An employment contract is not automatically confidential simply because it is an employment contract. Usually, no. As of, the answer depends on the contract's wording, the information involved, and applicable federal and state law. Section 7 of the National Labor Relations Act protects many covered private-sector employees who discuss wages and working conditions.
An agreement may protect trade secrets, customer data or other restricted information while still allowing employees to discuss their pay, benefits and working conditions when the law protects those discussions.
| Question | General U.S. answer |
|---|---|
| Is the entire employment contract automatically private? | No |
| Can an employer include a confidentiality clause? | Often, if the clause is specific and lawful |
| Can employees discuss their pay? | Most covered private-sector employees can discuss wages with coworkers |
| Can a contract prevent legal or regulatory reports? | Generally not when federal whistleblower or employment laws protect the report |
| Can you publish the whole contract online? | Not necessarily. The contract, trade-secret rules or privacy laws may restrict disclosure |
Can an Employer Make an Employment Contract Confidential?
An employer can include a confidentiality clause, but the clause should identify the information it protects and preserve legally protected employee rights.
A clause may protect:
- Trade secrets
- Source code and technical designs
- Customer lists and nonpublic customer information
- Business strategies and product plans
- Nonpublic pricing or financial information
- Internal investigations, when a lawful and limited rule applies
- Personal information belonging to customers or other employees
The National Labor Relations Board and the U.S. Department of Labor distinguish proprietary business information from employee information. An employer may generally protect trade secrets and other nonpublic business information. A rule that prevents employees from discussing wages, benefits or working conditions may violate rights under the National Labor Relations Act.
A clause stating that "all employment information is confidential" creates more risk than one that defines confidential business information and includes exceptions for legally protected communications.
Are Salary, Benefits and Working Conditions Confidential?
Most private-sector employees covered by the National Labor Relations Act may discuss wages and other workplace issues with coworkers, whether or not they belong to a union.
Protected discussions may include:
- Salary and hourly pay
- Bonuses and raises
- Working hours
- Benefits
- Scheduling
- Workplace policies
- Safety concerns
- Other terms and conditions of employment
The National Labor Relations Board states that covered employees may communicate about wages and working conditions. The Department of Labor also states that rules restricting employees from discussing their own or coworkers' pay will likely be unlawful in many circumstances.
Discussing pay is different from publishing the entire employment contract. An employee may be protected when discussing compensation but still need to protect trade secrets, customer information, personal data and other restricted material.
The National Labor Relations Act does not cover every worker. Excluded categories include government employees, independent contractors, supervisors, agricultural and domestic workers, and certain railroad and airline employees.
Can an Employment Contract Prohibit Employees From Discussing Pay?
A blanket prohibition on discussing wages may be unlawful for employees covered by the National Labor Relations Act.
For example, a policy that classifies salaries as "confidential personnel information" and threatens discipline for sharing that information could interfere with employees' rights under Section 7. The NLRB has challenged confidentiality rules that broadly covered salaries, discipline and other employment conditions.
Employment-discrimination laws may provide additional protection. The Equal Employment Opportunity Commission explains that discussing pay with coworkers or management may be protected opposition when the discussion concerns possible discrimination or an equal-pay issue. Retaliation for that activity may also be unlawful.
Some federal contractors and subcontractors have additional pay-transparency obligations. State laws may provide broader protection.
Can a Confidentiality Clause Stop an Employee From Reporting Illegal Conduct?
A confidentiality clause generally cannot lawfully prevent an employee from making a protected report to a government agency, cooperating with an investigation or exercising statutory rights.
Examples include:
- Reporting discrimination or retaliation to the EEOC
- Raising wage or hour concerns with the U.S. Department of Labor
- Filing an unfair-labor-practice charge with the NLRB
- Reporting possible securities-law violations directly to the SEC
- Consulting an attorney about suspected unlawful conduct
SEC Rule 21F-17 prohibits actions that impede direct communications with the SEC about possible securities-law violations. That prohibition can apply to enforcing or threatening to enforce a confidentiality agreement.
The federal Speak Out Act also limits the enforceability of some pre-dispute nondisclosure and nondisparagement clauses involving sexual assault and sexual-harassment disputes. The Act does not prevent employers and employees from protecting trade secrets or proprietary information.
Can You Show Your Employment Contract to a Lawyer or Another Employer?
An employee can generally provide their own contract to a lawyer for legal advice. Sharing it with a competitor, the public or another employer requires more care.
Before sharing the document:
- Check for a confidentiality, nondisclosure or proprietary-information clause.
- Review the governing-law provision.
- Remove Social Security numbers, home addresses, bank details and signatures.
- Redact customer information, trade secrets and other unrelated confidential material.
- Share only the pages or clauses that are necessary.
- Ask an employment lawyer before posting the contract publicly or sending it to a competitor.
A prospective employer may need to know about restrictions such as a noncompete, nonsolicitation clause or intellectual-property assignment. That does not mean the prospective employer needs a complete copy of the contract.
What Should a Confidentiality Clause Contain?
A well-drafted employment confidentiality clause should state:
- What information qualifies as confidential
- What information is excluded because it is public or independently known
- How long the obligation lasts
- Whether the obligation continues after employment ends
- Who may receive the information
- Whether disclosure to lawyers, government agencies and courts is permitted
- That the clause does not restrict legally protected wage discussions or whistleblower reports
- What remedies may apply after an unauthorized disclosure
Be cautious with phrases such as "all company information," "all personnel information" or "anything learned during employment." They may include wages, workplace complaints or other information employees have a legal right to discuss.
Bottom Line
Whether an employment contract is confidential depends on the specific clause and the material involved. If the issue concerns pay discussions, a government report or sharing the contract with a lawyer, preserve the document and get legal advice before responding.
Publishing the entire agreement is a separate question. Check the confidentiality terms first, and remove personal data, trade secrets and unrelated confidential information.