Does an employment NDA prevent me from working on personal open source projects during weekends?

Does an employment NDA prevent me from working on personal open source projects?

An employment NDA alone rarely prevents you from coding, but the Invention Assignment Agreement attached to your contract often does. If your contract claims ownership of all intellectual property created during your employment that relates to the company’s business, your open source contributions could legally belong to your employer.

Key takeaway: Never assume that working on your own time or using your own laptop exempts you from your employer's IP claims. The language in your contract is the final authority.

The Difference Between NDAs and Invention Assignments

It is critical to distinguish between two common contract types that often appear in the same document packet:

• Non-Disclosure Agreements (NDAs): These restrict you from sharing proprietary company information. They generally do not stop you from writing code, provided you do not use company trade secrets in your open source project.
• Invention Assignment Agreements: These are the primary threat to open source developers. They state that any intellectual property (code, designs, documentation) you create during your employment is the property of the employer.

Action Item: Review your employment contract specifically for a section titled "Proprietary Information and Inventions Agreement" (PIIA). If you see the word "assign," your employer is claiming ownership of your work.

Red Flags in Your Employment Contract

When reviewing your contract, look for these specific phrases that signal high risk for your open source projects:

• "Relates to the business of the Company": This is often interpreted broadly. If you work for a fintech company and build a personal finance library, the company may claim it is "related" to their business.
• "Developed during the term of employment": This phrasing ignores the "weekends and evenings" defense. It asserts ownership based on the timeline of your employment, not the time of day.
• "Using any equipment, supplies, or facilities": If you use your company-issued laptop to push a single commit to GitHub, you may have inadvertently triggered an assignment clause.

Jurisdictional Protections: The California Exception

Some states provide statutory protection for employees. For example, California Labor Code Section 2870 prevents employers from claiming ownership of inventions developed entirely on your own time without using the employer’s equipment, supplies, facilities, or trade secrets, provided the invention does not relate to the employer’s business.

However, these protections are not universal. In states like New York or Texas, the contract language is often the final word. Always check your state’s specific labor statutes before assuming you are protected by law.

How to Safely Contribute to Open Source

If you want to contribute to open source without risking your career or your project, follow these steps:

1. Audit your contract: Identify if you have signed an invention assignment agreement.
2. Request an IP Exclusion: Ask your employer to sign an addendum that explicitly lists your existing open source projects as "Excluded Inventions."
3. Maintain strict separation: Never use company hardware, company-licensed software, or company-provided internet for personal coding.
4. Use a personal email: Never associate your professional email address with your GitHub or GitLab account.
5. Avoid competitive overlap: Do not contribute to projects that directly compete with your employer’s product roadmap.

Key takeaway: If you are unsure about the scope of your assignment clause, do not push code to public repositories until you have received written clarification from your HR or legal department.

Protecting Your Intellectual Property

Navigating the intersection of employment law and open source contribution is complex. Ambiguous contract language can lead to legal disputes that jeopardize your personal projects. TermScore automatically analyzes your employment agreements to highlight restrictive invention assignment clauses and potential IP conflicts, giving you the clarity you need to code with confidence. Upload your contract to TermScore today to identify hidden risks before you commit your next line of code.