Non-Disclosure and Confidentiality Provisions

Non-Disclosure and Confidentiality Provisions: Two Different Jobs

“Non-disclosure agreement” and “confidentiality clause” are often used interchangeably, but in an executive contract they typically serve two distinct purposes: protecting your employer’s trade secrets and proprietary information (during and after your employment), and separately, keeping the terms of your compensation, employment, or separation agreement itself private. Understanding which one you’re looking at — or whether a single clause is trying to do both — matters for figuring out what it actually restricts. For the full picture of how these provisions fit into an executive contract, see our Executive Employment Contract Issues overview.

Protecting Trade Secrets: What a Standard NDA Covers

An NDA protecting your employer’s trade secrets and confidential business information is one of the most common, and generally most enforceable, restrictive covenants in an executive contract. Unlike a non-competition agreement, an NDA doesn’t restrict where you can work — it restricts what information you can share, both during your employment and after it ends. This makes NDAs far less controversial from a public policy standpoint, and they’re generally enforceable across DC and Maryland even where non-competes are heavily restricted.

In fact, DC’s sweeping 2022 non-compete law specifically carves out confidentiality and non-disclosure provisions from its non-compete ban — an employer can still prohibit you from disclosing, using, selling, or accessing confidential or proprietary company information, regardless of your compensation level, even where a traditional non-compete would be unenforceable.

A Federal Requirement Many NDAs Get Wrong: The Whistleblower Immunity Notice

This is a genuinely important, technical point that’s easy to overlook — and it cuts in your favor as an employee. The federal Defend Trade Secrets Act of 2016 requires employers to include a specific notice of whistleblower immunity in any contract or agreement (including NDAs, employment agreements, and separation agreements) that restricts the use or disclosure of trade secrets or confidential information.

That notice must inform you that you cannot be held criminally or civilly liable for disclosing a trade secret if the disclosure is made in confidence to a government official or an attorney, solely to report or investigate a suspected legal violation, or if it’s made in a court filing submitted under seal. It also protects your ability to use trade secret information in a retaliation lawsuit against your employer, provided you file the relevant documents under seal.

Why this matters practically

If your employer’s NDA doesn’t include this notice, the law limits what your employer can recover from you in a federal trade secret lawsuit — specifically, they cannot recover exemplary (double) damages or attorney’s fees under the federal Defend Trade Secrets Act against an employee who wasn’t given the required notice. Whether a given NDA actually includes compliant language is worth checking, both because it affects your employer’s leverage and because it signals whether the agreement was carefully drafted or not.

A Related Federal Requirement for Public Companies: SEC Whistleblower Carveouts

If you work for a publicly traded company or one otherwise subject to SEC oversight, there’s a separate requirement worth knowing about. SEC Rule 21F-17 prohibits any provision that impedes an individual from communicating directly with the SEC about a possible securities law violation. In a notable 2022 enforcement action against The Brink’s Company, the SEC found that simply including DTSA-compliant whistleblower language wasn’t enough on its own — the company’s confidentiality agreements also needed a specific carveout expressly permitting disclosures to the SEC, and lacked one for several years. This means DTSA compliance and SEC compliance are related but separate requirements, and an NDA can technically satisfy one while still falling short of the other.

Confidentiality of Employment or Separation Terms

The second common use of a confidentiality clause is different: keeping the terms of your compensation, employment agreement, or severance package private, rather than protecting the company’s business information. This is a common feature of severance and separation agreements specifically, and it’s worth reading carefully, since these clauses can sometimes be drafted broadly enough to restrict more than just the dollar figures — for example, discussing the circumstances of your departure at all. See our page on executive compensation issues for more on how severance and separation terms typically work.

A Federal Limit That Overrides Any Confidentiality Clause: The Speak Out Act

Regardless of how broadly a confidentiality or non-disparagement clause is written, federal law creates a hard limit for a specific category of claims. The Speak Out Act of 2022 makes predispute non-disclosure and non-disparagement clauses unenforceable specifically as they relate to sexual harassment or sexual assault disputes. This means a confidentiality clause you signed at the start of your employment — before any harassment or assault occurred — generally cannot be used to prevent you from later discussing or pursuing a claim involving that kind of misconduct. See our Sexual Harassment Law overview for related context, including the parallel federal law restricting mandatory arbitration for these same claims.

What to Look for in an NDA or Confidentiality Clause

Does it include DTSA-compliant whistleblower immunity language, or at minimum a cross-reference to a policy document containing it?
If you work for a public company, does it include a specific SEC whistleblower carveout, separate from the general whistleblower language?
Is it limited to genuinely confidential or proprietary information, or does it sweep in information that’s already public or that you developed independently?
If it’s part of a severance or separation agreement, does it clearly distinguish confidentiality of the settlement terms from any attempt to restrict discussion of harassment, discrimination, or other unlawful conduct — which federal law generally won’t allow it to do?

Talk to an NDA and Confidentiality Attorney

Whether you’re being asked to sign a new NDA, trying to understand the scope of one you’ve already signed, or negotiating the confidentiality terms of a severance package, Wilkenfeld Law Office can help you understand what’s actually enforceable.

Or call 301.245.3035 · Intake@WilkenfeldLO.com

This article provides general information and is not legal advice. Contacting us does not create an attorney-client relationship.

Reviewed by Ari Wilkenfeld, Esq. (DC Bar No. 461063; MD Bar No. 9806240300). Ari has over 27 years of experience litigating in federal and state courts, and before the U.S. Equal Employment Opportunity Commission (EEOC), the U.S. Merit Systems Protection Board (MSPB), and various arbitration panels. Ari has been recognized by Esquire Magazine as “a famously determined Civil Rights lawyer” and by the New York Post as “a high powered DC Lawyer.” Last updated: August 28, 2026.