The law requires employers and employees to enter into a confidentiality agreement. The law requires the employee and the employer not to disclose some private information which some individuals can either use to defraud the company or use to gain competitive advantage. Generally, the employers usually require the employees to sign a confidentiality agreement to ensure that they do not disclose trade secrets or not to share certain sensitive information which competitors can use against it (Weiler, 2005). In most cases, a confidentiality agreement is used as part of the employment contract which the employees are required to sign when they are becoming workers. The law of confidentiality is enforced in the same manner as the common law of deals because the law requires all the parties of a confidentiality agreement to become legally bound to terms and condition of the contract once the parties sign it. The breach of such agreement leads to payment of damages if there is a financial loss. The strengths of the legal claim or defense that the company has about this case is that there was an agreement between the company and Jennifer not to disclose any information that she acquires from Greene's relating to the process used in making Ever-Gold to any of the competitors. She also accepted to sign confidentiality agreement during hiring meaning that she admitted to obey the terms and condition of the confidentiality agreement and therefore the breach of such contract can result into legal penalties (Herring, 2018). The company can also produce a confidentiality agreement which it entered with Jennifer as factual evidence that she accepted to honor the deal even after vacating the office.
The second legal claim that the company can use to sue or defend itself is that the information that Jennifer disclosed to the competitor (Howell) was to be kept secret for a given period. The confidentiality agreement signed by Jennifer and the Greene's Jewelry did not allow her to disclose information about the process of creating Ever-Gold when still working and after leaving the employment and therefore she was in breach of the terms of the confidentiality agreement when she disclosed such information to Howell to secure job. The information that Jennifer disclosed was required to remain the top secret of the company to ensure that the competitors such as Howell could not get it to use against it.
The third defense or claim is that the information that Jennifer has disclosed to Howell has not been in the public domain and therefore she was the first person who revealed it to the public without the consent of the Greene Jewelry. Besides, there was no public interest to disclose such information, and therefore, its breach is illegal and not voidable.
The fourth claim is that the information that Jennifer disclosed to competitors was a trade secret which every business need to keep secret to gain a higher competitive advantage over the competitors.
II. Client's Case
A. Facts and Laws
Greene Jewelry discriminates its workers either on sex or ethnicity. The company unlawfully terminates its workers based on sex as it did to Jennifer even though she is deemed to be professional. The company does not look at the professionalism of its workers but only looks at gender or sex of workers in a presumption that there is given sex that cannot meet the company expectation. The company, therefore, terminates workers because they are of assigned sex, and this is illegal and cause what is called wrongful termination (Minshall, 2018). The law protects all the workers against discrimination and requires all the workers to have equal rights and benefits which the Greene Jewelry does not consider. It does not treat all the workers equally but considers others more important than others. Also, the company failed to follow the right termination procedures as required by law while terminating Jennifer, and therefore, this is a breach of the employment contract. Jennifer was, therefore, wrongly terminated because the company did not follow the termination procedure, and she was discriminated against sex because she could not contribute to the growth of the company while pregnant. The company also did not want to compensate her without executing her duties.
The employment contract between Greene and Jennifer created a confidentiality agreement which gives either of them an obligation to follow and to comply with. The employment contract was also valid and genuine because it was done following the law at the beginning. The rights of Jennifer were violated when she was discriminated against by the company. The company did not treat her with due diligent because she is of the opposite sex. At the same time, Greene failed to terminate her employment following the law. The company did not follow the correct procedure when ending her. Jennifer also had a valid employment contract after leaving the profession from Greene. The employment contract she entered with Howell was authentic and genuine, although the company only employed her to get trade secret of Green. Although all these, the company could not honor the terms of the contract as required by the law.
The following are operative employment and contract laws that work best to the company case
New Hampshire Workers Adjustment and Retraining Notification Act which expects companies that has more than 100 workers to give warning to employees, agents and other government officials 60 days before the company effect mass layoff (Addison & Blackburn, 1994). There is also a uniform Trade Secret Act, which involves the theft of trade secrets as a way of misappropriating the company resources (Saunders, 2004). New Hampshire is an Employment-A.t-Will State only work when there is no employment contract. Under this condition, the company can terminate the terms of employment at any time for any purpose or even without any genuine reason. The reason for termination must be legitimate and lawful to allow for the application of the above Act. Finally, the Family and Medical Leave Act is also a fundamental law that can be applied in this case (Kelly, 2010). This is a fundamental law used by the Federal Government. It expects companies to offer protected jobs and unpaid leaves for professional medical officers for family reasons.
b).Ellice Dow against Sears, Roebuck &Co., 143 N.H. 166; 720 A.2d 598 (1998)
Under this case, precedence is indicated that a plaintiff requires to offer probable cause to prove the claim of illegal job cessation. It is necessary to predetermine downsizing before the appearance of the pregnancy. For that reason, there will be no proof to support the claim of the plaintiff if downsizing cannot be decided as early as possible.
b).Narrative1 Software, LLC v. Jacqueline M. Arzouian and Datappraise, LLC. NO. 2012-CV-00498 (2012)
The case supports the company position because Narrative, (the complainant) require an injunction against Arzouian who got employment with a company that directly competes with the former employer. They believe Arzouian cannot use the trade secret to build business relationship with its customers, and for that matter, Arzouian breached the confidentiality agreement they formed with the former employer. The court of law rejected the case between the two because the plaintiff could not provide sufficient evidence which the court could use to determine that the right of confidentiality was violated. When using the case against Ms. Lawson, Green'scan gave a proof in the offer letter to Ms. Lawson from Howells who said that she gave out trade secret to acquire new employment but not to harm the company. The fact that she got work from Howell is evidence that she gave this information with the knowledge that she is violating a confidentiality agreement.
C. Facts to Be Determined
There are several questions that I expect their answers before proceeding. They include:
Did Jennifer and the company form confidentiality agreement?
Do you believe the information that Jennifer revealed to Howell relates to trade secret, or it is just standard information?
Does the information have a public interest or not?
Does the same information has been in the public domain?
These questions and facts need to be answered before suing Jennifer because these are the vital information or facts used when arguing the case.
The identified facts will help the court to establish whether there was a breach of the confidentiality agreement. It will also ensure that the court determines the party to the confidentiality agreement, which has not met his or her confidentiality obligation so that the court can make the right judgment. From the facts, it will be easy to identify who has violated the right of the other person on either a question of law or fact. These facts are, therefore, crucial when administering justice between the company and the employee.
Herring, J., (2018). 5. Confidentiality. Law Trove. doi:10.1093/he/9780198810605.003.0005
Kelly, E. L., (2010). Failure to Update: An Institutional Perspective on Noncompliance With the Family and Medical Leave Act. Law & Society Review, 44(1), 33-66. doi:10.1111/j.1540-5893.2010.00395.x
Minshall, S., (2018). 2018/13 Discrimination based on perceived disability found unlawful (U.K.). European Employment Law Cases, 3(2), 9-11. doi:10.5553/eelc/187791072018003002004
Saunders, K. M., (2004). Can You Keep a (Trade) Secret? - The Pennsylvania Uniform Trade Secrets Act. SSRN Electronic Journal. doi:10.2139/ssrn.563056
T.Addison, J., & Blackburn, M. L. (1994). The Worker Adjustment and Retraining Notification Act: Effects on Notice Provision. Industrial and Labor Relations Review, 47(4), 650. doi:10.2307/2524664
Weiler, T., (2005). International Investment Law and Arbitration: Leading Cases from the ICSID, NAFTA, Bilateral Treaties, and Customary International Law. Cameron May.
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