When Employers Request NDAs
Employers may ask you to sign confidentiality agreements at various stages:
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Pre-Employment / Interview Stage
Before sharing sensitive company information during interviews. Usually limited in scope and duration.
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Offer Letter Package
Bundled with your employment offer, often combined with other agreements. Review carefully before accepting.
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First Day / Onboarding
Part of new hire paperwork. You may have more leverage to negotiate at offer stage than on day one.
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Promotion or Role Change
When moving to a role with access to more sensitive information. May include updated or additional terms.
Key Terms to Review
Employment NDAs often include terms beyond simple confidentiality. Watch for these:
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Hidden Non-Compete Clauses
Language preventing you from working for competitors or in your industry. This is NOT an NDA term - it's a career restriction that should be negotiated separately.
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Invention/IP Assignment Provisions
Claims on your inventions, even those created outside work hours. Should be a separate PIIA (Proprietary Information and Inventions Assignment) agreement.
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Prior Knowledge/Inventions Carve-out
Does it protect things you knew or created before employment? You should be able to list prior inventions and knowledge.
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Post-Employment Duration
How long do obligations continue after you leave? 1-3 years is typical. Perpetual is a red flag.
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Non-Solicitation of Employees
Prevents recruiting former colleagues. Reasonable for 1-2 years, problematic if longer or broader.
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Clear Definition of Confidential Information
Specific categories (trade secrets, customer lists, financials) are better than "any and all information."
Employment NDA Red Flags
Non-Compete Disguised as NDA
Watch for language like:
- "shall not directly or indirectly engage in any business competitive with..."
- "shall not work for any competitor of the Company..."
- "shall not use Confidential Information to compete..."
This isn't confidentiality - it's a work restriction. In California and several other states, non-competes are generally unenforceable.
Overly Broad IP Claims
Dangerous language includes:
- "all inventions, whether or not related to Company business..."
- "conceived during the term of employment..."
- "using any Company resources, including time..."
This could claim your side projects, open-source contributions, or personal inventions.
Perpetual Obligations
Terms like "in perpetuity" or "indefinitely" for general business information are unreasonable. Trade secrets may warrant longer protection, but routine business information should have a defined term.
What's Reasonable in Employment NDAs
| Term | Reasonable | Concerning |
|---|---|---|
| Duration | 1-3 years post-employment | Perpetual/indefinite |
| Scope | Specific categories of information | "Any and all information" |
| IP Ownership | Work-related inventions during work hours | All inventions including personal projects |
| Prior Work | Exhibit to list prior inventions | No carve-out for prior knowledge |
| Non-Solicit | 1-2 years for direct reports | Perpetual or all employees |
| Remedies | Standard damages and injunction | Liquidated damages or forfeiture |
State Law Matters
Employment law varies significantly by state. California, for example, generally prohibits non-competes and limits what employers can claim regarding employee inventions. Know your state's laws before negotiating.
Negotiation Tips for Job Candidates
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Negotiate at the Offer Stage
You have the most leverage before you accept. Once you've started, negotiating power decreases significantly.
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Document Your Prior Work
List all inventions, projects, and side work you want excluded. Get this in writing as an exhibit to the agreement.
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Request Separate Agreements
Ask that NDA, IP assignment, and non-compete (if any) be separate documents. This makes it easier to negotiate each.
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Use HR or Legal as Partners
Frame your concerns as "wanting to start on clear terms" rather than adversarial. Most companies prefer clarity too.
Know Your Rights
Whistleblower Protections
Federal and state laws protect employees who report illegal activity, regardless of what an NDA says. You cannot be bound to silence about fraud, safety violations, discrimination, or other illegal conduct. Many employment NDAs now explicitly include these carve-outs.
DTSA Immunity Notice
Under the Defend Trade Secrets Act (DTSA), employees are protected from liability for disclosing trade secrets to government officials or attorneys for the purpose of reporting suspected violations of law. Employers with 50+ employees must include this notice.
Missing Protections?
If the NDA doesn't include whistleblower carve-outs, ask for them. Legitimate employers will add them readily - they're legally required in many cases anyway.
Got an Employment NDA to Review?
Get an attorney to review your specific agreement and provide personalized recommendations.
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