Can an employment NDA stop me from using open-source libraries I contributed to while employed?

Can an employment NDA stop me from using open-source libraries I contributed to while employed?

An employment NDA alone rarely prevents you from using open-source libraries, but the accompanying Invention Assignment Agreement often does. If your contract contains broad language claiming ownership of all work created during your employment, your employer may legally own the code you contributed to open-source projects, potentially blocking your future use of that work.

The Legal Conflict: NDA vs. IP Assignment

It is a common misconception that an NDA is the only document governing your output. In reality, the threat to your open-source contributions stems from two distinct contractual provisions:

• Confidentiality (NDA): Prevents you from leaking proprietary trade secrets or internal company code.
• IP Assignment: Automatically transfers ownership of any "work product" or "inventions" created during your employment to the company.

If your IP assignment clause is drafted broadly—covering anything "related to the company’s business" or "created during the term of employment"—the company may claim ownership of your open-source contributions, even if you wrote them on a weekend.

Key takeaway: Always distinguish between an NDA (which protects secrets) and an IP Assignment (which steals ownership). Your right to use open-source code depends on the scope of the assignment clause, not the NDA.

Criteria for Determining Ownership

Courts typically look at four factors to determine if your employer owns your open-source contributions. If you meet these criteria, you are at high risk of losing control over your code:

• Company Resources: Did you use a company-issued laptop, cloud account, or proprietary software to write the code?
• Company Time: Was the code written during your standard working hours or while on the clock?
• Scope of Business: Does the open-source project directly compete with or relate to your employer's core product or service?
• Contractual Language: Does your agreement contain an "Invention Assignment" clause that lacks an explicit carve-out for personal projects?

Comparison of Contractual Protections

How to Protect Your Contributions

You do not have to choose between your career and your open-source contributions. Follow these steps to secure your rights:

1. Audit your contract: Review your employment agreement for "Invention Assignment" or "Proprietary Rights" sections.
2. Create an Exclusion List: Before signing, provide a list of existing open-source projects you contribute to and request they be excluded from the assignment clause.
3. Use Personal Hardware: Never push code to GitHub or other repositories from a company-issued machine.
4. Seek Written Consent: If you start a new project, request a simple email or letter from your manager or HR confirming the company has no interest in the project.

Action Item: Check your employment contract today for an "Exclusion of Inventions" schedule. If it is blank, you are potentially assigning your personal projects to your employer by default.

Jurisdictional Nuances

Your location significantly impacts your rights. For example, in California, Labor Code Section 2870 provides statutory protection for employees. It states that an employer cannot require you to assign rights to an invention developed entirely on your own time without using the employer’s equipment, unless the invention relates directly to the employer’s business or actual/demonstrably anticipated research.

However, these protections are not universal. In many other jurisdictions, the contract language is the final word. If you signed a contract that is broader than state law, you may have inadvertently waived your statutory protections.

The Role of AI in Contract Analysis

Navigating these legal complexities is difficult without specialized training. TermScore uses advanced AI to automatically scan your employment agreements, flagging overly broad IP assignment clauses and identifying missing protections for your open-source contributions. By surfacing these risks before you sign, TermScore ensures you retain ownership of your intellectual property while maintaining your professional standing.