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Virginia Employee and Severance NDA

Draft a Virginia employee or severance NDA under Va. Code 40.1-28.01, which voids condition-of-employment gags concealing sexual assault or harassment.

Introduction

A Virginia 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. In Virginia, Va. Code Section 40.1-28.01 bars an employer from requiring a worker or applicant to sign a nondisclosure, confidentiality, or non-disparagement provision that conceals a claim of sexual assault or sexual harassment as a condition of employment; any such provision is void. It is aimed at onboarding agreements and is generally read not to reach a post-dispute severance release. DocDraft drafts a Virginia employee or severance NDA from your facts, with that carve-out built in, and attorney review is available before anyone signs.

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Key Things to Know

  1. 1

    Va. Code 40.1-28.01 targets condition-of-employment NDAs. An employer cannot require a worker or applicant to sign an NDA or non-disparagement provision that conceals a claim of sexual assault or sexual harassment as a condition of employment.

  2. 2

    The Virginia rule is aimed at onboarding, not exit deals. It voids gags imposed as a condition of employment, and it is generally read not to reach a post-dispute severance or settlement release with a former employee.

  3. 3

    A post-dispute settlement may still permit confidentiality. Because the ban is tied to condition-of-employment agreements, a severance agreement that resolves an actual dispute can still keep terms private.

  4. 4

    Non-disparagement clauses are included. A 2023 expansion swept non-disparagement provisions into the ban alongside confidentiality clauses.

  5. 5

    Covered conduct is sexual assault and sexual harassment. The statute ties to specific Virginia sexual-assault code sections and the sexual-harassment definition in section 30-129.4.

  6. 6

    Trade secrets stay protectable. Virginia law still lets an NDA protect client lists, pricing, processes, and other genuine confidential business information.

  7. 7

    The federal floor applies on top. The Speak Out Act and the non-waivable right to report to the EEOC, the NLRB, and the SEC still limit any Virginia NDA.

Key decisions before you file

Before you file a Employee and Severance NDA in Virginia, 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

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VIRGINIA 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 Virginia 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. 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 (VA. CODE SECTION 40.1-28.01) Consistent with Va. Code section 40.1-28.01, this Agreement is not required as a condition of employment to conceal, and does not have the purpose or effect of concealing, the details relating to a claim of sexual assault or a claim of sexual harassment. Any provision that purports to do so as a condition of employment is against public policy and is void and unenforceable. Nothing in this Agreement limits Employee from: (a) reporting to, filing a charge with, or cooperating with any federal, state, or local government agency, including the Equal Employment Opportunity Commission, the National Labor Relations Board, or the Securities and Exchange Commission; (b) discussing or disclosing conduct Employee reasonably believes to be unlawful, including sexual assault or sexual harassment; or (c) exercising any right that cannot lawfully be waived. 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. NO OTHER RESTRICTIONS ON RIGHTS This Agreement does not waive Employee's right to file a charge, testify, or participate in an investigation, and does not require Employee to notify the Company before doing so.

  7. 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.

  8. GENERAL This Agreement is governed by Virginia 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]

Virginia Requirements for Employee and Severance NDA

Virginia Code Section 40.1-28.01

Draft a Virginia employee or severance NDA under Va. Code 40.1-28.01, which voids condition-of-employment gags concealing sexual assault or harassment.

Frequently Asked Questions

A Virginia employee NDA is a contract in which a worker agrees to keep the employer's confidential information private, typically trade secrets, client and pricing data, internal processes, and other proprietary business information. It applies under Virginia law and, when signed as a condition of employment, cannot conceal a claim of sexual assault or sexual harassment. The severance version of the same instrument is signed when the worker leaves.

An employee NDA is usually signed at hire to protect the company's confidential information, and Virginia's onboarding restriction applies to it directly. A severance NDA is signed at separation, generally inside a release agreement, in exchange for severance pay. Because section 40.1-28.01 is aimed at condition-of-employment agreements, a severance release resolving an actual dispute is generally read to fall outside the ban.

It prohibits an employer from requiring an employee or prospective employee to execute or renew a nondisclosure, confidentiality, or non-disparagement provision that has the purpose or effect of concealing the details of a claim of sexual assault or a claim of sexual harassment, as a condition of employment. Any such provision is against public policy and is void and unenforceable.

Generally not in the same way. Section 40.1-28.01 is directed at agreements imposed as a condition of employment, so it targets onboarding NDAs. Commentary reads it as not reaching a post-dispute severance or settlement release negotiated with a former employee, which means a severance agreement that resolves an actual dispute may still permit confidentiality. Reviewing the specific agreement with an attorney is an option DocDraft makes available.

Yes. A 2023 update to section 40.1-28.01 expanded the ban to include non-disparagement provisions, not just confidentiality clauses. So an onboarding NDA cannot use either a confidentiality or a non-disparagement clause to conceal a claim of sexual assault or sexual harassment as a condition of employment.

It covers a claim of sexual assault under the specified Virginia criminal code sections and a claim of sexual harassment as defined in section 30-129.4. It does not, by its terms, reach every other kind of unlawful workplace conduct. Federal law separately protects a worker's right to report discrimination, retaliation, and other violations to agencies such as the EEOC, and those rights cannot be waived.

Yes. Virginia's limit applies to condition-of-employment clauses that conceal sexual assault or sexual harassment, not to the protection of legitimate confidential information. A Virginia 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.

A condition-of-employment provision that conceals a claim of sexual assault or sexual harassment is against public policy and is void and unenforceable under section 40.1-28.01. The offending clause fails, but the rest of a properly drafted Virginia NDA, including its trade-secret protections, generally remains in effect. The safer path is to draft the onboarding version compliant from the start.