While Non-Disclosure Agreements (NDAs) are crucial for protecting sensitive information, the interests of the public and the need to expose unlawful practices should not be overshadowed. As a result, California law generally favors whistleblower protection over the enforceability of NDAs in cases involving the reporting of illegal activities.
Whistleblowing and NDAs
The intersection of whistleblowing and NDAs can create a dilemma for employees who uncover unlawful activities within their workplace. On the one hand, whistleblowers have a moral obligation to protect the public interest and uphold ethical standards. On the other hand, their NDA legally binds them to maintain confidentiality, potentially putting them at risk of breaching the agreement if they speak out.
In California, the law attempts to strike a balance between these two interests. Generally, the protection offered to whistleblowers in the state outweighs the enforceability of NDAs when it comes to reporting unlawful activities. Courts tend to be more lenient in such cases, acknowledging the importance of exposing wrongdoing.
Examples of When Whistleblowers Can Break an NDA
Here are some general considerations regarding when breaking an NDA to whistleblow might be justifiable:
- Public Safety and Welfare: If your information reveals a serious threat to public safety, health, or the environment, there may be a strong argument for breaking the NDA. Protecting the well-being of the general public often takes precedence over contractual obligations.
- Illegal Activities:If the information you have uncovered points to criminal activities, such as fraud, corruption, or other violations of the law.
- Lack of or Exhaustion of Internal Remedies: In some cases, whistleblowers are required to follow specific internal reporting procedures before going public. If you have exhausted these internal remedies or your employer does not have effective internal reporting mechanisms and have not seen any appropriate action taken, you may be more justified in breaking the NDA to escalate the matter.
- Government Agencies and Law Enforcement: Depending on the circumstances, whistleblowers may be allowed to disclose information to government agencies or law enforcement without violating an NDA.
- Preventing Harm or Retaliation: If there is a fear of retaliation or harm to oneself or others for attempting to address the issue through proper channels, breaking the NDA will be seen as a last resort to protect individuals and expose wrongdoing.
The Importance of Consulting an Attorney
It is essential for potential whistleblowers who have signed an NDA to consult an experienced Los Angeles whistleblower lawyer before taking any action. An attorney will review the NDA and assess its enforceability and the potential risks associated with breaking the agreement. They will help you understand your rights and obligations under the NDA and California’s relevant whistleblower protection laws.
Your lawyer can also help you identify the appropriate channels for reporting the illegal activities or misconduct. They will advise you on whether to report internally within the organization, to a government agency, or law enforcement, considering the circumstances and the level of risk involved. In some cases, an attorney can engage in negotiations with the employer to seek a resolution that allows you to make protected disclosures without facing NDA-related repercussions. However, should your employer take legal action against you for breaking the NDA, a lawyer will represent you in court and defend your rights.