Does an employment NDA cover work I completed for a previous company before joining my current employer?

No, a standard employment NDA cannot retroactively claim ownership of work completed for a previous employer. However, poorly drafted "Assignment of Inventions" clauses can create legal ambiguity. You must explicitly exclude prior work via a "Prior Inventions" disclosure to ensure your past intellectual property remains yours.

The Legal Distinction Between NDA and IP Assignment

Employees often confuse Non-Disclosure Agreements (NDAs) with Intellectual Property (IP) Assignment Agreements. While they are often bundled into a single "Proprietary Information and Inventions Agreement" (PIIA), they serve different functions.

• NDAs: Restrict you from sharing your current employer's trade secrets. They do not grant the employer ownership of your past work.
• IP Assignment Clauses: These state that any work created during your employment belongs to the company. If these clauses are drafted too broadly, they may attempt to capture "all work created by the employee," which could inadvertently include your prior projects.

Key takeaway: Always check if your contract includes an "Assignment of Inventions" section. An NDA alone rarely claims ownership, but an assignment clause can be dangerously broad.

Action Item: Review your contract for the phrase "all inventions conceived or reduced to practice." If it lacks a "Prior Inventions" exclusion, you are at risk.

Why "Prior Inventions" Disclosures Are Mandatory

To prevent your current employer from claiming your past work, you must utilize a Prior Inventions disclosure. This is a formal list attached to your employment contract that carves out specific projects, codebases, or patents from the company's ownership scope.

What to include in your disclosure:

• Project Name/Title: A clear identifier for the work.
• Date of Creation: Evidence that the work predates your employment.
• Scope of Work: A brief description of the technology or creative output.
• Status: Whether the work is patented, copyrighted, or under development.

Action Item: If you did not sign a Prior Inventions disclosure at onboarding, draft a memo to your HR department or legal counsel immediately to document your pre-existing work.

The Risk of Misappropriation

Even if your current NDA doesn't claim your past work, you face a different threat: the misappropriation of your *previous* employer's trade secrets. If you bring code, client lists, or proprietary methodologies from Company A to Company B, you are violating your previous NDA.

Common Red Flags for Misappropriation:

• Using company-issued hardware to store personal, pre-existing projects.
• Copying and pasting code snippets from a previous employer's repository.
• Sharing "best practices" that are actually trade secrets of a former employer.

Key takeaway: Your current employer's NDA does not protect you from being sued by your *former* employer for using their confidential information. Keep your past and present work strictly siloed.

Action Item: Perform a "clean room" audit. Ensure no files, documents, or data from your previous employer exist on your current work devices or cloud accounts.

Jurisdictional Variations

State laws significantly impact how these clauses are enforced. For example, California Labor Code Section 2870 provides statutory protection for employees, stating that an employer cannot require an employee to assign rights to an invention developed entirely on their own time without using the employer's equipment or trade secrets.

Key Jurisdictional Differences:

• California/Washington: Strong statutory protections for employee-created IP.
• New York/Delaware: Often rely heavily on the specific "four corners" of the contract language.
• Non-Compete States: In states where non-competes are banned, companies often try to use overly broad IP assignment clauses as a "backdoor" to restrict your mobility.

Action Item: Consult local labor laws if your contract contains language that seems to claim ownership of "all work related to the company's business," regardless of when it was created.

How to Audit Your Contract

If you are concerned about your current contract, follow this process to mitigate risk:

1. Identify the Assignment Clause: Look for sections titled "Inventions," "Intellectual Property," or "Work Product."
2. Check for Exclusions: Search for an exhibit or appendix titled "Prior Inventions" or "Excluded Inventions."
3. Review Definitions: Ensure the definition of "Company IP" is limited to work created *during* the term of employment.
4. Formalize Disclosures: If the contract is silent on prior work, send a written notice to your employer listing your pre-existing IP to establish a paper trail.

TermScore can automatically analyze your employment contract to identify overly broad IP assignment clauses and missing Prior Inventions disclosures, providing you with an instant risk assessment before you sign.