Minchella Law Blog

Do Trump’s Confidentiality Agreements Trump the First Amendment?

Yes, I cannot resist. Trump is all over the news so why not our blog? A thought crossed my mind. Presumably most, if not all, of the Trump Organization’s employees sign strict, and likely very broad, confidentiality agreements or non-disclosure agreements. Same is likely true of contestants on his show The Apprentice.  If Trump is elected, (arguably even if he isn’t) are those agreements enforceable? They probably are to an extent, however. employees have some protections when speaking out on matters of public concern. Connecticut, like most states, has codified these protections.  And the Connecticut Supreme Court expanded those protections in a case that was released about a year ago.  You can read about it here in Dan Schwartz’s excellent employment law blog. As Dan notes, Connecticut’s Constitution provides greater protections than the federal constitution such that, under Connecticut law, an employee’s job-related speech that is of “public concern and implicates an employer’s official dishonesty . . . other serious wrongdoing, or threatens to health and safety” GET THIS, “trumps the employer’s right to control its own employees and policies” and is protected under Connecticut law.

There you have it.  What if a Trump employee wants to speak out about some conduct that falls under that language?  What if Trump sues?  What if Trump terminates the employee? The employee may very well have a strong argument that the termination violates the Connecticut statute. It doesn’t seem like a battle Trump would want to wage does it?  Then again, he certainly doesn’t shy away from litigation does he?

Employee non-disclosure agreements are commonplace among employers (if your business doesn’t have some form of non-disclosure agreement you should seriously consider implementing one), and legitimately serve to protect their interests.  Of course they have come under fire recently by the NLRB and SEC, because they can effectively quell whistleblowers or others from participating in government investigations. But you should nevertheless put one in place that protects your company’s confidential information but keeps the NLRB and SEC happy. And if you run for office, well….

Anthony R. Minchella

Anthony R. Minchella

Tony represents Fortune 50 financial services companies, retail giants, and small and large specialty products companies in employment litigation, trade secret and non-competition litigation, and unfair trade practice issues. When acting as local counsel, Tony, an adjunct professor of law on Connecticut Civil Procedure at Quinnipiac Law School, helps lead counsel navigate the nuances of Connecticut state and federal court practice. Tony graduated magna cum laude from Quinnipiac University School of Law. He passed the New Jersey, New York and Connecticut bar exams and then moved on to careers with large and small firms which led to his boutique litigation practice.
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