A written agreement signed by the employee prohibiting the employee from using or disclosing the employer's confidential, proprietary, and/or trade secrets information.
Under Minnesota law, a confidentiality agreement is considered a form of "restrictive covenant" and is analyzed under the same legal principles that apply to noncompete and nonsolicitation agreements. Among other things, this means that a written confidentiality agreement must be entered into ancillary to the commencement of the employment relationship or, alternatively, must be supported by independent consideration such as a promotion, raise, bonus, etc. if entered into with an existing employee.
Even if a written confidentiality agreement is invalid due to lack of consideration, however, the existence of the agreement may help the former employer establish that the employee has violated his/her common law duty to protect confidential information and/or the statutory duty to protect the employer's "trade secrets" under the Minnesota Uniform Trade Secrets Act.
As a general rule, employees have a common law duty not to use or disclose information they know (or reasonably should know) the employer considers confidential. Thus, the mere fact that the employee has been required to sign a written confidentiality agreement can help establish the elements of this legal claim even if the underlying agreement itself is void for lack of consideration.
To avoid arguments about whether the confidentiality agreement is supported by consideration, Minnesota employers should offer employment in writing (not verbally). The employer should make it clear, in the employer's initial written job offer to the employee, that the employee will be required to sign the confidentiality agreement. A copy of the agreement should be attached to the offer letter. The employer should require the employee to return the signed agreement before the first day of work.
Alternatively, in cases where the above hiring process has not been followed (e.g., someone verbally offered employment to the job candidate before providing a copy of the confidentiality agreement), and for all current employees, the employer should provide the employee with something valuable in exchange for signing the agreement (e.g., meaningful raise, promotion, bonus, etc.).