NDA Agreements - Independent Contractors vs Employees

[MrBig 5628]

Question about signing an NDA. I signed one for a company I worked for 2.5 years as a 1099 independent contractor (for nearly 40 hours a week). This last year he decides to bring me on board and make me a full time employee with health benefits. I'm still doing the same work, but am I still bound to the NDA? The official company that I am on payroll now has not provided me with any type of handbook or policy procedures to follow based on the scope of the work. Am I still bound by the terms of the NDA now that I am an official employee despite no official handbook or procedures? I was wondering if anyone had any legal advice about this. 

[TwiceHorn 32077]

Assuming you mean a non-disclosure agreement without any covenants not to compete or solicit employees/clients, they are fully enforceable as giving rise to protection of trade secrets.  They don't even need an NDA to protect trade secrets as long as they were conveyed in confidence and you knew that.

As long as the parties remain the same (you and the company), your employment status is not relevant.

When I say "trade secrets" that encompasses "confidential information," as well.  I've never seen any point in distinguishing between the two, although some like to.

Moral of the story:  don't disclose or use trade secrets without your employer's permission or for the employer's purposes.  Or anyone else that gives you trade secrets in confidence.

[Gil Bang 26235]

So, Mr. Texags.com employee, don't disclose in which desk drawer Luicci keeps his buttplugs. 

[troph 25224]

Employees have common law duties of confidentiality to their employer and the non-disclosure agreement probably by its wording still applies. I wouldn’t expect a material change in your legal right to steal and plunder. Sorry.

[MrBig 5628]

9 hours ago, TwiceHorn said:

Assuming you mean a non-disclosure agreement without any covenants not to compete or solicit employees/clients, they are fully enforceable as giving rise to protection of trade secrets.  They don't even need an NDA to protect trade secrets as long as they were conveyed in confidence and you knew that.

As long as the parties remain the same (you and the company), your employment status is not relevant.

When I say "trade secrets" that encompasses "confidential information," as well.  I've never seen any point in distinguishing between the two, although some like to.

Moral of the story:  don't disclose or use trade secrets without your employer's permission or for the employer's purposes.  Or anyone else that gives you trade secrets in confidence.

The NDA was not about “trade secrets” but rather to not “disseminate or discuss personal confidential information about the private closed door home activities being conducted by the boss” which could be potentially damaging to his reputation and larger business (which I am not an employee of—I work for his smaller less known business).

I ask about this NDA because of this reason:

My employer switched me from an independent contractor (even though I was full-time getting 40 hours a week with NO benefits), to an official payroll employee after a few years. This was unexpected but I soon realized that it was to be done on the premise that I would provide a medical service to him in exchange for health benefits for my family. Is this something that is legal? I’m afraid that the NDA has me by the balls if I don’t follow through, and I feel like I can’t speak up about it because I don’t want to get sued. 

[deadshank 24654]

What is there to speak up about?  Keep the man's personal business private. Why would you divulge a confidence?  Going further, why would you divulge someone else's medical condition; epecially the medical condition of the guy that is paying you to help him and keep quiet about it?  Aren't there HIPAA rules that govern you anyway?

Your employer took you from 1099er with benefits to employee with benefits. Seems completely legal.  Why would it not be?

Seems like you should go to work and keep his confidence.

Or look for another job.  

[NeverMarryAStripper 22294]

So your boss is into some really kinky stuff apparently. Based on my extensive research the NDA is completely unenforceable and you should start a thread to discuss the details.

[TwiceHorn 32077]

3 hours ago, MrBig said:

The NDA was not about “trade secrets” but rather to not “disseminate or discuss personal confidential information about the private closed door home activities being conducted by the boss” which could be potentially damaging to his reputation and larger business (which I am not an employee of—I work for his smaller less known business).

I ask about this NDA because of this reason:

My employer switched me from an independent contractor (even though I was full-time getting 40 hours a week with NO benefits), to an official payroll employee after a few years. This was unexpected but I soon realized that it was to be done on the premise that I would provide a medical service to him in exchange for health benefits for my family. Is this something that is legal? I’m afraid that the NDA has me by the balls if I don’t follow through, and I feel like I can’t speak up about it because I don’t want to get sued. 

Well, this is why I mentioned "confidential information" separately.  NDAs tend to be enforceable, period.  There are no little "tricks" like with covenants not to compete, where employment status may make a difference.

The first big "out" on an NDA is when the "confidential information" is no longer confidential.  The second seems to be when it's "against public policy," which might include covering up a crime or civil wrong, as in rapiness.  Sounds like what's happening to you might fall in the second category, but as a lawyer, I have never seen any real coherent explanation of when something becomes against public policy.

Bottom line is that it would seem to be prudent to distance yourself from this person, employment-wise and every other way.  And keep your mouth shut.  People that have others sign NDA's concerning their personal behavior tend to be poisonous mf'ers, in my observation.

[Jerry Callo 8959]

16 minutes ago, TwiceHorn said:

but as a lawyer, I have never seen any real coherent explanation of when something becomes against public policy.

If you've resorted to arguing public policy, you've already lost in my experience.

[luke duke 6449]

it was to be done on the premise that I would provide a medical service to him in exchange for health benefits for my family.

So prostate massages are now considered a “medical service”? My friend wants to know if his insurance would cover his regular visits to the local rub and tug.

[TwiceHorn 32077]

26 minutes ago, Jerry Callo said:

If you've resorted to arguing public policy, you've already lost in my experience.

Well, unless the NDA involves famous people and sexual misconduct. 

[Nice Guy Eddie 13729]

not well known, but NDAs don't apply to message boards like Surly. feel free to state whatever you know here.

[NeverMarryAStripper 22294]

Do the medical services involve patching up gunshot wounds to the Don's soldiers?

[MrBig 5628]

On 4/13/2020 at 6:32 AM, deadshank said:

What is there to speak up about?  Keep the man's personal business private. Why would you divulge a confidence?  Going further, why would you divulge someone else's medical condition; epecially the medical condition of the guy that is paying you to help him and keep quiet about it?  Aren't there HIPAA rules that govern you anyway?

Your employer took you from 1099er with benefits to employee with benefits. Seems completely legal.  Why would it not be?

Seems like you should go to work and keep his confidence.

Or look for another job.  

There is nothing to speak up about. I could care less about his personal escapades and whatever he does behind closed doors. I have fully complied with the NDA. My issue is that the NDA is being used to manipulate me into doing something I am not comfortable with.

To recap, I was a 1099, 40 hour a week employee with NO BENEFITS for nearly 2 years.

Suddenly, I was given the offer of becoming a W-2 official employee once the boss realized the medical coverage he can provide would allow me to donate a kidney to him for a transplant since I’m a compatible donor. 

I was not advised of this prior to signing on and becoming a W-2 employee. I was “given the opportunity to join the team” after being an independent contractor for so long so I jumped at the chance.

Once I signed on and became an official employee, I was subjected to weekly medical tests to monitor my health. I was not told that the “condition” of my W-2 employment would be contingent on giving my fucking kidney to my asshole boss. There was no general employment contract (or anything in writing to explicitly state this). My boss keeps suggesting how impressed he is with my willingness to help him out, but I am dumbfounded that he thinks we can just do this in exchange for the “privilege” of being a W-2 employee.

Any thoughts? I’m pretty much fucked in this situation and I know it. I know he can’t force me to give the kidney, and it is not in the official employee handbook, but the NDA clearly states that I have accepted responsibility to do anything necessary to protect the interests of my boss to continue the operations of his company. I can’t speak out and I am a fucking moron for signing an NDA without taking a large sum of money first. 

[Reagan1k 3042]

Look on the bright side....at least he doesn't need a heart transplant.

[NeverMarryAStripper 22294]

How the fuck did he know you are a compatible donor?  I'm not a lawyer, nor did I stay in a Holiday Inn Express, but I find it hard to believe that any court would enforce an NDA designed to coerce you into giving up an organ (only the IRS can do that).  I would either tell him to fuck off and tell him if he retaliates you will blab his shit to everyone, or offer to sell him your kidney for a bunch of money.  Why the fuck would work for someone who would steal your organs anyway?  You might also tell him that dead people don't need kidneys.

[TwiceHorn 32077]

14 minutes ago, MrBig said:

the NDA clearly states that I have accepted responsibility to do anything necessary to protect the interests of my boss to continue the operations of his company

That's not an NDA, then.

It may be contained in an NDA, but to the extent it implies an obligation beyond disclosing information or the general modified fiduciary duty of an employee, it is not an NDA.

It is not enforceable to make you donate a kidney, I don't believe.

Your situation doesn't seem to have anything to do with a non-disclosure agreement.  It seems to have everything to do with a bad employer/employment situation.

As you seem to acknowledge, Texas is an at-will state, so your employer can move you between contractor, employee, and unemployed statuses as he sees fit, unless an agreement dictates otherwise or he engages in discrimination.  The "NDA" may be more of a general employment agreement.  Employee manuals and the like can also be interpreted as employment agreements placing conditions on termination.  So you would have to rely on those to create some kind of wrongful termination claim.  Sounds like an uphill battle.  Also sounds like time to find a new job (maybe after this virus thing passes).

[deadshank 24654]

1 hour ago, MrBig said:

There is nothing to speak up about. I could care less about his personal escapades and whatever he does behind closed doors. I have fully complied with the NDA. My issue is that the NDA is being used to manipulate me into doing something I am not comfortable with.

To recap, I was a 1099, 40 hour a week employee with NO BENEFITS for nearly 2 years.

Suddenly, I was given the offer of becoming a W-2 official employee once the boss realized the medical coverage he can provide would allow me to donate a kidney to him for a transplant since I’m a compatible donor. 

I was not advised of this prior to signing on and becoming a W-2 employee. I was “given the opportunity to join the team” after being an independent contractor for so long so I jumped at the chance.

Once I signed on and became an official employee, I was subjected to weekly medical tests to monitor my health. I was not told that the “condition” of my W-2 employment would be contingent on giving my fucking kidney to my asshole boss. There was no general employment contract (or anything in writing to explicitly state this). My boss keeps suggesting how impressed he is with my willingness to help him out, but I am dumbfounded that he thinks we can just do this in exchange for the “privilege” of being a W-2 employee.

Any thoughts? I’m pretty much fucked in this situation and I know it. I know he can’t force me to give the kidney, and it is not in the official employee handbook, but the NDA clearly states that I have accepted responsibility to do anything necessary to protect the interests of my boss to continue the operations of his company. I can’t speak out and I am a fucking moron for signing an NDA without taking a large sum of money first. 

Referencing  your compatible kidney would have been pretty cool to mention in your original post.

 

[Dbeasy 15593]

Jeez dude get the hell out of there immediately before you wake up in a hotel bathtub bleeding out on ice, short one kidney.

[Nice Guy Eddie 13729]

2 hours ago, TwiceHorn said:

 

As you seem to acknowledge, Texas is an at-will state, so your employer can move you between contractor, employee, and unemployed statuses as he sees fit, unless an agreement dictates otherwise or he engages in discrimination.  The "NDA" may be more of a general employment agreement.  Employee manuals and the like can also be interpreted as employment agreements placing conditions on termination.  So you would have to rely on those to create some kind of wrongful termination claim.  Sounds like an uphill battle.  Also sounds like time to find a new job (maybe after this virus thing passes).

I disagree with this. An employer can't alter your employment status without some level of your understanding and agreement.  Now I suppose a boss could walk up to a contractor and say that I'm changing you to an employee, just as the "employee" can say no and go home.

[troph 25224]

Well damn that escalated quickly. Just resign and move on. He can’t do shit. I’d triple dog dare him to sue you. Ain’t no court going to force you to give up a kidney.

[TwiceHorn 32077]

1 minute ago, Nice Guy Eddie said:

I disagree with this. An employer can't alter your employment status without some level of your understanding and agreement.  Now I suppose a boss could walk up to a contractor and say that I'm changing you to an employee, just as the "employee" can say no and go home.

I mean you can disagree with it all you want.  No one is saying it's ethical or right.  Just stating the law.

In the absence of a contract to the contrary, an employer in Texas can tell you, "you're hired," "you're fired," "you're a contractor."  Sure you can quit (and  that's the flip side of it).  Or, if you keep working, you have implicitly agreed to the change. That's all the "understanding and agreement" that's required.

Now, if you have some kind of contract, express or implied, the employer can't do those things if the contract forbids it or places conditions on it.

[hornbri 1508]

That is not what a NDA does, did you sign some other kind of contract you are calling a NDA?

[troph 25224]

That is not what a NDA does, did you sign some other kind of contract you are calling a NDA?

Nephrological Disposition Agreement, duh.

[MrBig 5628]

On 4/14/2020 at 2:03 PM, hornbri said:

That is not what a NDA does, did you sign some other kind of contract you are calling a NDA?

I only signed a generic looking NDA pulled off the internet when I started working there as an independent contractor. I didn’t even get a copy of it after I asked for it. There was no official employment contract signed, just a verbal discussion of the tasks I was expected to do. 

When I was given the opportunity to be an official W-2 employee of the company, there was still no contract signed. There is no official company employee handbook with guidelines and regulations, and I was given no benefits other than medical insurance. No PTO or sick time. I am 1 of 1 employee.

Without the absence of an employee handbook, does that make any difference for my chances of collecting unemployment in Texas if the employer contests the claim? There are no explicit guidelines about their policies stated in writing based on their non-existent handbook.

This past month I have been working from home doing the bare minimum of tasks by keeping his accounts current, but I’m not responding to his calls and emails because I don’t want to engage in his constant pestering of my medical status. It is causing me extreme duress every time I get a call from him, and I can’t just sack up and answer the call. It’s fucking with my mental health. I tried expressing this to my psychiatrist but I’m scared of what I could say because of the NDA.

So essentially I am about to be terminated for abandoning my job because I haven’t spoken to my boss in several days despite doing the bare minimum.

Basically I’m fucked and thinking I will not be able to file for unemployment because they are going to say I voluntary abandoned my job. Should I file the unemployment claim anyways and see if they contest it? I feel like I’m dead in the (proverbial bathtub kidney) water.

[HornOnTheBayou 9062]

On 4/14/2020 at 1:32 PM, troph said:

 Ain’t no court going to force you to give up a kidney.

John Roberts says, "Hold my beer." (no cr)

[TwiceHorn 32077]

56 minutes ago, MrBig said:

I only signed a generic looking NDA pulled off the internet when I started working there as an independent contractor. I didn’t even get a copy of it after I asked for it. There was no official employment contract signed, just a verbal discussion of the tasks I was expected to do. 

When I was given the opportunity to be an official W-2 employee of the company, there was still no contract signed. There is no official company employee handbook with guidelines and regulations, and I was given no benefits other than medical insurance. No PTO or sick time. I am 1 of 1 employee.

Without the absence of an employee handbook, does that make any difference for my chances of collecting unemployment in Texas if the employer contests the claim? There are no explicit guidelines about their policies stated in writing based on their non-existent handbook.

This past month I have been working from home doing the bare minimum of tasks by keeping his accounts current, but I’m not responding to his calls and emails because I don’t want to engage in his constant pestering of my medical status. It is causing me extreme duress every time I get a call from him, and I can’t just sack up and answer the call. It’s fucking with my mental health. I tried expressing this to my psychiatrist but I’m scared of what I could say because of the NDA.

So essentially I am about to be terminated for abandoning my job because I haven’t spoken to my boss in several days despite doing the bare minimum.

Basically I’m fucked and thinking I will not be able to file for unemployment because they are going to say I voluntary abandoned my job. Should I file the unemployment claim anyways and see if they contest it? I feel like I’m dead in the (proverbial bathtub kidney) water.

The NDA has no effect on any of that, except possibly what you could "talk about" or discuss in a TWC filing.

I'm not an unemployment/TWC expert, but I think if you quit, you get no unemployment.  Abandonment would be quitting without saying "I quit." 

What you want to show, I think, is that he has constructively discharged you by making life hell.  TWC apparently does not recognize constructive discharge in the context of unemployment compensation, it is treated as quitting (voluntary separation). https://www.twc.texas.gov/news/efte/types_of_work_separations.html

[Apep 645]

IANAL, but you need to discuss this with your psychiatrist. FWIW, I've gotten unemployment in Texas when I quit on the advice of my psychologist and advised my employer of such in my resignation letter. I was already on an "improvement plan" and slated for termination, so maybe they just didn't fight it. That was about ten years ago and it seriously fucked up my career. But getting unemployment was better than nothing.

[MrBig 5628]

8 hours ago, Apep said:

IANAL, but you need to discuss this with your psychiatrist. FWIW, I've gotten unemployment in Texas when I quit on the advice of my psychologist and advised my employer of such in my resignation letter. I was already on an "improvement plan" and slated for termination, so maybe they just didn't fight it. That was about ten years ago and it seriously fucked up my career. But getting unemployment was better than nothing.

Yeah I am just unsure if I can talk about all the work shit making me crazy with my psychiatrist because of the NDA. Is that covered by doctor-patient confidentiality? If they contest the unemployment claim, would they get to see my medical records and see all the shit I told my psychiatrist? I would get sued into oblivion if that happened.