Introduction
The announced legislative changes regarding non-compete clauses, non-solicitation clauses, and non-poaching clauses have raised concerns among many employers regarding the protection of their trade secrets. These protective measures are being curtailed to increase employee mobility. However, this does not mean that employers are left empty-handed. On the contrary: the confidentiality clause remains largely unaffected. In this blog, you’ll learn how employers can use the confidentiality clause to protect their confidential information, even as employee flexibility increases.
New rules for non-compete clauses, but not for confidentiality agreements
The proposed bill imposes stricter requirements on the inclusion and enforcement of non-compete and non-solicitation clauses. These include mandatory justifications, shorter durations, and restrictions on geographic scope. The goal: to give employees more freedom to change jobs without contractual barriers.
The confidentiality clause, on the other hand, falls outside the scope of these new rules. For employers, this presents an excellent opportunity to establish protective agreements—within the bounds of the law—regarding sensitive information, know-how, and internal processes.
As an employer, what can you actually include in a confidentiality agreement?
Although the non-disclosure clause does not restrict mobility in the same way that a non-compete clause does, it is indeed effective in protecting business interests. Here are a few possibilities:
- Restricting Access Prior to Departure
For employees in senior positions or those with access to sensitive data, a contractual provision may be included stipulating that they no longer have access to certain systems during their notice period. This reduces the risk of company information being downloaded or disclosed. - Agree on extended notice periods
Employers can contractually include a longer notice period for the employee, giving them more time to anticipate their departure. Please note: the statutory rule states that the notice period for the employer must be double that for the employee. - Clear and precise language regarding confidentiality
In the confidentiality clause, clearly specify what constitutes confidential information, how long the clause remains in effect, and what penalties apply in the event of a breach. This will enhance the enforceability of the clause in legal proceedings.
A Fresh Look at Existing Employment Contracts
Now that non-compete clauses are coming under increasing pressure, it is wise to review existing contracts. Many employment contracts still contain standard provisions that do not provide sufficient protection under the new legal framework.
By updating the confidentiality clause and explicitly linking it to the nature of the position, access to information, and strategic importance, employers can still influence how employees handle confidential information after they leave the company.
Conclusion
While non-compete clauses are under fire, confidentiality clauses actually offer some leeway. With careful and strategic wording, employers can still protect their business interests, even after an employee leaves. Consider access restrictions, longer notice periods, and clear confidentiality clauses. A well-drafted confidentiality clause may require a bit more preparation, but it has become indispensable in the current labor law climate.
This blog was written by Stijn Blom, Esq., an employment law attorney at Arbeidsadvocaat.nl B.V. Stijn has extensive experience in employment law and assists employers and employees on a daily basis with a wide range of employment law issues. From dismissal cases to drafting watertight agreements and policies—with his practical and personalized approach, he helps employers and employees move forward. Want to learn more? Visit Stijn’s page.
Arbeidsadvocaat.nl is happy to help you if you have any questions about termination. Please feel free to contact us .
April 2025