The document discusses non-disclosure agreements (NDAs) and non-compete agreements between employers and employees. It states that while non-compete agreements may not be enforceable under Oklahoma law, reasonable NDAs that restrict sharing of confidential business information are usually enforceable. The document provides examples of confidential information and sample NDA language, noting employers should reasonably define restricted information and consider impacts on employees' future careers.

1. Non Disclosure and Non Compete Agreements
The ties that bind us.
sjr@shawnjroberts.com
Thursday, January 27, 2011

2. The Law
Thursday, January 27, 2011

3. The Law
•A. A person who makes an agreement with an employer, whether in
writing or verbally, not to compete with the employer after the
employment relationship has been terminated, shall be permitted to
engage in the same business as that conducted by the former
employer or in a similar business as that conducted by the former
employer as long as the former employee does not directly solicit the
sale of goods, services or a combination of goods and services from
the established customers of the former employer.
Thursday, January 27, 2011

4. The Law
•A. A person who makes an agreement with an employer, whether in
writing or verbally, not to compete with the employer after the
employment relationship has been terminated, shall be permitted to
engage in the same business as that conducted by the former
employer or in a similar business as that conducted by the former
employer as long as the former employee does not directly solicit the
sale of goods, services or a combination of goods and services from
the established customers of the former employer.
Thursday, January 27, 2011

5. The Law
•A. A person who makes an agreement with an employer, whether in
writing or verbally, not to compete with the employer after the
employment relationship has been terminated, shall be permitted to
engage in the same business as that conducted by the former
employer or in a similar business as that conducted by the former
employer as long as the former employee does not directly solicit the
sale of goods, services or a combination of goods and services from
the established customers of the former employer.
•B. Any provision in a contract between an employer and an
employee in conflict with the provisions of this section shall be void
and unenforceable.
Thursday, January 27, 2011

6. The Law
•A. A person who makes an agreement with an employer, whether in
writing or verbally, not to compete with the employer after the
employment relationship has been terminated, shall be permitted to
engage in the same business as that conducted by the former
employer or in a similar business as that conducted by the former
employer as long as the former employee does not directly solicit the
sale of goods, services or a combination of goods and services from
the established customers of the former employer.
•B. Any provision in a contract between an employer and an
employee in conflict with the provisions of this section shall be void
and unenforceable.
Thursday, January 27, 2011

7. The Law
•A. A person who makes an agreement with an employer, whether in
writing or verbally, not to compete with the employer after the
employment relationship has been terminated, shall be permitted to
engage in the same business as that conducted by the former
employer or in a similar business as that conducted by the former
employer as long as the former employee does not directly solicit the
sale of goods, services or a combination of goods and services from
the established customers of the former employer.
•B. Any provision in a contract between an employer and an
employee in conflict with the provisions of this section shall be void
and unenforceable.
Title 15 O.S. sec. 291A.
Thursday, January 27, 2011

8. A couple of exceptions . . . .
One who sells the goodwill of a business may agree
Partners may, upon or in anticipation of a dissolution of
the partnership
Partners may, upon or in anticipation of a dissolution
of the partnership, agree that none of them will carry
on a similar business within a specified county and any
county or counties contiguous thereto, or a specified
city or town or any part thereof.
Thursday, January 27, 2011

9. NON COMPETE VS. NON DISCLOSURE
Protecting Investment
vs.
Protecting Information
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10. WHILE A NONCOMPETE IS
PROBABLY NOT
ENFORCEABLE . . .
reasonable NON DISCLOSURE PROVISIONS USUALLY are
ENFORCEABLE, in the employment setting and elsewhere
Thursday, January 27, 2011

11. NON DISCLOSURE
A non-disclosure agreement, also known as a
confidentiality agreement, confidential disclosure agreement,
proprietary information agreement, or secrecy agreement, is
a legal contract between at least two parties that outlines
confidential material, knowledge, or information that the
parties wish to share with one another for certain purposes,
but wish to restrict access to by third parties.
Thursday, January 27, 2011

12. NON DISCLOSURE
A non-disclosure agreement, also known as a
confidentiality agreement, confidential disclosure agreement,
proprietary information agreement, or secrecy agreement, is
a legal contract between at least two parties that outlines
confidential material, knowledge, or information that the
parties wish to share with one another for certain purposes,
but wish to restrict access to by third parties.
there are unilateral NDAs, many of
the same principles apply
Thursday, January 27, 2011

13. NON DISCLOSURE
A non-disclosure agreement, alsoa knowncompanyprior toto
for instance, when a as a wants
disclose product for review
confidentiality agreement, confidential disclosure agreement,
release
proprietary information agreement, or secrecy agreement, is
a legal contract between at least two parties that outlines
confidential material, knowledge, or information that the
parties wish to share with one another for certain purposes,
but wish to restrict access to by third parties.
there are unilateral NDAs, many of
the same principles apply
Thursday, January 27, 2011

14. NON DISCLOSURE
A non-disclosure agreement, alsoa knowncompanyprior toto
or to allow use of a company’s for instance, when a as a wants
disclose product for review
information
confidentiality agreement, confidential disclosure agreement,
release
proprietary information agreement, or secrecy agreement, is
a legal contract between at least two parties that outlines
confidential material, knowledge, or information that the
parties wish to share with one another for certain purposes,
but wish to restrict access to by third parties.
there are unilateral NDAs, many of
the same principles apply
Thursday, January 27, 2011

15. SAMPLE LANGUAGE
Thursday, January 27, 2011

16. SAMPLE LANGUAGE
Non-Disclosure. Except when directed in writing to do
otherwise by Employer, and except as required by law,
court order or subpoena, Employee shall keep
confidential and shall not divulge to any other person or
entity, during the term of this Agreement or at any time
thereafter, any Confidential Information.
Thursday, January 27, 2011

17. Thursday, January 27, 2011

18. “Confidential Information” means proprietary business information, Trade Secrets and/or
other confidential information regarding Employer or any of its clients, including, without
limitation, attorney/client communications which (i) have not otherwise become public
knowledge, (ii) were not already known to Employee or learned by Employee from
independent and unrestricted sources prior to the Effective Date, and (iii) have not been
disclosed by Employer to others without substantial restriction on further disclosure.
“Trade Secrets” means any proprietary information not generally known in the industry in
which Employer or its clients are engaged or may become engaged, including, without
limitation, information relating to Employer’s or its clients’ business affairs, finances,
properties, methods of operation, software developed by Employer or its clients, submission
and proposal procedures of Employer, Employer’s client or contact lists, commercial
information supplied to Employer by Employer’s clients, and other confidential information
respecting the business or affairs of Employer or its clients. Employee acknowledges and
agrees that the business and good will of Employer depends upon its keeping such
Confidential Information confidential.
Thursday, January 27, 2011

19. POINT OF CLARIFICATION
Calling information a “trade secret” does not make it so, there is
a specific definition of “trade secret” under Oklahoma law:
Thursday, January 27, 2011

20. a. derives independent economic
value, actual or potential, from not being generally known
POINT OF CLARIFICATION
to, and not being readily ascertainable by proper means by, other
persons who can obtain economic value from its
disclosure or use, and
Calling information a “trade secret” does not make it so, there is
a specific definition of “trade secret” under Oklahoma law:
Thursday, January 27, 2011

21. a. derives independent economic
value, actual or potential, from not being generally known
POINT OF CLARIFICATION
to, and not being readily ascertainable by proper means by, other
persons who can obtain economic value from its
disclosure or use, and
Calling information a “trade secret” does not make it so, there is
a specific definition of “trade secret” under Oklahoma law:
b. is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
Thursday, January 27, 2011

22. PARTICULAR AREA OF CAUTION
Thursday, January 27, 2011

23. PARTICULAR AREA OF CAUTION
Agreeing to an NDA and then living to regret it . . .
because your business is restricted
Thursday, January 27, 2011

24. THE OVERLY BROAD NDA
Click
Thursday, January 27, 2011

25. What if there is not a written agreement?
Policy Manual
Trade Secrets
tortious interference with business/contract
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26. What can an Employer do?
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27. A level of specificity and solid definition of what is
covered is protection for both sides
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28. THOUGHTS FOR EMPLOYERS
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29. THOUGHTS FOR EMPLOYERS
Make confidentiality agreements a matter of
standard practice
Thursday, January 27, 2011

30. THOUGHTS FOR EMPLOYERS
Make confidentiality agreements a matter of
standard practice
Thursday, January 27, 2011

31. THOUGHTS FOR EMPLOYERS
Make confidentiality agreements a matter of
standard practice
Keep the agreements as uniform as possible
Thursday, January 27, 2011

32. THOUGHTS FOR EMPLOYERS
Make confidentiality agreements a matter of
standard practice
Keep the agreements as uniform as possible
Thursday, January 27, 2011

33. THOUGHTS FOR EMPLOYERS
Make confidentiality agreements a matter of
standard practice
Keep the agreements as uniform as possible
Be reasonable in your demands; its easier to enforce
Thursday, January 27, 2011

34. THOUGHTS FOR EMPLOYERS
Thursday, January 27, 2011

35. THOUGHTS FOR EMPLOYEES
Thursday, January 27, 2011

36. THOUGHTS FOR EMPLOYEES
➡Consider the impact of an agreement on outside
activities
Thursday, January 27, 2011

37. THOUGHTS FOR EMPLOYEES
➡Consider the impact of an agreement on outside
activities
Thursday, January 27, 2011

38. THOUGHTS FOR EMPLOYEES
➡Consider the impact of an agreement on outside
activities
➡be aware of the obligations you will have post
employment/contract
Thursday, January 27, 2011

39. THOUGHTS FOR EMPLOYEES
➡Consider the impact of an agreement on outside
activities
➡be aware of the obligations you will have post
employment/contract
Thursday, January 27, 2011

40. THOUGHTS FOR EMPLOYEES
➡Consider the impact of an agreement on outside
activities
➡be aware of the obligations you will have post
employment/contract
➡Do not put yourself in a compromising situation
Thursday, January 27, 2011

41. THOUGHTS FOR EMPLOYEES
➡Consider the impact of an agreement on outside
activities
➡be aware of the obligations you will have post
employment/contract
➡Do not put yourself in a compromising situation
Thursday, January 27, 2011

42. If it looks bad and feels bad it might be . . . bad
Thursday, January 27, 2011

43. IF YOU WANT TO CONTACT ME. . . .
Thursday, January 27, 2011

44. IF YOU WANT TO CONTACT ME. . . .
sjr@shawnjroberts.com
405.562.7371
Thursday, January 27, 2011