Writing about your former employer without getting sued

What legal risks come with writing about a former employer?

Almost every employment relationship leaves behind some combination of these four obligations. Your NDA (the confidentiality agreement you signed when you joined).

Your non-disparagement clause (often in a separation agreement). Trade secret law (which applies even without a written agreement). And general defamation law (the duty not to make false statements of fact that damage someone). Authors tend to fixate on the NDA, and I think the other three are where the trouble hides. For more, see using AI for research without getting burned and How to fire a ghostwriter mid-project without losing the manuscript.

Each one has different rules, different durations, and different remedies if you violate them. Authors writing about former employers need to think about all four, in that order.

What does your NDA restrict?

Most NDAs restrict disclosure of confidential information defined within the agreement. The definition typically includes: business strategies, financial information, customer lists, technical processes, internal communications, and anything marked as confidential.

What NDAs usually don’t restrict: information that was publicly known, your own general professional skills and knowledge, your personal experiences and feelings, and information that became public after you left through means other than your disclosure.

The practical line: writing I worked at Company X and learned that good leadership requires clarity is fine. But the statement Company X’s customer acquisition strategy was X and their projections showed Y isn’t fine. The first is your professional experience. The second is confidential business information.

What does a non-disparagement clause stop you from saying?

If you signed a separation agreement, it probably included a non-disparagement clause. The clause restricts you from making negative statements about the company, its products, its officers, or its operations. It’s often mutual (the company agrees not to disparage you either). What non-disparagement covers is broader than what NDAs cover. It covers true negative statements as well as false ones. The CEO was a bad leader is non-disparaging even if true; you agreed not to say it. That stings, but you signed it.

Some non-disparagement clauses carve out exceptions for honest professional discussion, response to inquiries, or testimony in legal proceedings. Read your agreement. The exceptions are usually narrow, and I wouldn’t bet a book on squeezing through one.

Trade secrets

Trade secret law protects information that’s economic value because it’s not generally known, and that the company took reasonable steps to keep secret. Examples: proprietary algorithms, secret recipes, internal pricing models, customer pipelines.

Trade secrets are protected even if you signed nothing. Federal law (the Defend Trade Secrets Act) and state law both create liability for misappropriation. Damages can be significant.

For memoirs and business books, the trade secret question usually comes up around technical processes and customer information. If your book describes how to do something the company considered proprietary, you have exposure. The defense is that the information was either publicly known, was your own general skill, or is no longer a trade secret.

Defamation

Defamation requires a false statement of fact that damages someone’s reputation. True statements aren’t defamatory regardless of how harmful. Opinions aren’t defamatory if they’re clearly opinions and not implied factual claims.

For authors, the practical line: X was a bad manager is opinion. X embezzled funds is a factual claim that had better be true and documented. The first protects you. The second exposes you unless you have evidence that would stand up in court.

How do you write about real events safely?

Five working rules. First, change names and identifying details for people unless you have a specific reason to use real names. Memoir accepts composite characters and pseudonyms as long as the author discloses the practice.

Second, stick to your own experience and your own reactions. I felt X happened and From my position, the decision looked like X are safer than declarative factual claims about company operations. Third, avoid technical details that could be construed as trade secrets even if you remember them from your job.

Fourth, get a legal review before publication if the book names anyone or any company. A media lawyer reviewing the manuscript for $2,500 to $5,000 is cheap insurance. An author who skips it to save money is making the dumbest economy available.

Fifth, ask yourself whether each potentially exposed passage matters for the book’s argument. Most aren’t, and the author’s instinct is usually to include the spicy details. Lawyer instinct is usually to cut them. The reader usually doesn’t miss them. I side with the lawyer here. Spicy details that don’t serve the argument are vanity, and vanity is a lousy reason to get sued.

From the author

The Ghostwriting Advantage
Sensitive material needs a careful writer. The Ghostwriting Advantage is my book on how to get your book written for you, with the process that protects what goes on the page.

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