Does an employment NDA prevent me from contributing to open source projects on my own time?

Does an employment NDA prevent me from contributing to open source projects on my own time?

An NDA typically protects confidential information, but it does not inherently prevent open source contributions. However, most employment contracts include an Invention Assignment Agreement that claims ownership of all code you write during your employment, regardless of whether it was created on company time or equipment.

Key takeaway: An NDA restricts what you can say, but an IP Assignment clause restricts what you can own. Always check your contract for 'Work Made for Hire' or 'Invention Assignment' language before pushing code to GitHub.

Understanding the Difference: NDA vs. IP Assignment

Employees often confuse NDAs with IP assignment clauses. While they frequently appear in the same document, they serve distinct legal functions.

• NDA (Non-Disclosure Agreement): Prohibits the unauthorized sharing of trade secrets, internal roadmaps, and proprietary data. Contributing to open source is generally safe under an NDA as long as you do not leak company-specific code or trade secrets.
• IP Assignment Clause: Transfers ownership of your creative output to your employer. If your contract states that all 'inventions' or 'works' created during your employment belong to the company, you may be inadvertently giving your employer ownership of your open source contributions.

Action Item: Search your employment contract for the word 'Assignment' or 'Inventions.' If you find a clause that claims ownership of work created 'during the term of employment,' you are at risk.

Jurisdictional Protections: California and Beyond

Some states provide statutory protections that limit how broadly an employer can claim your personal work. 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, or trade secrets, provided the invention does not relate to the employer's business.

Action Item: Check if your state has an 'Employee Invention Act.' If you live in a state without these protections, your contract's broad language is likely enforceable.

How to Safely Contribute to Open Source

If you want to contribute to open source without risking your employment or your side projects, follow these steps:

1. Audit your contract: Identify if your IP assignment clause is 'broad' (covers everything) or 'narrow' (covers only work related to the company).
2. Request a written waiver: Ask your manager or HR for a 'Side Project Approval' or 'Open Source Contribution Policy' document.
3. Use personal hardware: Never use company-issued laptops, cloud accounts, or software licenses for your open source work.
4. Avoid company business: Ensure your contributions are not related to your employer's core product or current research and development.
5. Use a personal email: Never use your work email address for GitHub or other developer platforms.

Key takeaway: A verbal 'it's fine' from your manager is not legally binding. Always obtain a written confirmation or an email trail that explicitly acknowledges your open source activities.

Red Flags in Your Employment Contract

When reviewing your contract, watch for these specific phrases that signal potential trouble for open source contributors:

• 'All work created during the term of employment': This is the most dangerous phrase. It does not distinguish between work done at 2 PM on a Tuesday and 10 PM on a Sunday.
• 'Related to the business of the Company': This is often interpreted extremely broadly by courts. If you work for a software company, almost any code you write could be argued as 'related.'
• 'Sole and exclusive property': This language leaves no room for personal ownership of your side projects.

Action Item: If your contract contains these phrases, consult with an employment attorney before contributing to any high-profile open source projects.

Conclusion

Contributing to open source is a vital part of professional growth, but it must be balanced against your contractual obligations. By understanding the distinction between NDAs and IP assignment, and by utilizing your state's statutory protections, you can mitigate your risk. TermScore can automatically analyze your employment contract to flag restrictive IP assignment clauses and provide you with a clear summary of your rights, ensuring you can contribute to the developer community with confidence.