When we hired a new employee we forgot to make him sign an NDA. Now, a year into his employment, we want to make sure that he signs one. My question is, what language should I use in the contract to cover not just from the signing date but from a date a year ago? Also, do you guys foresee any legal issues in the future?
All you can do at this point is prevent disclosures in the future. So your goal needs to be to get them to sign an NDA asap, rather than raising questions in their mind.
If I were you, I'd approach the employee in a friendly manner and honestly explain that I forgot to have them sign an NDA, but I need them to sign one now. Then I'd hand them a standard NDA that:
Most folks will chuckle, review it, and sign. They might want a little while to read it; treat it like it's not a big deal, just like you would an NDA for a regular new employee.
If your employee refuses to sign, or has already disclosed the information... you have a big problem. If the employee has your confidential information and isn't covered by an NDA, you certainly don't want to alienate them by getting angry or talking about firing them. So smile and say something politic, then go to a private office and call your business lawyer immediately.
I don't see any particular issue with getting a custom contract in place. Look into the concept of warranties: the employee can "promise" that he didn't disclose anything, and will continue not to disclose anything. The whole point of contracts and NDAs is that people agree to expose themselves to severe penalties if they do something (disclosing confidential information).
I would involve a lawyer, this sounds like a fairly simple case that they will take care of for you.
I have the feeling what you are really asking about is a Confidential Information and Invention Assignment Agreement. That's the type of agreement that would normally be used with an employee.
A Confidential Information and Invention Assignment agreement prevents disclosure of proprietary information by an employee and ensures that any work products and IP (intellectual property) created during their employment belongs to the company.
It shouldn't be difficult to get this resolved, assuming the employee cooperates, and why wouldn't he but best to consult an attorney.
Interesting legal problem.
My suggestion would be to have the employee disclose any prior knowledge not covered by the NDA within the agreement. While this would not protect you from the gap in coverage, it would server both as a possible heads up on the employee's take on the situation, and might serve as a reasonable proof for lack of prior knowledge if issues developed in the future; at which point the ball would be in their court to prove that's not the case.
Another option might be to "buy" the information during that period where there was a gap in coverage. In said agreement, state that information is now property of the company, and that they no longer own any rights to disclose that information in the future. I would also require that any discloses of said information during the gap in coverage be listed without liability to the employee, BUT any lack of disclosure might at the discretion of the company be responded to via any legal means it saw fit to regain the value the company believed was being represented within the agreement. Clearly, this was your mistake not their mistake, so if you were advised it was legal to do this, I would not place the value of the agreement at $1.
In no way does this answer form legal advice, and as always, consult a professional. (Am interested in any feedback on the legality and/or value of this positioning though.)
Just to elaborate on my comments - the term "back dating" almost always comes with a negative connotation and many times it is outright fraudulent or illegal.
So, to propose that as a solution to your own mistake seems ill-advised at best. I certainly would never agree to sign anything like that - and likely would outright refuse to sign it at all regardless of the date.
All you need to do is provide some consideration ($1, a fee, whatever he will agree to) to enter into an agreement that lays out the facts and provides that all information beginning from the date of his employment with you is subject to confidentiality as stated in the agreement to be signed.
This is really just a simple contract issue - a promise for a promise: You promise to deliver the consideration to him to restrict his legal right in and to the IP you want to protect.
No problem at all telling him his job is on the line if he does not sign it, but that might just turn on light bulbs and put you at more risk.
You may also be able to rely on his employment agreement if one exists. How was confidentiality dealt with there? Does it state that his work product is a "work-for-hire"? Perhaps another clause that could be constructed to deal with this?
The real question here is what type of person are you dealing with? This is a moral question ultimately. I guesss you will find out who you have hired when you address this matter on this issue.