Can an employment NDA legally prevent me from contributing to open source projects on my own time?

An employment NDA rarely bans open source contributions directly, but broad Invention Assignment Agreements often grant your employer ownership of any code you write during your tenure. If your contributions relate to your employer's business or use company resources, they may legally claim your intellectual property.

Understanding the Legal Framework

The conflict between your open source contributions and your employment contract usually stems from two distinct legal instruments: the Non-Disclosure Agreement (NDA) and the Invention Assignment Agreement (IAA). While an NDA restricts the sharing of trade secrets, the IAA is the document that actually threatens your side projects.

The Invention Assignment Clause

Most employment contracts contain a clause stating that any invention, software, or intellectual property created during the term of employment belongs to the company. These clauses are often drafted with extreme breadth, sometimes covering anything created on your own time, using your own equipment, if it relates to the company's "actual or anticipated business."

Key takeaway: Never assume that "own time" equals "own property." If your side project touches upon your employer's industry, the law often favors the employer's claim to that IP.

Action Item: Locate your employment contract and search specifically for the terms "Invention Assignment," "Proprietary Information," or "Work Made for Hire."

Jurisdictional Protections

Your location significantly impacts the enforceability of these clauses. Some states have enacted statutes that limit an employer's ability to claim ownership of employee inventions.

• California (Labor Code Section 2870): Employers cannot claim ownership of inventions developed entirely on your own time without using company equipment or trade secrets, provided the invention does not relate to the employer's business or actual/anticipated research.
• Washington (RCW 49.44.140): Similar to California, this statute protects employee inventions created on personal time, provided no company resources were used.
• Other States: Many states lack specific statutes, meaning the contract language governs entirely. In these jurisdictions, courts often interpret broad assignment clauses in favor of the employer.

Action Item: Check if your state has an "Employee Invention Statute." If you live in a state without one, your contract is the sole authority.

How to Safely Contribute to Open Source

To mitigate risk, you must create a clear "firewall" between your professional duties and your open source contributions.

1. Disclose Prior Inventions: Most contracts include a "Prior Inventions" schedule. List your existing open source projects here to explicitly exclude them from the assignment clause.
2. Use Personal Infrastructure: Never use a company-issued laptop, company-hosted cloud services (like AWS/Azure accounts paid for by the firm), or company email addresses for your side projects.
3. Maintain Industry Separation: Avoid contributing to projects that directly compete with your employer's product roadmap or core technology stack.
4. Request an IP Waiver: If you are a prolific contributor, ask your employer for a written waiver or a "side letter" confirming that your specific open source activities are excluded from your employment agreement.

Key takeaway: If you are building something that could be a startup or a commercial product, consult an attorney before pushing your first commit to a public repository.

Action Item: Create a "clean room" environment for your side projects using hardware and software accounts that have zero connection to your employer.

The Role of AI in Contract Review

Manually parsing dense legal jargon to identify "Invention Assignment" risks is prone to human error. TermScore uses advanced AI to instantly scan your employment agreements, highlighting restrictive clauses and identifying potential conflicts with your open source activities. By providing a clear, plain-English summary of your obligations, TermScore empowers you to negotiate better terms or proceed with your side projects with full legal clarity.