NDA / Confidentiality Agreement
A confidentiality agreement (NDA) is a contract binding an employee to keep company secrets—client lists, formulas, strategies, code—confidential during and after employment. Swiss law recognizes these under the Obligationenrecht (OR). You can enforce one, but it must be reasonable in scope and duration, or a court may refuse to uphold it.
An NDA or Geheimhaltungsvereinbarung is a written promise from an employee (or contractor) not to disclose sensitive business information. It protects trade secrets, customer data, financial details, and strategic plans.
In Switzerland, NDAs are enforceable but must meet strict conditions. Courts will scrutinize whether the restriction is proportionate to the genuine business need. An overly broad NDA may be struck down as unreasonable restraint.
When to use an NDA
Use an NDA when hiring for roles with access to confidential information: technical staff, sales teams with client rosters, product developers, or finance staff. It's especially common in software, manufacturing, and consulting.
An NDA should be signed before the employee starts work or at the start of employment. Asking an existing employee to sign one mid-contract may not be enforceable unless you offer consideration (e.g., a raise or promotion).
- Protects client lists and contact information
- Guards proprietary software or technical processes
- Covers financial and business strategies
- Prevents misuse of data after employment ends
- Sign before work begins for strongest enforceability
- Consider duration: typical terms are 2–5 years post-employment
Your obligations as an employer
Your NDA must clearly define what counts as confidential. Vague language ('all company information') may not hold up in court. Be specific: list categories like client data, source code, pricing, or manufacturing specs.
The restriction must be reasonable. Swiss courts reject NDAs that are too long (more than 5 years is risky) or too broad (preventing someone from working in the industry). The restriction must match genuine business risk, not just competitive advantage.
- Define confidential information clearly and specifically
- Set a reasonable duration (typically 2–5 years post-employment)
- Allow exceptions: publicly available information, independently developed work
- Include carve-outs for legal or regulatory disclosures
- Confirm the employee understands the scope before signing
- Keep the agreement as part of the employment file
The most common mistake
Employers often create overly broad NDAs that courts will refuse to enforce. 'All information' or 'anything not publicly known' is too vague and may be ruled unreasonable restraint of trade.
A second mistake: not distinguishing between confidential and non-confidential information. The more precisely you define what's protected, the more likely a court will uphold it if you need to sue for breach.
- Avoid blanket language—specify categories of protected information
- Don't extend confidentiality indefinitely (courts see this as unfair restraint)
- Don't include information that's already public or easily obtainable
- Don't forget to document what was shared and why it's confidential
- Have a lawyer review the draft before asking employees to sign
- Update your NDA every 2–3 years to match business realities
Frequently asked questions
- Can I ask an existing employee to sign an NDA?
- Yes, but it may not be enforceable unless you offer something in return (raise, promotion, or written confirmation of continued employment). It's always safer to have new hires sign on day one. If challenged, a court may decide the employee gave nothing new in exchange, weakening enforceability.
- What happens if an employee breaches the NDA?
- You can pursue civil damages through court for financial losses. The burden is on you to prove the breach caused harm and quantify it. Criminal liability is rare unless trade secret theft is involved. Consult a lawyer before threatening legal action, as the specificity of your NDA matters greatly.
- Does Swiss law recognize non-competes separately from NDAs?
- Yes. A non-compete clause (restricting where someone can work after leaving) is different from confidentiality and is even more strictly scrutinized by Swiss courts. An NDA alone does not prevent someone from joining a competitor; you need a separate non-compete clause, which must meet high standards of reasonableness.
General information for Swiss employers, not legal advice. Have a lawyer confirm anything with legal consequences.