Clients with employees scattered far and wide pose challenges when it comes to selecting choice of law and forum in employee non-disclosure agreements or PIIAs (Proprietary Information and Inventions Agreements). Some clients may prefer to require arbitration for disputes governing the employment relationship (eg, wage and hour disputes, discrimination or retaliation claims, etc), while preserving the ability to go to court with respect to IP infringement claims, non-compete obligations, and breach of confidentiality.
Requiring a remote employee far from the state of your client’s HQ to litigate in the HQ state for such actions could prove problematic. One should expect a motion contesting jurisdiction on forum non conviens grounds. What’s more, juries may be sympathetic to an employee hauled in front of a court far from home at the behest of an employer’s one-sided contract of adhesion.
One possible workaround is to preserve the ability to sue in the employee’s home court. The lawyers of Redline have posted clauses and redlined variations for use in employee NDAs and PIIAs that attempts to walk this fine line.
