Killing the messenger: The use of nondisclosure agreements to silence whistleblowers

JL Short - U. Pitt. L. Rev., 1998 - HeinOnline
U. Pitt. L. Rev., 1998HeinOnline
Nondisclosure agreements are a common feature of corporate life. Employers routinely
require their employees to sign such agreements to protect the company's legal rights in
trade secrets and other valuable business information, the disclosure of which might hurt the
company's competitive position. Increasingly, however, employers are attempting to expand
the reach of nondisclosure agreements beyond these commonplace and legitimate uses. In
recent years, employers have used gardenvariety employee-nondisclosure agreements to …
Nondisclosure agreements are a common feature of corporate life. Employers routinely require their employees to sign such agreements to protect the company's legal rights in trade secrets and other valuable business information, the disclosure of which might hurt the company's competitive position. Increasingly, however, employers are attempting to expand the reach of nondisclosure agreements beyond these commonplace and legitimate uses. In recent years, employers have used gardenvariety employee-nondisclosure agreements to silence whistleblowers and deprive the public of important health and safety information. In two recent, high profile cases, courts permitted employers to silence whistleblowers with nondisclosure agreements. In Baker v. General Motors, a Michigan state court enforced GM's nondisclosure agreement with Ronald Elwell. 1 The former GM engineer was enjoined from testifying about the dangers of GM's fuel tank design in products liability suits against GM. 2 In another widely publicized case, Brown & Williamson, the third largest US tobacco company, used nondisclosure agreements to obtain a temporary restraining order against a former company executive and researcher, prohibiting him from disclosing information about the dangers of smoking cigarettes. 3 Both rulings deprived the public of important health and safety information about the products of these two companies. Ronald Elwell worked for GM for thirty years. 4 Fifteen of those years were spent as a member of GM's Engineering Analysis Group,* Attorney, Shea & Gardner, Washington, DC. JD, Georgetown University Law Center, 1995. The author was a member of the team of attorneys that defended Jeffrey Wigand against a suit brought by his former employer, Brown & Williamson. The author would like to thank Michael Giannotto, Laura Wertheimer and Matthew Fogelson for their insightful comments on drafts of this Article. The opinions presented in this Article are solely those of the author. 1. See Baker v. General Motors Corp., 86 F. 3d 811 (8th Cir. 1996), rev'd, 118 S. Ct. 657 (1998).
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