A client recently asked how he should respond to a former employee’s request for a copy of her confidentiality agreement. In this case, the employee was considering a severance package. The severance agreement reminded the employee that she continued to be bound by the confidentiality agreement she had signed on hire. It was likely that she wanted to reference that document as she did not recall what her obligations were.
It is generally a good idea to provide employees with copies of documents that they signed when they request them. Clearly, the employee knows that the document exists and the employee should have kept, or been provided with, a copy of the document when it was initially signed. You are not giving the employee something he or she is unfamiliar with, or confidential business information the employee should not be privy to. The other concerns that arise when employees ask for their entire personnel file (see Can Former Employees Get Copies of Their Personnel Files?) do not exist when an employee seeks a single document that he or she signed.
Do not, however, provide the employee with the original, signed document. That should be retained by the employer. Rather, e-mail or snail-mail a copy of the applicable document.
In sending the document, it is generally not advisable to engage in extensive communication beyond social pleasantries and the statement that the document requested is enclosed/attached. Asking the employee why they want the document can be seen as intrusive. Indeed, it is unnecessary and irrelevant. If the former employee wants the document to use against your company, you will find out soon enough. The employee likely would not tell you their actual purpose in response to such an inquiry if it was something nefarious in any event. It is therefore best to take the high road, provide the document, and keep the communication short, civil and professional.
If you have questions regarding the propriety of providing documents to former employees, reach out to an employment lawyer familiar with the law where your business is located.
