Here at the Law Office of Vincent Miletti, Esq. and the home of the #UnusuallyMotivated movement, we take pride as a resilient and dependable legal services firm, providing such services in both a traditional and online, web-based environment. With mastered specialization in areas such as Employment and Labor Law, Intellectual Property (IP) (trademark, copyright, patent), Entertainment Law, and e-Commerce (Supply Chain, Distribution, Fulfillment, Standard Legal & Regulatory), we provide a range of legal services including, but not limited to traditional legal representation (litigation, mediation, arbitration, opinion letters and advisory), non-litigated business legal representation and legal counsel, and unique, online legal services such as smart forms, mobile training, legal marketing and development.

Still, here at Miletti Law®, we feel obligated to enlighten, educate, and create awareness about how these issues and many others affect our unusually motivated® readers and/or their businesses. Accordingly, to achieve this goal, we have committed ourselves to creating authoritative, trustworthy, & distinctive content, which looks to educate and deliver in a manner that only Miletti Law® can. Usually, this content is featured as videos posted on our YouTube Channel https://www.youtube.com/channel/UCtvUryqkkMAJLwrLu2BBt6w and blogs that are published on our website WWW.MILETTILAW.COM. With the ball in your court, yours is an effortless obligation to subscribe to the channel and sign up for the Newsletter on the website, which encompasses the best way to ensure that you stay in the loop and benefit from the knowledge bombs we drop here!

As the authoritative force in Employment Law, we are committed to providing you with authoritative, up-to-date, and trustworthy content through which you can draw enlightening information to stay ahead of the game in your business. In this regard, this blog is Part VI of our multipart series on the “Enforcement of the Protection of Employers’ Confidential Information & Trade Secrets.” In Part V of this series, we moved the discussion forward with an overview of “Additional Remedies Provided under the Defend Trade Secrets Act.” To keep the discussion alive, we have hammered on “Provisions for Notice and Whistleblowing under the DTSA” in this blog, which is Part VI of the series.

Provisions for Notice & Whistleblowing under the Defend Trade Secrets Act (DTSA)

In the previous blog on additional remedies provided by the DTSA, we mentioned that attorney’s fees and punitive damages include some remedies for employers who bring trade secret misappropriation claims against former employees. The question is – how can an employer take full advantage of such remedies? Employers should, pursuant to18 U.S.C. § 1833(b)(3), ensure that their employees are aware that the DTSA provides for whistleblower immunity in any employment agreement, covenant, or contract entered into after the Act was enacted and took effect. This implies that employers should, soon after engaging an employee and as part of best practice, make sure that their employment agreements and policies are updated to include either a cross-reference to a policy document or the mandatory notice including a statement concerning the whistleblower immunity provided under the DTSA.

Sometimes, a whistleblower may have to disclose, in confidence, a trade secret to a government official or attorney in filing a lawsuit made under seal or for the sole purpose of investigating or reporting an alleged law violation. In such a scenario, such an individual can take advantage of the DTSA’s “safe harbor” provision for immunity from civil or criminal liability under any state or federal trade secret law.

What about the “Secret Disclosure Notice” required to be provided under the statute?

Employers must also be conversant with the notice provision embedded within the statute’s section on whistleblower immunity since claims on certain remedies provided under the DTSA may be affected by whether an individual employer has complied with such a provision on notice. This knowledge also includes how to draft such notice in line and compliance with the guideline of the DTSA. In this regard, let us provide you with a sample notice language that you, as an employer, may consider embedding within employment contracts and covenants entered into after the DTSA took effect.

Sample Secret Disclosure Notice

NOTICE is hereby given no immunity provided pursuant to 18 U.S.C. § 1833(b)(1) or 18 U.S.C. § 1833(b)(2) will be affected by this agreement. With regards to these subsections and as elaborated below, the term “employees” also included persons working as consultants or contractors.

A. As long one does not reveal the trade secret except in pursuance of a court order and files any document containing the trade secret under seal, a person may, after bringing a retaliation claim against an employer suspected of violating the law, disclose a trade secret to an appointed government official or their attorney and use its information in a court proceeding.

B. If one discloses a trade secret that (1) is brought in a complaint or other document filed in a proceeding or lawsuit made under seal or (2) is made (a) with the sole purpose of investigating or reporting a law violation and (b) in confidence and either directly or indirectly to an attorney or a local, state, or federal government official, then they will not be held civilly or criminally liable under any State or Federal trade secret law.

In a nutshell, employers should always consider the DTSA’s provisions in whistleblowing and making notice before filing lawsuits against former employees who may have misappropriated trade secrets, accessed and used confidential information against the former employers’ interests, and/or breached restrictive contractual agreements entered into after the statute took effect.

In Part VII of this series, we will move the discussion forward by providing you with an overview of the “The Economic Espionage Act & the Application of the DTSA Overseas.”

As usual, while you should strive to be #UnusuallyMotivated, stay tuned for more education, training, and legal guidance. In the interim, reach out to us with questions and/or comments on our website at the Contact Us page!

Always rising above the bar,

Isaac T.,

Legal Writer & Author.