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Delaware Employee and Severance NDA

Draft a Delaware employee or severance NDA. Under 10 Del. C. 8147, a settlement or severance provision concealing sexual harassment or a sexual offense is void.

Introduction

An employee NDA is a confidentiality agreement between a company and a worker that protects the employer's trade secrets and confidential business information. A severance NDA is the version signed at separation, usually inside a release agreement, and it often keeps the terms of the exit private. What separates it from a commercial NDA between two businesses is who signs it: a worker cannot be forced to stay silent about unlawful conduct. Delaware's limit is aimed at settlements. Under 10 Del. C. section 8147, effective July 1, 2024, a settlement-agreement provision that restricts disclosure of a sexual offense or of workplace sexual harassment is void as against public policy. The rule is focused: it reaches severance releases resolving those claims, not employment discrimination in general. DocDraft drafts a Delaware employee or severance NDA from your facts, with the protected-disclosure carve-outs built in, and attorney review is available before anyone signs.

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Key Things to Know

  1. 1

    An employee NDA protects the company's trade secrets and confidential business information. A severance NDA is the same promise signed at separation, usually as part of a release in exchange for severance pay.

  2. 2

    Delaware's limit is aimed at settlements. Under 10 Del. C. Section 8147, a settlement-agreement provision that restricts disclosure of a sexual offense or workplace sexual harassment claim is void as against public policy.

  3. 3

    The rule applies to agreements entered on or after July 1, 2024. Settlement and severance releases signed before that date were not covered by the statute.

  4. 4

    Delaware's restriction is focused, not a broad Silenced No More law. It reaches sexual offenses and workplace sexual harassment, not employment discrimination in general.

  5. 5

    Delaware does not mandate specific carve-out wording. The statute voids the offending confidentiality provision rather than requiring a set sentence, though spelling out the carve-out keeps the agreement clean.

  6. 6

    The federal Speak Out Act still applies in Delaware. A pre-dispute NDA or non-disparagement clause cannot silence a dispute involving sexual assault or sexual harassment.

  7. 7

    Trade-secret NDAs need the federal immunity notice. The Defend Trade Secrets Act cuts the damages an employer can recover if the agreement omits the whistleblower immunity notice.

Key decisions before you file

Before you file a Employee and Severance NDA in Delaware, a few decisions shape the document: which option to choose and what each one means. The Employee and Severance NDA guide walks through them.

Open the Employee and Severance NDA guide

Customize your Employee and Severance NDA Template with DocDraft

DELAWARE EMPLOYEE NON-DISCLOSURE AGREEMENT

This Employee Non-Disclosure Agreement ("Agreement") is entered into as of [DATE] by and between [COMPANY NAME] ("Company") and [EMPLOYEE NAME] ("Employee"). This Agreement is governed by Delaware law.

  1. PURPOSE In the course of Employee's employment, Employee will have access to confidential and proprietary information of the Company. Employee agrees to protect that information on the terms below.

  2. CONFIDENTIAL INFORMATION "Confidential Information" means non-public information the Company treats as confidential, including trade secrets, business and financial data, customer and pricing lists, methods, processes, software, and other proprietary information disclosed to or learned by Employee. Confidential Information does not include information that is or becomes public through no fault of Employee, that Employee lawfully knew before employment, or that is independently developed without use of the Company's information.

  3. OBLIGATIONS Employee agrees to use Confidential Information solely for the benefit of the Company, to not disclose it to any third party without authorization, and to return or destroy all Confidential Information on request or at the end of employment.

  4. PROTECTED DISCLOSURES (DELAWARE 10 DEL. C. SECTION 8147) Nothing in this Agreement limits Employee from reporting to, filing a charge with, or cooperating with any government agency, including the Delaware Department of Labor, the Equal Employment Opportunity Commission, the National Labor Relations Board, or the Securities and Exchange Commission, or from exercising any right that cannot lawfully be waived. Where this Agreement is entered into as part of a settlement or severance release on or after July 1, 2024, it does not and cannot prevent or restrict Employee from disclosing information related to a claim of a sexual offense or of sexual harassment in the workplace, consistent with 10 Del. C. Section 8147. Consistent with the federal Speak Out Act, this Agreement does not restrict Employee from speaking about a dispute involving sexual assault or sexual harassment.

  5. DEFEND TRADE SECRETS ACT NOTICE Under the Defend Trade Secrets Act (18 U.S.C. Section 1833(b)), an individual is immune from criminal or civil liability for disclosing a trade secret (i) in confidence to a government official or attorney solely to report or investigate a suspected violation of law, or (ii) in a complaint or other document filed under seal in a lawsuit or other proceeding.

  6. TERM AND ENFORCEMENT Employee's obligations as to Confidential Information continue during and after employment for as long as the information remains confidential. The Company may seek injunctive relief and any other remedy available at law for a breach, subject to the protected disclosures above.

  7. GENERAL This Agreement is governed by Delaware law. If any provision is unenforceable, the remaining provisions stay in effect. This Agreement is the entire understanding between the parties on this subject.

[COMPANY NAME] By: [SIGNATURE] Name/Title: [NAME AND TITLE] Date: [DATE]

EMPLOYEE [SIGNATURE] Name: [EMPLOYEE NAME] Date: [DATE]

Delaware Requirements for Employee and Severance NDA

Delaware 10 Del. C. Section 8147

Draft a Delaware employee or severance NDA. Under 10 Del. C. 8147, a settlement or severance provision concealing sexual harassment or a sexual offense is void.

Frequently Asked Questions

An employee NDA is a contract in which a worker agrees to keep the employer's confidential information private, typically covering trade secrets, client and pricing data, and internal processes. A severance NDA is the same core promise signed when the employee leaves, usually inside a separation and release agreement and paid for with severance, and it commonly also keeps the terms of the departure confidential. Both are confidentiality agreements; the severance version is tied to an exit and a payment.

A commercial NDA sits between two businesses that are trading information as equals, so the law mostly lets them set their own terms. An employee NDA is between a company and a worker, and the law limits it: a worker cannot be required to stay silent about unlawful conduct or give up the right to report to a government agency. That worker-protective floor, both federal and state, is what makes an employee or severance NDA a different instrument from a business-to-business one.

Yes. Under 10 Del. C. Section 8147, effective July 1, 2024, a provision in a settlement agreement that prevents or restricts disclosure of information related to a claim of a sexual offense or of workplace sexual harassment is void as a matter of law and against public policy. Because severance packages often take the form of a settlement or release, this reaches severance NDAs that resolve those claims. The rest of the agreement, including trade-secret protection, still stands.

No. Section 8147 is focused on claims of a sexual offense and of sexual harassment in the workplace. It is not a broad Silenced No More law that voids confidentiality over discrimination or other unlawful conduct generally. A Delaware severance NDA can still address most subjects, but it cannot restrict disclosure of a sexual offense or workplace sexual harassment claim.

The restriction in 10 Del. C. Section 8147 applies to settlement agreements entered into on or after July 1, 2024. Agreements signed before that date were not governed by the statute. If a severance or settlement agreement is being drafted now, it needs to leave disclosure of a sexual offense or workplace sexual harassment claim open.

No. Unlike some states, Delaware does not mandate a set carve-out sentence. Section 8147 simply voids any settlement provision that restricts disclosure of a covered claim, whether or not the agreement spells out the carve-out. Stating the protected disclosures plainly is still good practice, because it keeps the agreement enforceable and makes clear what the worker remains free to discuss.

Yes. Section 8147 limits confidentiality over sexual offense and sexual harassment claims, not the protection of legitimate business information. A Delaware employee or severance NDA can still protect trade secrets, client and pricing data, and other genuine proprietary information, and it should include the federal Defend Trade Secrets Act immunity notice like any well-drafted NDA.

Severance is usually offered in exchange for signing a separation agreement that includes confidentiality and a release of claims, so declining can mean forgoing the payment. You are not required to sign, and you can negotiate the terms. An employee who is 40 or older is entitled by federal law to at least 21 days to consider the agreement and 7 days to revoke it after signing. Reviewing it with an attorney before you sign is an option DocDraft makes available.