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Defend Trade Secrets Act Requires Employers to Provide Notice of Immunity to Putative Whistleblowers

As a follow up to our previous post, a new federal law, the Defend Trade Secrets Act of 2016 (DTSA), which went into place on May 11, provides a federal cause of action for trade secret misappropriation.

One important employment law aspect of the DTSA that has not received a lot of attention is the requirement that employers provide notice of the immunity provided by the DTSA to putative whistleblowers. Such notice should appear in employee confidentiality agreements and the like. Failure to provide the notice will result in the employer’s inability to recover exemplary damages or attorneys’ fees against an employee who violates the DTSA and whose confidentiality agreement lacked the disclosure. The notice provision does not require the revision of agreements in existence prior to May 11. Rather, it applies to any such agreements amended or new agreements made on or after May 11, 2016.

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About this Author

Gary M. Gansle, labor, employment, lead lawyer, Squire Patton Boggs
Partner

Based in the Palo Alto office, Gary Gansle leads the Northern California team of the Labor & Employment Practice Group. He has more than 18 years of experience working with companies from start-ups to the Fortune 100, both in Silicon Valley and throughout California. Gary’s practice largely consists of litigating the full range of employment-related causes of action and providing expert and practical advice to clients on employment law issues.

Gary has developed a reputation as a dynamic speaker and trainer from the employment law training that he has...

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Nisha S. Patel, Squire Patton Boggs, wrongful termination lawyer, trade secret misappropriation attorney
Associate

Nisha Patel is an associate in the Palo Alto office, whose practice focuses on labor and employment matters.

Nisha defends employers in cases involving wage and hour violations, discrimination, sexual harassment, retaliation, wrongful termination, trade secret misappropriation and unfair competition claims. In addition to defending employers in litigation, Nisha provides advice and counseling to employers on all areas of employment law.

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