* Co-Authored by Christie O. Tate.

When drafting employee confidentiality agreements, there is a tendency to think that no restriction can be too tight. However, a recent decision by the Illinois Appellate Court, The Town of Cicero v. Wayne A. Johnson, held that a confidentiality provision in a separation agreement was so onerous that the entire provision was unenforceable.

Wayne A. Johnson served as the Inspector General and Superintendent of Police for the Town of Cicero, Illinois from February 2003 to April 2005. On April 12, 2005, Johnson and Cicero entered into a “Confidential Severance Agreement and General Release,” which was drafted by a Cicero attorney. Under the confidentiality provision of that agreement, Johnson agreed that, in addition to keeping the terms of the agreement confidential, “neither he nor his agents will disclose anything relating to his employment” to Cicero’s “remaining employees, former or prospective employees, people doing business with [Cicero], and to the media” (emphasis added).

After Johnson later made public statements to the media regarding his employment with Cicero, Cicero sued him for breaching the confidentiality provision of the agreement. Johnson defended himself by asserting that the agreement was so overbroad as to be unenforceable.

The court sided with Johnson, holding that while Cicero was free to enjoin Johnson from disclosing the terms of the agreement, Cicero could not prevent Johnson from disclosing “anything relating to his employment.” According to the court, such a broad prohibition was harmful to the public, which is entitled to hear from a public official who was charged with investigating allegations of corruption within Cicero’s police community during his tenure with Cicero. But even if Johnson was not a public official, the court found that the provision would cause him undue hardship during his future job-seeking efforts since he would have to be sure none of his conversations about his former position with Cicero included any former Cicero employees, prospective Cicero employees, “people doing business with” Cicero, or any members of the media.

Moreover, the court also found that Cicero had imposed a greater-than-necessary restriction to protect its legitimate interests. It would have been sufficient to require Johnson to keep the terms of the agreement confidential.

Thus, Cicero’s failure to narrowly tailor the confidentiality clause was fatal, as the court found it was overbroad and therefore unenforceable in all respects.

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