| Enforcement actions against two companies by the U.S. Securities and Exchange Commission for having severance agreements the agency deemed too restrictive should have every company checking its severance agreements to make sure they don't contain similar clauses. These same clauses may also be found in confidentiality agreements, and those should also be checked in the wake of these actions, said Todd Lebowitz, an employment litigation partner at law firm BakerHostetler. "If you are under the jurisdiction of the SEC this is something you need to look at," he said. "It's not a terribly difficult fix but it's an important fix." Companies can still achieve their objectives to protect sensitive information through severance and confidentiality agreements as long as they create exceptions that spell out information can be shared by an employee as part of an SEC whistleblower investigation, Mr. Lebowitz said. "Companies can still accomplish 99% of what they are trying to do…but they will need carve-outs," he said. "For example, they can have a confidentiality clause that says employees cannot disclose confidential information or must advise the company's legal department first if they do, but also can say this provision does not apply to whistleblower complaints to the SEC." Firms also need to figure out what to do with those employees who already have signed severance and confidentiality agreements, as it's not practical to change each one if there are thousands of employees, said Mr. Lebowitz. "The answer is probably to send a communication to all employees that the company will not interpret its confidentiality agreements in a way that would require you to give prior notice before providing confidential information to the SEC in a whistleblower investigation," he said. | 
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