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Civil Litigation

Confidentiality breaches risky for employees

Employees should consider obtaining independent legal advice before breaching confidentiality agreements with their employers, Toronto criminal and civil litigator Laurelly Dale tells AdvocateDaily.com.

Dale, principal of Dale Legal Firm, explains that there are exceptions to confidentiality clauses, allowing employees to report illegal activity by employers. However, if disclosures stray beyond that narrow exemption, she says employees could expose themselves to disciplinary consequences, including dismissal for cause.

“Before any employee breaches a confidentiality agreement, they should consult with independent legal counsel to make sure it won’t harm them,” Dale says. “There are policies that describe confidentiality exceptions, and you need to be certain that what you are saying falls within them ahead of time. It certainly shouldn’t be done in a careless manner or for personal gain.”     

A recent CBC report chronicled complaints from a number of bank employees concerned about high-stress work environments and lofty sales targets. The story says hundreds of current and former employees contacted the broadcaster with their stories, with some of the whistleblowers claiming to have broken laws in an effort to please bosses.  

“How many of those people were disgruntled employees not hitting their targets, as opposed to being involved in illegal activities? That takes things into a grey area that was not really explored in the article,” Dale says.

Before starting her own firm, Dale acted as in-house counsel for a number of large companies, and still performs corporate liability mitigation work for employers. She says employee issues are the “number one” concern for her clients.

“One of my primary purposes is to reinforce the importance of confidentiality in the workplace, not just in terms of preserving proprietary information that might get into the hands of competitors. It’s also about employee and client data, and other information that goes into the day-to-day running of the company,” she says.

"No company can survive without preserving confidentiality, and that’s something employees should also be aware of.”

Dale says there is no shortage of case law supporting employers’ ability to enforce their rights when employees violate confidentiality clauses. In one British Columbia case, the province’s Supreme Court upheld a credit union’s decision to fire an employee in the IT department for cause after she accessed another employee’s personal folder in a dispute over parking spaces.  

And in an Ontario case, a Human Rights Tribunal reduced a woman’s settlement amount after finding she violated the confidentiality clause in the agreement due to a series of Facebook postings, even though they omitted the amount she received.     

“There is a slew of examples, involving bank employees, medical practitioners and others that support the importance of confidentiality clauses, and that reinforces to employees that this kind of information should be treated with a high level of respect,” Dale says.

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