration for his covenant not to compete, access to Employer’s new and existing customers, as well as continued at-will employment, salary, and commissions.
See JumboSack Corp. v. Buyck, 407 S.W.3d 51 (Mo. App. E.D. 2013).
Baker holds a promise of continued at-will employment is not valid consideration because the employer makes no enforceable promise.
An offer of continued at-will employment is not valid consideration because the employer makes no legally enforceable promise to do or refrain from doing anything it is not already entitled to do.
See Baker v. Bristol Care, Inc., 450 S.W.3d 770 (Mo. banc 2014).
Baker decided whether an employer's arbitration agreement with an at-will employee was supported by consideration, and held it was not.
This Court affirms the circuit court’s order because there was no consideration to create a valid arbitration agreement.
See Baker v. Bristol Care, Inc., 450 S.W.3d 770 (Mo. banc 2014).
Durrell applied Baker to a non-compete, holding at-will employment is not a source of consideration under Missouri law.
An offer of at-will employment, or the continuation of at-will employment, is simply not a source of consideration under Missouri contract law.
See Durrell v. Tech Elecs., Inc., No. 4:16-cv-01367, 2016 WL 6833956 (E.D. Mo. Nov. 15, 2016).
Will a Missouri court modify (blue-pencil) an overbroad non-compete?
It can, but it does not have to. Missouri courts have authority to refuse to enforce unreasonable terms or to modify an overbroad covenant to make it reasonable, yet modification is discretionary — a court may instead decline to enforce the covenant at all. On a touch screen, a tap shows all 2 sources in this group.
In Sigma-Aldrich, the court of appeals affirmed both the trial court's refusal to enforce a covenant that lacked any geographic or other non-temporal limit and its discretionary decision not to rewrite it . There is also a litigation-economics trap: an employer that needs the court to blue-pencil its overbroad agreement may not qualify as the prevailing party and can lose its contractual right to attorney's fees . For a clause-by-clause pass over a specific agreement against these drafting rules, the Missouri non-compete reviewer checklist walks the full covenant suite item by item with each requirement's force level.
A Missouri court that finds a covenant overbroad may either strike the unreasonable terms or rewrite the covenant to a reasonable scope, but that power is discretionary, not a safety net . A court may instead decline both to enforce and to modify — the outcome in Sigma-Aldrich, where a covenant carrying no geographic or other non-temporal limit was left unenforced rather than rewritten — so a covenant drafted to the outer edge on the assumption a judge will narrow it risks total non-enforcement . The cost compounds at the fee stage: a contractual attorney-fee award runs only to the prevailing party, so an employer that needs the court to narrow its own covenant before enforcing it may forfeit the fee award even where the covenant is ultimately enforced as modified . A covenant sized to a reasonable scope and a proven protectable interest from the outset is enforceable as written rather than in reliance on judicial revision.
Sources for this answer
Whelan states courts may refuse to enforce unreasonable terms or modify an overbroad covenant to be reasonable.
Accordingly, when the provisions of a non-compete clause impose a restraint that is unreasonably broad, appellate courts still can give effect to its purpose by refusing to give effect to the unreasonable terms or modifying the terms of the contract to be reasonable.
See Whelan Sec. Co. v. Kennebrew, 379 S.W.3d 835 (Mo. banc 2012).
Sigma-Aldrich affirms that a court may, in its discretion, refuse to modify an overbroad covenant and decline to enforce it.
The trial court also did not err by using its discretion and refusing to modify the Agreement.
See Sigma-Aldrich Corp. v. Vikin, 451 S.W.3d 767 (Mo. App. E.D. 2014).
Paradise conditions a contractual attorney's-fee award on prevailing-party status, which an employer needing modification may lose.
Notwithstanding any affirmative defense, a party requesting payment of contractual attorney fees must be the prevailing party.
See Paradise v. Midwest Asphalt Coatings, Inc., 316 S.W.3d 327 (Mo. App. W.D. 2010).
Does a Missouri non-compete period toll or extend during a breach or litigation?
Missouri law does not squarely answer this. Neither the non-solicitation safe harbor nor the owner-covenant statute addresses whether a restricted period pauses (tolls) while a former employee is violating the covenant or while litigation is pending, and Missouri appellate courts have not laid down a clear rule on judicial or contractual tolling for non-competes. On a touch screen, a tap shows all 2 sources in this group.
This is an open question, so treat it conservatively. The statutory presumptions in section 431.202 are framed around a fixed post-employment duration, and Whelan measures reasonableness against the covenant's stated time and geographic terms — so a clause that effectively lengthens the restraint by tolling could be tested against those same reasonableness and safe-harbor limits. On a touch screen, a tap shows all 2 sources in this group.
Missouri law does not clearly require a court to toll or extend a restricted period during a breach or during litigation, so an extension-on-breach term operates as a contractual extension whose added time is itself part of the restraint measured for reasonableness. An extension that pushes an employee non-solicitation covenant past the one-year duration keyed to the section 431.202 conclusive presumption trades a known-good duration for an open reasonableness question . An extension that stretches any covenant beyond its stated time terms is tested against the same time-and-geography reasonableness the covenant must satisfy in the first place, so a tolling clause left open-ended or indefinite exposes the covenant to a reasonableness challenge it would otherwise avoid .
Sources for this answer
Section 431.202's conclusive presumption is keyed to a fixed one-year post-employment duration, a benchmark a tolling clause could push past.
Whether a covenant covered by this section is reasonable shall be determined based upon the facts and circumstances pertaining to such covenant, but a covenant covered exclusively by subdivision (3) or (4) of subsection 1 of this section shall be conclusively presumed to be reasonable if its postemployment duration is no more than one year.
See Mo. Rev. Stat. § 431.202.2.
Whelan measures reasonableness against the covenant's stated time and geographic terms, the yardstick an extension-on-breach clause would be tested against.
The employer has the burden to prove that the non-compete agreement protects its legitimate interests in trade secrets or customer contacts and that the agreement is reasonable as to time and geographic space.
See Whelan Sec. Co. v. Kennebrew, 379 S.W.3d 835 (Mo. banc 2012).
What rules apply to owner and sale-of-business covenants under section 431.204?
A separate statute governs them. Section 431.204, effective August 28, 2023, presumes certain covenants between a business entity and an owner enforceable: an owner's covenant not to solicit, recruit, hire, or interfere with the entity's employees or owners for up to two years, and an owner's customer non-solicitation covenant of up to five years limited to customers the owner dealt with. On a touch screen, a tap shows all 2 sources in this group.
Section 431.204 also imposes a mandatory reformation rule that differs sharply from the discretionary blue-penciling used for ordinary employment covenants: if an owner covenant is overbroad, a court shall modify it and enforce it as modified . Like section 431.202, it is not a general non-compete statute and does not change the enforceability of covenants not to compete except as the section provides .
Confirm the covenant is actually between a business entity and an owner before relying on section 431.204 — its caps and its mandatory-modification rule apply to owner covenants, not to ordinary employee non-competes. Because the section does not define owner, make sure the covenanting party genuinely holds an ownership interest rather than a nominal equity stake. On a touch screen, a tap shows all 2 sources in this group.
Sources for this answer
Section 431.204 presumes an owner's covenant not to solicit or interfere with the entity's employees or owners enforceable if it runs no more than two years after the owner's relationship ends.
A reasonable covenant in writing promising not to solicit, recruit, hire, induce, persuade, encourage, or otherwise interfere with, directly or indirectly, the employment of one or more employees or owners of a business entity shall be presumed to be enforceable and not a restraint of trade pursuant to subsection 1 of section 416.031 if it is between a business entity and the owner of the business entity and does not continue for more than two years following the end of the owner's business relationship with the business entity.
See Mo. Rev. Stat. § 431.204.1.
Section 431.204 presumes an owner customer non-solicitation covenant enforceable up to five years if limited to customers the owner dealt with.
A reasonable covenant in writing promising not to solicit, induce, direct, or otherwise interfere with, directly or indirectly, a business entity's customers, including any reduction, termination, or transfer of any customer's business, in whole or in part, for the purposes of providing any product or any service that is competitive with those provided by the business entity shall be presumed to be enforceable and not a restraint of trade pursuant to subsection 1 of section 416.031 if the covenant is limited to customers with whom the owner dealt and if the covenant is between a business entity and an owner, so long as the covenant does not continue for more than five years following the end of the owner's business relationship with the business entity.
See Mo. Rev. Stat. § 431.204.2.
Section 431.204 requires a court to modify an overbroad owner covenant and enforce it as modified.
If a covenant is overbroad, overlong, or otherwise not reasonably necessary to protect the protectable business interests of the business entity seeking enforcement of the covenant, a court shall modify the covenant, enforce the covenant as modified, and grant only the relief reasonably necessary to protect such interests.
See Mo. Rev. Stat. § 431.204.4.
Section 431.204 does not create or affect the enforceability of covenants not to compete except as the section provides.
Nothing in this section is intended to create or to affect the validity or enforceability of covenants not to compete, other types of covenants, or nondisclosure or confidentiality agreements, except as expressly provided in this section.
See Mo. Rev. Stat. § 431.204.5.
Are physician and healthcare non-competes restricted in Missouri?
Not yet by statute. Physician non-competes in Missouri are still governed by the common-law reasonableness test, and repeated legislative attempts to cap them have not become law. On a touch screen, a tap shows all 2 sources in this group.
Missouri legislators have repeatedly introduced bills to cap physician covenants in recent sessions. The most recent, the 2026 Missouri Rural Doctors Act (HB 2979), would make a physician non-compete with a nonprofit employer enforceable only in a clinical setting and only within 365 days and five miles, with a carve-out for research university hospitals . As of this review none of these bills had been enacted, so physician covenants remain governed by the common-law reasonableness standard .
A physician or other health-care covenant in the agreement is tested under the ordinary Copeland reasonableness standard, not a profession-specific cap: Missouri fixes no statutory duration or radius for physician non-competes, so a physician restraint holds only to the extent it is no more restrictive than is necessary to protect the employer's trade secrets or customer contacts — here, patient and referral relationships . A physician covenant carried over from a jurisdiction that does cap duration or radius, or drafted to a broad radius and a long term, is measured against that reasonableness standard alone and against the patient-access and continuity-of-care interests a court weighs. The 365-day, five-mile framework proposed for nonprofit-employer physician covenants in HB 2979 had not been enacted as of this review, so a covenant drafted in anticipation of it rests on law that does not yet govern .
Sources for this answer
Copeland's reasonableness standard governs physician and other professional non-competes absent a profession-specific statute.
In practical terms, a non-compete agreement is reasonable if it is no more restrictive than is necessary to protect the legitimate interests of the employer.
See Healthcare Servs. of the Ozarks, Inc. v. Copeland, 198 S.W.3d 604 (Mo. banc 2006).
HB 2979 (2026), as introduced, would limit physician non-competes with nonprofit employers to a clinical setting, 365 days, and five miles, with a research-university-hospital carve-out.
A covenant not to compete between a physician and a nonprofit employer shall be valid and enforceable only if: (1) The physician is providing health care services in a clinical setting; (2) The covenant not to compete does not restrict the physician's competitive activities for a period of more than three hundred sixty-five days; and (3) The covenant not to compete does not restrict the physician's competitive activities in a geographic area of more than five miles from the address of the office or facility in which the physician provides health care services in a clinical setting.
See Mo. H.B. 2979, 103d Gen. Assemb., 2d Reg. Sess. (2026) (as introduced).
What remedies are available when a Missouri non-compete is breached?
Damages, injunctive relief, and a parallel trade-secret track. A liquidated-damages clause is enforceable if it is a reasonable forecast of damages rather than a penalty, and the Uniform Trade Secrets Act separately authorizes injunctions against actual or threatened trade-secret misappropriation. On a touch screen, a tap shows all 2 sources in this group.
A liquidated-damages provision is valid in Missouri when the amount is a reasonable forecast of the harm and the harm is difficult to estimate; the Eighth Circuit, applying Missouri law in Mayer Hoffman McCann, upheld a large award measured by the fees from diverted clients . The Missouri Uniform Trade Secrets Act supplies an independent path to relief: it authorizes injunctions for actual or threatened misappropriation and expressly preserves contractual remedies, so a trade-secret claim can stand even where a covenant is narrow or unenforceable. On a touch screen, a tap shows all 2 sources in this group.
“If both requirements are met, the liquidated damages provision is valid.”
A liquidated-damages clause holds in Missouri only as a genuine, reasonable forecast of hard-to-measure harm; one set as a deterrent penalty is unenforceable, leaving actual damages to be proven the hard way. Relief that rides solely on the covenant fails with the covenant, so a separate confidentiality and trade-secret strategy under the Uniform Trade Secrets Act supplies an independent path to relief that survives even where the covenant is narrow or unenforceable. On a touch screen, a tap shows all 2 sources in this group.
Sources for this answer
Mayer Hoffman McCann states Missouri's two-part test for enforceable liquidated damages: a reasonable forecast of harm that is difficult to estimate.
If both requirements are met, the liquidated damages provision is valid.
See Mayer Hoffman McCann, P.C. v. Barton, 614 F.3d 893 (8th Cir. 2010).
Section 417.455 authorizes injunctions for actual or threatened trade-secret misappropriation.
Actual or threatened misappropriation may be enjoined.
See Mo. Rev. Stat. § 417.455.1.
Section 417.463 preserves contractual remedies alongside the Uniform Trade Secrets Act.
Sections 417.450 to 417.467 shall not affect: (1) Contractual remedies, whether or not based upon misappropriation of a trade secret; or
See Mo. Rev. Stat. § 417.463.2(1).
What does federal law require a non-compete or confidentiality agreement in Missouri to say about whistleblowers and pay?
An employee confidentiality, non-compete, or invention assignment agreement signed or updated now that governs trade secrets or other confidential information must give the Defend Trade Secrets Act whistleblower-immunity notice, and for employees the National Labor Relations Act covers, Section 7 of that Act protects concerted activity, including joining together over pay and working conditions, that a broad confidentiality clause can restrict. The employer may satisfy the notice duty by cross-referencing a qualifying policy document provided to the employee, but an employer that omits the notice may not be awarded exemplary damages or attorney fees under the Defend Trade Secrets Act in an action against an employee who was not given notice.
The notice describes a federal immunity: an individual cannot be held liable under federal or state trade-secret law for disclosing a trade secret in confidence to a government official or an attorney solely to report or investigate a suspected violation of law, or in a court filing made under seal. For an agreement signed or updated now, the duty to give that notice reaches any agreement with an employee that governs trade secrets or other confidential information, whatever else the agreement does.
Section 7 gives employees the National Labor Relations Act covers a statutory right to engage in concerted activity for mutual aid or protection, including joining together to improve pay and working conditions. For employees the Act covers, the Board's work-rule standard adopted in 2023 makes a rule presumptively unlawful if it has a reasonable tendency to chill employees from exercising their Section 7 rights; an employer can rebut that presumption only by showing a legitimate and substantial business interest it cannot serve with a more narrowly tailored rule. The 2023 standard may change, but the Section 7 right it enforces is statutory. State law may add its own requirements for the same clauses.
A form carried over without the immunity notice, or a cross-reference to a reporting policy the employee never received, leaves the confidentiality clause without a valid notice, so the Act's exemplary damages and attorney fees are unavailable against that employee. A Confidential Information definition that sweeps in pay and working conditions with no carve-out exposes the employer to an unfair-labor-practice finding for employees the Act covers.
Sources for this answer
An individual is immune from criminal and civil liability under federal and state trade-secret law for disclosing a trade secret in confidence to a government official or an attorney solely to report or investigate a suspected violation of law, or in a court filing made under seal.
An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that— (A) is made— (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
See 18 U.S.C. § 1833(b)(1).
An employer must give notice of the trade-secret whistleblower immunity in any contract or agreement with an employee that governs the use of a trade secret or other confidential information.
An employer shall provide notice of the immunity set forth in this subsection in any contract or agreement with an employee that governs the use of a trade secret or other confidential information.
See 18 U.S.C. § 1833(b)(3)(A).
An employer complies with the notice requirement by cross-referencing a policy document, provided to the employee, that sets out the employer's reporting policy for a suspected violation of law.
An employer shall be considered to be in compliance with the notice requirement in subparagraph (A) if the employer provides a cross-reference to a policy document provided to the employee that sets forth the employer's reporting policy for a suspected violation of law.
See 18 U.S.C. § 1833(b)(3)(B).
An employer that does not give the required notice may not be awarded exemplary damages or attorney fees in a trade-secret action against an employee who did not receive it.
If an employer does not comply with the notice requirement in subparagraph (A), the employer may not be awarded exemplary damages or attorney fees under subparagraph (C) or (D) of section 1836(b)(3) in an action against an employee to whom notice was not provided.
See 18 U.S.C. § 1833(b)(3)(C).
Section 7 gives employees the right to engage in concerted activities for mutual aid or protection, the statutory basis for keeping discussion of pay and working conditions outside confidentiality restrictions.
Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158(a)(3) of this title.
See 29 U.S.C. § 157 (NLRA § 7).
The National Labor Relations Board protects the right of private-sector employees, with or without a union, to join together to improve wages, benefits, and working conditions.
Established in 1935, the National Labor Relations Board is an independent federal agency that protects employees from unfair labor practices and protects the right of private sector employees to join together, with or without a union, to improve wages, benefits and working conditions.
See NLRB Office of Public Affairs, news release of Feb. 21, 2023 (agency mission statement).
Under the work-rule standard the Board adopted in 2023, a rule with a reasonable tendency to chill employees from exercising their Section 7 rights is presumptively unlawful unless the employer proves a legitimate and substantial business interest it cannot advance with a more narrowly tailored rule.
Under the new standard adopted in Stericycle, the General Counsel must prove that a challenged rule has a reasonable tendency to chill employees from exercising their rights. If the General Counsel does so, then the rule is presumptively unlawful. However, the employer may rebut the presumption by proving that the rule advances a legitimate and substantial business interest and that the employer is unable to advance that interest with a more narrowly tailored rule.
See Stericycle, Inc., 372 NLRB No. 113 (2023); NLRB Office of Public Affairs, Board Adopts New Standard for Assessing Lawfulness of Work Rules (Aug. 2, 2023).