Can You Keep a Secret: Bridgerton and the Need for Employee Confidentiality Agreements

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I must admit that I could not resist and fell prey to Netflix’s currently most watched and definitely most binge-worthy series to date: Bridgerton. For those who are not part of the record-breaking 82 million (and counting) people who have enthusiastically (read: obsessively) watched the series, Bridgerton is a period drama set in Regency-era London, and it has a lot to teach HR about employee confidentiality.

Bridgerton was created by Chris Van Dusen, who previously wrote for Shonda Rhimes’s Grey’s Anatomy and Scandal and is based on romance novels by Julia Quinn. The show, which has been aptly compared to Jane Austen and Gossip Girl, is Rhimes’s first original series for Netflix and was produced by her production company, Shondaland.

Source: JOCA_PH / shutterstock

Bridgerton follows the eight siblings in London’s high-society Bridgerton family as they seek love and marriage. The first season primarily focuses on the eldest Bridgerton daughter, Daphne, and her quest to find a suitable husband. In the midst of London’s formal courtship season, an anonymous gossip sheet, authored by a mysterious writer who calls themselves “Lady Whistledown,” circulates, revealing the scandalous secrets of the city’s most prominent families. Lady Whistledown’s revelations are life-altering, ruining reputations and courtships.

Daphne’s younger sister, Eloise, a potential Lady Whistledown suspect herself, makes it her personal mission to reveal the identity of the Regency-era TMZ author. In doing so, Eloise confronts various suspects, including a housemaid, a logical choice for Lady Whistledown given her access to confidential information and juicy family secrets.

I dare not spoil the true identity of Lady Whistledown because guessing really is half the fun. In case you were wondering, I was hopelessly wrong.

Regardless of whether the housemaid was actually moonlighting as a gossip columnist, Eloise’s instincts were not misguided. Employees are in a unique position to be privy to highly sensitive information that, if revealed, could have significant business consequences.

A Lesson for Modern Employers

Fortunately, modern employers have tools available to protect the confidentiality of sensitive information. One such tool that companies can utilize is a confidentiality agreement (also known as a nondisclosure agreement (NDA)). A confidentiality agreement is a legally binding contract that prohibits an employee from disclosing valuable confidential and proprietary information, including trade secrets, to unauthorized third parties.

In deciding whether to use confidentiality agreements, the employer should consider 1) the type of confidential information the employee has access to; 2) the nature of the employer’s business; and 3) the type of information that would create a competitive disadvantage if revealed.

Employers that are concerned about employees revealing valuable confidential and proprietary information, including trade secrets, should have employees sign a confidentiality agreement at the beginning of their employment.

As a preliminary matter, to be enforceable, the confidentiality agreement must be supported by adequate consideration, which is governed by state law. Depending on the state, adequate consideration may include an offer of employment, continued at-will employment, and a change in employment terms and conditions after hiring. The agreement should include a provision that identifies the consideration the employer is providing the employee in exchange for his or her agreement to keep the information covered by the agreement confidential.

Importantly, confidentiality agreements should be drafted to protect confidential information that is clearly defined and narrowly tailored to the employer’s business needs (e.g., customer information, pricing, or potential transactions). Employers should take care that they do not define confidential information so broadly that it prohibits disclosures that are required by law, such as communications with securities regulators, sexual harassment or other discrimination claims in some states, and information protected under the National Labor Relations Act.

The agreement should also identify the employer’s need for keeping the information confidential (e.g., the information has commercial value and gives the employer a competitive advantage). Finally, the agreement should detail how long the employee must keep the information confidential and the consequences for breaching the agreement.

So, dear readers, if you believe that your employees may find themselves, like Lady Whistledown, “compelled to share the most curious of news,” a confidentiality agreement may be just the key to protect your confidential information.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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