Does an employment NDA cover work I did before I was hired?

No, a standard employment NDA does not automatically cover work performed before your start date. Confidentiality and intellectual property obligations typically begin on the 'Effective Date' of your contract. However, if your agreement includes specific retroactive language or broad 'assignment of invention' clauses, your pre-hire work could be inadvertently captured.

The Scope of Retroactive Clauses

Most employment agreements are forward-looking. They govern the relationship starting from the day you sign or begin employment. However, legal departments often insert 'catch-all' language designed to capture any intellectual property (IP) that relates to the company's business, regardless of when it was conceived.

Identifying Red Flags in Your NDA

• Broad Definitions: Look for phrases like 'all inventions conceived or reduced to practice prior to or during the term of employment.'
• Assignment Clauses: Check if the contract requires you to assign 'all right, title, and interest' in any work related to the company's current or anticipated business.
• Lack of Exclusions: If there is no section titled 'Prior Inventions' or 'Excluded Property,' the contract may be overly broad.

Key takeaway: If your contract lacks an exhibit for 'Prior Inventions,' you are at risk of the employer claiming ownership of your past projects. Always request an addendum to list your pre-existing work.

How to Protect Your Pre-Hire Work

You must proactively carve out your pre-existing work from the scope of your employment agreement. Do not rely on verbal assurances from HR or hiring managers; if it is not in the contract, it is not protected.

1. Create an Inventory: List all software, designs, patents, or trade secrets you created before your start date.
2. Draft an Exhibit: Attach this list to your employment agreement as 'Exhibit A: Prior Inventions.'
3. Reference the Exhibit: Ensure the main body of the NDA contains a clause stating: 'The inventions listed in Exhibit A are excluded from the scope of this Agreement.'
4. Verify Jurisdiction: In states like California, Washington, and Illinois, statutes limit an employer's ability to claim ownership of inventions created on your own time without company resources.

Comparison: Standard vs. Aggressive NDA Terms

Action Item: Review your contract for the term 'Effective Date' and check if any subsequent clauses reference 'prior to' or 'pre-existing' work. If you find these, prepare a disclosure list immediately.

The Role of State Law

While contract language is paramount, state law provides a safety net. For example, California Labor Code Section 2870 prevents employers from requiring employees to assign rights to inventions developed entirely on their own time without using the employer's equipment, supplies, or trade secrets. However, these laws often have narrow exceptions for work that relates directly to the employer's business or actual/anticipated research.

Jurisdictional Nuances

• California: Strong protections for employee-created IP.
• New York: Generally enforces the 'four corners' of the contract; if you signed it, you are likely bound by it.
• Texas: Focuses heavily on the 'shop right' doctrine, which may give employers rights to inventions created using company resources.

Key takeaway: State laws are not a substitute for a well-drafted contract. Never assume your state's laws will override an overly broad NDA you have already signed.

Final Steps for Contract Review

Before signing, ensure that your 'Prior Inventions' list is comprehensive. Include project names, dates of creation, and a brief description of the technology. If the employer refuses to accept an exclusion list, consult with an employment attorney to understand the specific risks to your personal portfolio.

TermScore can automatically analyze your employment agreement to identify hidden retroactive clauses and missing 'Prior Inventions' disclosures, ensuring you are fully aware of your IP rights before you sign.