Pre-Employment NDA

What is a Pre-Employment NDA?

A pre-employment NDA (also called an interview NDA, candidate NDA, or prospective employee NDA) is a confidentiality agreement signed before or during the job interview process - before any employment relationship begins.

These agreements protect information that companies share during interviews, technical assessments, or pre-hire discussions. Unlike employment NDAs signed after you're hired, pre-employment NDAs cover a period when you might end up working for a competitor if you don't get (or don't accept) the job.

When Companies Use Pre-Employment NDAs

The Interview Process Timeline

What Pre-Employment NDAs Typically Cover

Information Protected

• Technical information: Code, architecture, algorithms, and infrastructure details
• Business strategy: Product roadmaps, market plans, competitive analysis
• Financial data: Revenue, margins, funding details, valuation information
• Client information: Customer names, deal sizes, relationship details
• Personnel information: Org structure, compensation data, hiring plans
• The interview itself: Questions asked, assessment methods, evaluation criteria

What's Usually NOT Covered

• Information already public or that becomes public (not through your breach)
• Information you already knew before the interview
• General knowledge and skills you possess
• Information you independently develop without using their confidential information
• Information you receive from a third party without confidentiality restrictions

What to Look For Before Signing

Red Flags to Watch For

Overly Broad Language

Watch for phrases like "all information received" or "anything relating to the company's business." Legitimate NDAs should be specific about what's protected.

Unreasonable Duration

Most interview information loses value quickly. A 5-year or "perpetual" obligation for pre-employment discussions is usually excessive. Trade secrets might warrant longer protection, but general business information should have limited terms.

Non-Compete Elements

Some companies try to sneak non-compete restrictions into interview NDAs. Phrases like "agree not to work for competitors" or "not to pursue similar opportunities" go beyond confidentiality and may be unenforceable (especially in California).

Invention Assignment

Pre-employment NDAs should NOT include invention assignment provisions. If the NDA claims ownership of ideas you develop, that's overreaching for an interview context.

Can You Negotiate a Pre-Employment NDA?

Yes, but with limitations. Companies often use standard forms for all candidates and may be resistant to changes. However, reasonable requests are often accommodated:

Likely to Be Accepted

• Adding a specific end date instead of open-ended duration
• Clarifying that your pre-existing knowledge is excluded
• Confirming mutual confidentiality (they won't share your information either)
• Removing provisions that look like non-competes

May Be More Difficult

• Completely rewriting the definition of confidential information
• Changing governing law or dispute resolution provisions
• Adding provisions that benefit only you

How to Approach Negotiation

1. Be professional: Frame requests as clarifications, not demands
2. Be specific: Identify exact provisions you want changed
3. Be reasonable: Don't ask for the moon; focus on real concerns
4. Be prepared to explain: Have a clear reason for each request
5. Know your leverage: The more they want you, the more flexibility you have

What Happens If You Don't Get the Job?

The NDA remains in effect. You're still bound by its terms even if:

• You don't get an offer
• You decline the offer
• The company decides not to proceed at any stage
• You withdraw from consideration

This is exactly why pre-employment NDAs exist - to protect information shared with candidates who don't become employees.

Practical Implications

If you interview at Company A and don't get the job, then accept a position at competing Company B:

• You cannot share Company A's confidential information with Company B
• You should be careful about projects at Company B that might seem related to what you learned at Company A
• If Company A's information would help with your work at Company B, you cannot use it
• Document what you knew before the Company A interview to avoid confusion

Special Considerations for Different Situations

If You're Currently Employed

Be cautious about signing pre-employment NDAs while still employed. Consider:

• Does the prospective employer's NDA conflict with your current obligations?
• Will signing reveal that you're job hunting (if the NDA is somehow discovered)?
• Are there provisions about disclosing prior employer information (you shouldn't anyway)?

If You're Interviewing with a Competitor of a Previous Employer

The new company's NDA doesn't change your obligations to former employers:

• You likely still have confidentiality obligations to your former employer
• The new company shouldn't ask you to share former employer secrets
• Reputable companies will explicitly tell you not to bring confidential information

If You're a Contractor or Consultant

Contractors often interview with many potential clients and competitors. Consider:

• You may have multiple NDAs with competing companies simultaneously
• Keep careful track of what information came from which source
• Consider whether accepting one NDA might conflict with another

Frequently Asked Questions

Can I take notes during an NDA-covered interview?

Generally yes, but those notes become confidential information subject to the NDA. You should not share them, use them for a competitor, or keep them if the NDA requires return of materials. Some companies may explicitly prohibit note-taking.

What if I already know the "confidential" information from public sources?

Standard NDAs include exceptions for publicly available information. Document your sources (bookmark the article, save the date you accessed it) to prove the information was public if there's ever a dispute.

Does the NDA prevent me from saying I interviewed there?

Usually no - the fact of an interview is typically not confidential. However, the substance of what was discussed would be. Some NDAs do require keeping the interview itself confidential; read carefully.

What if the company goes out of business?

Technically, your obligations may continue, but enforcement becomes practically impossible without a company to enforce them. Trade secrets acquired by another company in bankruptcy may come with the original NDA obligations.