How do I know if an NDA definition of trade secrets is overbroad?

An NDA definition is overbroad if it includes general knowledge, skills, or information readily ascertainable through public means. If the definition lacks specific limitations or attempts to classify your routine daily work as proprietary, it is likely legally unenforceable and restrictive.

Can an employer legally claim my general skills as a trade secret?

No. Under the Defend Trade Secrets Act (DTSA) and the Uniform Trade Secrets Act (UTSA), employers cannot claim ownership over an employee's general knowledge, skill, experience, or training acquired during employment.

What should I do if my NDA is too broad?

Request a narrowing amendment that specifically excludes your general professional knowledge and publicly available information. If they refuse, consult an employment attorney to assess the risk of signing.

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How to tell if an NDA's definition of trade secrets is legally overbroad for my role?

How to Identify Overbroad Trade Secret Definitions

An NDA definition is overbroad if it encompasses your general professional skills, industry knowledge, or information that is readily ascertainable by the public. If the contract fails to distinguish between the company’s proprietary data and your own career-earned expertise, it is likely legally unenforceable and restrictive.

The Legal Standard for Trade Secrets

To qualify as a trade secret under the Defend Trade Secrets Act (DTSA) and the Uniform Trade Secrets Act (UTSA), information must meet three specific criteria:

Economic Value: The information must derive independent economic value from not being generally known.
Secrecy: It must not be readily ascertainable by proper means by other persons who can obtain economic value from its disclosure.
Reasonable Measures: The owner must have taken reasonable measures to keep the information secret.

Key takeaway: If a definition includes 'all information learned during employment,' it is legally suspect. Trade secrets must be specific, not a blanket catch-all for your entire work experience.

Action Item: Check if your NDA includes a 'carve-out' clause for general knowledge. If it doesn't, the definition is likely too broad.

Red Flags in NDA Language

When reviewing your contract, look for these specific red flags that signal an overbroad definition:

'All-Encompassing' Language: Phrases like 'any and all information' or 'everything learned during the course of employment.'
Lack of Subject Matter Limitation: The definition fails to specify technical, financial, or strategic categories.
No Public Domain Exclusion: The contract fails to explicitly state that information already in the public domain is excluded.
Duration Without End: Trade secrets should last as long as they remain secret; if the NDA claims protection for 'all time' regardless of public disclosure, it is overbroad.

Feature	Narrow/Enforceable	Overbroad/Risky
Scope	Specific technical data/formulas	'Everything learned at the company'
Public Info	Explicitly excluded	Included or ignored
Employee Skills	Excluded	Claimed as proprietary
Duration	Until public disclosure	Perpetual, regardless of status

Action Item: Highlight any clause that does not explicitly exclude 'information generally known in the industry' and prepare to request a revision.

How to Evaluate Your Role Against the Definition

Your role dictates what is reasonable. A software engineer’s trade secrets are vastly different from a sales representative’s. Use this checklist to evaluate your specific situation:

Identify your 'General Skill': List the tools, languages, or methodologies you brought to the job. These cannot be trade secrets.
Compare against the NDA: Does the NDA definition attempt to capture these tools? If yes, it is overbroad.
Assess 'Readily Ascertainable': If you could find the information via a Google search or industry trade publication, it is not a trade secret.
Check for 'Residuals' Clauses: Look for language that allows you to use 'unaided memory' of general concepts. This is a standard protection for employees.

Key takeaway: You have a legal right to use your 'general knowledge, skill, and experience' in future employment. Any contract attempting to strip you of this right is likely void as a restraint of trade.

Action Item: Create a list of your core professional competencies. If the NDA definition overlaps with more than 20% of these competencies, you should seek legal clarification.

Steps to Negotiate a Narrower Definition

If you identify an overbroad definition, you are not powerless. Follow these steps to protect your mobility:

Request a 'Carve-out': Ask for an amendment that explicitly excludes 'general professional knowledge and skills acquired during the term of employment.'
Define by Category: Suggest that the definition be limited to specific categories (e.g., 'source code,' 'customer lists,' 'proprietary algorithms').
Reference Industry Standards: Point out that standard industry NDAs exclude publicly available information.

Action Item: Draft a simple email to HR or legal counsel: 'I am concerned that the current definition of trade secrets is overly broad and may inadvertently restrict my ability to use my general professional skills. Can we include an exclusion for general industry knowledge?'

Navigating complex legal language in employment contracts is difficult, but you don't have to do it alone. TermScore uses advanced AI to automatically analyze your contracts for overbroad definitions, restrictive covenants, and hidden risks, providing you with a clear, plain-English report so you can sign with confidence.