Understanding Your Position
Many employees sign NDAs without reading them, assuming they are "standard" and non-negotiable. This is a mistake. While employers have legitimate interests in protecting confidential information, overly broad NDAs can unfairly restrict your future career options and even prevent you from discussing workplace issues.
The key is understanding the difference between reasonable protections and overreaching terms. Most employers will negotiate if you approach the conversation professionally and demonstrate you understand their legitimate concerns.
Your negotiating position is strongest before you sign an offer letter or start employment. Once you have started work, you have less leverage because continued employment alone may not constitute sufficient "consideration" for new contractual terms in many states.
What You Can Negotiate
The following table outlines common NDA clauses and your ability to negotiate them. Difficulty ratings reflect typical employer flexibility, but every situation is different.
| Clause | Difficulty | What to Ask For |
|---|---|---|
| Definition of "Confidential Information" | Usually Negotiable | Narrow the definition to specifically identified categories. Exclude publicly available information, your general skills, and knowledge you brought to the job. |
| Duration of Obligations | Usually Negotiable | Request 1-2 years for general confidential information (trade secrets can remain longer). Push back on "perpetual" or "indefinite" for non-trade-secret information. |
| Return of Materials | Usually Negotiable | Request the right to keep copies of your own work product for portfolio purposes, personal contact information you developed, and performance reviews. |
| Whistleblower Carve-Out | Usually Negotiable | Ensure explicit language allowing you to report violations to government agencies. This is legally required under DTSA but should be clearly stated. |
| Non-Disparagement | Sometimes Negotiable | Make it mutual (employer cannot disparage you either). Ensure it does not prevent honest reviews on Glassdoor or truthful statements about working conditions. |
| Choice of Law / Venue | Sometimes Negotiable | Request your home state rather than employer headquarters, especially if they are in different states. This affects which courts you would use in a dispute. |
| Injunctive Relief | Rarely Negotiable | Employers strongly resist removing this. You can request a requirement that they demonstrate actual harm before seeking emergency relief. |
| Non-Compete Elements | Depends on State | In California, Minnesota, North Dakota, and Oklahoma, these are void. Elsewhere, negotiate for narrow scope, short duration (6-12 months), and geographic limits. |
What to Say: Negotiation Scripts
How you frame your requests matters as much as what you request. Here are professional ways to raise concerns without appearing adversarial.
Requesting Time to Review
"Thank you for sending over the NDA. I want to give this the attention it deserves. Could I have until [date] to review it? I want to make sure I fully understand my obligations so I can comply completely."
Narrowing the Definition of Confidential Information
"I noticed the definition of 'Confidential Information' is quite broad. I absolutely want to protect [Company]'s legitimate trade secrets and proprietary information. Could we specify the categories more precisely? This would help me be more careful about what needs protection and reduce any ambiguity."
Addressing Overly Long Duration
"I see the confidentiality obligations extend for [X] years after employment. For genuine trade secrets, I understand the need for extended protection. For other business information that may become outdated, would you consider a shorter period like 2 years? This is pretty standard in the industry."
Requesting a Whistleblower Carve-Out
"I want to make sure the NDA includes the federally-required whistleblower immunity language from the Defend Trade Secrets Act. This protects both of us - it shows the company takes compliance seriously and ensures the agreement is enforceable."
Do not say things like "my lawyer said this is unenforceable" (sounds adversarial), "I will not sign this" (ultimatums backfire), or "this is unreasonable" (subjective and unhelpful). Focus on collaborative problem-solving.
Red Flags to Watch For
Some NDA provisions are not just aggressive - they are potentially unenforceable or even illegal. Watch for these warning signs:
Provisions That May Be Unenforceable
- Overly broad definitions covering "all information" you learn, including general industry knowledge
- Perpetual duration for non-trade-secret information (courts often limit this to 2-5 years)
- Prohibition on working in your field disguised as confidentiality (this is a non-compete, not an NDA)
- Waiver of jury trial rights in states that prohibit such waivers in employment contracts
Provisions That May Be Illegal
- Restrictions on discussing wages or working conditions with co-workers (violates NLRA)
- Prohibition on reporting to government agencies (violates multiple whistleblower statutes)
- Restrictions on testifying in legal proceedings if subpoenaed
- Forced arbitration of sexual harassment claims (prohibited under 2022 federal law)
If you see multiple red flags, if the role involves significant executive responsibility, if there is a substantial non-compete component, or if you are being asked to sign a new NDA mid-employment with no additional compensation - these situations warrant professional legal review.
After You Sign
Once you have signed an NDA, take these steps to protect yourself:
- Keep a copy of the signed agreement in a personal (non-work) location
- Document what you knew before starting - your pre-existing knowledge is not confidential
- Be mindful during employment about what constitutes genuinely confidential information
- Review before departing - understand your obligations before you leave
- Get departure terms in writing - if they offer severance, make sure the release is mutual