Introduction
The announced legislative changes surrounding the non-competition, non-solicitation and anti-solicitation clauses have raised concerns among many employers regarding the protection of their trade secrets. These protections are being curtailed to increase employee job mobility. Yet this does not mean that employers are left empty-handed. On the contrary: the confidentiality clause remains largely out of bounds. In this blog, learn how employers can use the confidentiality clause to protect their confidential information, even with increasing employee flexibility.
New rules on non-compete agreements, but not confidentiality
The proposed bill sets stricter requirements for the inclusion and enforcement of competition and relationship clauses. These include mandatory justifications, shorter duration and limitation to geographical scope. The goal: to give employees more room to change jobs without contractual obstacles.
By contrast, the confidentiality clause remains outside the scope of these new rules. For employers, this offers a great opportunity, within the law, to still establish protective agreements about sensitive information, know-how and internal processes.
As an employer, what can you regulate in a confidentiality clause?
While the non-disclosure clause does not restrict mobility like the non-compete clause does, it is effective in protecting business interests. Some possibilities:
- Limit access prior to departure
In senior positions or for employees with access to sensitive data, it can be contractually stipulated that they no longer have access to certain systems during the notice period. This limits the risk of downloading or passing on company information. - Agree extended notice periods
Employers can contractually include an extended notice period for the employee to give them more time to anticipate the employee's departure. Note that the legal rule states that the notice period for the employer must be double that for the employee. - Tight wording on confidentiality
Make clear in the confidentiality clause what is covered by confidential information, how long the clause remains in effect, and what sanctions apply for violation. This increases its enforceability in legal proceedings.
A fresh look at existing employment contracts
With competition clauses coming under increasing pressure, it is wise to re-examine existing contracts. Many employment contracts still contain standard clauses that provide insufficient protection under the new legal framework.
By updating the confidentiality clause and explicitly linking it to the nature of the job, access to information and strategic importance, employers can still influence how employees handle post-departure knowledge.
Conclusion
Where the non-competition clause has come under fire, the non-disclosure clause actually offers room. Employers can still protect their business interests with careful and strategic wording, even after an employee leaves. Consider access restrictions, longer notice periods and clear confidentiality clauses. A properly drafted confidentiality clause may require a little more preparation, but it has become indispensable in today's employment law climate.
This blog was written by mr. Stijn Blom, employment lawyer at Arbeidsadvocaat.nl B.V. Stijn has extensive experience in employment law and supports entrepreneurs and employees on a daily basis with a variety of employment law issues. From dismissal cases to drafting watertight contracts and regulations - with his practical and personal approach, he helps employers and employees move forward. Want to know more? Visit Stijn's page.
Arbeidsadvocaat.nl is happy to think with you if you have questions about dismissal. Please feel free to contact us .
April 2025
