Does a standard employment NDA prevent me from referencing public case studies in my work portfolio?

Does a standard employment NDA prevent me from referencing public case studies in my work portfolio?

A standard employment NDA does not automatically prohibit you from referencing public case studies, provided the information is already in the public domain. However, if your portfolio reveals proprietary methodologies, non-public metrics, or internal strategic processes, you are likely in breach of your contractual obligations.

Key takeaway: Public availability is the threshold. If the information was released by the company in a press release or public report, it is generally safe. If it was never disclosed to the public, it remains confidential regardless of how 'general' the work seems.

Understanding the Scope of 'Confidential Information'

Most employment NDAs define 'Confidential Information' broadly to include any data not known to the general public. This often encompasses more than just trade secrets. To determine if your case study is safe, evaluate it against these three criteria:

• Publicity: Has the company officially published this data? If it is on their website or in a public filing, it is likely safe.
• Proprietary Nature: Does the work reveal the 'how' behind the 'what'? Even if the result is public, the internal process used to achieve it may be a protected trade secret.
• Client Sensitivity: Does the case study identify specific clients or reveal private contractual terms that were not intended for public consumption?

Action Item: Audit your portfolio against your company's public-facing marketing materials. If your portfolio contains data points not found in those materials, remove them immediately.

The Risk of 'Implied' Confidentiality

Even if an NDA does not explicitly forbid portfolio work, courts often look at the 'reasonable expectation of privacy.' If you worked on a project that was never launched or was kept internal, disclosing it—even in a vague manner—can be interpreted as a breach of your duty of loyalty or a violation of implied confidentiality.

Action Item: When in doubt, strip all specific numbers and internal project names. Focus on the 'transferable skills' rather than the specific project outcomes.

How to Safely Showcase Your Work

If you want to build a robust portfolio without risking litigation, follow this structured approach:

1. Anonymize Everything: Replace client names with generic descriptors (e.g., 'a Fortune 500 retail client' instead of 'Walmart').
2. Focus on Outcomes, Not Inputs: Describe the result (e.g., 'improved conversion by 15%') rather than the internal strategy or proprietary tools used to get there.
3. Seek Written Consent: If a project was particularly significant, email your former manager or HR department. A simple 'I am updating my portfolio and would like to include a high-level summary of [Project X]' can provide you with a written safe harbor.
4. Use Public Links: Instead of uploading internal documents, link directly to the company's own public case study or press release.

Key takeaway: Written permission is the only absolute defense against an NDA claim. If you cannot get it, assume the information is off-limits.

Jurisdictional Nuances

It is important to note that jurisdiction matters. For example, in California, Business and Professions Code Section 16600 limits the enforceability of non-compete and overly broad confidentiality agreements. However, this does not grant you the right to misappropriate trade secrets. Regardless of your state, the Defend Trade Secrets Act (DTSA) provides federal protection for companies, meaning they can sue you in federal court if you disclose proprietary information that gives them a competitive advantage.

Action Item: Check your employment contract for a 'Governing Law' clause. If your contract is governed by a state with strict trade secret protections, err on the side of extreme caution.

Automate Your Compliance

Navigating the nuances of an NDA can be complex, but you don't have to do it alone. TermScore uses advanced AI to analyze your employment contracts, identifying specific clauses that restrict your ability to share work or discuss past projects. By uploading your agreement to TermScore, you can instantly see which sections pose a risk to your portfolio, allowing you to make informed decisions and protect your professional reputation.