Confidentiality obligations are the employer protection D.C. left completely intact. § 32–581.01(15)(B)(i) excludes from the non-compete ban any otherwise-lawful provision restricting an employee from disclosing, using, selling or accessing the employer’s confidential or proprietary information. And because “proprietary employer information” is defined to include customer lists, client lists and trade secrets under § 36–401(4), a confidentiality claim frequently carries the statutory remedies of the Trade Secrets Act with it.
Why confidentiality terms survived the ban
Confidentiality terms sit outside D.C.’s non-compete ban: the statutory definition excludes a provision restricting an employee from disclosing, using, selling, or accessing the employer’s confidential or proprietary information.
“Non-compete provision” means a provision in a written agreement or a workplace policy that prohibits an employee from performing work for another for pay or from operating the employee’s own business. The term “non-compete provision” does not include an otherwise lawful provision: (A) Contained within or executed contemporaneously with an agreement between the seller of a business and one or more buyers of that business wherein the seller agrees not to compete with the buyer’s business; (B) That prohibits or restricts an employee from: (i) Disclosing, using, selling, or accessing the employer’s confidential employer information or proprietary employer information; (ii) Accepting money or a thing of value for performing work for a person other than the employer, during the employee’s employment with the employer, because the employer reasonably believes the employee’s acceptance of money or a thing of value under such circumstances will: (I) Result in the employee’s disclosure or use of confidential employer information or proprietary employer information; (II) Conflict with the employer’s, industry’s, or profession’s established rules regarding conflicts of interest; (III) Constitute a conflict of commitment if the employee is employed by a higher education institution; or (IV) Impair the employer’s ability to comply with District or federal laws or regulations; a contract; or a grant agreement; or (C) That provides a long-term incentive. (16) “Proprietary employer informati…
D.C. Code § 32–581.01(15)
Subparagraph (B)(i) is the operative exclusion. It is why a well-drawn confidentiality obligation is now the center of most employer-side protection, not the periphery.
Where an NDA meets the Trade Secrets Act
An NDA does two useful things in a trade secret case: it evidences the duty to maintain secrecy whose breach is “improper means” under § 36–401(1), and it helps establish the reasonable efforts element of § 36–401(4).
(4) “Trade secret” means information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (A) Derives actual or potential independent economic value, from not being generally known to, and not being readily ascertainable by, proper means by another who can obtain economic value from its disclosure or use; and (B) Is the subject of reasonable efforts to maintain its secrecy.
D.C. Code § 36–401(4)
Does suing expose the confidential information?
This is the question that stops companies acting, and the statute answers it directly — preservation is mandatory, not discretionary.
In an action under this chapter, a court shall preserve the secrecy of an alleged trade secret by reasonable means, which may include granting protective orders in connection with discovery proceedings, holding in-camera hearings, or sealing the records of the action and ordering any person involved in the litigation not to disclose an alleged trade secret without prior court approval.
D.C. Code § 36–405 — Preservation of secrecy
Deadlines
| Claim | Period | Section |
|---|---|---|
| Simple contract, express or implied | 3 years | § 12–301(7) |
| Injury to personal property | 3 years | § 12–301(3) |
| Libel or slander | 1 year | § 12–301(4) |
| Not otherwise specially prescribed | 3 years | § 12–301(8) |
A misappropriation claim runs 3 years from discovery under § 36–406. A contract claim on the NDA itself generally runs 3 years under § 12–301(7).
Frequently asked questions
Are NDAs still enforceable in DC?
Confidentiality and proprietary-information restrictions are expressly excluded from the non-compete ban by § 32–581.01(15)(B)(i).
Do we need an NDA to protect a trade secret?
No, but it helps prove both the duty of secrecy under § 36–401(1) and the reasonable-efforts element of § 36–401(4).
Will suing make the information public?
§ 36–405 requires the court to preserve the secrecy of an alleged trade secret by reasonable means, including protective orders, in-camera hearings and sealing.
How long do we have?
Three years from discovery for misappropriation under § 36–406; generally three years for a contract claim under § 12–301(7).
What separates confidential information from a trade secret?
The statutory test. D.C. Code § 36–401(4) requires information that derives independent economic value, actual or potential, from not being generally known and not being readily ascertainable by proper means, and that is the subject of efforts reasonable under the circumstances to maintain its secrecy — a contract can call information confidential without meeting that.
Who has to prove the information qualified?
The party seeking relief. Because the definition in § 36–401(4) turns partly on what the business did, the evidence is internal: access controls, confidentiality terms, onboarding and exit practice, and how the material was actually handled day to day.
How does a court keep the information secret during the case?
By order, and it is required to. D.C. Code § 36–405 directs the court to preserve the secrecy of an alleged trade secret by reasonable means, which may include protective orders in discovery, in-camera hearings, sealing the record, and ordering anyone involved not to disclose it without prior court approval.
Who pays the legal fees in an NDA dispute?
Usually whoever the agreement says, because most NDAs carry a prevailing-party clause and the District has no general rule shifting fees. The statutory route in § 36–404 is narrow — it requires bad faith or willful and malicious misappropriation, not merely losing.
Sources and legal authorities
- D.C. Code § 32–581.01 — Definitions
- D.C. Code § 36–401 — Trade secret definitions
- D.C. Code § 36–405 — Preservation of secrecy
- D.C. Code § 36–406 — Statute of limitations
- D.C. Code § 12–301 — Limitation of actions
General information about D.C. law, not legal advice. Which rule applies depends on the entity, the agreement and the facts.
Related: Unfair Competition · Trade Secret Misappropriation · Non-Solicitation Disputes · Non-Compete Disputes · Business Litigation. Call (301) 901-3109 or use the contact page.